EFTA00299022.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE 1 AND JANE DOE 2, Petitioners, vs UNITED STATES OF AMERICA, Respondent. I JEFFREY EPSTEIN, Intervenor. I INTERVENOR JEFFREY EPSTEIN'S BRIEF IN OPPOSITION TO JUDICIAL REFORMATION OF THE NON-PROSECUTION AGREEMENT 1 EFTA00299022  TABLE OF CONTENTS INTRODUCTION BACKGROUND ARGUMENT I. PRINCIPLES OF PROCEDURAL DUE PROCESS PRECLUDE IMPOSITION OF THE EPSTEIN REMEDIES A. Mr. Epstein was not a Party to the Underlying Litigation and There is no Judgment Against him B. There is no Judicial Finding of "Bad Faith" or an "Illegal Agreement" and no Factual Basis for any Such Findings i. Mr. Epstein's Counsel Acted in Good Faith ii. The NPA is not an "Illegal Agreement" II. PRINCIPLES OF CONTRACT LAW PRECLUDE IMPOSITION OF THE EPSTEIN REMEDIES A. A Court may not Re-write an Agreement Between Two Contracting Parties to Eliminate all Consideration to One Party B. The General Release Signed by Petitioners Bars Them from Obtaining the Epstein Remedies III. THE CVRA ITSELF DOES NOT AUTHORIZE IMPOSITION OF THE EPSTEIN REMEDIES IV. PRINCIPLES OF SUBSTANTIVE DUE PROCESS PRECLUDE IMPOSITION OF THE EPSTEIN REMEDIES V. THE DOCTRINE OF SEPARATION OF POWERS PRECLUDES IMPOSITION OF THE EPSTEIN REMEDIES VI. THE DOCTRINE OF RIPENESS PRECLUDES IMPOSITION OF PROPOSED REMEDY #2 3 EFTA00299023 VII. THE DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDES IMPOSITION OF THE EPSTEIN REMEDIES VIII. THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDES IMPOSITION OF THE EPSTEIN REMEDIES IX. THE CVRA DOES NOT APPLY TO A NON-PROSECUTION AGREEMENT CONCLUSION EFTA00299024 TABLE OF AUTHORITIES s EFTA00299025  INTERVENOR JEFFREY EPSTEIN, through undersigned counsel, respectfully files this opposition to Petitioners' Submission on Proposed Remedies (DE 458). INTRODUCTION Petitioners are asking a federal court to do something that, to our knowledge, has never been done in the history of American jurisprudence. On the basis of a judgment finding that the government failed to comply with the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. §3771, Petitioners have proposed several lopsided remedies that target only Mr. Epstein, a non-party to the underlying litigation. Specifically, Petitioners seek: 1) a judicially-imposed reformation of the NPA to excise the "immunity provisions" and eliminate all contractual consideration that induced Mr. Epstein to enter into the NPA in the first place, and 2) an advisory opinion that the Constitution would permit a hypothetical future prosecution of Mr. Epstein by the USAO-SDFL (hereinafter the "Epstein Remedies"). (DE 458:4-5, 13 n.5). Despite having themselves relied on the NPA to settle their civil lawsuits against Mr. Epstein in 2010 and expressly agreed in a settlement agreement to not seek any further remedies against him either in law or in equity, Petitioners urge the Court to strip Mr. Epstein the benefits of the NPA ten years after he fully performed its obligations and endured its enormous burdens. At the same time, Petitioners seek to leave intact those provisions of the NPA that benefitted them and imposed criminal and monetary penalties against Mr. Epstein. The Epstein Remedies punish only Mr. Epstein, release the government from its contractual obligations, and allow Petitioners and their counsel to retain all of the financial benefits of Mr. Epstein's full performance. 6 EFTA00299026  Petitioners' premise for these drastic and unprecedented remedies against Mr. Epstein is the baseless conclusion that Petitioners draw from a single factual finding in the Court's opinion granting summary judgment against the government. (DE 435). Quoting directly from a stipulation between the Petitioners and the government in connection with summary judgment litigation to which Mr. Epstein was not even a party, this Court found: "Epstein's counsel was aware that the [USAO-SDFL] was deliberately keeping the NPA secret from the victims and, indeed, had sought assurances to that effect." Jane Does 1 and 2 v. United States, 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019) (emphasis added) (DE 435:8) (citing DE 407, at ¶48). From that finding, Petitioners contend that the Court concluded that Mr. Epstein was "the instigator of — the Government's CVRA violations," that Mr. Epstein acted with "unclean hands" and in "bad faith" with the "deliberate plan to violate the law." (DE458:16-19). No such conspiracy existed, and no such conclusions can be legally or logically inferred from the Court's factual findings. For the reasons set forth below, excising the "immunity provisions" that Mr. Epstein bargained for, relied upon, and suffered the consequences of: a) is not supported by the facts; b) would violate Mr. Epstein's constitutional rights to procedural and substantive due process; c) is neither authorized by statute nor available as an inherent remedy; and d) contravenes well-established principles of contract law. The Court should reject the Epstein Remedies as illegal, unconstitutional, a breach of the civil settlement agreements, and precluded by the doctrines of equitable and judicial estoppel. 