S-5T1AT-4ES DI-7STRICT COURT 10655SOUTHERN DIST-4RI-6CT OF FL-4ORIDA No 08-80736-Civ-Marra/Joh6nson JANE DOE and JANE DOE UNITE-5D S-6TAT-5ES JANE DOE-4 AND J-6ANE DOE 2S RESP ONSE TO GOVERNMENT 2S S-4E1AL-4ED MOTION TO DISMISS FOR LACK OF SU BJECT MATTER JURISDICTION 2650COME NOW Jane Doe and Jane Doe als referred to as 223the victim8s by and through undersigned counsel to respond to the Gove rnm8e-1nt 2s Sealed Motion to Dism8is-5s for Lack of Subject Matter Jurisdiction The Court should deny the motion 2415Because th6e Government has5 filed a m8o1ti on to dism8iss5 alleging that th6e victim8s pleading5s are facially deficient the Court m8ust-7 assum9e the truth of4 th6e victim9s allega5tions specifically that the Governm8e-1nt and Epstein de liberately conspired to enter into a secret non prosecution agreem8ent in violati on of the victim8s rights under the C8r-1im9e Victim9s Rights Act CVRA Given such allegations and indeed even w8ithout su ch allegations this Court possesses b6r4oad rem9edial powers to craft an app6r opriate remedy for the vi olations One such rem8e-1dy is an order invalidating the non-prosecution agreement as il legal thereby af8fording the victim8s an opportunity to confer with the G8overnm8e-1nt about wh ether it should file federal crim8inal charges against Epstein for sexually ab using them8 Such a rem8e-1dy would not violate Epstein6 co6nstitu6tion6al rights5 becau6se he was5 a5nd is a5 party to th6e ille5gal ag6reem9ent and,6 indeed he orchestrated the illegality In addition the victim8s are seeking numerous other Case Document Entered on FLSD Docket Page of rem9edies th6at are with6in6 the Court 2s power to aw8ard Accordingly the Governm8e-1nts m8o1tion to dism8iss on grounds that the Court lacks any power to address the CV7RA violations alleged by the victim8s should be dism8issed I REVI-6EWING THE GOVERNMENT MOTION 8TO DISM ISS THE COURT MUST AS-4SUME THE TRUTH OF THE VICTIMS ALLEGATIONS SPECIFICALL-4Y1 THAT THE G-8O-3VERNM ENT AND ESPT-4EIN DELIB-4E1RATE-4L-4Y-4 CONSPIRED TO ENTER INTO-8 A S-4E-3CRE-3T NON-PROSECUTION AGREEM-7ENT IN VI-7OLATION OF TH VICTIMS CVRA RIGHTS Because th6e Governm8e-1nt is filing its m8o1tion to dism9iss m9o1re than three5 years into this case it dresses up its claim as a challenge to ubject m8a-1tter jurisdiction The Governm8e-1nt then argues th6at it is rais5in6g 223both a legal and f4a5ctual challe5nge to the Court 2s sub6j-1ect m9atter4 jurisdiction Gov 2t Mot Dism8iss at On th is basis the Governm8e-1nt claim9s-5 to be free to raise extrinsic evidence outside the com9p1lain 223such as testimony and affidavits Id at citing Makro Capital of Am erica Inc UBS AG F.3d th Cir the exten6t-1 the Governm9ent is attempting to ra5ise a 223f4actua5l challenge5 to jurisdiction the Governm9ent 2s argum9ent fails for one sim9p1le reas on It has presented no facts As the Cour-7t-7 is well awar4e the v6i-2c4tims still have pending a 223summary judgm8e nt m9o-4tion in whic5h they h6av6e5 alleged specific undisputed fact DE The Court however has reserved ruling on that motion explaining 223the Court lack a factual record to support such findings and therefore defer ruling on these two issues pe nd6ing the lim9ited disc overy discussed below Order DE at Governm9ent 2s position is far w8eaker than the victim9s At least the5 victim9s alleged undisputed facts as the basis for their m8o1tion supporting each and6 ev6ery fact with6 citations to6 the lim9ited r4ecord in th6is5 case In co6ntras5t-1 the G8overnm9ent 2s m9o1tion to dism9iss alleg6es no f4acts5 Case Document Entered on FLSD Docket Page of whatsoever m8uch less evidentiary support for such facts Accordingly the Court should reject any factual challenge to5 the vict im8s-6 cause of action and move fo rward with the discovery that8 the Court previously ordered regard to the legal challeng5e the Government is ra is5in6g the Court m9u1st 223take5 the f4actual a5l-1leg6ations5 in the5 com9p1laint a5s tru6e and onstrue5 the5m9 in the lig7ht m9o2st f5avorable5 to th7e plaintiffs Edwards Prime Inc F.3d th Cir In the current posture of this case the victims have pending a m8o7tion for 223summ8a-1ry judgment with proposed undisputed f9acts DE at The court sho6u1ld accord6in6gly accep6t all these facts as true and6 construe th6em in the light m9o1st favorable to6 the victim9s Those facts allege a deliberate5 conspiracy between the Governm8e-6nt and Epstein 3to violate the victim8s CVRA rights in the course of executing the non-prosecution agreem8ent See e.g DE at discussing allegations of 223affir-6m8ative m8i-2sconduct This issue bef8ore the Court then is whether it possesses su6bject m8a-1tter jurisdictio n6 to rev6i-1ew a5llega5tions crim9e victim9s that p6r-1osecuto6rs and defense attorneys conspire to violate congressionally-m8a ndated rights in the CVRA Governm9ent 2s m9o1tion also app6ears to a ssu6m9e that the victim9s are alleg6i-1ng th6at the Governm8e-1nt-7 has violated only one of their CV RA rights i.e the right to confer with prosecuto6rs In fact th)6e victim8s are alleging6 th6at th6e overnm8e-1nt violated thre5e of their CVRA rights nam8e-6ly their 223reasonab le right to confer with pros ecutors U.S.C a their be tr4e5ated with f4airness and with re5spec5t f4o1r the5 victim8 2s dignity U.S.C a and their right to 223reasonable accurate and6 tim8ely notice of any public court proceed5ings involving the crim8e U.S.C a See DE at discussing each of these three righ5ts separately DE at sam8e Case Document Entered on FLSD Docket Page of II CVRA GIVES COURT BR OAD POWER CRAF-5T APPROPRIATE-4 REMEDI-6E-4S1 FOR VIOLATIONS OF THE RIGHTS IT CONFERS Even given allegations of three separa te and deliberate CVRA violations the-6 Governm8e-1nt-7 m8a-1intains that this Court is powerle ss to respond In the Governm8e-1nt-7 2s view the victim9s 223lack standing to pursue the rem9edies that they are seek6ing for the