Case Document Entered on FLSD Docket Page of JANE DOE NO vs JEFFREY EPSTEIN I JANE DOE NO vs JEFFREY EPSTEIN I JANE DOE NO vs JEFFREY EPSTEIN I JANE DOE NO vs JEFFREY EPSTEIN I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA r:rt o.c I JU I sr1:v1 So Kus MORE CASE NO Cl_f:R AR sr er CASE NO CASE NO CASE NO FILED UNDER SEAL EPSTEINS REPLY IN SUPPORT OF MOTION TO ST A This motion is filed under seal because the deferred-prosecution agreement between the United States Attorneys Office and Mr Epstein discussed herein contains a confidentiality clause A motion to seal has been filed contemporaneously Case Document Entered on FLSD Docket Page of The Pending Federal Criminal Action In a Florida state grand jury indicted Jeffrey Epstein on allegations similar to those in the instant actions Sterle of Florida Jeffrey Epstein Case No CF Fifteenth Judicial Circuit Palm Beach County the Florida Criminal Action Shortly thereafter the United States Attorneys Office for the Southern District of Florida the USAO began a federal grand-jury investigation into allegations arising out of the same incidents alleged in the instant actions Grand Jury No WPB United States District Court for the Southern District of Florida the Federal Criminal Action In September the USAO and Mr Epstein entered into a highly unusual and unprecedented deferred-prosecution agreement the Agreement in which the USAO agreed to defer not dismiss or close the Federal Criminal Action on the condition that Mr Epstein continue to comply with numerous obligations the first of which was pleading guilty to certain state charges in the Florida Criminal Action The Agreement itself uses the term deferred rather than 225dismissed or closed to describe the status of the Federal Criminal Action THEREFORE on the authority of Alexander Acosta United States Attorney for the Southern District of Florida prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida provided that Epstein abides by the following conditions and the requirements of this Agreement Agreement at By no stretch did the USAO finalize close complete dismiss or abandon the Federal Criminal Action Indeed as the lead federal prosecutor recently explained the USAO merely Since the filing of the motion to stay Mr Epstein has pied guilty and been sentenced in the Florida Criminal Action See Notice Concerning Motion to Stay Accordingly the Florida Criminal Action is no longer a basis for this stay Epste:n relies exclusively on the pending Federal Criminal Action for this motion and therefore here provides additional background information relating to that action At the USAOs request we wish to clarify a minor issue regarding the form of a citation in Epsteins initial memorandum supporting his motion to stay That memorandum cites to the Federal Criminal Action as In l"f Grand Jury No WPB rather than citing it simply as Grand Jury No WPB See Motion to Stay at Technically a citation to In re Grand Jury No WPB could be interpreted as referring to litigation arising from Ep1.teins motion to quash a subpoena previously issued by Grand Jury No WPB which subpoena according to the terms of the deferred-prosecution agreement between Epstein and the USAO described infra at the USAO is presently holding in abeyance Accordingly we hereby clarify that our citation on Page of our motion to tay denoted the grand-jury investigation itself not litigation arising from that grand-jury investigation Case Document Entered on FLSD Docket Page of agreed to defer federal prosecution in favor of prosecution by the State of Florida See In re Jane Doe Case No 08-80736-CIV-Marra/Johnson S.D Fla DE Deel of AUSA Villafana attached hereto as Exhibit A emphasis added Under the Agreement the USAO presently retains the continuing right to indict Mr Epstein or to unseal any already-existing federal charges that may already have been handed up by the federal grand jury and sealed should he breach any of its provisions Agreement at The period of 1he deferral continues until three months after Mr Epstein completes service of his sentence in the Florida Criminal Action Id Indeed the final three months of the Agreements term constitute an extended period during which the USAO expressly retains the ability to evaluate whether Epstein committed any breaches of his numerous obligations under the Agreement while he was serving his state sentence and if it so determines reserves the right to indict or unseal an existing indictment against Mr Epstein even after he has completed serving his entire state sentence The Agreement further provides that upon Epsteins execution of a plea agreement in the State Criminal Case the Federal Criminal Action will be suspended and all pending grand-jury subpoenas 267will be held in abeyance unless and until the defendant violates any term of this agreement Agreement at emphasis added The Agreement directs the USAO and Epstein to maintain their evidence specifically evidence requested by or directly related to the grand jury subpoenas that have been issued and to maintain such evidence inviolate Id emphasis added It also expressly provides that the grand-jury subpoenas continue to remain outstanding until the successful completion of the terms of this agreement Id emphasis