EFTA00750938.pdf
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1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY, FLORIDA
2
3
4
5
Plaintiff,
6
vs. Case No. 502008CA028058
7 XXXXMB AD
JEFFREY EPSTEIN,
a
Defendant.
9
10
11
PROCEEDINGS BEFORE THE
12
HONORABLE JUDGE DONALD W. HAFELE
13
14 July 31, 2009
8:30 a.m. - 9:05 a.m.
15
16
205 N. Dixie Highway
17 West Palm Beach, FL 33401
18
19
20
21
22
23
24 , court reporter
25
EFTA00750938
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1 APPEARANCES OF COUNSEL
2
3 On behalf of the Plaintiff:
4 ROTHSTEIN, ROSENFELDT & ADLER
BY: WILLIAM J. BERGER, ESQ.,
5 Mizner Park Office Tower
Suite 675
6 225 NE Mizner Boulevard
Boca Raton FL 33432
7
8
ROTHSTEIN, ROSENFELDT & ADLER
9 BY: BRADLEY J. EDWARDS, ESQ.,
401 East Las Olas Boulevard
10 Suite 1650
Fort Lauderdale, FL 33394
11
12
13 On behalf of the Defendant:
14 BURMAN, CRITTON, LUTTIER & COLEMAN
BY: ROBERT D. CRITTON, JR., ESQ.,
15 515 North Flagler Drive
Suite 400
16 West Palm Beach, FL 33401
17
18
19
20
21
22
23
24
25
EFTA00750939
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1 Proceedings in the Matter of vs. JEFFREY EPSTEIN.
2 July 31, 2009 8:30
3 THE COURT: Good morning, gentlemen.
4 We're here this morning on the Plaintiff's
5 motions to add punitive damages. Who will be
6 arguing on behalf of the Plaintiff?
7 MR. EDWARDS: Brad Edwards, Your Honor.
8 THE COURT: Alright, Mr. Edwards.
9 MR. EDWARDS: Do I need to go to the
10 podium or is right here fine?
11 THE COURT: Whichever you prefer.
12 MR. EDWARDS: Your Honor, with our motion
13 we filed - and, I believe, Your Honor has it -
14 the discovery that was submitted to Mr. Epstein,
15 which consists of Requests for Admissions,
16 Requests for Production, Interrogatories, as
17 well as Interrogatory responses under oath by my
18 client.
19 THE COURT: Do you have any cases that
20 speak to the presumption relative to the
21 Defendant exercising his Fifth and Sixth
22 Amendment rights during the deposition testimony
23 and/or during any other discovery?
24 MR. EDWARDS: Sure, Your Honor.
25 THE COURT: I know that Mr. Critton in his
EFTA00750940
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1 reply memorandum indicated some conflict in
2 terms of the nature of the discussions of the
3 appellate courts relative to that issue.
4 MR. EDWARDS: May I approach?
5 THE COURT: Thank you.
6 MR. EDWARDS: I'm going to present the
7 case of Fraser vs. Security and Investment out
8 of the Fourth DCA.
9 The pertinent part, it says: "Our
10 conclusion is consistent with the prevailing
11 rule that the Fifth Amendment does not forbid
12 adverse inferences against parties to civil
13 actions when they refuse to testify in response
14 to probative evidence offered against them: the
15 amendment 'does not preclude the inference where
16 the privilege is claimed by a party to a civil
17 cause.'"
18 It skips down and says: "Such a rule is
19 both logical and utilitarian. A party may not
20 trample upon the rights of others and then
21 escape the consequences by invoking a
22 constitutional privilege - at least not in a
23 civil setting."
24 The final paragraph on that page says:
25 "Nor are we persuaded that the fact of
EFTA00750941
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1 invocation of the privilege is irrelevant and
2 immaterial." "In the case" -- Sorry, "Mr.
3 Justice Brandeis... observed that 'Silence is
4 often evidence of the most persuasive
5 character.'"
6 Clearly, this case, out of our district
7 court, is an indication that adverse inferences
8 may be drawn.
9 Right now we are at a punitive damages
10 stage. We are not at a stage where we are
11 talking about the admissibility of evidence. We
12 are --
13 THE COURT: Speaking only of a proffer to
14 establish punitive damages as required under
15 768.721, correct?
16 MR. EDWARDS: Exactly, and I was going to,
17 for the record, read that part of 768.721: "In
18 a civil action, there is a" --
19 THE COURT: I think we can skip that.
20 MR. EDWARDS: Okay.
21 THE COURT: The statute speaks for itself
22 and it's a part of the record today, so why
23 don't you go ahead and proceed?
24 MR. EDWARDS: The reasonable showing, by
25 way of proffer, that there is an intentional
EFTA00750942
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1 misconduct or gross negligence on behalf of the
2 Defendant.
3 Intentional misconduct is defined as "the
4 Defendant had actual knowledge of the wrong
5 permissible conduct and the high probability
6 that injury or damage to the claimant would
7 result and, despite that knowledge,
8 intentionally pursued that course of conduct
9 resulting in injury or damage."
10 In this case, we have intentional
11 misconduct of the worse kind. This is a case
12 that has been presented to the public through
13 public relations •eo•le for the Defendant at
14 times as
15
16 and that's not
17 the case at all.
18 What the evidence is really going to show
19 is that Mr. Epstein - at least dating back as
20 far as our investigation and resources have
21 permitted, back to 1997 or '98 - has every
22 single day of his life, made an attempt to
23 sexually abuse children.
24 We're not talking about five, we're not
25 talking about 20, we're not talking about 100,
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1 we're not talking about 400, which, I believe,
2 is the number known to law enforcement, we are
3 talking about thousands of children, and it is
4 through a very intricate and complicated system
5 that he devised where he has as many as 20
6 people working underneath him that he is paying
7 well to schedule these appointments, to locate
8 these girls.
9 He particularly goes after a very
10 vulnerable and impressionable age group that --
11 THE COURT: To use the quotation, "the
12 evidence will show the Defendant sought out
13 underprivileged and economically disadvantaged
14 minor females," and later go on to say,
15 "influenced them away from the typical
16 adolescent lifestyle as a result of his
17 allegedly criminal acts."
18 MR. EDWARDS: And that is exactly what
19 he's done. The age group begins as young as
20 12 years old and as old as 16 years old. There
21 will be evidence that at 16 years old, many of
22 the girls are told, "You're getting too old for
23 me."
24 He very clearly targets this specific age
25 group and has a method to this; that is, "Get
EFTA00750944
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1 the girls inside the house and I will do the
2 rest," and he creates this God-like aura for
3 these girls and --
4 THE COURT: Let's talk about - pardon me
5 for interrupting you - let's talk about the
6 precise claim hat are being made here. You're
7 dealing with and l'i. - they're pseudonyms
8 for purposes o t is litigation. Why don't we
9 speak to those two individuals at this juncture
10 and how the punitive damage proffer is
11 sufficient or insufficient relative to them
12 individually, please?
13 I understand the global allegations and I
14 understand the allegedly wide scale situation
15 that you're suggesting as you've alleged here,
16 but I want to go now to the precise claims made
17 by these two Plaintiffs who are in front of the
18 Court today, and whether or not that proffer is
19 sufficient to satisfy the case law, including
20 the case that Mr. Critton cited, and that is:
21 The Estate of Despain, D-E-S-P-A-I-N, vs. Avante
22 Group, Inc., which is found at 900 So.2d. 637,
23 and that was a Fifth District Court of Appeal
24 case, decided in 2005.
