EFTA00808738.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. / PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE IN OPPOSITION TO DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS' MOTION IN LIMINE ADDRESSING THE ADMISSIBILITY OF EDWARDS' EXHIBIT 132 Plaintiff/Counter-Defendant, Jeffrey Epstein ("Epstein"), opposes the Motion in Limine filed by Defendant/Counter-Plaintiff, Bradley J. Edwards ("Edwards"), regarding the admissibility of Edwards' Trial Exhibit #132 (D.E. 1151), and states: BACKGROUND In support of his malicious prosecution Counterclaim, Edwards plans to introduce into evidence Edwards' Exhibit #132, a New York Post article entitled: "Billionaire Jeffrey Epstein: I'm a sex offender, not a predator," February 25, 2011. A copy of the New York Post article is attached as Exhibit A. In the article, Epstein is allegedly quoted as saying: I'm not a sexual predator, I'm an offender. It's the difference between a murderer and a person who steals a bagel. EFTA00808738  The crime that was supposedly committed in Florida is not a crime in New York. At the December 5, 2017 hearing, Epstein's counsel voiced multiple objections to the admissibility of Exhibit #132: We raised relevance. We raised probative value substantially outweighed by the danger or unfair prejudice, confusion, misleading the July, as well as hearsay and authenticity. This is a very good example of an inflammatory exhibit by Mr. Edwards, and it seeks to try to prove, I guess, that [Epstein] is a bad person or bad character evidence under 90.404. This is hearsay and it should not be admitted. It would be inflammatory and very prejudicial to [Epstein]. (12/5/17 Tr. 235:10-22).1 The Court deferred ruling on the admissibility of the exhibit. (12/5/17 Tr. 234:21-24, 235:5-9). INTRODUCTION This case is not about Epstein's plea deal nearly a decade ago in an entirely separate criminal matter. This is not a case about whether Epstein actually made the statements attributed to him. Nor is this a case about Epstein's status as a registered sex offender or the offense giving rise to such status, particularly as the sole victim identified in connection with that offense (AD) was not and has never been a client of Edwards. Rather, this is a case about the economic windfall that Edwards seeks for his alleged "daily anxiety" and "emotional distress" that he began to suffer upon Epstein's filing of a Complaint against him in December 2009 -- more than eight years ago -- and has continued to suffer unabatedly through today due to his "destroyed reputation." Excerpts of the December 5, 2017, hearing transcript are attached as Exhibit B. 2 EFTA00808739  Interestingly, in January 2015, Edwards sued Alan Dershowitz (one of Epstein's attorneys) for defamation.2 In that Complaint, Edwards alleged: Despite having previously been the victim of character assassination by the Defendant ALAN M. DERSHOWITZ'S associate and client, Jeffrey Epstein, BRADLEY J. EDWARDS enjoys a highly favorable national reputation particularly related to his work in defending the rights of child victims of sexual abuse. (Dershowitz, Complaint, 8, emphasis added.) (Exhibit C.) Edwards alleged that Dershowitz made a media assault upon him (and Paul G. Cassel) to attack his reputation and character: DERSHOWITZ initiated a massive public media assault on the reputation and character of BRADLEY J. EDWARDS and PAUL G. CASSEL accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against the Defendant DERSHOWITZ, without ever conducting any investigation of the creditability of the accusations, and of having acted unethically to the extent that their willful misconduct warranted and required disbarment. (Dershowitz, Complaint, ¶ 17.) (Exhibit C.) In April 2016, Edwards, Cassel and Dershowitz resolved their respective claims and Edwards and Cassel informed the Court that the filing of their action against Dershowitz was a "tactical mistake." (Dershowitz, Notice of Withdrawal of Motion for Partial Summary Judgment.) (Exhibit D.) In order to maximize his recovery on his claims against Dershowitz, Edwards had to allege that his reputation had recovered and that Dershowitz' defaming public statements caused harm to 2 Bradley J. Edwards and Paul C. Cassell v. Alan Dershowitz, 17th Judicial Circuit, Broward County Case No. CACE-15-000072. 