UNITED DISTRICT DISTRIC-4.1T-.3 OF CASE No JANE DOE AND DOE UNITED OF AMERICA,-6.1 Defendant MOTION OF JEFFREY EPSTEIN FOR PR OSPECTIVE LIMITED INTERVENTION AT THE REMEDY OF THESE P-4.9R-3.5OCEEDINGS 2730.9Jeffrey Epstein hereby moves pursuant to Fe Crim8.1 a and5.7 he be perm8.8itted to in6tervene in thes5.2e proceed6in6gs when and if they the at which th5.6e Court will consider what rem8.3e-.7dy to order if it fi nds that the governm8.6e-.4nt vi olated the plain5.7tiffs rights under the CVRA Mr Epstein does not seek to intervene generally in the case as the duties and obligations im7.8posed by the CVRA appl sole4.4ly to the4.4 go5.6vernm8.4e-.6nt the statuto5.6r-1.4y requirem8.3e-.7nts do not run to Mr Epstein he had no obligations to the plaintiff under the CVRA The dispute regarding whether the governm7.6e-1.4nt violated the plain tiffs rights under the CVRA one between the plaintiffs and the governm8e-1nt However if the case reaches the issue which this4.9 Court has4.9 id is contingent upon whether the plaintiffs eviden tiary proof8.1s will entitle them7.9 to rescission relief question properly reserved for determ8.1ination upon a fully developed evidentiary record Order Denying Governm8.4e-.6nt?s Motion to Dism8.4iss for Lack of Subject Matter Juri sdiction Doc at Mr Epstein has a clear and com8.7p.9elling intere in op5.7posing any rem8.5e-.5dy that would entail Case Document Entered on FLSD Docket Page of rescission of his non-prosecution agreem8ent with the governm7.6e-1.4nt and has interests which are personal to him7.7 and would not be adequately represented by the governm7.7e-1.3nt should the Court determ8.2ine that a CVRA violation occurred a nd that rescission or re-opening of the non prosecution agreem8.3ent was one of the re options under consideration See e.g Harris Pernsley F.2d 3d Cir Given the na ture of an applicant?s interest he or she have a sufficient interest to intervene as to certain issues in an action without having an inte4.9rest in th6.1e litiga4.9tion a whole 2740Because Epstein does not seek interven generally in the action bu5.6t instead only as to the issue of if it aris es the Court has the option of holding this m8o.2tion in abeyance and not deciding it unless and until such tim8.3e as it decides that it fashion a rem8e-1dy violation of the CVRA Mr Epstei is this m8.7o.9tion at the to ensure th5.9at plaintiffs have continuing notice of his intent ion to intervene to oppose the rescission of his non prosecution agreem8.2ent with the governm8.2e-5.8nt a m8.2a-.8tter that fundam8.2e-.8ntally im8.2pacts his constitutional and contractual rights its Mo6tio6n to Dism8.8iss f4o1r Lack of Subject Matter Jurisdiction Doc at the governm8.3e-.7nt correctly argues that as a m8.7a-.3tter of contract law a nd due process courts cannot order rescission of a contract of which the non prosecution agreem7.9ent is one unless all parties to the contract are befo5.2re the ourt Mr Epstein has no access to th courts to as5.2sert this5.2 rig6h1t without intervening in this ac tion as to rem8.2e-.8dy which creates an uncon5.4stitu5.4tion5.4a-.8l d5.4ilemm8.2a a veritable Catch-22 in which he would be for ced to forego one right not to have the non prosecution5.6 agreem8.4ent rescinded in his absence ot-5.6her contractual and due process rights in the m8a-1tter See e.g Simmons United States U.S Case Document Entered on FLSD Docket Page of We find it intolerable that one co5.8nstitu5.8tion5.8a-.4l right should5.8 have to surrende4.9red6.1 to assert a4.9nother?4.9 Tomai-Minogue State Farm Mut Auto Ins Co F.2d 4th Cir finding it a questionable line of argum8.1en that to assert her rights as a m8.5a-.5tter of procedural due process Tom8.3a-.7i-Minogue would be com8.3p.5elled to forego other due process rights Thus in seeking5.5 to inte4.3rvene4.4 with re4.3spect to Mr Eps4.7t-1.7ein does not waive the issue regarding whether the C7.6ourt can5.6 res4.8c-.6ind the non5.6-prosecu5.6tion5.6 agreem8.4ent if he is not before the Court as a party I 2108.4INTERVE-3.7NTION AS OF RIGHT party intervene as of right under