25 MR. EDWARDS: Yes, Your Honor, and that is
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1 the case that states: "a 'proffer' according to
2 traditional notions of the term, connotes merely
3 an 'offer' of evidence and neither the term
4 standing alone nor the statute itself calls for
5 an adjudication of the underlying veracity...is
6 merely a representation of what evidence the
7 defendant proposes to present."
8 We can turn to the sworn Interrogatory
9 answers, No. 8, wherein III. and, similarly,
10 , in slightly different words, states: "I
11 was touched, battered, and fondled by Defendant
12 Jeffrey Epstein during the incidents described
13 in the complaint. I observed the Defendant
14 touch and fondle himself. I observed the
15 Defendant ejaculate numerous times. I was made
16 to touch the Defendant. I also observed sexual
17 acts and had sexual acts perpetrated on me by
18 Defendant Jeffrey Epstein. At various times I
19 was unclothed, as was the Defendant and others.
20 At all times material, I was a child under the
21 age of 18 years old. The Defendant also used me
22 to bring him other minor girls and he controlled
23 and brainwashed me" --
24 THE COURT: Just a second.
25 (Telephone interruption.)
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1 MR. EDWARDS: -- "and brainwashed me into
2 believing this lifestyle was healthy and normal
3 for a girl my age. I was a victim of various
4 criminal acts and sexual exploitation. I was
5 induced and coerced by Defendant into acts of
6 prostitution."
7 While we're on the coercion and
8 prostitution, there is a specific --
9 THE COURT: Before you move on, that's
10 III-'s --
11 MR. EDWARDS: Yes, Your Honor
12 THE COURT: -- Answer to Int ries?
13 Why don't you read into the record Answer
14 to Interrogatories so the record is clear?
15 MR. EDWARDS: I apologize, Your Honor.
16 THE COURT: Take your time.
17 MR EDWARDS: Answer to Interrogatory No.
18 8 for M indicates: "My injuries are
19 emotional and psychological and are the direct
20 result of Defendant Jeffrey Epstein's actions.
21 I was touched, battered, and fondled by the
22 Defendant during the incidents described in the
23 complaints. I observed the Defendant touch and
24 fondle himself. I observed the Defendant
25 ejaculate numerous times. I was made to touch
EFTA00750947
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1 the Defendant. I also observed sexual acts and
2 had sexual acts perpetrated on me and was forced
3 to perform on me, including oral sex and other
4 activities. At various times I was unclothed,
5 as was Defendant and others. At all times
6 material, I was a child under the age of
7 18 years. I was a victim of various criminal
8 acts and sexual exploitation. I was induced and
9 coerced by the Defendant into acts of
10 prostitution."
11 THE COURT: Thank you. You were going to
12 speak to a legal point --
13 MR. EDWARDS: Right.
14 THE COURT: -- before I asked you to read
15 into the record those Interrogatory answers. Go
16 ahead.
17 MR. EDWARDS: Where we left off was the
18 coercion into prostitution. What makes these
19 crimes so egregious is the fact that these girls
20 that we're talking about were all beginning
21 their grooming process with Mr. Epstein when
22 they're 14 and 15 and 16 years old.
23 There is a specific statute, which we have
24 filed, and a cause of action under our
25 complaint, that is under 796.09, Coercion, civil
EFTA00750948
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1 cause of action.
2 Reading 796.09, Paragraph 1: "A person
3 has a cause of action for compensatory and
4 punitive damages" - this is in the statute -
5 "against a person who coerced them into
6 prostitution," and it goes on to define what
7 coercion means, and it is exactly what happened
8 in this case.
9 This statute allows for punitive damages
10 on a statutory level irrespective of the age of
11 the person that is coerced into prostitution.
12 THE COURT: And the coercion that you're
13 talking about are the alleged acts as between
14 these two Plaintiffs and Mr. Epstein as opposed
15 to, I think, there's something in one of the
16 Interrogatories that suggests that there may
17 have been prostitution that followed, at least
18 one of the Plaintiff's, involvement with Mr.
19 Epstein, but you're speaking solely about the
20 prostitution issues as it concerns the
21 Plaintiffs here and Epstein; is that accurate?
22 MR. EDWARDS: I believe, if I understand
23 what you are saying, I mean, in terms of
24 damages, if one of the Plaintiffs - and I can
25 represent - if one of the Plaintiffs was led
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1 into a life of prostitution after being
2 indoctrinated into this deviant lifestyle at an
3 early age by Mr. Epstein - she was not a
4 prostitute prior to that - and I relate that
5 similar to kids of that age being brought over
6 to somebody's house that is as powerful and
7 wealthy as him and he has, let's say, cocaine on
8 the table, and they do that for three years.
9 They think it's fun at the time, but after that
10 they have this addiction that continues on.
11 This is something similar to what happened to
12 one of the clients.
13 But, yes, the coercion into prostitution
14 is something that on a statutory level already
15 allows for punitive damages, and that's
16 irrespective of the age.
17 THE COURT: Again, I'm trying to
18 understand the factual basis. There's
19 allegations that Mr. Epstein paid these young
20 ladies $200 to massage him and then subsequent
21 thereto, there was some type of alleged sexual
22 activity. Are you speaking to that specifically
23 when you're talking about the statutory remedy
24 or are you speaking about something distinct
25 from that?
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1 MR. EDWARDS: No, that's specifically what
2 I am talking about --
3 THE COURT: Okay.
4 MR. EDWARDS: -- Mr. Epstein paying them
5 and using their age, their economic - their lack
6 of wealth - the fact that these are poor,
7 disadvantaged children with very little parental
8 guidance to his advantage to induce them into
9 acts of prostitution.
10 THE COURT: I'll give you two minutes to
11 wrap up, please.
12 MR. EDWARDS: Okay.
13 Your liiii, while I know that we are
14 focusing on and III., there are certain
15 defenses that have been made such as, "The girls
16 were" - "we didn't know that they were over 18,
17 otherwise we wouldn't have done this," where we
18 are going to be able to show there are hundreds
19 and hundreds and hundreds of girls and none of
20 them were over the age of 18.
21 Many of these girls, including my clients,
22 told him that they were under the age of 18 and
23 he continued to do this misconduct, which is
24 exactly what the statute or what the punitive
25 damages statute speaks to when it talks about
EFTA00750951
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1 intentional misconduct and/or gross negligence.
2 I think the record is very clear at this
3 point, especially after this proffer, that if
4 any case is deservant of punitive damages being
5 added, it's this one.
6 THE COURT: Alright. Thank you. I'll
7 give you a couple minutes to wrap up after Mr.
8 Critton finishes his argument.
9 MR. EDWARDS: Thank you, Your Honor.
10 THE COURT: Thank you.
11 MR. CRITTON: May it please the Court. As
12 the Court knows, I represent Mr. Epstein in this
13 matter.
14 Your Honor, a couple of things to start -
15 the case that Mr. Edwards cites deals with
16 inferences, deals with inferences at trial time
17 as distinct from inferences that, I believe, are
18 sufficient to carry the day, so-to-speak, in the
19 absence of other evidence with Mr. Epstein's
20 claim of Fifth Amendment privilege. As well, we
21 cited to the court cases - and I'll get to in
22 just a minute - that specifically address that
23 issue.
24 Secondly, we're not here on - and I think
25 the Court, I think, I kind of at least got the
EFTA00750952
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1 drift is we're not here on other claims - we're
2 here on and §§§.'s claim today to add
3 punitive damages and, in fact, "Do they meet the
4 standard under the applicable statute in this
5 instance?"
