Case Document Entered on FLSD Docket Page of This court entered an order DE stating that Epstein must supplement his Response Memorandum to Plaintiffs Motion to Compel as to request for production numbers and collectively the Specified Requests DE Defendants time to respond and submit this supplementary brief was extended to August Epstein is submitting this Supplementary Brief with supporting case law only as to the Specified Requests An Amended Response will be provided as to Request to Produce Number II Supplementary Brief With Incorporated Memorandum of Law The Magistrates Order DE Correctly Sustained Epsteins th Amendment Privilege As To Several Requests And Interrogatories Seeking Testimonial And Incriminating Information Similar To The Specified Requests The Magistrate Judge found that several of the requests were testimonial in nature in that by production Epstein would be implicitly communicating statements of fact to which the Fifth Amendment privilege may be validly asserted DE On that basis and as a limited example this Court denied Plaintiffs motion relative to request number seeking telephone records of calls made by Epstein and request number seeking telephone calls made by Epstein to his employees Likewise this Court denied Plaintiffs motion relative to interrogatory numbers and because those interrogatories sought the names of Epsteins employees or their telephone numbers and thus would furnish a link in the chain of evidence needed to prosecute Epstein of a crime DE Additionally this Court denied Plaintiffs motion relative to interrogatory numbers and because those asked Epstein to identify persons or witnesses that have knowledge of the events in question Id Case Document Entered on FLSD Docket Page of at In making the decision the court recognized much like this Supplementary Brief contends infra that the facts alleged in the Complaints the elements needed to convict Epstein of a crime and the Courts knowledge concerning the cases at issue provide a basis for Epstein to raise the privilege based upon genuinely threatening questions which could furnish a link in the chain of evidence needed to convict Epstein of a crime DE United States Goodwin F.2d th Cir As detailed below the Specified Requests seek similar information or will lead to the production of the same exact information that this court has already ruled is protected by Epsteins Fifth Amendment Privilege Responding to the Specified Requests Would Violate Epsteins Amendment Privilege And Would Expose Him to the Hazards of18 U.S.C And The U.S.C Request for Production Numbers I and seek the following information Request No All documents referring to or relating to air travel and aircraft used by Defendant including without limitation flight logs and flight manifests Request No Any and all documents referring to or relating to modeling agencies including but not limited to documents relating to or reflecting communications with female models Request No Any and all documents reflecting or consisting of communications between Jeffrey Epstein and MC2 Models or Jean-Luc Brunel relating or referring to females coming into the United States from other countries to pursue a career in modeling including but not limited to letters notes and e-mails Request No Any and all personal calendars or schedules of or for Jeffrey Epstein from January to the present As discussed below production of the specified information is tantamount to compelled testimonial authentication of the information its existence its authenticity Case Document Entered on FLSD Docket Page of and as well Epsteins alleged possession custody or control of same Production may result in self incrimination and potential federal-criminal prosecution of Epstein The Background Of This Case And Other Related Cases As Well As The Federal Statutory Claims And Elements Of Those Offenses Must Be Considered In Connection With Epsteins More Particularized Showing Demonstrating How The th Amendment Is Validly Applied To Plaintiffs Requests For Production The circumstances of this case and in other related cases are such that not only does Epstein face allegations of sexual misconduct with and abuse exploitation and sexual battery of alleged minors in this and other civil actions in the State of Florida but he also faces the potential of further federal criminal investigations and the possibility of further criminal prosecutions based on the same factual allegations The Plaintiffs attorney represents Jane Doe Nos and in civil actions against Epstein filed in this Court In this and the other civil actions the Plaintiffs reference and in certain respects discussed herein rely on allegations of the commission of federal and state criminal statutes in an attempt to make claims against Epstein ranging from sexual battery to intentional infliction of emotional distress including as to Jane Doe violations of U.S.C entitled Coercion and enticement contained in Chapter of Title Transportation for Illegal Sexual Activity and Related Crimes and as to other Jane Does violations of U.S.C which criminalizes interstate or foreign travel for the purpose of having illicit sexual activity Both U.S.C and are alleged by Jane Doe and other Jane Does as predicate criminal offenses for federal damages lawsuits pursuant to U.S.C which creates a civil remedy for personal injuries when a plaintiff can first show a violation of specified federal statutory criminal statues Most importantly for purposes of the Courts making a determination regarding whether Epstein has shown a specific risk of self-incrimination Case Document Entered on FLSD Docket Page of or that production of a document would constitute a