EFTA01134321.pdf

No. 13-12923 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT JANE DOE NO. 1 AND JANE DOES NO. 2, Plaintiffs-Appellees v. UNITED STATES OF AMERICA, Defendant-Appellee ROY BLACK ET AL., Intervenors/Appellants ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF INTERVENORS/APPELLANTS ROY BLACK, MARTIN G. WEINBERG, AND JEFFREY EPSTEIN Roy Black Martin G. Weinberg Jackie Perczek 20 Park Plaza, Suite 1000 Black, Srebnick, Kornspan & Boston, Massachusetts 02116 Stumpf Tel: (617) 227-3700 201 South Biscayne Boulevard Fax: (617) 338-9538 Suite 1300 [email protected] Miami, Florida 33131 Tel: (305) 371-6421 Fax: (305)358-2006 [email protected] [email protected] CERTIFICATE OF INTERESTED PERSONS EFTA01134321  Pursuant to 11th Cir. R. 26.1, Intervenor/Appellants hereby certify that the following persons have an interest in the outcome of this case: I. Marra, The Honorable Kenneth 2. Acosta, R. Alexander 3. Black, Roy 4. Cassell, Paul G. 5. Edwards, Bradley J. 6. Epstein, Jeffrey 7. Ferrer, Wifredo A. 8. Howell, Jay 9. Lee, Dexter 10. Lefkowitz, Jay 11. Perczek, Jackie 12. Reinhart, Bruce 13. Sanchez, Eduardo I. 14. Sloman, Jeffrey 15. Villafafia, A. Marie Page C-I of 2 EFTA01134322 16. Weinberg, Martin 17. Doe No. 1, Jane 18. Doe No. 2, Jane /s/ Martin G. Weinberg Attorney for Intervenor/Appellants Page C-2 of 2 3 EFTA01134323  STATEMENT REGARDING ORAL ARGUMENT Intervenor/Appellants request oral argument in this case, as they believe that oral argument will be of material assistance to the Court in considering and deciding the important questions of first impression presented in this appeal, namely, whether communications made by attorneys during the course of settlement/plea negotiations in a criminal case — communications falling within the heartland of Fed. R. Evid. 410 — are privileged and confidential and protected from disclosure to third parties such as civil plaintiffs or, in this case, plaintiffs suing the government under the Crime Victims Rights Act, 18 U.S.C. §3771, who have openly stated that they intend to use those communications to the detriment of the attorneys' client. 4 EFTA01134324  STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The district court has jurisdiction of this action as an action by the plaintiffs/appellees against the United States as defendant seeking to enforce their rights under the Crime Victims Rights Act, 18 U.S.C. §3771. The orders of the district court from which this appeal is taken was entered on June 18, 2013 (DEI 88) and June 19, 2013 (DE200), and intervenors/appellants' notices of appeal were filed on June 27, 2013 (DE194-96). This Court has jurisdiction of this appeal under 28 U.S.C. § 1291 and Perlman v. United States, 247 U.S. 7 (1918). See Section , infra. STATEMENT OF THE ISSUES PRESENTED (TO BE INSERTED] STATEMENT OF THE CASE AND STATEMENT OF FACTS In September, 2007, intervenor/appellant Jeffrey Epstein entered into a non- prosecution agreement ("NPA") with the government to resolve a federal criminal investigation in which he was the subject of two federal grand jury investigations.' Under that agreement, Mr. Epstein pled guilty to two state felony offenses and served a prison sentence and a term of community control probation. The agreement, with which he has fully complied, also required that he pay the legal fees of the attorney-representative of identified victims and that he not contest liability in any cases brought against him solely under 18 U.S.C. §2255. Many plaintiffs sued under §2255 and received settlements as the direct result of Mr. 5 EFTA01134325 [cite to NPA in record] In the process of reaching this negotiated settlement, Epstein's counsel, including intervenors/appellants Roy Black and Martin Weinberg, authored, and sent to government prosecutors, the correspondence which is the subject of this appeal, fully expecting, based on Fed. R. Crim. P. 410 and long-established understanding and practice, that their settlement negotiation communications would remain confidential and not subject to disclosure to third parties such as plaintiffs in civil or other litigation. In July, 2008, plaintiffs commenced the underlying action, by filing a Petition for Enforcement of Crime Victims Rights Act, 18 U.S.C. §3771 ("CVRA"). DEl. While the CVRA action was commenced as an emergency petition, plaintiffs shortly thereafter told the district court that they saw no reason to proceed on an emergency basis. DE15:24-25. Then, a month later, plaintiffs withdrew their request that the district court rescind Epstein's NPA as a remedy for the government's alleged violation of the CVRA, telling the court that because of the legal consequences of invalidating the NPA, it was probably not in their interests to ask for rescission. DE27:4. Plaintiffs spent the next eighteen months Epstein's agreement not to contest liability in those cases. Other plaintiffs, including the Jane Does in this case, "relied on the [NPA] when seeking civil relief against Epstein . . . and affirmatively advanced the terms of the [NPA] as a basis for relief from Epstein." United States' Reply in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction, DE205-6:12-13. 