Case Document Entered on FLSD Docket Page of Page which in the interests of justice merit the entry of a stay of this civil action until the criminal matter in the th Judicial Circuit is closed in accordance with the United States Attorneys Office USAO Non-Prosecution Agreement NPA and until the NPA expires Moreover EPSTEIN was indicted by a grand jury in or around July See Exhibit A The Non-Prosecution Agreement is part of the record in connection with that indictment which is signed by the State Attorney of the th Judicial Circuit in and for Palm Beach County Florida SAO In fact the NPA acknowledges the investigation performed by the SAO Further the USAO was present at the Plea hearing whereby the NPA was made part of the record Thus there is no question that a parallel criminal matter exists in that the SAOs case remains open and the NP A lives along side it which places EPSTEIN under great scrutiny by the USAO The NPA actually places an affirmative duty upon EPSTEIN to undertake discussions with the SAO to ensure compliance with the NP A That check and balance therefore remains in the hands of the SAO which has a parallel criminal proceeding Here the threat of prosecution is real substantial and present should the USAO determine that EPSTEIN somehow violated the NP A As discussed below because the NP A fails to define what constitutes a breach the USAO has apparently taken it upon itself to determine whether a breach has occurred and whether to seek criminal prosecution In fact the USAO has already attempted to claim violations of the NP A due to among other things EPSTEIN defending the civil actions against him Clearly it is NOT simply EPSTEINs choice as to whether he violates the NPA that discretion apparently lies with the USAO For this reason alone a stay is required until the NPA expires The difference between this Motion and the prior motion to stay is solely due to the ripeness of the issues discussed herein Case Document Entered on FLSD Docket Page of Page II THENPA By its terms the NPA took effect on June and expires by those same terms in late so long as EPSTEIN complies with the terms and conditions violations of which remain undefined The NP A which remains under seal outlines various obligations on the part of EPSTEIN including but not limited to pleading guilty to the Indictment and Information before the th Judicial Circuit recommendations for his sentencing before the th Judicial Circuit waiver of challenges to the Information filed by the SAO waiver of right to appeal his conviction agreement not be afforded benefits for gain time and the agreement to not prosecute others listed thereon so long as EPSTEIN does not breach and fulfills the requirements of the NPA What the NP A does not outline or define is what constitutes a breach or what act or omission constitutes a breach thereof Therefore the USAO apparently believes it has the discretion to make that unwritten and undefined determination which places an unreasonable burden upon EPSTEIN in defending the civil claims in that he has no idea what the USAO will define as a breach in the event he does not assert his th Amendment Rights As an example the USAO has already claimed that EPSTEIN violated the NP A by investigating the Plaintiffs by and though his attorneys whom brought civil suits against him for purposes of defending those civil actions contesting damages in this action and in the other civil actions making statements to the press about this Plaintiff or other Plaintiffs by and though his attorneys and Case Document Entered on FLSD Docket Page of Page using the word jail instead of imprisonment in the plea agreement with SAs office See Exhibit Goldberger Affidavit EPSTEIN criminal counsel These allegations are silly unfounded and alleged violations which are not defined as violations under the NPA but arrived at by the USAO Thus EPSTEIN is left with Mortons Fork in his side the undesirable choice of taking the th Amendment and having a judgment summary or otherwise entered against him in the civil action or the undesirable choice of subjecting himself to discovery in the civil action before the NPA expires and thus face the possibility of criminal prosecution by the USAO based upon some illusory breach deemed by the USAO by way of information obtained through civil discovery proceedings This is inherently unfair the danger is clear and the playing field is not level in light of the NP A language or lack thereof As a result the threat of criminal prosecution against EPSTEIN by the USAO continues presently and through late I Justice Requires The Entry of A Stay Because Defendant Is Being Forced To Choose Between Waiving His th Amendment Privilege Or Risk Losing This Civil Case And Forfeiting Other Constitutional