6 What I think is the most striking part
7 about this - and while I believe that the
8 evidence may be - their perception, the
9 Plaintiffs' perception of the evidence - may be
10 different than ourselves, but I think the
11 evidence in this case will show, at least III.
12 and , were prostitutes before they ever met
13 Mr. Epstein, they remain prostitutes, and they
14 are still prostitutes today.
15 THE COURT: But is my role today one of
16 weighing the evidence or one of determining
17 whether or not there's a sufficient record in
18 order to allow a punitive damage claim to stand?
19 I mean, in one of the cases, I believe -
20 it's the case of State of Wisconsin Investment
21 Board vs. Plantation Square Associates, that's
22 found at 761 F.Supp 1569 - Judge Bugler
23 (phonetic) of the federal court provided an
24 excellent discussion of the distinction between
25 the proofs necessary to sustain a claim for
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1 punitive damages even at summary judgment, much
2 less a trial, and compared that with the
3 relatively lighter burden of simply making a
4 proffer of record evidence to support a claim
5 for punitive damages.
6 MR. CRITTON: Right.
7 THE COURT: Aren't we at that stage; that
8 is, the latter stage right now?
9 MR. CRITTON: Yes, and I very well
10 understand the distinction and, I believe, I
11 understand what the Court's role is in this
12 particular instance in making that
13 determination.
14 A couple of the issues though, in
15 particular - with a camera here today, for some
16 unknown reason, showing up at this hearing - is
17 there were references to drugs, alcohol, other
18 instances that are not applicable to this case.
19 There's no pleadings on that particular issue,
20 and I'm concerned about that, is that there's an
21 attempt to jack this up in the media, as I said,
22 with the camera here today, for no other
23 hearing. It's ridiculous under the
24 circumstances, and to make all of these wild
25 allegations against Mr. Epstein for which there
EFTA00750954
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1 is absolutely no evidentiary proof nor was that
2 submitted here in support of their proffer, I
3 did want to address at that.
4 So let me get to the heart of the issue.
5 I think the most distinguishing part of this
6 particular case that's different; that is, §§§.
7 and , is the fact that l'i. gave a sworn
8 statement to the FBI in this instance.
9 Again, there's a strong distinction. She
10 gave a sworn statement back in '05 or in '06.
11 She had - Ili. did - she had an attorney, Mr.
12 Eisenberg, it was before she had a civil lawyer
13 who's seeking millions of dollars under these
14 circumstances, and the testimony of III. at that
15 time was very significant and it flies directly
16 in the face of her "sworn testimony" or her
17 "sworn interrogatories."
18 The Court had Mr. Edwards read in ff .'s
19 answer andlipillanswer to their
20 Interrogator es as to what allegedly occurred
21 with Mr. Epstein and, "Oh, surprise," they were
22 almost verbatim, word for word, as to what
23 allegedly happened.
24 But at the time of her sworn statement to
25 the FBI, III. said on 4/24/07 - again, it was an
EFTA00750955
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1 FBI agent and a U.S. attorney that was there at
2 the time - and she talked about going over to
3 Mr. Epstein's house. She said, "I had a fake
4 ID." She was told to make certain that she was
5 18. She told Mr. Epstein she was 18, and she
6 said it was her understanding that all of the
7 other girls that she brought for this horrific
8 experience - she continued to bring other girls
9 and go herself on a number of occasions.
10 She said that she, herself -- On Page 8,
11 it asks, "Did she ever call you?" - and I assume
12 that was someone else - and she goes, "No. I
13 gave Jeffrey my number and, I said, you know, if
14 you want me to give you a massage again,
15 basically I'm more than anxious to come."
16 On Page 9, §§§. says, "I willingly took" -
17 "so I willingly, the first time, took off my top
18 when I gave him the massage and nothing more
19 than that."
20 She goes on to say in her testimony at
21 Page 10, her sworn statement, "I said, I told
22 Jeffrey, 'I heard that you like massages
23 topless.'"
24 "And he said 'Like, yeah.' He said, 'But
25 you don't have to do anything that you don't
EFTA00750956
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1 feel comfortable with.'"
2 "And I said, 'Okay,' but I willingly took
3 it off" - this is III. at the time. This is her
4 sworn testimony.
5 At Page 17, the police officer or the FBI
6 agent says, "and when he turned over then did he
7 touch you at all or was he just" -- Her answer
8 was, "No, I did not touch him, he did not touch
9 me. He didn't even want..." and I assume to
10 "touch you."
11 She goes on to say, "He didn't want me to
12 touch him and he didn't touch me."
13 She goes on and on in this statement,
14 III., in the statement and she says, "We had
15 fun."
16 "It was positive," on Page 18.
17 On Page 19, "You know, I would wear
18 panties. Willingly one time, because we were
19 making jokes and everything, and willingly one
20 time, I had, yes, I was totally nude, but I was
21 fine with that."
22 She talks about within the statement the
23 other girls that she brought over. Again, she's
24 testified or she gives the Interrogatory answer
25 that this was outrageous to her, but, yet she
EFTA00750957
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1 brought other girls to experience this. She
2 says - now that she has a civil lawyer seeking
3 money damages - now "it's a bad experience."
4 Now all of a sudden, "He touched me, he did
5 these things to me."
6 She references - at least, on Page 29 of
7 the statement Judge - there's a that's
8 ref ed. I would represent to be in
9 the comPitr int, and I think we established
10 that w en Mr. Berger and I were ariersa prior
11 motion to you. So she talks about on Page
12 29.
13 That's when she starts saying, she says,
14 he." meanin
15
16 Then on Page 30, "How old was
17 "She was 17."
18 Alright, so you have 12, 13, 14, 15, 16.
19 You have III. saying was 17 at the time.
20 "And what happened when came over?"
21 She said the same thing, "She went a few
22 times."
23 On Page 31, III. testified under oath to
24 the FBI and the United States attorney, "None of
25 my girls ever had a problem. And they'd call
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1 me. They begged me, you know, for us to go to
2 Jeffrey's house because they loved Jeffrey.
3 Jeffrey is a respectful man, he really is. I
4 mean, he all thought we were of age, always,
5 that's what's so sad about it."
6 And she goes on, Page 36, and the FBI says
7 to her, "Now, when you were working for him, you
8 were going over to Jeffrey's house to give him
9 massages, did you have a boyfriend?"
10 "Yeah."
11 "And how did your boyfriend feel about
12 it?"
13 "He was" -- 1.0. says, "He was a jealous
14 little boy, but he didn't care, 'Bring home the
15 bacon,'" and the statement goes on and on, Your
16 Honor. I know you've had an opportunity read it
17 before and I reference again today.
18 There's clearly a distinction conflict
19 between III., now that she has a civil lawyer
20 and she wants money, versus at the time that she
21 didn't want money and she gave a statement under
22 oath to the FBI and the United States attorney's
23 office.
24 I recognize the Court's role in this. I
25 recognize the standard. I recognize that both
EFTA00750959
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1 III. and in their Answers to
2 Interrogator es have made all sorts of, what we
3 believe in part, are baseless or in large part
4 baseless allegations, but we also have sworn
5 testimony of III. on this instance.
6 We don't have it of but we have §§§.
7 testifying about her own experience under oath:
8 That it was positive; that he never used force,
9 that she willingly did a number of times
10 including giving topless massages; that Mr.
11 Epstein never touched her; that she never
12 touched him inappropriately, all she did was
13 basically give him massages; that , in this
14 instance, as well as all the other girls that
15 she took, she spoke with them afterwards, they
16 begged to go back to Mr. Epstein's home, and
17 none of them, not one of them ever complained.
