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+### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
+
+Case No. 08-80736-Civ-Marranohnson
+
+JANE DOE #1 and JANE DOE #2
+
+1.
+
+UNITED STATES
+
+### JANE DOE #1 AND JANE DOE #2'S MOTION FOR A PROMPT RULING DENYING GOVERNMENT'S MOTION TO STAY
+
+COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to request an expedited ruling on the Government's Motion to Stay. The Government's motion was filed more than one year ago, yet (presumably because of a flurry of other motions) the Court has yet to rule on this particular motion. The practical effect of a lack of a ruling on that motion has been to effectively grant the stay — blocking discovery in this case. Court should rule quickly on that motion and deny that motion. Denying the stay would allow the limited discovery that the Court has previously authorized to move forward in this case, putting the case on a path toward final resolution.
+
+## BACKGROUND
+
+As the Court is aware, the victims filed this case alleging Government violations of the CVRA in July 2008. Through more than four years of litigation, however, the Government has refused to reach a stipulated set of facts regarding how it treated the victims. Accordingly, more than eighteen months ago, on March 21, 2011 the victims filed a motion to have their detailed recitation of the facts accepted because of the Government's failure to contest their facts (DE 49). On September 26, 2011, the Court denied that motion on the ground that the victims would instead be allowed limited discovery to develop a factual record (DE 99 at 11). The victims then sent limited discovery requests to the Government. On November 8, 2011, the same day that the production of discovery was due, rather than produce a single item of discovery or stipulate to a single fact, the Government filed a motion to dismiss the victims' case. The Government also filed an accompanying motion for a stay in this case.'
+
+On December 5, 2011, the victims filed a response to Government's motion to stay. The victims strenuously objected to the Government's approach, alleging specifically that "delay appears to be the Government's motivation for filing the motion to dismiss." DE 129 at 2. The victims went on to recount the fact that the Government had waited three years to file a motion to dismiss, concluding that "as a practical matter, the Government's motion has had the desired effect of delay: While its motion remains pending, the victims have been effectively denied any ability to obtain discovery from the Government." DE 129 at 2-3.
+
+Now, one year and one day later, the Government's strategy (aided by parallel motions from Jeffrey Epstein) continues to effectively block the victims from obtaining discovery and learning what happened during the Government's plea negotiations with the man who sexually abused them. Indeed, remarkably, the Government has effectively obtained a stay of
+
+I In an effort to keep the public from learning what it was doing, the Government asked that all of these motions be placed under seal. The victims can see no basis for sealing virtually all of the Government's pleadings. The victims' responses to the Government's sealed pleadings have left in the public Court file. In an effort to make the proceedings in this case more accessible to the public, on February 7, 2012, the victims filed a motion requesting an order from the Court directing the Government to file redacted pleadings in the public court file (DE 150). That motion remains pending.
+
+proceedings in this case for more than 365 days without the Court even having ruled, one way or the other, on its motion for stay.
+
+### REOUEST FOR A PROMPT RULING ON - AND DENIAL OF - THE GOVERNMENT'S MOTION FOR A STAY
+
+This Court should promptly rule on Government's Motion For Stay. For all the reasons explained in the victims response filed on December 5, 2011 (DE 129), the Court should deny that motion for stay. Such a ruling would permit the victims to begin moving forward on discovery in this case, which will help steer the case towards a final resolution.
+
+The victims stand prepared to move rapidly on the discovery and other issues connected with this case. The victims respectfully request that the Court move this case forward so that they can receive the rights that Congress promised them in the Crime Victims' Rights Act. In the CVRA, Congress directed that crime victims have "[t]he right to proceedings free from unreasonable delay" and the courts must "take up and decide any motion asserting a victim's right forthwith." 18 U.S.C. § 3771(a)(7) & (d)(3). The victims respectfully suggest that the Government's stall tactics are improperly interfering with those rights. The Court should reject those tactics and allow discovery to proceed.
+
+DATED: December 6, 2012
+
+Respectfully Submitted,
+
+![](_page_3_Picture_4.jpeg)
+
+Paul G. Cassell
+
+![](_page_3_Picture_6.jpeg)
+
+# CERTIFICATE OF SERVICE
+
+The foregoing document was served on December 6, 2012, on the following using the Court's CM/ECF system:
+
+![](_page_4_Picture_3.jpeg)
+
+Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 (305) 37106421 (305) 358-2006

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marker2/ds9/EFTA00205690/EFTA00205690.md

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+**To:** [REDACTED] " [REDACTED] alex.acosta@[REDACTED]
+
+**Subject:** Jane Does v. United States Partial Ruling
+
+**Date:** Tue, 27 Sep 2011 16:30:45 +0000
+
+**Importance:** Normal
+
+**Attachments:** DE99\_20110926\_Order\_granting\_in\_part\_Jane\_Does\_CVRA\_claim.pdf
+
+---
+
+Dear Jeff and Alex: Just wanted to pass this along, fyi. Judge Marra issued a partial decision yesterday.
+
+<<DE99\_20110926\_Order granting in part Jane Does CVRA claim.pdf>>
+
+[REDACTED]
+
+Assistant U.S. Attorney
+
+500 S. Australian Ave, Suite 400
+
+West Palm Beach, FL 33401
+
+[REDACTED]

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marker2/ds9/EFTA00205691/EFTA00205691.md

