EFTA00014546

j7v2espC kjc UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, New York, N.Y. 4 v. 19 Cr. 490(RMB) 5 JEFFREY EPSTEIN, 6 Defendant. 7 x Conference 8 July 31, 2019 11:05 a.m. 9 10 Before: 11 HON. RICHARD M. BERMAN, 12 District Judge 13 14 APPEARANCES 15 GEOFFREY S. BERMAN 16 United States Attorney for the Southern District of New York 17 BY: 18 Assistant United States Attorneys 19 20 MARTIN G. WEINBERG Attorney for Defendant 21 22 STEPTOE & JOHNSON, LLP Attorneys for Defendant 23 BY: MICHAEL C. MILLER 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014546 j7v2espC kjc THE COURT: So, today's conference was scheduled at the end of the July 18 court conference hearing on that date. I thought that we would devote at least the -- well, probably 4 most of today's proceeding to talking about the schedule in 5 this case, and I asked the lawyers to get together and see if 6 they could come up with a mutually agreeable schedule, which 7 would include trial date, motion practice, discovery, etc. 8 Does anybody want to let me know how you made out? 9 : Yes, your Honor. 10 We have conferred with defense counsel and talked 11 about a proposed schedule for this case. So we are prepared to 12 propose to the court today a schedule for discovery, for 13 discovery-related motions, for pretrial motions, and we are 14 also prepared to talk about setting a possible trial date. 15 THE COURT: Okay. What have you got in mind? 16 : So, with respect to discovery, we would 17 propose a discovery deadline of October 31 to complete 18 discovery, with one exception. There are materials from 19 devices seized from the defendant's residence in New York, and 20 the F.B.I. is beginning the process of reviewing that data. 21 In discussing that with defense counsel, we have begun 22 to discuss a process for a privilege-review protocol. It's 23 possible that process may take longer than October 31. But 24 aside from that universe of documents, we would propose setting 25 a schedule of October 31 as a deadline for discovery. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014547 .5 j7v2espC kjc For discovery-related motions, we would propose that the defense file any motions that they are aware of relating to discovery, to include motions relating to the nonprosecution 4 agreement, by September 13 -- 5 THE COURT: By when? 6 : September 13, your Honor. 7 -- that the government be permitted to respond by 8 October 4; with any reply due on October 11, as necessary. 9 Of course we understand that if the defense comes to 10 have additional motions related to discovery based on the 11 ongoing discovery process that we will confer and propose an 12 additional briefing schedule beyond that, as necessary. But 13 with respect to motions that the defense is already aware of, 14 including the NPA, that is the schedule that we would propose 15 at this time. 16 Regarding pretrial motions, your Honor, we would 17 propose that the defense file their motions by January 10, that 18 the government be permitted to respond by February 10, and that 19 any replies be due on or before February 24. 20 THE COURT: Got it. 21 : And finally, your Honor, we are prepared to 22 discuss a trial date in this case. The government is asking 23 the court to set a trial date in this matter. We would propose 24 that the court schedule this matter for trial in June of next 25 year, and we estimate that the trial would take approximately SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014548 j7v2espC kjc four to six weeks, and so that trial date would carry into July. And I understand that the defense has some comments about that proposal, but that's the government's proposal with 4 respect to a trial date. 5 THE COURT: Okay. Let me hear from the defense. 6 Do I understand it correctly that, with the exception 7 of the trial date, those dates are agreeable? 8 MR. WEINBERG: Those dates are agreeable, your Honor. 9 THE COURT: Counsel, whatever you wish to add, that 10 would be fine. 11 MR. WEINBERG: We would ask the court to set a 12 preliminary trial date immediately after Labor Day. I say 13 preliminary because we want time to assess Mr. Epstein's 14 THE COURT: This year? 15 MR. WEINBERG: Yes. 16 THE COURT: This Labor Day. Okay. 17 MR. WEINBERG: We want time to assess Mr. Epstein's 18 ability to . . 19 (Counsel confer) 20 MR. WEINBERG: I'm sorry. I am being told that your 21 Honor was inquiring as to the year. Let me -- 22 THE COURT: Yes. I thought you wanted a speedy trial, 23 and so -- 24 MR. WEINBERG: Not with a four- to six-week trial with 25 discovery coming in October, Judge. I apologize for being SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014549 5 j7v2espC kjc imprecise. Labor Day 2020 or immediately thereafter. And I make that recommendation -- we haven't received the discovery yet. Understandably, it is coming, and I'm not in any way 4 contesting that there has been a delay, but we haven't had an 5 opportunity to start reviewing what the government has 6 predicted to be over a million pages of discovery with 7 Mr. Epstein and to assess Mr. Epstein's ability to exercise his 8 constitutional right, while at MCC, in assisting counsel 9 prepare for a very difficult case that addresses events that it 10 is alleged occurred 14 to 17 years ago. 11 THE COURT: Okay. 12 MR. WEINBERG: So, we need time to receive a million 13 pages of discovery and to prepare to defend a four- to six-week 14 trial, when a lot of the immediate attention is going to be on 15 the very unique and complex constitutional issues connected to 16 the nonprosecution agreement, our contention that the 17 government's allegations are inextricably intertwined and 18 constitutionally barred by the NPA. There are double jeopardy 19 issues both connected to the conspiracy count, which looks to 20 be an overlap with one of the charges that was expressly within 21 the immunity provisions in the NPA. We are going to be 22 spending a lot of time, and that's why I agreed with the 23 government that we should make early discovery motions on the 24 NPA-related issues, on double-jeopardy-related issues, so that 25 we could not only facially brief the motion to dismiss, but SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014550 j7v2espC kjc have the discovery, the subfacial discovery, if you will, so that we could make a comprehensive briefing along the lines of the schedule for motions. 