Guarantees Of Due Process And Effective Assistance Of Counsel Once the NP A expires EPSTEIN fully intends to testify to all relevant and non objectionable inquiries made to him in discovery be it a deposition in interrogatories or in production requests Emphasis Added However the current circumstances are such that by testifying or responding to discovery EPSTEIN will be required to waive his constitutional privileges thereby subjecting himself to criminal prosecution and scrutiny by the USAO as a Case Document Entered on FLSD Docket Page of Page result of matters alleged in this civil action and others before this Court and in the State of Florida th Judicial Circuit Court Palm Beach County The special circumstances of this action are such that a stay or continuance for a time certain is NOT prejudicial and is required to be entered so that EPSTEIN is not required to waive his Fifth Amendment right against self incrimination under the United States Constitution resulting in severe prejudice to EPSTEIN in pending criminal matters and EPSTEIN is not forced to choose between waiving his Fifth Amendment right against self-incrimination or losing the civil case Here in asserting his Fifth Amendment Privilege the Plaintiff is afforded an opportunity rarely given that is to put on only her evidence without any counterevidence from Defendant resulting in a judgment of liability against EPSTEIN This is inherently unfair and precisely the special circumstances where in the interests of justice a stay is required Ventura Brosky WL S.D Fla citing United States Lot Fox Grove F.3d th Cir In Ventura a stay was entered where a Defendant was confronted with issue of waiving his th Amendment Privilege or to loose a civil case by way of motion for summary judgment Id Here EPSTEIN is not requesting a mandatory stay EPSTEIN only asks that this court recognize that special circumstances exists in this matter and enter a stay in the interests of justice and only for a specified period of time i.e after the NPA expires See also Securities and Exchange Commission F.Supp S.D Fla Defendant was in precarious position while being subject to criminal investigation and reasoning that compelling Defendant to speak by ordering an accounting of alleged illicit funds would directly Case Document Entered on FLSD Docket Page of Page6 impinge his right against self-incrimination The court found it appropriate to grant the request for stay Emphasis Added Citing to U.S Lot Fox Grove supra the Southern District Court Florida Ventura Brosky WL S.D Fla stated The Eleventh Circuit has also created a test for these circumstances stating that where there exists a concurrent civil and criminal proceeding a court must stay a civil proceeding pending resolution of a related criminal prosecution when special circumstances so require in the interests of justice Bold emphasis added See also United States Kordel U.S S.Ct The Ventura Court went on to state that situations where a defendant in both criminal and civil proceedings must choose whether to waive his privilege against self incrimination or to lose the civil case in summary or default judgment proceedings have met this tests burden and warrant a stay Id The Ventura court granted the stay Here the th Judicial Circuit action lives along with the NP A In making a decision to enter such a stay the court may consider the following factors the interests of the Plaintiffs in proceeding expeditiously with litigation or any aspect of it and the potential prejudice of Plaintiff to the delay the burden which any particular aspect of the proceedings may impose on the defendant the convenience of the court in the management of its cases and the efficient use of judicial resources the interests of persons not parties to the civil litigation and the interest of the public in the pending civil and criminal litigation See U.S Pinnacle Quest International WL N.D Fla Case Document Entered on FLSD Docket Page of Page First applying the above factors the Plaintiff in the instant matter will not be prejudiced simply by claiming a delay in time Second the burden is far greater on EPSTEIN if he is forced to waive his th Amendment Privilege or remain silent and have a judgment entered against him or choose to testify and face criminal prosecution Third efficient use of judicial resources would be rendered upon a stay by way of preventing an appeal if such a stay is not entered The Court has broad discretion to enter such a stay Fourth the interests of the individuals outlined in the NPA will be served because EPSTEINs fulfillment of NPA alleged obligations is determinative upon whether the USAO prosecutes those individuals or whether the claims will be dropped upon the expiration of the NP A Finally