Case Document Entered on FLSD Docket Page of Supporting Memorandum of Law Principles of Statutory Interpretation It is well settled that in interpreting a statute the courts inquiry begins with the plain and unan1biguous language of the statutory text CBS Inc Prime Time Venture F.3d th Cir U.S Castroneves WL S.D Fla citing Reeves Astrue F.3d th Cir and Smith Husband F.Supp.2d at When interpreting a statute a courts inquiry begins with the text The Court must first look to the plain meaning of the words and scrutinize the statutes language structure and purpose Id In addition in construing a statute a court is to presume that the legislature said what it means and means what it said and not add language or give some absurd or strained interpretation As stated in CBS Inc supra at Those who ask courts to give effect to perceived legislative intent by interpreting statutory language contrary to its plain and unambiguous meaning are in effect asking courts to alter that language and ourts have no authority to alter statutory language We cannot add to the terms of the provision what Congress left out Merritt F.3d at See also Dodd U.S S.Ct Am.Jur.2d Statutes Title of the U.S.C is entitled Crimes and Criminal Procedure is contained in Part I Crimes Chap Sexual Exploitation and Other Abuse of Children U.S.C is entitled Civil remedy for personal injuries and provides The above quoted version of U.S.C was the same beginning in until amended in effective July Case Document Entered on FLSD Docket Page of a Any minor who is a victim of a violation of section or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the snit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability not later than three years after the disability See endnote hereto for statutory text as amended in effective July Prior to the amendments the version of the statute quoted above was in effect beginning in All of Plaintiffs allegations of abuse occurred between January and May par well prior to U.S.C being amended Motion to Dismiss PlaintifPs reliance on the amended version of U.S.C such reliance is improper The version of Defendants position that U.S.C in effect prior to the amendments applies to this action and therefore Count Six is required to be dismissed as it relies on a predicate act that was not in effect at the time of the alleged conduct Plaintiff does not specifically allege in her Complaint on which version of U.S.C she is relying However in Count Six of her Complaint she alleges that Defendant knowingly engaged in a child exploitation enterprise as defined in U.S.C in violation of U.S.C is one of the Points and are addressed together as the legal arguments overlap In other actions filed against Defendant Defendant has previously asserted the position that U.S.C creates a single cause of action on behalf of a plaintiff against a defendant as opposed to multiple causes of action on a per violation basis or as opposed to an allowance of a multiplication of the statutory presumptive minimum damages or actual damages EPSTEIN asserts his position regarding the single recovery of damages in order to properly preserve all issues pertaining to the proper application of for appeal EPSTEIN will fully honor his obligations as set forth in the Non-Prosecution Agreement with the United States Attorneys Office principally as related to the claims made in this case by Jane Doe the obligations as set forth in paragraph of that Agreement In particular EPSTEIN will not contest the allegation that he committed at least one predicate offense as alleged by Jane Doe Case Document Entered on FLSD Docket Page of specified predicate acts under U.S.C However subsection of was not added to the statute until Thus to the extent that Plaintiff is relying on the amended version of U.S.C such reliance is improper and Count Six is required to be dismissed as it relies on a statutory predicate act that did not exist at the time of the alleged conduct According to Plaintiffs allegations the alleged conduct of EPSTEIN directed to Plaintiff occurred beginning in January until approximately May In Count VI in attempting to assert a claim pursuant to U.S.C Plaintiff is relying on subsection and of the criminal statute U.S.C as the requisite predicate act Subsection of was not even in existence at the time of the alleged conduct Subsection was enacted in effective July See Amendments Pub.L added subsec U.S.C.A As discussed more fully below herein reliance on subsection violates the well entrenched constitutional principles against retroactivity and thus Count VI is required to be dismissed The statute in effect during the time the alleged conduct occurred is U.S.C the version in effect prior to the amendment eff Jul quoted above and having an effective date of through July See endnote hereto Plaintiffs Complaint alleges that Defendants conduct occurred during the time period from the age of January until approximately May Complaint iil Thus the version in effect in of U.S.C applies Case Document Entered on FLSD Docket Page of It is an axiom of law that retroactivity is not favored in the law Bowen U.S at S.Ct at As eloquently stated in Landgraf US Film Products S.Ct U.S the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly settled expectations should not be lightly disrupted_FNI For that reason the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal Kaiser U.S at S.Ct at SCALIA concurring In a free dynamic society creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions FN18 See General