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+# UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
+
+CASE NO. 08-80736-CIV-MARRA/JOHNSON
+
+JANE DOES #1 AND #2,
+
+Plaintiffs,
+
+vs.
+
+UNITED STATES,
+
+Defendant.
+
+/
+
+#### ORDER
+
+THIS CAUSE is before the Court upon Plaintiffs' Motion for Finding of Violations of the Crime Victims' Rights Act (DEs 48, 52), Plaintiffs' Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts (DE 49), Plaintiffs' Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence (DE 50), and Bruce E. Reinhart's Motion to Intervene or in the Alternative for a Sua Sponte Rule 11 Order (DE 79).1 All motions are fully briefed and ripe for review, and the Court has heard oral arguments on all motions. The Court has carefully considered the briefing and the parties' arguments and is otherwise fully advised in the premises.
+
+The Court is awaiting supplemental briefing on the Motion to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz (DE 56) and will rule on that motion after it is fully briefed. Also, because the proposed interveners seek intervention to request a protective order against disclosure of certain correspondences at issue in Plaintiffs' Motion to Use Correspondence to Prove Violations of the Crime Victims' Rights Act and to Have Their Unredacted Pleadings Unsealed (DE 51), the Court will defer ruling on the latter motion until the intervention motion is ripe for review.
+
+## Background'
+
+Plaintiffs Jane Doe #1 and Jane Doe #2 are alleged victims of federal sex crimes committed by Jeffrey Epstein in Palm Beach County. Between 2001 and 2007, Epstein sexually abused multiple underage girls at his Palm Beach mansion, including Plaintiffs. In 2006, the Federal Bureau of Investigation ("FBI") opened an investigation into allegations that Epstein was inducing underage girls to engage in sexual acts. The case was eventually presented to the United States Attorney's Office for the Southern District of Florida, which accepted it for investigation. The Palm Beach County State Attorney's Office was also investigating similar allegations against Epstein. Plaintiffs allege that the FBI and U.S. Attorney's Office's investigation developed a strong case for a federal prosecution against Epstein based on "overwhelming" evidence.
+
+In June 2007, the FBI delivered to Jane Doe #1 a standard victim-notification letter, which explained that the case against Epstein was "under investigation" and notified Jane Doe #1 of her rights under the Crime Victims' Rights Act ("CVRA"). In August 2007, Jane Doe #2 received a similar notification letter.
+
+In September 2007, Epstein and the U.S. Attorney's Office began plea discussions. The negotiations led to an agreement under which Epstein would plead guilty to two state felony offenses for solicitation of prostitution and procurement of minors for prostitution and the U.S.
+
+This background discussion is based on the allegations in Plaintiffs' Petition for Enforcement of Crime Victims' Rights Act (DE I) and the Statement of Material Facts in Plaintiffs' Motion for Finding of Violation of the Crime Victims' Rights Act (DEs 48, 52). These allegations are not yet supported by evidence and the Court relies on them here solely to provide the context for the threshold legal issues addressed in this order. As discussed below, further factual development is necessary to resolve the additional issues raised in Plaintiffs' motions.
+
+Attorney's Office would agree not to prosecute Epstein for federal offenses. On September 24, 2007, Epstein and the U.S. Attorney's Office executed a Non-Prosecution Agreement ("NPA") under these terms.
+
+Plaintiffs contend that the U.S. Attorney's Office did not confer with them regarding the plea discussions and, in fact, intentionally kept secret the negotiations and the NPA. From September 24, 2007, the day on which the NPA was executed, through June 2008, the U.S. Attorney's Office did not notify either Plaintiff of the existence of the NPA.
+
+During this period, Plaintiffs communicated multiple times with the FBI and U.S. Attorney's Office, but neither Plaintiff was informed of the NPA. On January 10, 2008, the FBI sent letters to Plaintiffs advising them that "[t]his case is currently under investigation," but failing to disclose the existence of the NPA. On January 32, 2008, Jane Doe #1 met with FBI agents and attorneys from the U.S. Attorney's Office to discuss her abuse by Epstein. The government did not disclose the existence of the NPA. In mid-June 2008, Plaintiffs' counsel contacted the Assistant United States Attorney ("AUSA") handling their case to discuss the status of the investigation. The AUSA did not disclose the existence of the NPA. On June 27, 2008, the U.S. Attorney's Office notified Plaintiffs' counsel that Epstein was scheduled to plead guilty in state court on June 30, 2008. The U.S. Attorney's Office did not disclose the existence of the NPA nor the relationship between Epstein's state plea and the U.S. Attorney's Office's agreement to forgo federal charges. On July 3, 2008, Plaintiffs' counsel sent a letter to the U.S. Attorney's Office stating Jane Doe #1's desire that it bring federal charges against Epstein.
+
+On July 7, 2008, Jane Doe #1 filed a petition in this Court to enforce her rights under the CVRA! Jane Doe #1 alleged that she believed plea discussions were under way between Epstein and the U.S. Attorney's Office, and that the government, by failing to notify her of this development, had violated her rights under the CVRA. The United States responded to the petition on July 9, 2008, arguing that (1) a federal indictment had never been returned against Epstein and therefore the CVRA did not attach, and (2) nevertheless, the U.S. Attorney's Office had used its best efforts to comply with the CVRA. The government's response also disclosed that the U.S. Attorney's Office had entered into the NPA with Epstein.
+
+On July 11, 2008, this Court held a hearing on Jane Doe #1's petition, at which Jane Doe #2 was added as a plaintiff. At the hearing, Plaintiffs explained that their petition did not present an emergency and that therefore an immediate resolution was not necessary. On August 14, 2008, the Court held a status conference and ordered the United States to turn over the NPA to all identified victims, including Plaintiffs, and further ordered the parties to work out the terms of a protective order governing the NPA's disclosure.
+
+This action was relatively inactive for the next year and one-half while Plaintiffs litigated civil actions against Epstein. After those cases settled, Plaintiffs attempted to resolve their CVRA dispute with the U.S. Attorney's Office. On March 18, 2011, after the parties' settlement efforts failed, Plaintiffs filed a series of motions, which the Court now addresses in turn, along with Bruce E. Reinhart's Motion to Intervene.
+
+<sup>&#</sup>x27;Jane Doe #2 joined this action after Jane Doe # I filed the initial Petition for Enforcement of Crime Victims' Rights Act.
+
+#### I. Motion for Finding of Violations of the Crime Victims' Rights Act
+
+The CVRA was designed to protect victims' rights and ensure them involvement in the criminal justice process. United States v. Moussaoui, 483 F.3d 220, 234 (4ih Cir. 2007); Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006) ("The [CVRAJ was enacted to make crime victims full participants in the criminal justice system."). The statute enumerates the following eight rights:
+
+- (1) The right to be reasonably protected from the accused.
+- (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
+- (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
+- (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
+- (5) The reasonable right to confer with the attorney for the Government in the case.
+- (6) The right to full and timely restitution as provided in law.
+- (7) The right to proceedings free from unreasonable delay.
+- (8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
+
+18 U.S.C. § 3771(a).
+
+If a prosecution is underway, the CVRA grants victims standing to vindicate their rights in the ongoing criminal action. 18 U.S.C. § 3771(d)(3). If, however, a prosecution is not underway, the victims may initiate a new action under the CVRA in the district court of the
+
+district where the crime occurred.' Id. The statute also tasks the district courts and the prosecutors with the responsibility of protecting these rights. See 18 U.S.C. § 3771(b)(1) ("[T]he court shall ensure that the crime victim is afforded the rights described in subsection (a)."); § 3771(c)(1) ("Officers and employees of the Department of Justice . . . shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).").
+
+Here, Plaintiffs first argue that as a matter of law the CVRA's protections attach before a formal charge is filed against the criminal defendant. Accordingly, Plaintiffs contend that the CVRA applied here and that the U.S. Attorney's Office violated their CVRA rights; namely, their rights to confer, to be treated with fairness, and to accurate and timely notice of court proceedings. Based on these violations, Plaintiffs request that this Court set a briefing schedule and hearing on the appropriate remedy, which according to Plaintiffs is to invalidate the nonprosecution agreement.
+
+The United States argues that as a matter of law the CVRA does not apply before formal charges are filed, i.e., before an indictment or similar charging document, and therefore does not apply here because formal charges were never filed against Epstein. The United States further argues that even if the CVRA applied here, the U.S. Attorney's Office complied with its requirements.
+
+The Court first addresses the threshold issue whether the CVRA attaches before the government brings formal charges against the defendant The Court holds that it does because the
+
+Here, because no criminal case was pending, Plaintiffs filed their petition as a new matter in this judicial district, which the Clerk of Court docketed as a civil action.
+
+statutory language clearly contemplates pre-charge proceedings. For instance, subsections (a)(2) and (a)(3) provide rights that attach to "any public court proceeding ... involving the crime." Similarly, subsection (b) requires courts to ensure CVRA rights in "any court proceeding involving an offense against a crime victim." Court proceedings involving the crime are not limited to post-complaint or post-indictment proceedings, but can also include initial appearances and bond hearings, both of which can take place before a formal charge. By way of example, under Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure, upon arrest the defendant must be taken before a magistrate judge "without unnecessary delay" for an initial appearance. If the arrest takes place on a weekday, "without unnecessary delay" will typically require that the initial appearance occur the following morning, which will often be within twenty-four hours of arrest. See United States v. Mendoza, 473 F.2d 697, 702 (56 Cir. 1973) (holding that the government satisfied Rule 5's "without unnecessary delay" requirement by bringing the defendant before the magistrate judge on the first weekday morning following the arrest). By contrast, Rule 5(b) requires that where the defendant is arrested without a warrant, the government must file the complaint "promptly." The Supreme Court has interpreted "promptly" under Rule 5(b) as generally requiring that the complaint be filed within forty-eight hours of arrest. Cnty. Of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). It is therefore possible that where the defendant is arrested on a weekday without a warrant, the initial appearance—which may also involve the detention or bond hearing under Rule 5(d)(3)—will take place before the government files the criminal complaint.
+
+Subsection (cX1) requires that "Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or
+
+prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights in subsection (a)." (Emphasis added). Subsection (c)(I)'s requirement that officials engaged in "detection [or] investigation" afford victims the rights enumerated in subsection (a) surely contemplates pre-charge application of the CVRA.
+
+Subsection (d)(3) explains that the CVRA's enumerated rights "shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred." (Emphasis added). If the CVRA's rights may be enforced before a prosecution is underway, then, to avoid a strained reading of the statute, those rights must attach before a complaint or indictment formally charges the defendant with the crime.
+
+This interpretation is consistent with other federal decisions that have addressed the scope of the CVRA. For instance, in In re Dean, 527 F.3d 391 (5\* Cir. 2008), the court held that subsection (a)(5)'s "right to confer" applied before any prosecution is underway. Id. at 394. Specifically, the court explained:
+
+The district court acknowledged that "there are clearly rights under the CVRA that apply before any prosecution is underway." Logically, this includes the CVRA's establishment of victims' reasonable right to confer with the attorney for the Government." At least in the posture of this case (and we do not speculate on the applicability to other situations), the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims' views on the possible details of a plea bargain.
+
+Id. at 394 (internal citation and quotation marks omitted). Federal district courts have reached similar conclusions. See, e.g., United States v. Rubin, 558 F. Supp. 2d 411, 417 n.5 (E.D.N.Y. 2008) (discussing victims' "ability to seek pre-prosecution relief' under the CVRA); United States v. Okun, No. 08-132, 2009 WL 790042, at '2 (E.D. Va. Mar. 24, 2009) ("[T]he Fifth
+
+Circuit has noted that victims acquire rights under the CVRA even before prosecution. This view is supported by the statutory language, which gives the victims rights before the accepting of plea agreements and, therefore, before adjudication of guilt."); United States v. BP Prods N. Am. Inc., No. 07-434, 2008 WL 501321, at \*11 (S.D. Tex. Feb. 21, 2008) ("There are clearly rights under the CVRA that apply before any prosecution is underway."), mandamus denied in part, In re Dean 527 F.3d 391 (5ih Cir. 2008).
+
+The United States argues that because the CVRA accords rights related to "any court proceeding," 18 U.S.C. §§ 3771(b)(1), (d)(3), and "in the case," § 3771(b)(5), the CVRA applies only after formal charges are filed. The Court finds this argument unavailing. First, as discussed above, "court proceedings" can occur before formal charges are filed. Similarly, subsection (a)(5)'s reference to the right to confer with "the attorney for the Government in the case," is not limited to post-charge proceedings, as the United States is represented by attorneys in each criminal case at, for example, initial appearances and bond hearings.' Last, the government's interpretation ignores the additional language throughout the statute that clearly contemplates pre-charge protections, such as subsection (c)(1)'s mandate that U.S. agencies involved at the "detection" and "investigation" stage use their best efforts to accord victims their enumerated rights under the CVRA and subsection (d)(3)'s provision that victims may vindicate their CVRA
+
+For this reason, the Court respectfully disagrees with the interpretation adopted in In re Petersen, No. 10-298, 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010), upon which the United States relies. See id. at \*2 (holding that a "victim's `right to be treated with fairness and with respect for [his or her] dignity and privacy' may apply before any prosecution is underway and isn't necessarily tied to a `court proceeding' or `case,'" but concluding that "the right 'to confer with the attorney for the Government in the case' ... arise[s] only after charges have been brought against a defendant and a case has been opened"). But see In re Dean, 527 F.3d at 394 (holding that under subsection (a)(5), "the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges").
+
+rights even if "no prosecution is underway." See United States v. DBB, Inc., 180 F.3d 1277, 1281 (11ih Cir. 1999) ("[W]e read the statute to give full effect to each of its provisions. We do not look at one word or term in isolation, but instead we look to the entire statutory context.") (citation omitted).
+
+The Court also rejects the United States' argument that pre-charge CVRA rights could impair prosecutorial discretion and decision-making. Any encroachment into the prosecutors' discretion is expressly limited by the CVRA itself, which provides: "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 3771(d)(6). As the court explained in Rubin, "there is absolutely no suggestion in the statutory language that victims have a right independent of the government to prosecute a crime, set strategy, or object to or appeal pretrial or in limine orders .... In short, the CVRA, for the most part, gives victims a voice, not a veto." 558 F. Supp. at 418; see also BP Prods N. Am., 2008 WL 501321, at \*15 ("Even under an expansive approach, the reasonable right to confer on a proposed plea agreement and the government's obligation to provide notice of that right is subject to the limit that the CVRA not impair prosecutorial discretion."). Thus, to the extent that the victims' pre-charge CVRA rights impinge upon prosecutorial discretion, under the plain language of the statute those rights must yield.
+
+Having determined that as a matter of law the CVRA can apply before formal charges are filed, the Court must address whether the particular rights asserted here attached and, if so, whether the U.S. Attorney's Office violated those rights. However, the Court lacks a factual record to support such findings and must therefore defer ruling on these two issues pending the limited discovery discussed below.
+
+## II. Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts
+
+For the reasons stated on the record at the August 12, 2011 hearing on this motion, the Court will deny Plaintiffs' request to have their facts accepted as true.
+
+#### III. Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence
+
+Plaintiffs request an order from the Court "directing the U.S. Attorney's Office not to suppress material evidence relevant to this case." (DE 50 at 1). Specifically, Plaintiffs seek all information and material known to the government that may be favorable to the victims regarding possible violations of their rights under the CVRA. The United States opposes the motion, arguing that neither the CVRA nor the Federal Rules of Civil Procedure impose a duty upon the U.S. Attorney's Office to provide evidence to Plaintiffs here.
+
+At the August 12, 2011 hearing on this motion, the United States agreed that this Court, under its inherent authority to manage this case, could impose discovery obligations on each party. Because the Court finds that some factual development is necessary to resolve the remaining issues in this case, it will permit Plaintiffs the opportunity to conduct limited discovery in the form of document requests and requests for admissions from the U.S. Attorney's Office. Either party may request additional discovery if necessary.
+
+Because the Court will allow this limited factual development, it is unnecessary to decide here whether the CVRA or the Federal Rules of Civil Procedure provide discovery rights in this context. The Court therefore reserves ruling on Plaintiffs' motion.
+
+## IV. Bruce E. Reinhart's Motion to Intervene or in the Alternative for a Sua Sponte Rule 11 Order
+
+Bruce E. Reinhart seeks leave to intervene as a party-in-interest under Rule 24(b) of the Federal Rules of Civil Procedure. Reinhart seeks to intervene to file a motion for sanctions based on allegedly "unfounded factual and legal accusations made about Movant in Plaintiffs' Motion for Finding of Violations of the Crime Victims' Rights Act." (DE 79 at 1). In that motion, Plaintiffs alleged that Reinhart, a former Assistant U.S. Attorney, "joined Epstein's payroll shortly after important decisions were made limiting Epstein's criminal liability" and improperly represented Epstein victims in follow-on civil suits. (DE 48 at 22). Plaintiffs contend that such conduct "give[s], at least, the improper appearance that Reinhart may have attempted to curry [favor] with Epstein and then reap his reward through favorable employment." (DE 48 at 23). Reinhart takes great offense to these accusation—which he contends are false, irrelevant to the CVRA claims, and gratuitous—and seeks intervention to rebut these allegations and move for sanctions.
+
+Under Rule 24(b) of the Federal Rules of Civil Procedure, "the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact." It is "wholly discretionary with the court whether to allow intervention under Rule 24(b) and even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied, the court may refuse to allow intervention." In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1246 (11th 2006). The Court will deny Reinhart's request to intervene.
+
+First, the Court finds that Reinhart's claim does not share a common question of law or fact with the CVRA action. Reinhart claims that two paragraphs of Plaintiffs' forty-page motion make groundless and bad-faith accusations against his integrity and character. However, the veracity of Plaintiffs' two paragraphs—i.e., whether Reinhart used his position at the U.S. Attorney's Office to ingratiate himself with Epstein and advance his career in private practice—involves no common questions with the Plaintiffs' claims that the U.S. Attorney's Office violated their CVRA rights through the process in which it entered into the NPA with Epstein. Indeed, Reinhart's motion argues that the allegations against him are "irrelevant" and that Plaintiffs "do[] not make any effort to connect these allegations to the relief [they] seek[]." (DE 79 at 2).
+
+Second, even if these accusations shared common questions with Plaintiffs' CVRA claims, the Court would exercise its discretion and deny intervention. The Court cannot permit anyone slighted by allegations in court pleadings to intervene and conduct mini-trials to vindicate their reputation. Absent some other concrete interest in these proceedings, the Court does not believe that the allegations here are sufficiently harmful to justify permissive intervention. Reinhart has publicly aired his opposition to and denial of Plaintiffs' contentions, both on this docket and in open court, and the Court finds that further proceedings on this issue are unwarranted. For the same reason, the Court declines to conduct a sua sponte Rule 11 inquiry.
+
+## Conclusion
+
+For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiffs' Motion for Finding of Violations of the Crime Victims' Rights Act (DEs 48, 52) is GRANTED IN PART. The Court concludes that the CVRA can apply before formal charges are filed. The
+
+Court defers ruling on the merits of Plaintiffs' CVRA claims until the parties complete the discovery ordered herein.
+
+It is further ORDERED AND ADJUDGED that Plaintiffs' Motion to Have Their Facts Accepted (DE 49) is DENIED.
+
+The Court reserves ruling Plaintiffs' Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence (DE 50) pending the discovery ordered herein.
+
+It is further ORDERED AND ADJUDGED that Bruce E. Reinhart's Motion to Intervene or in the Alternative for a Sua Sponte Rule 11 Order (DE 79) is DENIED.
+
+DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida this 26ih day of September, 2011.
+
+> rZ ge KENNETH A. MARRA United States District Judge

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marker2/ds9/EFTA00205705/EFTA00205705.md

