Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page2 in mnltiple civil actions asserting and other claims against EPSTEIN seeks summary judgment regarding the proper application of U.S.C Based on the undisputed material facts and applicable law relevant to the summary judgment sought Defendant is entitled as a matter of law to the entry of summary judgment determining that the version of U.S.C effective to Jul the period of time during which EPSTEINs alleged conduct occurred applies to Plaintiffs claim brought pursuant to Plaintiff has not and cannot establish the requisite elements to state a claim under U.S.C which she attempts to assert in Count I of her Second Amended Complaint D.E In particular the undisputed material facts show that Plaintiff has failed to and ca1ot establish a predicate act either under violation of U.S.C as plead in her complaint in order to state a cause of action pursuant to U.S.C and the version of U.S.C in effect when the predicate acts allegedly were conunitted allow only minors to file suit The pleadings and the discovery materials on file show that there is no genuine issue as to any material fact establishing that EPSTEIN is entitled as a matter of law to the summary judgments sought Statement of Material Facts in Support of Summary Judgment Loe.Gen.Rule Statement of the Case Plaintiff JANE DOE NO Ss Second Amended Complaint D.E dated February attempts to assert three causes of action Count I and Count II respectively attempt to allege state law claims under Florida law for Sexual Assault and Battery and Intentional Infliction of Emotional Distress Count I which is the subject of this motion is entitled Coercion and Enticement to Sexual Activity in Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page Violation of U.S.C and attempts to assert a claim pursuant to U.S.C Plaintiff JANE DOE NO shall be referred to as JDS or Jane or Jane Doe Plaintiffs Second Amended Complaint shall be referred to as 2d Am Comp and is attached hereto as Exhibit A According to the allegations In or about Jane Doe then approximately years old fell into Epsteins trap and became one of his victims 2d Am Comp Plaintiff further alleges that when Jane Doe was approximately years old she was recruited to give Epstein a massage for monetary compensation Jane and another girl D.D were brought to Epsteins mansion in Palm Beach to the kitchen entrance Once there they were introduced to Sarah Kellen who led them up a flight of stairs to the room with the massage table Jane and the other girl were directed by Epstein to remove their clothes and give him a massage Jane and the other girl removed their clothes except for their panties and bra and complied with Epsteins instructions While on the massage table Epstein masturbated himself and touched both girls on their vaginas with his hand and with a vibrator 2d Am Comp After Epstein had completed the sexual assault both girls were able to get dressed leave the room and go back down the stairs Epstein gave both the girls money for this massage 2d Am Comp Material to this motion in attempting to assert a claim in Count I pursuant to U.S.C Plaintiff alleges in material part that Epstein used a facility or means of interstate commerce to knowingly persuade induce or entice Jane Doe when she was under the age of years to engage in prostitution or sexual activity for which any person can be charged with a criminal offense On June Epstein entered a plea of guilty to violations of Florida and in the th Judicial Circuit in and for Palm Beach County Case Nos for conduct involving the same plan or scheme as alleged herein As to Plaintiff Jane Doe Epstein could have been charged with criminal violations of Florida Statute including Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page4 subsections and thereof and other criminal offenses including violations of Florida Statutes and including subsections and thereof Epsteins acts and conduct are in violation of U.S.C As a result of Epsteins violation of U.S.C Plaintiff has suffered personal injury including mental psychological and emotional damages In the WHEREFORE clause of Count I Plaintiff demands judgment against Jeffery Epstein for all damages available under U.S.C a See 2d Am Comp Count I Exhibit A hereto In trying to assert a violation of the federal criminal statute U.S.C as the requisite predicate act for a claim pursuant to U.S.C a Plaintiff generally tracks the language of subsection of U.S.C eff until Apr which states in relevant part Whoever using the mail or any facility or means of interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title imprisoned not more than years or both The amended version of eff April increased the term of imprisonment such that the italicized portion of the above quoted statute read shall be fined under this title and imprisoned not less than years and not more than years See endnote hereto See endnote hereto for full text of U.S.C the version that applied in and the amended version effective July Epstein never using a facility or means of interstate commerce knowingly persuaded induced or enticed JDS when she was under the age of years to engage in prostitution or sexual activity for which any person can be charged with a criminal Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page offense or attempted to do so Deposition Testimony of JD5 taken February See pages referenced below herein A copy of the referenced deposition pages is attached hereto as Exhibit See endnote for full text of U.S.C JD5 testified that her one encounter with EPSTEIN occurred during her sophomore year of high school JD5 Deposition JD5 first learned of EPSTEIN in the beginning of her sophomore year in high school approximately August of to June of Id lines I just heard something about if you go to this man Jeffrey Epsteins house and you give him a body massage you get It was probably somebodys place it wasnt his name specifically probably the person that did tell me made it seem like it was just you go there you give him a massage you get Id lines lines JD5 further testified that she mentioned this being able to go to someones house and give a massage for to another girl D.D and told D.D that she was interested in going there but wanted wanted her D.D to come with me Id JD5 also testified that I dont even know how I found out it was in Palm Beach I dont recall exactly