Motors Corp Romein U.S S.Ct L.Ed.2d Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation because it can deprive citizens of legitimate expectations and upset settled transactions Further citations omitted It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.FN Article I cl I prohibits States from passing another type of retroactive legislation laws impairing the Obligation of Contracts The Fifth Amendments Takings Clause prevents the Legislature and other government actors from depriving private persons of vested property rights except for a public use and upon payment of just compensation The prohibitions on Bills of Attainder in Art I I prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct See e.g United States Brown U.S S.Ct L.Ed.2d The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation a justification sufficient to validate a statutes prospective application under the Clause may not suffice to warrant its retroactive application Usery Turner Elkhorn Mining Co U.S I S.Ct L.Ed.2d FN19 Article I contains two Ex Post Facto Clauses one directed to Congress cl the other to the States JO cl I We have construed the Clauses as applicable only to penal legislation See Calder Bull Dall I L.Ed opinion of Chase These provisions demonstrate that retroactive statutes raise particular concerns The Legislatures unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals As Justice Marshall observed in his opinion for the Court in Weaver Graham U.S IOI S.Ct L.Ed.2d Case Document Entered on FLSD Docket Page of the Ex Post Facto Clause not only ensures that individuals have fair warning about the effect of criminal statutes but also restricts governmental power by restraining arbitrary and potentially vindictive legislation Id at IO S.Ct at citations omitted FN FN20 See Richmond A Croson Co U.S S.Ct L.Ed.2d Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens It is the judicial system rather than the legislative process that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed STEVENS concurring in part and concurring in judgment James United States U.S S.Ct L.Ed.2d retroactive punitive measures may reflect a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons These well entrenched constitutional protections and presumptions against retroactive application of legislation establish that U.S.C in effect at the time of the alleged conduct applies to the instant action and not the amended version Not only is there no clear express intent stating that the statute is to apply retroactively but applying the current version of the statute as amended in would be in clear violation of the Ex Post Facto Clause of the United States Constitution as it would be applied to events occurring before its enactment and would increase the penalty or punishment for the alleged crime U.S Const Art cl cl U.S Seigel F.3d th Cir U.S Edwards F.3d 3d Cir and generally Calder Bull U.S L.Ed WL Calder The United States Constitution provides that no Bill of Attainder or ex post facto Law shall be passed by Congress U.S Const art I cl A law violates the Ex Post Facto Clause if it applies to events occurring before its enactment and disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime Lynce Mathis U.S S.Ct L.Ed.2d quoting Weaver Graham U.S S.Ct L.Ed.2d U.S Siegel,153 F.3d th Cir Case Document Entered on FLSD Docket Page of The statute as amended in contains no language stating that the application is to be retroactive Thus there is no manifest intent that the statute is to apply retroactively and accordingly the statute in effect during the time of the alleged conduct is to apply Landgraf USI Film Products supra at A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date This statute was enacted as part of the Federal Criminal Statutes targeting sexual predators and sex crimes against children H.R Child Protection and Sexual Predator Pnnishment Act of House Report No U.S.C.A.N Quoting from the Background and Need For Legislation portion of the House Report No H.R of which U.S.C is included is described as the most comprehensive package of new crimes and increased penalties ever developed in response to crimes against children particularly assaults facilitated by computers Further showing that was enacted as a criminal penalty or punishment Title II Punishing Sexual Predators Sec from House Report No specifically includes reference to the remedy created under as an additional means of punishing sexual predators along with other penalties and punishments Senatorial Comments in amending in confirm that the creation of the presumptive minimum damage amount is meant as an additional penalty against those who sexually exploit or abuse children WL Cong Rec Senator Kerry refers to the statutorily imposed damage amount as penalties Id The cases of U.S Siegel supra I th Cir and U.S Edwards supra 3d Cir also support Defendants position that application of the current version of Case Document Entered on FLSD Docket Page of U.S.C would be in clear violation of the Ex Post Facto Clause In Siegel the Eleventh Circuit found that the Ex Post Facto Clause barred application of the Mandatory Victim Restitution Act of MYRA to the defendant whose criminal conduct occurred before the effective date of the statute U.S.C A even though the guilty plea and sentencing proceeding occurred after the effective date of the statute On July the defendant Siegel pleaded guilty to various charges under U.S.C and a A conspiracy to commit mail and wire fraud bank fraud and laundering of