the interest of the public in the pending civil and criminal cases will not be prejudiced as EPSTEIN is already serving his term whereby a plea was entered in the Judicial Circuit action a Application of the th Amendment Next the Fifth Amendment privilege against self-incrimination permits a person not to answer official questions put to him in any other proceeding civil or criminal formal or informal where the answers might incriminate him in future criminal proceedings Edwin Price F.2d th Cir citing Lefkowitz Turley U.S S.C See also Ohio Reiner U.S S.Ct The Fifth Amendment privilege is also available to those who claim innocence One of the Fifth Amendments basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances Malloy Hogan S.Ct the Fifth Amendments Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment it would be incongruous to have different standards Um m5 f-?a ƺ?I VL 4?u??icM P??t?h Z??a Gת?WW?m N?W N?"G kȣ?Ӱ?W c??Zc?1?uun?uW Ь6 i XK O?y1ԁ ca Tx è?D?lT QL?8?dt K?K?4Lz?گN?I?I 0A S?b u??A?H?W?ą d??j S?m?u Aq?Pa0 AA M?q _O?M??PM?Q ӵ۰?i m4 XKvB 1?q?ik?c銻??Lz b??ץ Bj I 9C?D Hr?8 G?L2C HW P?Yc NS?r 4?kZ 8ӈ?B 1ė??fD G0 A R?Ɏ a L:e?هPD a?E?A e?Va CcU p??q G??B rC A C?P Jbq Dx Dy FmG A õB CJ Dr?rǧ,z?Ʊq ڄ?_??lE!hCB!?B DC B?Q?8A A dsB ǢC?1 a d?iI I?dr Cc?4?aԱ??Q DJ1 A v?a b?A l6 1ęi!?t a A Ɏ?0?LA H?Q I??f 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a?i n?I??n RlQ MB??Q a nL?S ԷR?T?8O?AAP t?a sQ i?Մ?i 6ʄJ?j Z?erk?_eG?e??v6?첔 p?L??фGDtq 1?ѵa M??H?CH D4 up C-A?莈 I j?Z?t DD?M LPA 0A P3X?Xd i I??MXP?L A V?ĆF?_ WNL??k?L 0B GC 7Mwt a aa??j Bi a 0_ a zNʌ?Q OI?N GS 0B ɄU D??y o_MRPh0 ńE 0A ɀ?HФt iY TE UL A X??m b?KE?QDA??Y??0 9C?M A pD I A Ca DO xO?i?0?B DDCB FGGj i S??o A?z??ճ A fP Case Document Entered on FLSD Docket Page of Page8 determine the validity of a claim of privilege based on the same feared prosecution depending on whether the claim was asserted in state or federal court Kastigar U.S U.S S.Ct The Fifth Amendment privilege can be asserted in any proceeding civil or criminal administrative or judicial investigatory or adjudicatory and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used This Court has been zealous to safeguard the values which underlie the privilege Emphasis added The United States Supreme Court made it clear that the scope of the Fifth Amendment Privilege includes the circumstances as here the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect United States Hubbell U.S S.Ct see also Fisher United States U.S McCormick on Evidence Title Chap The Privilege Against Self-Incrimination th Ed The privilege against self-incrimination may be asserted during discovery when a litigant has reasonable grounds to believe that the response would furnish a link in the chain of evidence needed to prove a crime against a litigant A witness including a civil defendant is entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the answer to a question could be used in anyway to convict the witness of a crime or could aid in the development of other incriminating evidence that can be used at trial Id Pillsbury Company Conboy U.S S.Ct Certainly if the USAO decides to prosecute EPSTEIN for an alleged violation of the NP A it would undoubtedly be able to use information obtained during discovery against him or use that information to aid in the development of other evidence against him at a criminal trial Case Document Entered on FLSD Docket Page of Page9 The USAO is already claiming violations of the NP A based upon EPSTEIN defending the civil actions and at the same time while EPSTEIN asserts the th Amendment Imagine because that is all we can do based on the lack of wording in the NP A what violations the USAO will assert if EPSTEIN is forced to waive his th Amendment privilege to defend himself in this and the other civil actions The Fifth Amendment provides in relevant part that No person shall be compelled in any Criminal Case to be a witness against himself Hoffman United States U.S S.Ct citing Feldman United States U.S S.Ct L.Ed The Fifth Amendments privilege against self-incrimination is accorded liberal construction in favor of the right it was intended to secure The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of a crime Id at and In re Keller Financial Svcs of Fla Inc B.R M.D Fla The privilege not only extends to answers that would in themselves support a conviction under a criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime Id citing Blau United States U.S S.Ct The Fifth Amendment privilege against self-incrimination permits a person not to answer official questions put to him in any other proceeding civil or criminal formal or informal where the answers might incriminate him in future criminal proceedings Edwin Price F.2d at citing