EFTA00183935

savE frtofN tiuQSUAL EFTA00183935 THE PALM BEACH POST - MONDAY, NNE IS, 2009 The Palm Beach Post ALEX TAYLOR, Publisher TIM BURKE, Executive Editor RANDY SCHULTZ, Editor ofthe Editorial Page Unseal the Epstein deal A rich, middle-aged Palm Reacher Palm Beach sex offender who preyed on girls almost 40 years younger already has received too deserves no more breaks. many breaks from the system. He doesn't deserve another. In July 2008, at the age of 55 and of course, want it kept secret. Last after paying the equiva- week, a Palm Beach County judge lent of a small countryb set a hearing for June 25. gross domestic product Epstein attorney Jack Goldberger in legal fees, Jeffrey claims that the file should stay sealed Epstein escaped federal to protect the "orderly administration charges and pleaded of justice" and "protect a compelling guilty in state court to government interest." Oh, and third Epstein a pair of charges related parties might get hurt The compel- to his luring five girls ling interest is Epsteinb, and there — ages 14 to 17 -- to is no privacy issue since the victims his house. The girls undressed and themselves are making the request. massaged him in return for $200 to Palm. Beach police spent 11 $300. He's serving only 18 months months investigating Epstein, only in the. Palm Beach County Jail, and to see then-State Attorney Barry heb serving only nights. And now he Krischer kick the case to a grand wants just one more favor. jury Mr. Krischer backed off when When Epstein entered his state one of Epsteinb gold-plated attor- plea, the terms of his federal deal neys, Alan Dershowitz, announced were sealed from the public. That that some of the victims had posted violated normal procedures. Attor- MySpace comments about their alco- neys for some of the victims, who hol and marijuana use. ' have filed civil lawsuits, want that Epsteinb "best" defense has been plea deal unsealed, probably because that he didn't know the girls were the details would help their cases. underage. "How he verified that," But given the nature of this case, Mr. Goldberger said, "I don't know." thereb also a public interest. One con- Investigators found a high school dition of the federal plea, for example, transcript in Epstein's house. He was that he take the state deal. Thatb didn't know? The public should know why The Post also is seeking to have what Jeffrey Epstein did, and what the file unsealed. Epsteinb lawyers, the system did for him. EFTA00183936 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2008CF009381A DIVISION W STATE OF FLORIDA vs. JEFFREY EPSTEIN, Defendant. MOTION TO MAKE COURT RECORDS CONFIDENTIAL Comes now the Defendant, JEFFREY EPSTEIN, by and through his undersigned attorney's, pursuant to Florida Rule of Judicial Administration 2.420 and the Administrative Orders of this Court , specifically AO 2.303 and moves this Court to treat as confidential the following records. A. A document referred to as "Non-Prosecution Agreement" filed under seal in the court file on July 2, 2008. B. A document referred to as "The Addendum to the Non-Prosecution Agreement" filed under seal in the court file on August 25, 2008. 1. The above referenced documents were Ordered Sealed at a hearing held before the Honorable Judge Deborah Dale Pucillo on June 30, 2008. 2. A Motion to Vacate Order Sealing Records and Unseal Records was filed by Non-Party EW on or about May 15, 2009. 3. A Motion to Intervene and Petition for Access was filed by Non-party Palm Beach Post on June 1, 2009. 4. This Court granted Non-Party. and Palm Beach Post Motion to Intervene on June 10, 2009 but took no immediate action on E. W.'s Motion to Vacate Order Sealing Records and Unsealing Records or on Palm Beach Posts Petition For Access, pending a further hearing. EFTA00183937 5.. The documents should remain confidential for the following reasons: a. To prevent a serious imminent threat to the fair, impartial, and orderly administration of justice. b. To protect a compelling government interest. c. To avoid substantial injury to innocent third parties. d. To avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in these specific type of proceedings, sought to be closed. WHEREFORE, Defendant moves this Honorable Court to enter an Order keeping the above referenced records confidential, and maintaining them under seal. I HEREBY CERTIFY that this motion is made in good faith and supported by a sound and factual legal basis. CK A. GOLDBERGER, ESQ. WITNESS my hand and seal in the County and State last aforesaid this 11 day of June, 2009. CHARLENE A. GRIFFITH. AI% Commission* DO 8130359 N 1, Expires may 15, 2013 0:40401 Notary Public State of Fl Aft no, Nor orgrit0 My Commission Expires EFTA00183938 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Mail; /Facsimile; (3 Overnight Delivery to R. Alexander Acosta, United States Attorney's Office-Southern District, 500 S. Australian Ave., Suite 400, West Palm Beach, FL 33401, Judith Stevenson Areo, Esq., State Attorney's Office- West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, William J Berger, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394; Bradley J. Edwards, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394; Deanna K. Shullman, 400 North =Drive, Suite 1100, P.O.Box 2602 (33601) Tampa, FL 33602, Robert D. Critton, BURMAN, CRITTON, LUTTIER, & COLEMAN, 515 N. Flagler Dr. Suite 400, West Palm Beach, Florida 33401. this 11 day of June, 2009. BURMAN CRITTON, LUTTIER & COLEMAN ATTERBURY, GOLDBERGER & WEISS, P.A. OBERT D. CRITTON, ESQ. CK A. GOLDBERGER, ESQ Florida Bar No / lorida Bar No. EFTA00183939 JOSEPH R.ATTERBURY JACK A. GOLDBERGER JASON S.WEISS June 11, 2009 Board Certified Oiminallrial Attorney Member of New Jersey & Fonda Bars Honorable Jeffrey Colbath Palm Beach County Courhouse 205 North Dixie Highway West Palm Beach, Florida 33401 RE: State of Florida 1 Jeffrey Epstein Case No. 2008 CF009381A Dear Judge Colbath, Enclosed please find a courtesy copy of Jeffrey Epstein's Motion to Make Court Records ; Confidential filed with the Clerk of the Court on June 11, 2009. uly yours, Ja A. dberger, Esq. JAG/cg Enc. cc: Alexander Acosta U.S. Attorney State Attorney William Berger, Esq. Bradley Edwards, Esq. Deanna Shullman, Esq. Robert Critton, Esq. One Clearlake Centre. Suite 1400 250 Australian Avenue South West Palm Beach, FL 33401 p www.agwpa.com EFTA00183940 oytt. .;:ercA; 04.5.-IBSCfa513&2 AT I ERBURY GOLDBERGER WEISS, $0.442 C One Clearlake Centre, Suite MOO 06 / 11/2009 250 Australian Avenue South West Palm Beach, FL 33401 Filailtd From334( Alexander Acosta United States Attorne ::1::1:::: EFTA00183941 NE PALM BEACH POST THURSDAY, JUNE 11.2009 Judge delays ruling on request to unseal plea deal in sex case By SUSAN SPENCER -WENDEL women now suing Epstein one else gets treated like Palm Beach Post Staff Witter are asking Colbath to un- that," Edwards said. WEST PALM BEACH — A seal the deal that Epstein Epstein, 56, a reported circuit judge on Wednes- brokered with federal money manager of billion- day did not unseal the prosecutors. A lawyer for aire's, is currently serving deal that money manager The Palm Beach Post also an 18-month sentence in Jeffrey Epstein of Palm has joined in the request. the Palm Beach County Beach struck with fed- "Itb a secret agree- Stockade after pleading eral prosecutors to avoid ment. A secret, sweetheart guilty nearly a year ago charges, opting instead agreement," said former in state court to felony to give Epstein lawyers Circuit Judge Bill Berger, solicitation of prostitution a chance to who now represents some and procuring teenagers demonstrate of the women. for prostitution. why it should "Everybody was in The saga began years remain hid- on this deal except the ago when the Palm Beach den from victims and the public," Police Department began public view Berger said. "The public investigating whether Circuit should be outraged it has young wonien were be- Judge Jeff Epstein gone as far as it has." ing brought to Epstein Colbath ac- A second attorney mansion on El Brillo Way knowledged at a hearing representing the women, to massage him and have that Epstein's deal was not Brad Edwards, has seen sex with him in exchange sealed in state court in ac- the sealed document A for money. cordance with the rules. federal judge allowed him Epstein's attorneys, "1 don't see where any and his clients to view it, in federal filings, have of the procedures were but not to discuss its con- referred to sealed docu- ever followed," he said. tents. ments as a deferred pros- Colbath has given Edwards said the ecution agreement with Epstein defense attorney, women were "outraged" at federal prosecutors and Jack Goldberger, an op- what had been negotiated have called it "unprec- portunity to argue that the without their knowledge. edented" and "highly document was properly A reporter asked Edwards unusual." sealed and asked lawyers if he thought Epstein re- Goldberger said his cli- to submit briefs to him by ceived special treatment ent has not received any Friday. Colbath also set a by federal prosecutors. special treatment. full hearing for June 25. "Are you kidding? Itb sm. Attorneys for young transparent. Certainly no EFTA00183942 THE PALM BEACH POST • WEDNESDAY, JUNE 10, 2009 Women want sex plea deal unsealed Their attorneys will ask a judge to open Jeffrey Epsteffi's records. By SUSAN SPENCER-WENDEL Palm Beach Post Staff Writer WEST PALM BEACH - When wealthy money manager Jeffrey Epstein of Palm Beach pleaded guilty last year to pro- curing teens for prostitution, his case detoured around local and state rules regarding the sealing of court documents. At a plea conference on the state charges, a judge, a defense lawyer and a pros- ecutor huddled at the bench and decided that a deal 'Epstein Epstein had struck with federal prosecu• tors to avoid charges should be sealed, according to a transcript of the hearing. And so it was. But Florida rules of judicial adnlin- istration, as well as rules of the Palm Beach County court system, require public notification that a court document has been or will be sealed, meaning.kept from public view The rules also require a judge to find a significant reason to seal, See EPSTEIN, 4A ► See past coverage of Jeffrey Epstein's sex scandals. PalmBeachPost.eom/epsteln EFTA00183943 Public has right to know details I of deal; Post attorney will claim Po EPSTEIN from IA Flipp practice and representing one of the women. Lanna approached such as protecting a trade The Palm Beach Post also a sidebar conference. secret or a compelling gov- will ask Colbath to unseal Pucillo, who had left the ernment interest. the agreement. Post attor-. bench nine years earlier, Yet no notification ney Deanna Shullman will was filling in temporarily or reason occurred in argue that the public has a as a senior judge. Epstein% case, according right to know the specifics According toatranscript, to court records. of Epstein% deal. Goldberger told Pucilb that Epstein own attorneys, According to various Epstein had entered a con- in federal filings, have media accounts, Epstein fidential agreement with referred to his confiden- moved in circles that in- the US. attorneys office tial deferred prosecution cluded President Clinton, in which federal prosecu- agreement with the US. Donald Tnunp and Prince tors brokered not pursuing attorney% office, struck in Andrew. "International charges against him if he September 200Z as "un-. Moneyman of Mystery," de- pleaded guilty in state precedented" and "highly clared a 2002 Nero York mag- court Pucilb then said she unusual." And it was "a azine profile of Epstein. wanted a sealed copy of the significant inducement" Epstein, 56, is in the agreement filed in his case, for Epstein to-accept the Palm Beach County Stock- and Goldberger concurred state% deal, observed the ade, serving an 18-month nted it sealed. state judge who accepted sentence after pleading later signed off his plea, County Judge guilty nearly a year ago on Deborah Dale Pucillo. to felony solicitation of The • Florida Supreme Epstein now faces at prostitution and procuring Court has expressed "seri- least a dozen civil lawsuits teenagers for prostitution. ous concern" and launched in federal and state courts He is allowed out from 7 an all-out inquiry into seal- filed by young women who am. to 11 p.m., escorted ing procedures across the said they had sex with a deputy, said Palm Be state following media re- him and now are seeking County Sheriffs Office ports in 2006 of entire cases damages. spokeswoman 'Teri Barbera. being sealed and disappear- Attorneys for some of During a Palm Beach ing from court records. those women want his Police Department in- 'The public% constitu- agreement with federal vestigation, five victims tional right of access to court prosecutors unsealed and and 17 witnesses gave records must remain invio- will ask Circuit Judge Jef- statements. They told of late, and this court is fully frey Colbath to do so today. young women brought by committed to safeguarding "It is against public his assistants to Epstein% this right," justices wrote in policy for these documents mansion on El Brillo Way their final report to be have been sealed and for massages and sexual Epstein% office on hidden from public scrutiny. activity, and then being lliesday referred any member of the public, paid afterward. questions to Goldberger, has a right to have At Epstein% plea confer. who declined to comment. documents unsealed," ence last year, his attorney, Pucillo also has declined wrote former Circuit Judge Jack Goldberger, and to comment • Bill Berger, now in private then-Assistant State At Susan .spencer EFTA00183944 EFTA00183945 ME PALM BEACH POST • HAMMY JULY 2, 2009 METRO REPORT IN COURT WEST PALM BEACH —An appellate court on Wednesday granted financier Jeffrey Epstein's request to block the unsealing of his non-prosecution agreement with the U.S.Attorney's Office while the court consid- ers his appeal. A circuit judge had ordered the release ot the documents, but Epstein attorney argued that it would cause "ir- reparable harm." Attorneys for women now suing Epstein and for The Palm Beach Post sought the documents' release. The Fourth District Court of Appeal blocked the unsealing while both sides present legal arguments and the court considers them. Epstein pleaded guilty last year to solicita- tion of prostitution and procuring teenagers for prostitution. THE PALM BEACH POST FRIDAY, JULY-10,2009 EPSTEIN SEX PARTNER LOSES LAWSUIT AGAINST NEWSPAPER Pervy Palm Beach moneybags Jeffrey $100 million because, in 200Z the paper outed her as Epstein, who at the tail-end of his 18- a transgender person (boy to girl) and, she claimed, month sentence for solicitation of prostitu- made her look like "a promiscuous slut." The paper tion, is the talk of the legal world again. quoted her MySpace page as saying she fantasized One of the young girls he invited up for about being with multiple partners. A New York appel- strange sex when she was 16 lost her late court sided with the tabloid, saying that Cordero defamation lawsuit against The New York herself gave the public the reasonable impression of Epstein Post last week. Ava Cordero was asking for promiscuity. Ya think? Got a news tip? Call Jose at or e-mall EFTA00183946 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT DOCKETING STATEMENT AND NOTICE OF APPEARANCE OF COUNSEL (Revised as of May 1, 2001) The Court requires the following information in