money instruments and money laundering He was sentenced on March As part of his sentence Siegel was ordered to pay in restitution under the MYRA which became effective on April Pub.L No Stat The amendments to MYRA required that the district court must order restitution in the full amount of the victims loss without consideration of the defendants ability to pay Prior to the enactment of the MYRA and under the former U.S.C a of the Victim and Witness Protection Act of VWPA Pub.I No Stat the court was required to consider among other factors the defendants ability to pay in determining the amount ofrestitution When the MYRA was enacted in Congress stated that the amendments to the VWP A shall to the extent constitutionally permissible be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act Apr Siegel supra at The alleged crimes occurred between February to May The Court agreed with the defendants position that MYRA should not be applied in reviewing the validity of the courts restitution order Case Document Entered on FLSD Docket Page of because to do so would violate the Ex Post Facto Clause of the United States Constitution See U.S Const art I cl The Ex Post Facto aualysis made by the Eleventh Circuit in Siegel is applicable to this action In resolving the issue in favor of the defendaut the Court first considered whether a restitution order is a punishment Id at In determining that restitution was a punishment the Court noted that a of Title expressly describes restitution as a penalty In addition the Court also noted that although not in the context of an ex post facto determination restitution is a criminal penalty meant to have strong deterrent and rehabilitative effect United States Twitty F.3d 11th Second the Court considered whether the imposition of restitution under the MYRA is au increased penalty as prohibited by the Ex Post Facto Clause Id at In determining that the application of the MYRA would indeed run afoul of the Constitutions Ex Post Facto Clause the Court agreed with the majority of the Circuits that restitution under the MYRA was au increased penalty The effect of the MYRA can be detrimental to a defendant Previously after considering the defendants financial condition the court had the discretion to order restitution in au amount less thau the loss sustained by the victim Under the MYRA however the court must order restitution to each victim in the full amount Id at See also U.S Edwards F.2d rd Circuit The Eleventh Circuit in holding that the MYRA caunot be applied to a person whose criminal conduct occurred prior to April was persuaded by the majority of districts on this issue Restitution is a criminal penalty carrying with it characteristics of criminal punishment Siegel supra at The Eleventh Circuit is in agreement with the Second Third Eighth Ninth aud D.C Circuits See U.S Futrell F.3d th Cir Case Document Entered on FLSD Docket Page of As discussed above U.S.C was enacted as part of the criminal statutory scheme to punish and penalize those who sexually exploit and abuse minors and thus the Ex Post Fact Clause prohibits a retroactive application of the amended version Notwithstanding the above legal analysis in the recent case of Individual Known to Defendant As 08MIST096.JPG and 08mist067.jpg Falso WL N.D N.Y Dec United States District Court for the Northern District of New York addressed the issue of whether is a civil or criminal statute for purposes of the constitutional prohibition against double jeopardy The New York Court stated that looking to the plain language of a it is clear that the statutory intent was to provide a civil remedy This is exemplified by the title and the fact that the statute aims to provide compensation to individuals who suffered personal injury as a result of criminal conduct against them The New York Court in analyzing whether violated the Constitutional prohibition against double jeopardy concluded that although the behavior to which is criminal it did not find that the primary aim was retribution and deterrence The statute serves civil goals The primary aim is the compensation for personal injuries sustained as a result of criminal conduct Therefore because Jane Doe has invoked the provisions of the criminal Non Prosecution Agreement NP A between EPSTEIN and USAO see paragraphs and of complaint plaintiff cannot avoid the full protection of the rule of lenity and due process to which EPSTEIN is entitled in the context of these unique factual circumstances Although there does not exist a11y definitive ruling of whether the damages awarded under are meant as criminal punishment or a civil damages award Case Document Entered on FLSD Docket Page of Defendant is still entitled to a determination as a matter of law that the statute in effect at the time of the alleged criminal conduct applies As explained by the Landgraf court supra at and at When a case implicates a federal statute enacted after the events in suit the courts first task is to determine whether Congress has expressly prescribed the statutes proper reach If Congress has done so of course there is no need to resort to judicial default rules When however the statute contains no such express command the court must determine whether the new statute would have retroactive effect i.e whether it would impair rights a party possessed when he acted increase a partys liability for past conduct or impose new duties with respect to transactions already completed If the statute would operate retroactively