6 EFTA01134326 pursuing civil remedies against Epstein, and ultimately obtaining settlements, while their CVRA action remained dormant. During the course of that civil litigation, Epstein was ordered, over his strenuous objection, to produce documents given to him by the government during the course of his settlement/plea negotiations with it. See Jane Doe #2 v. Epstein, No. 08-80119-MARRA, Doc. 462. In response to that order, settlement negotiation correspondence authored by government prosecutors (not by Epstein's counsel) was produced to plaintiffs. Once the CVRA action was re-activated — after plaintiffs had successfully pursued their civil monetary remedies against Mr. Epstein to completion — plaintiffs sought to use that correspondence in their CVRA case in support of their contentions that the government had violated their CVRA rights by not consulting with them before entering into the NPA with Epstein and that, as a remedy, the district court should order the rescission of the NPA.2 The government took no position on plaintiffs' proposed use of the correspondence. DE60:1-2. See DE208:65 (plaintiffs' counsel states that government does not oppose plaintiffs' request to use the government's side of the correspondence which had already been disclosed to plaintiffs). Thereafter, plaintiffs also sought disclosure from the 2 Plaintiffs' civil settlements with Epstein required that, if they sought to use the correspondence in the CVRA case, they would provide Epstein with advance notice so that he could submit his objections to their use to the district court to be ruled upon before the correspondence was publicly disclosed. DE51:2. 7 EFTA01134327 government of correspondence authored and sent to the government by Epstein's attorneys in the course of their efforts on behalf of their client to resolve the ongoing criminal investigation of him. [cite] Both Epstein and his criminal defense attorneys — appellants Roy Black and Martin Weinberg — filed motions to intervene for the limited purpose of challenging the use and disclosure of the settlement/plea negotiation correspondence. DE56, 93, followed by supplemental briefing and motions for a protective order, contending that the correspondence was privileged and confidential under Fed. R. Crim. P 11(0 and Fed. R. Evid. 410 and the work- product privilege and that the correspondence fell within the bounds of privilege under Fed. R. Evid. 501. DE:94, 160,161, 162. Following a hearing on the motions to intervene, the government filed a response to the arguments advanced by intervenors, in which it agreed with intervenors that settlement/plea negotiation communications should remain privileged and confidential. DE100.3 The district court granted the motions to intervene, DEI58, 159, but ultimately ruled that the correspondence was subject to disclosure. DE188. The district court rejected intervenors' argument based on Rule 410, erroneously concluding that the correspondence fell outside the protections of Rule 410. Id. at 3 The government's response was not among the pleadings which the district court indicated that it considered in ruling on the disclosure issue. See DE188:1. 8 EFTA01134328 4. The district court also rejected — again erroneously — the application of Rule 410 to Epstein's counsel's communications with the government on the ground that Epstein had in fact pleaded guilty, albeit in state court. Id. at 4-5. Finally, the district court rejected intervenors' argument based on Rule 501 on the ground that Congress has already addressed the issue in Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Id. at 8-9. That too was error. Intervenors sought a stay of the district court's disclosure order pending appeal to this Court, DE193, which the district court denied. DE206. Thereafter, intervenors renewed their request for a stay pending appeal in this Court, which motion remains pending. During the same time frame, plaintiffs filed a motion to dismiss intervenors' appeal for lack of jurisdiction, which intervenors have opposed. That motion too remains pending. STATEMENT OF STANDARD OF REVIEW [TO BE INSERTED] SUMMARY OF ARGUMENT [TO BE INSERTED] ARGUMENT The district court's order is the first decision anywhere, insofar as the undersigned counsel are aware, which has ordered disclosure to third party litigants 9 EFTA01134329 of private and confidential communications from attorneys seeking to resolve a criminal matter favorably to their clients to government prosecutors. The district court's decision, which drastically reshapes the landscape of criminal settlement negotiations and overturns expectations of privacy, confidentiality, and privilege on which criminal defense attorneys have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients, has potentially far-reaching and, intervenors contend, seriously deleterious consequences for the ability of attorneys nationwide to effectively represent their clients through open and candid communications with government counsel. The decision will have a predictably chilling effect on attorneys around the