Rule a if the applic ation to inte4.4rvene is tim9ely the party an inte5res5.4t-1 rela5ting to the property or transactio which is the subject m8.4a-.6tter of th5.6e action the party is situated that dispo5.4s-.4ition5.4 of th5.4e action a practical m9.2a.2tter im9.2pede or impair its ab5.9ility to protect inte4.7rest and the intere4.7st repres5.2ented6 inadequa4.8tely6 by the ex6.1is5.3ting pa4.9rties to the Chiles Thornburgh F.2d 11th Cir The circum)8.3stances here easily satisfy all four elem7.8ents of the standard A Timeliness.5.2 In asses5.3s.3ing6.1 the tim8.9eline4.9ss m8.9o1.1tions to interv en6.2e courts are5 to conside5r-.8 of during which the would-be intervenor knew or reasonably should have known of his interest the cas4.4e befo5.2re he petitio5.2n.2ed for leav interve5.1n1.3e the tent of prejudice to the existing parties as a result of the would-be interv failure to apply as soon as he knew or reasonably should have known of hi interest the extent of prejudice to the would-be-5.9 intervenor if his petitio5.5n is denied5.5 and th6e existen6ce o6f4 unusual circum8.8stances5.2 m8.8ilitating Case Document Entered on FLSD Docket Page of eithe5.1r-.7 or against a d6.3e.1term9.1ination6.3 that the ap6.3plica5.1tion is tim9.1ely United States Jefferson County F.2d 11th Cir Tim)8e-1liness is not precisely Brown ex re4.3l O?Neil Bush Fed Appx 11th Cir and is not lim)7.9ited to chronological considerations but is to be determ7.4ined fr om all the circum8.2stances Stallworth Monsanto Co F.2d 5th Cir Among the circum)8.4stances which be considered is the purpose fo which intervention is sought National Resources Defense Council C8o1stle F.2d D.C.Cir 2640Here the governm8.2e-.8nt moved to dism8.2iss plai com9p1.2laint lack subject m9a0tter jurisdiction in In th at m8.2o.4tion the governm8.2e-.8nt contended inte4.3r alia that the4.8 rem8.2e-.8dy of r-6.6e-.8scission of the non prosecution agreem8.1ent was prohi bited on due process grounds See Order Denying Governm8.5e-.5nt?s Motion to Dism8.5i ss for Lack of Subjec Jurisdic5.2tion Doc at It was not until June th at the Court denied the m8.5o.7tion and indicated5.7 that it believ5.7ed rescissio5.7n.7 to be a potentially av5.8ailable rem8.6e-.4dy Id at Thus it is only now that Mr Epstein?s future interest in preserving in violate his non-prosecution agreem8.1ent has become-5.9 sufficiently concretized for seeking interven tion to contest the rescission rem8e-1dy sought by A m8.8o1tion to6 inte4.8rvene4.8 b6e-.2f4o1re the4.8 Court ru led on the Governm8e-1nt?s Motion to Dism8iss which focused in part on the question whether re scission an available at all would have been prem8.3ature Mr Epstein has moved to intervene promptly upon learning that the Court would consider rescission in fashioning the rem8.4e-.6dy in this case assum8i-2ng of course that plaintiffs-5.6 Courts including the Eleventh Circuit have recognized the propriet of intervention to litigate See e.g Benjamin ex rel Yock Department of Public Welfare F.3d 3d Cir Howard McLucas F.2d 11th Cir Costle F.2d see also Caterin6.3o1.3 Berry F.2d 1st Cir dis trict court denied intervention at liability stage but ind5.5i3.3cated that it would consider a m8.5o.7tion to intervene at the rem8.3e-.7dy stage Case Document Entered on FLSD Docket Page of prove e4.7n.9titlem8.7e-.3nt to any relief3.9 at all ther)3.9e is no need to evaluate pr ejudice to the plaintiffs In any even6t there will be no prejudice to in ter4m8.8s of tim8.8eliness in a4.8l-1.2lowing Mr.6 Epstein to intervene on the issue of part icularly as this m8.4o.6tion provides them with further notice that he intends to do so m8.1onths before the issue of re-5.9medy is even potentially b5.7e-.5fore the Co5.7urt a con5.7t3.5ext th5.7at wo resu5.5lt in the Court addressing the rem7.9e-1.1dial options available to respond to a violation of th CVRA rights of the plaintiffs should any such violations be found sharp contrast denying in te4.8rven6tion to6 Mr.6 Epstein to li rem8.5e-.4dy will cause4.5 him severe preju5.9d.9ice as th5.9e plain5.9tiffs are asking th