alleged CVRA8 violations Gov 2t Mot Dism9iss at Before turn ing to the s5p1ecif4ics of4 this it is im9portant to understand the rem8e-1dial structure that surrou nds the CVRA Since the earliest days of our nation it has been settled law that 223where there is a legal right there is also a legal rem9edy Marbury Madison U.S internal quotation o6m9itted M)5o1reover,6 the right is5 created by6 a federal statu6t-2e the federal courts have the power to fashion an appropriate rem8e-1dy Intracoastal Transp Inc Decatur County Georgia F.2d 5th Cir Beyond these general principles the CVRA itse5l-1f4 requ6ires5 this Court to pro6t-1ec5t victim8s rights em8phasizing that any cour proceeding involving an6 offense against a crim9e-5 victim9 the court sha6ll ensure th6at the crim9e victim9 is afford ed the rights described in the CVRA U.S.C emphasis added 650When a violation of federal law is establis hed 223federal courts generally have the power to grant any appropriate relief in a cognizable cause of action brought pursuant to a federal statute Moreno Consolidated Rail Corp F.3d 6th Cir internal quotation om9itted F7ederal cou6r-1ts should 223p6resum9e the av ailability6 of all app6r-1o6p1riate rem8e-6dies for a federal right of action unless Congre ss has expressly indicated otherwise Franklin Gwinnett County Public Schools U.S Congress ha 223expressly indicated a few Case Document Entered on FLSD Docket Page of narrowly-drawn lim8itations on remedies in th CVRA These lim8itations however are not applic5able to this c5ase 1091Congress lim8ited certain legal remedies under the CVRA in particular providing that the CVRA did not create a new cause of action fo dam8a-1ges-5 and attorney 2s fees U.S.C It also provid ed a specific provision rega rding 223lim8itation on relief Lim)9itation on relief4 In no case shall a f4ailur4e to af4f4o-4rd a right u6nder this5 chapter provide grounds for a new trial A victim9 m9ay m9ake a motion to re-open plea or sentence only if9 A the vic)5t-1im has asserted the righ6t to be9 heard before or during the proceeding at issue and such right was denied the victim petition)6s the cour4t of4 appeals f4o1r4 a writ of4 m9andamus within days and in th)6e case of a plea the accu6sed has not pled to the h6i-2ghes5t-2 offense charged This paragraph does not affect the victim8 2s right to restitution as provided in title United States Code U.S.C As is readily apparent these lim8itations only a pply to crim9e victim9s ef4f4o1rts to ob6tain a 223new trial to6 a plea or s5enten6ce The v6i4ctim9s plead6ings here do6 not ask f4o1r a 223new tria5l no tria5l in this case was ever held Likewise they do not ask to open a plea m8u1ch less a sentence Epstein never 13pled guilty to any crim8e in federal courts and11 his plea in state court was not to charges involving them8 and was apparently not reviewable in federal cou6r4t Ins)5t-1ead the victim9s seek am ong other remedies the i nvalidation of an illegal non-prosecution agreement so that they can confer6 with the Governm8e-1nt about an appropriate prosecution6 of the crim9es Epstein comm9itted against them9 Accordingly n6one of4 the specifically-provided 223lim8itations on relief apply to this cas5e ligh6t-2 of the narrow reach of this 223lim itation language th6e CVRA clearly leaves open all other rem8e-1dies including in particular equ5itab5l-2e remedies The 223federal courts hav5e4 Case Document Entered on FLSD Docket Page of historically had broad au thority to fashion equita ble rem8e-1dies Hardison Cohen F.3d 11th Cir The Eleventh Circu it has expressly required district courts to fashion appropriate equitable rem8e-1dies when pl aintiffs have proven a violation of statutory provisions See e.g Alabama Hospital Ass 2n Beasley F.2d th Cir in light of statutory vio5l-2ation we 223accordingly rem8a-1nd to the district court so th6at it m8a-1y devise an6 appropriate equitable rem8e-1dy And the CVRA is obviously 223rem8ed ial legislation that should be broadly construed to ach ieve its rem8e-1dial purposes Edwards Kia Motors A6m3erica Inc.,6 F.3d 11th Cir good illustration of the broad power of di strict courts to re m8e-1dy CVRA violations-6 com8e-1s from8 the Fifth Circuit 2s decision in In re Dean F.3d 5th Cir There the Fifth Circuit found a violation of crim9e-5 victim9s right to confer ith prosecutors regarding a plea agreem8ent The Circuit however declined to grant its own re m9edy instead rem9anding to the distr4i-1c5t-1 cour4t are conf4ident,6 however that the con6scien6tious court will f4u1lly6 consider the victim9s objections and concerns in deciding whether the plea agreem8ent should be-6 accepted Id at Likewise here the onus falls on this Court to dete rm8ine how best to rem8e-1dy the Governm8e-1nt-7 2s CVRA vi-7ol ations alleged by the victim8s I VICTIMS ARE ENTITLED TO A WIDE ARRAY OF REMEDI-7ES FOR THE GOVERNME-4N1T-4 DELIB-4E-4RAT-4E CVRA VIOLATIONS The Governm8e-1nt contends that the Court should dism9iss this case because th6e only 223legal relief that the victim8s have sought is setting aside the non-prosecution agreem8ent and that they are not entitled to any such rem8e-1dy The Governm8e-1nt 2s argum8ent fails for five separate reasons First becaus5e-1 the issue of rem8e-1dy is in terwoven with the m9erits to the victim9s claim9s-5 Case Document Entered on FLSD Docket Page of a dism9issal before reach6ing the m9erits is inapp6r4opriate Second in any event the victim9s are entitled to h6ave the Cou6r-1t inv6alidate the non-p6r-1o6secu tion agreem8ent because it is illegal Third,5 entirely apa5r-1t f4r-1om9 invalida5ting the agreem9ent th victim9s are en6titled to seek a wide range of 223lega6l and equitab7le re6m10e1dies apart f5rom10 or in addition to invalida5tion of4 the illega5l agreem9ent Fourth at the very least the issu es raised in this case should be regarded as ones that are capable of repetition and should not be allowed to evade