country, if they can no longer expect privacy and confidentiality in their written communications with prosecutors aimed at reaching a negotiated resolution to a criminal investigation or prosecution. Such communications often necessarily involve explicit or implicit admissions regarding their client's conduct, legal opinions, and opinions regarding acceptable resolutions of the matter, admissions and opinions which attorneys in many cases will be loath to commit to written form if they may be subject to later disclosure to litigation adversaries of the attorneys' clients. This case is far from sui generis — the cases are legion in which there is related civil litigation seeking damages or other recovery from individuals who were targets of criminal investigations or prosecutions and in which, after 10 EFTA01134330 becoming aware of the district court's decision, plaintiffs will begin clamoring for access to communications between defendants' counsel and prosecuting authorities in the belief that it may support their cases against the defendants. The settlement/plea negotiation process, a critical component of the criminal justice system and one with serious Sixth Amendment implications once formal charges have been brought, cannot function properly unless counsel are assured that their communications with prosecutors will not later be subject to disclosure to third parties seeking to harm their clients. The need for open and frank exchanges of information and opinions during plea/settlement negotiations lies at the heart of Rule 410, which itself bars disclosure of the correspondence at issue in this case. The settlement/plea negotiation process is of such profound public and constitutional importance that the Court should recognize the privileged nature of the correspondence under Fed. R. Evid. 501. I. THE CORRESPONDENCE IS PROTECTED FROM DISCLOSURE BY RULE 410 AND THE WORK-PRODUCT PRIVILEGE. A. The Constitutional Role of Plea Bargaining in the Criminal Process. Any assessment of the merits of intervenors' contentions must begin with an understanding of the central role of plea bargaining and settlement negotiations in our criminal justice system and the Sixth Amendment protections which surround them. "Plea bargains are . . . central to the administration of the criminal justice 11 EFTA01134331 system" because ours is "a system of pleas, not a system of trials." Latter v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel "extends to the plea bargaining process" and that defendants are entitled to "the effective assistance of competent counsel" during plea negotiations. Lafler, 132 S. Ct. at 1384; Frye, 132 S.Ct. at 1407-09. Under Lafler and Frye, counsel have an ongoing obligation to provide effective representation in plea bargaining and to engage in communications with the client and the prosecutor to discharge that obligation. Even before formal charges are brought, counsel representing a client under federal investigation have an obligation to secure the best possible outcome for their clients, whether it be one which results, as here, in no charges being brought by the prosecuting authority or the bringing of fewer, or less serious, charges against the client. Defense counsel cannot fulfill their professional obligations to their clients if they must temper their communications with the prosecution in the criminal settlement negotiation context for fear that disclosures made now will later enure to the clients' severe detriment in other litigation contexts. The professional, ethical, and constitutional obligations of attorneys representing persons under investigation for, or charged with, crimes are terribly at odds with any ruling which exposes those negotiations to public scrutiny (or to the scrutiny of later litigation adversaries of the client) and makes 12 EFTA01134332 them admissible in evidence to be used as ammunition to harm the clients, yet that is the very result which the district court's order enshrines. Under the district court's ruling, the attorneys for a person under federal criminal investigation may never enter into negotiations with the government with the primary aim of avoiding federal indictment entirely, no matter how serious and good faith those negotiations, without risking that anything they say on behalf of their clients in seeking to arrive at a negotiated settlement may in the future be used, either by the government or by adversarial third parties, to the severe detriment of their client. This is not and cannot be the law and is certainly unsound policy. Indeed, the district court's opinion creates an incentive for attorneys not to do precisely what Hickman v. Taylor, 329 U.S. 495 (1947), was intended to encourage attorneys to do: reduce facts, ideas, and opinions to writing. A return to the days of settlement/plea negotiations conducted through oral, rather than written, communications, which the district court's decision will encourage whenever the progress of the negotiations or the attainment of the desired objective require the attorney to communicate information which, if disclosed in another context, would