added Finally the Agreement provides that the USAOs declination of prosecution for certain enumerated offenses and dismissal of any existing sealed charges will not occur until days following the completion of his state sentence If the United States Attorney should determine based on reliable evidence that during the period of the Agreement Epstein willfully violated any of the conditions of this Agreement then the United States Attorney may within ninety days following the expiration of the term of home confinement discussed below provide Epstein with timely notice specifying the condition of the Agreement that he has Case Document Entered on FLSD Docket Page of violated and shall initiate its prosecution on any offense within sixty days of sic giving notice of the violation Any notice provided to Epstein pursuant to this paragraph shall be provided within days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement After timely fulfilling all the terms and conditions of the Agreement no prosecution for the offenses set out on pages and of this Agreement nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorneys Office nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District and the charges against Epstein if any will be dismissed Agreement at Consistent with the Agreement and its position that the Federal Criminal Action continues to remain pending the USAO recently sent letters to attorneys for people that the USAO has designated as victims In those letters the USAO asked lf you do file a claim under S.C and Mr Epstein denies that your client is a victim of an enumerated offense please provide notice of that denial to the undersigned AUSA See Deel of AUSA Villafana Exhs at July The clear implication of the USAOs request by which the USAO appears to involve it,elf in the instant litigation despite advising the recipients that it cannot take part in or otherwise assist in civil litigation id is that the USAO believes that such denial might breach the Agreement Accordingly the Federal Criminal Action remains pending Discussion I Section Applies to Investigations Not Just Indictments While there is no unsealed indicted criminal case against Mr Epstein the governments criminal investigation against him remains open Section clearly applies to stay civil cases during the pendency not only of indicted criminal cases but also of yet-to-be-closed investigations The term c:riminal action is not expressly defined in It is defined however by a closely related statute Title U.S.C provides a civil remedy for forced labor and 267sex trafficking violations but stays such actions during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim A copy of is Case Document Entered on FLSD Docket Page of attached hereto as Exhibit In enacting Congress specifically intended that the term 267criminal action would be applied extremely broadly Accordingly Congress took pains to ensure that courts would give it the broadest possible construction and for that reason specified in the definition provision that criminal action also includes investigation U.S.C The only reported decision addressing this provision interpreted it according to its plain language See Ara Khan No CV WL E.D.N.Y June ordering all proceedings in this case stayed pending the conclusion of the governments criminal investigation of the defendants and of any resulting criminal prosecution emphasis added Given that the USAOs Agreement with Epstein indicates that the grand-jurys subpoenas remain 267outstanding Agreement at the subpo nas are 267held in abeyance id the subpoenas are not 267withdrawn id the parties must maintain their evidence id which would be entirely unnecessary if the investigation against Epstein were closed any existing charges will not be dismissed until after Epstein has timely fulfill ed all the terms and conditions of the A greement id at and prosecution in this District shall be deferred id but not closed or dismissed then 1he only reasonable conclusion is that the Federal Criminal Action remains pending The plaintiffs argue that a stay would be inconsistent with Mr Epsteins Agreement with the U.S Attorney which the plaintiffs claim is reproduced in the lead The ordinary meaning of the adjective 267pending is remaining undecided awaiting decision Blacks Law Dictionary 8th ed The United States Court of Appeals for the Eleventh Circuit routinely relies on Blacks Law Dictionar:1 for the definition of statutory terms including in criminal cases See e.g United States Young F.3d I Ith Cir definitions of criminal complaint and indictment United States Brown 3d I Ith Cir definition of knowingly in criminal statute A West law search revealed that in alone the Eleventh Circuit has already published eight opinions relying on Black Law Dictionary for definitions See also White Klitzkie F.3d 9th Cir relying on Blacks Law Dictwna1y in the context of a criminal case for the definition of pending as awaiting decision Swartz Meyers F.3d 3d Cir relying on Blacks Law Dictionary for the definition of pending expressly because 267"prnding is not defined in the statute Any common-sense reading of the Agreement ahd the USAOs recent sworn construction of it is consonant with the Federal Criminal Actions remaining undecided