order to facilitate disposition of the case. APPELLANT/PETITIONER: If this case Involves an original writ, is an appeal of a non-final order or is a case other involving child custody, this docketing statement must be completed and returned within five days. In all from the date of the acknowledg ment of the notice cases, the appellant must file the docketing statement within 20 days of appeal. APPELLEE/RESPONDENT: Is apj required to file a docketing statement unless there are amendments, corrections file a or additions to the docketing statement filed by the appellant/petitioner. Appellee/respondent is only required to notice of appearance if counsel's name does not already appear on the certificate of service. Appellee's/r espondent's docketing statement, if necessary, is due within 5 days from service of the appellant's/petitioner's docketing statement. PLEASE PROVIDE THE FOLLOWING INFORMATION: DOCKETING STATEMENT OF: (CHECK ONE) APPELLANT/PETITIONER ✓ APPELLEE/RESPONDENT 1. STYLE OF CASE DCA CASE LOWER COURT NUMBER CASE NUMBER Jeffrey Epstein'. State of Florida 4D09-2554 2008 CF 009381A 2a. NOTICE OF APPEARANCE OF COUNSEL FOR APPELLANT (If party is not represented by counsel, party should so indicate and provide accurate mailing address and phone number). Name See attached. Bar Number Address Attorney For Phone Number Fax Number 2b. APPELLEE'S TRIAL COUNSEL AND/OR APPELLATE COUNSEL (IF KNOWN) Name See attached. Bar Number Address Attorney For Phone Number Fax Number 3. INTERESTED PERSONS: List names of all persons or entities having an interest in this matter. Please clarify whether these persons or entities are parties, lawyers or otherwise, and as to parties, designate whether appellant or appellee. See attached. EFTA00183947 4. JUDGES BELOW: List the name of all judges, deputy commissioners and hearing officers/examiners who were involved in this action below. Specify the judge who entered the order appealed. Honorable Jeffrey J. Colbath (entered order appealed) 5. JURISDICTION: State the basis for this court's jurisdiction, including the following: (1) the appellate rule providing jurisdiction claimed 9.100(c)(1) and 9.140(b)(1)(D)• (2) the date of filing in the lower tribunal of the order appealed June 25.2009 ; (3) if this is an appeal from a final order, the date of the return of verdict in a jury action N/A the service date of any Fla. R. Civ. P. 1.530 motion N/A and the date of entry of the order deciding such motion N/A 6. PENDING MATTERS IN LOWER TRIBUNAL: Are there any matters, including counts of claims or Counterclaims, still pending in the lower tribunal? If yes, please explain exactly what remains pending. Not in the criminal case. There are civil cases pending against Mr. Epstein. 7. CURRENT AND PRIOR PROCEEDINGS IN THIS COURT: List by style and case number of this court, all cases which are or have been pending before this court involving issues arising from the same lower tribunal case and the current status of same: None. Criminal appeals: List by style and case number of this court all co-defendants currently or previously on appeal to this court. None. Similar Issues: List by style and case number of this court, all cases which are or have been pending before this court which are related to this action or which involve an issue which will be similar or determinative to the issue in this case on appeal. Epstein, Case No. 4D09-2409. If you become aware of appeals filed subsequent to the submission of this docketing statement involving a co-defendant in a criminal case, the same controversy or parties, or substantial similar issues, please file an amended response to this question. 2 EFTA00183948 8. Court Transcript: Do you intend to order any portion of the transcript for the appeal? Yes No ✓ If yes, have all arrangements been made for its preparation? Yes No If yes, date ordered If no, why not? Already filed with court. Estimated date of completion : Estimated number of pages: Name and address of court reporter(s): sentence 9. CUSTODY STATUS IN CRIMINAL APPEALS: Is the appellant in custody and serving a imposed as a result of a conviction which is the subject of this appeal? ves If so, state the length of the sentence imposed. 18 months iail followed by 12 months community control 10. ISSUES: If this case involves the determination of the constitutionality of a statute, cite the statute involved. N/A Please state in short form the anticipated issues raised. For example, on criminal issues: denial of motion for judgment of acquittal, denial of motion to suppress evidence, error in sentence; on civil issues, damages; award of alimony, error in valuation of assets for equitable distribution, error in determining contract error in admission of hearsay at trial. Error in unsealing confidential federal non-prosecution agreement and addendum. 11. TYPE OF CASE: PLACE A CHECK BY THE MOST APPROPRIATE TYPE OF CASE: A. Civil 1. Domestic Relations - divorce, child custody, paternity or support 2. Child dependency 3. Adoption/Termination of Parental Rights 4. Professional Malpractice 5. Products Liability 6. Negligence 7. Contract or Indebtedness 8. Condominium - rules violations, developer suits 9. Foreclosure - mortgage, lien 10. Inmate Appeal - gain time, rule challenges, disciplinary action 11. Attomey's Fees 12. All others - specify 3 EFTA00183949 B. Criminal 1. Direct Appeal - judgment and sentence 2. Direct Appeal - sentence only 3. Direct Appeal - juvenile 4. Collateral Attack - (Rule 3.850 or habeas corpus) - judgment and sentence 5. Collateral Attack - (Rule 3.800, Rule 3.850 or habeas corpus) - sentence only 6. Collateral Attack - juvenile 7. Appeal by the State ✓ 8. All Others - specify unsealing of confidential federal non-prosecution agreement C. Administrative 1. Department of Professional Regulation 2. Unemployment Appeals Commission 3. Rule Challenge - specify agency 4. All others - specify Certificate of Service I certify that a copy hereof has been furnished by mail this 8'44... day mail/hand delivery/fax of July , 2009, to: See attached. ignat r A-4-4-12-44- (Print Name) 4 EFTA00183950 2a. NOTICE OF APPEARANCE OF COUNSEL FOR APPELLANT Florida Bar No. BARBARA J. COMPIANI Florida Bar No. KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beams_ 33401-5913 Phone: Fax: Email: Appellate counsel for petitioner ROBERT D. C Florida Bar No. BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 North Flagler Drive, Suite 400 West P 3401 Phon Fax: Counsel for petitioner JACK A. GOLDBERGER Florida Bar No. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West P u 3401 Phon Fax: Counsel for petitioner EFTA00183951 2b. APPELLEE'S TRIAL COUNSEL AND/OR APPELLATE COUNSEL (IF KNOWN) WILLIAM J. BERGER Florida Bar No. ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale FL 3 394 Phone: Fax: Counsel for non-party intervener,M. DEANNA K. SHAS1 Florida Bar No. THOMAS, LCSE NIRIn BRALOW, P.L. 400 NorthIM Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, F Phone: Fax: Counsel for non-party intervener, Palm Beach Newspapers d/b/a The Palm Beach Post SPENCER T. Kial Florida Bar No. LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens. FL 33410 Phone: Fax: Counsel for non-party intervener, Florida Bar No. STATE ATTORNEY'S OFFICE--WEST PALM BEACH 401 North Dixie Highway West Palm ch FL 33401 Phon • Fax: Counsel for respondent, State of Florida Florida Bar No. U.S. Attorney's Office--Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Fa Fax: EFTA00183952 3. INTERESTED PERSONS: of State Attorney's Office--West Palm Beach (counsel for respondent, State of Florida) • (non-party intervener) William J. Berger of Rothstein Rosenfeldt Adler (counsel for non-party intervener,...) Honorable Jeffrey J. Colbath (circuit court judge) Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A. (appellate counsel for petitioner) Robert D. Critton of Burman, Critton, Luttier & Coleman (counsel for petitioner) Jeffrey Epstein (petitioner) Jack A. Goldberger of Atterbury, Goldberger & Weiss, P.A. (counsel for petitioner) of Kreusler-Walsh, Compiani & Vargas, P.A. (appellate counsel for petitioner) Spencer T. Kuvin of Leopold-Kuvin, P.A. (counsel for non-party intervener,..) Honorable Kenneth A. Marra (judge, Southern District of Florida) Palm Beach Newspapers d/b/a The Palm Beach Post (non-party intervener) Deanna K. Shullman of Thomas, Locicero & Bralow, P.L. (counsel for non-party intervener, The Palm Beach Post) U.S. Attorney--Southern District EFTA00183953 State of Florida (respondent) i• (non-party intervener) EFTA00183954 CERTIFICATE OF SERVICE U.S. ATTORNEY'S OFFICE STATE ATTORNEY'S OFFICE SOUTHERN DISTRICT 401 North Dixie Highway 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 West Palm Beach, FL 33401 WILLIAM J. BERGER DEANNA K. SHULLMAN ROTHSTEIN ROSENFELDT ADLER THOMAS, LOCICERO & BRALOW, P.L. 401 East Las Olas Boulevard, Suite 1650 400 North Drive, Suite 1100 Fort Lauderdale FL 33394 P. O. Box 2602 (33601) Counsel for•. Tampa, FL 33602 Counsel for The Palm Beach Post SPENCER T. KUVIN ROBERT D. CRITTON LEOPOLD-KUVIN, P.A. BURMAN, CRITTON, LUTTIER & COLEMAN 2925 PGA Boulevard, Suite 200 515 North Flagler Drive, Suite 400 Palm Beach Gardens, FL 33410 West Palm Beach, FL 33401 Counsel for Counsel for petitioner JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Counsel for petitioner EFTA00183955 4 ASS 1"0 KREUSLER-WALSM, COMPIANY & VARGAS, P.A. PiTNCY COWLS SUITE 503, FLAGLER CENTER 02 1P $ 000.61° 501 SOUTH FLAGLER DRIVE 0004162054 JUL 08 2009 WEST PALM BEACH. FLORIDA 33401.5913 MAILED FROM ZIP cone 33401 111111,1 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL, 33401 .21340 bSE.G3S CO23 h1111111111111.111 Jill EFTA00183956 r, • Fourth District Court of Appeal 1525 Palm Beach Lakes Blvd. West Palm Beach, Florida 33401 ACKNOWLEDGMENT OF NEW CASE DATE: July 1, 2009 STYLE: JEFFREY EPSTEIN STATE OF FLORIDA 4DCA#: 4D09-2554 The Fourth District Court of Appeal has received the Petition reflecting a filing date of 7/1/09 The county of origin is Palm Beach. The lower tribunal case number provided is 20098CF009381A The filing fee is Paid In Full - $300. Case Type: Certiorari Criminal The Fourth District Court of Appeal's case number must be utilized on all pleadings and correspondence filed in this cause. Moreover, ALL PLEADINGS SIGNED BY AN ATTORNEY MUST INCLUDE THE ATTORNEY'S FLORIDA BAR NUMBER. Please review and comply with any handouts enclosed with this acknowledgment. RECEIPT JEFFREY EPSTEIN I. STATE OF FLORIDA 4DCA#: 4D09-2554 Receipt # R2009-1015476 Method of Payment: CK Check # 25986 PAYER:El Filing Fee: $300.00 Total: $300.00 EFTA00183957 cc: Barbara J. Com iani Jack A. Goldberger Robert D. Critton, Jr. State Attomey-P.B. U.S. Attomey'S Office Deanna K. Shullman Spencer T. Kuvin William J. Berger Hon. Jeffrey J. Colbath EFTA00183958 DISTRICT COURT OF APPEAL tU FOURTH Duna= 0171415532992 C..) re 1525 PAUA BEACH Wass Rom Cr irr Warr Peas BEACH, Roam 33401 14 $0.44° 0 4 .0 I 07/01(2009 D. 1409td FrOC1334 01 co r CK 4D09-2554 U.S. Attorney'S Office Southern District 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 SG i -62313 EFTA00183959 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA 33401 FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL July 1, 2009 CASE NO.: 4D09-2554 L.T. No. : 20098CF009381A JEFFREY EPSTEIN STATE OF FLORIDA Appellant / Petitioner(s), Appellee / Respondent(s). BY ORDER OF THE COURT: ORDERED that the motion to file under seal is granted. ORDERED FURTHER that this court grants the Motion to Use One Appendix to Support the Emergency Petition for Writ of Certiorari and Emergency Motion to Review Denial of Stay. ORDERED FURTHER that this court grants petitioners Emergency Motion to Review the Order June 26, 2009, that denies the motion for stay. The June 25, 2009. order granting the motion to unseal is stayed pending further order of this court. ORDERED FURTHER that within ten (10) days of this order respondent shall show cause why the petition should not be granted. Respondent shall address this court's jurisdiction to review the order as well as the merits of the petition. ORDERED FURTHER that petitioner may have ten (10) days thereafter to reply. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Sharon R. Bock, Clerk Jack A. Goldberger Robert D. Critton, Jr. U.S. Attorney's Office Deanna K. Shullman Spencer T. Kuvin William J. Berger Hon. Jeffrey J. Colbath dl Fourth District Court of Appeal EFTA00183960 DISTRICT COURT OF APPEAL Fouorm Dew 0171415532992 1525 Pa BEACH LAKES Eiwo. WEST Nut BEACH, Flamm 33401 $0.442 . I 07/0112009 US POSTAGE Mallet! ifrOln .3340 1 DL 4D09-2554 U.S. Attorney'S Office Southern District 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 6237It n a 1i U 1,.11,,,Ii.,i,ilil 11,11nish6161.1,11.,ill EFTA00183961 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D09-2554 JEFFREY EPSTEIN, Petitioner, vs. STATE OF FLORIDA,16LM BEc H NEWSPAPERS, INC., IE., a nd Respondents. Pending in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case Nos. 2006 CF 9454AMB, 2008 CF 9381AMB PALM BEACH NEWSPAPERS, INC. d/b/a THE PALM BEACH Paws RESPONSE TO EMERGENCY PETITION FOR WRIT OF CERTIORARI THOMAS, LoCICERO & BRALOW PL Deanna K. Shullman James B. Lake 101 N.E. 3rd Avenue, Suite 1500 Ft. Lauderdale, Florida 33301 EFTA00183962 TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION 1 JURISDICTION 2 NATURE OF THE RELIEF SOUGHT 2 STATEMENT OF THE CASE AND FACTS 3 SUMMARY OF THE ARGUMENT 7 ARGUMENT 8 I. STANDARD OF REVIEW. 8 II. THE TRIAL COURT CORRECTLY UNSEALED THE NPA. 8 A. The NPA was not Properly Sealed in the First Instance. 8 1. Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion, Notice, Hearing, or a Proper Order. 11 2. Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all 12 B. No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum 13 1. Petitioner Cannot Identify a Rule 2.420(cX9) Interest that Warrants Closure. 16 2. The Federal Court's Decisions in Case No. 08-80736 (S.D. Fla. 2008) Did Not Preclude the Lower Court's Orders Unsealing the NPA. 19 3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's Orders Unsealing the NPA 21 CONCLUSION 25 CERTIFICATE OF SERVICE 26 EFTA00183963 TABLE OF AUTHORITIES Federal Cases Craig I Harney, 331 U.S. 367 (1947) 8 Doe I Hammond, 502 F. Supp. 2d 94 (D.D.C. 2007) 24 In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299 (M.D. Fla. 1977) 23, 24 Lockhead Martin Corp. I Boeing Co., 393 F. Supp. 2d 1276 (M.D. Fla. 2005) 23 Oregonian Publishing Co. I United States District Court, 920 F.2d 1462 (9th Cir. 1990) 9 U.S. I Rosen, 471 F. Supp. 2d 651 (E.D. Va. 2007) 23 United States I Kooistra, 796 F.3d 1390 (11th Cir. 1986) 9 State Cases Anderson I E.T„ 862 So. 2d 839 (Fla. 4th DCA 2003) 8 Barron I Florida Freedom Newspapers. Inc., 631 So. 2d 113 (Fla. 1988) 10 Combs I State, 436 So. 2d 93 (Fla. 1983) 8 Doe I Museum of Science and History of Jacksonville. Inc., Case No. 92-32667, 1994 W 741009 (Fla. 7th Jud. Cir. June 8, 1994) 17 Fla. Sugar Cane League. Inc. I Fla. Dept. of Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept 20, 1991) 22 Hous. Auth. of the City of Daytona Beach . Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) 21 In re Amendments to Florida Rule of Judicial Administration 2.420 954 So. 2d 16 (Fla. 2007) Sarasota Herald Tribune. Div. of the New York Times Co. I. Holtzendorf, 507 So. 2d 667(Fla. 2d DCA 1987) 9 Sarasota-Herald Tribune I State, 924 So. 2d 8 (Fla. 2d DCA 2QQ6) 2 Sentinel Communications Co. I Watson, 615 So. 2d 768 (Fla. 5th DCA 1993) 9 Wallace I Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) 21 ii EFTA00183964 Other Authorities Fla. Const. Art. I, § 23 18 Fla. Const. Art. I, § 24 2 Fla. R. App. P. 9.100(d) 2 Fla. R. Jud. Admin. 