be detrimental to the client's interests would serve no one's interests — not the defendant's, not the government's, not the judicial system's, and not the public's. 13 EFTA01134333  B. The Protections Afforded By Rule 410 and Its Role in Promoting Effective Plea/Settlement Discussions. Rule 410 "creat[es], in effect, a privilege of the defendant." United States v. Mezzanatto, 513 U.S. 196, 205 (1995), and, along with its cognate, Fed. R. Crim. P. 11(f), "address[es] both individual and systemic concerns in their attempt `to permit the unrestrained candor which produces effective plea discussions.' United States v. Sylvester, 583 F.3d 285, 288 (5th Cir. 2009), quoting Fed. R. Crim. P. 11 Advisory Committee Notes (1979). See id. at 291 ("Congress accepted Rules 11(e)(6) and 410 with their goal of permitting candid plea discussions, serving personal as well as institutional interests"). The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." Id. at 796 (emphasis added). See, e.g., United States v. Ross, 493 F.2d 771, 775 (5th Cir. ine1974)("If, as the Supreme Court said in Santobello [v. United States, 404 U.S. 257 (1971)], plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks 14 EFTA01134334 uttered during the course of it are to be admitted in evidence as proof of guilt"); see also United States v. Davis, 617 F.2d 677, 683 (D.C.Cir. 1979)("The most significant factor in [Rule 11(e)(6)'s] adoption was the need for free and open discussion between the prosecution and the defense during attempts to reach a compromise"). The settlement negotiations at issue here lie well within the heartland of Rule 410's prohibition against the admissibility of plea negotiations "against the defendant who was a participant in the plea discussions" "in any civil or criminal proceeding" and should be protected from disclosure to third parties for that reason. Plaintiffs have made it clear that they intend to use the correspondence to prove that the government violated their CVRA rights and that, to remedy that violation, the NPA agreement should be rescinded so that they could seek to have Epstein prosecuted federally. See DE208:32-33, 61, 64-65. Thus, although the government is the defendant in the action, it is plain that the plaintiffs intend to use the correspondence "against" Epstein. The words "not admissible against the defendant" in Rule 410 refer to "the purpose for which the evidence is offered" and not "to the kind of proceeding in which the evidence is offered." Fed. R. Crim. P 11, Advisory Committee Notes (1979)(emphasis added). See DE100:1, 3-4 (government agrees that plaintiffs are seeking to use the settlement negotiation correspondence against Epstein within the meaning of Rule 410). 15 EFTA01134335  C. Rule 410, the Work-Product Privilege, and the Sixth Amendment. Without persuasive precedent, by ordering the disclosure of settlement negotiations to Mr. Epstein's adversaries, the district court has drastically reshaped the settlement negotiation landscape to retroactively eliminate the reasonable expectation generated by Rule 410 and the work-product privilege, in reliance on which these communications were authored by competent and responsible attorneys. Those communications were made with complete confidence that their contents would remain confidential, known only to counsel for the government and intervenors, and would not be subject to possible future disclosure to third parties, and certainly not to third parties seeking to use the contents of their attorney communications to harm their client. That belief was eminently reasonable and based on established practice and understandings regarding the confidentiality of such communications. The attorney intervenors' decisions regarding the content of the communications sent to the government in the effort to fulfill their professional and ethical obligations to their client were made in reliance upon those communications not being disclosed outside the attorney-to-attorney settlement negotiation process. If more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of 16 EFTA01134336 Rule 410, the work-product privilege, and the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. As addressed at page , supra, it is now firmly established that criminal defendants have a Sixth Amendment right to the effective assistance of counsel in the plea negotiation process. In the course of providing their clients that assistance, counsel will often communicate opinion work product to the prosecutor — opinions as to the facts, opinions as to the controlling law, opinions as to the application of the law to the facts of the case, opinions as to the strength of the government's case and the strength of the defendant's defenses, opinions as to the credibility of government witnesses, opinions as to interpretations of the evidence, and the like. Those opinions will often directly bear on the defendant's guilt or innocence of the offense charged — what he did and did not do, what he knew and did not know, what he intended — and are essential to the frank and open exchanges which characterize effective representation