what happened But somehow when I decided to go there Sarah Jeffrey Epsteins assistant contacted me and was the one that set up the reservations Id lines JD5 was consistent in her testimony that when contacted by Sarah Kellen the only thing discussed was giving a massage for Id The next thing JD5 recalls is getting in a taxi cab and being taken to the Palm Beach mansion Id Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page The second time JDS went to EPSTEINs Palm Beach mansion she was not contacted by anyone She was in D.D.s vehicle with two other high school girls D.D and K.M and they happened to be going over there JDS Deposition JDS stayed in the kitchen area of the mansion with the chef and did not go upstairs with the two other girls Id She told EPSTEIN that he needs to give me money because I was upset with being there Id pp JDS testified that Epstein called her after she left nd visit and said to come back and get the money Id Thus JDS was at EPSTEINs Palm Beach home times one time in the massage room and the other time she waited in the kitchen and requested money from EPSTEIN for just being there There is no testimony or pleading allegations that JDS ever had any communications with EPSTEIN via the telephone cell-phone computer mails or texting regarding JDS engaging in sexual activity There is no testimony or complaint allegations that JDS ever traveled anywhere with EPSTEIN See Exhibit hereto above herein JD5s date of birth is October JDS Deposition lines The original Complaint D.E I in this matter was filed on April JDS turned years old on October Thus JDS was years old and approximately months at the time this suit was filed Summary Judgment Standard Summary judgment is proper under Rule Fed.R.Civ.P when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law Celotex Catrett U.S S.Ct L.Ed.2d Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page7 Pursuant to Rule a party against whom relief is sought may move with or without supporting affidavits for summary judgment on all or part of the claim As stated by the Supreme Court in Celotex Corp Catrett U.S S.Ct summary judgment is proper if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw In our view the plain language of Rule mandates the entry of summary judgment after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case and on which that party will bear the burden of proof at trial In such a situation there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the nonrnoving partys case necessarily renders all other facts immaterial The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof Discussion of Law as Applied to Undisputed Material Facts Showing that EPSTEIN Is Entitled to Summary Judgment as a Matter of Law I The version of U.S.C in effect at the time the purported conduct took place applies to the PlaintifPs claim against EPSTEIN not the version as amended and effective July The applicable version of U.S.C provides PART CRIMES CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a Any minor who is a victim ofa violation of section or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value See endnote for complete statutory text pre and post amendment Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page By its own terms U.S.C a creates a cause of action for a minor who is a victim ofa violation of section or of this title and who suffers personal injury as a result of such violation See generally Smith Husband F.Supp.2d E.D Va Smith Husband F.Supp.2d E.D Va Doe Liberatore F.Supp.2d M.D Pa The referenced statutes are all federal criminal statues contained in Title of the United States Code Thus in order to sustain a cause of action under a plaintiff is required to prove all the elements of one of the statutory enumerated criminal predicate acts See Gray Darby WL E.D Pa Mar requiring evidence to establish predicate act under U.S.C to state cause of action I A The statute in effect during the time the alleged conduct occurred applies to each of the Plaintiffs claim brought pursuant to U.S.C not the amended version which became effective on July See endnote for complete statutory text in effect prior to July and as amended Plaintiff in her complaint asserts that the alleged conduct by EPSTEIN occurred prior to the amended version of taking effect JDS alleges in or about Jane Doe then approximately years old as the period of time during which the conduct at issue occurred Based on JDSs deposition testimony she had one encounter with EPSTEIN in August to June Thus it is undisputed Epsteins conduct occurred prior to amendment effective July Under applicable law the statute in effect at the time of the alleged conduct applies See U.S Scheidt Slip Copy WL fn ED.Cal Jan Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page U.S Renga WL fn E.D Cal Aug U.S Ferenci WL fn E.D Cal Aug U.S Monk WL fn E.D Cal Aug U.S Zane WL fn.l E.D Cal Aug In each of these cases the referenced footnote states Prior to July the last sentence in Section a read Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Under the civil statute the minimum restitution amount for any violation of Section the predicate act at issue is for violations occurring after July and for violations occurring prior to Even with the typo the extra at the end of the quoted sentence it is clear that the Court applied the statute in effect at the time of the alleged criminal conduct constituting one of the statutorily enumerated predicate acts which is consistent with applicable law discussed more fully below herein It is an axiom of law that retroactivity is not favored in the law Bowen U.S at S.Ct at As eloquently stated in Landgraf USI Film Products S.Ct U.S the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to confonn their conduct accordingly settled expectations should not be lightly disrupted_FN,s For that reason the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal Kaiser U.S at S.Ct at SCALIA concurring In a free dynamic society creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions FN18 See General Motors Corp Romein U.S S.Ct L.Ed.2d Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation because it can deprive citizens of legitimate expectations and upset settled transactions Further citations omitted Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution The Ex Post Facto Clause flatly prohibits retroactive application