review And fifth Epst ein 2s presence in the case is not required to grant the victim8s relief A 1780Because The Government 2s Mo6tio6n2 Go es to the Merits the Victims 2750Arguments,5 A Dismissa5l Is Not Appropriate vic5tim9s have repea5t-1edly sta5t-1ed6 that th ey6 b6eliev6e th6at the pr oper tim8e for briefing rem9edial iss6u1es in this case is after the Court m8a-1kes its ruling on what CVRA vi-7olations the Governm9ent has comm9itted Settled6 law holds th6at h6e na5tur4e of4 the rem9edy is to be determ9ined by the nature and scope of the violation N6i-3chols Hopper F.3d 11th Cir internal quotatio6n om8itted And the initial p5l-2eading s4t age,5 a plaintiff may establish standing based on general factua a4llega4tions5 o6f4 injury Young Apartments Inc Town of Jupiter Florida F.3d 11th Cir this case,6 however it is clear tha5t4 the Governm9ent 2s alleg6ed 223jurisd6i-1c5t4ional cha5l-1lenge actually is deeply intertwined ith the m8e-1rits of this case As a result the Court should not dism9iss the case but allow it to pro6ceed to a co6nclusion on the m9erits As the Elev6enth Circu6it has held a jurisdictional challenge does im8plicate the merits of the underlying claim then14 the proper course of action for th district court is to find that jurisdiction exists and deal with th6e objection6 as a6 direc5t-1 attack5 on th6e merits of th6e pla6i4ntiffs5 case Judicial econom8y is Case Document Entered on FLSD Docket Page of best prom8ot-7ed when the existence of a fede ral r4i-1g6h1t is5 dir4ectly reached Mo6rriso6n Amway Corp F.3d th Cir em8phasis added6 internal citation om9itted this cas6e,6 it is quite clea5r that th6e overnm9e-5nt 2s challen6g1e directly 223im9p1licates the m8e-1rits of the underlying claim8 Many of the rem8e dial issues turn on the extent to which the Governm8e-1nt-7 and Epstein conspired to violate the victim8s of their rights For this reason alone the Court should deny the Governm8e-6nt 2s m8otion to dism8iss the Victims Prove th7e Agreemen7t is I5llega5l They Would Be Entitled to 2750Have the N8on-Prosecution Agreement Declared Illegal m9ain argum9ent in the Government 2s m9o1ti on to dism9iss-5 is that this Court would be powerless to set aside the non-prosecution agreem8ent even were the victim8s to prove a delibe5r-1ate conspiracy to6 illega5lly violate th6eir CV RA rights As the victim9s have previously11 explained however ample preceden10t supports the power of this ourt to set aside the agreem8ent if4 it was arrived at illega5lly W9hen other plea arrangem8e-1nts have been negotiated in violation of law they have been stricken by the courts For exam9ple United Sta6t-1es Walke5r F.3d 7th Cir held that where a sentence on a new crime could not run concurrently with a probation revocation the defendant was then ser4v1ing con6t-1r4ary to6 the5 as5sum9p1tion of the p6artie5s5 to th6e plea agreem8ent the defendant was5 n6o1t en titled6 to spec5if4ic p6erf4orm9ance of4 the plea5 agreem8ent The Court explain5e-1d that the case was one which the bargain is vitiated by illegality Id at Moreover even though the de fendant had served som8e-1 prison tim8e-6 See Victim8 2s Motion Finding of Violation of Rights DE at collecting case law on s4e-1tting as4ide illegal plea agreem8ents The Governm8e-1nt studiously ignores these argum8ents in newly-filed m8o1tion to dism8iss Should the Governm9ent attem9p1t to 223sandbag the10 victim9s by raising new argum9ents for the f4i-1rst tim in its reply brief the victim9s would then respec5tf4ully seek le5ave to f4ile a sur-reply to these new arguments Case Document Entered on FLSD Docket Page of under the agreem8ent that did not m8ean he was en titled to specific perform7a-2nce of the agreem9ent Id at The defendant had orfeited the right to seek specific performance of the agreem9ent 2691Here of4 cou6r-1se ex6actly the sam9e is true5 the5 no6n-prosecu6tio6n agreem9ent is 223v6itiated6 by illegality nam8e-1ly the fact that the parties negotiated it in viol ation of the victim8s rights under the Crim9e Victim9s Rights Act U.S.C Moreover Epstein has orfeited any right to seek specific perform9ance of the non-prosecu6tio6n ag reem9ent As the victim9s will prove as this5 case m9oved forward he was a party to and i ndeed the instigator of the Governm8e-1nt 2s CVRA violations Thus unlike the Walker case where the agreem8ent was an accident here th5e illegal agreem8ent was a deliberate plan In such circum8stances any equ6i3table claim8 Epstein h6a-1s for specific perform8a-1nce of the non prosecution agreem8ent disappears 2686Other cases reach s5i-1m9ilar conclus5i-1on6s See e.g Craig People P.2d Colo because 223neither the prosecuto6r nor th trial court have authority to m8odify waive the mandatory parole period such not a perm8issible subject of plea negotiations and thus even if 223the trial court erroneously approv es of such an illegal bargain6 su6ch plea is5 223invalid an6d thus will n6o1t be specif4i4cally enf4o1rc5ed Nor ca)5n the def4endant cla5i-1m9 som9e right to6 specific p6e-1rform8a-1nce of an ille gal non-prosecutio agreem9ent See S5t-2ate Garcia Minn plea agreem8ent for m8onth sentence but court added 10-year conditional release term9 because u6nder facts o6f4 case sentence withou6t su ch release term8 is 223plain6ly ille5gal and6 th6us rem9edy of specific perform8a-1nce not availab6l-2e State Wall N.C S.E.2d plea agreem8e-6nt was fo s-5e-1ntence to be concurrent with one not yet com8p1leted but state statu6t-2e m8a-1ndates con6secu tive s5enten6ce on facts of this cas5e 223defendant Case Document Entered on FLSD Docket Page of is not entitled to specif ic perform9ance in this cas5e becaus5e su ch action w8ould vio5l-2ate the laws of this state4 Ex parte Rich S.W.3d Tex Crim8 A pp where 223the plea bargain seem8ed fair o5n its face when exec uted it has becom8e-1 unenforceable due to circum8stances beyond the control of the parties na-6m8e-1ly