@@ -0,0 +1,51 @@
+To: "-( ")SLFASU(r
+
+Subject: Re: Epstein
+
+Date: Fri, 07 Oct 2011 19:10:58 +0000
+
+Importance: Normal
+
+No, I just talked to yesterday afternoon and he wanted to discuss the underlying investigation. I was planning on meeting over at the FBI.
+
+In light of request, I will reschedule at a time that works for
+
+do you want to attend?
+
+AUSA
+
+From: (USAFLS)
+
+Sent: Friday, October 07 2011 02:56 PM
+
+To: (USAFLS); (USAFLS)
+
+Subject: RE: Epstein
+
+Has someone talked to yet about the meeting? I know that he is scheduled to give a mandatory ethics lecture that morning in Miami.
+
+From: (USAFLS)
+
+Sent: Frida October 07, 2011 2:22 PM
+
+To: (USAFLM ; . (USAFLS)
+
+Cc: (USAFLM); (USAFLS)
+
+Subject: RE: Epstein
+
+Thanks I am also including his familiarity with some of the legal issues we face. Thanks. on this e-mail given
+
+From: (USAFLM)
+
+Sent: Friday, October 07, 2011 2:20 PM
+
+To: aril= (USAFLS); (USAFLS)
+
+Cc: (USAFLM)
+
+Subject: Epstein
+
+I am the AUSA from the MDFL assigned to the Epstein matter. In that regard, and I have arranged for a meeting in West Palm Beach for a full debriefing on all issues. I would like to include in that meeting, which we have set for October 27, 2011.
+
+Regards,

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marker2/ds9/EFTA00205706/EFTA00205706.md

@@ -0,0 +1,71 @@
+To:"- (USAFLS)" <
+
+Subject: Re: Epstein
+
+Date: Fri, 07 Oct 2011 19:23:51 +0000
+
+Importance: Normal
+
+is starting a trial. I will see what I can do on Tuesday.
+
+AUSA
+
+From: (USAFLS)
+
+Sent: Friday, October 07,\_201103:21 PM
+
+To: . (USAFLS); (USAFLS)
+
+Subject: RE: Epstein
+
+Sure. But given the timetable created by the Jane Does' discovery request, do you think it would be possible to meet earlier than October 27th? If some district (whether MDFL or some other district) with venue and jurisdiction over the offenses is going to evaluate potential criminal charges and is willing to confer with Jane Does as part of that evaluation, it seems to me that it would be helpful to know that sooner rather than later for purposes of the CVRA litigation and the contemplated motion to dismiss. What do you think?
+
+By the way, was the MDFL given a copy of the NPA? I think they should be made aware that they should carefully review it to ensure that they do not run afoul of it.
+
+•
+
+From: (USAFLS)
+
+Sent: Frida October 07, 2011 3:11 PM
+
+To: (USAFLS); (USAFLS)
+
+Subject: Re: Epstein
+
+No, I just talked to yesterday afternoon and he wanted to discuss the underlying investigation. I was planning on meeting over at the FBI.
+
+In light of request, I will reschedule at a time that works for
+
+IS do you want to attend?
+
+AUSA
+
+From: (USAFLS)
+
+Sent: Friday, October 07 2011 02:56 PM
+
+To: (USAFLS); (USAFLS)
+
+Subject: RE: Epstein
+
+Has someone talked to yet about the meeting? I know that he is scheduled to give a mandatory ethics lecture that morning in Miami.
+
+Thanks I am also including mail given his familiarity with some of the legal issues we face. Thanks. on this e-
+
+From: (USAFLM)
+
+Sent: Frida October 07 2011 2:20 PM
+
+To: (USAFLS); (USAFLS)
+
+Cc: (USAFLM)
+
+Subject: Epstein
+
+I am the AUSA from the MDFL assigned to the Epstein matter. In that regard, Marie Villafana and I have arranged for a meeting in West Palm Beach for a full debriefing on all issues. I would like to include Lee in that meeting, which we have set for October 27, 2011.
+
+Regards,
+
+Assistant U.S. Attorney
+
+Fort Myers Division, MDFL

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marker2/ds9/EFTA00205708/EFTA00205708.md

@@ -0,0 +1,13 @@
+Subject: Time for a call?
+
+Date: Tue, 11 Oct 2011 17:09:25 +0000
+
+Importance: Normal
+
+Attachments: DE105\_20111010 Jane\_Does\_Motn\_for Excess\_Pages\_re\_Suppl\_Briefing.pdf; DE106- 1\_Transcript\_of New\_York\_Sex\_Offender Registration\_hearing.pdf; DE106\_20111010 Jane\_Does\_Resp\_to\_Suppl\_Briefing.pdf
+
+M - I am in Bogota, but I can easily give you a call. Just let me know what time works for you. Also, here are the items just filed by the learned professor. And, I just got a voicemail from Jay Lefkowitz (Mr. Epstein's lawyer). He didn't say why he was calling.
+
+«DE105\_20111010 \_Jane Does Motn for Excess Pages re Suppl Briefing.pdf>> <<DE106-1 Transcript of New York Sex Offender Registration hearing.pdf>> «DE106\_20111010 \_Jane Does Resp to Suppl Briefing.pdf>>
+
+![](_page_0_Picture_6.jpeg)

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marker2/ds9/EFTA00205709/EFTA00205709.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
+
+Case No. 08-80736-Civ-Marra/Johnson
+
+JANE DOE #1 and JANDE DOE #2
+
+v.
+
+UNITED STATES
+
+## JANE DOE #1 AND JANE DOE #2'S UNOPPOSED MOTION FOR FIVE EXTRA PAGES TO RESPOND TO SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION TO INTERVENE BY ROY BLACK ET AL.
+
+COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move this Court to allow them five extra pages beyond the twenty-page limit to respond to the Supplemental Briefing in Support of Motion to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz (DE 94) and the government response thereto (DE 100). The motion is unopposed.
+
+In support of the motion, the victims note that initial Supplemental Briefing from Epstein they are responding to (DE 94) is 23 pages long. The Government's response (DE 100) supports many of Epstein's arguments and is 11 pages long. As a result, the victims have a total of 33 pages that they need to respond to. The victims require 25 pages to set forth all of their arguments and authorities on the issues addressed in the briefs. The victims have discussed this motion with counsel for Epstein and the Government, and they do not oppose the motion.
+
+## CONCLUSION
+
+For all the foregoing reasons, the Court should allow Jane Doe #1 and Jane Doe #2 an additional five pages (a total of 25 pages) to respond to the Supplemental Briefing in Support of Motion to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz (DE 94) and the government response thereto (DE 100).
+
+DATED: October 10. 2011
+
+Respectfully Submitted,
+
+5/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L.
+
+Fort Lauderdale, Florida 33301
+
+and
+
+Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the Universit of Utah
+
+Salt Lake City, UT 84112
+
+Attorneys for Jane Doe #1 and Jane Doe #2
+
+## CERTIFICATE OF SERVICE
+
+The foregoing document was served on October 10, 2011, on the following using the Court's CM/ECF system:
+
+A. Marie Villafafia Assistant U.S. Attorney
+
+West Palm Beach, FL 33401
+
+Attorney for the Government
+
+Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Komspan & Stumpf, P.A.
+
+Miami, FL 33131 Attorneys for Proposed Intervenors Roy Black et al.

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marker2/ds9/EFTA00205712/EFTA00205712.md