of penal Iegislation.FN Article I cl I prohibits States from passing another type of retroactive legislation laws impairing the Obligation of Contracts The Fifth Amendments Takings Clause prevents the Legislature and other goverrunent actors from depriving private persons of vested property rights except for a public use and upon payment of just compensation The prohibitions on Bills of Attainder in Art I prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct See e.g United States Brown U.S S.Ct L.Ed.2d The Dne Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation a justification sufficient to validate a statutes prospective application under the Clause may not suffice to warrant its retroactive application Usery Turner Elkhorn Mining Co U.S I S.Ct L.Ed.2d FN19 Article I contains two Ex Post Facto Clauses one directed to Congress cl the other to the States cl We have construed the Clauses as applicable only to penal legislation See Calder Bull Dall I L.Ed I opinion of Chase These provisions demonstrate that retroactive statutes raise particular concerns The Legislatures unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals As Justice Marshall observed in his opinion for the Court in Weaver Graham U.S S.Ct L.Ed.2d the Ex Post Facto Clause not only ensures that individuals have fair warning about the effect of criminal statutes but also restricts governmental power by restraining arbitrary and potentially vindictive legislation Id at S.Ct at citations omitted FN FN20 See Richmond A Croson Co U.S S.Ct L.Ed.2d Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens It is the judicial system rather than the legislative process that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed STEVENS concurring in part and concurring in judgment James United States U.S S.Ct L.Ed.2d retroactive punitive measures may reflect a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons These well entrenched constitutional protections and presumptions against retroactive application of legislation establish that U.S.C in effect at the time Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page of the alleged conduct applies to the instant action and not the amended version See endnote hereto I Not only is there no clear express intent stating that the statute is to apply retroactively but applying the current version of the statute as amended in would be in clear violation of the Ex Post Facto Clause of the United States Constitution as it would be applied to events occurring before its enactment and would increase the penalty or punishment for the alleged crime U.S Const Art I cl I cl I U.S Seigel F.3d I th Cir U.S Edwards F.3d 3d Cir and generally Calder Bull U.S L.Ed WL Calder I The United States Constitution provides that no Bill of Attainder or ex post facto Law shall be passed by Congress U.S Const art I cl A law violates the Ex Post Facto Clause if it applies to events occurring before its enactment and disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime Lynce Mathis U.S S.Ct L.Ed.2d quoting Weaver Graham U.S S.Ct L.Ed.2d U.S Siegel,153 F.3d I th Cir is contained in Title of the United States Codes Crimes and Criminal Procedure Part I Crimes Chap Sexual Exploitation and Other Abuse of Children U.S.C is entitled Civil remedy for personal injuries and imposes a presumptive minimum of damages in the amount of should Plaintiff prove any violation of the specified criminal statutes and that she suffered personal injury with actual damages sustained Thus the effect of the amendments effective July would be to triple the amount of the statutory minimum previously in effect during the time of the alleged acts Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page The statute as amended in contains no language stating that the application is to be retroactive Thus there is no manifest intent that the statute is to apply retroactively and accordingly the statute in effect during the time of the alleged conduct is to apply Landgraf USI Film Products supra at A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date See fn herein This statute was enacted as part of the Federal Criminal Statutes targeting sexual predators and sex crimes against children H.R Child Protection and Sexual Predator Punishment Act of House Report No U.S.C.A.N Quoting from the Background and Need For Legislation portion of the House Report No H.R of which U.S.C is included is described as the most comprehensive package of new crimes and increased penalties ever developed in response to crimes against children particularly assaults facilitated by computers Further showing that was enacted as a criminal penalty or punishment Title II Punishing Sexual Predators Sec from House Report No specifically includes reference to the remedy created under as an additional means of punishing sexual predators along with other penalties and punishments Senatorial Comments in an1ending in confirm that the creation of the presumptive minimum damage amount is meant as an additional penalty against those who sexually exploit or abuse children WL Cong Rec Senator Kerry refers to the statutorily imposed damage amount as penalties Id The cases of U.S Siegel supra I th Cir and U.S Edwards supra 3d Cir also support Defendants position that application of the current version of Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page U.S.C would be in clear violation of the Ex Post Facto Clause In Siegel the Eleventh Circuit found that the Ex Post Facto Clause barred application of the Mandatory Victim Restitution Act of MYRA to the defendant whose criminal conduct occmTed before the effective date of the statute U.S.C A even though the guilty plea and sentencing proceeding occUITed after the effective date of the statute On July the defendant Siegel pleaded guilty to various charges under U.S.C and a A conspiracy to commit mail and wire fraud bank fraud and laundering of money instruments and money laundering He was sentenced on March As part of his sentence Siegel was ordered to pay in restitution under the MYRA which became effective on April Pub.L No Stat The amendments to MYRA required that the district court must order restitution in the full amount of the victims loss without consideration of the defendants ability to pay Prior to the enactment of the MYRA and under the former U.S.C a of the Victim and Witness Protection Act