the fact that one of the enhancem8ent paragraphs was 7m8i-2scharacterized in the indictm8e-1nt resu6lting in an illeg6al sentence far outside the statutory range proper rem9edy is plea withdraw8al as 223there is no way of knowing whether the State would have offered a plea bargain within the proper range of punishm8e-1nt that he deem8ed acceptable State Mazzone W9.Va S.E.2d where plea agreem8ent was that def9e-1ndant ould plead guilty to tw felony counts of fel on in possession of firearm8 and prosecutor would dism8iss rem8a-1ining si counts re other offenses with prejudice and all par4ties5 e5r4roneously6 b6eliev6ed th6es5e two c5r-1im9es were5 f4elon6i-1es lower c5ourt 223cor4r-1ec5tly reso6lved this unfortu6nate pred6icam9ent by hol-6ding that a plea agreement which cannot be fulfilled bas5e4d5 upon legal impossibility m8ust be va cated in its entirety and the part ies must be placed as nearly as possible in the positions they occupied prior to the entry o6f4 the plea ag6reem9ent 2716Rather than respond to these specific exam8ples of courts setting aside illegal agreements the Governm8e-1nt 2s m8o1tion relies on6 two cases that s5t-1and for th generic proposition that the Governm9ent-6 m9u1st abide by its p6r-1om9i-6ses in p6l-1ea agreem9ents See Gov 2t Mot Dism9(iss at citing11 Santobello New York U.S United S6t4ates Harvey F.2d 11th Cir But the very point of all the cases cited by the victim)9s in the previous paragraph is the Governm8e-1nt can not abid6e by illegal prom8ises even6 where it h6a-1s a4c4c-1identally6 entered into som8e-1 kind of an agr3eement with the defendant to that effect And this case is truly Case Document Entered on FLSD Docket Page of unique because rath6er th6an an acc idental illegal agreem9ent it invol ves as the victim9s will prov6e a delib6erate illegal ag6reem9ent designed to vio6l-1ate their righ6ts.6 2420Accepting the Governm8e-1nt 2s argum8ent that this Court cannot set aside the illegal agreem8ent would allow the Governm8e-1nt by privat a5rra5ngem9ent with a c5r-1im9inal to supers5e5d1e congressional m8a-1ndates for keeping crim8e victim infor-7m8e-6d Just as the Governm8e-1nt cannot illegally agree to run a sentence on a new crim8e concurre ntly with a probation revocation United States Walker F.3d 7th Cir so too he re it cannot illegal ly agree not to prosecute a sex offender without fi rst conferring with his victim8s treating them8 fairly and giving them8 ti-7m8e-1ly and accurate notice of co6urt hearing only are the Governm9ent 2s argum9ents ithout m8e-1rit but the Governm8e-1nt si-7mply lacks standing to raise them8 The Governm8e-1nt-7 com9p1lains that setting a5side the non6-prosecu6tio6n11 agreem8ent would harm Epstein 2s c5onstitu6tion6al righ6ts But th6is is a5n1 argum9ent th6at m9u1st be presented b6y1 Epstein.6 The Govern6m8e-1nt will obvious ly suf9f4er no harm8 if this5 Court invalidates the non-prosecution agreem8ent To possess standing to raise a claim9,1 a litigant 223m9ust show it-6 has suffered an 221injury in fact that is a concrete and partic ularized and6 actual imm9i-1nent-6 not conjectural or hypothetical Friends of the Earth Inc Laidlaw Environmental Se4rvices5 Inc U.S The Governm)8e-1nt cannot show any such injury from8 declaration that the non-prosecution agreem8ent is illegal and accord6ingly th Court should reject its argum8ent on this basis as well 2696Finally a plea agreem9ent is in ess5en6ce a co n6t-1ra5ct between6 a5 crim9in al defendant and the Governm8e-1nt-7 United States Howle F.3d 11th Cir Accordingly plea agreem8ents are governed by applicable principles of contract law Allen Thompson F.3d Case Document Entered on FLSD Docket Page of 11th Cir United States Meyers F.3d 9th Cir One such funda-6m8e-1ntal principle of contract law is that cont racts entered into in violation of law are void and no legal rights arise from8 the form8ation of such a contract Shaughnessy 2Antoni F.2d 5th Cir a6cc5o1rd McMu6llen Hoffm8an U.S court will le5nd its5 ass5i-1stance in6 any way to ca5rry6i ng out the term9s of4 an illega5l con6t-1ra5ct nor4 will they e5n1f4o1rce any alleged r4i4ghts direc5t-1ly springing6 f4r-1om such contrac5t-1 Shlay Montgomery F.3d 7th Cir 223There is no question that contracts which are in violation of law nul-5l-5 voi-5d Total Medical Management In5c United5 States F.3d Fed Cir holding that a plai nly illegal contract a nullity and void ab initio Because illegal agreements are void ab initio such a contract ordin6arily tre5ated11 as res6cinded7.2 Scheiber Dolby Laboratories Inc F.3d 7th Cir And a court cannot enforce such an illegal agreem8ent to the detriment of an innocent third party Baker Raymond Intern Inc F.2d 5th Cir Unit A Sept This is particula5r-1ly true where a party has 223unclean hands which is an equitable doctrine that 223provides that one9 who has acted in bad faith resorted to trickery a nd deception,6 or been guilty of fraud injustice or unf4airness will appe5al in vain to a c5ourt of4 cons5cience.6 In re Kingsley F.3d th Cir victim8s-6 request an opportunity to brief all these issues at greater length once-6 discovery6 in6 this ca5se is com9p1letely But th6e victim8s have certainly al leg6ed f4acts5 sup6porting6 th6e5 conclus5i-2on that the non6-prosecution agreem8ent is illegal and6 that th6e Governm9ent and Epstein 223Decisions by the form8er Fifth Circuit i ssued before October are binding as preceden5t in5 the Eleven5th Circu5it United States Brown F.3d 11th Cir Case Document Entered on FLSD Docket Page of had uncle5an hands in ar4riving at the5 a5g1reem9ent For all these5 r4easons the victim9s will be able5 to6 prove th6at th6e Court sho6u1ld se5t as5ide5 the non6-pro secution agreem8ent as th6e approp6riate rem8e-1dy in this c5ase Victims Are Entitled to a Rang of Other Remedies for Delibera6te 2750Violation of Their Rights For all the reasons just explained the ourt should deny the Governm8e-1nt 