in the plea bargaining process. Defense counsel cannot perform their constitutionally-mandated role in the plea negotiation process unless they feel free to make these candid disclosures to the prosecution without fear that they will come back to harm their client in another litigation context; the more defense counsel feel they must pull their punches during plea negotiations to forestall other potential harm to their clients, the less effective their representation will be. As counsel framed the issue for the district court: 17 EFTA01134337  And here is the problem, your Honor, just to tell you practically what it's like out in the field practicing criminal law: If we believe that our statements in any was during this plea bargaining process would end up coming back to damage our clients in some way, why would we do this? Why would we go through this whole process of sending these briefs and letters and interpretations of the law and discussions of the various offenses and how things could be arranged and the discretion between the federal and the state government and all those kinds of things, even discussing proposed charges and all of that, why would we ever engage in that if we ever thought these things could come back to bite our clients? DE208:37. While the Sixth Amendment right to counsel had not yet attached in this case, the district court's opinion is equally applicable to cases in which it has. Confidentiality of plea negotiation communications is essential to ensure that defense counsel can fulfill their constitutional and professional obligations to provide their clients with effective representation during the plea negotiation process. The correspondence at issue here is quintessential opinion work product, and addressed matters such as "what the statutes mean, what the import of the statutes are, what the cases are, what the discretion of the Attorney General is, . . . federalism, the differences between state and federal law enforcement, whether or not the government should proceed with this case because of various policy reasons." DE208:18. The Federal Rules have codified the common law protections for attorney work product. Fed. R. Civ. P. 26(b)(3)(B) exempts from discovery documents that contain "mental impressions, conclusions, opinions, or legal 18 EFTA01134338 theories of a party's attorney or other representative concerning the litigation." In criminal cases, the rules preclude discovery of "reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case," Fed. R. Crim. P. 16(a)(2), and "reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense," Fed. R. Crim. P. 16(b)(2)(A). The Supreme Court has recognized "a qualified privilege for certain materials prepared by an attorney `acting for his client in anticipation of litigation,'" United States v. Nobles, 422 U.S. 225, 237-38 (1975), quoting Hickman v. Taylor, 429 U.S. 495, 508 (1947), which applies in both civil and criminal litigation: Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case. Nobles, 422 U.S. at 238. In Hickman, the Court described the policy which dictates that opinion work product of attorneys be protected from disclosure. An attorney must "work for the advancement of justice while faithfully protecting the rightful interests of his clients," 329 U.S. at 510-11, and to perform his duties to his client, 19 EFTA01134339 "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Properly preparing a client's case demands that the lawyer "assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his legal strategy without undue and needless interference." Id. That work will be reflected "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . . "Id. If such materials were open to adverse parties "on mere demand," then "much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own." Id. Inevitably, "[i]nefficiency, unfairness and sharp practices would . . . develop in the giving of legal advice and the preparation of cases for trial." Id. Ultimately, [t]he effect on the legal profession would be demoralizing. And the interests of clients and the cause of justice would be poorly served." Id. For these reasons, attorney opinion work product is afforded the most comprehensive protection under the law. As this Court has recognized, "[o]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994). The district court, examining the work-product issue in isolation, concluded that the work-product privilege had been waived by sending the correspondence at 20 EFTA01134340 issue to the government. DEI88:6-7. However, in the context of plea/settlement negotiations, the question of work-product waiver must be assessed in conjunction with the constitutional right to effective assistance of counsel in the plea negotiation process and the protections of Rules 410 and 11(t). "[C]ommon law principles embodied in the . . . work product doctrine are to be applied in a common sense way in light of reason and experience as determined on a case-by- case basis." In re Six Grand Jury Witnesses, 979 F.3d 939, 944 (2d Cir. 1992). "The purposes of the work product privilege . . . are not inconsistent with