7 EFTA00299027  BACKGROUND On July 19, 2006, Mr. Epstein was indicted in the Fifteenth Judicial Circuit in and for Palm Beach County on one count of solicitation of prostitution, in violation of Fla. Stat. §796.07. See State v. Jeffiey E. Epstein, 50-2006-CF-009454-AXXX-MB. In or around November 2006, while the state court charge was pending, Mr. Epstein learned that the United States Attorney's Office for the Southern District of Florida ("USAO-SDFL") was investigating whether Mr. Epstein's alleged conduct violated federal law. The USAO- SDFL investigation was led by honorable federal prosecutors with outstanding reputations, including but not limited to: R. Alexander Acosta (U.S. Attorney), Jeffrey Sloman (First Assistant U.S. Attorney), Matthew Menchel (Chief, Criminal Division), Andrew Lourie (Deputy Chief, Northern Region), and AUSA Anna Marie Villafana. Mr. Epstein retained counsel with expertise in federal law and federal jurisdiction, including a former federal appellate judge, a former United States Attorney and several former Assistant United States Attorneys, the former Principal Deputy Chief of the DOJ Child Exploitation and Obscenity Section ("CEOS"), a distinguished Harvard law professor, and other well-respected members of the defense bar. He also elicited legal opinions from a former federal district judge and a former United States Attorney. Mr. Epstein's counsel did what they were ethically bound to do: they advocated for their client. Counsel made numerous presentations, both orally and in writing, to the USAO-SDFL disputing many of the alleged underlying facts and alerting the prosecutors to the many contradictory sworn statements and inconsistencies in the various witness accounts of Mr. Epstein's alleged conduct. See, e.g., Letter from Gerald B. Lefcourt to a EFTA00299028 USAO-SDFL, June 25, 2007 (attached as Exhibit 1). Those presentations also included detailed statutory analysis and discussion of applicable case law, arguing, among other things, that: a) federal jurisdiction did not exist to prosecute these local offenses; b) the federal statutes being contemplated for prosecution did not apply to Mr. Epstein's alleged conduct; and c) federal jurisprudence did not provide precedential support for the application of the federal sex offense statutes to Mr. Epstein's alleged conduct. See Lefcourt Letter (Exhibit 1); see also Letter from Stephanie D. Thacker, former Principal Deputy Chief of CEOS, to John Roth, Senior Associate Deputy Attorney General, June 19, 2008 (attached as Exhibit ) (noting that "[t]his is a case about purely local activity, involving local actors, and affecting local interests and thus, should be handled by local authorities" and that "the facts of this case fall squarely outside the heartland of those [federal] statutes — in fact, in law, and in congressional intent"); see also Letter from Kenneth Starr, Esq. to John Roth, June 19, 2008 (attached as Exhibit _J. Defense counsel also urged the USAO-SDFL to respect the long-recognized "Petite Policy,"' set forth at 9- 2.031 of the United States Attorneys' Manual, of avoiding dual state and federal prosecutions regarding the same alleged conduct. See Exhibit . Counsel for the government and Mr. Epstein spent months negotiating, at arms- length, a resolution of the pending state charge and threatened federal charges. No bribes were paid. No threats or illegal inducements were made. No one was coerced. No one's free will was overborne. No one obstructed justice. The seasoned federal prosecutors were I See Petite v. United States, 361 U.S. 529 (1960). 9 EFTA00299029 not "wowed" by Mr. Epstein's counsel or impressed by Mr. Epstein's wealth. There was no backroom deal engineered by U.S. Attorney Alexander Acosta to curry favor with anyone, as has been publicly suggested. The lawyers on both sides were vigorous, but cordial, advocates. Indeed, by our count, approximately thirty (30) respected prosecutors and defense lawyers, including the aforementioned former federal appeals judge, a current federal appeals judge, and a current Under Secretary of the Treasury, all reviewed and either authorized or helped negotiate the resolution of the matter. See, e.g., Supplemental Privilege Log (DE 216-1) (illustrating the number of prosecutors involved in the decision- making over the NPA). No one questioned the legality of the disposition of the case or the loyalty that each advocate demonstrated to his/her client. Ultimately, the resolution agreed to by the parties was an NPA regarding the federal charges and a guilty plea by Mr. Epstein to both the pending state felony charge (Fla. Stat. §796.07) and an additional state felony charge of violating Fla. Stat. §796.03 (Case No. 2008-CF-009381AX.X), which would require, inter alia, an 18 month prison sentence, one year of community control, restitution, and sex offender registration within 48 hours of his release from prison. (DE 361-62). This resolution was, as in any hard-fought negotiation, the recognition by all parties of the strengths and weaknesses of their legal positions, the risk of litigation, and the government's desire to minimize damaging impeachment evidence of its witnesses. As summarized by AUSA Villafana, the USAO-SDFL made the decision to enter the NPA out of a desire to obtain a guaranteed sentence of incarceration, the equivalent of uncontested restitution for the victims, and guaranteed sex offender registration; these were "among the factors that informed the Office's discretionary 10 EFTA00299030 decision to negotiate a resolution of the matter and to ultimately enter the NPA." (DE 403- 19:10, ¶18). Moreover, as explained by then First Assistant AUSA Jeffrey Sloman in a recent Op-Ed in the Miami Herald, there were "significant legal impediments to prosecuting