4 THE COURT: That's what I was going to suggest, if 5 there is a time period when you could put it all together, as 6 it were, and there is a lot of flexibility. So I will leave 7 these dates, you know, for now. 8 With respect to the trial date, I could accommodate 9 either June or September of 2020. The issue is not so much as, 10 from my point of view, when you are all ready, but what part of 11 the calendar I block out. So is it realistic to block out time 12 in June? 13 MR. WEINBERG: I think it is -- I don't want to have 14 the court block out a six-week time and then come to the court 15 in March and say we need a continuance and risk a September 16 date. 17 THE COURT: Got it. Okay. So a September date, you 18 are saying, sounds like it certainly is realistic. 19 MR. WEINBERG: Thirteen months sounds like the amount 20 of time that we would ordinarily need to prepare a case of this 21 magnitude and scope. 22 THE COURT: All right. That is fine for me. 23 Just while we are taking care of details, a speedy 24 trial issue or application? Why don't we extend it to 25 September of 2020? SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014551 j7v2espC kjc MR. WEINBERG: This case certainly meets all of the statutory criteria for complexity and we would agree to that extension, Judge. 4 : Your Honor, may I briefly be heard with 5 respect to the trial date? 6 THE COURT: Oh, sure. You know, it does sound like it 7 is kind of premature, but I'm happy to hear you. It is often 8 the defense that is ahead of the government, or not often, but 9 equally, but here it is the other way around. So if the 10 defense is not ready, it would be my practice to defer to the 11 defense, but I don't know that it is fixed in stone either way. 12 But, sure, I am happy to hear you. 13 : Your Honor, by way of background, we had 14 initially proposed to the defense a May trial date. We think 15 that there is a public interest in bringing this case to trial 16 as swiftly as manageable. We understand, given their concerns 17 in wanting to have more time, we proposed a date in June as a 18 compromise position. We understand if the defense has 19 indicated that they need additional time. We are sensitive to 20 those concerns. But we do have a concern about the notion of 21 setting a September trial date and that that trial would be 22 preliminary or as a placeholder. Thirteen months is a 23 considerable amount of time for a case of this nature to go to 24 trial; and, again, given the time period of the charged conduct 25 and the length of time that's passed, we do think that there is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014552 j7v2espC kjc a public interest in scheduling a fixed trial date in this case. Of course we understand if issues arise in the interim, we will address that as it occurs, but we do think it makes 4 sense at this juncture to set a firm trial date. We don't 5 think that any delay in this case is in the public interest. 6 THE COURT: Counsel. 7 MR. WEINBERG: We think that the delay in bringing 8 this charge, your Honor, the natural corollary of that is to 9 make it more difficult, not easier, for us to defend 10 Mr. Epstein. For instance, there are certain sealed files for 11 potential witnesses that we would have to go to other courts to 12 seek to unseal. There is an NPA to litigate. This case is not 13 your ordinary 1591 case. A case of four to six weeks is not 14 the ordinary amount of time the government takes to prosecute, 15 whether it is old or new cases. We need 13 months. I'm trying 16 to make a principled argument, Judge, that that would be a 17 schedule that we would try our best to meet, conditioned on our 18 ability to work with Mr. Epstein under the current conditions. 19 Thank you, sir. 20 THE COURT: Okay. 21 So, we are going to monitor the case from now until 22 then anyway, so I think everybody will be in a better position 23 to know what is realistic with respect to a trial date. I will 24 exclude time from today through, let's say, June 8, but that, 25 of course, is without prejudice to hearing from the defense and SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014553 9 j7v2espC kjc the government as to actually where things stand. Long before then we will know. So we will have a conference, or several, between now and then. Let's see where everybody is as the 4 months go by, and then we will know when we can effectively 5 hold the trial. 6 So I am going to find, under 18 United States Code 7 3161, that the request for adjournment, joined in by both 8 sides, is appropriate and warrants exclusion of the adjourned 9 time from Speedy Trial calculations. I further find that the 10 exclusion is designed to prevent any possible miscarriage of 11 justice, to facilitate these proceedings, including extensive 12 pretrial preparation, and to guarantee effective representation 13 of and preparation by counsel for both sides, and thus the need 14 for exclusion and the ends of justice outweigh the interests of 15 the public and the defendant in a speedy trial pursuant to 18 16 United States Code E. 3161(h)(7)(A) and (B). So that exclusion 17 goes to June 8, 2020 preliminarily. 18 Counsel, is it your thought that these motions would 19 be on submission or did you want to have oral argument with 20 respect to any aspect of them? 21 MR. WEINBERG: We would seek oral argument, your 22 Honor. 23 THE COURT: So let's set October 28, 2019 for oral 24 argument, and I am tentatively reserving some time on my 25 calendar, as I said before, on June 8, 2020, but I will have SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014554 IC j7v2espC kjc much better feel for where things are long before that and certainly I would say on October 28 we would have a much clearer picture of how things stand. 4 So there you have it. Did you have go ahead. 5 : Just to clarify, your Honor, what time would 6 the court like the parties to appear on October 28? 7 THE COURT: 10 a.m. 8 : Thank you, your Honor. 9 THE COURT: And the June 8 date is 9 a.m. Okay? 10 MR. WEINBERG: Would your Honor want to schedule an 11 argument on the substantive motions that will be fully briefed 12 before the court on February 24? 13 THE COURT: Yup. 14 So let's schedule that oral argument for March 12, 15 2020, at 10 a.m. 16 Great. So anything anybody else has to talk about? 17 MR. WEINBERG: Not from the defense, your Honor. 18 : Not from the government, your Honor. Thank 19 you. 20 THE COURT: Okay. 21 MR. WEINBERG: Thank you very much, sir. 22 THE COURT: Nice to see you all. 23 oOo 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00014555