2.420 18 iii EFTA00183965 INTRODUCTION This appeal concerns attempts to thwart public scrutiny of how government responded to the prostitution of children in Palm Beach County. In the order at issue below, the trial court correctly unsealed a non-prosecution agreement and its addendum. A predecessor judge found that the agreement significantly induced Petitioner to accept a plea agreement that allowed him to serve 18 months in jail for luring children to his Palm Beach mansion for "massages" or sexual activity. At the time that the non-prosecution agreement and its addendum (collectively "the NPA") were accepted for filing, no basis for closure was asserted or found. Thus, the NPA was not properly sealed, and the prior closure order was properly vacated. Moreover, no basis currently exists for closure, and the pending petition — like Petitioner's filings below — contain nothing more than unsubstantiated assertions that confidentiality is required. Thus, continued closure is not warranted. Certainly unsealing the documents was not such a clear departure from the essential requirements of law as to warrant certiorari relief. Consequently, the pending petition must be denied. In addition, this Court should exercise its inherent authority under Rule 9.410 of the Florida Rules of Appellate Procedure to sanction Petitioner for his frivolous and bad faith attempts to cloak the resolution of the criminal charges 1 EFTA00183966 • against him in secrecy by awarding to Respondent, Palm Beach Newspapers, Inc. d/b/a The Palm Beach Post ("the Post") its attorneys' fees and costs in responding to this petition. JURISDICTION The Post adopts Respondent 's statement concerning jurisdiction. Insofar as this Court finds jurisdiction, the Post requests that this Court expedite its consideration of this matter, so as to remedy the denial to date of the public's and press's constitutional and common law rights of access. Art. I, § 24, Fla. Const.; Fla. R. App. P. 9.100(d); Sarasota-Herald Tribune.. State, 924 So. 2d 8, 11 (Fla. 2d DCA 2006) (rule 9.100(d) permits "expedited" review of orders excluding the press). NATURE OF THE RELIEF SOUGHT The Post asks this Court to deny the pending petition and to let stand the circuit court's Orders dated June 25, 2009 and June 26, 2009, which unsealed the NPA, and directed the Clerk of Court in and for the Fifteenth Judicial Circuit of Florida to release these records to the public.' Petitioner has sought review of the June 26, 2009 Order by motion rather than by petition for writ of certiorari. Though the June 26 Order does address the matter of Petitioner's request for stay, the order also directs the Clerk of Courts to release the records, review of which should have been sought by certiorari. 2 EFTA00183967 STATEMENT OF THE CASE AND FACTS This proceeding concerns the public's constitutional and common law rights of access to records crucial to the disposition of criminal charges against Petitioner Jeffrey Epstein. Specifically, Petitioner seeks review of two orders unsealing a non-prosecution agreement and its addendum (collectively the "NPA"), which are records of the trial court below. State I Epstein, Case Nos. 06 CF9454AMB, 08 CF938 1 AMB. Petitioner was investigated by the State of Florida for felony solicitation of children for prostitution. (A-7 at p. 3, I. 15 — p. 4,1.4; A-8.) The victims allege Epstein brought and paid teenage girls to come to his home for sex and/or "massages." (A-11 at ¶ 6 and n. 1.) Epstein's minor victims are numerous (A-7 at p. 20,11. 13-18) and the case drew attention of the highest-ranking law enforcement officials in Palm Beach County. Frustrated during the course of the investigation, Police Chief Michael Reiter even penned a letter to State Attorney Barry Krischer, calling his office's handling of the investigation "highly unusual" and suggesting that he disqualify himself from the case if the state would not act (A-11 at ¶ 6; A- 18 at p. 36,11. 7-142.) A federal investigation of Epstein's conduct as it relates to soliciting children for prostitution ensued. 2 References to "A-" are to Petitioner's Appendix. 3 EFTA00183968 Then abruptly, in June 2008, Epstein pleaded guilty in the trial court below to felony solicitation of minors for prostitution, was designated a Sexual Offender pursuant to Florida law, and was sentenced to 18-months jail and community control. (A-8.) Before accepting the terms of his state plea, Epstein entered into a non-prosecution agreement with federal prosecutors. (A-7 at p. 38, 11. 9-18.) The non-prosecution agreement and its addendum were filed under seal in the lower court on July 2, 2008 and August 25, 2008, respectively.3 According to Epstein's lawyers (and presumably the NPA itself), taking the state plea was a condition of the NPA. (A-7 at p. 38,11. 13-18.) The NPA is invalidated if Epstein fails to fulfill the obligations of the state plea deal (A-7 at p. 38, 11. 22 - 25.) In accepting the state plea, the trial court viewed the NPA a "significant inducement in accepting" the plea and recognized that the NPA influenced the defendant to make the state plea. (A-7 at p. 39, 11. 19-21; p. 40,11. 10-13.) In considering the plea at the hearing, the court requested a sealed copy of the non-prosecution agreement and asked whether Petitioner had signed it. (A-7 at 3 The NPA and its addendum were filed under seal in this Court on July 1, 2009. 4 The Post and its lawyers have not seen the NPA, though it was reviewed , in camera, by the trial court (A-19). 4 EFTA00183969 nd interje cted that he ated it w as signed a yer indic the 6.) E pstein's law r e s e n ta tives from p. 40,11.4- t p . 40,11. 7-9.) R e p y." ( A - 7 a ut li ke to s eal the cop a t p . 3 9 ,1 1. 22-23) b "would -7 e n t a t th e hearing (A s ' O ff ic e w ere pre s th e s ta te court file. ey agreement in U.S. Attorn r o s e c u ti o n -p ti o n to f il ing the non e q u e sted a seale d o b je c o u r t r stated no e r a tion, the tria lc n s id h o u t a n y further c o O n J u ly 2, 2008, ,w it -10 .) Thereupon t. ( A - 7 a t p. 40,11.9 en n - p r o s e c u tion agreem a n Agreed Or der th e n o rt e n te r e d copy of e is s ue, the cou o n th rosecution r th e r p r o c eedings th e n o n - p y fu file without an h a ll o w e d Epstein to ic e n t in C o urt File, wh A - 9 .) B y its terms, cum l. ( Sealing Do r e e d O r d e r under sea Ag t w a s a tt a c hed to the t a n d d id not include tha en agreement n - p r o s e c u tion agreem no e r w a s lim ited to the s u r e and neve r u r e o r d pec t to c lo the clos d in gs with res kes n o f in , d u m . T h e order ma , o n A u g u st 25, 2008 its adden s later w a s f il e d six week m - 9 .) T he addendu e. expires. ( A w it h r e s p e ct to closur urt r th e r o r d e r of the Co o s ti tu tion, he ha s n y f u f o r p r without a s o li c iting a min or ty to — allege s te in p le a ded guil th is c a s e Since Ep in a t — li k e the charges suits th a t le a s t 1 2 civil law a n d /o r "massage s." e d in n fo r s e x been nam B e ach mansio his P a lm e d te e n a ge girls to n e o f th e Epstein's Epstein lu r it, o in g . I n a n other lawsu nd le a s t 1 1 c ases are pe (A-1)5 At (S.D. Fla. 0 8 - 8 0 0 6 9 o. ! o e s E p s tein, Case N a. 2008); Doe No. 3. - D H 8 ls o A - 1 1 a t 116 (citing No. 08-80119 (S.D. E p s te in , Case No. 5 See a se . 1 N o . 2 j Epstein, Ca Fla. 2008); Doe No. 4ote continued on next page) 2008); Do e .D. (Footn a s e N o . 0 8-80232 (S Epstein, C 5 EFTA00183970 accusers has alleged that federal prosecutors failed to consult with her regarding the disposition of possible charges against Epstein. (A-1; A-18 at p. 22,1. 20 — p. 23,1. 15.)6 Given the important public interest in this matter, on June 1, 2009, the Post moved to intervene below for the purpose of obtaining access to the NPA. The Court granted the Post's motion to intervene on June 10, 2009 (Supp.A.-1 at 1.)7 The trial court granted the Post's petition for access on June 25, 2009 (A-16, A-18) and on June 26, 2009 denied Epstein's motion for stay and directed the clerk to release the records at noon on Thursday, July 2, 2009. (A-17, A-19.) Epstein's emergency petition for writ of certiorari regarding the June 25, 2009 order and his emergency motion to review the June 26, 2009 order followed. 0 ( D. Fla. 2008); Doe No. 5 1. Epstein, Case No. 08-80381 (S.D. Fla. 2008); . 1. Epstein, Case No. 08-80811 S.D. Fla. 2008); Doe'. Epstein, Case No. 08-80893 (S.D. Fla. 2008); Doe No. 71. Epstein, Case No. 08-80993 (S.D. Fla. 2008); Doe No. 6'. Epstein, Case No. 08-80994 (S.D. Fla. 2008); Doe II Epstein, Case No. 09-80469 (S.D. Ha. 2009); Doe No. 101 Epstein, Case No. 09-80591 (S.D. Fla. 2009); Doe No. 102'. Epstein, Case No. 09-80656 (S.D. Fla. 2009); Doe No. 81. Epstein, Case No. 09-80802 (S.D. Fla. 2009)). 6 See also (A-11 at116) (citing In re: Jane Doe, Case No. 08-80736 (S.D. Fla. 2008)). 7 References to "Supp.A." correspond to the supplemental appendix filed by the Post simultaneous with this brief. 6 EFTA00183971 SUMMARY OF THE ARGUMENT Petitioner's initial filing of the NPA under seal was achieved without any regard for the public's constitutional, statutory and common law rights of access. Florida law flatly prohibits the standardless permanent closure that was achieved in this case. The public has a right to know what transpires in its courtrooms generally and in particular has an interest in understanding how the resolution of this highly unusual prosecution occurred. Moreover, no present basis for closure exists. Petitioner has not shown — and cannot show — that continued closure is proper. Instead, he has made conclusory assertions and relied on red herrings in attempting to keep the public from understanding how government responded to his solicitation of children to perform sex acts. The trial court, having reviewed the records in camera, saw through Petitioner's flimsy arguments. The trial court did not depart from the essential requirements of law in ordering the records unsealed. 7 EFTA00183972 ARGUMENT I. STANDARD OF REVIEW. The standard of review for a petition for writ of certiorari is whether the trial court departed from the essential requirements of law. See Combs . State, 436 So. 2d 93, 95 (Fla. 1983); Anderson E.T., 862 So. 2d 839, 840 (Fla. 4th DCA 2003). II. THE TRIAL COURT CORRECTLY UNSEALED THE NPA. The NPA was neither properly sealed in the first instance nor is properly sealed at present. The trial court did not depart from the essential requirements of law in unsealing the records. A. The NPA was not Properly Sealed in the First Instance. The NPA — a significant inducement to Petitioner's acceptance of the plea — was accepted for filing under seal without any deference to the public's right of access to court records. Such standardless closure cannot withstand scrutiny. Florida has traditionally served as a model for open government and courts. It is well-settled in Florida that "[a] trial is a public event [and] [w]hat transpires in the court room is public property." Miami Herald Publ'g Co._'. Lewis, 426 So. 2d I, 7 (Fla. 1982) (quoting Craig'. Harney, 331 U.S. 367, 376 (1947)). When considering a request to seal judicial records, this Court's "analysis must begin 8 EFTA00183973 with the proposition that all civil and criminal court proceedings are public events, records of court proceedings are public records and there is a strong presumption in favor of public access to such matters." Sentinel Communications Co.' Watson, 615 So. 2d 768, 770 (Fla. 5th DCA 1993). Indeed, the people of this State added Article I, Section 24 to the Declaration of Rights in the Florida Constitution to make clear that the right of access to the records of all three branches of government is of constitutional magnitude. All citizens possess the right to "inspect or copy" such records. Plea agreements and related documents typically are public record. See Oregonian Publishing Co. United States District Court, 920 F.2d 1462, 1465 (9th Cir. 1990) ("plea agreements have typically been open to the public"); United States • Kooistra, 796 F.3d 1390, 1390-91 (11th Cir. 1986) (documents relating to defendant's change of plea and sentencing could be sealed only upon finding of a compelling interest that justified denial of public access). Florida law likewise recognizes a strong public right of access to documents a court considers in connection with sentencing. See Sarasota Herald Tribune, Div. of the New York Times Co.,. Holtzendorf, 507 So. 2d 667, 668 (Fla. 2d DCA 1987) ("While a judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible proceeding or document, it is within the public domain unless otherwise 9 EFTA00183974 privileged."). Under Florida law, closure of judicial records is warranted only under very limited circumstances. In particular, the party seeking closure must demonstrate that: 1. restricting public access is necessary to prevent a serious and imminent threat to the administration of justice; 2. no alternatives, other than a change of venue, would protect the defendant's right to a fair trial; and 3. closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Miami Herald Publ'g Co.'. Lewis, 426 So. 2d 1, 6 (Fla. 1982). This test, as well as the standard announced in Barron'. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), was essentially codified in former Rule of Judicial Administration 2.051, now 2.420, which was applicable in both criminal and civil cases. Sarasota-Herald Tribune, 924 So. 2d at 11. In April 2007, the Florida Supreme Court adopted emergency amendments to Rule 2.420 in response to Florida media reports of hidden cases and secret dockets, a process that has come to be known as "super-sealing." In re Amendments to Florida Rule of Judicial Administration 2.420, 954 So. 2d 16 (Fla. 2007). In adopting the interim rule, the Florida Supreme Court confirmed its commitment to safeguarding the public's constitutional right of access to court 10 EFTA00183975 records, which the Court held "must remain inviolate." Id. at 17. By its terms, Rule 2.420 does not apply to criminal cases; however, later this year the Supreme Court will consider amendments to the rule that essentially seek to apply the standards applicable in civil cases to criminal ones. See In re Amendments to Florida Rule of Judicial Administration 2.420, Case No. 07-2050 (Fla. 2007). In the circuit below, however, the new Rule 2.420 procedures have been in effect since September 29, 2008. (Supp.A.-2.) In addition, the sealing of the NPA violated principles of Florida law established long before the amendments to Rule 2.420. Consequently, the unsealing of these documents was proper. 1. Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion, Notice, Hearing, or a Proper Order. The non-prosecution agreement was sealed pursuant to an agreed order dated July 2, 2008 (A-9.) At the time, Fifteenth Judicial Circuit Administrative Order 2.032 applied to requests for closure of court records in the lower court. (Supp.A.