and awaiting decision See Unified Gov of Athens-Clarke County Athens Newspapers LLC No S07G S.E.2d Ga June reviewing a public-records request against Georgias 267pending investigation exception to its open-records law and holding that a seemingly inactive investigation which has not yet resulted in a prosecution logically remains undecided and is therefore pending until it is concluded and the file closed emphasis added Case Document Entered on FLSD Docket Page of prosecutors July letter to their counsel attached to Plaintiffs responses as Exhibit A Apparently on July the lead prosecutor sent a letter to the plaintiffs lawyer stating that ne condition to which Epstein has agreed is that each plaintiff will have the same rights to proceed under Section as she would have had if Mr Epstein had been tried federally and convicted of an enumerated offense See Response Memo at Ex A at emphasis added This argument warrants absolutely no consideration however since the plaintiffs have not pied any claims under U.S.C II Section Applies Even After a Plaintiff Turns Without citing to a single case the plaintiffs argue that does not apply to plaintiffs over the age of An examination of the legislative history and related statutes shows that this unsupported argument must be rejected The parallel s.tay provision in discussed supra at mandates without exception that any civil action brought under that section for violations of prohibiting transportation of minors for prostitution shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim lJ.S.C Whether the plaintiff has turned does not vitiate the efficacy of this mandatory stay An example illustrates why the stay provided in has the same broad scope as the stay provided in l59l As discussed above stays any civil suit for injury to a minor arising out of the same occurrence as a pending criminal action One type of civil suit falling within ambit is a suit seeking redress for a violation of U.S.C a Section a just like prohibits transportation of minors for prostitution The elements of both statutes are identical There would simply be no legitimate basis for Congress to differentiate between the consequences attached to violating these two sections Thus just as Congress mandated under that civil discovery shall be stayed when there is an ongoing federal investigation under even after the victim turns the identical treatment should apply under to civil actions brought for the identical violation of a Case Document Entered on FLSD Docket Page of Logic compels a rule requiring continued application of the stay to a putative victim who has since turned Consider again the example of a Assume that the USAO is investigating a a violator with two alleged victims one who is now and one who has turned Assume further that both decide to sue the alleged offender while the USAO is still in the process of conducting its criminal investigation Why would Congress prohibit the defendant from conducting civil discovery in the 17-year-olds lawsuit but permit him to conduct full discovery in the 19-year-old lawsuit including taking the depositions of both the and the 17-year-old the federal investigating agents and all the grand-jury witnesses This could not have been Congress intent The legislative history to a statute resembling is also instructive When Congress enacted S.C it provided a civil remedy to any minor victim of enumerated federal sex offenses See Child Abuse Victims Rights Act of Pub No Stat In Congress amended the statute to clarify that the civil cause of action was available not just while the victim was a minor but even after she or he turned See Pub Stat A amending to permit suit by adults who were victims of enumerated federal offenses when they were minors by deleting Any minor who is a victim and adding Any person who while a minor was a victim Meanwhile the stay provisions of remained unchanged There is no reason to think that Congress would afford prosecutors protection for their investigations while the victims were minors but completely eliminate those protections the moment one of the victims turned The District Court for the Northern District of Florida confirmed this position and specifically rejected the plaintiffs contrary argument See Doe Francis No CV WL at N.D Fla The plaintiffs there argued that the stay should be lifted due to the fact that the minor Plaintiffs have now reached the age of majority during the pendency of the state criminal case Id The court found this argument unavailing given the victims minor status at the time of the events giving rise to the underlying claims Id Interestingly the arguments made by Jane Doe Nos in their oppositions to Epsteins motion to stay presently Case Document Entered on FLSD Docket Page of pending before this Court are literally lifted from the plaintiffs brief submitted to and rejected by the Northern District of New York in Francis The court specifically held that because the victims were minors at the time of the Defendants actions alleged in both the civil and criminal cases applies Id emphasis added The United States Department of Justice has itself emphatically embraced the interpretation of as applying to stay all civil actions relating to sex offenses against minors