@@ -0,0 +1,721 @@
+## EXHIBIT A
+
+SUPREME COURT NEW YORK COUNTY
+
+TRIAL TERM PART 66
+
+x THE PEOPLE OF THE STATE OF NEW YORK: INDICTMENT # : 30129/2010 •
+
+AGAINST
+
+JEFFREY EPSTEIN
+
+Defendant.
+
+## BEFORE:
+
+x SORA HEARING
+
+111 Centre Street New York, New York 10013 January 18, 2011
+
+HONORABLE RUTH PICKHOLZ Justice of the Supreme Court
+
+## APPEARANCES:
+
+For the People: CYRUS R. VANCE, JR., ESQ., New York County District Attorney One Hogan Place New York, New York 10013 BY: JENNIFER GAFFNEY, ESQ. Assistant District Attorney
+
+For the Defense: KIRKLAND & ELLI, LLP 153 East 53rd Street New York, New York 10022 BY: JAY LEFKOWITZ, ESQ. SANDRA MUSUMECI, ESQ.
+
+> Vikki J. Benkel Senior Court Reporter
+
+C<sup>4</sup>
+
+1
+
+2
+
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+COURT CLERK: This is number two on the calendar, matter of Jeffrey Epstein.
+
+Your appearances please.
+
+MS. GAFFNEY: Jennifer Gaffney for the People.
+
+Good afternoon, Your Honor.
+
+MR. LEFKOWITZ: Jay Lefkowitz and Sandra Musumeci for Mr. Epstein.
+
+THE COURT: Mr. Epstein is not here.
+
+MR. LEFKOWITZ: That's correct.
+
+THE COURT: Are you waiving his appearance?
+
+MR. LEKWOWITZ: Yes.
+
+MS. GAFFNEY: Your Honor, this case is on for <sup>a</sup> SORA hearing this afternoon.
+
+The People did receive the board's recommendation of a Level Three. However, we received the underlying information from them and also had some contact with Florida, and we don't believe that we can rely on the entire probable cause affidavit.
+
+<sup>I</sup>don't know if the board sent that to you as well.
+
+THE COURT: I don't know why you cannot rely on it.
+
+MS. GAFFNEY: Because in Florida of all of the victims in that probable cause affidavit, they actually only went forward on one case. There was only an indictment for
+
+one victim and that is what the defendant plead to.
+
+So it is unlike a situation where everything was indicted and then we get to sort of assess points for all of the victims, if it was part of a plea bargain. They did not actually choose to go forward on any except for the one victim.
+
+So under the board guidelines, the risk assessment interim guidelines, it actually says, you know, by way of contrast if an offender is not indicted for an offense, it is strong evidence that the offense did not occur and I don't think --
+
+THE COURT: Do you find that if somebody is not indicted it is strong evidence that it did not occur?
+
+MS. GAFFNEY: I don't know that we can rely on it as clear and convincing evidence if the prosecutor's office never went forward on it. The prosecution said that the victims, although they spoke to the police early on, did not cooperate with them. So we don't have any follow up information.
+
+THE COURT: But the board found a Level Three.
+
+I have to tell you, I am a little overwhelmed because I have never seen the prosecutor's office do anything like this. I have never seen it. I had a case with one instance it was a marine who went to a bar, and I wish I had the case before me, but he went to a bar and a 17
+
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+year old, he was an adult obviously, he was aMarine, a <sup>17</sup> year old came up to him and one thing lead to another and he had sex with her and the People would not agree to <sup>a</sup> downward modification on that.
+
+So I am alittle overwhelmed here because I see -- <sup>I</sup>mean I read everything here, I am just a little overwhelmed that the People are making this application.
+
+<sup>I</sup>could cite many many, I have done many SORAs much less troubling than this one where the People would never make a downward argument like this.
+
+MS. GAFFNEY: I agree with Your Honor, it is incredibly unusual for us to make a downward argument. But the problem is the one thing that we have from the board is it seems to be in contradiction to their own guidelines which if something was not indicted, you are not supposed to rely on it.
+
+THE COURT: They obviously took that into consideration.
+
+MS. GAFFNEY: And I tried to reach -- I reached the authorities in Florida to try to see if they had all the interview notes or other things that we can then subsequently rely on that might be considered clear and convincing evidence, if they had interviewed these women on their own, and they never did. No one was cooperative and they did not go forward on any of the cases and none of them
+
+were indicted. So I don't know.
+
+THE COURT: And you spoke to the prosecutor?
+
+MS. GAFFNEY: The actual prosecutor left the office. I spoke to the prosecutor that took over the case.
+
+THE COURT: Maybe you can find the prosecutor that left the office.
+
+You have done more in other cases looking into it. I have never seen the prosecutor's office do this. I have to tell you, I am shocked.
+
+MS. GAFFNEY: Right, but I spoke to the prosecutor that took over the case and they don't have anything, any affidavits, any statements, any notes.
+
+THE COURT: Why don't you speak to the prosecutor that did do the case, I am sure you could find that prosecutor.
+
+MS. GAFFNEY: I can find her, but based upon what the other prosecutor said, they did not speak to that prosecutor either.
+
+THE COURT: You did not speak to the prosecutor yourself, you did not speak to them, that is hearsay. You did not speak to the prosecutor that handled the case.
+
+MS. GAFFNEY: That's right.
+
+THE COURT: I don't think you did much of an investigation here.
+
+MS. GAFFNEY: I mean I called the prosecutor.
+
+Even though the first prosecutor left, presumably the prosecutor's office has the file.
+
+THE COURT: I would still call the prosecutor.
+
+MS. GAFFNEY: Anything from these women they would have forwarded it to us.
+
+THE COURT: I don't know that, I think you have to speak to the prosecutor.
+
+But be that as it may, I hear your argument.
+
+Anything else?
+
+MS. GAFFNEY: I mean that is why I don't think we can, I don't think we are entitled to rely on this because they did not go forward.
+
+THE COURT: The board made a recommendation.
+
+MS. GAFNEY: Correct.
+
+MS. MUSUMECI: May I speak, Your Honor?
+
+THE COURT: Yes.
+
+MS. MUSUMECI: Good afternoon.
+
+I would like to bring a few additional points to Your Honor's attention that don't come across in the board recommendation.
+
+The first is that Mr. Epstein is not a resident of New York, unlike most of these out of state, he has not changed his address and moved to New York, he maintains a vacation home in New York. His primary residence is the U.S. Virgin Islands.
+
+He is registered in the U.S. Virgin Islands, he has been since his release from jail. He notifies the Virgin Island authorities every time he leaves that jurisdiction. Virgin Island authorities rated him at the lowest level of registration.
+
+He also registered in Florida, which is the state of this particular offense, and the only reason that this conviction is even before Your Honor.
+
+The offense for which he was convicted is not a registrable offense in New York. He is only registrable here arguably because based on the provision of SORA that says if a crime is registrable in the state of conviction, then it is registrable here in New York. And the Florida authorities that considered that rated him at the lowest level of their SORA statute.
+
+He additionally has a vacation home in New Mexico and is registered in New Mexico. The New Mexican authorities when they considered his offenses, determined he need not register at all. Nevertheless, he has voluntarily registered with New Mexico and maintains that registration.
+
+Additionally, because of his possession of a vacation home in New York, he has been voluntarily registered with New York SOMU, the Sex Offender Monitoring Unit since May of this year. He notifies them whenever he comes to travel to New York. He never comes to New York for
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+more than seven days or at least he has not since he has been registered. He has no intention to ever be here for longer than a period of ten days.
+
+Like I said, he does notify the authorities when he is here. He fully understands the reason for voluntary registration, he wants to be compliant with the Federal SORA law which requires wherever you own aproperty to register.
+
+To require Mr. Epstein to register as a Level Three offender in New York would actually require him to come to New York more than he does normally, it would require him to come every 90 days and renew his registration.
+
+He is very diligent in registering with New York authorities.
+
+All of the other jurisdictions that have considered his case have determined that he either not register at all or register at the lowest level, and he has been more than compliant with all of those requirements.
+
+Your Honor, we would join in the prosecutor's application.
+
+THE COURT: I am sure you would.
+
+MS. MUSUMECI: By way of background, we have been in contact with the prosecutor's office on this matter since <sup>I</sup>believe certainly since Mr. Epstein got his notification, which I believe was in August. We have met with the
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+prosecutor and provided numerous materials for the prosecutor to consider. We have included in that a deposition from the detective who headed this investigation who acknowledged in a sworn deposition that the lead prosecutor who originally had the case, whose name I cannot pronounce, Lanna Belohlavek, I apologize for the mispronunciation, said to the detective after her investigation, there are no real victims here.
+
+All of the alleged conduct that is cited in the board's write up was commercial conduct. All of the alleged conduct the women went voluntarily, there are no allegations of force certainly none.
+
+THE COURT: There was no allegation of force in the marine either, who met a girl in a bar, a young girl 17, there was no force there.
+
+MS. MUSUMECI: It is our understanding that the prosecutor in Florida conducted a full investigation, as full as she was able with the cooperation afforded by these complainants, and determined that the only case that she could present to the grand jury was this indictment for a non registrable offense then --
+
+THE COURT: But it is registrable here.
+
+I don't know what you mean non registrable offense.
+
+MS. MUSUMECI: Let me explain, Your Honor.
+
+Mr. Epstein plead to two charges, one was an indictment which is an offense that is not registrable, it is a Florida indictment for --
+
+THE COURT: Then why does he have to register here?
+
+MS. MUSUMECI: It was a second offense that he plead to --
+
+THE COURT: That is registrable.
+
+MS. MUSUMECI: That is registrable.
+
+That offense was by information and that is the only registrable offense, that is what the DA's office is considering in doing their scoring.
+
+The indictment which was the only case that the prosecutor even prosecuted through grand jury is not even a registrable offense.
+
+THE COURT: He plead guilty to a registrable offense.
+
+MS. MUSUMECI: Yes.
+
+THE COURT: What did he plead guilty to?
+
+MS. GAFFNEY: He plead guilty to the procuring a person under 18 for prostitution.
+
+THE COURT: Procuring a person under 18 for prostitution.
+
+MS. GAFFNEY: Right.
+
+THE COURT: Haw old was she?
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+MS. GAFFNEY: It appears the first time they met she was either 16 or 17, then for the remainder of their relationship she was probably 17.
+
+THE COURT: Haw long was their relationship?
+
+MS. GAFFNEY: She met, she gave him approximately 15 massages, including with sexual contact, and ultimately when she is 17 had intercourse with him.
+
+THE COURT: She is a child.
+
+MS. MUSUMECI: Your Honor, I would note that under SORA it is clear that prostitution offenses are only registrable when in fact by clear and convincing evidence the women or victim is 17, is under 17.
+
+THE COURT: Well, she met him at 16, he procured her at 16 from what I read.
+
+MS. MUSUMECI: There is evidence we challenged.
+
+THE COURT: He plead guilty to that, didn't he?
+
+MS. MUSUMECI: He plead guilty to under 18, which is the law in Florida, which is a different standard than what the law is in New York. And there is no evidence, there is no clear and convincing evidence as to her specific age at the time of the specific conduct.
+
+THE COURT: Well, the DA just told me she was most likely 17, she just said it on the record.
+
+MS. MUSUMECI: Your Honor, we agree that the evidence is that she was 17 on the one occasion she had
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+consensual intercourse with him and 17 is not registrable or criminal under New York law.
+
+And the prostitution aspect of having intercourse with a 17 year old is not registrable conduct.
+
+THE COURT: Why does he have to register here?
+
+MS. GAFFNEY: Because it is a register able offense in Florida, New York State board of examiners --
+
+THE COURT: Recognizes it.
+
+MS. GAFFNEY: Recognizes it, yes.
+
+THE COURT: I have had many cases like that where it was not registrable here but it was in the state where the person came from and New York recognized that.
+
+MS. MUSUMECI: Your Honor, we are not saying that he should not register. Mr. Epstein has already registered and recognizes his duty to register.
+
+THE COURT: I am glad of that, very glad of that.
+
+I am sorry he may have to come here every 90 days.
+
+He can give up his New York home if he does not want to come every 90 days.
+
+Anything else?
+
+I rely on the board.
+
+MS. MUSUMECI: Your Honor, we would reserve our right to appeal Your Honor's ruling.
+
+THE COURT: Of course, do so.
+
+MS. GAFFNEY: For the record, Your Honor, he is
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+going to be deemed a Level Three sex offender with no designation, correct?
+
+THE COURT: Correct.
+
+MS. MUSUMECI: For purposes of the appeal I believe that Your Honor --
+
+THE COURT: Give me the board's scoring.
+
+The board has scored use of violence the least, 10.
+
+Sexual contact with victim, 25. I agree.
+
+Number of victims, three or more. He only plead guilty to one, but apparently there were more than one and I think the People concede that although they say it was not reliable.
+
+Duration of offense, conduct with victim, continuing course of sexual misconduct, the People have told me it was continuing for 20 points.
+
+Age of victim 11 through 16, he got 20 points for that, and she was 16 at the time.
+
+Other victim characteristics, there was no mental disable or helplessness. I agree.
+
+Relationship with victim stranger, 20 points.
+
+Age at first act of sexual misconduct, 20 or less. They scored him zero on that.
+
+Number and nature of prior crimes, no history, they scored him five on that.
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+Recency of prior offense less than three years, they gave him zero.
+
+Drug or alcohol abuse history, they gave him zero.
+
+Acceptance of responsibility, they gave him zero.
+
+Conduct while confined, they gave him zero.
+
+And supervision, they gave him zero.
+
+Living employment situation, zero.
+
+They gave him 130 points, which is the highest level, and I agree with that.
+
+MR. LEFKOWITZ: If I could be heard for one moment.
+
+It appears that the state board made its determination based on access to a police report in Florida.
+
+The prosecutor, the lead prosecutor, the lead sex crimes prosecutor in Palm Beach made a determination that the complainants and the police report itself was not credible and decided not to prosecute on the basis of all of that.
+
+In addition, there has been through the course of the last few years some civil litigation, as you might imagine, involving these matters and we now have sworn testimony in evidence from the complainants themselves disclaiming much of what appears in the police report.
+
+So, Your Honor, we would submit and this is not to make light in any way of the conduct what Mr. Epstein did or
+
+1 what Mr. Epstein plead guilty to, but with respect to  
+2 everything and that is why Mr. Epstein voluntarily  
+3 registered in New York even though there is a question about  
+4 whether he has any obligation just as a jurisdictional  
+5 matter, but Your Honor, with respect to the appropriate  
+6 level for him to register, we would submit Your Honor that  
+7 the evidence simply does not support the foundation of the  
+8 state's determination.
+
+9 THE COURT: You have made a very clear record and  
+10 you have your right to appeal.
+
+11 I feel the board looked into all of this, made  
+12 their recommendation, found him to have 130 points and I see  
+13 no reason to disturb that.
+
+14 Thank you.
+
+15  
+16 I, Vikki J. Benkel, a Senior Court Reporter in and for  
+17 the State of New York, do hereby certify that the foregoing  
+18 transcript is true and accurate to the best of my knowledge,  
+19 skill and ability.
+
+![]()22 Vikki J. Benkel

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marker2/ds9/EFTA00205728/EFTA00205728.md