what was, at heart, a local sex abuse case." See Jeffrey Sloman, Alex Acosta Acted with Professionalism and Integrity in Handling the Jeffrey Epstein Case, Miami Herald Op-Ed, Feb. 15, 2019. The USAO-SDFL's decision to enter into the NPA was also influenced by its consideration of the privacy interests of certain of the victims. As stated by AUSA Villafana, "our hope was that we could set up a system that would allow these victims to get that restitution without having to go through what civil litigation will expose them to. You have a number of girls who were very hesitant about even speaking to authorities about this..." (DE 403-19:163-64). The NPA endured multiple levels of review by career public servants. Senior members of the Department of Justice, including the heads of CEOS, a high-level representative of the Criminal Division and the Deputy Attorney General were consulted, received legal submissions, and fully approved the exercise of discretion by the heads of the USAO-SDFL. In the end, the Executive Branch exercised, in good faith, the unreviewable prosecutorial discretion afforded to it by Article II of the Constitution, as even recognized by Congress. See 18 U.S.C. §3771(d)(6) ("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction."). The notion that "well-connected lawyers corrupted [] then-U.S Attorney Alex Acosta and his team into giving Epstein a sweetheart deal" has been soundly debunked; 11 EFTA00299031 there is no such evidence — NONE. Sloman, Alex Acosta Acted with Professionalism, Miami Herald Op-Ed, supra. The NPA was and is a valid and binding agreement. It contains no illegal provisions. It is not against public policy. Although the media has condemned the NPA, not one of the dozens of professionals who participated in the decision at some level has publicly raised any concerns about whether the NPA was reached in good faith. This was a conspiracy of none. Mr. Epstein lived up to his end of the bargain and, in reliance upon the promises of the Government, fully performed his obligations under the NPA. He pleaded guilty to two felonies in state court, which resulted in his serving thirteen months in prison followed by a year of community control, and continuous registration as a sex offender for almost ten years. Moreover, in exchange for the immunity provisions in the NPA, Mr. Epstein agreed to waive his right to contest liability and damages as to an unidentified and unknown number of individuals, whom the government would identify only after Mr. Epstein was sentenced. (DE 361-62:5, ¶7). A Special Master — former Chief United States District Judge Edward B. Davis, an esteemed jurist — was assigned the task of selecting and consulting with the Epstein-paid attorney-representative, Robert C. Josefsberg, Esq., to pursue claims on behalf of the victims against Mr. Epstein under 18 U.S.C. §2255. See Letter from FAUSA Jeffrey Sloman to Hon. Edward B. Davis, Oct. 25, 2007 (attached as Exhibit ). Mr. Epstein settled civil claims for damages with all claimants including those who brought actions against him under §2255 as well as those who brought federal or state monetary tort actions (amounting to millions of dollars), paid the attorney-representative, 12 EFTA00299032 and forewent a speedy resolution of any federal criminal charges. The State of Florida also relied upon the NPA: its prosecutors in the Fifteenth Judicial District brought a second more serious felony charge, one that required sex registration as a condition; a state circuit judge imposed the sentence after learning it was induced and resulted from the NPA; and Palm Beach County Sheriffs and Probation Officers implemented the agreed upon sentence. On June 30, 2008, Mr. Epstein began serving his state prison sentence. When Petitioners appeared at a status conference on this CVRA lawsuit on July 11, 2008, knowing that Mr. Epstein was in prison, they chose to not proceed with the CVRA case on an emergency basis despite statutory provisions within the CVRA that required petitioners seeking relief to be heard at both the trial and appellate levels within certain strict time limits measured in days and weeks, not years. (DE 15:24-25). Moreover, at a hearing one month later, Petitioners were non-committal on whether they would be seeking rescission of the NPA and, in fact, stated that "because of the legal consequences of invalidating the current agreement, it is likely not in [the petitioners'] interest to ask for the [rescission] relief that we initially asked for." (DE 27:4). Petitioners' counsel received a copy of the NPA on August 28, 2008. (DE 435:21). Thereafter, for approximately two years, Petitioners deliberately ceased all substantive activity in this CVRA case in favor of pursuing civil damages actions against Mr. Epstein. To that end, while Mr. Epstein was serving his prison sentence, the two Petitioners, represented by the same counsel as in the instant case, filed civil complaints for damages against Mr. Epstein in federal court and Palm Beach Circuit Court. See Doe v. Epstein, 13 EFTA00299033 Case No. 08-80893-Civ-KAM (S.D.Fla.) (DE 1); L.M. v. Epstein, Case No. 09-81092-Civ- KAM (S.D.Fla.) (DE 1); E.W. v. Epstein, Case No. 50-2008-CA-028058-XXXX-MB (Fla. 15'h Jud. Cir.); L.M. v. Epstein, Case No. 50-2008-CA-028051-XXXX-MB (Fla. 15'h Jud. Cir.). In each of those complaints, and then again in amended complaints, Petitioners alleged, among other things, that Mr. Epstein: a) had entered