Court to invalidate a binding contract to which he is a signatory and w7.3h.1ich im7.9p licates his constitutional rights Mr Epstein entered into a non prosecution5.8 agreem8.6ent with the g5.8overnm8.6e-.4nt a nd has fully perform8.3e-.7d to his detrim8.3ent his obligations under that agreem8.6ent including pleading guilty to st ate court charges serving a prison term8.2 serving a year of com8m3unity control paying the4.4 attorney rep5.5r-1.5esen5.5ting who brought actions solely under U.S.C as he was required to do by the non prosecution agreem8ent and m8a-1king civil settle with all such claimants due in significant part to the requirem8.3e-.7nts of the non-pr osecution agreem8.2ent that prohibited Mr Epstein In any case th5.6is filing is not th5.6e first notice to plain5.3tiffs of Epstein?s intention necessary to seek a prospective in tervention if the rem8.6e-.4dy issue is reached and if rescission of the non prosecution agreem8.6ent which im8.6plicates his and co6.1nstitu6.1tion6.1a-.1l rights As plain5.7tiffs them8.5selves recognize E6.5pstein has announ ced that he will seek to interv5.8ene further in this case should any effort be by the victim8.6s to seek a that would harm8.6 Motion to Non-Party Interlocut ory Appeal filed by plaintiffs in Jane Doe and Jane-5.5 Doe United States Roy Black et al Intervenors E5.9l2.9eventh Circuit No citing at Mr Epstein?s assertion that he has an interest in the non-prosecution agreem8.9ent which would late4.9r ripe th Court were to consider invalidating that agreem8.8ent Case Document Entered on FLSD Docket Page of contesting liability See U7.3n.1ited Reply in Support of Its Motion to Dism7.1iss Lack of Subject Matter Jurisd5.2ic tion Doc Exhibit at detailing reliance of plaintiffs them8selves as well as other claim8a nts on the non-prosecution agreem8.1ent in seeking and then negotiating civil se ttlem8.1ents with Mr Epstein He has an intense interest in opposing plain5.8tiffs effort to set that agreement aside and in presenting to the Court reasons why the agreem8.5ent should not rescinded which are rsonal to as opposed to the institu6.1tion6.1a-.1l considerations which the governm7.9e-1.1nt has and advance 2620Even though the action has been pending since plaintiffs knowingly sat on their-7.1 CVRA claim8.1s-.5 for years as serv5.3ed a prison sentence and as he satisfied all the requirem8e-1nts of his non-prosecution agreem8ent Ra ther th5.7an seek5.7 emerge ncy relief from7.8 the Court the plaintiffs appeared at a status conference on July knowing that Mr Epstein was in pris4.8on and told the Court that they saw no reason to proc eed on an em8.3ergency basis Trans July at Moreover in a hearing one nth later the plaintiffs specifically asked that the Court not invalidate the non-pro5.6s-.2ecution agreem8.4ent because of legal consequences of invalidati the agreem9.1ent it is not interest to ask for the rescission relief that we initially asked for Trans August at Thus plaintiffs waived thei right to have the ourt take up and decide any m7.8o0tion asserting a victim5.6s-.4 right forthwith U.S.C in favor of their pursuing over at least the next eighteen civ5.8il settlem8.6ent actions agains5t Mr Epstein prior to rath er th6.3an co6.3ncurren6.3tly with litigating their CV7.5RA rights As the direct re sult Mr Epstein has to his de4.8trim8.8ent serv6ed prison sentence served a year of co mmunity control probation and monetary paym8.3ents that are directly relate to his obligations under the non-prosecution See Non-Prosecution Agreem7.9ent executed on Septem7.9ber Case Document Entered on FLSD Docket Page of agreem8.3ent to pay legal fees for atto5.5rney rep5.5r-1.5esen5.5tation and not to contest li ability for underlying offenses to those suing under alone So inactiv were plaintiffs in this case that the Court dism7.9issed the case for lack of prosecution in Septem7.7ber Doc Despite the long pendency of the action the case remains for easons in its relatively early stages If is needed to warrant intervention the unusual pr ocedural posture of the case presents unusual