3 EFTA00808740 his reputation. Now that Edwards has admitted that suing Dershowitz was a tactical mistake, he claims that Epstein is once again the cause of harm to his reputation. Epstein has tried to appropriately focus this case on the publicly available information about Rothstein, the Ponzi scheme, the use of Edwards' clients' cases against Epstein in the Ponzi scheme and the excessive and unorthodox litigation practices engaged in by Edwards while holding himself out as a partner of Rothstein, Rosenfeldt & Adler. Unfortunately, Edwards has been relentless with his attempts to inject irrelevant, highly prejudicial and inflammatory evidence into the trial which has no bearing on the malicious prosecution issues, and can only result in unfair prejudice to Epstein, confusion of the jury, and unfortunately, a second trial of this case. ARGUMENT Edwards argues that Exhibit #132 is relevant, not unfairly prejudicial, and not barred by the hearsay rule. His main contention is that the article is relevant to the punitive damages claim in that it tends to prove Epstein's lack of remorse. Specifically, Edwards says that he believes the comments demonstrate a lack of remorse for the underlying crimes and then, in order to attempt to make it relevant, says it demonstrates a lack of remorse in attempting to cover up the crimes, which Edwards claims is why Epstein filed suit. The underlying crime to which Epstein is alleged to have made these statements to the press is the procurement crime. That is the only crime that gives rise to the sex offender registration. The procurement crime, according to the information, relates exclusively to AD, who was not a client of Edwards. The notion that Epstein filed this original civil proceeding to cover up the offense makes no sense and has no nexus to Edwards. Furthermore, if there was a lack of remorse for the procurement plea relating to AD, that would only, if it is in fact an accurate quote, relate to a punitive damage claim by AD. It has absolutely no bearing on whether Epstein has any 4 EFTA00808741 remorse or motivation for suing Edwards. Edwards' arguments are all meritless and unfounded, and his Motion in Limine should be denied. Epstein requests that this Court sustain the objections raised by Epstein in his Objections to Edwards' Trial Exhibits (D.E. 1058; 1120) and at the December 5, 2017, hearing, and consider the additional arguments made herein. Epstein's Purported Statements Do Not Reflect Lack of Remorse. Rather. They Constitute Statements of Fact Reflecting Differences Between Florida and New York Law First and foremost, Edwards' "lack of remorse" argument is unavailing. Again, in the article, Epstein is allegedly quoted as saying: I'm not a sexual predator, I'm an offender. It's the difference between a murderer and a person who steals a bagel. The crime that was supposedly committed in Florida is not a crime in New York. Even if Epstein made these statements — which Epstein in no way concedes — the statements reflect not a lack of remorse, but factual differences that were reported in the most sensational manner possible at the time, between New York and Florida law regarding solicitation of a minor for prostitution. In Florida, the crime was a felony, while only a misdemeanor offense in New York. In Florida, when the subject article was written, procuring for prostitution, or causing to be prostituted, a person under age 18, was a second-degree felony. § 796.03, Fla. Stat. (2011). In New York, solicitation of a prostitute age 16 or older constituted "patronizing a person for prostitution in the third degree," a class A misdemeanor. See M. Penal Law §§ 230.02, 230.04. For point of reference, other class A misdemeanors in New York include: petty larceny (§ 155.25), criminal trespass in the second degree (§ 140.15), and possession of burglar's tools (§ 140.35). 5 EFTA00808742 Thus, despite the way it sounds, solicitation of a minor prostitute in New York was the same level of offense as petty larceny, such as stealing a bagel, and punishable to the same degree. Furthermore, in Florida there are two types of registration — a "sexual predator" (§ 775.21, Fla. Stat.) or a "sexual offender" (§§ 943.0435, 944.607 or 985.481, Fla. Stat.). Sexual predators in Florida are those who have been convicted of a first-degree felony sex crime or multiple second- degree felony sex crimes. This simply does not apply to Epstein. Rather, Epstein is a registered "sexual offender" as the article provides. In short, when taken in context, Epstein's purported statements do not reflect a lack of remorse. Rather, even on their face, constitute statements of fact reflecting differences between Florida and New York law. Still, there are additional arguments which are equally persuasive. They are set forth below. Exhibit #132 Constitutes Inadmissible Hearsay and Lacks Relevance Exhibit #I32 contains inadmissible hearsay to which no exception applies. Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (2017). Edwards argues the exhibit is not hearsay because he will not introduce it to prove that unlawful sexual conduct with children is the equivalent of stealing a bagel. The "bagel" remark, however, would have no context without the preceding statement. Again, the article quotes Epstein as saying: I'm not a sexual predator, I'm an offender. It's the difference between a murderer and a person who steals a bagel. The crime that was supposedly committed in Florida is not a crime in New York. 6 EFTA00808743 As discussed below, in addition to being classic hearsay, any reference to Epstein's criminal sexual conduct is irrelevant, unfairly prejudicial, and improper impeachment evidence. Knowing the hearsay hurdle, Edwards claims he is not offering the article to prove the truth of the matter asserted. This begs what material fact this article tends to prove or disprove. See § 90.401, Fla. Stat. Edwards claims the article proves Epstein had a lack of remorse for the underlying crimes. At most, it shows a lack of remorse for Epstein's plea to procurement of AD, but has no relevance to whether Epstein had probable cause to file his Complaint against Edwards. Therefore, the above statements purportedly made by Epstein to the New York Post cannot come in. Alternatively, Edwards argues the statements are admissions of a party opponent and thus admissible as an exception to the hearsay rule. (Mot. at ¶ 14). This argument also fails for the above reason that the article would not be an admission to a lack of probable cause (element in this case), but relates solely to the crimes which are foreclosed and not being litigated in this action. Additionally, admission of the article would violate the best evidence rule. See Dollar v. State, 685 So. 2d 901, 902 (Fla. 5th DCA 1996) (newspaper article containing defendant's statements to reporter excluded as hearsay without trial testimony of reporter, because "[t]he defendant was denied any opportunity for cross examination"). Just like in Dollar: The problem in this case is that the reporter [will] not testify at trial as to what [Epstein allegedly] said to [her]. Clearly, this would [be] the best evidence of what [Epstein] had said and such live testimony would . . . afford[] [Epstein] an opportunity to cross-examine the reporter as to the reporter's accuracy and recollection as well as other relevant matters. Instead, [Edwards] simply [seeks to] introduce[] an out of court writing generated by the reporter recounting what [Epstein] had told [her]. Id. at 902-03 [emphasis added]. This denial of any opportunity for Epstein to cross examine the New York Post reporter mandates a ruling that the article is inadmissible. See id. at 903 7 EFTA00808744  Furthermore, any argument that the contents of the article are admissible because a newspaper is self-authenticating "misses the mark." Dollar, 685 So. 2d at 903. "Authentication relates to the genuineness vel non of a document. No one here seriously disputes the fact that the article in question was published in a [known] newspaper . . . Authentication, however, does not mean that the article is insulated from other rules of evidence governing admissibility." Id. (internal citations omitted). In short, the newspaper article is inadmissible hearsay to which no exception applies. Thus, it cannot come in. Exhibit #132 is Irrelevant Edwards argues the newspaper article is relevant to the punitive damages claim because it "tends to prove that Epstein lacked remorse for the underlying crimes " and that, "even after pleading guilty to criminal charges Epstein continues to publicly deny his guilt." (Mot. at ¶ 6) (emphasis added). But criminal conduct is not at issue in this civil case! Rather, the purported wrongful conduct alleged by Edwards in his Counterclaim is malicious prosecution. If this Court concludes that the newspaper article shows a lack of remorse, then to what is the lack of remorse directed? Edwards? NO! Epstein is not quoted as saying, "If I had only brought my lawsuit against Rothstein and Edwards in New York — I could not have been sued for malicious prosecution." Even as spun by the New York Post, the quoted language indicates nothing about Epstein's attitude towards Edwards, let alone a lack of remorse for suing him. "To be relevant, evidence must tend to prove or disprove a material fact." Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639, 646 (Fla. 4th DCA 2008). Epstein's guilty plea from nearly a decade ago, or his purported denial of guilt after entering a plea, has no bearing on any of the issues for trial as framed by the pleadings in this lawsuit. The pleadings in this lawsuit include: 8 EFTA00808745 (1) Epstein's Complaint for damages against Defendant Scott Rothstein and (2) Edwards' Counterclaim for malicious prosecution against Epstein. Furthermore, the cases cited by Edwards are completely inapposite and do not support his position. First, Edwards cites to the dissenting opinion in a tobacco case, R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 768 (Fla. 4th DCA 2016) (Taylor, J., dissenting). Not only does Edwards cite to the dissenting opinion in Calloway, but the proposition he cites to comes from a Texas case. See id. (citing Ellis Cty. State Bank v. Keever, 936 S.W. 2d 683, 688-89 (Tex. App. 1996) for the proposition that, "whether the defendant showed remorse is a factor in determining an appropriate punitive damages award"). Notably, the majority opinion in Calloway favors Epstein's position. See id. at 760 (emphasis added) ("Despite plaintiff's assertion to the contrary, an argument that the iury should punish a defendant for defending itself at trial or failing to admit responsibility is well outside the bounds of proper advocacy."). Next, Edwards cites an inapposite asbestos case, Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242 (Fla. 1st DCA 1984). Johns-Manville Sales Corp. lists several factors (taken from another dissenting opinion;) and then remarks that the "factors appear to be reasonable considerations in aggravation or mitigation of punitive damages and, in most respects, are consistent with existing Florida decisions on punitive damages." Id. at 248 (emphasis added). These factors, which concern manufacturers and marketing misconduct, are clearly inapplicable to the case at bar and should not be considered by this Court: (1) The amount of the plaintiff's litigation expenses; (2) the seriousness of the hazard to the public, (3) the profitability of the marketing misconduct (increased by an appropriate multiple); (4) the attitude and conduct of the enterprise upon discovery of the misconduct; (5) the degree of the manufacturer's awareness of the hazard and of its excessiveness; (6) the number and level of 3 Wackenhut Corp. v. Canty, 359 So. 2d 430, 445 n.14 (Fla. 1978) (Smith, J. dissenting). 9 EFTA00808746  employees involved in causing or covering up the marketing misconduct; (7) the duration of both the improper marketing behavior and its cover-up; (8) the financial condition of the enterprise and the probable effect thereon of a particular judgment; and (9) the total punishment the enterprise will probably receive from other sources. Id. Edwards' attempt to apply these factors to the instant case is nonsensical. Exhibit #132 is Unfairly Prejudicial Even if the New York Post article were relevant to proving a material fact at trial, any such relevance is tenuous at best, and even "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury." § 90.403, Fla. Stat. (2017). Whatever probative value the article could possibly have is substantially outweighed by the danger of unfair prejudice to Epstein, as well as the likelihood that it would confuse the true issues in this lawsuit and mislead the jury as to the subject of the claims being tried. Again, this is not a civil case regarding damages to AD, who was never even a client of Edwards. It is a malicious prosecution action brought only by Edwards. Whatever tenuous connection Epstein's attitude about an offense against AD in 2005 for which he was convicted and served a sentence has to the lawsuit Epstein filed against Edwards in 2009 for Edwards' litigation tactics in 2009 is substantially outweighed by the undue prejudice and confusion this would create in this action. See State v. Page, 449 So. 2d 813, 816 (Fla. 1984) ("[S]ection 90.403 of the evidence code enables the trial court to exclude evidence of prior convictions, even though relevant, if the probative value is substantially outweighed by the danger of unfair prejudice."). See also Kelley v. Mutnich, 481 So. 2d 999, 1001 (Fla. 4th DCA 1986) (generally, "evidence of prior convictions, acquittals or arrest is irrelevant in a civil action and thus inadmissible," except where "[the defendant] himself had already inserted this subject into the proceedings by testifying that he had been found not guilty of the criminal [ ] charges against him and that the case had been dismissed"). 