guilty pleas to the state crimes noted above; b) entered into the NPA with the federal government "acknowledging that [Petitioner] was a victim of his conduct;" and c) was "estopped by his plea and agreement with the Federal Government from denying the acts alleged in this Complaint, and must effectively admit liability to the Plaintiff." (DE 403-16, at ¶¶18-20; DE 403-17, at ¶¶18- 20; DE 205-6:11-12; 58-59, 89-90). Petitioners leveraged the NPA to their advantage by arguing that it precluded Mr. Epstein from contesting liability. See Doe No. 1 v. United States, 749 F.3d 999, 1002 (11'h Cir. 2014) ("As a basis for relief against Epstein in the civil suit, the victims relied on Epstein's waiver of his right to contest liability in the non- prosecution agreement."). The Petitioners ultimately settled their federal and state civil lawsuits with Mr. Epstein on or about July 22, 2010, while the CVRA case was pending against the government. See Settlement Agreement and General Release (partially redacted) (attached as Exhibit ). The settlement agreement signed by each Petitioner contained the same "General Release" language, that they: HEREBY remise, release, acquit, satisfy, and forever discharge [Mr. Epstein and other potential defendants] from all, and all manner of, action and actions of [Petitioner], including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, 14 EFTA00299034  agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that said First Parties ever had or now have, or that any personal representative, successor, heir, or assign of said First Parties hereafter can, shall, or may have, against Jeffrey Epstein ... for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release. (Emphasis added). Thus, Petitioners expressly released Mr. Epstein from any federal actions, claims or demands in equity that Petitioners may have against Mr. Epstein, by reason of any matter whatsoever, whether known or unknown, from the beginning of the world to the day of the release. Although their CVRA lawsuit had then been pending against the government for more than two years, Petitioners did not carve out from the General Release in the civil settlement agreements an exception for remedies it might seek against Mr. Epstein in the CVRA lawsuit. Rather, with respect to the CVRA, Petitioners and Mr. Epstein agreed as part of the civil settlements only that the Petitioners could use Mr. Epstein's correspondence with the government to prove a violation of the CVRA. See, e.g., Exhibit , at . This Court dismissed the federal civil lawsuits against Mr. Epstein but retained jurisdiction to enforce the terms of the settlement. See Case No. 08- 80893-Civ-KAM (DE211) (July 20, 2010); Case No. 09-81092-Civ-ICAM (DE 22) (July 22, 2010). On September 8, 2010, this Court ordered the CVRA case closed "[i]n light of the underlying settlements between the victims and Mr. Epstein." (DE 38). In an effort to persuade the Court to reconsider its dismissal of this CVRA case for lack of prosecution, Petitioners defended their inaction by arguing that "[i]t seemed reasonable to the victim to is EFTA00299035 resolve those [civil] cases first and then turn to the CVRA case..." (DE 41:6). In seeking to revive the CVRA case that they had abandoned, Petitioners emphasized that "while they had settled their case with Jeffrey Epstein, they had reached no settlement with the U.S. Attorney's Office..." (DE 41:1) (emphasis in original). Petitioners did not disclose at that time that they would seek to engineer an end-run around the General Release language in the civil settlement agreements by utilizing the CVRA lawsuit against the government to obtain additional extraordinary relief against Mr. Epstein: judicial reformation of the very NPA that Petitioners relied upon to obtain the civil settlements. Thereafter, for the next nine years, Petitioners litigated their CVRA case with the government. When issues arose that potentially implicated Mr. Epstein's rights and privileges, Mr. Epstein and his counsel intervened to assert their rights, both in the district court, and on appeal to the Eleventh Circuit. See Doe No. 1, supra. That there would be no judgment against Mr. Epstein at the end of this CVRA litigation, however, was understood throughout the litigation. As the Eleventh Circuit noted on appeal from this Court's order requiring disclosure of defense counsel's plea negotiation correspondence, "Epstein's only opportunity to challenge the disclosure order is now because there will not be an adverse judgment against him or his attorneys. The district court instead will enter any judgment against either the victims or the United States." See Doe No. 1, 749 F.3d at 1005 (emphasis added). Beyond that, when Mr. Epstein suggested he be permitted to participate in mediation in this case, Petitioners opposed that request, writing that: the case has not yet reached any remedy stage where [Epstein] might have a more direct interest. More important, the issues to be mediated at this stage 16 EFTA00299036  involve the victims' pending motion for summary judgment (DE 361), which seeks summary judgment only against the Government — not Epstein. (DE 388:2) (emphasis added). On February 21, 2019, this Court entered its Opinion and Order granting partial summary judgment against the government "to the extent that Petitioners' right to conferral under the CVRA was violated." (DE 435:33). As a result of that judgment against the government, Petitioners