pending the completion of a parallel criminal action without regard to whether the plaintiff has turned during her civil lawsuit The subsection should stay all pending civil actions in the wake of a criminal prosecution Notably in the context of USC civil remedy for personal injuries all civil actions are stayed pending the completion of a criminal action See also USC H.R Rep Il Cong 1st Sess reprinted at WL at agency view by the Department of Justice on bill later codified at U.S.C The Department specifically argued to Congress in the clearest terms We believe that prosecutions should take priority over civil redress and that prosecutions should be complete prior to going forward with civil suits Id at emphasis added Nowhere did the Department remotely suggest as the plaintiffs have implied that pending prosecutions warrant less protection i.e should be hindered simply because a particular civil plaintiff happens to reach his or her 18th birthday Ill A Stay is Mandatory Despite Resulting Delay to Civil Lawsuits Inherent in any stay is delay to the progress discovery trial appeal of all related civil lawsuits Congress recognized this in enacting the stay provision which necessarily prioritized the interests of completing a criminal investigation and prosecution over the interests of a particular plaintiff in seeking personal pecuniary damages Based on this reasoning the Francis Compa Doe Frwcis Case No N.D Fla Memorandum in Support of Plaintiffs Motion to Reconsider Plaintiffs Motion to Lift Stay and for Status Conference DE available on PACER with Plaintiff Memorandum of Law in Response to Defendants Motion to Stay filed in Case Nos Doe No DE Doe No DE Doe No DE and Doe No DE Case Document Entered on FLSD Docket Page of court specifically refused to provide any relief to plaintiffs simply because the state criminal matter is not progressing as fast as they would hope WL at The court made this determination despite the plaintiffs complaints about the frustrating delay and that the state criminal case has languished for almost two years with no end in sight finding that this is a matter to be addressed in state criminal court Id Accordingly the anticipated delay in this case attendant to th term of the deferred-prosecution agreement does not change the clear command of According to their own pleadings the plaintiffs waited between three and six years before filing these lawsuits and so cannot rightfully claim prejudice from additional temporary delay IV Section Aside a Discretionary Stay is Warranted Even arguendo were this Court not to apply the mandate of a discretionary stay should still be entered during the pendency of the Federal Criminal Action SEC Healthsouth Corp Supp 2d N.D Ala No question exists that this court has the power to stay a civil proceeding due to an active parallel criminal investigation Other federal statutes support such a stay particularly when the criminal action may be adversely affected by the civil litigation For example under U.S.C the court shall stay any action commenced against the United States if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or prosecution of a related criminal case Allowing these lawsuits to progress while Epstein remains subject to the Federal Criminal Action will prejudice him irrevocably and irreparably As provided below there are several adverse effects to allowing the civil litigation to proceed while the Federal Criminal Action remains pending ln these lawsuits Epstein has a right to defend himself In the Federal Criminal Action Epstein has a right against self-incrimination Without a stay Epstein will be immediately forced to abandon one of these rights Jane Does No and No allege that their claims arose in or about Jane Does No and No allege that their claims arose or about Complaints Case Document Entered on FLSD Docket Page of Should he choose his Fifth Amendment rights he will expose himself to an adverse inference at the summary-judgment stage and at trial See generally Wehling Columbia Broad Sys 2d 5th Cir observing that invocation of the privilege would be subject to the drawing of an adverse inference by the trier of fact On the other hand should Epstein choose his right to defend himself in these lawsuits the USAO will be able tc use his responses at every stage of the discovery and trial process e.g his Answer responses to document requests responses to requests for admissions sworn answers to interrogatories answers to deposition questions and trial testimony to his detriment in the Ft.:ideral Criminal Acti.on In these lawsuits even before civil discovery begins under the Initial Disclosures required by Fed Civ and S.D Fla Local Rule Epstein must disclose the identities of all the witnesses he would call in his defense to the Federal Criminal Action Rule a A i copies of all documents he may use to support his defenses Rule a A ii as well as the identity of any expert witness he may use at trial along with mandatory disclosure of a written report containing a complete statement of all opinions the expert will express and the basis and reasons for them Rule a A and i In contrast in the pending Federal Criminal Action which is governed exclusively by the Federal Rules of Criminal Procedure the USAO