Lefkowitz Turley U.S S.C As EPSTEIN is here the claimant must be confronted by substantial and real and not merely trifling or imaginary hazards of incrimination See generally United States Apfelbaum Case Document Entered on FLSD Docket Page of Page U.S S.Ct L.Ed.2d See also United States Neff F.2d 9th Cir cert denied U.S S.Ct L.Ed.2d Information is protected by the privilege not only if it would support a criminal conviction but even if the responses would merely provide a lead or clue to evidence having a tendency to incriminate EPSTEIN falls under each of the above category of cases The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege also encompasses the circumstance where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect United States Hubbell U.S S.Ct see also Fisher United States U.S In explaining the application of the privilege the Supreme Court stated We have held that the act of production itself may implicitly communicate statements of fact By producing documents in compliance with a subpoena the witness would admit that the papers existed were in his possession or control and were authentic Moreover as was true in this case when the custodian of documents responds to a subpoena he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena The answers to those questions as well as the act of production itself may certainly communicate information about the existence custody and authenticity of the documents Whether the constitutional privilege protects the answers to such questions or protects the act of production itself is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating The issue presented in those cases was whether the act of producing subpoenaed documents not itself the making of a statement might nonetheless have some protected testimonial aspects The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact by producing documents in compliance with a subpoena the witness would admit that the papers existed were in his possession or control and were authentic United States Doe U.S at and S.Ct Fisher U.S at S.Ct id at S.Ct concurring opinions See Braswell United States U.S at S.Ct id at S.Ct dissenting opinion Thus the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts Case Document Entered on FLSD Docket Page of Page that imply assertions of fact An examination of the Courts application of these principles in other cases indicates the Courts recognition that in order to be testimonial an accuseds communication must itself explicitly or implicitly relate a factual assertion or disclose information Only then is a person compelled to be a witness against himself Doe United States U.S at S.Ct footnote omitted Finally the phrase in any criminal case in the text of the Fifth Amendment might have been read to limit its coverage to compelled testimony that is used against the defendant in the trial itself It has however long been settled that its protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence Thus a half century ago we held that a trial judge had erroneously rejected a defendants claim of privilege on the ground that his answer to the pending question would not itself constitute evidence of the charged offense As we explained The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime Hoffman United States U.S S.Ct L.Ed Compelled testimony that communicates information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory Doe United States U.S S.Ct L.Ed.2d Its the Fifth Amendments protection against the prosecutors use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case The privilege against self-incrimination may be asserted during discovery when a litigant has reasonable grounds to believe that the response would furnish a link in the chain of evidence needed to prove a crime against a litigant A witness including a civil defendant is entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the answer to a question could be used in anyway to convict the witness of a crime or could aid in the development of other incriminating evidence that can be used at trial Id Pillsbury Company Case Document Entered on FLSD Docket Page of Page Conboy U.S S.Ct See also Hubbell supra as to what is encompassed by the phrase in any criminal case contained in the Fifth Amendment As noted the Fifth Amendment privilege against self-incrimination is broad Hoffman In re Keller Financial Svcs supra To deny a witness the right to invoke the privilege the judge must be perfectly clear from a careful consideration of all the circumstances in the case that the witness is mistaken and that the answers cannot possibly have such tendency to incriminate lg at Recognizing the breadth and magnitude of this constitutional privilege the United States Supreme Court in