selective disclosure — even in some circumstances to an adversary." Williams & Connolly v. S.E.C., 662 F.3d 1240, 1244 (D.C.Cir. 2011). Here, the government was unquestionably Epstein's adversary in the matter of the federal criminal investigation, but the disclosures were made in circumstances in which the attorneys were, in light of the protections afforded by Rules 410 and 11(0 and the customary practices of the defense and prosecution function, entitled to assume would remain confidential and would not be disclosed to third parties. See United States v. Deloitte UP, 610 F.3d 129, 141 (D.C.Cir. 2010)(court "examine[s] whether the disclosing party had a reasonable basis for believing that the recipient would keep the disclosed material confidential"). That expectation of confidentiality is bolstered by the utter dearth of precedent even remotely 21 EFTA01134341 suggesting that plea/settlement negotiation communications may be subject to discovery in civil or other litigation. Intervenors are aware of no case which has examined the work product privilege in the context of settlement/plea negotiations, Rules 410 and 11(0, and the Sixth Amendment right to the effective assistance of counsel during the plea negotiation process. Certainly none of the cases relied on by the district court did. Invoking a work-product waiver theory for communications made by defense attorneys to prosecutors during settlement/plea negotiations is flatly inconsistent with the policies and purposes underlying Rules 410 and 11(0 and, where the Sixth Amendment right to counsel has attached, would severely compromise counsel's ability to provide his client with the constitutionally-mandated effective assistance of counsel in the plea negotiation process. D. The District Court's Reasons for Finding that The Correspondence at Issue Did Not Fall Within Rule 410 Are Unpersuasive. The district court advanced two reasons for its conclusion that the correspondence at issue was not within the protections of Rule 410: (1) that the correspondence "arguably" constituted only "general discussions of leniency and statements made in the hope of avoiding a federal indictment," DE188:4, and (2) 22 EFTA01134342 that the communications resulted in Epstein's plea of guilty in state court, DE188:4-5. Both reasons are equally unpersuasive. As for the first reason, "[t]o determine whether a discussion should be characterized as a plea negotiation the trial court must `determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused's expectation was reasonable given the totality of the objective circumstances.'" United States v. Merrill, 685 F.3d 1002, 1013 (11th Cir. 2012), quoting United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978). See United States v. Knight, 867 F.2d 1285, 1288 (11th Cir. 1989)("suppressing the evidence of plea negotiations serves the policy of ensuring a free dialogue . . . when the accused and the government actually engage in plea negotiations"). Here, the best proof that the communications at issue were not merely "general discussions of leniency" is that they unquestionably resulted in an agreement which settled the federal criminal investigation of Epstein. This case is, therefore, dispositively different from the cases on which the district court relied. Merrill concerned statements made by the defendant himself in informal meetings with the prosecution prior to his scheduled grand jury testimony. See 685 F.3d at 1007-08. The only discussions of leniency involved the government's 23 EFTA01134343 generalized statement to the defendant that if he cooperated, the government would recommend leniency when he was sentenced. Id. Notably, the Court's ruling that the district court had not erred in refusing to suppress the defendant's statements rested on its conclusion that, given the circumstances, the defendant could not have reasonably believed that he was engaged in plea negotiations. Id. at 1013. The case does not stand for the general proposition advanced by the district court that settlement discussions in advance of the return of an indictment categorically do not fall within Rule 410. The other two cases relied on by the district court are equally inapposite. United States v. Adelman, 458 F.3d 791 (8th Cir. 2006), involved statements made by the defendant to federal prosecutors during meetings at which she was told, according to the government, that she was a "prime suspect" in criminal wrongdoing and that any statements she made could be used against her. Id. at 805. In United States v. Hare, 49 F.3d 447 (8th Cir. 1995), like the other two cases, the statements at issue were made by the defendant to prosecutors voluntarily and unconditionally in the unilateral hope of bettering his chances. Id. at 451. Here, unlike Merrill and the other cases on which the district court relied, the communications were made attorney-to-attorney under circumstances which 24 EFTA01134344 leave no room to doubt that the parties were engaged in serious negotiations to resolve the federal criminal investigation of Epstein. As for the district court's second reason, in the sole case the