of VWPA Pub.I No Stat the court was required to consider among other factors the defendants ability to pay in determining the amount of restitution When the MYRA was enacted in Congress stated that the amendments to the VWP A shall to the extent constitutionally permissible be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act Apr Siegel supra at The alleged crimes occUITed between February to May The Court agreed with the defendants position that MYRA should not be applied in reviewing the validity of the courts restitution order Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CY-80381-Marra-Johnson Page because to do so would violate the Ex Post Facto Clause of the United States Constitution See U.S Const art I cl The Ex Post Facto analysis made by the Eleventh Circuit in Siegel is applicable to this action In resolving the issue in favor of the defendant the Court first considered whether a restitution order is a punishment Id at In determining that restitution was a punishment the Court noted that a of Title expressly describes restitution as a penalty In addition the Court also noted that although not in the context of an ex post facto determination restitution is a criminal penalty meant to have strong deterrent and rehabilitative effect United States Twitty F.3d 11th Second the Court considered whether the imposition of restitution under the MYRA is an increased penalty as prohibited by the Ex Post Facto Clause Id at In determining that the application of the MYRA would indeed run afoul of the Constitutions Ex Post Facto Clause the Court agreed with the majority of the Circuits that restitution under the MYRA was an increased penalty The effect of the MYRA can be detrimental to a defendant Previously after considering the defendants financial condition the court had the discretion to order restitution in an amount less than the loss sustained by the victim Under the MYRA however the court must order restitution to each victim in the full amount Id at See also U.S Edwards F.2d rd Circuit The Eleventh Circuit in holding that the MYRA cannot be applied to a person whose criminal conduct occurred prior to April was persuaded by the majority of districts on this issue Restitution is a criminal penalty carrying with it characteristics of criminal punishment Siegel snpra at The Eleventh Circuit is in agreement with the Second Third Eighth Ninth and D.C Circuits See U.S Futrell F.3d th Cir Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page In the instant cases in answering the first question it is clear that that imposition of a minimum amount of damages regardless of the amount of actual damages suffered by a minor victim is meant to be a penalty or punishment See statutory text and House Bill Reports cited above herein consistently referring to the presumptive minimum damages amount under as punishment or penalties According to the Ex Post Facto doctrine although is labeled a civil remedy such label is not dispositive if the effect of the statute is to impose punishment that is criminal in nature the ex post facto clause is implicated See generally Roman Catholic Bishop of Oakland Superior Court Cal.Rptr.3d at citing Kansas Hendricks U.S The effect of applying the version of would be to triple the amount of the presumptive minimum damages to a minor who proves the elements of her claim The fact that a plaintiff proceeding under has to prove a violation of a criminal statute and suffer personal injury to recover damages thereunder further supports that the imposition of a minimum amount regardless of a victims actual damages sustained is meant and was enacted as additional punishment or penalty for violation of criminal sexual exploitation and abuse of minors Accordingly this Court is required to apply the statute in effect at the time of the alleged criminal acts Not only is there no language in the statute stating that it is to apply retroactively but further such application of the version of U.S.C to acts that occurred prior to its effective date would have a detrimental and punitive Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page effect on Defendant by tripling the presumptive minimum of damages available to a plaintiff regardless of the actual damages suffered.2 I As discussed above U.S.C was enacted as part of the criminal statutory scheme to punish and penalize those who sexually exploit and abuse minors and thus the Ex Post Fact Clause prohibits a retroactive application of the amended version Even if one were to argue that the statute is civil and the damages thereunder are civil in nature under the analysis provided by the United States Supreme Court in Landgrafv USI Film Products U.S S.Ct pertaining to civil statutes not only is there no express intent by Congress to apply the new statute to past conduct but also the clear effect of retroactive application of the statute would be to increase the potential liability for past conduct from a minimum of to and thus in violation of the constitutional prohibitions against such application As noted U.S.C is entitled Civil remedy for personal injuries Notwithstanding this label the statute was enacted as part of the criminal statutory scheme to punish those who sexually exploit and abuse minors Regardless of the actual damages suffered or proven by a minor as long as a minor proves violation of a specified statutory criminal act under and personal injury the defendant is held liable for the statutory imposed mm1mum In other filed civil actions attempting to assert claims against EPSTEIN some plaintiffs also propose that the minimum damage amount is to apply on a per violation basis the absurdity of such position is further magnified when one considers that the presumptive damages amount was tripled to by the amendment Based on some plaintiffs position that amount would be multiplied even further based on the number of violations along with injury that she could prove Clearly the result is an unconstitutional increase in either a penalty or civil liability Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page Although there does not exist any definitive ruling of whether the damages awarded under are meant as criminal punishment or a civil damages award Defendant is still entitled to a determination as a matter of law that the statute in effect at the time of the alleged criminal conduct applies As explained