now seek to impose remedies against Mr. Epstein that would deprive him of the entire consideration he received in exchange for pleading guilty, serving time in prison, registering as a sex offender, and paying millions of dollars in damages. Petitioners' premise for seeking imposition of the Epstein Remedies is Petitioners' unfounded claim that this Court concluded, in its Opinion and Order, that Mr. Epstein's counsel acted in "bad faith" and "illegally conspired" with the government to violate the CVRA and that the NPA was an "illegal agreement." The Petitioners' premise, in addition to being provably wrong on this record, does not justify any of the Epstein Remedies as a matter of law. Undersigned counsel know of no precedent, ever, where a citizen who had fully performed his obligations under an immunity or non-prosecution agreement with the government, and did not breach it, was stripped of the benefit of the bargain without having an opportunity to defend himself, simply because the government allegedly violated the statutory rights of third parties prior to entering into the agreement. The Epstein Remedies should be rejected. 17 EFTA00299037  ARGUMENT I. PRINCIPLES OF PROCEDURAL DUE PROCESS PRECLUDE IMPOSITION OF THE EPSTEIN REMEDIES Petitioners' proposal to excise the "immunity provisions" from the NPA (DE 458:13-14 n.5), seeks remedies that substantially harm Mr. Epstein and free the USAO- SDFL from the constraints of the NPA by allowing the USAO-SDFL "to seek prosecution of Epstein and his coconspirators..." (DE 458:22). Petitioners contend that the Epstein Remedies are permitted because the NPA is an "illegal agreement" based on "illegal promises" and because Mr. Epstein's counsel acted in bad faith, have "unclean hands," and were the "instigators" of the CVRA violation. (DE 458:17-19). Remarkably, Petitioners argue that the government has the "power to provide all the various remedies being sought through the lawsuit..." and "agree to the remedies," (DE 458:12), as if the government has the legal authority to breach a binding contract after full performance by its counterparty. Petitioners have lost their way; their arguments are a distortion of the facts and demonstrate a flawed understanding of principles of due process. There is neither a legal basis nor a factual basis for any remedies that impair Mr. Epstein's rights. A. Mr. Epstein was not a Party to the Underlying Litigation and There is no Judgment Against him Summary judgment was granted against the government, not against Mr. Epstein. Mr. Epstein was not a defendant or respondent in the underlying lawsuit and did not participate in the summary judgment litigation, as the Petitioners had already "settled their case against Mr. Epstein," (DE 41:1), and agreed to a broad general release in his favor. Therefore, there can be no remedy that exclusively targets him. Moreover, none of the 18 EFTA00299038 Court's actual factual findings, nor, more importantly, any of the baseless inferences the Petitioners seek to draw from those findings, may be applied against Mr. Epstein. As such, the entire premise for the Epstein Remedies fails. "It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n.7 (1979). "A person who was not a party to a suit generally has not had a `full and fair opportunity to litigate' the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the `deep-rooted historic tradition that everyone should have his own day in court." Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (citation omitted). Contrary to Petitioners' argument that "all of the Court's previous holdings are now law of the case," (DE 458:13), the "law of the case doctrine does not bind nonparties." Klay v All Defendants, 389 F.3d 1191, 1198 n.5 (11th Cir. 2004). To direct harsh remedies at Mr. Epstein is "antithetical to the primary axiom of our jurisprudence that no man shall be subject to judicial sanction without the opportunity for a hearing on the merits of the claim." Herrlein v. Kanakis, 526 F.2d 252, 255 (7th Cir. 1975). Our law does not countenance the principle of "Sentence first, verdict afterwards." Lewis Carroll, Chapter 12, Alice in Wonderland. Permitting extraordinary relief to be granted against Mr. Epstein — relief that frees his adverse party, the government, from its contractual obligations under the NPA -- on the basis of a judgment that the government did not comply with its statutory obligations would violate principles of procedural due process. The fact that Mr. Epstein moved to intervene 19 EFTA00299039 at the remedy stage to oppose any prejudicial and illegal relief against him based on a potential judgment against the government is of no moment, as the Eleventh Circuit has already expressly rejected the Petitioners argument that Mr. Epstein "has made himself an ordinary litigant through his intervention." Doe No. 1, 749 F.3d at 1005; see also State of Indiana ex rel. Zoeller v. Pastick, 696 F. Supp. 970, 993 n.18 (N.D. Ind. 2010) ("The fact that the Foundations have moved to intervene [] does not now mean that the Foundations have had a right to be heard as to their potential liability in this case. The Foundations moved explicitly Tor the limited purpose of objecting to any relief sought against the Foundations' ... and plaintiffs have made no attempt to join them as parties to litigate the issue of the Foundations' liability."). Therefore, even assuming there was a factual basis in the record for