our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result Here there is no clear expression of intent regarding the Acts application to conduct occurring well before its enactment See discussion of House Bill Reports and Congressional background above herein As stated in Landgraf the extent of a partys liability in the civil context as well as the criminal is an important legal consequence that cannot be ignored Courts have consistently refused to apply a statute which substantially increases a partys liability to conduct occurring before the statutes enactment Landgraf supra at Even if plaintiff were to argue that retroactive application of the new statute would vindicate its purpose more fully even that consideration is not enough to rebut the presumption against retroactivity Id at The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice and accords with long held and widely shared expectations about the usual operation of legislation Id Thus Count Six should be dismissed In Landgraf the United States Supreme Court affirmed the judgment of the Court of Appeals and refused to apply new provisions of the Civil Rights Act of to conduct occurring before the effective date of the Act The Court determined that statutory text in question was subject to the presumption against statutory retroactivity Case Document Entered on FLSD Docket Page of Motion For More Definite Statement and To Strike Rule and fl F.R.C.P As noted above Plaintiff alleges that she was year old high school student as of January and that the alleged conduct involving EPSTEIN occurred between approximately January and May Thus Plaintiff had to be no longer a minor by January of Under the principles of statutory construction the language of a is clear Any minor who is a victim of a violation of section of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in valne As Plaintiffs date of birth is significant to her claim she should be required to more definitely state her date of birth so that Defendant and this Court are able to determine precisely when she reached the age of majority The age of majority under both federal and state law is years old See U.S.C defining a minor as any person under the age of eighteen years and Definitions Fla Stat defining minor to include any person who has not attained the age of years To the extent that Plaintiff is relying on any alleged conduct that occurred after her birthday as an element of her claim such allegations should be stricken as immaterial and she should be required to more definitely state the dates of the alleged conduct See Rule Defendant also seeks to strike and of Plaintiffs Complaint as immaterial and impertinent None of the allegations in those paragraphs specifically pertain to the Plaintiff Not until does Plaintiff assert Case Document Entered on FLSD Docket Page of allegations pertaining to her and the conduct of Defendant directly involving her What EPSTErN may or may not have allegedly done with respect to other alleged girls does not effect Plaintiffs claim brought pursuant to The allegations in are not related to the elements of Plaintiffs claim and thus are required to be stricken Conclusion Pursuant to the above Count Six is required to be dismissed In addition Plaintiff should be required to more definitely state her date of birth and any conduct occurring after her th birthday should be stricken and of the Complaint should also be stricken WHEREFORE Defendant requests that this Court dismiss Count Six against him and further grant his Motion for More Definite Statement and to Strike Isl Robert Critton Robert Critton Esq Attorney for Defendant Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CMIECF I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this th day of April Robert Josefsberg Esq Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Fax rjosefsberg podhurst.com kezell podhurst.com Counsel.for Plaintiff Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesg bellsouth.net Counsel for Defendant Jeffrey Epstein Respectfully submitted Case Document Entered on FLSD Docket Page of By Isl Robert Critton ROBERT CRITTON JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Banyan Blvd Suite West Palm Beach FL Phone Fax Counsel for Defendant ffrey Epstein Case Document Entered on FLSD Docket Page of USCA 19-July PART CRIMES CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a Any minor who is a victim of a violation of section lA or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability not later than three years after the disability CREDIT Added Pub.L Title I l0l Title VII a Oct Stat and amended Pub.L Title I l0l Title VII a Oct Stat Pub.L Title VI Oct Stat U.S.C as amended Effective July PART CRIMES CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a In general.--Any person who while a minor was a victim of a violation of section or of this title and who suffers personal injury as a result of such violation regardless of whether the injury occurred while such person was a minor may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit including a reasonable attorneys fee Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Case Document Entered on FLSD Docket Page of Statute of limitations.--Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability not later than three years after the disability CREDIT Added Pub.L Title I l0l Title VII a Oct Stat and amended Pub.L Title I l0l Title VII a Oct Stat Pub.L Title VI Oct Stat Pub.L Title VII July Stat
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