@@ -0,0 +1,243 @@
+#### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
+
+Case No. 08-80736-Civ-Marra/Johnson
+
+JANE DOE #1 and JANE DOE #2
+
+v.
+
+UNITED STATES
+
+### JANE DOE #1 AND JANE DOE #2'S RESPONSE TO SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION TO INTERVENE OF ROY BLACK. MARTIN WEINBERG, AND JAY LEFKOWITZ
+
+COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to respond in opposition to the supplemental briefing of defense attorneys Roy Black, Martin Weinberg, and Jay Lefkowitz to intervene in this case under Fed. R. Civ. P. 24(a) (DE 94) ("supplemental briefing").
+
+The victims continue to oppose the defense attorneys' motion to intervene in this civil CVRA enforcement action (DE 56) for all the reasons that they have articulated in their previous opposition (DE 78). Yet even though the defense attorneys have not been permitted to intervene, they have proceeded to brief the merits of arguments that they would present if the Court were to grant intervention, including most recently new "supplemental" briefing on the discoverability of plea negotiation correspondence. While the victims continue to believe that their arguments against the defense attorneys intervening are meritorious, out of an abundance of caution and to expedite this case, the victims now respond to the defense attorneys' new claims on the merits.
+
+The defense attorneys claim that the victims cannot use at trial (or even discover preliminarily) correspondence between them and the U.S. Attorney's Office arranging a highly unusual and secretive non-prosecution agreement. The victims have already explained at length why the correspondence between Epstein's lawyers and government prosecutors is simply not confidential material to which any kind of privilege or other protection could attach. See Jane Doe #1 and Jane Doe #2's Response to Motion to Intervene (DE 78) at 4-6. Perhaps recognizing the strength of the victims' response, the defense attorneys now raise a new "supplemental" argument that a privilege somehow follows from either (1) Federal Rule of Evidence 410 or (2) a purported "common law privilege" for "plea negotiations" that the attorneys ask the Court to create under Federal Rule of Evidence 501. The defense arguments are meritless for multiple, independent reasons.
+
+With regard to Rule 410, the defense attorneys' efforts to invoke Rule 410 is simply premature. The rule bars only admissibility of information at trial, not collection of information through discovery. Accordingly, discovery is proper now and admissibility issues can be sorted out later.
+
+Second, this Court previously ruled in the civil case against Epstein that Rule 410 does not bar discovery of the correspondence. Epstein is collaterally estopped from re-litigating this same issue.
+
+Third, in any event, Rule 410 is simply inapplicable. The plain language of the rule covers admissibility into evidence of "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty." Fed. R. Evid. 410(4) (emphasis added). Epstein's plea discussions did result in a plea of guilty, and accordingly the rule does not apply.
+
+Fourth, the victims intend to use the correspondence to prove that the Government violated the CVRA violations and that various remedies are accordingly appropriate. Because Rule 410 only bars evidence from being admitted into evidence "against the defendant" who participated in plea discussions, the victims are (at the very minimum) entitled to obtain and use the correspondence in litigation with the Government.
+
+Fifth, Rule 410 makes plea bargaining statements admissible "in any proceeding wherein another statement wade in the course of the same plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it." Fed. R. Evid. 410. The Government has made clear that it intends to introduce considerable evidence about the course of plea discussions in this case in support of its position. As a matter of fairness, the victims are therefore entitled to discover evidence from the Government that might support their position.
+
+In addition to their Rule 410 argument, the defense attorneys quickly advance a fallback argument — that the Court should create a heretofore unrecognized "common law privilege" under Rule 501 of the Federal Rules of Evidence. This claim also lacks merit.
+
+First, the Court cannot create a "common law" plea bargaining privilege that would overturn limits that Congress crafted in Rule 410. Congress extended protection only to plea discussions "which do not result in a plea of guilty." Fed. R. Evid. 410(4) (emphasis added). Whatever the Court's "common law" rulemaking authority maybe, it certainly does not extend to trumping specific language in the Federal Rules of Evidence.
+
+Second, no such "common law" privilege exists. While the defense attorneys frequently allude to "constitutional considerations" that supposedly undergird plea bargain, the simple fact remains that "there is no constitutional right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The Court should not exalt to privileged status negotiations that merely serve the administrative convenience of the parties over the important value of truth seeking.
+
+The Government has also filed a response to the supplemental briefing of the defense attorneys (DE 100), in which it claims that its plea bargaining correspondence with Epstein's lawyers is confidential work product material. The Government's arguments are without merit for three reasons. First, as the victims have previously explained, all the correspondence is discoverable because the CVRA requires the Government to makes its "best efforts" to support the victims. 18 U.S.C. § 3771(c)(1). Second, the CVRA bars the Government from erecting an adversarial work product privilege against the victims when they are attempting to secure information to protect their CVRA rights. Third, entirely apart from the CVRA, work product protections only extend to confidential materials. If the Government wishes to litigate this issue, it must prepare a privilege log. But the correspondence with defense attorneys is simply not confidential and therefore not protected by the work product doctrine.
+
+## I. THE CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY FEDERAL RULE OF EVIDENCE 410.
+
+The defense attorneys claim that, under Fed. R. Evid. 410, the victims cannot seek discovery of plea bargaining correspondence between them and the Government. Their arguments are unavailing.
+
+# A. RULE 410 DOES NOT BAR DISCOVERY OF THE CORRESPONDENCE.
+
+The defense attorneys' reliance on Rule 410 is simply premature. By its plain terms, the rule bars only admissibility of information at trial against the defendant who made the plea - the Rule does not apply to the discovery phase at all. See Fed. R. Evid. 410 (barring use of certain "evidence" in a "civil or criminal proceeding"). Accordingly, the victims can discover the correspondence now and the court can sort out trial admissibility issues later.
+
+#### B. EPSTEIN IS COLLATERALLY ESTOPPED FROM RELITIGATING THE APPLICABILITY OF RULE 410.
+
+As the Court is well aware, the issue of whether the correspondence was somehow protected by Rule 410 was thoroughly litigated by the defense attorneys' client (Jeffrey Epstein) more than a year ago, and Epstein's arguments were more appropriate in the previous case (where he was actually a party to the litigation and the information discovered would likely be admitted against him). This Court rejected Epstein's arguments against disclosure in that case as well, including his argument that Rule 410 blocked disclosure. See, e.g., Jane Doe v. Epstein, doc. #462 at 10, Case No. 9:08-CV-80119-ICAM (Feb. 4, 2010).
+
+The defense attorneys now propose to relitigate the very same issue of Rule 410's applicability in this case. Their effort to revisit the issue is barred by the doctrine of collateral estoppel because: "(1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue was critical and necessary to the earlier judgment; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding." In re MDL-1824 Tri-State Water Rights Litigation, 644 F.3d 1160, 1202 (11th Cir. 2011).
+
+## C. RULE 410 DOES NOT APPLY IN THIS CASE BECAUSE THE PLEA DISCUSSIONS LEAD TO A GUILTY PLEA.
+
+In any event, at any ultimate proceeding in this case, Rule 410 will simply be inapplicable. Because "Rule 410 is an exception to the general principle that all relevant evidence is admissible at trial, see Fed.R.Evid. 402, its limitations are not to be read broadly." United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005). The plain language of the rule is narrowly written to cover only a "statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty." Fed. R. Evid. 410(4) (emphasis added). Obviously, a prerequisite to applying the rule is a case where no plea of guilty resulted. See, e.g., United States v. Ruhkowsi, 814 F.2d 594, 596 (11th Cir. 1987) (discussing application of the rule in situations where "plea negotiations . . . broke down" and case went to trial); United States v. Gonzalez, 608 F.3d 1001 (7th Cir. 2010) cert. denied, 131 S. Ct. 952 (2011) (allowing use of plea discussions against a defendant who pleaded guilty because Rule 410(4) "makes admissions in plea bargaining inadmissible only if the plea bargaining either does 'not result in a plea of guilty"); United States v. Kerik, 531 F.Supp.2d 610, 618 (S.D.N.Y. 2008) (Rule 410 "only excludes statements made in plea discussions that do not result in a plea of guilty. As such, the rule does not apply here because Mr. Kerik eventually pleaded guilty."). Here, of course, Epstein's plea discussions did result in a plea of guilty. As the Court is well aware, Epstein engaged in extensive discussions with the U.S. Attorney's Office in an effort to obtain a non-prosecution agreement. And ultimately he did obtain such an agreement — in exchange for pleading guilty to two state offenses.
+
+The terms of the non-prosecution agreement the victims are challenging make it quite clear that Epstein's plea discussions "result[ed] in a guilty plea." The agreement recites that "Epstein seeks to resolve globally his state and federal criminal liability and Epstein understands and acknowledges that, in exchange for the benefits provided by this agreement, he agrees to comply with its terms, including undertaking certain actions with the State Attorney's Office." Non-Prosecution Agreement at 2. The agreement goes on to specifically provide Epstein shall plead guilty to two offenses:
+
+"Epstein shall plead guilty . . to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf-009495AXXXMB) charging one (1) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In addition, Epstein shall plead guilty to an Information filed by the States Attorney's Office charging Epstein with an offense that requires him to register as a sex offender" that is, the solicitation of minors to engage in prostitution, in violation of Florida Statutes Section 796.03."
+
+Id. at 3 (emphases added). And, as the Court knows, Epstein did ultimately plead guilty to those two Florida offenses pursuant to the agreement.' Accordingly, Rule 410 gives Epstein no ability to block the victims from discovery and use of his attorneys' plea discussions because those discussions "result[ed] in a guilty plea.s2
+
+I Rule 410 draw no distinction between pleas in federal court and pleas in state court. See, e.g., United States v. Chapman, 954 F.2d 1352, 1360 (7th Cir. 1992) (applying rule to discussions over "withdrawn state plea"); United States v. Kerik, 531 F.Supp.2d 610 (S.D.N.Y. 2008) ("Rule 410 applies in federal proceedings to statements made in connection with prior state pleas"); see also United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986) (permitting the admission of a guilty plea from state court in a federal proceeding).
+
+<sup>2</sup> Because Epstein's lawyers are claiming that the correspondence is protected by Rule 410, they bear the burden of establishing all necessary facts for the application of the rule. If Epstein's lawyers claim that the plea discussions somehow did not result in a plea of guilty, the victims request a hearing under Fed. R. Evid. 104(a) to dispute this preliminary question of fact.
+
+Rather than address this obvious point, Epstein's lawyers engage in subterfuge. In their supplemental pleading, the lawyers claim that the correspondence with the U.S. Attorney's Office is protected by "the express language of Rule 410." DE 94 at 3. Yet, they cleverly paraphrase the "express language" of the rule in a way that avoids quoting the critical limiting language that restricts Rule 410 to discussions "which do not result in a plea of guilty." Fed. R. Evid. 410(4). See DE 94 at 4-5 (discussion of Rule 410 that fails to discuss the limitation of the rule to negotiations "result[ing] in a plea of guilty"). The express language of the Rule does not prevent the victims from introducing the correspondence in support of their claims about plea discussions concerning Epstein because he pled guilty.;
+
+## D. RULE 410 DOES NOT APPLY HERE BECAUSE THE VICTIMS WILL USE THE CORRESPONDENCE AGAINST (IF ANYONE) THE GOVERNMENT.
+
+Rule 410 is also inapplicable here because it would, at most, bar admissibility of the correspondence into evidence "against the defendant who made the plea" — i.e., against Jeffrey Epstein. But the victims intend to obtain and use the correspondence to seek relief from the Government. Accordingly, the Rule cannot be used to bar the victims from obtaining discovery of this information.
+
+By its plain terms, Rule 410 only bars the admission of evidence "against the defendant who made the plea." The purpose underlying this rule to "promote negotiations by permitting defendants to talk to prosecutors without sacrificing their ability to defend themselves if no disposition is reached." United States v. Barrow, 400 F.3d 109, 116 (2d Cir.2005) (emphases
+
+The express language of Rule 410 also makes clear that "derivative evidence" is never excluded from a proceeding. See United States v. Ruhkowsi, 814 F.2d 594, 599 (11th Cir. 1987).
+
+added). Thus, the Rule has no application where the discussions are being used not against a defendant but rather against the Government. See United States v. Biaggi, 909 F.2d 662, 691 (2d Cir. 1990).
+
+Here, the victims intend to use the correspondence against any argument the Government may make in this civil action seeking to enforce their CVRA rights.4 They intend to use the correspondence to prove initially that the Government violated their rights. Having proven a violation of their rights, they will then seek various remedies concerning the Government. To provide a straightforward example, one (quite modest) remedy that they will ask the Court to impose on the Government is an order directing the U.S. Attorney's Office write a letter of apology to the victims for deliberately violating their rights. Clearly the victims' use of the correspondence to prove that the Government did not afford them their rights and that such a remedy is appropriate lies outside Rule 410's ambit.
+
+Of course, the victims in this case seek far more than a letter of apology from the Government. As they have made clear throughout this litigation, they also intend to ask for the Court to impose (among other things) the one remedy that will most directly respond to the Government's violation of their rights: invalidation of the non-prosecution agreement so that they can confer with the Government about the possibility of actually prosecuting Epstein for the sex offenses he committed against them. Epstein's lawyers claim that any such use would be a use "against" the defendant and therefore covered by this language in Rule 410.5 This claim,
+
+<sup>4</sup> As explained in Section III.B below, the victims do not believe they stand in an adversarial posture with the Government, as Congress has obligated the Government to use its "best efforts" to protect the CVRA rights of crime victims. 18 U.S.C. § 3771(c)(1).
+
+<sup>5</sup> Notably, the Government does not argue in its pleading that any use of the information
+
+however, assumes that the Rule 410 bars every court action that might ultimately have some collateral, harmful effect on a defendant. But Rule 410 is much more narrowly drafted forbidding not uses that may eventually harm the defendant, but instead more narrowly admissibility of plea negotiations into evidence "against" the defendant in a "civil or criminal proceeding." At this point, Epstein is not a party to the CVRA proceeding, and therefore it is not possible for any use of this correspondence to equate to forbidden admissibility of evidence "against" him. For this reason as well, the rule is inapplicable.
+
+## E. RULE 410 DOES NOT APPLY HERE BECAUSE OTHER STATEMENTS WILL BE INTRODUCED AND, IN FAIRNESS, THE CORRESPONDENCE SHOULD BE CONSIDERED AS WELL.
+
+Rule 410 will also ultimately be inapplicable at trial because it contains a "completeness" exception. Even for plea bargain discussions protected by Rule 410, a plea bargain statement is admissible "in any proceeding wherein another statement made in the course of the same plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it." Fed. R. Evid. 410. The Government has already made it quite clear in its pleadings that it will introduce certain statements about the course of the plea negotiations. Rule 410 thus entitles the victims to respond by introducing other aspects of the plea negotiations.
+
+Rule 410's completeness rule requires the court to determine whether, when one statement about plea discussions is introduced, other statements ought to in fairness be introduced as well. While it is too early to say for certain what arguments the Government will make at any ultimate proceeding to determine whether it violated the victims CVRA rights, from
+
+against it would somehow violate Rule 410. See U.S. Response to Supplemental Briefing at 3.
+
+all indications the Government intends to introduce many statements about the timing and course of plea discussions. For example, in its response to the victims' summary judgment motion, the Government makes clear that it intends to argue that it properly conferred with the victims over an 18 month period of time. See U.S. Response to Jane Doe #1 and #2's Motion for Finding Violations of the CVRA at 37 (arguing that between August 2006 and January 2008 government prosecutors and agents "went above and beyond the minimum statutory requirements" in conferring with victims about plea negotiations). Similarly, the Government intends to dispute that it sent false notices to the victims about the case being "under investigation" because plea discussions had not reached a final conclusion at that time. Id. at 41 (arguing that "[d]uring the time that Epstein was challenging the NPA, the investigation continued and agents were able to conduct" witness interviews). The Government also intends to take the position that it reasonably stopped making notifications to the victims, because if Epstein did not plead guilty and there was a trial, Epstein would cross-examine the victims about payments they would have received pursuant to the non-prosecution agreement. Id. at 42.
+
+It is simply unfair for the Government to be able to pick and choose from all the events surrounding the plea negotiations only those that support its case, while depriving the victims of the opportunity to even discover information that might bolster their case. See Frontier Ref:, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 704 (10th Cir. 1998) (a litigant cannot use privilege "as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion."). And Rule 410 in particular blocks such a one-sided approach. Instead, under the Rule, the victims are entitled to show the full course of plea discussions at any ultimate hearing in this case about whether the
+
+Government violated their CVRA rights. And the victims are certainly entitled, at this earlier juncture in the case, to obtain all relevant information that they might ultimately be able to use to disprove the Government's defenses.°
+
+### II. THE CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY SOME KIND OF "COMMON LAW" PLEA BARGAINING PRIVILEGE.
+
+For all the reasons just given, Rule 410 does not bar the victims from discovering correspondence about how the non-prosecution agreement was reached. Perhaps recognizing the weakness of this argument, Epstein's lawyers present the fallback claim that some sort of "common law" privilege for "plea bargaining" bars discovery into the correspondence. This argument, too, lacks any merit.
+
+## A. The Courts Cannot Create a "Common Law" Privilege That Overrules the Specific Contours of Rule 410.
+
+Epstein's lawyers ask the Court to invent some sort of new "common law" privilege under Federal Rule of Evidence 501. Rule 501 does allow federal courts some opportunity to
+
+Additionally, the correspondence may become important if the Court allows Epstein to make a belated entry into the case and raise various defenses. Epstein's legions of lawyers can be expected to advance all manner of legal and factual arguments — even claims that are simply untrue. For example, in a desperate attempt to avoid registering as a convicted sex offender in New York, Epstein recently had his attorneys represent to the New York County Supreme Court that "the prosecutor in Florida conducted a full investigation . . . and determined that the only case that she could present to the grand jury was this [single] indictment for a non registrable offense . . . ." People of New York v. Epstein, No. 30129/2010 (N.Y. Cnty. Sup. Ct. Jan. 18, 2011), hearing transcript at 9 (transcript attached to his pleading as Exhibit A). Epstein's attorneys also — quite astonishingly — stated "there are no real victims" in Florida. Id. And in what can only be described as a false statement to the New York court, Epstein's lawyers stated: "there has been through the course of the last few years some civil ligation . . . involving these matters and we now have sworn testimony in evidence from the complainants themselves disclaiming much of what appears in the [Florida] police report." Id. at 14. Given Epstein's penchant for bending the truth, the victims are entitled to all the correspondence as a safeguard against him advancing similar inaccurate arguments in this case.
+
+create new privileges. The Supreme Court has been clear, however, that courts must "not create and apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence. Inasmuch as testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man's evidence, any such privilege must be strictly construed." University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) (internal quotations omitted).
+
+While Epstein's lawyers do not cite the controlling legal standard for creating a privilege in this Circuit. The Eleventh Circuit has strongly cautioned that "the rule in this circuit is that a new privilege should only be recognized where there is a `compelling justification.' International Horizons, Inc. v. The Committee of Unsecured &editors, 689 F.2d 996, 1004 (11th Cir.1982) (quoting In re Dinnan, 661 F.2d 426 (5th Cir.1981)). The Eleventh Circuit has explained that this stringent rule arises from the federal courts' disfavor of privileges and from the policy of construing privileges narrowly, so as to protect the "search for truth." 689 F.2d at 1003 (quoting United States v. Nixon, 418 U.S. 683 (1974)).
+
+Here the Court has strong reason to be skeptical of a new plea bargaining privilege. The transparent purpose behind Epstein's lawyers' "common law" effort is to avoid the specific limitations contained in Rule 410. See Sections I.0 through I.E, supra (discussing language in Rule 410 requiring that the negotiations not have "result[ed] in a plea of guilty," that the negotiations be introduced "against" the defendant in a "proceeding," and that fairness not require "contemporaneous" introduction of all aspects of the negotiations). But the Supreme Court has made clear that courts must be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself. The balancing of conflicting interests of this type is particularly a legislative function." University of Pennsylvania v. E.E.O. C., 493 U.S. 182, 189 (1990) (internal quotation omitted). The Court should not use the general provisions of Rule 501 to effectively supersede the detailed limitations in Rule 410.