by the Landgraf court supra at and at When a case implicates a federal statute enacted after the events in suit the courts first task is to determine whether Congress has expressly prescribed the statutes proper reach If Congress has done so of course there is no need to resort to judicial default rules When however the statute contains no such express conand the court must determine whether the new statute would have retroactive effect i.e whether it would impair rights a party possessed when he acted increase a partys liability for past conduct or impose new duties with respect to transactions already completed If the statute would operate retroactively our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result Here there is no clear expression of intent regarding the Acts application to conduct occurring well before its enactment Clearly however as discussed in part herein the presumptive minimum amount of damages of was enacted as a punishment or penalty upon those who sexually exploit and abuse minors See discussion of House Bill Reports and Congressional background above herein The amount triples the previous amount for which a defendant might be found liable regardless of the amount of actual damages a plaintiff has suffered and proven The new statute imposes a substantial increase in the monetary liability for past conduct As stated in Landgraf the extent of a partys liability in the civil context as well as the criminal is an important legal consequence that cannot be ignored Courts have In Landgraf the United States Supreme Court affirmed the judgment of the Court of Appeals and refused to apply new provisions of the Civil Rights Act of to conduct occurring before the effective date of the Act The Court determined that statutory text in question I was subject to the presumption against statutory retroactivity Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page consistently refused to apply a statute which substantially increases a partys liability to conduct occurring before the statutes enactment Landgraf supra at Even if plaintiff were to argue that retroactive application of the new statute would vindicate its purpose more fully even that consideration is not enough to rebut the presumption against retroactivity Id at The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice and accords with long held and widely shared expectations about the usual operation oflegislation Id Accordingly as a matter of law this Court is required to apply the version of U.S.C in effect at the time of the alleged conduct by EPSTEIN directed to Plaintiff II Defendant is entitled to snmmary judgment on Count I as under the undisputed material facts Plaintiff has failed to and can not show a violation of a requisite predicate act to sustain a claim pursuant to U.S.C As matter of law Defendant is entitled to the entry of a summary judgment in his favor on Count I entitled Coercion and Enticement to Sexual Activity in Violation of U.S.C In reality Count I is an attempt to bring a claim pursuant to U.S.C a which creates a civil remedy for violations of certain federal criminal statutes as discussed herein The undisputed material facts and applicable law show that Plaintiff does not and cannot establish the elements required to prove her claim As confirmed by Plaintiff in her deposition testimony the alleged encounter with EPSTEIN took place sometime during her sophomore of high school August to June at his Palm Beach Florida mansion JDS first learned of EPSTEIN in the beginning of her sophomore year in high school approximately August of to June Id lines I just heard sometl1ing about if you go Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No I-Marra-Johnson Page to this man Jeffrey Epsteins house and you give him a body massage you get It was probably somebodys place it wasnt his name specifically probably the person that did tell me made it seem like it was just you go there you give him a massage you get Id lines lines JDS further testified that she mentioned this being able to go to someones house and give a massage for to another girl D.D and told D.D that she was interested in going there but wanted wanted her D.D to come with me Id JDS also testified that I dont even know how I found out it was in Palm Beach I dont recall exactly what happened But somehow when I decided to go there Sarah Jeffrey Epsteins assistant contacted me and was the one that set up the reservations Id lines JDS was consistent in her testimony that when contacted by Sarah Kellen the only thing discussed was giving a massage for No other type of activity or conduct was discussed Id I The next thing JDS recalls is getting in a taxi cab and being taken to the Palm Beach mansion Id The applicable version of U.S.C provides PART CRIMES CHAPTER I 10--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a Any minor who is a victim of a violation of section or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value See endnote for complete statutory text Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page20 By its own tenns U.S.C a creates a cause of action for a minor who is a victim ofa violation of section or of this title and who suffers personal injury as a result of such violation See generally Gray Darby WL establishes a civil remedy for personal injuries suffered as a result of the violation of specific sections of the Code U.S.C Title Under this section any minor who is the victim of any of those sections may sue in federal court to recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Smith Husband F.Supp.2d E.D Va Smith Husband F.Supp.2d E.D Va Doe Liberatore F.Supp.2d M.D Pa The referenced statutes are all federal criminal statues contained in Title of the United States Code In her complaint Plaintiff partially tracks the language of U.S.C and cites generally to in an attempt to assert a claim under U.S.C 2d Am Com None of the State of Florida criminal statutes referenced by Plaintiff are a requisite predicate act required to prove a claim under U.S.C See of2d Am Comp Thus in order to sustain a cause of action under Plaintiff is required to prove all the elements of one of the statutory enumerated predicate acts See Gray Darby WL E.D Pa Mar requiring evidence to establish predicate act under U.S.C to state cause of action As noted above Plaintiff is relying on of Title and tracks the language