Petitioners' ad museum conclusion that the NPA was an illegal agreement and that Mr. Epstein's counsel has "unclean hands" and acted in "bad faith" — which there is not, see Argument I.B., infra — those findings and conclusions cannot be applied against Mr. Epstein. Significantly, Petitioners cite no case in which a Court has rescinded or reformed a contract to the substantial detriment of a contracting party who was not even a party to the litigation. The reason is rooted in principles of procedural due process. "It is hornbook law that all parties to a contract are necessary in an action challenging its validity...." School Dist. of City of Pontiac v. Secretary of U.S. Dept of Educ., 584 F.3d 253, 303 (6th Cir. 2009). "No procedural principle is more deeply imbedded in the common law that, in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable." Lomayaktewa v. Hathaway, 520 F.2d 1324, 20 EFTA00299040 1325 (9th Cir. 1975). As this Court has recognized, "a contracting party is the paradigm of an indispensable party." HDR Engineering, Inc. v. R.C.T. Engineering, Inc., No. 08- 81040-CIV-ICAM, 2010 WL 2402908, *2 (S.D.Fla. June 15, 2010) (citation omitted). "Parties to a contract are indispensable when a suit concerns the rights and obligations afforded by the contract." Id. Petitioners' effort to strip Mr. Epstein of his contractual rights under the NPA on the basis of a judgment against the government does not pass constitutional muster. The CVRA imposed no obligations on Mr. Epstein to notify victims of his intent to enter into an NPA with the government. The CVRA contains no provisions imposing liability on a criminal defendant for "aiding and abetting" or "conspiracy." Mr. Epstein did not violate the CVRA. He did not violate the NPA. He fully performed his contractual obligations. He served his prison sentence. He registered as a sex offender. He paid full restitution as required. Principles of due process preclude the Epstein Remedies. B. There is no Judicial Finding of "Bad Faith" or an "Illegal Agreement" and no Factual Basis for any Such Finding Even assuming, over Mr. Epstein's objection, that the Constitution permits a judgment and factual findings against the government to be the basis for the imposition of extraordinary remedies against Mr. Epstein, nowhere in the Court's opinion (DE 435) was there a finding that Mr. Epstein's counsel acted in "bad faith" with the deliberate intent to violate the CVRA or that the NPA was an "illegal agreement." Thus, there is no factual basis in the record for imposition of the Epstein Remedies. 1. Mr. Epstein's Counsel Acted in Good Faith 21 EFTA00299041  The Court's finding that "Epstein's counsel was aware that the [USAO-SDFL] was deliberately keeping the NPA secret from the victims and, indeed, had sought assurances to that effect" was based on a stipulation between the Petitioners (DE 361:19) and the government (DE 407:7), in connection with summary judgment litigation? From that stipulation, which the government had no motive to contest, clarify, or amplify on Mr. Epstein's behalf, Petitioners now attribute to the Court findings that the Court did not make about the intent and motives of Mr. Epstein's counsel. It would be grossly unfair to impute "bad faith" to Mr. Epstein for his defense lawyers' advocacy without having heard from them in this litigation. The Court made no such findings and, beyond that, the record conclusively refutes any bad faith. The essence of the CVRA violation, as found by the Court, was that "the Government failed to advise the victims about its intention to enter into the NPA," i.e., before September 24, 2007. (DE435:32; DE435:7-8). The Court reasoned that "the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not to prosecute Epstein" and that the Petitioners "should have been notified of the Government's intention to take that course of action before it bound itself under the NPA." (DE 435:27) (emphasis added). Nowhere in the record is there any evidence that Mr. 2On February 10, 2016, Petitioners filed a "Consolidated Statement of Undisputed Material Facts" as part of their motion for partial summary judgment, containing 157 separately- numbered paragraphs with facts the Petitioners claimed were undisputed. (DE 361:747). Paragraph 48 of the Petitioners' submission contains the allegation regarding the "awareness" and "assurances." (DE 361:19). On June 6, 2017, the USAO-SDFL filed its response to each of the numbered paragraphs, (DE 407), either admitting or denying (with amplification) those facts. The USAO-SDFL admitted paragraph 48, (DE 407:7), so we refer to it as a stipulation. 22 EFTA00299042 Epstein's counsel, prior to September 24, 2007, urged the government not to privately notify the Petitioners of the government's intentions to enter into the NPA. The stipulation of the Petitioners and the government regarding the "aware[ness]" and "assurances" of confidentiality sought by Mr. Epstein's counsel (DE361:19 & n.62, DE 407:7) relies on exhibits (DE 361-63; DE361-66; DE 361-67) that do not support a finding that Mr. Epstein's counsel urged the government to conceal the NPA from the Petitioners prior its execution. Certainly, Mr. Epstein's counsel never conditioned his agreement to the NPA on non-disclosure to victims of the intended resolution. And, despite full disclosure to the Petitioners during this litigation of all communications between Mr. Epstein and the government, the Petitioners do not cite