-3.) The order requires a motion, notice, and a hearing, none of which occurred in this case. (Id. at ¶¶ 1 — 3.) The order further provides that closure is proper only upon showing that the factors set forth in Lewis have been met (Id. at 4) and that "[t]tle reasons supporting sealing the file must be stated with specificity in the order sealing the court record" (IA at ¶ 5), neither of which occurred in this 11 EFTA00183976 case. Contrary to Petitioner's assertion (Petition at 13) neither this rule, nor the common law of Florida, nor the Florida constitution contemplates sua sponte closure of court records upon simple request of the Court or any party. Nor was the closure, in fact, sua sponte, as Epstein himself requested closure (A-7 at p. 40, II. 7-9.) and admittedly filed the NPA in the court file under seal pursuant to an agreed order (A-18 at p. 11, II. 22-23). The agreed order (A-9) contains none of the findings required by Lewis or paragraph 5 of the Administrative Order. The closure order is invalid and was properly vacated. 2. Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all. With respect to the sealing of the addendum to the non-prosecution agreement, no procedures were put in place at all. The original non-prosecution agreement was attached to the July 2, 2008 agreed order, which allowed to be filed under seal the "attached document" only. (A-9.) It appears from the record that the addendum — which was not attached to the July 2, 2008 order but was filed six weeks later — was simply filed and accepted under seal without any order allowing for closure. Closure of the addendum was thus improper on that basis as well. The trial court properly unsealed these documents. 12 EFTA00183977 B. No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum. After the Post intervened, at a June 10, 2009 hearing on the issue of closure, the trial court asked Epstein's counsel about the Post's motion (A-11) specifically. Epstein's counsel replied: If the Post's position is the public has a right to acc — access this then there is a procedure in place and ultimately the Court has to conduct a hearing and do a balancing test where you look at whether there is some compelling government interest and that's going to require an evidentiary hearing. So I have no great objection to filing the Request for Closure and then having a hearing in front of the Court. (Supp.A.-1 at p. 3,1. 22 — p. 4,1. 5.) Importantly, Petitioner's counsel did not assert that he had complied with these requirements, but that he would. The Court reset the hearing for June 25, 2009. Petitioner filed a Motion to Make Court Records Confidential (A-13) on June 11, 2009. In it, Epstein cited four reasons the NPA should remain under seal: 1. to prevent a serious and imminent threat to the administration ofjustices; 2. to protect a compelling government interest; 3. to avoid substantial injury to innocent 8 This assertion apparently has been abandoned by Petitioner, because his petition asserts that he has asserted three bases for confidentiality, and does not include this basis. Accordingly, it will not be addressed, except to make note of the fact that Epstein has not at any point in this proceeding identified a threat to the administration of justice, much less a serious and imminent threat. 13 EFTA00183978 third parties; and 4. to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in these specific type of proceedings sought to be closed. (A-13 at ¶ 5.) The motion failed to explain how these interests were implicated, failed to address alternatives to closure, and failed to explain how closure would protect the interests. (A-13.) The lower court heard argument on June 25, 2009. The United States Attorneys' Office was provided notice of the hearing, but chose not to appear. (A- 18 at p. 7, 11. 10-14.) In fact, the U.S. Attorney's Office has taken no position on this matter throughout the lower court proceedings and specifically informed counsel fore. that it had no position (A-18 at p. 7,11. 10-14.) At that hearing, the Court found that the proper procedures to initially seal the records were not followed and then heard argument from Epstein's counsel on his June 11, 2009 motion (A-13). Epstein's counsel consented to that procedure. (A-18 at p. 9,11. 16 -18.) The Judge held that neither the State, nor the U.S. Government, nor Epstein had shown why the NPA ought to remain confidential and ordered the records unsealed.9 (A-16.) It is important to note that the State Attorney's Office appeared at the hearing for the limited purpose of objecting to the release of minor victim's names, which turned out to be a non-issue because the Court, having reviewed the documents in camera, determined that no victim's names were included in the documents (A-19 at p. 21,11. 14-19.) The federal government, as mentioned above, took no position (Footnote continued on next page) 14 EFTA00183979 The trial court did not depart from the essential requirements of law in unsealing the NPA. Administrative Order of the Fifteenth Judicial Circuit 2.303 applies to Petitioner's June 11, 2009 request to seal the records in this case. (Supp.A.-2.) That administrative order — consistent with Lewis and its progeny — applies Rule 2.420's standards to requests for closure of records in criminal proceedings in the Fifteenth Judicial Circuit. Any order authorizing closure must contain findings that one of the interests set forth in Rule of Judicial Administration 2.420(c)(9)(A) is met and that closure is no broader than necessary to protect that interest. (Supp.A.-2 at ¶ 4.); see also Lewis, 426 So. 2d at 3. Motions seeking closure must include a "signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis." (Supp.A.-2 at11 1.) Epstein's initial oral request for closure failed to comply with the requirements of then-applicable law, and he has never presented a sound factual or legal basis for present closure. Consequently, unsealing the documents was fully consistent with the essential requirements of law. and did not appear at any of the hearings on this matter. Nor has either agency appealed the lower court's decision. 15 EFTA00183980 I. Petitioner Cannot Identify a Rule 2.420(c)(9) Interest that Warrants Closure. Though Epstein's belated written motion identified four interests set forth in Rule 2.420(c)(9) that purportedly warrant closure, he failed to explain — either in his motion or at the hearing — how any of them applied. Instead, Petitioner asserted closure was proper because these broad interests would be served by closure, principles of comity require closure, and because the records contain information protected from disclosure by Federal Rule of Criminal Procedure 6. Even though Petitioner now attempts to craft his arguments around the interests set forth in Rule 2.420(c)(9), the trial court cannot be said to have departed from the essential requirements of the law in holding that Epstein's burden had not been met. Epstein's petition asserts that closure is necessary to protect a compelling government interest because, he claims, the U.S. Attorneys' Office — who has been notified of these proceedings and has taken no position whatsoever — has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. See Petition at 15. Assuming such a provision exists (the Post has not seen the document), Petitioner is in no position to assert a compelling interest on the government's behalf, given its decision to take no position on the matter. If such an interest exists, the U.S. government is the party to assert it, and 16 EFTA00183981 it has specifically failed to do so. The trial court did not depart from the essential requirements of law in holding that Petitioner failed to demonstrate a compelling interest in closure. Epstein next asserts that closure is warranted to protect the interest of "innocent third parties" and identifies those third parties as Mr. Epstein's co- conspirators. (Petition at 15). Again, Mr. Epstein lacks standing to assert the interests of third parties. Dol. Museum of Science and History of Jacksonville, Inc., Case No. 92-32567, 1994 WL 741009 (Fla. 7th Jud. Cir. June 8, 1994) (plaintiff lacks standing to assert privacy interest of third party, minor victims of sexual assault by defendant's former employee, who had been convicted) (copy attached at Supp.A.-4). In addition, even if the third parties Mr. Epstein identifies — his purported co-conspirators — were before the Court, they would have no privacy interest in matters pertaining to their criminal conduct. Post-Newsweek Stations, Florida, Inc.,. Doe, 612 So. 2d 549 (Fla. 1992) (Does, whose names were implicated in criminal prostitution scheme, had no right to privacy by virtue of their participation in a crime and thus their names could not be redacted from records provided to the public). Thus, the trial judge did not depart from the essential requirements of law in finding insufficient third-party interests to justify closure. 17 EFTA00183982 The third interest Epstein seeks to invoke is his own right to privacy. See Petition at 15. While Epstein actually does have standing to assert his own right to privacy, Florida law is clear that closure is only proper to protect a "substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type ofproceeding sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi) (emphasis added). Epstein argues disclosure of a plea agreement is not generally inherent in a state court plea hearing See Petition at 16. That argument is absurd. Of course Epstein's plea agreement is generally inherent in his criminal prosecution. It is the very reason that prosecution ended, and as the lower court recognized in accepting the plea, it was a "significant inducement" to Petitioner to take the state's deal. (A-7 at p. 39, II. 19- 21.; p. 40,11. 10-13.) Moreover, Florida's constitutional right to privacy is expressly subordinate to the rights of Floridians to access the records of their government. To wit, Article I, § 23, which sets forth the right to privacy, further provides: "[t]his section shall not be construed to limit the public's right of access to public records and meetings as provided by law." Fla. Const. Art. I, § 23. As the Florida Supreme Court has recognized, the privacy amendment has not been construed to protect names and addresses contained in public records. Post Newsweek, 612 So. 18 EFTA00183983 2d at 552. The trial court, having reviewed the NPA in camera, certainly had an opportunity to assess whether a privacy interest not inherent in his criminal prosecution for felony solicitation of children for prostitution is implicated by the NPA. It cannot in good faith be argued that the trial court departed from the essential requirements of law in determining that no such privacy interest was implicated. 2. The Federal Court's Decisions in Case No. 08-80736 (S.D. Fla. 2008) Did Not Preclude the Lower Court's Orders Unsealing the NPA.1° Nor did the trial court's rejection of Petitioner's comity argument depart from the essential requirements of law. In the Southern District of Florida, one of the minor victims of Epstein filed a Petition for Enforcement of Crime Victim's Rights Acts (A-1)." The victim also asked the federal court to allow her to share the NPA with third parties (A-3). Judge Marra denied the motion, finding — as the U.S. Government had argued (A-4) — that the NPA was not a record of thefederal court. (A-6) ("First, as respondent points out, the Agreement was not filed in this 10 The Post adopts and incorporates M.'s arguments and analysis on this issue in addition to the arguments it sets forth herein. " The Post notes that A-3 through A-5 were not part of the record below. If the Court is inclined to consider these federal court pleadings, then in fairness it must consider those related pleadings which are attached hereto as Supp.A.-5 through Supp.A.-7 of the Post's Supplemental Appendix. 19 EFTA00183984 case, under seal or otherwise."). The federal court also declined to provide any relief from restrictions on the parties' use and dissemination of the discovery document without prejudice. (A-6 at p.2.) Petitioner argues that the Post should be required to seek relief in Judge Marra's court. He mischaracterizes the nature of the proceedings there. There is no document to unseal in Judge Marra's court. The NPA is not a record of that court, and thus any effort by the Post to obtain access to the NPA there would be futile, and any order requiring it be unsealed by the lower court herein does not conflict with any decision of the federal court. (A-16 at p.3.) In fact, when Judge Marra has been asked to seal records of his court that quote the NPA, he has refused to do so, and has required such records to be filed in the public court file (Supp.A.-5 through Supp.A.-7)'2 Thus, though the NPA is not a record of the federal court, the federal court has rejected attempts to file portions of it under seal. As a result, portions of the NPA appear in the public court file in 12 Page 4 of Supp.A.-5 and paragraph 5 of Supp.A.-6, both publicly on file in the federal court, quote from the NPA. In addition, Epstein's own lawyers quoted extensively from the NPA in seeking to stay one of the civil suits against him. (A- 11 at ¶ 6; A-18, p. 35,1. 18 - p. 36,arporating by reference Supp.A.-5 through Supp.A-6 and Supp.A.-7 I. Epstein, Case No. 08-cv-80811 (S.D. Fla. 2008) at Dkt. 33 pp. 2-5)).) 20 EFTA00183985 the federal civil litigation against Epstein. (Supp.A-5 at p. 4; Supp.A.-6 at ¶ 5; Supp.A.-7 at pp. 2-5.) The proverbial cat is already out of the bag. Notwithstanding, the NPA is a record of this lower court. The lower court did not enter an order conflicting with Judge Marra's rulings (A-16 at p. 3 — expressly noting lack of conflict with Judge Marra's orders) and did not depart from the essential requirements of law in unsealing the NPA. 3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's Orders Unsealing the NPA.13 Finally, unsealing the NPA did not conflict with federal law. Records available under state law are sealed by federal law only when federal law absolutely conflicts with state law and requires confidentiality of the records. The Supremacy Clause of the United States Constitution, Art. VI, U.S. Const., comes into play only when federal law clearly requires the records to be closed, and the state is clearly subject to its provisions. E.g., Wallace I. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997) (exemptions to federal Freedom of Information Act do not apply to state agencies); Hous. Auth. of the City of Daytona Beach'. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) (Federal Privacy Act does not exempt from disclosure records of housing authority which are open for inspection 13 The Post adopts and incorporates 's arguments and analysis on this issue in addition to the arguments it sets forth herein. 21 EFTA00183986 under Florida Public Records Act); Fla. Sugar Cane League, Inc. I Fla. Dept. of Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept. 20, 1991), per curiam affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992 (documents received by state agency in course of settlement negotiations to resolve federal lawsuit and confidential settlement agreement with U.S. Department of Justice open to inspection because federal law did not clearly require confidentiality) (Supp.A.