UNITED DISTRICT DISTRIC-4.1T-.3 OF CASE NO 08-80736-CIV-MARRA/JOHNSON JANE DOE and JANE DOE Plaintiffs UNITED S-4.6T0ATES OF AMERICA,-5.8 Defendant I OTIO-8.4N THE TO ROM ISC-6.3L-4.5OSURE RA-6.3ND URY ATERIALS-7.3 I DENTIFIED-6 IN OVERN-7M-.5EN-7T D.E AND D.E 2680Intervenor Jeffrey Epstein oves that this Honorab le Court pur suant to Federal Rule of Crim8.4inal Procedure preven)5.6t the disclosure that before the two grand juries that investigated Mr Epstein in Mr Epstein joins the Governm8.2e-.8nt in its assertion of Rule objections to the vari ous requests by plaintif8.2fs for broa-6d discovery discovery that is either irreleva nt or at m8.7a-.3rginally relev5.9a nt to the issues5.1 r3.9e-.2garding5.9 th5.9e application and allegations of poss-5.4i-1.8ble violatio of the Victims Rights Act and allowed would be adverse to the privacy and re putational interests of the Intervenor Although Mr Epstein was convicted of state offenses and was sentenced to ja il he nevertheless has a right to the safeguards and requirem7.6e-1.4(nts of Rule Those protections include Rule im8.6perative that abs5e-.4nt p5.8a-.4rticularized5.8 need th5.8e secrecy of grand jury pr oceedings must rem8.5a-.5in not to protect the con6.1f4.1identia4.9lity of past proceedings in5.6cluding identity of witnesses,5.5 subjects targ5.5ets and the nature of co5.8nsidered5.8 cha4.7r-1.2ges but to pro5.5t-1.7ect all citizens4.7 who are not charged from the disclosure of inform)8.3ation docum8.3ents and testim8.3ony This 145Court 145granted 145plaintiffs 145lim8.3ited scovery finding that some factual developm8.4ent is necessa4.9ry resolve the rem8.9a-.1ining is5.3sues in th6.1is Order on Plaintiffs Motion for Finding Case Document Entered on FLSD Docket Page of of Violations of the Crim7.8e Vic tim8.5s Rights Act D.E Thereaf ter plaintiffs sought discovery of m8.3a-.7tters occurring before the grand jury and the government in response produced an initial privilege log D.E and later a supplem7.9en tal privilege log D.E asserting am7.9ong several other privileges Rule grand ju ry secrecy to of the docum7.9ents in its possession 2560After the governm8.3e-.7nt produced its5.1 priv5.9ileg5.9e-.3 log and Epstein5.9 moved to inte4.7rven5.9e4.7 D.E to protect his rights under Rule plaintiffs iled Protec4.8tive P7.1e-.1tition f4o1r4 Disclosure of Grand Materials D.E and a Motion to Com8.5p.7el Pr-6.3oduction of Docum8.1e-.9nts D.E which they the conc lusory asser3.9tions th5.9at they have4.8 establishe4.7d5.9 particularized needs and com7.9p.1elli ng reasons for the re3.8leas4.1e of in form8ation that occurred before-6 the gr3.8and ju5.8ry and the Cour3.8t the4.6 nt power to release grand jury m7.6a-1.4terials The Court granted plaintiffs Protecti ve Petition for Disclosure of Gr and Jury Materials subject to rulings as to6 whether the4.8 m8.8a-.2terials in6 question ar protected from8.6 disclosure by Federal Rule of Crim8.3inal Procedure D.E at The Court also allowed plaintiffs an additional opportunity to file a motion re asserting the objecti ons to the governm7.8ent?s assertions of privilege Id at Plaintiffs in their prior subm issions see D.E at D.E at have failed to establish th at grand jury m8.5a-.5terials are re levant to their claim7.8 under the CVRA and much less shown a part icularized n5.7eed for thes4.9e gran d6 ju6r4y1 m8.8a-.1terials particula4.8r-1ly given the G7.5overnm8.1e-.9nt?s Response to Plaintiffs Request for Adm8.2i-1.8ssion D.E at Further Epstein6?-1s in6teres5.2t-1.2 in the secre4.8c-.2y of m8.8a-.2tters which occur4r-1ed bef4o1re the f4e-.2dera4.9l gran6d6 juries of which he was the target should weigh along with other essential purposes in the Court?s future consideration of whether the requested m8.5a-.5terials hould or should not be disclosed Case Document Entered on FLSD Docket Page of I RAND UST Case Document Entered on FLSD Docket Page of not have a forum in to vindicate his rights In In re Smith F.2d th Cir the of an unindicted grand jury witness E6.4d.6ward Sm8.4ith was disclosed by the governm7.8e-1.2nt in factual summaries during two plea hearings and identified as som7.8e-1.2one who had accepted bribes from8.2 the defendants who were cha nging pleas Mr Sm8.7ith filed a m8.7o.9tion to strike his from8.1 the factual summ8.1aries and th reco5.2rd of that case or to seal the record Id at The lower court denied Mr Sm8.4ith?s Id at The Fifth Circuit overruled the lower court relying on an ear lier panel?s decision in United States Briggs F.2d th Cir and explain)5.8e4.6d that no legitim8.6ate gov5.8ernm ental in6.2teres5.4t-1 is serv6.2ed by an official pub6.2lic sm8.1ear of an individual