discussing how a court is to analyze the application of the privilege stated It is for the court to say whether his silence is justified Rogers United States U.S S.Ct and to require him to answer if it clearly appears to the court that he is mistaken Temple Commonwealth Va However if the witness upon interposing his claim were required to prove the hazard in the sense in which a claim is usually required to be established in court he would be compelled to surrender the very protection which the privilege is designed to guarantee To sustain the privilege it need only be evident from the implications of the question in the setting in which it is asked that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence Hoffman supra at Hoffman and its progeny establish that in view of the liberal construction of the provision protecting against self-incrimination after a witness has asserted the privilege he should be compelled to provide the requested information only if it clearly appears to the court that the witness was mistaken in his invocation of the privilege Emphasis added In re Keller Financial Svcs supra at citing Hoffman at Case Document Entered on FLSD Docket Page of Page In the instant case the privilege applies as Defendant EPSTEIN has reasonable cause to apprehend danger from a direct answer The risk of incrimination resulting from being subject to discovery or to testify in his own defense while the NP A exists is substantial and real and not trifling or imaginary haphazards of communication See generally In re Keller Financial Svcs supra at Based on the nature of Plaintiffs claims along with the ongoing scrutiny of the USAO in the criminal matters EPSTEIN has reasonable grounds to believe that his responses to the discovery would furnish a link in the chain of evidence needed to prove a crime against him Finally in order to preserve the privilege the privilege must be asserted or one risks the loss or waiver of this liberty ensuring protection See generally U.S White 2d th Cir First it ignores the settled principle which requires a witness to assert his Fifth Amendment rights A witness who testifies at any proceeding instead of asserting his Fifth Amendment rights loses the privilege A civil deponent cannot choose to answer questions with the expectation of later asserting the Fifth Amendment Also applicable in upholding the assertion of the Fifth Amendment privilege is the guarantee of effective assistance of counsel by the Sixth Amendment of the U.S Constitution See Yarborough Gentry S.Ct U.S L.Ed.2d Sixth Amendment guarantees criminal defendants effective assistance of counsel on remand F.3d The United States Constitutional guarantees are applicable to the states through the Fourteenth Amendment Obviously EPSTEINs assertion of his constitutional privileges and protections is on the advice of counsel Again EPSTEIN continues to face criminal prosecution by the USAO until the expiration of the NP A under the constitutional guarantee of effective assistance of Case Document Entered on FLSD Docket Page of Page counsel he is entitled to follow the recommended advice of his criminal defense attorney See Goldberger Affidavit attached hereto EPSTEINs invocation of his constitutional protections of the Fifth Sixth and Fourteenth Amendments must be upheld for the reasons set forth herein otherwise such constitutional protections would be rendered meaningless Already and recently Defendant EPSTEIN in his Response and Objections to discovery attached hereto as Exhibit has been required to assert on advice of counsel his Fifth Amendment privilege against self-incrimination along with his constitutional rights afforded under the Sixth and Fourteenth Amendments of the United States Constitution Thus EPSTEINs entitlement to a stay is ripe for determination Based upon the foregoing a stay is warranted in this action as the Defendant is being forced to choose between the assertion of his Fifth Amendment right or losing this case by judgment summary or otherwise or waiver of his Amendment right and face potential criminal prosecution Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF I also certify tha the fmegoing document is being served this day on all counsel of record identified he fol Service List in the manner specified by CM/ECF on this day of j4-l l,jllJL Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Jack Alan Goldberger Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax Case Document Entered on FLSD Docket Page of Page Fax ssm sexabuseattorney.com ahorowitz sexabuseattorney.com Counsel for Plaintiff Jane Doe jagesg bellsouth.net Co-Counsel for Defendant Jeffrey Epstein By ROBER CRI ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Co-Counsel for Defendant Jeffrey Epstein