10 EFTA00808747  Finally, Edwards contends that Epstein's alleged and unconfirmed comparison of procurement of a minor to "stealing a bagel," and Epstein's alleged questioning of the illegality of such conduct "evinc[e] a total lack of remorse on the part of Epstein." (Mot. at ¶ 12). Again, remorse or alleged lack thereof for any criminal conduct purportedly committed by Epstein against AD, a non-Edwards' client, is wholly irrelevant to the claims being tried. Exhibit #132 ic Improper Character Evidence Additionally, the newspaper article is inadmissible under sections 90.404 and 90.405, Florida Statutes, because its only purpose is to disparage Epstein's character. Florida law is clear that le]vidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion" except under certain limited circumstances not present here. § 90.404(1), Fla. Stat. (2017); see also § 90.405(2), Fla. Stat. (2017) ("When character or a trait of character of a person is an essential element of a charge. claim, or defense, proof may be made of specific instances of that person's conduct.") (emphasis added). Here, Epstein's purported statements to the New York Post are irrelevant to the issues at trial and would serve only to portray him in a negative light. Exhibit #132 Contains Improper Impeachment Evidence References to Epstein being a "sexual offender," and to his commission of a sexual "crime" are also inadmissible under sections 90.609 and 90.610, Florida Statutes. Such references are inadmissible as they are irrelevant to Epstein's truthfulness and go far beyond the bare fact he entered a plea agreement.4 See § 90.609, Fla. Stat. (2017) (character evidence used to impeach a witness "may refer only to character relating to truthfulness"). 4 Even the fact that Epstein entered a plea agreement is irrelevant, as there are often reasons other than guilt which prompt an accused person to enter a guilty plea. 11 EFTA00808748  While section 90.610 permits a party to impeach a witness by evidence if the witness was convicted of a felony or a crime involving dishonesty, Epstein's designation as a sexual offender falls outside this narrow category of impeachment evidence by addressing the nature of his crime (a sexual offense). Impeachment under section 90.610 is strictly limited to the fact the witness was convicted of a felony or crime involving dishonesty, and the number of convictions. Further details, including the nature of the crime, are off limits. See Rogers v. State, 964 So. 2d 221, 222- 23 (Fla. 4th DCA 2007) ("[I]mpeachment by prior convictions is restricted to determining if the witness has previously been convicted of a crime, and if so, how many times.") (citation and internal quotation marks omitted); Botte v. Pomeroy, 497 So. 2d 1275, 1280 (Fla. 4th DCA 1986) ("[Q]uestioning is limited to whether the witness has ever been convicted of a felony or a crime involving dishonesty. . . . The witness may be required to give the number of convictions, but if he answers truthfully, no further questions may be asked. In particular the nature of the crimes may not be elicited.") (emphasis added; internal citations omitted); Reeser v. Boats Unlimited, Inc., 432 So. 2d 1346, 1349 (Fla. 4th DCA 1983) ("Neither statute [including * 90.610] permits the elicitation of the nature of the crime because any additional light on his credibility would not compensate for the possible prejudicial effect on the minds of the jurors.") (emphasis added). CONCLUSION For the plethora of reasons set forth in this response, Epstein respectfully requests that Edwards' Motion in Limine Addressing the Admissibility of Edwards' Trial Exhibit # 132 be denied. 12 EFTA00808749  CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on February 2018, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1). LINK & ROCKENBACH, PA 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 (561) 727-3600; (561) 727-3601 [fax] By: /s/ Scott J. Link I !Cara Berard Rockenbach (FBN Angela M. Many (FBN Primary: Primary: Primary: Secondary: Secondary: Secondary: Secondary: Trial Counselfor Plaintiff/Counter-Defendant Jay Epstein SERVICE LIST Jack Scarola Nichole J. Segal Searcy, Denny, Scarola, Barnhart & Shipley, M. Burlington & Rockenbach, 2139 Palm Beach Lakes Boulevard Courthouse Commons, Suite 350 West Palm Beach. FL 33409 444 West Railroad Avenue West Palm Reach. FL 33401 Co-Counselfor Defendant/Counter-Plaintiff Co-Counselfor Defendant1Counter-Plaintiff Bradley J. Edwards Bradley J. Edwards 13 EFTA00808750 Bradley J. Edwards Marc S. Nurik Edwards Pottinger LLC Law Offices of Marc S. Nurik 425 N. Andrews Avenue, Suite 2 One E. Broward Boulevard, Suite 700 Ft. Lauderdale, FL 33301-3268 Ft. Lauderdale, FL 33301 Counselfor Defendant Scott Rothstein Co-Counselfor Defendant/Counter-Plaintiff Bradley J. Edwards Jack A. Goldberger Atterbury, Goldberger & Weiss, M. 250 Australian Avenue S., Suite 1400 West Palm Beach, FL 33401 Co-Counselfor Plaintiffitoimter-Defendant Je E stein 14 EFTA00808751