district court cited for the proposition that Epstein's plea of guilty in state court vitiated the protections of Rule 410, United States v. Paden, 908 F.2d 1229 (5th Cir. 1990), the defendant pled guilty tofederal charges pursuant to his plea agreement. That. Epstein entered into a plea in state court to state offenses is irrelevant to the Rule 410 analysis. The plain meaning of Rule 410(4) is that the defendant must enter a plea in federal court relating to thefederal offenses under investigation. If Congress had intended to include state court pleas in subsection (4), it would have expressly done so, as it did in subsection (3). There, Congress expressly provided for change-of-plea proceedings in federal court and "comparable state procedures." Fed. R. Evid. 410(3). Congress did not provide for state court pleas in subsection (4) of the rule, and "where Congress includes particular language in one section of a statute but omits it in another . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United States, 508 U.S. 200, 208 (1993). The plain meaning of Rule 410 is that any disclosure of plea negotiation statements must relate to the plea that was actually entered. Here, there was no 25 EFTA01134345 guilty plea to the federal offenses which the government was investigating and which were the subject of the settlement negotiation correspondence, in which Epstein's counsel addressed the reasons why Epstein should not be prosecuted federally. The substantive settlement discussions thus revolved around offenses to which Epstein did not ultimately plead guilty, but which are the very offenses for which plaintiffs now seek to have Epstein prosecuted. Under such circumstances, the protections of Rule 410 should be at their zenith, not their nadir. Under the district court's interpretation of Rule 410, the federal government or a state government could use all the statements made during the settlement negotiations to begin a new investigation of Epstein and then use the statements made by Epstein and his attorneys to prosecute him, even if all the statements related to allegations and potential charges that never resulted in a plea of guilty. Such an interpretation is wholly inconsistent with the purposes of Rule 410 to create a protected sphere within which defendants and their counsel can engage in frank, candid, and open plea/settlement discussions without fear that their statements will one day be used to the defendant's detriment if the negotiations do not produce a guilty plea to the charges under discussion. See Section , supra. II. THE COURT SHOULD RECOGNIZE THAT THERE IS A COMMON LAW PRIVILEGE FOR SETTLEMENT/PLEA NEGOTIATION COMMUNICATIONS IN CRIMINAL CASES. 26 EFTA01134346  In invoking Rule 501, intervenors are not asking for the recognition of a "new" privilege but instead for the de jure validation of a defacto privilege which has been effectively recognized — and relied upon — for decades by attorneys representing criminal defendants in both federal and state courts. Indeed, the Supreme Court has already recognized that Rule 410 "creat[es], in effect, a privilege of the defendant." United States v. Mezzanatto, 513 U.S. 196, 205 (1995).4 "The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges . `governed by the principles of common law as they may be interpreted . . . in the light of reason and experience.'" Trammel v. United States, 445 U.S. 40, 47 (1980), quoting Fed. R. Evid. 501. In enacting Rule 501, Congress rejected the proposed rule which limited federally-recognized privileges to a list of nine specific privileges, "manifest[ing] a affirmative intention not to freeze the law of privilege. Its purpose rather was to provide the courts with the flexibility to 4 In Mezzanatto, the defendant challenged the admissibility of plea negotiation statements he made to a prosecutor, who had conditioned his willingness to enter into discussions with the defendant on the defendant's agreement that any statements he made could be used to impeach him if the case went to trial and he took the stand. In concluding that the protections of Rules 410 and 11(e)(6)(the precursor to Rule 11(f)) could be waived by a defendant, the Court stated that, like other privileges, the privilege created by Rules 410 and 11(e)(6) could be waived by the defendant. 27 EFTA01134347 develop rules of privilege on a case-by-case basis . . . and to leave the door open to change." Trammel, 445 U.S. at 47 (internal quotation marks omitted). In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court explored the considerations which govern the recognition of privileges under Rule 501. Even though the public generally "has a right to every man's evidence," id at 9, exceptions to that general rule "may be justified . . . by a `public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.'" Id., quoting Trammel, 445 U.S. at 50. The question which must be answered is whether protecting the communications at issue "promotes sufficiently important interests to outweigh the need for probative evidence." Id., quoting Trammel, 445 U.S. at 51. In Jaffee, "reason and experience" convinced the Court that the psychotherapist-patient privilege did so: Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications may cause embarrassment and disgrace. For this reason, the mere possibility of disclosure may impede the development of the confidential relationship necessary for successful treatment. 