circum9.1stanc5.1e.1s m9.1ilitating6.3 a determ9.1ina5.1tion applic5.1ation is tim9.1ely m9.1o1.3tion to having f3.9iled little th an two short weeks of the Court?s ruling on the-6 governm8.7e-.3nt?s m8.7o.9tion to dism8.7iss satisfies the tim eliness requirem8.3e-.7nt for i-6.9n.3tervention both as of right and perm8issive Epstein Has an Interest Relating to the Property or Transaction Which Is the Subject Matter of the Action Mr Epstein unquestionably has an interest in opposing rescission of the non-prosecution agreem8.5ent into which he entered with the governm8.5e nt An applicant has a sufficient interest to intervene where contractual rights of the applicant be affected by a proposed rem8.2e-.8dy Forest Conservation Counsel United States Forest Service F.3d 9th Cir abrogated on other grounds Wild6erness5.2 Society Unite States Forest Service F.3d 9th Cir quoting Harris F.2d at Nonprosecu tion agreem7.2e-6.8n-.6ts like plea bargains,5.8 are contractu5.8a4.6l in nature,5.8 and are th5.8er ef4.1ore in6.1te4.9rpreted in a ccordanc4.1e-1 with general-7 principles of contract law Under these princi ples if a defendant lives up to his end of bargain the governm8.5e-.5nt is bound to perform8.5 its prom8.5ises United States Castaneda F.3d 5th Cir The potential rescission rem8.4e-.6dy also has serious im7.9plications for Mr Epstein?s constitutional rights as due process requires th governm7.9e-1.1nt to adhere to the See Addendum8 to the Non-Prosecution Agreem8ent executed in October Case Document Entered on FLSD Docket Page of term8.6s of any plea bargain or imm9.3unity agre5.3em9.3ent it m9.3a.3kes United Hill F.3d 11th qu5.5oting United5.5 States Harvey 11th en banc See e.g Santobello New York U.S en a plea rests in any significant degree on a prom8ise of the prosecutor so that it ca be said to be part of the inducem8.2ent or consideration such prom8.1ise be fulfilled United States F.3d 11th Cir Due process requ ires the governm8.3e-.7nt to adhere to prom8.4ises it has in a plea agreem8.4ent Epstein Is Situated So That Disp osit4io6n of the on as a Practical Matte4.5r Ma5.7y Impede Impair His Ability to Protect Intere4.4st.5.6 Mr Epstein as previously discussed is a pa rty to a binding contr act a contract with respec4.7t to which his right to due process is at stake which the plaintiffs are seeking to have this Court invalidate If he cannot intervene to oppose such a rem8.3e-.7dy he will be forced to the sidelin es while oth5.5e-.7rs litigate rights which4.8 are personal and funda-5.5mentally im8.5portan5.7t to His ability to protect his4.9 interes4.9t-1.5 in the validity of the non prosecution agreem8.5ent would be severely im8.5pa-5.5ired Also unless he is5 allowed to inte4.6rvene would not be able to appeal from any possibl future order of the Court rescinding the non prosecution agreem8.2ent and would lose another level of ability to protect hi in the non6.1 prosecution agreem8.4ent The Supreme Court has it clea5r that rule th6.2at only parties a lawsuit or those that properly parties appeal an a dverse judgm8.5e-.5nt is well se4.7ttled.5.8 Marino O8.3r.3tiz U.S Even were he al lowed to intervene later for purposes of appeal he would likely be lim ite4.7d to the issu5.9es ra4.7ised5.9 the and unable to asse4.7rt own individual interests on appeal See e.g Georgia Power Co Te-6leport Communications Case Document Entered on FLSD Docket Page of Atlanta Inc F.3d 11th Cir ex cept for extraordinary cases an intervenor is precluded from raising issues not raised by the pa4.6rties Epstein?s Interes4.5t in the Non Rescis4.8sion of th6.7e Non-Prosecution Agreement Would Not Be Adequately Rep res4.3ented by the Existing Pa5.1rties4.3 to the Suit the g6.1overnm8.9e-.1nt adequately whateve5r4.1 inter4.1e-.1sts Mr have if any with respect to the question whether the governm7.6e-1.4nt violated the plaintiffs rights under the CVRA the is not true as to the question of whether if the Court finds that it did so rescission of the non-prosecution is an av ailable or appropriate rem8.2e-.8dy Although the Eleventh5.8 Circuit has5 sa4.6id