2s m8o1tion to dism9iss because th6e victim9s are entitled to6 m9ove forward and6 seek the re m8e-1dy of invalidation of the non-prosecution agreem8ent Entirely apart from9 that rem9edy however the victim9s are entitled to s5eek and are seek ing num8erous other rem8e-1dies The Governm8e-1nt-7 2s m8otion to dism8iss for lack of 223redressability should be denied in light of these other rem8e-1dies victim8s-6 have argued consistently thr8oughout these proceedings that the proper tim9e f4o1r a f4u1ll dis6cussion of4 the deta5ils of4 rem9edies is af4ter the Co6urt determ9ines the m9erits6 of4 the case But the Governm9ent contends tha5t-1 the tim9e to discuss these issues is now on its m8o1tion to dism9iss Even though this puts the rem9edial 223car before the m8e-1rits the victim8s can lay out num8erous other rem8e-1dies that they are seeking in th6is case To be sure even with thes5e rem9edies it is po6ssib6l-1e that som9e of4 the victim9s in6jur4i-1es5 will no6t be5 addressed.6 But p6arty satisfies the redressability requirement when he shows that a favorable decision will relieve a di-2scret-2e4 i-2nj-2u5ry hersel-2f She need not-2 how that a favo5rable d5ecis4i-2o5n will reliev5e-1 her ever5y injury.6 Care Committee Arneson F.3d th Cir em9phasis in origin6al in6t4ernal citatio6n1 om9itted Even where cour4t m9ay not be able to retu6rn the par4ties5 to6 the status quo ante so long as court can fashion some for-7m8 of meaningful relief it should hear th6e cas5e Church of Scientology of California U.S U.S Case Document Entered on FLSD Docket Page of 2655Here num8erous discrete rem8e-1dies lie within the Court 2s power to award In particular the vic5tim9s are asking the5 Court to aw7ard all of the following rem8e-1dies A ruling f4r-1om9 this Court tha5t-1 co6ntrary to th6e curren6t-1 u6nderstand6in6g of4 the U.S Attorney Off4i-1ce if4 after consulta5tion ith the5 victim9s the Of5f5i-1ce determ9ined that prosecution of4 Epstein f4o1r cr4im9es comm9itte a4g1ainst Jane Doe and Jane Doe was appropriate the Con6stitu6tion wo6uld perm8it s5u1ch a prosecution A declaration that the Governm8e-1nt-7 ente red into the non-prosecution agreem8ent in violation of Jane Doe and Ja ne Doe 2s rights under the CVRA A declaratio6n that the no6n-prosecu6tio agreem9ent is acco6rding6l-1y illegal A declaratio6n invalidating the illeg6al non-pros ecution agreem8ent in whole or in th6e alte5rnative,6 a dec5l-1ara5tio6n inva5lida5t-1ing th e5 illeg6al non6-pros5ecution6 agr4e5em9ent to th6e extent that it purports to ba prosecution of Epstein 2s crim es agains5t Jane5 Doe and Jane Doe 2;An order from8 this Court that the G8overnm8e-1nt provide Jane Doe and Jane Doe5 all inf4o1rm9ation in its5 possession including docum8ents and correspondence about w8hy it decided not to prosecute Epstein 2s crim8es against them8 An order this Co6urt rele5asing6 to Ja ne Doe and Jane Do all grand jury m8a-1terial relating directly or indirectly to Epstein 2s sex offenses and conspiracy to comm8it sex offenses against Jane Doe and Jane Doe An order from this Court directing an appr16opriate superviso6r-1 the U.S Attorney Office to m8e-6et with Jane Doe and Jane Doe to explain in detail why it decided not to prosecute Epstein 2s crim8es against th em8 and confer w8ith them8 about the case and about what steps m8i-2ght be taken6 to insu re th5at Epstein is held accoun5table for the9 sex of4f4e-1nses he has comm8itted An order from this Court referring the issue of the crim8e victim8s rights violations for investigatio6n to the adm9i-1nistr4ativ6e authority6 within the5 Justice De5partm9ent that handles CVRA com8p1laints pursuant to U.S.C A and to any other appropriate Justice Departm8e-1nt entity A finding by this Court that there has been m8i-2sconduct by at least one DOJ attorney in violation of th victims righ6ts An order from this Court referring the issue of the crim8e victim8s rights violations for possible disciplinary sanctions to the Ju stice Departm8e-1nt pursuant to U.S.C Case Document Entered on FLSD Docket Page of An injunctio6n f4r-1om9 this Court dire5cting the U.S Attorney 2s Off4i-2ce to tre4a-1t Jane Doe4 and Jane Doe with 223fairness in th is case as required by U.S.C a of the CVRA to 223confer as requ6ired by U.S.C a and to provide accurate an6d tim9ely notice of future cas events as required by U.S.C a A letter for apology from8 the U.S Attorn ey 2s Office for violating Jane Doe and Jane Doe 2s rights A m8onetary sanction imposed again6st the U.S Attorney Off4i-2ce to be paid to Ja5ne5 Doe and Jane Doe direc4tly to any other appropriate person or en6tity6 An order establishing the precise rule rega rd6ing the tim9ing of4 th obligations of the U.S Attorney 2s Of4f4i-1ce to crim9e victim9s including the vic5tim9s in this Award of4 restitu6tion to the victim9s including a5l-1l f4o1rm9s of4 restitu6tion p6r-1o6v1ided in U.S.C providing for counseling expenses lost incom8e-1 attorneys fees and other form8s of restitution An award o5f3 attorney5 fees and costs fr om8 this Court under the Court 2s inherent authority to enter su6ch an award The rem8e-1dies the victims pr opose in their seal ed supplem8ental pleading on rem8e-1dies and Any other rem8e-1dy that the Court deem8s just and proper 2630These rem8e-6dies address the violations that the victim9s are alleging Most im9portant a declaration that the non6-prosecu6tion6 agreem9ent is illegal and void would assist the victim9s in Note the victim8s are not seeking am8ages under the CVRA but rather another appropriate sanction Cf U.S.C providing that the CVRA does not 223authorize a cause of actions for 223d6am8ages The victims are of cou5r-2se aware that th CVRA provides that it does not authorize a crim8e victim8 2s clai-7m8 for 223dam8age-6s U.S.C The victim)8s intend to argue however that the Court possesses the power to5 award attorney 2s fees b5a-1sed on oth5e-1r sources5 outside the CVRA