-8.) Federal law imposes no such preemption of the Florida constitution and common law in this case. In particular, Federal Rule of Criminal Procedure 6(e) does not restrict access to the NPA. Federal Rule 6(e) restrains grand jurors, court reporters, government attorneys, interpreters and the like from disclosing matters occurring before the grand jury. Petitioner — apparently the former target of the grand jury — is none of these persons. His actions in filing the NPA under seal do not implicate Rule 6(e) no matter what information the NPA contains. The lower court's actions in unsealing the NPA likewise do not implicate Rule 6, because the lower court also is not restrained by Rule 6(e). Moreover, the information contained in the NPA does not constitute "matters occurring before the grand jury" within the meaning of Rule 6. The secrecy rule is limited to such matters for the purpose of "preventing targets of an 22 EFTA00183987 investigation from fleeing or tampering with witnesses or grand jurors, encouraging witnesses to appear voluntarily and speak fully and frankly, avoiding damage to the reputation of subjects or targets of the investigation who are not indicted, and encouraging grand jurors to investigate suspected crimes without inhibition and engage in unrestricted deliberations." Lockhead Martin Corp... Boeing Co., 393 F. Supp. 2d 1276, 1279 (M.D. Ha. 2005). The rule aims to "prevent disclosure of the way in which information was presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury's suspicion focuses, and specific details of what took place before the grand jury." In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1302-03 (M.D. Fla. 1977). In other words, Rule 6 is implicated if disclosure would reveal secret inner workings of the grand jury. U.S. . Rosen, 471 F. Supp. 2d 651, 654 (E.D. Va. 2007). Disclosure of details of a government investigation that is independent of a parallel grand jury proceeding does not violate Rule 6. Id. Statements by a prosecutor's office about its own investigation, therefore, are not covered by the secrecy rule. Id. at 655. Likewise, the mere mention of other targets of an investigation does not implicate the grand jury secrecy rule. E.Q., In re Interested Party, 530 F. Supp. 2d 136,140-42 (D.D.C. 2008) (government not prohibited by 23 EFTA00183988 Rule 6 from disclosing plea agreement and other materials); Doe f . Hammond, 502 F. Supp. 2d 94, 99-101(D.D.C. 2007) (same). Moreover, "when the fact or document is sought for itself, independently, rather than because it was stated before or displayed to the grand jury, there is no bar of secrecy." In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1304. Here, the Post seeks to review the NPA for its own intrinsic value, and not for the purpose of discerning what transpired before the grand jury now more than a year ago. It is clearly well within the public's right and interest to review the NPA, given the circumstances surrounding the investigation and prosecution of Petitioner as well as the civil claims by women who say Epstein sought to make them his child prostitutes. These facts clearly constitute a proper basis for unsealing these improperly sealed documents. Finally, and even assuming for a moment that the NPA contains grand jury information — which the Post doubts — when the grand jury's work has concluded, and the accused apprehended, the veil of secrecy no longer is necessary and safely may be lifted. In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1303. Ilere, Petitioner has been convicted, and nothing in the record suggests the grand jury's work is ongoing. Consequently, no basis exists for finding that the trial court departed from the essential requirements of law. 24 EFTA00183989 CONCLUSION The trial court was correct in unsealing the non-prosecution agreement and its addendum. These materials were not properly sealed in the first instance. Moreover, Epstein has not and cannot provide any basis for closure at this juncture. The trial court did not depart from the essential requirements of law in unsealing the NPA. Its order should be affirmed, and the Post should be awarded its fees and costs and such other further relief as this Court deems proper. Respectfully submitted, THOMAS oCICERO & BRALO , PL D nna K. Shullman lorida Bar No.: James B. Lake Florida Bar No.: 101 N.E. Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 Telephone: Facsimile: Attorneys for The Palm Beach Post 25 EFTA00183990 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Burns, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401; Robert D. Critton, Esq., Burman, Critton, Luther & Coleman, 515 N. Flagler Drive, Suite 400, West Palm Beach, FL 33401; Esq., 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5913; Spencer T. Kuvin, Esq., Leopold-Kuvin, P.A., 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410; and Bradley J. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 10th day of July, 2009. Att ey 26 EFTA00183991 CERTIFICATE OF TYPE. SIZE AND STYLE Counsel for Petitioners certifies that this Petition is typed in 14 point (proportionately spaced) Times New Roman. , 27 EFTA00183992 - Not an Official Document Page 1 of II ReporLSeJection Criteria Case ID: 502008CF009381AXXXMB Docket Start Date: Docket Ending Date: Case Description Case ID: 502008CF009381AXXXMB Case Caption: EPSTEIN, JEFFREY E Division: W - COLBATH Filing Date: Thursday , June 26th, 2008 Court: CF -FELONY Location: MB - MAIN BRANCH Jury: N-Non Jury Type: CF -FELONY Status: CLSD - CLOSED CASE Related Cases No related cases were found. Case Event Schedule No case events were found. Case Parties Seq Expn Assoc Type ID Name Date JUDGE COLBATH, JUDGE Aliases: none JEFFREY DEFENDANT Aliases: none 3 30-JUN- ATTORNEY GOLDBERGER , ESQ, Aliases: none 2008 JACK A Docket Entries http://courtcon.co.palm-beach.fl.us/pIs/jiwp/ck_public_qrydoct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183993 - Not an Official Document Page 2 of I I Docket Docket Type Book and Page No. Attached Ti:- . 11 Number 0000C - CASE INITIATED TIMELINESS RPT Filing Date: 26-JUN-2008 Filing Party: Disposition Amount: Docket Text: none. 1 INFO - INFORMATION SHEET Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: ARISES FROM 2006CF009454AXX 1A AREC - ARREST RECORD Filing Date: J 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. i 1B TEXT - SEE DOCUMENT DESCRIPTION Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: ROUGH ARREST - NO PROBABLE CAUSE FILED 1C WOAR - WAIVER OF ARRAIGNMENT Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: FILED BY JACK GOLDBERG EVSCH - HEARING EVENT SCHEDULED Filing Date: 27-JUN-2008 Filing Party: !Disposition Amount: http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183994 - Not an Official Document Page 3 of I I (Docket Text: 'none. I 2 JDN - JUDICIAL NOTES Filing Date: 27-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SET CASE FOR 6/30/08 @ 8:30 AM FOR STATUS CHECK LEVHLD - EVENT HELD Filing Date: 30-JUN-2008 Filing Party: J EPSTEIN, JEFFREY E Disposition Amount: CR-DAMES. PLEAD & ADJ GUILTY AS CHARGED. STIP/FOUND: SEXUAL OFFENDER. PBCJ 6 MOS W/CD FOR 1 DAY, TO RUN Docket Text: CONSECUTIVE W/06-9454AXX. PBCJ SENTENCE FOLLOWED BY 12 MOS PROB. DEFT MUST REGISTER AS A SEXUAL OFFENDER W/IN 48 HRS OF RELEASE. DNA SWAB. MER 2A GUIL - JUDGMENT OF GUILTY [Filing Date: 30-JUN-2008 [Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2B IFNGR - FINGERPRINTS Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2C ISORD-SENTENCE ORDER Filing Date: 30-JUN-2008 Filing Party: J EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2D SORC - SENTENCE ORDER - CONTINUED Filing Date: f30-JUN-2008 Filing Party: IEPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183995 - Not an Official Document Page 4 all Docket Text: lInone. 2E RITE - WAIVER OF RIGHTS Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: j none. 2F I PLS - PLEA SHEET Ifiling Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: J none. 2G Filing Date: Filing Party: d J GLSS - GUIDELINE SCORESHEET 30-JUN-2008 EPSTEIN, JEFFREY E Disposition Amount: !Docket Text: none. 2H OAFC - ORDER ASSESSING FEES/COST Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: (JUDGE PUCILLO FOR MCSORLEY) IN THE AMOUNT OF $473.00 Docket Text: AS CONDS OF PROB. MER 3 AREC - ARREST RECORD Filing Date: 01-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: 1 Docket Text: RECOMMIT RCMIT - RECOMMITMENT Filing Date: 01-JUL-2008 Filing Party: Disposition Amount: Docket Text: none. CLSD - CLOSED CASE http://courtcon.co.palm-beackfLus/p1s/jiwp/ck_public_qry_doct.cp_dktrpt docket report?b... 8/4/2009 EFTA00183996 - Not an Official Document Page 5 of I I Filing Date: 08-JUL-2008 Filing Party: 'Disposition Amount: Docket Text: ilnone RCPT - RECEIPT FOR PAYMENT Filing Date: 14-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Iii Payment of -$473.00 was made on receipt CFMB30200. From Docket Text: Bond ID: 00073142 4 ORD - ORDER Filing Date: 21-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (JUDGE MCSORLEY) OF PROBATION..NUNC PRO TUNC 6/30/08 5 PROC - CRT REPORTER TRANSCRIPT OF Filing Date: 22-JUL-2008 Filing Party: EPSTEIN, JEFFREY E IDisposition Amount: Docket Text: PLEA CONFERENCE, TAKEN 6/30108 6 MOT - MOTION Filing Date: I -DEC-2008 Filing Party: _ EPSTEIN, JEFFREY E Disposition Amount: TO CLARIFY SENTENCE TO CORRECT SCRIVENER'S ERROR Docket Text: FILED BY JACK GOLDBERGER Filing Date: 04-MAY-2009 Filing Party: I EPSTEIN, JEFFREY E Disposition Amount: (JUDGE COLBATH) THAT THE ORDER OF COMMUNITY Docket Text: CONTROL IS CORRECTED TO DELETE SPECIAL CONDITION #26 AND #27. 1-8- -- I MOT - MOTION I http://courteon.co.palm-beachnus/p1s/jiwplek_public qry_doct.ep_dktrpt_docket_report5... 8/4/2009 EFTA00183997 - Not an Official Document Page 6 of I I !Filing Date: 112-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: (NONPARTY E VVS) TO VACATE ORDER SEALING RECORDS Docket Text: AND UNSEAL RECORDS. ORSH - ORDER SETTING HEARING Filing Date: [15-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: SET FOR 5/29/09 RE:MOTION TO VACATE ORDER TO SEAL AND Docket Text: UNSEAL RECORD Filing Date: I EVSCH - HEARING EVENT SCHEDULED 19-MAY-2009 Filing Party: Disposition Amount: Docket Text: none. 10 j NOH - NOTICE OF HEARING Filing Date: 26-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SET FOR 5/29/09 10:30 12 I PONG - PLEA OF NOT GUILTY Filing Date: 29-MAY-2009 _ Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. EVSCH - HEARING EVENT SCHEDULED Filing Date: 01-JUN-2009 Filing Party: Disposition Amount: NON PARTY 'S MOTION TO VACATE ORDER SEALING Docket Text: RECORDS A NSEAL RECORDS EVCAN EVENT http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dIctrpt_docket report?b... 8/4/2009 EFTA00183998 - Not an Official Document Page 7 of 11 J CANCELLED/SETTLED Filing Date: 01-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 11 RNOH - RE-NOTICE OF HEARING Filing Date: 01-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: SETTING CASE FOR OTHER HEARING ON 6/10/2009 AT 10:30 AM FILED BY BRADLEY EDWARDS, ESQ. RE: NON PARTY R 'S Docket Text: MOTION TO VACATE ORDER SEALING RECORDS AND UN L RECORDS, HEARING SEET FOR 5/29/2009 IS CANCELLED 13 MOT - MOTION Filing Date: 03-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: TO VACATE ORDER SEALING RECORD AND UNSEAL RECORDS Docket Text: FILED BY BRADLEY EDWARDS, ESQ. 14 I MOT - MOTION Filing Date: J 03-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: PALM BEACH POST'S MOTION TO INTERVENE AND PETITION Docket Text: FOR ACCESS FILED BY DEANNA SHULLMAN, ESQ. EVRST EVENT RESET Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: CR-BELTRAN. MOTION TO INTERVENE-GRANTED. NO ACTION Docket Text: ON MOTION TO UNSEAL. RESET FOR MOTION HRG ON 6/25/09. BLE 15 ORD - ORDER Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/pls/jiwp/ck_public_qry_doctcp_dlctrpt_docket_report?b... 8/4/2009 EFTA00183999 - Not an Official Document Page 8 of I I 'Docket Text: II(COLBATH) 16 CEF - COURT EVENT FORM Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Lissposition Amount: 'Docket Text: none. 17 ORD - ORDER Filing Date: 10-JUN-2009 Filing Party EPSTEIN, JEFFREY E 'Disposition Amount: iDocket Text: (COLBATH) EVSCH - HEARING EVENT SCHEDULED Filing Date: 11-JUN-2009 Filing Party: Disposition Amount: Docket Text: none. 19 MOT - MOTION Filing Date: 11-JUN-2009 Filing Party: EPSTEIN, JEFFREY E 'Disposition Amount: TO MAKE COURT RECORDS CONFIDENTIAL. FILED BY J. Docket Text: GOLDBERGER, ESQ 18 MOT - MOTION Filing Date: 11'5-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: TO INTERVENE AND SUPPORTING MEMORANDUM OF LAW. Docket Text: FILED BY S. KUBIN, ESQ EVSCH HEARING EVENT SCHEDULED Filing Date: 25-JUN-2009 Filing Party: Disposition Amount: Docket Text: ITO STAY DISCLOSURE http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry doct.cp_d1ctrpt_docket_report?b... 8/4/2009 EFTA00184000 - Not an Official Document Page 9 of I I EVHLD EVENT HELD Filing Date: 25-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: CR-WIGGINS (COLBATH) DEFT PRES W/J.GOLDBERGER, Docket Text: GRANTED, CASE RESET FOR MOTION TO STAY DISCLOSURE _EVSCH HEARING EVENT SCHEDULED Disposition Amount: Docket Text: Filing Date: Filing Party: Disposition Amount: Docket Text: none. 21 I MOT - MOTION Filing Date: 25-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: TO STAY DISCLOSURE OPF THE NON- PROSECUTION Docket Text: AGREEMENT AND ADDENDUM PENDING REVIEW. FILE BY R. CRITON, PA EVHLD - EVENT HELD Filing Date: 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: CR-WIGGINS. MOTION TO STAY, DENIED. WRITTEN ORDER TO FOLLOW. DOCUMENTS IN QUESTION ARE DELAYED UNTIL Docket Text: NOON ON THURSDAY 02-JUL-2009. MOTION TO COMPEL THE DEFT TO POST BOND - DENIED. 25 -"MOT - MOTION Filing Date: 26-JUN-2009 1Filing Party: EPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/pIs/jiwp/ck_public qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00184001 - Not an Official Document Page 10 of I I Docket Text: "FOR ATTY'S FEES AND COSTS. FILED BY D. SHULLMAN, PA 31 CEF - COURT EVENT FORM Filing Date: 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 32 ORD - ORDER Filing Date: f 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: (JUDGE COLBATH) THAT THE MOTIONS TO SEAL THE COURT RECORDS ARE DENIED. THE MOTIONS TO INTERVENE ARE Docket Text: GRANTED. THE MOTION TO UNSEAL THE DOCUMENTS IS GRANTED. 23 RESP - RESPONSE TO: Filing Date: 29-JUN-2009 'Filing Party: EPSTEIN, JEFFREY E Disposition Amount: MOTION TO STAY AND SUPPORTING MEMORANDUM OF LAW. Docket Text: FILED BY S. KUVIN, ESQ 24 ODMO - ORDER DENYING MOTION Filing Date: 29-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (COLBATH) TO STAY DISCLOSURE AGREEMENT 26 PROC - CRT REPORTER TRANSCRIPT OF Filing Date: 01-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: PROCEEDINGS BEFORE THE COURT, 27 1 PROC - CRT REPORTER TRANSCRIPT OF Filing Date: 01-JUL-2009 Filing Party: 'EPSTEIN, JEFFREY E I http://courtcon.co.palm-beach.fi.us/p1s/jiwp/ck_public_qry_doct.cp_dIctrpt_docket_report?b... 8/4/2009 EFTA00184002 - Not an Official Document Page I I of 1 1 [Disposition Amount: Docket Text: PROCEEDINGS BEFORE THE COURT 22 ORD - ORDER Filing Date: 02-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: THAT THE MOTION TO FILE UNDER SEAL IS GRANTED. ORDERED FURTHER THAT THIS COURT GRANTS THE MOTION TO USE ONE APPENDIX TO SUPPORT THE EMERGENCY PETITION FOR WRIT OF CERTIORARI AND EMERGENCEY MOTION TO REVIEW DENIAL OF STAY. ORDERED FURTHER THAT THIS COURT GRANTS PETITIONERS EMERGENCEY MOTION TO REVIEW THE ORDER JUNE 26, 2009, THAT DENIES THE MOTION FOR STAY. THE JUNE 25, 2009 ORDER GRANTING Docket Text: THE MOTION TO UNSEAL IS STAYED PENDING FURTHER ORDER OF THE COURT. ORDERED FURTHER THAT WITHIN TEN (10) DAYS OF THIS ORDER RESPONDENT SHALL SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED. RESPONDENT SHALL ADDRESS THIS COURTS JURISDICTION TO REVIEW THE ORDER AS WELL AS THE MERITS OF THE PETITION. ORDERED FURTHER THAT PETITIONER MAY HAVE TEN (10) DAYS THEREAFTER TO REPLY. 