link in the chain of evidence see at pgs the lynchpin for the exercise of federal criminal jurisdiction under U.S.C is the use of any facility or means of interstate or foreign commerce and the analogous essential element of U.S.C is travel in interstate commerce or travels into the United States or as to a United States citizen travels in foreign commerce Thus facially an essential proof of any allegation of U.S.C the statutory precondition alleged by Jane Doe for a civil damage recovery includes telephone cellular phone e-mail records or other communications as a facility of interstate commerce during which use there was persuasion inducement enticing or coercing of an underage person to engage in prostitution or sexual activity Contested requests for production numbers I and ask that Epstein produce information e.g documents reflecting Epsteins air travel aircraft used and flight manifests all communications with female models MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedules that could reveal the availability to him or use of such interstate facilities and thus would constitute a link in the chain of evidence that could potentially expose him to the hazards of self incrimination as to S.C federal criminal violations Likewise other Jane Does such as Jane Doe have contended that they are entitled to U.S.C damages based on Epsteins violation of U.S.C a separate federal criminal statute that prohibits a person who travels in interstate commerce or travels into the United States for the purpose of engaging in illicit sexual activity As more fully discussed infra contested request to produce Case Document Entered on FLSD Docket Page of numbers and ask Epstein to produce information that could provide a link in the chain of evidence regarding a Epsteins air travel within the United States and Foreign Territories Epsteins communications with female models MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and Epsteins personal calendars and schedules Given that the essential proof of an allegation of U.S.C would include travel records schedules regarding trips and locations flight records and calendars evidencing Epsteins whereabouts the requested information if ordered produced by this Court would furnish evidence that could potentially expose Epstein to the hazards of self-incrimination as to U.S.C violations The is especially true given that according to Jane Doe 2s complaint he has residences and businesses in New York and the Virgin Islands as well as Florida Responding to request numbers and may expose Epstein to the hazards of U.S.C which was a target offenses of the joint FBI-United States Attorney investigation discussed above see par and infra The NPA And The Underlying Criminal Investigation That Led To The NPA Must Also Be Considered In Connection With Epsteins More Particularized Showing Demonstrating How The th Amendment Is Validly Applied To Plaintiffs Requests For Production U.S.C and U.S.C were offenses that were central to both the joint FBI-United States Attorney investigation and the resulting Grand Jury Case Document Entered on FLSD Docket Page of investigation as well as the NP A itself further demonstrating the extent to which Epsteins refusal to respond or produce information to each request is as required based on a specific apprehension of a compelled production and disclosure providing a link in the chain of evidence adverse to him Blau United States U.S A more particularized showing will be filed in camera so that Epstein can more fully particularize the basis of his constitutional assertions Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Application Of The Amendment In the instant case it is evident from the requests themselves the allegations in the various Complaints and the facts and circumstances surrounding these cases that to demand from Epstein a more particularized showing requires Epstein to walk a thin line with regard to surrendering the very protection which the privilege is designed to guarantee Hoffman U.S at The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege also encompasses the circumstance where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect United States Hubbell U.S at see also Fisher United States U.S McCormick on Evidence Title Chap The Privilege Against Self-Incrimination th Ed The implicit authentication rationale appears to be the prevailing justification for the Fifth Amendments application to documentary subpoenas which is no different from producing documents responsive to a request for production See U.S Hubbell Paragraphs of this Supplementary Brief are being provided to the court on an in camera basis as permitted by the Courts Order DE Case Document Entered on FLSD Docket Page of U.S Schmerber California U.S the privilege reaches the compulsion of responses which are also communications for example compliance with a subpoena to produce ones papers Couch United States U.S the person complying with the subpoena implicitly testifies that the evidence he brings forth is in fact the evidence demanded People Defore N.Y A defendant is protected from producing his documents in response to a Subpoena duces tecum for his production of them in court would be his voucher of their genuineness There would then be testimonial compulsion As stated in responding to each request Epstein would be compelled to provide assertions of fact thereby admitting that such documents existed and further admitting that the documents were in his possession or control and were authentic In other words the very act of production of the category of documents requested would implicitly communicate statements of fact Hubbell supra Hoffman United