+
+## B. No "Common Law" Privilege for Plea Bargaining Exists.
+
+Even if the Court were willing to entertain the idea that it should embark on an exercise of "common law" privilege making, no common law privilege exists for plea bargaining. While the defense attorneys frequently allude to "constitutional considerations" that supposedly undergird plea bargaining, the simple fact remains that "there is no constitutional right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977); accord United States v. Barrentine, 591 F.2d 1069, 1078 (5h Cir. 1979). To be sure, the courts tolerate plea bargaining because it helps reduce the workload of congested criminal dockets. But common law rulemaking should not be used as an excuse to exalt negotiations that merely serve administrative convenience over the far more important search for truth.'
+
+Perhaps recognizing that tenuousness of raising plea bargaining over truth-seeking values, Epstein's lawyers attempt to repackage their proposed privilege as a "common law mediation" privilege. Supplemental Briefing at 16. There is no need for such a privilege in the Southern District of Florida to protect true mediation. A local rule already protects confidentiality in court-annexed mediation. See Local Rule 16.2(G)(2). Epstein's lawyers,
+
+To be sure, as the Government points out, effective defense counsel should always explore plea bargaining opportunities. See Gov't Resp. at 7 (citing Padilla v. Kentucky, 130 S.C.t 1473, 1485 (2010)). But this is a far cry from proving there is a "right" to plea bargaining or that protecting plea bargaining opportunities is more important than, for example, protecting congressionally-mandated crime victims' rights conferred in the CVRA.
+
+however, do not cite this rule, because they know their plea bargaining discussions with government attorneys fall outside its protections.
+
+Epstein's lawyers also implicitly concede that there is no well-established "common law" support for a mediation privilege, as they are able to cite only a smattering of cases (three in total over the last 32 years) recognizing such a privilege. None of these cases are from the Eleventh Circuit, which (unlike other jurisdictions) requires a strong showing of "compelling" justification before a new privilege can be created. International Horizons, Inc. v. The Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir.1982) ("compelling" justification required to interfere with the search for truth in federal cases). Moreover, none of the three cases cited involve plea bargaining in criminal cases — presumably because that subject is already directly covered in detail in Rule 410. Finally, these cases involve situations where a court thought it important to create "confidentiality and trust between participants in a mediation proceeding." Epstein's Supplemental Briefing at 17 (citing Folb v. Motion Picture Ind. Pension & Health Plans, 16 F.Supp.2d 1164, 1175 (C.D. Cal. 1998) (emphasis added)). Here, of course, the parties to the plea discussion (Epstein and the Government) are attempting not to create a privilege between themselves, but rather to block third parties harmed by their actions from discovering what they have done.
+
+Make no mistake about the sweeping position that Epstein's attorneys are advancing: They claim that the defense attorneys and the Government can conspire between themselves to arrange for secret plea discussions in violation of congressionally-mandated crime victims' rights in the CVRA and then block the crime victims from obtaining the information that would prove the violation that has happened. Such a privilege would, among other things, directly conflict
+
+with the statutory command of Congress that crime victims must be "treated with fairness," 18 U.S.C. § 3771(a)(8), a statute which obviously trumps any claim by a convicted sex offender that his efforts to work out a secret plea deal with the Government is somehow entitled to greater protection. For all these reasons, the Court should reject the defense attorney's suggestion that it should invent a new "mediation privilege" to apply to the plea bargaining discussions in this case.
+
+## III. THE WORK PRODUCT DOCTRINE DOES NOT COVER CORRESPONDENCE BETWEEN PROSECUTORS AND DEFENSE ATTORNEYS.
+
+The Government's response to the defense attorney's supplemental briefing (DE 100) itself raises new issues about whether the victims will be able to obtain the correspondence (or, indeed, any information from the Government). After the Court ruled that the victims were entitled to discover relevant information (DE 99 at 10), the victims asked the Government to voluntarily provide them with at least some documents. In response, however, the Government told the victims that all of the relevant information — including presumably the correspondence — is privileged from production and that the Court will need to determine, "on a document-bydocument basis" (Gov't Resp. at I) whether any of the materials in the Government's possession falls outside the work product doctrine. The Court should reject the Government's sweeping claim that all correspondence (and other information) is protected by the work product doctrine.
+
+### A. The Court Should Now Grant the Victim's Still-Pending Motion for an Order Directing the U.S. Attorney's Office Not to Suppress Relevant Evidence.
+
+In its order allowing discovery, the Court "reserve[d] ruling" (DE 99 at11) on the victims' Motion for an Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence. The victims respectfully renew their motion (DE 50). Of course, if the Court decided to grant this motion, it would obviate the need for any kind of "document-by-document" review of the relevant information that the Government continues to withhold.
+
+### B. The CVRA Requires the Government to Work Cooperatively to Protect the Victims' Rights and Thus Bars the Government from Interposing an Adversarial Work Product Defense.
+
+The Government argues that the work-product doctrine it is asserting prevents the victims from obtaining any information relevant to their CVRA claim. In doing so, the Government fundamentally misunderstands its role under the CVRA. The Government seems to believe that it stands in an adversarial posture to the victims and therefore it can simply interpose the same sorts of litigation barriers it would deploy against a criminal defendant seeking discovery of Government documents. But the CVRA does not place victims and the Government on opposite sides of CVRA enforcement. Instead, the Act obligates the Government to work together with victims to enforce CVRA rights. In such a cooperative world, the Government cannot erect a "work product" barrier to CVRA enforcement.
+
+The CVRA specifically directs Justice Department prosecutors to make their "best efforts" to protect victims' rights. Title 18 U.S.C. § 3771(c)(I) commands that "[officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the . . . prosecution of crime shall make their best efforts to see that crime victims notified of, and accorded, the rights described in [the CVRA]" (emphases added). Underscoring this "best efforts" obligation, the CVRA even allows prosecutors to bring their own actions to enforce victims' CVRA rights. Title 18 U.S.C. § 3771(d)(1) provides: "The crime victims . . and the attorney for the Government may assert the rights described in [the CVRA]" (emphasis
+
+added). Of course, the attorney for the Government can never bring an action on behalf of a criminal defendant. Thus, unlike when they prosecute criminal defendants, Justice Department prosecutors are statutorily obligated to work with crime victims.
+
+In light of the fact that Congress requires prosecutors and victims to cooperate to protect CVRA rights, in cases (such as this one) seeking to enforce CVRA rights the Government cannot raise adversarial work-product objections under the Federal Rules of Criminal Procedure. Those rules govern the antagonistic relationship inherent in a criminal prosecution. With regard to discovery, the rules only cover discovery "upon a defendant's request." Fed. R. Crim. P. 16(a)(1) (emphasis added). The discovery rules allow a criminal defendant to obtain limited information from the Government, including specifically his confession, his prior criminal record, tangible objects (i.e., contraband or other evidence), and reports of scientific tests. Fed. R. Crim. P. 16(a)(1)(A)-(F). Against that backdrop, the rule cited by the Government — Fed. R. Crim. P. 16(a)(2) — prevents a criminal defendant from forcing disclosure of "internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case." In this case, though, it is not a criminal "defendant" trying to obtain information in an effort to obtain an acquittal, but rather plaintiff crime victims seeking information to enforce their CVRA rights. Accordingly, by its plain terms, Rule 16 simply doesn't apply. And even if it somehow did apply, it only covers documents made "in connection with investigating or prosecuting the case" — i.e., documents about the "case" in which the discovery request is made (here Jane Doe #1 and #2 v. United States). Here, the victims are seeking (among other things) correspondence about an earlier case — i.e., documents related to the Jeffrey Epstein investigation and non-prosecution in which the
+
+Government violated their CVRA rights. For this reason as well, the criminal rule simply doesn't apply.
+
+Perhaps recognizing that it will not be able to avoid producing documents under the Federal Rules of Criminal Procedure, the Government immediately cites the Federal Rules of Civil Procedural as well. Gov't Resp. at 5 (citing Fed. R. Civ. P. 26(b)(3)(B)). But if the Government is going to seek the civil rules' protections, it also needs to satisfy those rules' burdens. For example, despite repeated requests from the victims spanning several years, the Government has yet to even make any initial disclosures under the civil rules. See Fed. R. Civ. P. 26(a)(1)(A) ("a party must, without await awaiting a discovery request, provided to the other parties" various things relevant to the case). The victims long ago made their initial disclosures to the Government under the civil rules, but the Government continues to refuse to reciprocate. If the Government is going to maintain that the civil rules operate to give it certain discovery protections, it must satisfy all of its discovery obligations as well.
+
+In any event, as with the criminal rules, the civil rules are designed to create protections in an adversarial setting. The rule cited by the Government — Fed. R. Civ. P. 26(b)(3)(A) provides that "ordinarily . . . a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . ." This privilege "does not exist to protect a confidential relationship, but rather to promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of the opponent." U.S. v. American TeL and Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980) (emphasis added). While the victims have listed the government in the caption of this enforcement action, they certainly do not regard the Government as their "opponent" — and under
+
+the regime created by the CVRA, prosecutors and victims are not "opponents" that would create the proper circumstances for a work product privilege. As explained above, the CVRA requires the Government to use its "best efforts" not to oppose crime victims but rather to "accord" them their rights under the CVRA. 18 U.S.C. § 3771(c)(1).
+
+Underscoring the conclusion that work product does not apply is the nature of the correspondence at issue in these pleadings. The correspondence is between prosecutors and defense attorneys negotiating a plea arrangement. It was, at most, prepared in anticipation of a criminal prosecution being filed by the Government against Epstein — in other words, a contemplated criminal prosecution that would have been styled United States v. Epstein. Whatever work product claim would exist in that case, it does not extend to this — entirely separate — civil case. See Hendrick v. Avis Rent A Car System, Inc., 916 F.Supp. 256, 259 (W.D.N.Y.,1996) (no work product existed because "the documents sought 'were not prepared in anticipation of this particular litigation' (citing Bartley v. Isztzu Motors, 158 F.R.D. 165, 167 (D.Colo.1994) (emphasis added)). For all these reasons, the Court should give effect to the cooperative structure created in the CVRA and flatly reject the Government's suggestion that it can interpose an adversarial work product claim to block the victims from discovering correspondence with Epstein's defense attorneys.
+
+### C. If the Court Allows the Government to Raise Work Product Claims, then the Government Must Prepare a Detailed Privilege Log and Bear the Burden of Establishing Its Position on a Document-by-Document Basis — a Burden It Cannot Meet With Regard to the Correspondence.
+
+If the Government is allowed to raise a work product claim, the procedures associated with such claims are familiar. As the Government concedes, it would be required to prove protection on a "document-by-document" basis. Gov't Resp. at 1. The way such documentspecific issues are litigated is through a privilege log. See Fed. R. Crim. P. 26(b)(5)(A)(ii). The Court's Local Rules spell out requirements for a privilege log. The Government should describe (among other things) the type of document, the general subject matter of the document, the date of the document, and the author and addressee of the document or correspondence. Local Rule 26(g)(3). The privilege log must be detailed enough to allow the victims to respond to the Government's assertion of privilege. See, e.g., Avgoustis v. Shinseki, 639 F.3d 1340, 1345-46 (Fed. Cir. 2011) ("privilege logs were insufficiently detailed when they merely stated "Fax: Whistleblower article" or "Summary of Enclosures" and justified the privilege by characterizing the documents as "attorney-client communication[s]" without explanation.") (citing United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996)).8
+
+Once the Government has cataloged the documents in its privilege log, it then bears the burden of proving the applicability of the privilege. See In re Professionals Direct Ins. Co., 578 F.3d 432 (6ih Cir. 2009); Boogie v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003). The victims will, of course, later respond in detail to any specific assertions the Government makes, But it is obvious that the Government cannot assert a valid work product privilege for any of the correspondence it carried on with defense attorneys for Epstein.
+
+<sup>8</sup> Similarly, if the defense attorneys are allowed to intervene in this case to assert privilege, they must then provide a privilege log on a document-by-document basis.
+
+<sup>9</sup> In briefly responding here to arguments raised by the Government, the victims are not waiving any responses they might later make to specifically-asserted work product claims. In particular, on a document-by-document basis, the victims reserve their right to argue that the documents are not work product materials and, in any event, that they have a "substantial need for the materials to prepare [their] case and cannot, without undue hardship, obtain the[] substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A)(ii).
+
+For starters, the issue of whether the correspondence was somehow protected against discovery was thoroughly litigated by Epstein more than a year ago. This Court rejected Epstein's arguments against disclosure. Jane Doe v. Epstein, doc. #462, Case No. 9:08-CV-80119-ICAM (Feb. 4, 2010).10 That ruling by the Court then is, to say the least, persuasive authority on the Government's identical argument here.
+
+Moreover, correspondence with an adversary in a criminal prosecution is not the kind of confidential information that is even arguably covered by work product. Work product covers only "reports, memoranda, and other internal government documents made by an attorney for the government . . . in connection with . . . prosecuting the case." Fed. R. Crim. P. 16(a)(2) (emphasis added); see also Fed. R. Civ. 26(b)(3)(A). Correspondence between prosecutors and defense attorneys is simply not an "internal" matter that is subject to a work product protection.
+
+Correspondence with an adversary also waives any work-product coverage. "The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived." United States v. Nobles, 422 U.S. 225, 239 (1975). "Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement." In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844, 846 (8th Cir. 1988). Thus, "[c]ourts will imply waiver when a party
+
+In Jane Doe v. Epstein, doc. #462, Case No. 9:08-CV-80119-ICAM (Feb. 4, 2010) (denying defense objection to Request for Production #10), the Court ordered Epstein to produce "all correspondence between you and your attorneys and state or federal law enforcement or prosecutors." It now appears to the victims that, in clear contravention of this Court's discovery orders, Epstein's attorneys secretly withheld significant correspondence involving plea discussions by several of Epstein's attorneys, including Lillian Sanchez, Jay Lefkowitz, and Ken Starr. If this is true, as part of any privilege log they file, the defense attorneys should explain why they secretly and improperly withheld this information.
+
+claiming the protection has voluntarily disclosed work product to a party not covered by the work-product doctrine." United States v. Ary, 518 F.3d 775, 783 (10th Cir. 2008).
+
+Perhaps recognizing the difficulty inherent in its position under these well-recognized general principles, the Government claims that the court cases have been "inconsistent" on whether communications during plea bargaining waive work product privilege. Gov't Resp. at 8. This is simply untrue, as a review of the relevant cases quickly demonstrates.
+
+The Government concedes that there is circuit court authority that defendants' disclosure of work product materials to the government during plea bargaining waives all work product protection. The Government acknowledges, for example, that Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991), explicitly adopts this position. That case concluded that Westinghouse's disclosure of work product materials to the Justice Department during an investigation "waived the work-product doctrine as against all other adversaries." Id. at 1429. This holding makes sense, because it is hard to understand how a litigant can claim confidentiality in materials it has otherwise disclosed.
+
+The Government claims, however, that this common sense conclusion has been rejected by the First Circuit, which (according to the Government) has "held that a company may maintain even its . . . work-product privilege in materials that it discloses to the U.S. Attorney's Office during pre-indictment presentations and ongoing plea negotiations." Gov't Resp. at 8 (citing In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 27-28 (1st Cir. 2003)). But the case the Government cites stands for no such broad proposition. Rather, that case involved a situation where for two years the Government had been demanding that XYZ Corporation should waive its privileges and produce various documents
+
+relevant to a government investigation; the company "steadfastly had refused." Id. at 26. The company ultimately proffered some of the documents that the Government had been seeking. But the company's counsel voluntarily produced those documents under a "clear and explicit" reservation of all privileges. Id. at 27. And the reservation was "accepted by the government's consistent course of conduct," id. at 28, which included treating the documents as protected. Thus, in that case, there was simply no conduct from which a waiver could be inferred, as the Government had agreed through its course of conduct that the protection existed. Here, of course, there is not such course of conduct and, in any event, the victims have never "accepted" that the correspondence is protected.
+
+Moreover, in an effort to show the Courts of Appeals are inconsistent, the Government pretends to have universally surveyed caselaw with its citations to just these two allegedly "inconsistent" cases. In fact, the clear bulk of circuit authority has clearly and straightforwardly rejected arguments that the U.S. Attorney's Office advances here (and has frequently done so at the request of the Government). See, e.g., In re Qwest Communications, Inc., 450 F.3d 1179, 1192-1201 (10th Cir. 2006) (company's disclosure of documents to the SEC during criminal investigation waived work product protections); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2005) ("any work product objection was waived by [party] via production" of the documents in question); In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 302 (6th Cir. 2002) (attorney client/work product privilege was "never designed to protect conversations between a client and the Government i.e., an adverse party — rather, it pertains only to conversations between the client and his or her attorney. . . purpose [of attorney-client privilege] is to encourage full and frank communication
+
+between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. Nowhere amongst these reasons [for protection] is the ability to `talk candidly with the Government.'"); United States v. MIT., 129 F.3d 681, 687 (1st Cir. 1997) ("the prevailing rule that disclosure to an adversary, real or potential, forfeits work product protection"); In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2nd Cir. 1993) ("voluntary disclosure of work product to an adversary waives the privilege as to other parties"); In re Chrysler Motors Overnight Evaluation Litigation, 860 F.2d 844, 846-47 (8h 1988) (defendant company's disclosure of computer tape to class counsel during settlement negotiated waived work product when tape sought by government as part of criminal case); In re Sealed Case, 676 F.2d 793, 824-25 (D.C. Cir. 1982) (production of documents during settlement discussions with the SEC waived work product protection as to grand jury).
+
+For all these reasons, the Court should reject the Government's claim that its correspondence with Epstein's attorneys during plea negotiations somehow is confidential work product immune from discovery.
+
+## CONCLUSION
+
+For all the foregoing reasons, if the Court allows the defense attorneys to intervene in this case, the Court should rule (1) that Rule 410 does not prevent discovery of plea negotiation correspondence; (2) there is no basis for inventing a new "common law" privilege preventing discovery of the correspondence; and (3) the correspondence is not confidential "work product" of the Government and is discoverable by the victims in this case.
+
+DATED: October 10. 2011
+
+Respectfully Submitted,
+
+s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS FISTOS & LEHRMAN, P.L.
+
+Fort Lauderdale, Florida 33301
+
+and
+
+Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah
+
+Salt Lake City, UT 84112
+
+Attorneys for Jane Doe #1 and Jane Doe #2
+
+## CERTIFICATE OF SERVICE
+
+The foregoing document was served on October 10, 2011, on the following using the
+
+Court's CM/ECF system:
+
+[REDACTED]
+
+Assistant U.S. Attorneys
+
+[REDACTED]
+
+West Palm Beach, FL 33401
+
+[REDACTED]
+
+Attorneys for the Government
+
+Roy Black, Esq.
+
+Jackie Perczek, Esq.
+
+Black, Srebnick, Kornspan & Stumpf, P.A.
+
+[REDACTED]
+
+Miami, FL 33131
+
+[REDACTED]