518 U.S. at 10. The Court then examined "the likely evidentiary benefit that would result from the denial of the privilege," which it concluded was, in the psychotherapist-patient privilege context, "modest" because 28 EFTA01134348  [i]f the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the needfor treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access - for example, admissions against interest by a party — is unlikely to come into being. The unspoken `evidence' will therefore serve no greater truth-seeking function than if it had been spoken and privileged. Id. at 11-12 (emphasis added). Lastly, the Court looked to the consensus of the states that recognition of a psychotherapist-patient privilege was appropriate. As this Court has summarized the Jaffee factors: "1) the needs of the public good; 2) whether the privilege is rooted in the imperative need for confidence and trust, 3) the evidentiary benefit of the denial of the privilege, and 4) the consensus among the states." Atkins v. Christie, 488 F.3d 1324, 1328 (11th Cir. 2007). These factors all militate in favor of the recognition that there is a common law privilege for settlement/plea negotiation communications. A. The Public Has a Strong Interest in the Effective Functioning of the Plea/Settlement Negotiation Process. Recognition of the settlement/plea negotiation communication privilege would serve a critically important public interest in the effective functioning of the criminal justice system. The privilege encourages disposition of criminal cases by plea agreement, which is "an essential component of the administration of justice," which is "to be encouraged" because "[i]f every criminal charge were subjected to a full-scale trial, the states and the federal government would need to multiply by 29 EFTA01134349 many times the number of judges and court facilities." Santobello v. New York, 404 U.S. 257, 260 (1971). "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system" which "benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71 (1977). Those sentiments are just as true today, when the overwhelming majority of criminal cases are resolved through plea bargaining. Reason and experience counsel that our system of sentencing laws, ethical rules, federal court dockets, and constitutional considerations will not function if plea negotiation communications are not privileged. After all, "it is immediately apparent that no defendant or his counsel [would] pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt." Herman, 544 F.2d at 797. Similar considerations led the Sixth Circuit to recognize a settlement negotiation privilege under Rule 501 and to conclude that there is a strong public interest in the secrecy of statements made during settlement negotiations in civil cases: There exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations. This is true whether settlement negotiations are done under the auspices of the court or informally between the parties. The ability to negotiate and settle a case without trial fosters a more efficient, more cost-effective, and significantly less burdened judicial system. In order for settlement talks to be effective, parties must feel uninhibited in their communications. Parties are unlikely to propose the types of compromises that most effectively lead to settlement unless they are 30 EFTA01134350 confident that their proposed solutions cannot be used on cross-examination, under the ruse of "impeachment evidence," by some future third party. Parties must be able to abandon their adversarial tendencies to some degree. They must be able to make hypothetical concessions, offer creative quid pro quos, and generally make statements that would otherwise belie their litigation efforts. Without a privilege, parties would more often forego negotiations for the relative formality of a trial. Then, the entire negotiation process collapse upon itself, and the judicial efficiency it fosters is lost. 31 EFTA01134351 Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003).5 See Reichenbach v. Smith, 528 F.2d 1072, 1074 (11th Cir. 1976)("A primary reason for excluding evidence of compromise is to encourage non-litigious solutions to disputes. Admission of evidence of the settlement could work to discourage plaintiffs and defendants from settling with one or more of several codefendants. . . . With today's burgeoning dockets and the absolute impossibility of courts ever beginning to think that they might even be able to hear every case, the cause of justice is advanced by settlement compromises sheparded by competent counsel. . . ."). As the Goodyear Tire Court noted, "confidential settlement communications are a tradition in this country." 332 F.3d at 980.6 5 The Federal Circuit declined to recognize a settlement negotiation privilege in In re M