including its in herent power and therefore a fee aw8ard is appro6p1ria5t-1e in this5 case The victim8s respectfully request an opportunity to file a supplem7e-2ntal brief on the Court 2s author4ity to award such r4elief4 if4 the C8ourt re qu5ires5 further info5rm8a tion on this subject These specific rem8e-1dies are agains5t th5e overnm8e-1nt The victim m7a-2y also have in addition specific rem8e-1dies against individuals Case Document Entered on FLSD Docket Page of various ways including ways described in the victim9s supplem9ental sealed pleading on rem8e-1dies A party who seeks a finding that a challenged governm8e-6nt al action is void has obviously m8a-1de an allegation that can be addr essed by a favorable decision from8 a court See e.g LaRoque Holder F.3d D.C Cir allowing5 case to p5r-2o5ceed where plaintiff m8a-6de non-frivolous alle gations that governm8ent actions were illegal and thus void 2580Moreover these proposed rem8e-1dies protect th victim7s rights directly For example they protect the righ6t to 223reason6ably confer U.S.C a by setting up a conference with prosecutors where the victim9s can fully understand w8h1at happened in this case rem9edies also help protect the victim9s right to be trea5te5d with 223fairness by disclosing inform8ation about what happened in this case and speci fically the m8a-1nner in which their rights-6 were violated and the potential reason for the vi olations T6hese rem8e-1dies help to protect and insure victim8s rights by acknowledging the rights a nd the fact that their ri ghts were violated 2641These r4e-1m8e-6dies also6 ins5u1re by6 way of4 an in6jun6ction,6 tha5t-1 the vic5tim9s will rece5ive5 the5i-1r4 rights in th6e future including accurate and tim8ely no tice of future court events These rem9edies will prov6ide5 attorn6ey 2s f4ees f4o1r the victim9s a claim9 f4o1r attorney f4ees alone es5ta5blishes the required co6nstitu6tion6al standing6 to6 proceed6 with a c5ase See e.g Castro County Texas Crespin F.3d th Cir The rem)9edies also provide equitable relief for the harm8s the victim8s have suffered such as a letter of apology from8 the Governm8e-1nt and injunction against future violation of the CVRA A request for equitable relief is5 sufficient to establish6 So f4ar in this case th6e5 Governm9ent has never given the victim9s any specif4ics abou6t its5 handling of the case If the Court believes that th details of4 the victim9s previous meeting6s with the Governm8e-1nt are important to resolving this m8otion the vict ims respectfully request an opportunity to provide those details to the Court Case Document Entered on FLSD Docket Page of standing6 to6 proceed.6 S5ee Township of Lyndh5urst Priceline.5com Inc F.3d rd Cir request for equita ble relief creates standing Amnesty International USA Clapper F.3d 2d Cir request for inju nction sufficient to confer standing to proceed6 on top of all that these rem8e-1dies also provide a way to insure that those who were-6 responsible for violatin their rights are appropriately re viewed for possible sanction by the Justice Departm9ent For exam9ple a-5s the Court knows the Governm8e-1nt-7 has previously declined to inve5stig6a5t-1e th6e vic5t-1im9s com9p1laint that their rights were violat ed during the Epstein investigation on the grounds that it is Governm8e-1nt policy to refrain from investigating issues or alleg6a-1tion6s that were are being or that cou6l-2d h6ave been ad6dressed in the course o6f4 litigation unless a court has m8a-1de a specific finding of m8i-7sc onduct by a DOJ attorney Letter from8 Robin Ashton to P6r-2ofessor Paul Cassell May attached as Exhibit to Victim8 Mot File S7upp Auth DE Accordingly an order by this Court m9aking s-5p1ecific finding of m8i-2sconduct by a DOJ attorney would allow the victim8s to obtain a G8overnm8e-1nt investigation into th6e circum9stances o6f4 this case Supreme Court has m8a-1de clear that am ong the factors the Court should consider when reviewing standing challenge relating to a federal statute is whether Congress intended rely6 on pr4iv6ate litiga5tio6n to ensu re5 com9p1liance with th6e Ac5t Bennett Spear U.S Here there can be no doubt that Congre ss intended private litig ation to enforce the CVRA because th5e Act itself contains a 223s4tan5di ng prov6is5ion allowin6g1 victim8s to assert the4i-2r To be clear the victim8s at this tim8e are not alleging deliberate m8i-2sconduct by the line attorney who handled the m8a-1tter as the decision in this case about no notifying crim8e victim8s-5 appear to have been m8a-1de by supervisory personnel Case Document Entered on FLSD Docket Page of rights in district court U.S.C The Act also has som)8e-1 223lim8i-7t-2ations on rem8e-1dies that do not apply to the remedies the victim8s are seeking as ex plained above The Act then requires th6is Cou6r-1t to 223ensu6r4e tha5t-1 the5 victim rights are respected.5 U.S.C In light of a ll this this Court m8u1st re dress the injuries that th victim8s have alleged As the Sen6ate co6-spon6sor of4 th CVRA explained is the cl ear intent and expectation of Congress that the district courts will esta5blish p6r-1oce5dures th at will a5llow f9o1r a p6r-1om9pt adjudication of any issues regardin the assertion of a victim8 2s righ while giving m7eaning to the rights we establish ONG EC Oct statem8e-1nt of Sen Kyl em8phasis added The proper 223procedure this Court should 9follow in this case is sim8ply to allow the-6 victim8s case to pro6ceed and then6 award the appropriate rem8e-1dy or re m9edies at the case5 concluson 1781Even if No Remedy is Possible in this Case the Court Should Decide the 2750Merits Because the Iss5ue is Capable of Repetition Yet W5ould Otherw7ise Evade 2750Review7 For all the5 r4easons ju6st explain6ed the Court c5l-1e5arly is in a position6 to a5ddress the C8V3RA violations alleged by the Jane Doe and Jane Do Even assum9i-1ng for sake of argum9ent it-6 was not however