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marker2/ds9/EFTA00205755/EFTA00205755.md

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+Subject: Non-Prosecution Agreement re Epstein Case
+
+Date: Wed, 12 Oct 2011 22:05:43 +0000
+
+Importance: Normal
+
+Attachments: Fully\_executed\_NPA.pdf
+
+Sony to inundate you. I now understand a bit better whapecial Counsel to the U.S. Attorney, who is also working on the victims' suit) wants to discuss. He wants to discuss how the Non-Prosecution Agreement may limit your ability to prosecute some of Epstein's crimes.
+
+I have attached a copy of the Non-Prosecution Agreement for you to review, so you will know what we are talking about. If you could give us 15-25 minutes tomorrow, it would be most appreciated. Ed is free between 9:00 and 2:30.
+
+<<Fully executed NPA.pdf>>
+
+![](_page_0_Picture_7.jpeg)

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marker2/ds9/EFTA00205756/EFTA00205756.md

@@ -0,0 +1,7 @@
+Subject: Question from Roy Black
+
+Date: Fri, 02 Sep 2011 02:12:09 +0000
+
+Importance: Normal
+
+Hi Dexter — I guess one of us should respond to the question about Epstein intervening. What are your thoughts?

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marker2/ds9/EFTA00205757/EFTA00205757.md

@@ -0,0 +1,22 @@
+![](_page_0_Picture_62.jpeg)
+
+**Subject:** Doe [REDACTED] USAO
+
+**Date:** Wed, 31 Aug 2011 16:28:18 +0000
+
+**Importance:** Normal
+
+**Inline-  
+Images:** ATT00001
+
+[REDACTED]
+
+We are filing a motion seeking limited intervention by Jeffrey Epstein to protect disclosure & use of the plea negotiations. Do you object to Mr. Epstein's limited intervention? Please let me know. Thanks,
+
+Jackie Perczek, Esq.
+
+![](_page_0_Picture_69.jpeg)
+
+\*\*\*\*\*
+
+The information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you.