28 MOT - MOTION Filing Date: 06-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: NONPARTY M.'S MOTION FOR ATTORNEYS FEES AND COSTS FILED BY W. BERGER 29 RESP - RESPONSE TO: Filing Date: 06-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: (NTERVENER'S) MOTION TO STAY AND SUPPORTING Docket Text: MEMORANDUM OF LAW. FILED BY S. KUVIN, ESQ 30 EXLT - EXHIBIT LIST Filing Date: 08-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. htm://courtcon.co.palm-beach.fl.us/pls/jiwp/ckpublic_qry_doct.cp_dkupt_clocket_report?b... 8/4/2009 EFTA00184003 07/20/2009 15:22 FAX USA° WPB 07-20-'09 14:21 5 & LOCICERO T-113 P002/00P-137 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D09-2554 JEFFREY EPSTEIN, Petitioner, vs. STATE OF FLORIDA, LALM BE NEWSPAPERS, INC., ,and I., Respondents. Pending in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case Nos. 2006 CF 9454AMB, 2008 CF 9381AMB PALM BEACH NEWSPAPERS, INC. d/b/a THE PALM BEACH POSTS MOTION FOR APPELLATE ATTORNEYS' FEES AND COSTS THOMAS, LoCICERO 8t BRALOW PL Deanna K. Shullman James B. Lake 101 N.E. 3rd Avenue, Suite 1500 Ft. Lauderdale, Florida 33301 EFTA00184004 USAO WP goo4 07/20/2009 15:22 FAX T-113 P003/007 F-937 27-20-'09 14:22 FROM-THOMAS & LOCICERO RESPONDENT PALM BEACH POST'S MOTION FOR APPELLATE ATTORNEYS' FEES AND COSTS Pursuant to Florida Rules of Appellate Procedure 9.400 and 9.410 and Administrative Order Number 2.303 of the Fifteenth Judicial Circuit of Florida, Respondent Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post (the "Pose') moves this Court for an award of attorneys' fees and costs in connection with this review proceeding. In support thereof, the Post states: 1. The Post is a daily newspaper that has covered this matter and related proceedings. In an effort to inform its readers concerning these matters, the Post relies upon (among other things) law enforcement records and judicial records. 2. On June 10, 2009, the trial court granted the Post's Motion to Intervene in this action for the purpose of seeking access to court records. Specifically, the Post sought access to a non-prosecution agreement that was docketed on July 2, 2008, and an addendum docketed on August 25, 2008. 3. On June 25, 2009, the trial court heard oral argument on the Post's (and other non-parties') motions. The Court found that the documents had not properly been sealed in the first instance and further denied Petitioner Jeffrey Epstein's Motion to Make Court Records Confidential dated June 11, 2009. 2 EFTA00184005 07/20/2009 15:23 FAX USAO WP kboos MI PR S & LOCICEE0 T-113 P004/007 F-93/ 07-20-'09 14:22 EIO 4. The Post is entitled to its fees and costs in this matter pursuant to Administrative Order Number 2.303 of the Fifteenth Judicial Circuit of Florida.' Specifically, that order allows sanctions to be imposed against the moving party "if a motion to seal is not made in good faith and is not supported by a sound legal and factual basis." Admin. Or. 15th Jud. Cir. Fla. 2.303. 5. The Post also is entitled to fees and costs in this matter pursuant to Florida Rule of Judicial Administration 9.410, which gives appellate courts discretion to impose sanctions if an appeal "presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed." E.g.. Visolv I Sec. Pac. Cred. Cow., 768 So. 2d 482, 490-91 (Fla. 3d DCA 2000) (citing Fla. R. App. P. 9.410). Frivolous appeals include those in which a case is found: a. to be completely without merit in law and not supported by a reasonable argument for an extension, modification or reversal of existing law; b. to be contradicted by overwhelming evidence; c. as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or d. as asserting material factual statements that are false. Id. at 491. A copy of Administrative Order 2.303 is attached at Tab 2 to the Post's Supplemental Appendix, which was filed with its response brief. 3 EFTA00184006 07/20/2009 15:23 FAX USAO SIP N nocie T-113 P005/W0I F-9:17 01-20-'09 14:22 FROM-THOMAS & LOCICERO 6. In this case, Mr. Epstein's certiorari petition like his initial filing of these documents under seal and his June 11, 2009 Motion to Make Court Records Confidential — was neither made in good faith nor supported by a sound legal and factual basis. The certiorari petition asserted three interests that ostensibly would assertion. be protected by closure but cited no recoid evidence in support of that Indeed, both in his motion below and at the hearing on the motion, Epstein made no genuine effort to demonstrate by evidence how and why any material interests would be served by closure. Instead, Epstein's arguments addressed extraneous, inapplicable issues that did not support closure and demonstrated his lack of good faith in bringing his motion. Moreover, Epstein's assertion that the trial court's orders contradicted and were preempted by federal court rulings was simply false. Epstein likewise failed to substantiate his arguments in this proceeding, instead again relying on red herrings and unsubstantiated blanket assertions to support his baseless claim that closure is or was proper in this case. 7. Rather, it appears Epstein opposed unsealing of these records simply for the purpose of shielding from public view documents material to the resolution of criminal charges against him for soliciting children for prostitution. In other words, the petition to this Court was merely a ploy intended to delay the public access to judicial records that that the Florida Constitution and common law guarantee. 4 EFTA00184007 07/20/2009 15;23 FAX gm= USA0 NP T-113 P006/007 F-937 07-20-'09 14:22 FROM-THOMAS & LOCICERO 8. In sum, Epstein's arguments for restricting access to his non- prosecution agreement and its addendum are without merit, Epstein's petition to this Court was likewise without support in fact or law, and the Post is entitled to an award of its fees and costs in defending its rights of access. WHEREFORE, the Post respectfully requests that this Court award to it its fees and costs and grant such other relief as the Court deems proper. Respectfully submitted, THOMAS, LOCICERO & BRALOW PL De a K. Shull F rida Bar No.: James B. Lake Florida Bar No.: 101 N.E. Third Avenue, Suite 1500 Fort Lauder Telephone: Facsimile: deanna.shullman@uolawfirm.com Attorneys for The Palm Beach Post 5 EFTA00184008 07/20/2009 15:23 FAX USAO WP goof( 07-20-'09 14:22 tilIRMS & LOCICERO T-113 P007/007 F-937 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been famished U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; and via facsimile and U.S. Mail to: R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Burns, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401; Robert D. Critton, Esq., Burman, Critton, Luther & Coleman, 515 N. Flagler Drive, Suite 400, West Palm Beach, FL 33401; Esq., 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5913; Spencer T. Kuvin, Esq., Leopold-Kuvin, P.A., 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410; and Bradley 3. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 20th day of July, 2009. 6 EFTA00184009 ____Q7/20/2009 15:22 FAX USA° WPB CONFRM (41001 United States Attorney's Office Southern District of Florida 500 S. Australian Ave., Suite 400 West Patin Beach, FL 33401-6235 TO: ORGANIZATION: FAX #: SUBJECT:S i FROM: x) • NUMBER OF PAGES, INCLUDING THIS PAGE: COMMENTS: Original document: To follow via regular mail . To follow via Federal Express _vio follow via hand delivery tz Nothing to follow, FAX := original EFTA00184010 USA° WP I6 002 07/20/2000 15:22 FAX 07 -2a -'09 14:21 ,WIRRS & LOCICERO Th ai P1301/Idla r THOMAS LOCICERO BR ALOW 400 N. a 1100eTam DriveeSuite FL 33602 (Phone) (Fax) To Free: facsimile transmittal To: Marilyn, Judicial Assistant to Judge FAX Colbath It Alexander Acosta, Esq., USAO Barbara Burns, Esq., ASAO Jack Alan Goldberger, Esq. Bradley J. Edwards, Esq. William J. Berger, Esq. Robert D. Critton, Esq. Spencer T. Kuvin, Esq. Esq. From: Deanna K. Shullman, Esq. Date: Re: State., J. Epstein Peps: 7 Urgent 0 For review Please comment U Please reply U Please recycle Please see attached . CONFIDENTIALITY STATESfEhtf This eltetroaie message transmission contains information from the law firm of Thomas, LoCiccro PL we is confidential or he await privileged. The informerion is intended to be for the use of the individual or entity earned above. If you are not the intended recipient, that any disclosure, espying, disuibtai contents of this information is prohibited. If you Iowa received this electronic transmission le error, please notify 1.15 by tckphonc immediately. Thank you for your cooperation IRS Circular 230 Dirclosurc, To the extent this conespondence contain: federal tax "Nice, such advice, WAS nee intended to be used, and cannot or be vied by any taxpayer, for the purpose of 10 avoiding penalties under the Internal Revenue Code or (i) promoting, matketing, mcarnmendlagm mother paro,r any uansactlon or mew addressed herein. If you would like of to prepare written tax advl ee designed to provide penalty 1,10=4ica. please eontba us and we will be happy to discuss the meter with you a more derail confidential EFTA00184011 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, CASE NO. 4D09-2554 PALM BEACH COUNTY Petitioner, L.T. CASE NO. 2008 CF 009381 A 1. STATE OF FLORIDA, Respondent. AGREED MOTION TO FILE ONE REPLY SUPPORTING PETITION FOR WRIT OF CERTIORARI AND FOR THE TIME TO RUN FROM SERVICE OF THE LAST-FILED RESPONSE Petitioner, JEFFREY EPSTEIN, requests this Court's permission to file one reply supporting his petition for certiorari to the three separate responses filed by respondents and for the time to run from service of the last-filed response, for the following reasons: 1. Mr. Epstein filed an Emergency Petition for Certiorari to review an order compelling disclosure of a confidential federal non-prosecution agreement and addendum. 1 EFTA00184012 2. On July 1, 2009, this Court ordered respondent to show cause within 10 days why the petition should not be granted. This Court allowed Mr. Epstein 10 days to reply. 3. Three groups of respondents filed responses: (1) ■.; (2) M.; and (3) Palm Beach Newspapers, Inc. d/b/a Palm Beach Post ("the Post"). Each respondent is represented by different counsel. The responses were served by mail and on different days. 4. Due to the overlap of arguments in the three responses, it would benefit the parties and this Court if Mr. Epstein filed one reply to the three responses. Accordingly, Mr. Epstein requests permission to file one reply to the three responses. Mr. Epstein requests this Court to order that the reply is due 10 days from service of the last-filed response. Opposing counsel has contacted counsel for respondents (William J. Berger for ■.; Diana L. Martin for M.; and Deanna K. Shullman for the Post), who have all advised they have no objection to this motion. 2 EFTA00184013 I HEREBY CERTIFY that a copy of the foregoing has been sent byAmail this J4k.L, day of July, 2009, to: U.S. Attorney's Office-Southern District State Attorney's Office-West Palm Beach 500 South Australian Avenue, Suite 400 401 North Dixie Highway West Palm Beach, FL 33401 West Palm Beach, FL 33401 WILLIAM J. BERGER DEANNA K. SHULLMAN ROTHSTEIN ROSENFELDT ADLER 400 North Drive, Suite 1100 401 East Las Olas Boulevard, Suite 1650 P. O. Box 2602 (33601) Fort Lauderdale. FL 33301 Tampa, FL 33602 Counsel for Counsel for The Palm Beach Post SPENCER T. KUVIN HONORABLE JEFFREY COLBATH DIANA L. MARTIN 15th Judicial Circuit LEOPOLD-KUVIN, P.A. Palm Beach County Courthouse 2925 PGA Boulevard, Suite 200 205 North Dixie Highway Palm Beach Gardens, FL 33410 Room 11F Counsel for M. West Palm Beach, FL 33401 ROBERT D. CRITTON of BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER of ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 3 EFTA00184014 and . :tBARA. I WIANI of I KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: - NE KUSLER-WALSH orida Bar No. 4 EFTA00184015 EFTA00184016 posPo„ s KREUSLER-WALSH, 41/4 ige Fa: COMPIANI & VARGAS, P.A. ►ITNry DOWELS SUITE 603, FLAGLER CENTER 501 SOUTH FLAGLER DRIVE 02 IP $ 000.44° 0004162054 JUL 14 2009 WEST PALM BEACH, FLORIDA 33401-5913 MAILED FROM ZIP CODE 33401 - liliui U.S. Attorney's outhern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 II 11 I I ill lid • IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, et. al, Respondents. L MOTION TO FILE PORTION OF RESPONSE UNDER SEA Respondent, , moves to file under seal a portion of her response for writ of (dealing with this Court's lack of jurisdiction) to the petition certiorari, on the following grounds: lope, In a portion of her response, attached hereto in the sealed enve on . discusses page-by-page the sealed document, the Non-Prosecuti Agreement. Public disclosure of this portion ofla's response would violate this Court's order staying disclosure of the NPA. For this reason, . moves to file the attached under seal. Copies of petitioner and the sealed portion have been served only on the attorneys for the U.S. Attorney. EFTA00184017 The undersigned counsel spoke with , attorney for on to file under petitioner, and represents that she does not oppose this moti seal. I HEREBY CERTIFY that a correct copy of the foregoing has been served by mail this I day of July, 2009, on the parties listed below. ROTHSTEIN ROSENFELDT ADLER Attorneys for.. 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale Florida 33301 Telephone Telecop By: W. ram J. Berger Florida Bar No. SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. Shullman 400 North Drive, Suite 1100 P.O. Box 2602 Tampa, Fl 33602 2 EFTA00184018 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burma; Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 3 EFTA00184019 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, 15, THE PALM BEACH POST, B.B, Respondents. S RESPONSE TO PETITION FOR CERTIORARI' Respondent, would show this Court as follows: I. Introduction: In an unprecedented request that should shock the conscience of this Court, a convicted child sex offender seeks to conceal from the public the details of his deal with the U.S. Attorney (filed in the lower court) that led him to plead guilty to state charges of procuring a minor to engage in prostitution (a 2nd degree felony) and felony solicitation of prostitution (a 3rd degree felony). His request would make a sham of the public's state has also filed herewith under seal a request to dismiss the petition for lack of jurisdiction. That response is filed under seal because it discusses page-by-page the sealed document EFTA00184020 constitutional right to open government. The lower court properly denied this attempt. This Court, it is respectfully submitted, should deny the petition for certiorari and vacate the order staying disclosure of the sealed documents. a is one of three respondents to the petition for writ of certiorari. The other two, The Palm Beach Post and III, are filing their own responses. The respondents have tried not to repeat the arguments of each other. limits her response here to arguments in the petition based on certain federal court rulings. incorporates by reference the other responses. The proceedings that have led to the petition for writ of certiorari before this Court began with 's May 12, 2009 motion below to vacate the Agreed Order Sealing Document entered by the trial court on July 2, 2008 at the plea and sentencing hearing in the state court criminal proceedings against petitioner. The Agreed Order authorized the filing under seal of the Non-Prosecution Agreement ("NPA") between petitioner and the United States. also moved to unseal an Addendum to the NPA that was sealed on August 23, 2008 without any hearing or court order whatsoever. 