a single instance, prior to September 24, 2007, where Epstein's counsel either mentioned the CVRA or urged non-disclosure to victims of the intended resolution of the matter. To the contrary, the Petitioners and the government stipulated, and the Court found, as follows: "After the NPA was signed, Epstein's counsel and the [USAO-SDFL] began negotiations about whether the victims would be told about the NPA." (DE 361-19; DE 407-7; DE 435:8-9) (emphasis added). Thus, there is no record support for the Petitioners' claim "that (as this Court has previously held) the parties negotiated [the NPA] in deliberate violation of the victims' rights under the Crime Victims' Rights Act..." (DE 458:16) (emphasis added). The NPA itself, signed by Mr. Epstein and his counsel, contemplated notification to the victims and even required Mr. Epstein to pay for an "attorney representative" for the victims. (DE 361-62:5). A Special Master, former Chief Judge Davis, was notified about the NPA in October 2007. Evidence that, after the NPA was signed, Mr. Epstein's counsel 23 EFTA00299043 advocated for non-disclosure of the NPA (until his plea would be finalized in state court) was not evidence of some illegal conspiracy between Mr. Epstein and the government to deprive Petitioners of their right to consult before the Government agreed to the NPA. Moreover, after the binding NPA was signed, Mr. Epstein's counsel did no more than to expressly urge the USAO-SDFL to follow the "Attorney General Guidelines for Victim and Witness Assistance," issued in 2005, which interpreted the CVRA to apply only "if the offense is charged in Federal district court." (DE 408:20-21, DE 403-13; DE 403-15). The DOJ guidelines were a good faith and reasonable interpretation of §3771, which makes no mention of non-prosecution agreements and requires that a crime victim be harmed by an offense that "is charged in Federal district court." (DE 403-15:1-2). The U.S. Department of Justice, Office of Legal Counsel ("OLC") confirmed this view in 2010, noting that "the CVRA is best read as providing that the rights identified in section 3771(a) are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal charges after the filing of a complaint.)." U.S. Department of Justice, Office of Legal Counsel (OLC), The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004, 1 (Dec. 17, 2010). At the time, just a few years after the CVRA was enacted, there was little additional judicial guidance which would even arguably undermine the DOJ's legal position or indicate that following the OLC guidance could conceivably be construed as acting in bad faith. 24 EFTA00299044  The fact that Mr. Epstein's counsel sought to keep the NPA outside the public record was hardly unusual. The NPA is not a judicial document. See Craig S. Morford, Acting Deputy Attorney General, Selection and Use of Monitors in Deferred Prosecution Agreements and Non—Prosecution Agreements with Corporations, at 1 n. 2 (Mar. 7, 2008) (with an NPA, "formal charges are not filed and the agreement is maintained by the parties rather than being filed with a court"). According to AUSA Villafana, confidentiality of an NPA is the norm, not the exception, and there was no concession granted uniquely to Mr. Epstein. (DE 403-19:18, ¶30) ("As courts have acknowledged, NPAs are not made part of a public court file but are maintained by the prosecutor's office...the assurance that I would not distribute...the NPA was simply an assurance that I intended to abide by Office and Department policy and law."). Likewise, the USAO-SDFL's decision to not disclose the content of the NPA prior to its execution was not done as a concession or favor to Mr. Epstein. Rather, that decision was made by the USAO to protect any potential prosecution in the event the negotiations were unsuccessful. (DE 14:5) (DE 403-19, ¶21) (AUSA Villafana: "I did not want to share with victims that the Office was attempting to secure for them the ability to obtain monetary compensation for the harm they had suffered. I was aware that, if I disclosed that and the negotiations fell through, Epstein's counsel would impeach the victims and my credibility by asserting that I had told victims they could receive money for implicating Epstein."); (DE 403-18, ¶21) (FBI Special Agent E. Nesbitt Kuyrkendall: "I was concerned that if the victims were informed of the Non-Prosecution Agreement, which included an option for victims to seek monetary damages in a civil matter, then Epstein's counsel would use the 25 EFTA00299045 notifications to impeach me and the victims if a prosecution were to proceed in the future."); (DE 403-19, ¶34) (DE 408:17); (DE 427:15). There is no evidence of sinister behavior by Mr. Epstein or his counsel either before or after the NPA was signed. (DE 408:21-23). The CVRA imposes no duty on targets of federal investigations to assure that the right of conferral is implemented. It was up to the government, not Mr. Epstein, to comply with the CVRA. Mr. Epstein's counsel were well within their right to advocate a view of the law most favorable to their client, and attempt to persuade the USAO-SDFL and the DOJ of the circumstances and timing when disclosure of the NPA to the Petitioners would be appropriate. It simply cannot be bad faith for defense counsel to urge the USAO-SDFL to follow its own national guidelines regarding the applicability of the CVRA to NPAs, especially considering that there was no developed case law with respect to this issue. After all, it is not considered bad faith for an attorney to propose even novel views of the law when the law is undeveloped. Cf. Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co. of Florida, 827 F.2d 1454, 1458 (11'h Cir. 1987) ("Rule 11 is intended to deter frivolous lawsuits, not to deter legal arguments or cases of first impression."); accord Jelencovich v. Dodge Enterprises, Inc., No. 09-81045, 2010 WL 289300 (S.D.Fla. Jan. 12, 2010) ("While the Court ultimately disagreed with Plaintiff's legal theory, this alone cannot form a basis for sanctions under either Rule 11 or Section 57.105, particularly where there is a lack of developed case law with respect to the particular theory."). Defense counsel's interpretation of the CVRA was hardly novel; it was supported by legal guidance written by the DOJ before Mr. Epstein's investigation even began. That 26 EFTA00299046 counsel may have been motivated to protect the interests of their client to confidentiality is precisely what the Sixth Amendment contemplates: loyalty to one's client. ii. The NPA is not an "Illegal Agreement" The Court wrote that it was "simply ruling that, under the facts of this case, there was a violation of the victims rights under the CVRA." (DE 435:33). The Court did not rule that the NPA was an illegal agreement. To the contrary, the Court specifically wrote that it was "not ruling that the decision not to prosecute was improper." (DE 435:32-33). To be sure, Petitioners cannot identify a single clause within the NPA that is contrary to law, outside the prosecutor's authority, or against public policy. Nonetheless, Petitioners repeatedly refer to the NPA as an "illegal agreement," an "illegal non-prosecution agreement," or an agreement "vitiated by illegality," in a misguided effort to analogize the NPA to cases where illegal promises were not enforced by the courts or plea agreements were stricken for illegal provisions within the agreements themselves. (DE 458:15-17). The cases cited by Petitioners, however, are easily distinguished and do not stand for the propositions for which the Petitioners cite them. Rather, they stand for the unremarkable proposition that a court may not enforce promises or contractual terms that are illegal on their face. For example, Petitioners' discussion of the facts and holding in United States v. Walker, 98 F.3d 944 (761 Cir. 1996) — the case on which Petitioners primarily rely -- is entirely confused and off-base. In Walker, the issue was whether defendant, who was serving a sentence for a federal parole violation when he was indicted on a new federal charge, was entitled to specifically enforce a mistaken oral representation made by the 27 EFTA00299047 district court at his arraignment that entering a detention order on the defendant's new charges would allow any future sentence on the new charges to run concurrent with his parole violation sentence. Walker, 98 F.3d at 945-46. The district court ultimately imposed a consecutive sentence, instead of the concurrent one he had mistakenly suggested at the arraignment, because the law required consecutive sentences. On appeal, the Seventh Circuit held that the defendant's remedy was not to specifically enforce the promise made by the district court that was contrary to law but to seek to withdraw his plea on the basis that the district court's mistaken representation about concurrent sentences induced him to plead guilty. Id. at 947. The defendant simply chose the wrong remedy because one cannot seek to specifically enforce a sentence that is contrary to law. Even a cursory reading of Walker reveals that it is totally inapposite. Contrary to Petitioners' contention, the defendant in Walker had not "forfeited the right to seek specific performance" of an illegal agreement, (DE 458:15-16), but rather had forfeited his right to withdraw his plea by failing to seek that remedy when the district court did not fulfill the representation he made at the arraignment. Walker, 98 F.3d at 947. Walker has nothing to do with forfeiting rights to specific performance of an NPA. (DE 458:16). The other state cases cited by Petitioners involved plea agreements containing (or challenged as containing) unlawful terms or promises that, to be performed, would have required the respective courts to impose sentences that were contrary to law. They stand for the unassailable proposition, not present here, that a court cannot enforce facially invalid plea agreements that contain illegal terms or omit the required components of a sentence. Craig v. People, 986 P.2d 951, 959-60 (Colo. 1999) (court cannot enforce a plea 28 EFTA00299048 agreement that waives the mandatory parole period); State v. Garcia, 582 N.W. 2d 879, 881-82 (Minn. 1998) (plea agreement promised a sentence that did not contain the statutorily-required 10-year conditional release term); State v. Wall, 348 N.C. 671 (1998) (holding that court cannot enforce a plea agreement for concurrent sentence where law mandated consecutive one); Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006) (court cannot enforce an illegal sentence below the statutory range; remedy was for defendant to withdraw his plea); State v. Mazzone, 212 W.Va. 368 (2002) (court would not enforce plea agreement that called for court to unlawfully sentence the defendant by treating two misdemeanor offenses as felony offenses). None of them stand for the proposition, urged by Petitioners here, that