Case Document Entered on FLSD Docket Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 09-CIV MARRA/JOHNSON JANE DOE II Plaintiff JEFFREY EPSTEIN Defendant DEFENDANT EPSTEINS ANSWER AFFIRMATIVE DEFENSES TO PLAINTIFFS FIRST AMENDED COMPLAINT DE Defendant JEFFREY EPSTEIN hereinafter EPSTEIN by and through his undersigned attorneys files his Answer Affirmative Defenses to Plaintiff JANE DOE lls First Amended Complaint Defendant admits that Plaintiff has sued Defendant in this action Defendant denies the remainder of the allegations Deny As to the allegations in paragraph Defendant asserts his Fifth Amendment privilege against self-incrimination See Delisi Bankers Ins Company So.2d Fla th DCA 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 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 Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page Fed.Prac Proc Civ 3d Effect of Failure to Deny Privilege Against Self Incrimination court must treat the defendants claim of privilege as equivalent to a specific denial See also Fla.Jur.2d Evidence Defendants in civil actions a civil defendant who raises an affirmative defense is not precluded from asserting the privilege against self-incrimination because affirmative defenses do not constitute the kind of voluntary application for affirmative relief which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege As to the allegations is paragraph Defendant is without knowledge as to whether Ms DOE II is a natural person residing in Palm Beach County Florida and denied the same As to the remainder of the allegations Defendant realleges and adopts his response in paragraph above herein As to the allegations in paragraph Defendant asserts his Fifth Amendment privilege against self-incrimination See Delisi Bankers Ins Company So.2d Fla th DCA 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 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 Fed.Prac Proc Civ 3d Effect of Failure to Deny Privilege Against Self Incrimination court must treat the defendants claim of privilege as equivalent to a specific denial See also Fla.Jur.2d Evidence Defendants in civil actions a civil defendant who raises an affirmative defense is not precluded from asserting Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page the privilege against self-incrimination because affirmative defenses do not constitute the kind of voluntary application for affirmative relief which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege Admit As to the allegations set forth in paragraphs through Defendant asserts his Fifth Amendment privilege against self-incrimination See Delisi Bankers Ins Company So.2d Fla th DCA Malloy Hogan S.Ct the Fifth Amendments Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment i would be incongruous to have different standards 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 Fed.Prac Proc Civ 3d Effect of Failure to Deny Privilege Against Self-Incrimination court must treat the defendants claim of privilege as equivalent to a specific denial See also Fla.Jur.2d Evidence Defendants in civil actions a civil defendant who raises an affirmative defense is not precluded from asserting the privilege against self-incrimination because affirmative defenses do not constitute the kind of voluntary application for affirmative relief which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege Count I U.S.C al vs Defendant EPSTEIN As to the allegations of paragraph Defendant realleges and adopts his responses to paragraphs through of the First Amended Complaint set forth in paragraphs through above herein Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page4 As to the allegations of paragraph Defendant asserts his Fifth Amendment privilege against self-incrimination See Delisi Bankers Ins Company So.2d Fla th DCA 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 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 Fed.Prac Proc Civ 3d Effect of Failure to Deny Privilege Against Self Incrimination court must treat the defendants claim of privilege as equivalent to a specific denial See also Fla.Jur.2d Evidence Defendants in civil actions a civil defendant who raises an affirmative defense is not precluded from asserting the privilege against self-incrimination because affirmative defenses do not constitute the kind of voluntary application for affirmative relief which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege Count II U.S.C vs Defendant KELLEN Although Count II is not alleged against Defendant EPSTEIN as to the allegations of paragraph Defendant realleges and adopts his responses to paragraphs through of the First Amended Complaint set forth in paragraphs through above herein As to the allegations of paragraph Defendant asserts his Fifth Amendment privilege against self-incrimination See Delisi Bankers Ins Company So.2d Fla th DCA Malloy Hogan S.Ct the Fifth Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page 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 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 Fed.Prac Proc Civ 3d Effect of Failure to Deny Privilege Against Self Incrimination court must treat the defendants claim of privilege as equivalent to a specific denial See also Fla.Jur.2d Evidence Defendants in civil actions a civil defendant who raises an affirmative defense is not precluded from asserting the privilege against self-incrimination because affirmative defenses do not