2 EFTA00184021 The Palm Beach Post and ■ were granted leave to intervene and file their own motions similar to The lower court, after two hearings, granted the motions and ordered the NPA and Addendum to be unsealed. Petitioner seeks review of that order and the order denying his motion to stay pending appellate review. For the reasons stated below and in the other responses, it is submitted his requests should be denied. 2. Judge Marra expressly authorized the lower court to resolve the issue of whether the state court records should be unsealed. Petitioner places great emphasis on rulings entered by United States District Judge Kenneth Marra, asserting that the order under review here "violated" those rulings. In fact, at a June 12, 2009 hearing2 attended by petitioner's counsel, Judge Marra expressly authorized the lower court, the Honorable Judge Jeffrey Colbath, to resolve the issue of whether the state court records should be unsealed. Responding to a request that he look at the NPA in camera, Judge Marra stated: THE COURT: Maybe Judge Colvat [sic] will resolve this issue for me. 2 The hearing was in the federal civil lawsuits against petitioner. 3 EFTA00184022 ve MR. JOSEFSBERG: Even if he doesn't, Your Honor, I belie we are allowed to show it to you. at THE COURT: I'll tell you what: I'll wait for Judge Colv I'll [sic] to rule, and then if he rules that it should remain sealed, then ra. consider whether or not I want to have it submitted to me in came Iff.-13, page 42, lines 8-15(emphasis added).) r review All of petitioner's assertions that Judge Colbath's order unde only "lip here "violated" Judge Main's orders, that the lower court gave doctrine of service" to Judge Marra, that the supremacy clause and the above quotes to federal grand jury secrecy are violated, are all shown by the by the lower be false assertions. Judge Marra looked forward to a resolution t records be court of what is purely a state law issue: should these state cour unsealed? and in fact 3. The federal court orders do not support the petition undermine it. written Even if we were to ignore Judge Marra's quotes above, his orders do not support the petition and in fact undermine it. pel The first federal order petitioner relies on is an "Order To Com second is an Production And Protective Order" dated August 21, 2008. The A-2 and A-6 in "Order" dated February 12, 2009. (Copies, respectively, are petitioner's Appendix.4) .).1) 3 Reference to II ' s Appendix is by "(1.11- 4 EFTA00184023 of These orders were entered in a proceeding brought by two s under the petitioner's victims, Jane Does 1 and 2,5 against the United State ioner was not federal Crime Victim's Rights Act, 18 U.S.C. sec. 3771. Petit from the a party to the proceeding. (A-1.) That proceeding is separate ld also be federal damages actions brought by petitioner's victims. It shou petitioner. noted that there has never been a federal court prosecution of There was no federal indictment or information filed. relied on In the proceeding where Judge Marra entered the two orders tly from the by petitioner, the Jane Does sought to obtain production direc not asking files of the U.S. Attorney of a copy of the NPA. They were Judge Marra to "unseal" a state court record. g by Thus, the context of Judge Marra's two orders was a proceedin al judge to two private citizens solely against the United States to get a feder from the order the federal prosecutor to produce a document directly The factors federal prosecutor's files, not to unseal state court records. cutor to turn going into this extraordinary request—to order the federal prose not at all over documents directly from the files of the prosecutor--are whether a relevant to the purely state law issues before this Court on Reference to petitioner's Appendix is by: "(A-__)." papers giving rise 5 Undersigned's firm represents both Jane Does, filed the to the orders and attended the hearings referenced therein. 5 EFTA00184024 document was improperly sealed by a state court and should be unsealed by that court. The issues before this Court must be resolved by interpreting and applying the state constitution, state open government policies, state rules of judicial administration and the administrative orders of the state circuit court below. They have nothing whatsoever to do with the federal government. In the August 21, 2008 order, Judge Marra granted the Jane Does' ore tenus motion seeking production of the NPA directly from the U.S. Attorney, but with restrictions. He ordered the U.S. Attorney to produce a copy of the NPA to Jane Does' attorneys under a nondisclosure restriction. Notably, the order makes no reference whatsoever to the state court order sealing the NPA in the state court record (even though the state court order (A-9) had already been entered on July 2, 2008) or to the fact that the NPA was already sealed in the state court file (at the plea colloquy on June 30, 2008). That is because the dispute before Judge Marra solely involved two crime victims seeking a document directly from the files of the U.S. Attorney, not from the state court file, and had nothing to do with unsealing state court records. The second order entered on February 12, 2009 was on the Jane Does' written motion to remove any restrictions on disclosure so their attorneys 6 EFTA00184025 xt was two crime could discuss the NPA with third parties. Again, the conte the files of the victims trying to publicly disclose a document directly from Jane Does had U.S. Attorney. Judge Marra denied the motion because the ment they got not shown that they should be able to publicly disclose a docu has nothing to do directly from the U.S. Attorney's files. This issue, again, ds. with whether the lower court should unseal the state court recor state trial But in so ruling, Judge Marra indirectly acknowledged the a stated: "If a court's jurisdiction to unseal its own records. Judge Marr alleged specific tangible need arises in a civil case petitioners or other ht in that case, victims are pursuing against Epstein, relief should be soug ement." (A-6, with notice to the United States, the other party to the Agre page 2.) d by the Judge Marra's orders were entered after the NPA was seale whether the NPA lower court; they can have nothing whatsoever to do with was properly sealed. lower Neither federal order, by their express terms, precludes the a did not enjoin and court from unsealing its own court records. Judge Marr aling its own does not have jurisdiction to enjoin the lower court from unse e Marra noted, records. Younger'. Harris, 401 U.S. 37 (1971). As Judg ], under seal or "the [NPA] was not filed in this case [the federal proceeding 7 EFTA00184026 of the lower otherwise." (A-6, page 1.) The copy of the NPA in the file ing Judge Marra court is a state court record, not a federal court record. Play off on the lower court is a red herring. CONCLUSION the stay For the foregoing reasons, the petition should be denied and on disclosure vacated. served by I HEREBY CERTIFY that a copy of the foregoing has been mail on the parties listed below this ay of July, 2009. s New I HEREBY CERTIFY that the foregoing is submitted in Time nt of Rule 9.100 . Roman 14-point font and complies with the font requireme ROTHSTEIN ROSENFELDT ADLER Attorneys for 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301 Telephon- ( 4) 522-3456 Telecop 7-8663 By: W' lam J. Berger Florida Bar No. 8 EFTA00184027 SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. Shullman 400 North Drive, Suite 1100 P.O. Box 2602 Tampa, Fl 33602 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 EFTA00184028 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 10 EFTA00184029 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, et. al, Respondents. APPENDIX TO I RESPONSE TO PETITION FOR WRIT OF CERTIORAR ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Pala Beach, FL 33401 ad IM IIIMMEI and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 Pal ch, FL 33401-5913 Counsel for Petitioner EFTA00184030 Tab Document rt Proceedings in Southern District Cou il Proceedings (6/12/09) Transcript of Epstein's Motion to Stay Civ EFTA00184031 CERTIFICATE OF SERVICE been I HEREBY CERTIFY that a copy of the foregoing Appendix has . served by mail on the parties listed below this ',day of July, 2009 ROTHSTEIN ROSENFELDT ADLER Attorneys for 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301 Telephone 4) 522-3456 Telecopier 4 527-8663 By: Willi Florida SERVICE LIST and Barbara J. Comp iani or Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. it 400 North WIE Drive, Suite 1100 P.O. Box 2602 (33601) Tampa, Fl 33602 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, F133401 EFTA00184032 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 EFTA00184033 09-a). RT UNITED STATES DISTRICT COU SOUTHERN DISTRICT OF FLORID A "NC-AIVNED 2 WEST PALM BEACH DIVISION 3 CASE NO. 08-80119-CIV-MARRA I WEST PALM BEACH, FLORIDA 4 JANE DOE, et al., 5 I JUNE 12, 2009 Plaintiffs, 6 vs. 7 JEFFREY EPSTEIN, 8 Defendant. x 9 10 G TRANSCRIPT OF MOTION HEARIN KEN NET H A. MARRA, 11 BEFORE THE HONORABLE GE UNITED STATES DISTRICT JUD 12 APPEARANCES: 13 ADAM D. HOROWITZ, ESQ. FOR THE PLAINTIFFS: Mermelstein & Horowitz 14 18205 Biscayne Boulevard Miami, FL 33160 15 For Jane Doe 16 BRADLEY J. EDWARDS, ESQ. Rothstein Rosenfeldt Adler 17 401 East Las Olas Boulevard Fort Lauderdale, FL 33301 18 Jane Doe 3, 4, 5, 6, 7 19 ISIDRO M. GARCIA, ESQ. 20 r Garcia Elkins Boehringe 224 Datura Avenue 21 01 West Palm Beach, FL 334 Jane DOE II 22 RICHARD H. WILLITS, ESQ. 23 2290 10th Avenue North Lake Worth, FL 33461 24 For 25 K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184034 2 1 ROBERT C. JOSEFSBERG, ESQ. Podhurst Orseck Josefsberg 2 25 West Flagler Street Miami, FL 33130 3 For Jane Doe 101 (Via telephone) 4 KATHERINE W. EZELL, ESQ. 5 g Podhurst Orseck Josefsber 25 West Flagler Str eet 6 Miami, FL 33130 For Jane Doe 101 7 . ROBERT D. CRITTON, JR., ESQ 8 FOR THE DEFENDANT: MICHAEL BURMAN, ESQ . Burman Critton, etc. 9 515 North Flagler Street West Palm Beach, FL 33401 10 11 JACK A. GOLDBERGER, ESQ. Atterbury Goldberger Weiss 12 th 250 Australian Avenue Sou West Palm Beach, FL 33401 13 14 ESQ. Assistant U.S. Attorney 15 ard 500 East Broward Boulev 94 Fort Lauderdale, FL 333 16 For U.S.A. 17 MARTIN G. WEINBERG, ESQ. 20 Park Plaza 18 Boston MA 02116 (Via telephone) 19 JAY LEFKOWITZ, ESQ. 20 (Via telephone) 21 RPR-RMR-FCRR-AE REPORTED BY: rt Reporter Official United States Cou 22 ltime Reporter Federally Certified Rea Room 8N09 400 North Miami Avenue, 23 Miami, FL 33128 24 25 TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00184035 1 THE COURT: We are here in the various Doe vs. Epstein 2 cases. 3 May I have counsel state their appearances? 4 MR. HOROWITZ: Adam Horowitz, counsel for plaintiffs 5 Jane 2 through Jane Doe 7. 6 THE COURT: Good morning. 7 MR. EDWARDS: Brad Edwards, counsel for plaintiff Jane 8 Doe. 9 THE COURT: Good morning. Good morning, Your Honor. Sid Garcia for 10 MR. GARCIA: 11 Jane Doe II. 12 THE COURT: Good morning. Good morning, Your Honor. Richard 13 MR. WILLITS: f •. 14 Willits, here on behalf of the plaintif 15 THE COURT: Good morning. Good morning, Your Honor. I'm Katherine 16 MS. EZELL: Amy Adderly and Susan 17 Ezell from Podhurst Orseck, here with Josefsberg, is going to 18 Bennett, and I believe my partner, Bob 19 appear by telephone. 20 THE COURT: Mr. Josefsberg, are you there? 21 MR. JOSEFSBERG: I am, Your Honor. 22 THE COURT: Good morning. 23 MR. JOSEFSBERG: Good morning. THE COURT: All right. Do we have all the plaintiffs 24 25 stated their appearances? Okay. N TOTALACCESSCOURTROOMNETWORKREALTIMETRANSCR1PTIO EFTA00184036 1 Defense? n on behalf of MR. CRITTON: Your Honor, Robert Critto 2 r, Michael Burman. 3 Mr. Epstein, and my partne 4 THE COURT: Good morning. Jack MR. GOLDBERGER: Good morning, Your Honor. 5 Epstein. 6 Goldberger on behalf of Mr. entatives from 7 THE COURT: I see we have some repres ey' s Office here. 8 the United States Attorn MS. Good morning, Your Honor. 9 off ice. 10 for the U.S. Attorney's THE COURT: Good morning. 11 phone? 12 Who else do we have on the members of the MR. CRITTON: Your Honor, we have two 13 phone, also. 14 defense team are on the phone? THE COURT: Who do we have on the 15 Martin Weinberg. Good morning, Your 16 MR. WEINBERG: 17 Honor. Jay Lefkowitz. Good morning, Your 18 MR. LEFKOWITZ: 19 Honor. THE COURT: Good morning. 20 g for very limited issues 21 I scheduled this hearin there's been a mot ion by Mr. Epstein to 22 which, as you all know, dings against him. The one issue I have 23 stay the civil procee ertion that by tein's contention or ass 24 concern about is Mr. Eps proceedings, he allegations in the civil 25 defending against the K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184037 egation by the United States in the I may expose himself to an all that he's violat ed that agreement and 2 non-prosecution agreement self to potential federal charges. 3 therefore would subject him ng on this. I asked the 4 I had asked for some briefi t its pos ition to me. And I received 5 United States to presen didn't find response, which I frankly 6 the Government's written I understand what the 7 very helpful. And I still am not sure on it. 8 Government's position is from Mr. Epstein's att orneys as 9 So first let me hear concern is. I don't believe the 10 to what do you believe the this Court; am has ever been filed in 11 non-prosecution agreement 12 I correct? or, it has not. MR. CRITTON: To my knowledge, Your Hon 13 ever seen the THE COURT: So I don't believe I've 14 entire agreement. I've seen portions of it. 15 t it was filed MR. EDWARDS: Your Honor, I believe tha 16 under vs. United States of America, case 17 under Jane Doe 1 and 2 18 seal in your court. THE COURT: Okay. 19 MR. EDWARDS: In a separate case. 20 In that case, okay. Was it actually filed 21 THE COURT: 22 in that case? MR. EDWARDS: I filed it under seal. 23 Epstein's concern THE COURT: In any event, what's Mr. 24 expose civil actions, you're going to 25 about if you defend the K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184038 ach by the United States of the 1 yourself to a claim for a bre 2 non-prosecution agreement? 3 MR. CRITTON: Robert Critton. this case is, I'd say is 4 Your Honor, our position on e before the 5 somewhat different. When this issue originally cam the or to my firm's involvement in 6 Court, as you are aware pri seeking ed on behalf of Mr. Epstein 7 case, there was a motion fil Doe 102 and then 8 a stay. And I think it was in Jane ough 5 because all of those cases 9 subsequently Jane Doe 2 thr same time. 10 were filed on or about the looked at the issue and it 11 And at that time the Court And the provision at that time. 12 was based upon a statutory tever t it's applicable, or for wha 13 Court said I don't find tha be a d I don't consider that to 14 reason I think the Court sai r time. ceeding at that particula 15 pending proceeding or a pro was in Jane Doe 2, I 16 In that same order, which entry 33, the ieve, I know it's docket 17 believe it's -- not I bel in abo ut at that particular point 18 Court also went on to talk the discretionar y stay. 19 time dealt with the issue of but t time, I'm paraphrasing, 20 And the Court said at tha is ieve a discretionary stay 21 the Court also does not bel to say is that if 22 warranted. And what the Court went on uld have no the agreement, then he sho 23 defendant does not breach t th Amendment right agains 24 concerns regarding his Fif 25 self-incrimination. REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184039 7 ey or other law 1 The fact that the U.S. Attorn se ect to some discovery in the 2 enforcement officials may obj il itself a reason to stay the civ 3 civil cases is not in and of y h issue shall be resolved as the 4 litigation, so that any suc igation. 