18 So there's a large chasm between what is
19 now being asserted in Answers to Interrogatories
20 and mere allegations in the complaint between
21 what the sworn testimony, at least ill., was
22 under the circumstances, as it relates to
23 herself and what she was told by and other
24 girls.
25 Thank you, Your Honor.
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1 THE COURT: Thank you.
2 Mr. Edwards, I'll give you a couple
3 minutes here.
4 MR. EDWARDS: Your Honor, I want to
5 address the statement that was made by III. to
6 the FBI and how that even came about. This is a
7 girl who, at the time of the statement, was
8 fairly unaware of the investigation against Mr.
9 Epstein, who is now, as we know, a convicted sex
10 offender.
11 An attorney showed up to her house, paid
12 for by Mr. Epstein, to represent her despite -
13 and told her that, "For your role, you could
14 possibly be implicated in some wrongdoing."
15 MR. CRITTON: Your Honor, just --
16 MR. EDWARDS: He represent --
17 MR. CRITTON: -- note my objection. This
18 is complete hearsay here. He was aware of what
19 was filed. He didn't file any affidavits for
20 his client in opposition. I would object to any
21 of this.
22 THE COURT: Alright. I don't want to get
23 into any of the details. I don't think it's
24 necessary at this juncture, which probably leads
25 me to my question to you; that is: Is the
EFTA00750961
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1 weighing of evidence appropriate at this
2 juncture?
3 MR. EDWARDS: No, Your Honor, I don't
4 believe that's the standard at this stage
5 anyway, and I don't think that Mr. Critton
6 believes that either.
7 Just so the record's clear, we had nothing
8 to do with the video camera being here, although
9 that was implied. I don't know who did. I
10 don't know if it was Mr. Critton, but it wasn't
11 me.
12 THE COURT: Dan is always welcome here.
13 MR. EDWARDS: It's perfectly fine, but I
14 don't like that being on the record, that it
15 looks like I did it when I didn't.
16 THE COURT: I understand. We have a
17 record here. The official record is being taken
18 down by our fine court reporter, so.
19 MR. EDWARDS: Either way, sounds like what
20 we just heard, that the reason that punitive
21 should not be allowed here is because these
22 14-year-old girls did this willingly.
23 We know that they're 14 years old, Mr.
24 Critton knows they were 14, 15 year olds. There
25 were message pads and scheduling books in
EFTA00750962
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1 Epstein's possession indicating the dates, which
2 would show how old those girls were, and that's
3 evidence that will be presented in this case.
4 There are serious statutes to protect
5 these kids from this kind of conduct, and these
6 second and third degree felonies were committed
7 repeatedly against them, and this is a case
8 where, at least in a civil case, punitive
9 damages are warranted, Your Honor.
10 Thank you, Your Honor.
11 THE COURT: Thank you both. I'm going to
12 grant the motion. In conformance with and
13 following the Despain case, the Court indicates,
14 in following the analysis of Judge Hugler - and,
15 by the way, that analysis of Judge Hugler is
16 commented upon on a supportive basis by several
17 appellate courts - and in the Despain case under
18 headnote 7 and 8 on Page 642 it states: "a
19 'proffer' according to traditional notions of
20 the term, connotes merely an 'offer' of evidence
21 and neither the term standing alone nor the
22 statute itself calls for an adjudication of the
23 underlying veracity of that which is submitted,
24 much less for countervailing evidentiary
25 submissions."
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1 The Court finds that, while I appreciate
2 Mr. Critton's argument and while I appreciate
3 his submission, that essentially at this stage,
4 respectfully, he is, at this point, presenting
5 countervailing evidentiary submissions.
6 The Court further goes on in paraphrasing
7 and then directly quoting Judge Hugler:
8 "Therefore a proffer is merely a representation
9 of what evidence the defendant proposes to
10 present and is not actual evidence." Actually,
11 that's a quote from Grim vs. State, 841 So.2d.
12 455, 462, and that, I believe, is a Florida
13 Supreme Court case, even though the citation
14 itself is not complete.
15 It goes on to say importantly - and that
16 is in the Despain case - "A reasonable showing
17 by evidence in the record would typically
18 include depositions, interrogatories, and
19 requests for admissions that have been filed
20 with the court. Hence, an evidentiary hearing
21 where witnesses testify and evidence is offered
22 and scrutinized under the pertinent evidentiary
23 rules, as in a trial, is neither contemplated
24 nor mandated by the statute in order to
25 determine whether a reasonable basis has been
EFTA00750964
00028
1 established to plead punitive damages," and I'll
2 admit this citation from the Fifth District
3 Court of Appeal, but, again, that is cited in
4 Despain.
5 Likewise, in Strasser vs. Yalamanchi, 677
6 So.2d. 22, which is a Florida Fourth District
7 Court of Appeal case from 1996, which is one of
8 the paradigm cases on the proffering of punitive
9 damage evidence, that states that "there was
10 reasonable basis for recovery of punitive
11 damages" can be demonstrated by either a
12 presentation of supporting evidence already in
13 the record or by a proffer of the evidence to
14 come.
15 I find that a combination of the Answers
16 to Interrogatories - I will take into account,
17 though, give little weight to the Fifth
18 Amendment arguments of Plaintiffs - but
19 certainly the Answers to Interrogatories on
20 behalf of both of these individual Plaintiffs in
21 this Court's view, and particularly in
22 conjunction with the Coercion statute relative
23 to prostitution, 796.09, would form a reasonable
24 basis to establish at least a claim for punitive
25 damages, recognizing that, again, the courts
EFTA00750965
00029
1 have made clear that the proffer and the burden
2 on the moving party is much less than at summary
3 judgment or at trial, so I will allow the
4 amendments to proceed and, therefore, we do have
5 an amended complaint, so how much time will you
6 need, Mr. Critton, to respond?
7 MR. CRITTON: I just wrote to Mr. Berger
8 20 days I would like for both of them, if that's
9 agreeable with the Court.
10 THE COURT: Fine with me, as long as it's
11 fine with the Plaintiffs.
12 MR. BERGER: Yes, Your Honor. I drafted
13 an order and just showed it to Mr. Critton. It
14 just says: "Granted for reasons stated on the
15 record. Plaintiff may file an amended complaint
16 to allege a count for battery" - which is also
17 part of our motion, which was unopposed - "and
18 punitive damages. The defense shall have 20
19 days to respond."
20 THE COURT: I believe you already filed
21 the proposed amended complaint.
22 MR. EDWARDS: Yes, Your Honor. I filed it
23 with the motion.
24 MR. BERGER: I'll correct that.
25 THE COURT: You can indicate in there
EFTA00750966
00030
1 MR. CRITTON: Deemed filed.
2 THE COURT: -- "the amended complaint
3 shall be deemed filed as of the date of this
4 order from today."
5 MR. BERGER: We'll draft it out there and
6 present it to the bailiff.
7 THE COURT: Not a problem. Thank you very
8 much. Gentlemen, thank you for your arguments
9 and your submissions and have a good rest of the
10 week.
11 MR. CRITTON: If they get it typed I'll
12 take a copy.
13 (The hearing concluded at 9:05 a.m.)
14
15
16
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18
19
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21
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23
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25
EFTA00750967
00031
1 CERTIFICATE
2
3 STATE OF FLORIDA )
4 COUNTY OF BROWARD )
5
6
7 I, Shorthand
8 Reporter, certify that I was authorized to and did
9 stenographically report the foregoing proceedings and
10 that the transcript is a true and complete record of
11 my stenographic notes.