of subsection of that statute There is no evidence whatsoever of EPSTEIN using the mail or any facility or means of interstate or foreign commerce or within the special maritime and territorial jurisdiction of the Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so In order to show a violation of U.S.C four elements must be proven use of a facility of interstate commerce to knowingly persuade induce entice or coerce any individual who is younger than to engage in any sexual activity for which any person can be charged with a criminal offense or attempting to do so U.S Thomas F.3d 10th Cir U.S Munro F.3d th Cir U.S Kaye F.Supp.2d E.D Va The undisputed material facts show that EPSTEIN and JDS never communicated at any time on any subject via the telephone internet texting e-mails or other form of electronic communication JDS testified that she found out about getting for a massage from another girl JDS decided to go there and initiated the contact The only thing discussed when Sarah set up the reservation was the giving of a massage for No other type of activity or conduct was discussed There was no communication by any means in which sexual activity or illicit sexual conduct was brought up with Epstein or Sarah According to JDS the only phone call from Epstein came after her second visit where she had waited in the kitchen of the Palm Beach home and JDS had demanded money from Epstein for just being there There is no testimony or complaint allegation that JDS travelled anywhere with EPSTEIN by car or otherwise See Statement of Facts Thus there was no use of a facility of interstate commerce to knowingly persuade induce entice or coerce any individual who is younger than to Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page engage in any sexual activity for which any person can be charged with a criminal offense or attempting to do so See for e.g U.S Gagliardi F.3d 2d Cir In Gagliardi a defendant was convicted of violating where he initiated contact with girl he believed was a minor in an internet chat room called I Love Older Men repeatedly made sexual advances toward girl and her friend asked them for their pictures steered the conversation toward sexual activities described the acts that he would engage in with them tried to set up a meeting with both of them and appeared for a meeting with condoms and a Viagra pill in his car Thus the Circuit court agreed had the requisite intent to violate The Circuit Court determined that a reasonable juror could also have found that the defendant took a substantial step beyond mere preparation when he arrived at the meeting place with two condoms and a Viagra pill in his car See also U.S Mumo F.3d 10th Defendant convicted of attempting to persuade a minor to engage in sexual acts by using computer connected to the internet under where chat room communications included defendant asking girl about her sexual history her virginity her experience wit oral sex and the possibility of making a movie together defendant further told girl about his desire to perform oral sex on her U.S Barlow F.3d th Cir See also U.S Kaye F.Supp.2d supra where defendant engaged in lengthy chat room communications of a sexual nature with individual he believed was a year old boy described what he was going to do with year old and traveled to the home of the year old Thus because the evidence JD5s own sworn testimony establishes that there was no violation of an essential element of Plaintiffs U.S.C claim Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page asserted in Count I is missing The claim fails as a matter of law and Defendant is entitled to the entry of summary judgment on the claim Summary judgment is proper under Rule Fed.R.Civ.P when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law Celotex Catrett U.S S.Ct L.Ed.2d Pursuant to Rule a party against whom relief is sought may move with or without supporting affidavits for summary judgment on all or part of the claim Thus under the undisputed material facts and applicable law EPSTEIN is entitled to summary judgment on Count I of Plaintiffs Second Amended Complaint as a matter oflaw JDSs own testimony establishes that EPSTEIN never used a facility or means of interstate commerce to knowingly persuade induce entice or coerce her to engage in any sexual activity for which any person can be charged with a criminal offense or attempting to do so U.S.C Under the undisputed material facts JDS cannot show a violation of the enumerated predicate act on which she relies in order to prove her claim pnrsuant to U.S.C thus an essential element of her cannot be established entitling Defendant to the entry of summary judgment on Count I Ill The Version of U.S.C In Effect When The Predicate Acts Allegedly Were Committed Allowed Only Minors To File Snit The Second Amended Complaint is predicated on conduct that occurred dnring JDSs sophomore year of high school approximately August of to June of when JDS was years old JDSs date of birth is October See Statement Facts above The original Complaint in this matter was filed on April Thus Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page JDS was years old and approximately months at the time this suit was filed and no longer a minor The age of majority under both federal and state law is years old See U.S.C defining a minor as any person under the age of eighteen years and Definitions Fla Stat defining minor to include any person who has not attained the age of years From to July U.S.C a provided Any minor who is a victim of a violation of certain specified federal statutes and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value It is well settled that in interpreting a statute the courts inquiry begins with the text and structure of the law CBS Inc Prime Time Venture F.3d 11th Cir We begin our construction of a statutory provision where courts should always begin the process oflegislative interpretation and where they often should end it as well which is with the words of the statutory provision quoting Harris Gamer F.3d 11th Cir en bane first alteration omitted In this case the plain text of the statute is both clear and unmistakable It allowed only minors or the representative of a then-minor see Fed Civ to initiate suit under It provided only that any minor may sue and that any minor shall recover the actual damages such minor sustains as a result of