would not be entitled to compel pre-trial production of any of this information See Fed Cr A and United States Argomaniz F.2d 11th Cir explaining act-of-production privilege Thus absent a stay of this civil action the USAO would receive fundamentally unfair access to defense information and highly prejudicial advance insight into criminal defense The privilege applies in instances where the witness has reasonable cause to apprehend danger of criminal liability Hoffman United States U.S This could give the USAO a tremendous advantage in prosecuting Epstein in the Federal Criminal Action See Comment Using Equitable Powers to Coordinate Parallel Civil and Criminal Actions Harv Rev I observing that 267the prosecutor may have access to detailed civil depositions of the accused witnesses while the rules of criminal procedure bar the accused from deposing the prosecutors witnesses Case Document Entered on FLSD Docket Page of strategy See Comment Harv Rev at To the extent that a prosecutor acquires evidence that was elicited from the accused in a parallel civil proceeding the criminal process becomes less adversarial Without a stay in place discovery will proceed including against third parties Mr Epstein will have no alternative but to issue subpoenas seeking evidence from state and federal law-enforcement officers For example Epstein is clearly entitled to discover evidence of prior statements including inconsistent statements given by witnesses whom law-enforcement has previously interviewed See e.g Cox Treadway F.3d 6th Cir holding that district court properly admitted testimony of prosecutor about prior inconsistent statements that witness made to the prosecutor Likewise Epstein may be entitled to discovery of relevant evidence that is in the present possession of the grand jury or other law-enforcement agencies See e.g Simpson Hines Supp E.D Tex The grand jury has concluded its deliberations The need for secrecy of these specific tapes no longer outweighs other concerns Golden Quality Ice Cream Co Inc Deerfield Specialty Papers Inc F.R.D E.D Pa Where as here the grand jury has completed its work and all that is sought are those documents turned over to the grand jury by the corporations which are defendants in the civil case the considerations militating against disclosure are beside the point citing Douglas Oil Co Calif Petrol Stops Nw U.S In response to such third-party subpoenas to law-enforcement witnesses we anticipate that it will be the government not Mr Epstein who will object to discovery in these civil cases until the final conclusion of the Federal Criminal Action Conclusion Because thes lawsuits arise from the same allegations as the Federal Criminal Action this Court should stay these cases until that criminal action is no longer pending Case Document Entered on FLSD Docket Page of By Respectfully submitted LEWIS TEIN P.L Grand Avenue Suite Coconut Grove Florida Tel Fax 1/Jil GUY A LEWIS Fla Bar No lewis lewistein.com MICHAEL TEIN Fla Bar No tein lewistein.com ATTERBURY GOLDBERGER WEISS P.A Australian A venue South Suite West Palm Beach Florida Tel Fax By Jack A Goldberger Fla Bar No jgoldberger agwpa.com Attorneys.for Defendant Jeffrey Epstein CERTiliICATE OF COMPLIANCE WITH LOCAL RULE While defense counsel admittedly did not confer with plaintiffs counsel prior to filing the motion to stay it was by no means in willful disregard of the Local Rule Shortly after the filing of the motion and before plaintiffs filed their response memoranda suggesting that no conference had taken place the parties did confer in a good-faith and specific attempt to resolve the motion and were unable to do so because plaintiffs counsel would not agree to a stay Accordingly the brief delay in conducting the Rule conference did not prejudice the plaintiffs at all or n:sult in unnecessary judicial intervention It is perhaps worth noting that contrary to their Rule certificate plaintiffs did not confer prior to filing their motion to extend time to file their response memoranda which extension defendant did not oppose anyway including on the basis of failure to comply with Rule Further information on the reasons the Rule conference for the instant motion to stay was conducted after filing the motion to stay will be provided to the Court upon its request preferably ex parte in order to avoid disclosure of privileged information The defendant respectfully requests the opportunity to make such an ex parte disclosure in the event that the Court considers denying the motion under Local Rule In any event we apologize to the Court for non-compliance with the pre-filing requirement of the Rule would have conferred even sooner had plaintiffs pointed the issue out immediately upon receipt of our motion did confer with plaintiffs counsel prior to filing the motion to seal this reply and commit to precise compliance with the Rule for the remaind of i ation erger Mic ae Tem Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was served on July by U.S mail on all counsel named on the service list Jeffrey Herman Esq Stuart Mermelstein Esq Adam Horowitz Esq Herman Mermelstein P.A Biscayne Boulevard Suite Miami Florida Michael Tein SERVICE LIST
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