12
13 Dated this 5th day of August, 2009.
14
15
16
17
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19
20
IIIPPIRWe
21
22
23
24
25
EFTA00750968
1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY, FLORIDA
2
3
4
5
Plaintiff,
6
vs. Case No. 502008CA028058
7 XXXXMB AD
JEFFREY EPSTEIN,
a
Defendant.
9
10
11
PROCEEDINGS BEFORE THE
12
HONORABLE JUDGE DONALD W. HAFELE
13
14 July 31, 2009
8:30 a.m. - 9:05 a.m.
15
16
205 N. Dixie Highway
17 West Palm Beach, FL 33401
18
19
20
21
22
23
24 , court reporter
25
EFTA00750938
00002
1 APPEARANCES OF COUNSEL
2
3 On behalf of the Plaintiff:
4 ROTHSTEIN, ROSENFELDT & ADLER
BY: WILLIAM J. BERGER, ESQ.,
5 Mizner Park Office Tower
Suite 675
6 225 NE Mizner Boulevard
Boca Raton FL 33432
7
8
ROTHSTEIN, ROSENFELDT & ADLER
9 BY: BRADLEY J. EDWARDS, ESQ.,
401 East Las Olas Boulevard
10 Suite 1650
Fort Lauderdale, FL 33394
11
12
13 On behalf of the Defendant:
14 BURMAN, CRITTON, LUTTIER & COLEMAN
BY: ROBERT D. CRITTON, JR., ESQ.,
15 515 North Flagler Drive
Suite 400
16 West Palm Beach, FL 33401
17
18
19
20
21
22
23
24
25
EFTA00750939
00003
1 Proceedings in the Matter of vs. JEFFREY EPSTEIN.
2 July 31, 2009 8:30
3 THE COURT: Good morning, gentlemen.
4 We're here this morning on the Plaintiff's
5 motions to add punitive damages. Who will be
6 arguing on behalf of the Plaintiff?
7 MR. EDWARDS: Brad Edwards, Your Honor.
8 THE COURT: Alright, Mr. Edwards.
9 MR. EDWARDS: Do I need to go to the
10 podium or is right here fine?
11 THE COURT: Whichever you prefer.
12 MR. EDWARDS: Your Honor, with our motion
13 we filed - and, I believe, Your Honor has it -
14 the discovery that was submitted to Mr. Epstein,
15 which consists of Requests for Admissions,
16 Requests for Production, Interrogatories, as
17 well as Interrogatory responses under oath by my
18 client.
19 THE COURT: Do you have any cases that
20 speak to the presumption relative to the
21 Defendant exercising his Fifth and Sixth
22 Amendment rights during the deposition testimony
23 and/or during any other discovery?
24 MR. EDWARDS: Sure, Your Honor.
25 THE COURT: I know that Mr. Critton in his
EFTA00750940
00004
1 reply memorandum indicated some conflict in
2 terms of the nature of the discussions of the
3 appellate courts relative to that issue.
4 MR. EDWARDS: May I approach?
5 THE COURT: Thank you.
6 MR. EDWARDS: I'm going to present the
7 case of Fraser vs. Security and Investment out
8 of the Fourth DCA.
9 The pertinent part, it says: "Our
10 conclusion is consistent with the prevailing
11 rule that the Fifth Amendment does not forbid
12 adverse inferences against parties to civil
13 actions when they refuse to testify in response
14 to probative evidence offered against them: the
15 amendment 'does not preclude the inference where
16 the privilege is claimed by a party to a civil
17 cause.'"
18 It skips down and says: "Such a rule is
19 both logical and utilitarian. A party may not
20 trample upon the rights of others and then
21 escape the consequences by invoking a
22 constitutional privilege - at least not in a
23 civil setting."
24 The final paragraph on that page says:
25 "Nor are we persuaded that the fact of
EFTA00750941
00005
1 invocation of the privilege is irrelevant and
2 immaterial." "In the case" -- Sorry, "Mr.
3 Justice Brandeis... observed that 'Silence is
4 often evidence of the most persuasive
5 character.'"
6 Clearly, this case, out of our district
7 court, is an indication that adverse inferences
8 may be drawn.
9 Right now we are at a punitive damages
10 stage. We are not at a stage where we are
11 talking about the admissibility of evidence. We
12 are --
13 THE COURT: Speaking only of a proffer to
14 establish punitive damages as required under
15 768.721, correct?
16 MR. EDWARDS: Exactly, and I was going to,
17 for the record, read that part of 768.721: "In
18 a civil action, there is a" --
19 THE COURT: I think we can skip that.
20 MR. EDWARDS: Okay.
21 THE COURT: The statute speaks for itself
22 and it's a part of the record today, so why
23 don't you go ahead and proceed?
24 MR. EDWARDS: The reasonable showing, by
25 way of proffer, that there is an intentional
EFTA00750942
00006
1 misconduct or gross negligence on behalf of the
2 Defendant.
3 Intentional misconduct is defined as "the
4 Defendant had actual knowledge of the wrong
5 permissible conduct and the high probability
6 that injury or damage to the claimant would
7 result and, despite that knowledge,
8 intentionally pursued that course of conduct
9 resulting in injury or damage."
10 In this case, we have intentional
11 misconduct of the worse kind. This is a case
12 that has been presented to the public through
13 public relations •eo•le for the Defendant at
14 times as
15
16 and that's not
17 the case at all.
18 What the evidence is really going to show
19 is that Mr. Epstein - at least dating back as
20 far as our investigation and resources have
21 permitted, back to 1997 or '98 - has every
22 single day of his life, made an attempt to
23 sexually abuse children.
24 We're not talking about five, we're not
25 talking about 20, we're not talking about 100,
EFTA00750943
00007
1 we're not talking about 400, which, I believe,
2 is the number known to law enforcement, we are
3 talking about thousands of children, and it is
4 through a very intricate and complicated system
5 that he devised where he has as many as 20
6 people working underneath him that he is paying
7 well to schedule these appointments, to locate
8 these girls.
9 He particularly goes after a very
10 vulnerable and impressionable age group that --
11 THE COURT: To use the quotation, "the
12 evidence will show the Defendant sought out
13 underprivileged and economically disadvantaged
14 minor females," and later go on to say,
15 "influenced them away from the typical
16 adolescent lifestyle as a result of his
17 allegedly criminal acts."
18 MR. EDWARDS: And that is exactly what
19 he's done. The age group begins as young as
20 12 years old and as old as 16 years old. There
21 will be evidence that at 16 years old, many of
22 the girls are told, "You're getting too old for
23 me."
24 He very clearly targets this specific age
25 group and has a method to this; that is, "Get
EFTA00750944
00008
1 the girls inside the house and I will do the
2 rest," and he creates this God-like aura for
3 these girls and --
4 THE COURT: Let's talk about - pardon me
5 for interrupting you - let's talk about the
6 precise claim hat are being made here. You're
7 dealing with and l'i. - they're pseudonyms
8 for purposes o t is litigation. Why don't we
9 speak to those two individuals at this juncture
10 and how the punitive damage proffer is
11 sufficient or insufficient relative to them
12 individually, please?
13 I understand the global allegations and I
14 understand the allegedly wide scale situation
15 that you're suggesting as you've alleged here,
16 but I want to go now to the precise claims made
17 by these two Plaintiffs who are in front of the
18 Court today, and whether or not that proffer is
19 sufficient to satisfy the case law, including
20 the case that Mr. Critton cited, and that is:
21 The Estate of Despain, D-E-S-P-A-I-N, vs. Avante
22 Group, Inc., which is found at 900 So.2d. 637,
23 and that was a Fifth District Court of Appeal
24 case, decided in 2005.