the predicate acts Id emphasis added The laws use of the present tense further underscored its limited scope It spoke of any minor who is a victim provided that such minor shall recover damages arising from the underlying offense and stated that any minor Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page shall be deemed to have sustained at least in damages Id emphasis added Where the statutes words are unambiguous-as the are here-the judicial inquiry is complete Merritt Dillard Paper Co F.3d 11th Cir citation omitted Under the pre-July version of the statute only minors could initiate suit The recent case of U.S Baker WL E.D Tx Dec in discussing the restitution under I U.S.C noted that when the statute was amended in Mashas Law increased the minimum damages amount from to and broadened the language of section to allow adults to recover for damages sustained while they were a minor The plain reading of the statute makes clear that prior to the amendment the remedy was created for the benefit of minors who suffered sexual exploitation as a result of violation of a statutorily enumerated criminal act To the extent there is any ambiguity in the text-and there is none-the laws legislative history further underscores Congres intent to limit the right of action to minors Current law provides for a civil remedy for personal injuries resulting from child pornography offenses This section expands the number of sex offenses in which a minor may pursue a civil remedy for personal injuries resulting from the offense H.R Rep at as reprinted in U.S.C.C.A.N And perhaps most telling Congress amended in years after the alleged misconduct in this case supposedly took place-to make the civil action available to persons who had turned by the time they filed suit a In general.-Any person who while a minor was a victim of a violation of section or of this title and who suffers personal injury as a Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page result of such violation regardless of whether the injury occurred while such person was a minor may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit including a reasonable attorneys fee Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than in value U.S.C emphasis added The contrast between the prior and versions of is stark The law replaces each of the prior laws uses of the term minor with the term person Where the law does refer to a minor it changes the prior laws present-tense references is to past-tense references was And the laws new language now makes clear that unlike the prior statute those victimized while under the age of may sue after they tum Given that amendments must be interpreted to have real and substantial effect Stone I.N.S U.S there can be no doubt that Congress recognized the prior statutes strict limitations and for the first time expanded the right of action to adults Indeed the history of the amendments clearly shows that Congress intended to change the law not merely to clarify it Those amendments were made by of the Adam Walsh Child Protection and Safety Act Pub No Stat and are known as Mashas Law As Senator Kerry-the author of Mashas Law--explained What Mashas law does and what is incorporated in here is it changes any minor to any person so that if a minor is depicted in photographs pornographically that are distributed over the Internet but by the time the abuser is caught the minor is an adult they can still recover They cannot now and that is ridiculous It makes sure that recovery on the part of a minor can take place when they become an adult Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page Although I dont think there is any price too high to cost an individual who would take advantage of a minor think it is only appropriate to make sure that reaching the age of adulthood does not exempt someone from recovery It is a tribute to continuing to do what this bill does and that is look after the protection of minors and ensure that those who violate them are caught and punished and have to pay to the maximum extent Cong Rec at July statement of Sen Kerry emphasis added Courts typically give special weight to the statements of a bills sponsor Corley U.S S.Ct Apr A sponsors statement to the full Senate carries considerable weight There is no basis to depart from that rule here It thus is no answer that the pre-amended statutes limitations clause provided that in the case of a person under a legal disability the complaint may be filed not later than three years after the disability U.S.C such that the unamended version of the law implicitly must have pennitted victims to sue even after they turned That interpretation not only would render Mashas Law superfluous it would make Mashas Laws internally redundant because Mashas Law retained the legal disability language from the prior version of See U.S.C In short the retained legal disability language in of the statute would be entirely redundant were it construed to do implicitly what the law elsewhere did Similarly the official summary prepared by the Congressional Research Service CRS explained that Mashas Law revises provisions allowing victims of certain sex-related crimes to seek civil remedies to allow adults as well as minors to sue for injuries and increase from to the minimum level of damages Official Summary of Pub Law No July as reprinted at summ2-m emphasis added last visited May Courts have long consulted official CRS summaries to assess legislative intent see e.g Rettig Pension Ben Guar Corp F.2d D.C Cir DIRECTV Inc Cignarella No Civ.A WL at D.N.J May Clohessy St Francis Hosp Healthcare No WL N.D Ill Jan and there is good reason to do so By design CRS summaries are intended to objectively describe the measures effect upon current law so that Congress can make informed judgments about the impact of proposed bills See The Library of Congress About CRS Summary available at http://thomas.loc.gov/bss/abt_ dgst.html last visited May I Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page expressly In these circnmstances the traditional rules against surplusage and redundancy apply with double force See e.g Duncan Walker U.S The legal disability language in should be interpreted to reference classic legal disabilities like insanity mental disability or imprisonment-not age Indeed that is precisely how Congress typically uses the term legal disability