States U.S S.Ct As such the act of production might not only provide evidence to support a conviction but also a link in the chain of evidence for prosecution Importantly such compulsion to produce is the same as being compelled to testify Thus in those instances where the existence and/or location of the requested documents are unknown or where the production would implicitly authenticate the requested documents the act of producing responsive documents is considered testimonial and is protected by the Fifth Amendment In re Grand Jury Subpoena F.3d nd Cir see also Fisher U.S U.S issue expressed as whether compliance with a document request or subpoena tactically conceded the items Case Document Entered on FLSD Docket Page of authenticity existence or possession by defendant Even more egregious is that fact that producing or responding to the Specified Requests could result in self-incrimination and potential prosecution The United States Supreme Court has expressly encompassed the innocent citizen as well as the guilty within the ambit of Fifth Amendment protections i.e that Epstein may deny any allegation that he violated either of the above-described federal statutes is not in conflict with his constitutional right not to be compelled by requests to make disclosures that would further any investigation against him or incriminate him The Fifth Amendment privilege against self incrimination is accorded liberal construction Hoffman U.S at and extends not only to answers that would in themselves support a criminal conviction but extends also to those answers or responses as in the instant matter that would furnish a link in the chain of evidence needed to prosecute the claimant for a crime Id The Fifth Amendment serves as a guarantee against testimonial compulsion and provides in relevant part that no person shall be compelled in any Criminal Case to be a witness against himself DE In practice the Fifth Amendments privilege against self-incrimination permits a person not to answer official questions put to him in any other proceeding civil or criminal formal or informal where the answers might incriminate him in future criminal proceedings Edwin Price F.2d Cir citing Lefkowitz Turley U.S Thus information is protected by the privilege not only if it would support a criminal conviction but also in those instances where the responses would merely provide a lead or clue to evidence having a tendency to incriminate United States Neff F.2d th Cir cert denied U.S Case Document Entered on FLSD Docket Page of The claimant must also be confronted by substantial and real and not merely trifling or imaginary hazards of incrimination United States Apfelbaum U.S Accordingly responses to the requests propounded upon Epstein would provide information which is protected by the privilege i.e the responses ould merely provide a lead or clue to evidence having a tendency to incriminate Epstein United States Neff F.2d th Cir cert denied U.S Brief Conclusion For all of the foregoing reasons this Court should sustain Epsteins objections to the Specified Requests and uphold Epsteins right to assert his th Amendment Privilege in connection with same Wherefore Epstein respectfully requests that this Court issue and order a finding that the danger Epstein faces by being forced to respond and produce documents relative to request numbers and is substantial and real and not merely trifling or imaginary sustaining Epsteins Fifth Amendment Privilege as it relates to request numbers and and denying Plaintiffs Motion in that regard and for such other and further relief this Court deems just and proper AEL PIKE ESQ Florida Bar Certificate of Service 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 identifi the lowing Service List in the manner specified by CM/ECF on this day of A WaJ Respectful Case Document Entered on FLSD Docket Page of TON JR ESQ Flor a arNo rcrit clclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Counsel for Defendant Jeffrey Epstein Certificate of Service Jane Doe No Jeffrey Epstein Case No 08-CV-80119-MARRA/JOHNSON Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Brad Edwards Esq Rothstein Rosenfeldt Adler East Las Olas Boulevard Suite Fort Lauderdale FL Phone Fax bedwards rra-law.com Fax ssm sexabuseattomey.com ahorowitz sexabuseattomey.com Counsel for Plaintiffs Counsel for Plaintiff in Related Case No In related Cases Nos Richard Horace Willits Esq Richard Willits P.A th Avenue North Suite Lake Worth FL Fax Counsel for Plaintiff in Related Case No Paul Cassell Esq Pro Hae Vice South Room Salt Lake City UT Fax cassellp Jaw.utah.edu Co-counsel for Plaintiff Jane Doe Isidro Garcia Esq Garcia Law Firm P.A Datura Street Suite Case Document Entered on FLSD Docket Page of reelrhw hotmail.com Jack Scarola Esq Jack Hill Esq Searcy Denney Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach FL Fax isx searcylaw.com iph searcylaw.com Counsel for Plaintiff C.MA Bruce Reinhart Esq Bruce Reinhart P.A Australian Avenue Suite West Palm Beach FL Fax ecf brucereinhartlaw.com Counsel for Defendant Sarah Kellen Theodore Leopold Esq Spencer Kuvin Esq Leopold Kuvin P.A PGA Blvd Suite Palm Beach Gardens FL Fax Counsel for Plaintiff in Related Case No West Palm Beach FL isidrogarcia bellsouth.net Counsel for Plaintiff in Related Case No Robert Josefsberg Esq Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Fax riosefsberg podhurst.com kezell podhurst.com Counsel for Plaintiffs in Related Cases Nos and Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian A venue South Suite West Palm Beach FL Fax iagesg bellsouth.net Counsel for Defendant Jeffrey Epstein
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