25 MR. EDWARDS: Yes, Your Honor, and that is
EFTA00750945
00009
1 the case that states: "a 'proffer' according to
2 traditional notions of the term, connotes merely
3 an 'offer' of evidence and neither the term
4 standing alone nor the statute itself calls for
5 an adjudication of the underlying veracity...is
6 merely a representation of what evidence the
7 defendant proposes to present."
8 We can turn to the sworn Interrogatory
9 answers, No. 8, wherein III. and, similarly,
10 , in slightly different words, states: "I
11 was touched, battered, and fondled by Defendant
12 Jeffrey Epstein during the incidents described
13 in the complaint. I observed the Defendant
14 touch and fondle himself. I observed the
15 Defendant ejaculate numerous times. I was made
16 to touch the Defendant. I also observed sexual
17 acts and had sexual acts perpetrated on me by
18 Defendant Jeffrey Epstein. At various times I
19 was unclothed, as was the Defendant and others.
20 At all times material, I was a child under the
21 age of 18 years old. The Defendant also used me
22 to bring him other minor girls and he controlled
23 and brainwashed me" --
24 THE COURT: Just a second.
25 (Telephone interruption.)
EFTA00750946
00010
1 MR. EDWARDS: -- "and brainwashed me into
2 believing this lifestyle was healthy and normal
3 for a girl my age. I was a victim of various
4 criminal acts and sexual exploitation. I was
5 induced and coerced by Defendant into acts of
6 prostitution."
7 While we're on the coercion and
8 prostitution, there is a specific --
9 THE COURT: Before you move on, that's
10 III-'s --
11 MR. EDWARDS: Yes, Your Honor
12 THE COURT: -- Answer to Int ries?
13 Why don't you read into the record Answer
14 to Interrogatories so the record is clear?
15 MR. EDWARDS: I apologize, Your Honor.
16 THE COURT: Take your time.
17 MR EDWARDS: Answer to Interrogatory No.
18 8 for M indicates: "My injuries are
19 emotional and psychological and are the direct
20 result of Defendant Jeffrey Epstein's actions.
21 I was touched, battered, and fondled by the
22 Defendant during the incidents described in the
23 complaints. I observed the Defendant touch and
24 fondle himself. I observed the Defendant
25 ejaculate numerous times. I was made to touch
EFTA00750947
00011
1 the Defendant. I also observed sexual acts and
2 had sexual acts perpetrated on me and was forced
3 to perform on me, including oral sex and other
4 activities. At various times I was unclothed,
5 as was Defendant and others. At all times
6 material, I was a child under the age of
7 18 years. I was a victim of various criminal
8 acts and sexual exploitation. I was induced and
9 coerced by the Defendant into acts of
10 prostitution."
11 THE COURT: Thank you. You were going to
12 speak to a legal point --
13 MR. EDWARDS: Right.
14 THE COURT: -- before I asked you to read
15 into the record those Interrogatory answers. Go
16 ahead.
17 MR. EDWARDS: Where we left off was the
18 coercion into prostitution. What makes these
19 crimes so egregious is the fact that these girls
20 that we're talking about were all beginning
21 their grooming process with Mr. Epstein when
22 they're 14 and 15 and 16 years old.
23 There is a specific statute, which we have
24 filed, and a cause of action under our
25 complaint, that is under 796.09, Coercion, civil
EFTA00750948
00012
1 cause of action.
2 Reading 796.09, Paragraph 1: "A person
3 has a cause of action for compensatory and
4 punitive damages" - this is in the statute -
5 "against a person who coerced them into
6 prostitution," and it goes on to define what
7 coercion means, and it is exactly what happened
8 in this case.
9 This statute allows for punitive damages
10 on a statutory level irrespective of the age of
11 the person that is coerced into prostitution.
12 THE COURT: And the coercion that you're
13 talking about are the alleged acts as between
14 these two Plaintiffs and Mr. Epstein as opposed
15 to, I think, there's something in one of the
16 Interrogatories that suggests that there may
17 have been prostitution that followed, at least
18 one of the Plaintiff's, involvement with Mr.
19 Epstein, but you're speaking solely about the
20 prostitution issues as it concerns the
21 Plaintiffs here and Epstein; is that accurate?
22 MR. EDWARDS: I believe, if I understand
23 what you are saying, I mean, in terms of
24 damages, if one of the Plaintiffs - and I can
25 represent - if one of the Plaintiffs was led
EFTA00750949
00013
1 into a life of prostitution after being
2 indoctrinated into this deviant lifestyle at an
3 early age by Mr. Epstein - she was not a
4 prostitute prior to that - and I relate that
5 similar to kids of that age being brought over
6 to somebody's house that is as powerful and
7 wealthy as him and he has, let's say, cocaine on
8 the table, and they do that for three years.
9 They think it's fun at the time, but after that
10 they have this addiction that continues on.
11 This is something similar to what happened to
12 one of the clients.
13 But, yes, the coercion into prostitution
14 is something that on a statutory level already
15 allows for punitive damages, and that's
16 irrespective of the age.
17 THE COURT: Again, I'm trying to
18 understand the factual basis. There's
19 allegations that Mr. Epstein paid these young
20 ladies $200 to massage him and then subsequent
21 thereto, there was some type of alleged sexual
22 activity. Are you speaking to that specifically
23 when you're talking about the statutory remedy
24 or are you speaking about something distinct
25 from that?
EFTA00750950
00014
1 MR. EDWARDS: No, that's specifically what
2 I am talking about --
3 THE COURT: Okay.
4 MR. EDWARDS: -- Mr. Epstein paying them
5 and using their age, their economic - their lack
6 of wealth - the fact that these are poor,
7 disadvantaged children with very little parental
8 guidance to his advantage to induce them into
9 acts of prostitution.
10 THE COURT: I'll give you two minutes to
11 wrap up, please.
12 MR. EDWARDS: Okay.
13 Your liiii, while I know that we are
14 focusing on and III., there are certain
15 defenses that have been made such as, "The girls
16 were" - "we didn't know that they were over 18,
17 otherwise we wouldn't have done this," where we
18 are going to be able to show there are hundreds
19 and hundreds and hundreds of girls and none of
20 them were over the age of 18.
21 Many of these girls, including my clients,
22 told him that they were under the age of 18 and
23 he continued to do this misconduct, which is
24 exactly what the statute or what the punitive
25 damages statute speaks to when it talks about
EFTA00750951
00015
1 intentional misconduct and/or gross negligence.
2 I think the record is very clear at this
3 point, especially after this proffer, that if
4 any case is deservant of punitive damages being
5 added, it's this one.
6 THE COURT: Alright. Thank you. I'll
7 give you a couple minutes to wrap up after Mr.
8 Critton finishes his argument.
9 MR. EDWARDS: Thank you, Your Honor.
10 THE COURT: Thank you.
11 MR. CRITTON: May it please the Court. As
12 the Court knows, I represent Mr. Epstein in this
13 matter.
14 Your Honor, a couple of things to start -
15 the case that Mr. Edwards cites deals with
16 inferences, deals with inferences at trial time
17 as distinct from inferences that, I believe, are
18 sufficient to carry the day, so-to-speak, in the
19 absence of other evidence with Mr. Epstein's
20 claim of Fifth Amendment privilege. As well, we
21 cited to the court cases - and I'll get to in
22 just a minute - that specifically address that
23 issue.
24 Secondly, we're not here on - and I think
25 the Court, I think, I kind of at least got the
EFTA00750952
00016
1 drift is we're not here on other claims - we're
2 here on and §§§.'s claim today to add
3 punitive damages and, in fact, "Do they meet the
4 standard under the applicable statute in this
5 instance?"