most federal statutes that use the term make clear that it doesnt include age See e.g U.S.C A share or interest payable to enrollees less than eighteen years of age or under legal disability shall be paid emphasis added id Funds payable under sections to of this title to minors or to persons under legal disability shall be paid emphasis added id Sums payable to enrollees who are less than eighteen years of age or who are under a legal disability shall be paid emphasis added id Sums payable to enrollees who are less than eighteen years of age or who are under a legal disability shall be paid emphasis added id same id same id same id same id same id same see also U.S.C Needless to say Congress would not have had to address age expressly in any of these statutes if the term legal disability necessarily included ones status as a minor instead Congres mere use of the term legal disability already would account for a would-be plaintiffs minority status Given the rule against reading a text in a way that makes part ofit redundant Nat Assn of Home Builders Defenders of Wildlife U.S citing TRW Inc Andrews U.S and the canon that where words are employed in a statute which had at the time a well-known meaning in the law of this country they are presumed to have been used in that sense Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page Standard Oil Co United States U.S reference to legal disability can only be interpreted as a reference to classic disabilities like insanity or mental incapacity but not age Accordingly Defendant is entitled to summary judgment determining that the applicable version of allows for a minor to pursue the remedy thereunder JDS was years old at the time she instituted this action no longer a minor Conclusion Thus under the undisputed material facts and applicable law Defendant is entitled to the entry of summary judgment determining that the version of U.S.C effective to Jul the period of time during which EPSTEINs alleged conduct occurred applies to Plaintiffs claim brought pursuant to JDS own testimony establishes that EPSTEIN never used a facility or means of interstate commerce to knowingly persuade induce entice or coerce her to engage in any sexual activity for which any person can be charged with a criminal offense or attempting to do so U.S.C Her testimony and the allegations of the complaint also show that EPSTEIN never traveled interstate with the specific intent of engaging in sexual activity with her U.S.C and Under the undisputed material facts JD2 cannot show a violation of the enumerated predicate acts on which she relies in order to prove her claim pursuant to U.S.C thus an essential element of her cannot be established entitling Defendant to the entry of summary judgment on Count I and the version of U.S.C in effect when the predicate acts allegedly were committed allow only minors to file suit Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page WHEREFORE Defendant requests that this Court enter the summary judgments sought herein Defendant further requests an award of his attorneys fees and costs in defending this claim By Isl Robert Critton Jr ROBERT CRITTON JR ESQ Florida Bar No 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 specified via transmission of Notices of Electronic Filing generated by CM/ECF on this day of May Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Fax ssm sexabuseattorney.com ahorowitz sexabuseattomey.com Counsel for Plaintiff Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian A venue South Suite West Palm Beach FL Fax jagesg bellsouth.net Counsel for Defendant Jeffrey Epstein Respectfully submitted By Isl Robert Critton Jr ROBERT CRITTON JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page mpike bclclaw.com BURMAN CRJTTON LUTTIER COLEMAN Banyan Blvd Suite West Palm Beach FL Phone Fax Co-Counsel for Defendant Jeffrey Epstein USCA effective to Jul PART CRIMES CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a Any minor who is a victim of a violation of section or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability not later than three years after the disability CREDIT Added Pub.L Title I Title VII a Oct Stat and amended Pub.L Title I bl Title Vil a Oct Stat Pub.L Title VI Oct Stat U.S.C as amended Effective July PART I--CRIMES CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a In general.--Any person who while a minor was a victim of a violation of section Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page or of this title and who suffers personal injury as a result of such violation regardless of whether the injury occurred while such person was a minor may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit including a reasonable attorneys fee Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Statute of limitations.--Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability not later than three years after the disability CREDIT Added Pub.L Title I Title VII a Oct Stat and amended Pub.L Title I Title VII a Oct Stat Pub.L Title VI Oct Stat Pub.L Title VII bl cl July Stat CHAPTER 117-TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED CRIMES Current through P.L End approved Coercion and enticement a Whoever knowingly persuades induces entices or coerces any individual to travel in interstate or foreign commerce or in any Territory or Possession of the United States to engage in prostitution or in any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title or imprisoned not more than years or both Whoever using the mail or any facility or means of interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title imprisoned not more than years or both As amended Apr In effect during Coercion and enticement Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Case No 08-CV-80381-Marra-Johnson Page a Whoever knowingly persuades induces entices or coerces any individual to travel in interstate or foreign commerce or in any Territory or Possession of the United States to engage in prostitution or in any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title or imprisoned not more than years or both Whoever using the mail or any facility or means of interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title and imprisoned not less than years and not more than years Note The amendment to the statute increased punishment that could be imposed for a violation thereof