is pr esum7.8ption of adequate representation where an existing party seeks4.4 the objectives the in5.2terven5.2ers Stone First Union Corp F.3d 11th Cir that presum)8.3ption is a weak one id interveners5 need only show that the curren5.3t-1.9 party?s representation may be inadequate and the burden for m8.3a-.7king such a showing is m8.8inim8.8al Id emphasis added quoting Clark Putnam County F.3d Cir See e.g Georgia United States Army Corps of Engineers F.3d 11th Cir The proposed inte rvenor has the burden of showing that existing parties cannot adequately re present its interests but this burden is treated as Federal Sav and Loan Ins Corp Falls Chase Special Taxing District F.3d 11th Cir The proposed intervenor?s burden to how that their interests may inadequately represented is m8a-1l em8phasis in original Epstein and the governm7.6e-1.4nt may shar a common goal of opposing a rescission rem8.4e-.6dy at least at the present juncture but their interests as well as what they would bring to the Court the issue,5.6 vary substantially Th governm8.4e-.6nt will m8.4ost likely5.6 pres4.8ent general Case Document Entered on FLSD Docket Page of institutional reasons why non-pros ecution agreem8ents into which it has entered are binding on it-7 and cannot,5.5 or should not be resc inded In contras4.7t-1.7 in additi on to the argum8.1ents which the governm8.1e-.9nt advance Mr Epstein has,5 specific personal and private inte4.5rests in the non-re4.5sci ssion of this particular agreem8.1ent including his constitu tional right to due process of law see pages supra his d5.5e4.3trim8.3ental reliance the agreem8.3ent and his full perform8.4a-.6nce of his obligati ons under the agreem8.3ent on the basis of that reliance including as discussed5.5 above pleading guilty to state court ch arges serving a priso5.8n.8 term8.6 serving a year of community control and paying the attorney representing persons who had brought or were threa4.4t-1.6ening5.6 to actions a4.4g.6ainst him8.4 dam7.7a-1.3ges Mr Epstein?s personal constitutional and contractual rights in the tter should be before the Court in m8.3a-.7king its determ8.7inatio5.9n as to rem8.7e-.3dy if the proceed5.9ings5.1 reach th5.8at stage and the government will no5.8t adequately repres5ent th5.8ose righ5.8ts that are pe rsonal to Mr Epstein I ndeed plaintiffs have contended that the governm8.3ent does not have st anding to argue that rescission of the non prosecution agreem8.2ent would violat Mr Epstein?s constitutional rights Jane Doe and Jane Doe Response to Governm8.3e-.7nt-6.7?s Sealed Mo tion to Dism8.3iss ack of Subject Matter Jurisdiction Doc at II PERMISSIVE 1720INTERVENTION The Court n5.5eed not reach the i ssue of perm8.7issive interven5.9tio as Mr Epstein so plainly satisf4.2i4es th6.2e criter4.2ia interven6.2tion6.2 as righ6.2t For the4.7 same rea4.7s.1ons ad5.9dressed5.9 in th5.9e prec4.7eding5.9 section Mr Epstein has a claim8.5 or defense that shares with the m8a-1in action a comm8on question of law or fa-6.3ct Fed Civ Th at comm8.4on question of la or fact is whether rescission of a non-prosecution agreem8.4ent is a perm8.5issible rem8.5e-.5dy for a violation of Case Document Entered on FLSD Docket Page of plaintiffs rights under the CVRA if such a violation is f8.2ound to have occurred and if so whether that rem8.3e-.7dy should be ordered in this case CONCL-4.1US-4.9ION For all the f9.1o1.1regoing rea4.9s.3ons Mr m8.9o1.1tion to in6.1te4.9rv6.1ene as the4.9 rem8.9e-.1dy issue in this case is tim8.4ely and should be granted as of right under Rule a Alternatively perm8.4issive intervention should be granted under Rule We certify that on July this on was filed using the CM/ECF system8 Respectf3.9u.9lly5.9 2750subm8.7itted BLACK SREB-3.3NICK KORNSPAN 2750South 2750Biscayne 2750Boulevard Suite Miam8.3i 2750Florida Telephone Fax ROY BL-3.3ACK ESQ Florida rblack ro5.5yblack.com JACKIE ESQ Florida jperczek r4.7oyblack.com MARTIN WEINB-3.6E1.4RG P.C Suite Boston Office Fax By MARTIN WEINBERG ESQ Massachusetts Bar No owlmgw att.net Case Document Entered on FLSD Docket Page of