6 What I think is the most striking part
7 about this - and while I believe that the
8 evidence may be - their perception, the
9 Plaintiffs' perception of the evidence - may be
10 different than ourselves, but I think the
11 evidence in this case will show, at least III.
12 and , were prostitutes before they ever met
13 Mr. Epstein, they remain prostitutes, and they
14 are still prostitutes today.
15 THE COURT: But is my role today one of
16 weighing the evidence or one of determining
17 whether or not there's a sufficient record in
18 order to allow a punitive damage claim to stand?
19 I mean, in one of the cases, I believe -
20 it's the case of State of Wisconsin Investment
21 Board vs. Plantation Square Associates, that's
22 found at 761 F.Supp 1569 - Judge Bugler
23 (phonetic) of the federal court provided an
24 excellent discussion of the distinction between
25 the proofs necessary to sustain a claim for
EFTA00750953
00017
1 punitive damages even at summary judgment, much
2 less a trial, and compared that with the
3 relatively lighter burden of simply making a
4 proffer of record evidence to support a claim
5 for punitive damages.
6 MR. CRITTON: Right.
7 THE COURT: Aren't we at that stage; that
8 is, the latter stage right now?
9 MR. CRITTON: Yes, and I very well
10 understand the distinction and, I believe, I
11 understand what the Court's role is in this
12 particular instance in making that
13 determination.
14 A couple of the issues though, in
15 particular - with a camera here today, for some
16 unknown reason, showing up at this hearing - is
17 there were references to drugs, alcohol, other
18 instances that are not applicable to this case.
19 There's no pleadings on that particular issue,
20 and I'm concerned about that, is that there's an
21 attempt to jack this up in the media, as I said,
22 with the camera here today, for no other
23 hearing. It's ridiculous under the
24 circumstances, and to make all of these wild
25 allegations against Mr. Epstein for which there
EFTA00750954
00018
1 is absolutely no evidentiary proof nor was that
2 submitted here in support of their proffer, I
3 did want to address at that.
4 So let me get to the heart of the issue.
5 I think the most distinguishing part of this
6 particular case that's different; that is, §§§.
7 and , is the fact that l'i. gave a sworn
8 statement to the FBI in this instance.
9 Again, there's a strong distinction. She
10 gave a sworn statement back in '05 or in '06.
11 She had - Ili. did - she had an attorney, Mr.
12 Eisenberg, it was before she had a civil lawyer
13 who's seeking millions of dollars under these
14 circumstances, and the testimony of III. at that
15 time was very significant and it flies directly
16 in the face of her "sworn testimony" or her
17 "sworn interrogatories."
18 The Court had Mr. Edwards read in ff .'s
19 answer andlipillanswer to their
20 Interrogator es as to what allegedly occurred
21 with Mr. Epstein and, "Oh, surprise," they were
22 almost verbatim, word for word, as to what
23 allegedly happened.
24 But at the time of her sworn statement to
25 the FBI, III. said on 4/24/07 - again, it was an
EFTA00750955
00019
1 FBI agent and a U.S. attorney that was there at
2 the time - and she talked about going over to
3 Mr. Epstein's house. She said, "I had a fake
4 ID." She was told to make certain that she was
5 18. She told Mr. Epstein she was 18, and she
6 said it was her understanding that all of the
7 other girls that she brought for this horrific
8 experience - she continued to bring other girls
9 and go herself on a number of occasions.
10 She said that she, herself -- On Page 8,
11 it asks, "Did she ever call you?" - and I assume
12 that was someone else - and she goes, "No. I
13 gave Jeffrey my number and, I said, you know, if
14 you want me to give you a massage again,
15 basically I'm more than anxious to come."
16 On Page 9, §§§. says, "I willingly took" -
17 "so I willingly, the first time, took off my top
18 when I gave him the massage and nothing more
19 than that."
20 She goes on to say in her testimony at
21 Page 10, her sworn statement, "I said, I told
22 Jeffrey, 'I heard that you like massages
23 topless.'"
24 "And he said 'Like, yeah.' He said, 'But
25 you don't have to do anything that you don't
EFTA00750956
00020
1 feel comfortable with.'"
2 "And I said, 'Okay,' but I willingly took
3 it off" - this is III. at the time. This is her
4 sworn testimony.
5 At Page 17, the police officer or the FBI
6 agent says, "and when he turned over then did he
7 touch you at all or was he just" -- Her answer
8 was, "No, I did not touch him, he did not touch
9 me. He didn't even want..." and I assume to
10 "touch you."
11 She goes on to say, "He didn't want me to
12 touch him and he didn't touch me."
13 She goes on and on in this statement,
14 III., in the statement and she says, "We had
15 fun."
16 "It was positive," on Page 18.
17 On Page 19, "You know, I would wear
18 panties. Willingly one time, because we were
19 making jokes and everything, and willingly one
20 time, I had, yes, I was totally nude, but I was
21 fine with that."
22 She talks about within the statement the
23 other girls that she brought over. Again, she's
24 testified or she gives the Interrogatory answer
25 that this was outrageous to her, but, yet she
EFTA00750957
00021
1 brought other girls to experience this. She
2 says - now that she has a civil lawyer seeking
3 money damages - now "it's a bad experience."
4 Now all of a sudden, "He touched me, he did
5 these things to me."
6 She references - at least, on Page 29 of
7 the statement Judge - there's a that's
8 ref ed. I would represent to be in
9 the comPitr int, and I think we established
10 that w en Mr. Berger and I were ariersa prior
11 motion to you. So she talks about on Page
12 29.
13 That's when she starts saying, she says,
14 he." meanin
15
16 Then on Page 30, "How old was
17 "She was 17."
18 Alright, so you have 12, 13, 14, 15, 16.
19 You have III. saying was 17 at the time.
20 "And what happened when came over?"
21 She said the same thing, "She went a few
22 times."
23 On Page 31, III. testified under oath to
24 the FBI and the United States attorney, "None of
25 my girls ever had a problem. And they'd call
EFTA00750958
00022
1 me. They begged me, you know, for us to go to
2 Jeffrey's house because they loved Jeffrey.
3 Jeffrey is a respectful man, he really is. I
4 mean, he all thought we were of age, always,
5 that's what's so sad about it."
6 And she goes on, Page 36, and the FBI says
7 to her, "Now, when you were working for him, you
8 were going over to Jeffrey's house to give him
9 massages, did you have a boyfriend?"
10 "Yeah."
11 "And how did your boyfriend feel about
12 it?"
13 "He was" -- 1.0. says, "He was a jealous
14 little boy, but he didn't care, 'Bring home the
15 bacon,'" and the statement goes on and on, Your
16 Honor. I know you've had an opportunity read it
17 before and I reference again today.
18 There's clearly a distinction conflict
19 between III., now that she has a civil lawyer
20 and she wants money, versus at the time that she
21 didn't want money and she gave a statement under
22 oath to the FBI and the United States attorney's
23 office.
24 I recognize the Court's role in this. I
25 recognize the standard. I recognize that both
EFTA00750959
00023
1 III. and in their Answers to
2 Interrogator es have made all sorts of, what we
3 believe in part, are baseless or in large part
4 baseless allegations, but we also have sworn
5 testimony of III. on this instance.
6 We don't have it of but we have §§§.
7 testifying about her own experience under oath:
8 That it was positive; that he never used force,
9 that she willingly did a number of times
10 including giving topless massages; that Mr.