constitute the kind of voluntary application for affirmative relief which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege WHEREFORE Defendant requests that this Court deny all relief sought by Plaintiff Affirmative Defenses As to Plaintiffs claim Plaintiff actually consented to and was a willing participant in the acts alleged and therefore her claims are barred or her damages are required to be reduced accordingly As to the claim Plaintiff actually consented to and participated in conduct similar and/or identical to the acts alleged with other persons which were the sole or contributing cause of Plaintiffs alleged damages As to Plaintiffs claim Plaintiff impliedly consented to the acts alleged by not objecting and therefore her claims are barred or her damages are required to be reduced accordingly Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page As to Plaintiffs claim Defendant reasonably believed or was told that the Plaintiff had attained the age of years old at the time of the alleged acts As to Plaintiffs claim Plaintiffs claims are barred as she said she was years or older at the time As to Plaintiffs claim Plaintiffs alleged damages were caused in whole or part by events and/or circumstances completely unrelated to the incident alleged in the complaint Plaintiffs claims are barred by the applicable statute of limitations Plaintiff has failed to plead a cause of action as she does not and can not show a violation of a predicate act under the applicable version of U.S.C the version in effect prior to the amendment eff Jul As to Plaintiffs claim the version of U.S.C in effect at the time of the alleged conduct applies and thus the presumptive minimum damages amount should Plaintiff prove the elements of such claim is and not subject to any multiplier As to Plaintiffs claim Plaintiff is entitled to only a single recovery of her actual damages Should Plaintiff prove actual damages in an amount less than the applicable statutory minimum she is entitled to a single recovery of regardless of the number of acts Allowing a multiplication of the damages recoverable would be in violation of the prohibition against the recovery of duplicative damages Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page to Plaintiffs claim application of the amended version of U.S.C effective July would be in violation of the legal axiom against retroactive application of an amended statute and also in violation of such constitutional principles including but not limited to the Ex Post Facto Clause U.S Const Article I cl cl and procedural and substantive due process U.S Const th Amend th Amend The statute in effect during the time of the alleged conduct applies to Plaintiffs claim application of the amended version of U.S.C effective July is prohibited pursuant to the vagueness doctrine and the Rule of Lenity A criminal statute is required to give fair warning in language that the common world will understand of what the law intends to do if a certain line is passed To make the warning fair so far as possible the line should be clear United States Lanier U.S S.Ct L.Ed.2d quoting McBoyle United States U.S S.Ct L.Ed omission in original The three related manifestations of the fair warning requirement are the vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application the canon of strict construction of criminal statutes or rule of lenity ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page The applicable version of U.S.C creates a cause of action on behalf of a minor Plaintiff had attained the age of majority at the time of filing this action and accordingly her cause of action is barred 14.Application of the U.S.C as amended effective July is in violation of the constitutional principles of due process the Ex Post Facto clause and the Rule of Lenity in that in amending the term minor to person as to those who may bring a cause of action impermissibly and unconstitutionally broadened the scope of persons able to bring a claim U.S.C violates the Equal Protection Clause of the th Amendment under the U.S Constitution and thus Plaintiffs claim thereunder is barred U.S.C violates the constitutional guarantees of procedural and substantive due process Procedural due process guarantees that a person will not be deprived of life liberty or property without notice and opportunity to be heard Substantive due process protects fundamental rights Accordingly Plaintiffs cause of action thereunder is barred WHEREFORE Defendant requests that this Court deny the relief sought by Plaintiff By ROBERT RITTON JR ESQ Florida Bar rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com Certificate of Service Case Document Entered on FLSD Docket Page of Jane Doe II Epstein et al Page 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 that the foregoing document is being served this day on all counsel of record identified on the following service list in the manner ecified via transmission of Notices of Electronic Filing generated by CM/ECF on this day of fh Isidro Garcia Esq Garcia Law Firm P.A Datura Street Suite West Palm Beach FL isidrogarcia bellsouth.net Counsel for Plaintiff Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesq bellsouth.net Co-Counsel for Defendant Jeffrey Epstein Respectfully By ROBERT CRITTON JR ESQ Florida Bar rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Fax Co-counsel for Defendant Jeffrey Epstein
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