that individual has not been provided a forum7.5 in which to vindicate his rights Id at In the instant case the Govern has filed a privilege log which in part relies Rule The Interv5.5enor is with5.5out access to the protected docum8.3ents and thus4.7 cannot further particularize objectio ns at this tim8e beyond what is ev ident that the disclosure of draft indictm8.3e-.7nts subpoenaed docum ents the identities of witnesse subjects and targets and other m7.7a-1.3terials protected by grand jury secrecy would im8.2pact on th Intervenor?s p5.6r3.6ivacy righ5.6ts as well as the other interes5t-1.4s pro5.8t3.6ected by the rules requiring Grand Jury secrecy II HE URY ATER-5.8IALS A RE I LAIM ND-6.8ER HE CVRA 2680Plaintiffs do not need grand jury m8.4a-5.6terial to establish their cl aim8.3 under the CVRA that the governm7.9e-1.1nt did not confer with them8 Indeed this Court ound in its Order Denying In re Smith5.2 is bind5.7ing in the Eleventh Circuit under Bonner City of Prichard Ala 2d th Cir en banc The Gove-5.8rnm8.2e-.8nt has also taken the position that all docum8.2ents sought regarding the underlying crim8.3inal investigation the FBI inve stigative file prosecution draft indictm8.4e-.6nt are irrelevant See Respondent?s Relevance Objections to Petitioners First-7 Request for Production to the Governm8.4e-.6nt D.E at The Governm8.1e-.9nt correctly points Case Document Entered on FLSD Docket Page of Governm8e-1nt-7?s Motion to Dism8iss Lack of Subj ect M5.1a-.3tter Jurisd5.9iction Order Lifting Stay of Discovery that CVRA injury5.9 not the governm7.8e-1.2nt?s failure to prosecute Epstein federally an end within the sole control of the government Rather it is the governm8.2e-.8nt?s failure to confer with the victim8.9s before dispos ing of contemplated fede ral charges D.E at e-6m8phasis in original 2729Therefore plaintiffs cannot any show ing much less a strong showing that they are entitled to traditiona4.5lly privileged ju ry materials that clearly pertain to the substantive crim8.7inal inv5.9e-.3stig5.9ation5.9 Mr Epstein5.9 and have rela4.7tion the CVRA Whether the governm8.4e-5.6nt had probable cause in its investigation against Mr E6.2p.4stein and whatever a search warrant or ta rget letter or draft indictment or overt acts show none of appears facially to be releva nt to the claim8.7 advanced in th is case that the governm8.7e-.3nt should have conferred with plaintiffs before re solving5.6 the inv5.6e-.6stigation Mr The Court should uphold the governm8.4e-.6nt?s claim8.4 of privilege under Rule pert aining to grand jury out that t8.6he docum8.4ents being requested are irre levant because the issue before this Court is whether the governm8.4e-.6nt violated the CVRA not how it exercised it prosecutorial discretion in the Epstein case Id at In contrast to the contested issue of when consultation rights are triggered by statute he CVRA expressly states that Nothing in this chapter shall be construed to im8.3pair the prosecutorial discretion of the Attorney Gene ral or any officer under his dire ction U.S.C The Act codifies the long-standi ng principle that the Atto rney G7.5e-.9neral and United States-5.5 Attorneys r4e-.2tain bro6a-.2d6 discre4.8tion to enf4o1rce the Nation?s5.2 crim8.8inal la4.8ws United States Armstrong U.S This is due in large part to the separation of powers doctr4ine Id U.S ONST art II Whether to investig5.8ate possib5.8l-1.4e crim8.6inal con5.8duct grant immunity negotiate a plea or dismiss charges are all cen6tral to the prosecuto6r?s5.2 executiv6e4.9 function United States Smith F.3d th Cir Case Document Entered on FLSD Docket Page of AVE STABLISH-6.9ED A ARTIC-5.5ULARI-9.4Z9ED EED FOR RAND URY only are the grand jury rials irre5.7levan6.9t-.3 CVRA claim8.7s.1 plaintiffs cannot a strong showing of particularized need for these grand jury m7.4a-1.6terials The Suprem8.1e Court has consistently he ld that a strong showing of particularized need is required before any grand jury m8.3a-.7terials are disclosed Lucas Turner F.2d th Cir To make a strong showing of particularized need for disclosure of grand jury m8.1a-.9terials the Supreme Court has established the followi ng three-prong test A party m8.3ust show that the m8.4a-.6terial he or she seeks is needed to avoid a possible injustic in another judicial proceed5.4ing that the need for dis5.6c.2losure is g6.4r4.4eater th an the need for continued secrecy and that the request is structured to cover only m8a-1terial so needed Id citing Douglas Oil U.S at In determ)7.5ining disclosure gran6.1d jury6.1 m8.9a-.1tters is in an6.1y given case a court exercise substantial di scretion weighing the need for