11 Epstein never touched her; that she never
12 touched him inappropriately, all she did was
13 basically give him massages; that , in this
14 instance, as well as all the other girls that
15 she took, she spoke with them afterwards, they
16 begged to go back to Mr. Epstein's home, and
17 none of them, not one of them ever complained.
18 So there's a large chasm between what is
19 now being asserted in Answers to Interrogatories
20 and mere allegations in the complaint between
21 what the sworn testimony, at least ill., was
22 under the circumstances, as it relates to
23 herself and what she was told by and other
24 girls.
25 Thank you, Your Honor.
EFTA00750960
00024
1 THE COURT: Thank you.
2 Mr. Edwards, I'll give you a couple
3 minutes here.
4 MR. EDWARDS: Your Honor, I want to
5 address the statement that was made by III. to
6 the FBI and how that even came about. This is a
7 girl who, at the time of the statement, was
8 fairly unaware of the investigation against Mr.
9 Epstein, who is now, as we know, a convicted sex
10 offender.
11 An attorney showed up to her house, paid
12 for by Mr. Epstein, to represent her despite -
13 and told her that, "For your role, you could
14 possibly be implicated in some wrongdoing."
15 MR. CRITTON: Your Honor, just --
16 MR. EDWARDS: He represent --
17 MR. CRITTON: -- note my objection. This
18 is complete hearsay here. He was aware of what
19 was filed. He didn't file any affidavits for
20 his client in opposition. I would object to any
21 of this.
22 THE COURT: Alright. I don't want to get
23 into any of the details. I don't think it's
24 necessary at this juncture, which probably leads
25 me to my question to you; that is: Is the
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1 weighing of evidence appropriate at this
2 juncture?
3 MR. EDWARDS: No, Your Honor, I don't
4 believe that's the standard at this stage
5 anyway, and I don't think that Mr. Critton
6 believes that either.
7 Just so the record's clear, we had nothing
8 to do with the video camera being here, although
9 that was implied. I don't know who did. I
10 don't know if it was Mr. Critton, but it wasn't
11 me.
12 THE COURT: Dan is always welcome here.
13 MR. EDWARDS: It's perfectly fine, but I
14 don't like that being on the record, that it
15 looks like I did it when I didn't.
16 THE COURT: I understand. We have a
17 record here. The official record is being taken
18 down by our fine court reporter, so.
19 MR. EDWARDS: Either way, sounds like what
20 we just heard, that the reason that punitive
21 should not be allowed here is because these
22 14-year-old girls did this willingly.
23 We know that they're 14 years old, Mr.
24 Critton knows they were 14, 15 year olds. There
25 were message pads and scheduling books in
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1 Epstein's possession indicating the dates, which
2 would show how old those girls were, and that's
3 evidence that will be presented in this case.
4 There are serious statutes to protect
5 these kids from this kind of conduct, and these
6 second and third degree felonies were committed
7 repeatedly against them, and this is a case
8 where, at least in a civil case, punitive
9 damages are warranted, Your Honor.
10 Thank you, Your Honor.
11 THE COURT: Thank you both. I'm going to
12 grant the motion. In conformance with and
13 following the Despain case, the Court indicates,
14 in following the analysis of Judge Hugler - and,
15 by the way, that analysis of Judge Hugler is
16 commented upon on a supportive basis by several
17 appellate courts - and in the Despain case under
18 headnote 7 and 8 on Page 642 it states: "a
19 'proffer' according to traditional notions of
20 the term, connotes merely an 'offer' of evidence
21 and neither the term standing alone nor the
22 statute itself calls for an adjudication of the
23 underlying veracity of that which is submitted,
24 much less for countervailing evidentiary
25 submissions."
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1 The Court finds that, while I appreciate
2 Mr. Critton's argument and while I appreciate
3 his submission, that essentially at this stage,
4 respectfully, he is, at this point, presenting
5 countervailing evidentiary submissions.
6 The Court further goes on in paraphrasing
7 and then directly quoting Judge Hugler:
8 "Therefore a proffer is merely a representation
9 of what evidence the defendant proposes to
10 present and is not actual evidence." Actually,
11 that's a quote from Grim vs. State, 841 So.2d.
12 455, 462, and that, I believe, is a Florida
13 Supreme Court case, even though the citation
14 itself is not complete.
15 It goes on to say importantly - and that
16 is in the Despain case - "A reasonable showing
17 by evidence in the record would typically
18 include depositions, interrogatories, and
19 requests for admissions that have been filed
20 with the court. Hence, an evidentiary hearing
21 where witnesses testify and evidence is offered
22 and scrutinized under the pertinent evidentiary
23 rules, as in a trial, is neither contemplated
24 nor mandated by the statute in order to
25 determine whether a reasonable basis has been
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1 established to plead punitive damages," and I'll
2 admit this citation from the Fifth District
3 Court of Appeal, but, again, that is cited in
4 Despain.
5 Likewise, in Strasser vs. Yalamanchi, 677
6 So.2d. 22, which is a Florida Fourth District
7 Court of Appeal case from 1996, which is one of
8 the paradigm cases on the proffering of punitive
9 damage evidence, that states that "there was
10 reasonable basis for recovery of punitive
11 damages" can be demonstrated by either a
12 presentation of supporting evidence already in
13 the record or by a proffer of the evidence to
14 come.
15 I find that a combination of the Answers
16 to Interrogatories - I will take into account,
17 though, give little weight to the Fifth
18 Amendment arguments of Plaintiffs - but
19 certainly the Answers to Interrogatories on
20 behalf of both of these individual Plaintiffs in
21 this Court's view, and particularly in
22 conjunction with the Coercion statute relative
23 to prostitution, 796.09, would form a reasonable
24 basis to establish at least a claim for punitive
25 damages, recognizing that, again, the courts
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1 have made clear that the proffer and the burden
2 on the moving party is much less than at summary
3 judgment or at trial, so I will allow the
4 amendments to proceed and, therefore, we do have
5 an amended complaint, so how much time will you
6 need, Mr. Critton, to respond?
7 MR. CRITTON: I just wrote to Mr. Berger
8 20 days I would like for both of them, if that's
9 agreeable with the Court.
10 THE COURT: Fine with me, as long as it's
11 fine with the Plaintiffs.
12 MR. BERGER: Yes, Your Honor. I drafted
13 an order and just showed it to Mr. Critton. It
14 just says: "Granted for reasons stated on the
15 record. Plaintiff may file an amended complaint
16 to allege a count for battery" - which is also
17 part of our motion, which was unopposed - "and
18 punitive damages. The defense shall have 20
19 days to respond."
20 THE COURT: I believe you already filed
21 the proposed amended complaint.
22 MR. EDWARDS: Yes, Your Honor. I filed it
23 with the motion.
24 MR. BERGER: I'll correct that.
25 THE COURT: You can indicate in there
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1 MR. CRITTON: Deemed filed.
2 THE COURT: -- "the amended complaint
3 shall be deemed filed as of the date of this
4 order from today."
5 MR. BERGER: We'll draft it out there and
6 present it to the bailiff.
7 THE COURT: Not a problem. Thank you very
8 much. Gentlemen, thank you for your arguments
9 and your submissions and have a good rest of the
10 week.
11 MR. CRITTON: If they get it typed I'll
12 take a copy.
13 (The hearing concluded at 9:05 a.m.)
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1 CERTIFICATE
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3 STATE OF FLORIDA )
4 COUNTY OF BROWARD )
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7 I, Shorthand
8 Reporter, certify that I was authorized to and did
9 stenographically report the foregoing proceedings and
10 that the transcript is a true and complete record of
11 my stenographic notes.
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13 Dated this 5th day of August, 2009.
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