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marker2/ds9/EFTA00205758/EFTA00205758.md

@@ -0,0 +1,15 @@
+To: "'brad@pathtojustice.com"' <brad@pathtojustice.com>, "12Black@RoyBlack.com". <RBlack@RoyBlack.com>
+
+Subject: Jane Does I United States
+
+Date: Fri, 16 Sep 2011 12:28:35 +0000
+
+Importance: Normal
+
+Dear Brad and Roy:
+
+I was in Bogota for 10 days where my phone didn't work and I had very limited access to email so I have a lot of catching up to do. Do you have any objection to a ten day extension of time to respond to Mr Epstein's motion?
+
+Thank you
+
+sannomporrs

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marker2/ds9/EFTA00205759/EFTA00205759.md

@@ -0,0 +1,27 @@
+To:'
+
+Subject: Re: Jane Does United States
+
+Date: Fri, 16 Sep 2011 14:33:31 +0000
+
+Importance: Normal
+
+Of course not. Talk to you soon.
+
+From:
+
+To: Brad Edwards
+
+To:
+
+Subject: Jane Does I United States
+
+Sent: Sep 16, 2011 8:28 AM
+
+Dear Brad and Roy:
+
+I was in Bogota for 10 days where my phone didn't work and I had very limited access to email so I have a lot of catching up to do. Do you have any objection to a ten day extension of time to respond to Mr Epstein's motion?
+
+Thank you
+
+Sent via BlackBerry by AT&T

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marker2/ds9/EFTA00205760/EFTA00205760.md

@@ -0,0 +1,15 @@
+To: ' " < (USAFLS)" < >,
+
+Subject: Re: Jane Does I United States
+
+Date: Fri, 16 Sep 2011 14:21:41 +0000
+
+Importance Normal
+
+I have no objection.
+
+>>> ' Dear Brad and Roy: (USAFLS)" < > 9/16/2011 8:28 AM >>>
+
+I was in Bogota for 10 days where my phone didn't work and I had very limited access to email so I have a lot of catching up to do. Do you have any objection to a ten day extension of time to respond to Mr Epstein's motion?
+
+Thank , AUSA

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marker2/ds9/EFTA00205761/EFTA00205761.md

@@ -0,0 +1,69 @@
+![](_page_0_Picture_77.jpeg)
+
+**Subject:** RE: Re:
+
+**Date:** Mon, 26 Sep 2011 20:02:17 +0000
+
+**Importance:** Normal
+
+---
+
+Nobody knows. At the very first hearing -- 3 years ago -- the judge said the most he could do is order us outside to "confer."
+
+![](_page_0_Picture_82.jpeg)
+
+----- Original Message -----
+
+Sent: Monday, September 26, 2011 3:56 PM
+
+Subject: Re:
+
+What if the court disagrees and says we violated cvra - what's the remedy? A declaratory judgment? He can't set the np aside and he definitely can't get money.
+
+----- Original Message -----
+
+Sent: Mon Sep 26 15:54:03 2011
+
+Subject: RE:
+
+Setting aside the non-pros and prosecuting him as though the Non-pros had never been signed.
+
+![](_page_0_Picture_91.jpeg)
+
+----- Original Message -----
+
+Subject: Re:
+
+Suggest what thing?
+
+----- Original Message -----
+
+No. He already served his sentence in state court and performed all his other obligations under the Non-Pros (including paying damages to 30-some girls). I argued it would be a Due Process violation to even suggest such a thing.
+
+![](_page_1_Picture_49.jpeg)
+
+-----Original Message-----
+
+![](_page_1_Picture_51.jpeg)
+
+Subject: Re:
+
+Have we conceded that a showing that we violated the CVRA would justify reopening/setting aside the nonpros?
+
+![](_page_1_Picture_54.jpeg)
+
+Sent: Mon Sep 26 15:23:17 2011
+
+Subject: RE:
+
+Ideally to set aside the Non-Prosecution Agreement with Epstein and then to somehow convince us (probably through public pressure via the press) to prosecute him.
+
+![](_page_1_Picture_58.jpeg)
+
+![](_page_1_Picture_59.jpeg)
+
+Sent: Monday, September 26, 2011 2:22 PM
+
+![](_page_1_Picture_61.jpeg)
+
+What is the relief jane does want in the cvra case?

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marker2/ds9/EFTA00205763/EFTA00205763.md

@@ -0,0 +1,90 @@
+#### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson
+
+JANE DOES #1 AND #2, Petitioners,
+
+v. UNITED STATES OF AMERICA, Respondent.
+
+### UNITED STATES' RESPONSE TO SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION TO INTERVENE OF ROY BLACK, MARTIN WEINBERG, AND JAY LEFKOWITZ ]DE94]
+
+The United States of America, by and through the undersigned Assistant United States Attorney, hereby files this Response to the Supplemental Briefing of Attorneys Roy Black, Martin Weinberg, and Jay Lefkowitz (DE94). The Court asked the United States to address the Intervenor Attorneys' argument that special concerns or rules should apply to the disclosure and use of documents prepared and exchanged during plea negotiations between the Intervenors (on behalf of Jeffrey Epstein) and the U.S. Attorney's Office. The Intervenor Attorneys seek to preclude the unsealing of certain documents already filed with the Court as well as the use of their contents, and the discovery and use of additional plea negotiation documents and information.
+
+For the reasons set forth herein, the United States agrees that the Petitioners are attempting to use plea negotiations "against" Jeffrey Epstein, in violation of the Federal Rules of Evidence, and that the work product privilege is not automatically waived by disclosure in the context of confidential plea negotiations. Thus, the Court must determine, on a document-by-document basis, whether a document contains attorney work produce and, if so, whether that work product privilege has been waived. The United States further agrees that, in light of the Supreme Court's guidance on the Sixth Amendment Right to Counsel, the protections provided to civil mediation and arbitration proceedings should extend to confidential plea negotiations where a non-party seeks to use statements made during those negotiations against either party.
+
+## BACKGROUND
+
+The Court is very familiar with this matter, having handled the civil suits filed against Jeffrey Epstein pursuant to the Non-Prosecution Agreement-and this actions filed by Jane Does #1 and #2 against the United States. For purposes of this Supplemental Briefing, the relevant facts are that, through the civil litigation between the Jane Does and Jeffrey Epstein, the Jane Does obtained portions of correspondence and draft agreements between counsel for Jeffrey Epstein and counsel for the United States that were exchanged during the course of confidential a plea negotiations. To the knowledge of the government, the Jane Does have only received the portions of the correspondence written by government attorneys — all of the writings of Mr. Epstein's attorneys, excepts for a few short portions by Jack Goldberger — have been redacted. The Intervenor Attorneys ask that the Court order that the Jane Does cannot use the unredacted portions and deny their motion to use those documents in support of their claims. a The Intervenor Attorneys further ask that the Jane Does be barred from delving further into the confidential plea negotiations.
+
+At the hearing on August 12, 2011, the Court heard oral argument from Attorney Black, who suggested that the ban on discovering and using plea negotiations was broader than what is simply stated in Rule 410 of the Federal Rules of Evidence and Rule 11 of the Federal Rules of Criminal Procedure. The Court ordered supplemental briefing, and the Intervenor Attorneys have raised a number of arguments in their supplemental briefing: (I) that the plea negotiations may not be used against Mr. Epstein pursuant to Fed. R. Evid. 410 and Fed. R. Crim. P. 11(0; (2) that because the Jane Does are seeking inadmissible evidence, they bear a burden of showing a proper basis for discovery; (3) that the plea negotiations are irrelevant because the Jane Does are not entitled to invalidate the Non-Prosecution Agreement; (4) that the documents and information should be privileged under a common law plea negotiations privilege. In addition, in its initial briefing and at oral argument, the Intervenors argued that the communications were governed by the attorney work-product privilege.
+
+# ARGUMENT
+
+### A. The Petitioners Appear to Be Seeking to Use the Plea Negotiation Documents Against Jeffrey Epstein; However, This Argument Is Premature.
+
+With regard to the Intervenors' first argument, the United States agrees that the Jane Does have made clear that their ultimate goal is to have the Non-Prosecution Agreement set aside and to have Jeffrey Epstein prosecuted. Thus, although the United States is the named Respondent, the Petitioner have made clear that their true target is Jeffrey Epstein: "The victims very specifically advised Epstein more than one year ago that they would be filing U.S. Attorney correspondence in this case in an effort to invalidate his non-prosecutionagreement." (Pets.' Resp. to Epstein Mot'n for Limited Intervention, DE96 at 1.) As such, the Intervenors correctly note that "any statement made in the course of plea discussions with an attorney for the prosecuting authority [the U.S. Attorney's Office] which do not result in a plea of guilty" cannot be used against Jeffrey Epstein. Fed. R. Evid. 410(4).
+
+On today's date, September 26, 2011, the Court granted in part the Petitioners' Motion seeking a finding of violations of the Crime Victims' Rights Act ("CVRA"), but deferred ruling on the merits pending completion of discovery and denied the Petitioners' Motion to Have Their Facts Accepted as True. ( See DE99 at 13-14.)
+
+Accordingly, it is premature to speculate as to how the Petitioners will try to "use" the information currently within their possession. The United States suggests, for the reasons set forth below, that the parties enter into a Protective Order governing the use and filing of such material until such time as the matter is ripe.
+
+The Intervenors' second argument also is premature. In it, they argue that because they anticipate that the Jane Does will seek the discovery of inadmissible plea negotiations, the Court should made some sort of ruling requiring the Jane Does to make a showing of a proper basis for the discovery. As noted above, today the Court issued an Order wherein it allowed the Petitioners limited discovery via document requests and requests for admissions from the U.S. Attorney's Office. (DE99 at 11.) Rather than impose a preliminary restriction, the United States recommends that the Court require Petitioners to serve a copy of all discovery requests on the Intervenors so that they may interpose any objections and have those objections ruled upon prior to the United States serving any of its responses.
+
+# C. The Attorney Work-Product Privilege Applies to These Communications. F3
+
+In a federal criminal case, the parties are prohibited from obtaining via discovery "reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigation or prosecuting the case," and "reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense[.]" Fed. R. Crim. P. 16(a)(2), (b)(2)(A). In a federal civil case, the parties are prohibited from obtaining via discovery documents and tangible things that were prepared in preparation for litigation (including previous litigation), especially "mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B).
+
+1.
+
+s the motion to intervene, Movant Epstein and his counsel must expect to be subject to discovery at least as to his claims of privilege, on which he bears the burden of proof.
+
+Respectfully submitted,
+
+WIFREDO A. FERRER
+
+UNITED STATES ATTORNEY
+
+![](_page_2_Picture_9.jpeg)
+
+[Redacted]
+
+[Redacted]  
+[Redacted] with the  
+[Redacted] to receive
+
+Clerk  
+notice
+
+Brad Edwards, Esq.,
+
+1 [Redacted] C
+
+2 [Redacted]
+
+H [Redacted]
+
+Paul G. Cassell
+
+[Redacted]
+
+[Redacted]
+
+[Redacted]
+
+Attorneys for Jane Doe # 1 and Jane Doe # 2
+
+Roy Black, Esq.
+
+Jackie Perczek, Esq.
+
+[Redacted]
+
+![](_page_4_Picture_0.jpeg)
+
+![](_page_4_Picture_1.jpeg)
+
+Attorneys for Intervenors Jeffrey Epstein, Roy Black, Martin Weinberg, and Jay Lefkowitz
+
+fine United States uses the term "confidential" plea negotiations as a term of art. By definition, all plea negotiations are confidential and, pursuant to Rule II, are not to be made part of the Court record until a final agreement is reached and a guilty plea is entered.
+
+Pursuant to S.D. Fla. Local Rule 5.4(c), this would require that DE52 be destroyed or returned to counsel for the Jane Does and that DE63 and DE64 be destroyed or returned to counsel for the United States and that DE48 remain in the Court file only in its redacted form.
+
+F3The Intervenors also argue that the Court should find that the documents and information are irrelevant because the Petitioners are not entitled to invalidate the Non-Prosecution Agreement. In the Court's Order of September 26, 2011, granting in part the Petitioners' Motion for finding violations of the CVRA, the Court did not address the United States' argument that there is no remedy available for the Petitioners due in part to their failure to seek a prompt resolution of the case. However, in light of the Court's Order, it would seem that this issue is better resolved in a Motion for Reconsideration or on appeal of that ruling rather than in this Supplemental Briefing. Accordingly, the Intervenors' third argument is not addressed herein.