the Court would still clearly po ssess th6e ability to revi ew the Governm8e-1nt-7 2s violations.5 A well-reco5gnized p5r-2inci ple is4 that a Court will rev5i-2ew an issue th6at is5 223capable of9 repetition yet evading review See e.g Moore Ogilvie U.S Swanson Worley F.3d th Cir If the Court dism)8isses the victim8s-5 case here The Governm9ent seems to th6ink th6at the f4a ct that the victims have not filed any m8otion seeking particular rem8e-6dies has 2som8e-1 bearing on this case The procedures the victim9s should f4o1llow to protec5t the5i-1r rights a5r-1e n6o1t com9p1letely clea5r According6l-1y concurr4ently6 with this pleading th6e victim9s a filing a m9o1tion to have th6e Court award them8 all the rem8e-1dies they seek Case Document Entered on FLSD Docket Page of the Governm9ent will be free to ignore victims rights the next tim8e finds the CVRA to be inconvenient when negotiating a plea and then m8a ke the 223lack of rem9edy argum9ent it is advancing here The Court should not allow an im8portant federal law the CVRA to be evaded in this fashion This case presents im por-7tant issues concerning the proper adm8i-2nistration of Congress statute conferring rights on crim8e victim8s The Court should decide those issues Government 2s Claim that Ep7stein Mus5t-2 Be a Party to this Case4 to Rejec4t3 Non-Prosecution A8g1reemen7t is5 Flaw8ed and Premature The Governm8e-1nt also suggests that this Cour will be unable to order relief in th6is case-6 because the victim8s have not form8ally joined Epstein as a party6 to thes5e proceed6ings Accordingly in the Governm8e-1nt 2s view it is not possible for this Court to invalidate the non prosecution agreem8ent Gov 2t Mot Dism8iss at explained above the Governm9ent lacks 223standing to raise Epstein 2s argum8ents for-7 him9.1 In any event with regard to alleg6ed process5 consideratio ns that the Governm8e-1nt-7 claim9s prevent setting aside the non-prosecution agreem8ent the Government fails to acknowledge that Epstein currently has pendi ng before the Court a m8o1tion for 223lim8ited intervention in this very case DE Nor does it acknowledge the victim8s response to that-7 motion arguing that Epstein cannot lim8it his interv ention to m8e-1rely a 223lim8ited basis and m8ore-6 im8portant that he has waived his right to challenge any i nvalidation of the non-prosecution agreem9ent by his de5libe5r-1ate d6ecis5i-1o6n1 to wait to6 inte5rvene in this case until the Co6urt had m9ade various substantive rulings DE For the easons expressed by the vic tim8s in their pleadings there the C8ourt should reject the Governm8e-1nt 2s argum8ent here Case Document Entered on FLSD Docket Page of the alternative the Court should find that Epstein 2s due process interests have been protected All that 223due process requires is opportunity to be heard Dusenbery United States U.S em8phasis added internal citation6 om9itted Epstein h)6as plainly had the opportunity to be eard in this case he has simply chosen not to av ail him8s-1elf of it by standing on the sidelines As5 a resu5lt Ep5stein h5a-1s s5imply waived whatever due proces5s right he m8i-2ght otherwise possess See e.g Krieger Fadely F.3d D.C finding waiver of right to heard argum8ent wh ere litigant waited m8onths to raise the issue possibly for tactical reasons The Governm9ent also appears to arg6u1e that Eps5t ein is an ind6i-1spensab6l-1e p6arty th6at m9u-4st be joined in th6is case Gov6 Mo6t Dis5m9iss at The Governm9ent 2s arg6u-4m9ent that the case m9u1st-6 dism9issed for lack of joinder shoul rejected at least at this earl ier juncture for several reasons First although the Governm8e-1nt does not cite the applicable rule the Governm8e-1nt-7 2s argum8ent appears to be one based on Federal Rule of Civil Procedure a which in certain cases requires all 223ind6ispe5nsable pa5rties to be present for a case to pro6ceed Perhaps the reas5on that the5 Governm8e-1nt-7 does not cite the applic able c5i-1vil ru6le is th6at it has ye to state clearly whether it is10 willing6 to a5b1ide by the civi ru6les in this5 case.6 See e.g Gov 2t Resp Mot Order Not W10ithhold Evid DE at refusing to take a position on whether civil rules appl or not Indeed the Governm8e-1nt-7 has yet to even m8a-1ke its in6itial pro6ductions5 as required by Rule in civil cases The Governm8e-1nt should not be perm8itted to cherry pick th6e rules of civil procedure rely6ing on those that it likes and dispensi ng with those that it does not Epstein however has sent in his surrogate s5 to litigate in th6is ca5se5 includ6ing his crim8inal defense attorn5eys Roy Black et al and an attorney who has represented persons close to him9,1 Bruce Reinhart Case Document Entered on FLSD Docket Page of 2410Second the Governm9e-5nt 2s argum9ent provi des no basis for entirely dism8issing the victim9s case Clearly the Court can award so of the proposed rem9edies the victim9s seek without affecting Epstein in any way as som8e-1 of the rem9edies lie only against the G8overnm9ent For instance an injunction requiring com8plianc by the Governm8e-1nt with the CVRA does not-7 create any h6a-1rm8 to Epstein and thus the victim8s should be perm8itted to proceed 2652Third whether Epstein is truly an indispen sable party await the developm8ent of a factual reco6rd in this case The victim8s-5 should according6l-2y be allowed to6 proceed with discovery in the c5ase a5nd the issu6e of4 Epstei 2s indispens5ability litiga5t-1ed late5r 2603Fourth Epstein him8self indica ted an6 intention to interv6ene at som9e f4u1ture point in6 the case He has explained that if the C7ourt finds a CVRA violation then 223Epste in5s-1 interests with respec5t to th6e valid6ity of4 the Agreement will b6ec5o-4m9e ripe an6d subject to inte5rvention,6 rathe5r-1 than6 being sim8p1ly speculativ6e as they are now and ontingent on how the Court rules between now and then Epstein 2s O8m3nibus Reply Support Mot Lim8ited Inte