secrecy against the need for disclosure of specified docum7.7e-1.3nts a nd testim8.1ony occurring bef8.3o.3re the grand jury Id citing Matter of Grand Jury Proceedings Miller Brewing Co F.2d th Cir Even in a case where a particularized need is established the secrecy of the proceed5.6ings4.8 is lifted dis4.8c-.6retely and lim8.4itedly Id c5.1iting United Procte4.5r4.8 Gamble U.S 2706Even though the two federal gr and juries that investig ating Mr E6.2p.4stein have ended their inv5.7e-.5stigation,5.7 the4.5 Court still conside4.5r-1.3 the4.7 ch5.9illin5.9g ef3.9f3.9ect disc4.7losur3.9e-.3 grand m8.9a-.1terials in this case4.9 have4.9 on future grand juries In consid ering the effects disclosure-6.3 on grand jury proceed5.7ings the court co nsider not only the imm8.3e-.7diate effects upon a Case Document Entered on FLSD Docket Page of particular grand jury but also the possible effect upon the functio ning of future grand juries I-7d citing Douglas Oil U.S at The court in Lucas acknowledged that disclosure of grand jury m8.3a-.7terials would cause witnesses in future gr and jury proceedings consider th5.6e possibility5.6 that their testim8.7ony la ter be disclosed to people outside the grand jury Id The court citing Douglas Oil Co recognized that fear of retribution or social stigma could act as strong disincentives to prospective witnesses Thus the interests in grand jury secrecy although reduced are not elim8.4inated m8.4e-.6rely because the grand jury4.9 has ended4.9 its activities Id citing5.8 Douglas Oil Co U.S at 2675Plaintiffs cannot establish a particularized ne ed for the grand jury m8.1a-.9terials listed in the governm8.4e-.6nt?s priv5.6ilege log because they canno5.6t sa tisfy any of the three prongs establish5.3e-.9d Douglas Oil First plaintiffs cannot show that the gra nd jury m7.8a-1.2terials they seek such as a draft indictm8.2e-.8nt a list of overt acts a search warrant or search w7.7a-.7rrants that include m)8.3a-.7terial or target letters for exam8.4ple are needed to avoid a possible injustice in th is CVRA case involving claim8.6 that the governm8.6e-.4nt failed to confer with plaintiffs before resolving this investigation 2730Second plaintiffs cannot establis that the need for disclosure is greater than the need continued secrecy As is fu lly explained above plaintiffs cannot even esta blish that the grand jury m8.1a-.9terials are relevant to their action under the C7V2.2RA ch less show that their need for the gran5.4d jury m8.2a-.8terials ou5.4tweig5.4h.4s all the re asons for maintaining the secrecy of the grand5.3 jury m8a-1terials Lastly plaintiffs Protective Pet ition for Disclosure of Grand Jury Materials D.E and its corollary requests co ntained in their Moti on to Com7.8p0el D.E in effect seeks wholesale production of the grand ju ry m7.8a-1.2terials Accordingly plaint iffs have failed to establish a particularized need for the pr oduction of grand jury m7.9a-1.1terials Case Document Entered on FLSD Docket Page of IV ONCLUS-7.6IO-7.5N Epstein5.7?-1.3s interes4.9t-1.5 in protecting5.7 the secr of4 m8.8a-.2tters that occu6rre4.8d bef4o1re the two federal grand juries of which he was the target along with the interests of various witnesses subjects and the Governm8.1e-.9nt?s ove rall interes5t-1.4 in grand ecrecy override any interest that plaintiffs may have in the grand jury m8.2a-.8terials listed in the gove rnm8.1e-.8nt?s privilege log absent a showing of the compelling pa rticularized need Moreover plaintiffs have not and cannot-7.7 a strong showing that the m8.3a-.7terials are even relevant to their claim8.2 under the CVRA much less that they have a particularized need these m8.4a-.6terials Th Court should therefore find that the docum8.3ents identified by the governm8.3e-.7nt as gra-5.6nd jury m8.4a-.6terials are protected from disclosure under Rule Acco rdingly the Court should d6eclin6e to o6r4der the4.8 disc4.8losure of4 the4.9 grand jury m8.2a-.8terials listed in the governm8.2e-.8nt?s privilege log Case Document Entered on FLSD Docket Page of Respectf3.9u.9lly5.9 subm8.7itted BLACK SREB-3.5NICK KORNSPAN STUMPF South Biscayne Boulevard Suite Miam8.3i 2750Florida Office Fax 2750RBlack RoyBlack.com R7.2oy Black ROY BLACK ESQ Florida Bar No JACKIE ESQ Florida Bar No On behalf of Intervenor Jeffrey Epstein MARTIN WEINB-3.6E1.4RG P.C Suite Boston Office Fax By 2750Martin MARTIN WEINBERG ESQ Massachusetts Bar No On behalf of Intervenor Jeffrey Epstein CERTIFICATE OF We certify that on October the foregoi ng docum8ent was filed electronically with the Clerk of the Court using R7.2oy Black ROY BLACK ESQ Case Document Entered on FLSD Docket Page of