rvention DE at It is the5r-1ef4ore prem9ature to6 say whether4 or not Epste5i-1n will vo6lun6t-1ar4ily appe5ar4 in the c5ase.6 2451Fifth as the victim8s have argued Epstei has waived any rights he m8a-1y have to participa5t-1e in this c5ase b6y1 inten6tiona5lly sitting on the sid6elin6es5 2736Finally in any event if Epstein is a require party to the victim9s action the victim9s seek leave to eith6er serve Eps5t-1ein directly or to have the Governm8e-1nt do so under its obligations to use its 223best efforts to protect victim8s rights U.SC all these reasons the Governm8e-1nt 2s m8otion to dism8iss should be denied IV THE GOVERNM-7ENT 2S 223RI-7PENESS ALL-4E1GAT-4I-2ON ALSO LACKS M-7E1RIT Case Document Entered on FLSD Docket Page of The Governm8e-1nt finally argues th6at the5 vic5tim9s c5l-1aim9s are5 som9ehow not ye5t f4o1r decision even though the victim8s ha ve been attempting to vindicate their interests for m8ore than three y6ears The Governm8e-1nt 2s arg6u-4m8e-1nt seems to be that because the overnm8e-1nt-7 is willing to m9eet with victim9s and talk about the case now the victim8s allegation of a violation of the right to confer is not yet ripe The Governm8e-1nt 2s argum8e-1nt is specious As is clear from the victim8s-6 pleadings the victim8s are alleging not m8e-1rely on-going violati ons of their right to confer but also fully com9p1leted violations of their ri ght to confer that took place between abou August through about Ju5ly when the Governm8e-1nt and Ep stein d6e-1liberately co6ncealed6 a secret non prosecution agreem9ent from the victim9s See e.g Victim9s Mot Findin6g1 Violations of CVRA DE at citing specific actions in and that constituted CVRA violations of the-6 right to con6f4er Clearly li tigation about wheth6e-1r the Govern m9ent illeg6ally h6i-1d the agreem9ent from9 the victim9s in and is 223ripe for deci sion To show an issue is ripe for decision a party m8ust show actual injury already sustained Warner Cable Communications Inc City of Nic5eville F.2d th Cir He)-6re the vict im8s-6 have plainly alleged injuries 223already sustained specifically violations of their CV RA rights in and 350The Governm9ent 2s argum9ent is also incom9p1lete The Governm9ent-6 2s argum9ent is predicated o6n1 the fact th6at the only right the Governm8e-1nt violated was their right to confer But-7 the victim8s have also alleged violat ions of their right to be treated with fairness and their right to reasonab6l-2e and accurate notice of 2co6urt pro6ceedings These additi onal claim8s-1 are clearly 223ripe for adjudication because the facts surrounding them8 have al ready occurred i.e the Case Document Entered on FLSD Docket Page of Governm8e-1nt-7 treated the victim8s unfa-6i-2rly in at leas and and failed to provide proper notice as required by the CVRA in June Finally the Governm8e-6nt 2s argum8e-6n1t is sim8p ly wrong The Governm8e-1nt thinks that because it is5 willing to m9eet with the victim9s after it has m8a-1de the decision to not to prosecute Epstein f4o1r federa5l sex of4f4enses he comm9itted against them9 that it has discharged its obliga5tion6s5 under the C7V2RA Nothing could be further from8 th truth Senator Kyl stated em8phatically that 223when a case is resolved through a plea bargain without the victim8 2s knowledge or participa5tion6,1 a gr4ave injustic5e has5 b6een comm9itted by th6e a5u1thoritie5s Jon Kyl al On the Wings of Their Angels5 The Scott Campbell Stephanie Roper Wendy Preston Louarna Gillis5,6 and Nila Lynn Crime Victims Rights Act LAR4K2 EV That 223grave injus5tice5 is5 exa5ctly wha5t-1 the autho6r ities comm8itted here th5e Government illeg5a-1lly5 entered into an agreem9ent dis posing of the victim8s cases 223without the vi ctim8 2s knowledge Under the CVRA prosecutors m8u-5st 223confer in som9e reas5onable way6 with the v6i4ctim9s before ultim8ately exercis5i-2ng its5 broad discretion In6 re Dean F.3d at em8p1hasis added interna5l c5i-1tations5 om9itted The)5 victim9s argu6m9ent that th6e Governm9e-5nt f4ailed6 to6 do so her4e is5 223ripe for adjudication Finally even if the Governm8e-1nt som8e-1how has an argument that it has now ceased viola5ting the5 victim9s rig6h1ts i it is now willin6g to conf4er with them9 that would n6o1t depr4ive this Court of the ability to decide this case has long be en the rule that voluntary cessation of allegedly illegal conduct does not deprive the tribuna of power to hear and determ9ine the case Christian Coalition of Florida Inc U.S F.3d WL at th Cir Boiled down the Government 2s argument seem)8s to be that while it m8a-1y have violated Case Document Entered on FLSD Docket Page of the CVRA in and it is has now learned its lesson and stopped violating the CVRA Even if that is true that voluntary cessation argum8ent does not deprive this Court of the-6 ability to rev6i-1ew this case5.1 CONCL-4US-5ION Court should deny the Government 2s m8otion to dism8iss DATED Decem8ber Respectf4u1lly6 Subm9itted Bradley Edwards Bradley E6d1wards FARMER J-7A1FFE WEI-8SSING EDWARDS FISTOS LEHRMAN P.L North Andrews Avenue Suite Fort Lauderdale Florida Telephone Facsim8ile Florida Bar No E-m9ail brad6 pathtoju6stice.com9 and Pro Hac Vice S.J 2750Quinney 2750College 2750University 2750Utah Salt 2750Lake 2750City Telephone Facsim8ile cassellp law.utah.edu 1251Attorneys for Jane Doe and Jane Doe Case Document Entered on FLSD Docket Page of CERTIFICATE OF S-5E1RVI-7CE 200The foregoing docum8ent was served on Decem8ber on the followin6g1 using th11e Court 2s CM/ECF system Dexter Lee A Marie Villafa Assistan5t U.S Attorneys Australian Ave Suite West Palm8 Beach FL Fax E-m9ail Dexter.Lee usd6o1j.gov E-m10a1il ann.m8arie.c.villafana usdoj.gov Attorneys fo6r the Govern6m8e-1nt Roy Black Esq Jackie Perczek Esq Black Srebnick Kornspan Stumpf P.A South Biscayne Boulevard Suite Miam9i FL Martin Weinberg P.C Park Plaza Suite Boston MA Case Document Entered on FLSD Docket Page of