5 arise in the course of the lit mit to the Court that the 6 And I would respectfully sub t has tak en in its most recent 7 position that the Governmen field dramatically. Because what 8 filings changes the playing U.S. said as distinct from the 9 the Government in essence has to some dis covery, or we may object 10 saying is, well, we object il cases. 11 to some discovery in the civ said is if you take some 12 What they have, in essence, and this is we believe unilaterally, 13 action, Mr. Epstein, that se memo pleading or of their respon 14 on pages 13 and 14 of their breaches the they say if Mr. Epstein 15 to the Court's inquiry, e a contract, and if 16 agreement. They said it's basically lik er side can sue. 17 one side breaches, the oth Government will do is if we 18 In this instance what the breached the agreement , we'll 19 believe that Mr. Epstein has t We will indict him. And his remedy under tha 20 indict him. catch 22 incredible and catastrophic 21 circumstance, which is an s. That's a then he can move to dismis 22 is, we'll indict him and 23 great option. -- ce my mandate in defending 24 In this particular instan on, in the Government's positi 25 and that's a dramatic change LTIMEMANSCRIPTION TOTALACCESSCOURTROOMNETWORKREA EFTA00184040 8 tty saying, and the Court was pre 1 because the Government is not ponse the Government for in its res 2 specific in what you asked d same question in a more limite 3 is, in essence, and it's the is whether Mr. Epstei n's defense of 4 fashion you're posing today the NPA agreement, the 5 the civil action violates wee n the U.S. and Mr. Epstein. 6 non-prosecution agreement, bet to answer that question. 7 And the Government refuses , yes, it will, or no, it won't. 8 They won't come out and say and as y want to sit on the sideline, 9 What they're doing is the that y want us to lay in wait and 10 their papers suggest is, the he violates a provision of the NPA as 11 if, in fact, they believe titude of e of this case or these mul 12 it relates to the defens notice, no e in and indict him -- no 13 cases, then they can com 14 opportunity to cure. t the NPA says, but that's 15 We don't think that's wha ice, ers say. We'll indict him, no not 16 certainly what their pap remedy We will indict him, and his 17 no opportunity to cure. miss the is that he can move to dis 18 under that circumstance 19 indictment. Mr. Epstein, his mandate to 20 Well, that's great except is: Make e to his criminal lawyers, 21 me and I know his mandat civil cases ng, in particular in these 22 certain I don't do anythi violation of gest that I am in willful 23 that would in any way sug 24 the NPA. ruling in the doc ket entry 25 Now, in the Court's prior REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184041 tein's of the NPA are within Mr. Eps 1 33, certainly some aspects t. But aspects that 2 control. There's no question about tha the se cases, either in terms of 3 relate to the defense of the 12 or 13 ending these, I think there's 4 civil lawyers who are def in , there's another four cases 5 pending cases in front of you and it k is substantial, it's real, 6 the state court, is the ris for the civil lawyers in moving 7 presents a chilling effect r or not we're taking some action 8 forward to determine whethe vio lation of the NPA. 9 that in some way may be a refusal or non-position 10 And the Government's, again, civil case that have been taken in the 11 with regard to past acts e with e or future acts that we may tak 12 with regard to the defens nary lit igation casts an extraordi 13 regard to these contested ense of ainty and fear that the def 14 cloud of doubt and uncert in the e Mr. Epstein and put him 15 these cases could jeopardiz sequently lating the NPA and then sub 16 irreparable position of vio 17 being indicted. ce, again, Mr. Epstein has no 18 In this particular instan of great lating the NPA, but it's 19 intention of willfully vio ition that the 20 concern to him. And I'd say with the pos opportunity notice, no cure period, no 21 Government has taken, no NPA provides, think that's not what the 22 to discuss. Again, we tracting parties, l was between the two con 23 it's not what the dea clearly what Mr. Epstein. But that's 24 the United States and would create ir pap ers say und er the circumstances, and it 25 the REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184042 10 tein under the circumstances. 1 this irreparable harm to Mr. Eps ch 22 in defending 2 In essence, we're left with a cat ion, to.take 3 the civil cases. We have a mandate to take no act to be a violation of the NPA, 4 any action which may be deemed future, which would in any way 5 either in the past or in the ed by the United States. 6 risk Mr. Epstein being indict indictment based upon the 7 He has the clear risk of an filed. It's real, it's not remote, 8 papers that the Government defense It chills the action of the 9 and it's not speculative. Epstein and his attorneys in 10 in this instance of both Mr. stances and decide under the circum 11 trying to defend these cases e thi s position with regard to 12 can we do this, can we tak ard to this legal position with reg 13 depositions, can we take to ard to responses, with regard 14 motions to dismiss, with reg 15 replies? ery. Is this in some way 16 And we send out paper discov may be an associate of these 17 if we contact someone who entially investigation, is that pot 18 individuals as part of our the NPA ? Again, we don't think so. 19 in any way a violation of ection has been from my 20 And, obviously, again, my dir would result in me being 21 client: Don't take any action that Well, that's great. But, generally, 22 indicted under the NPA. al injury yers in defending a person 23 civil lawyers or civil law and from is exactly what these are, 24 case or a tort case, which use various tools to do discovery. 25 a practical standpoint, we TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00184043 11. They're specific. They're very temporary. 1 They're standard. 2 Very typical. Court knows, things are 3 But in this instance, as the s case in any way , shape or form. 4 not typical with regard to thi re's s, there's objections and the 5 We can't even serve subpoenae ions to third parties so we can 6 -- we can't even serve object have to filter it through the 7 obtain documents unless we their plaintiffs' attorneys. They won't allow us to use 8 in subpoe na that would never be filed 9 clients' names, even in a 10 the court. a third party? We wanted 11 How do we do a deposition of Well, who is she? Well, e Doe 4. 12 to take the deposition of Jan Well, who's the defendant? Well, we 13 we can't tell you that. w nobody wants anybody to kno 14 can't tell you that because ictly They want to present it str 15 anything about the case. s. 16 through rose-colored glasse tance, we simply can't 17 And in this particular ins r tain action with the specto 18 defend this case or take cer m it to be t, the Government may dee 19 hanging over us that, in fac response ause very clearly in their 20 a violation of the NPA, bec position, papers, they don't say. They say we don't take the 21 there's ntial position is we think 22 and then they take a substa to a tors that would entitle him 23 not all that substantial fac 24 stay. ue which the Court posed 25 Except for the one major iss REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184044 12 end these cases? That's what 1 in the question is, is can he def in 2 I really want to know. Can he defend these cases and, the past or what his defense team 3 essence, what he has done in they're going to do in the 4 has done in the past and what tein, assura nces that the 5 future, can you give him, Eps on ion, whatever he does, based 6 Government under this situat of t cannot be a willful violation 7 advice of counsel, that tha n y, the U.S. -- can then tur 8 the NPA, which they can -- the lation of the agreem ent and, 9 around and say that's a vio the proceed to indict you under 10 therefore, we're going to go 11 circumstances. is that the U.S. has now 12 Our position is, Your Honor, as they did in picking up on the 13 cavalierly suggested that, ance with or order, is, look, compli 14 court's docket entry or pri Epstein. In this type of balance 15 the NPA is solely up to Mr. ak in favor of a stay. 16 of equities, it doesn't spe on Well, that's great. And maybe that was the positi 17 e up in of '08, when the issue cam 18 back in '08, on August 5th ard to the initial stay. 19 front of the Court with reg under these circumstances 20 But the Government's papers set of circumstances. Their own 21 suggested a very different for ue that we argued in the motion 22 unilateral, which is the iss t's position is that we can 23 stay, is that the Governmen NPA. if we think he's breached the 24 unilaterally indict this man ht, but we have no buffer 25 We don't think that's rig REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184045 13 They'll say, and as the Court 1 between us and the Government. ntial power. The Government 2 knows, the Government has substa e right. 3 does what it wants. Most of the time hopefully they'r 4 Sometimes they make mistakes. ce, my client has rights. 5 But in this particular instan e visions, we think there's cur 6 We think that there's notice pro s provisions under the NPA. That's not what their paper say 7 8 under the circumstances. from the Government, and 9 And what we'd like to know the what the Court asks is, let 10 maybe the answer is basically wledge ay and say, based on the kno 11 Government come forward tod the s date, June 12th, 2009, we, 12 that we have, or as of today' is no set of circumstances, not 13 Government, agree that there as of today's date, there is 14 that we're not aware of, but . ld be a violation of the NPA 15 nothing that exists that wou t I'm THE COURT: Well, that's way beyond wha 16 tein may have done 17 interested in. I don't know what Mr. Eps stitute ending this case that may con 18 outside the context of def outside the context 19 a violation. And if he has done something a violation , I don't care. 20 of defending this case that's tes and Mr. Epstein. 21 That's between the United Sta ther anything he does in 22 I'm only concerned about whe the s is going to be a violation of 23 defending these civil action else, it's If he has done something 24 non-prosecution agreement. ng to don't care, and I'm not goi 25 none of my business, and I TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00184046 14 you an assurance that he hasn't 1 even ask the Government to give violated the agreement up till 2 done anything that might have ing these civil actions. 3 today. I'm only interested in defend mit to the 4 MR. CRITTON: Then I would respectfully sub ask ed in that limited context, are 5 Court that the Government be ay is re were or not, but as of tod 6 they as of today, whether the done or will you take the 7 there anything that has been Epstein , that any position that Mr. 8 position, the United States in any ending these civil cases is 9 has taken with regard to def 10 way a violation of the NPA? e going to THE COURT: Well, I'm not sure what they'r 11 s point. cures the problem up to thi 12 say, but that might -- that m here h what's going to happen fro 13 But then we have to deal wit t we have to deal with. 14 on in. And that's another issue tha on. 15 So I understand your positi you on behalf of the 16 But has anyone suggested to in something that you've done 17 United States that there is construed y believe may or could be 18 defending this case that the osecution agreement? Has anyone 19 as a violation of the non-pr 've done? For example, the fact 20 pointed to anything that you e the ir -- I don't know if you've 21 that you've wanted to tak sent in this case, but if you've 22 noticed depositions or not if you sent requests for 23 notice of taking deposition, you if you sent interrogatories, if 24 production of documents, s far ? Is anything you've done thu 25 issued third party subpoenas REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184047 IS n bro ught to your attention as a 1 in the context of this case bee 2 potential violation? nor am I 3 MR. CRITTON: I have received no notification that notification of any action 4 aware that we've received any I don't know 5 we have taken today. As I suggested to the Court, gested, when they've done or not. And in their papers they sug 6 g tha t's gone on in the civil 7 well, we don't know everythin 8 litigation. oint, it was a number of 9 But from a practical standp ict, we their papers is, we can ind 10 comments that were made in . 11 can see if there's a breach 12 Judge, I may have some -- 13 THE COURT: Before you go on. MR. CRITTON: I'm sorry. 14 l on the THE COURT: You've focused a great dea 15 position inquiry as supporting your 16 Government's response to my tion, even that you're in jeopardy. But you've made the sugges 17 was going ed, that defending the case 18 before this brief was fil n that you an assertion or allegatio 19 to potentially result in agreement. 20 breached the non -prosecution you to make that initial 21 So what was it that caused my attention, was not -- 22 assertion? Because that's what caught ponse to ment has filed was in res 23 this brief that the Govern motion initially in your most recent 24 something that you filed issue. 25 for a stay which raised the K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184048 16 some concern to even 1 So what was it that gave you stitute ing this case is going to con 2 raise the issue that defend 3 a breach? ces where 4 MR. CRITTON: Because there are other instan re not in the civil aspects, whe 5 counsel other than myself, by the and letters have been sent 6 allegations have been made the there's been a violation of 7 United States suggesting that s, some notification was 8 NPA. And under those circumstance 9 provided. with defending THE COURT: Did it have anything to do 10 11 the civil actions? MR. CRITTON: It did not. 12 raised by you 13 THE COURT: So then why was that issue 14 in the first instance? t the MR. CRITTON: Because of the prospect tha 15 ition the U.S. would take the pos 16 defendant could take, that with t a position that we took 17 under the circumstances tha t the igation may well impact, tha 18 regard to the contested lit the y different view of what 19 Government may have a ver ent is. 20 interpretation of the agreem ber of the parties, and I 21 And as an example is a num issue to get into a discussion, the 22 know the Court doesn't want spective the from the defendant's per 23 is, is under 2255 is that l. It it was a very specific dea 24 deal that was cut on that, n. It dealt l and contested litigatio 25 dealt with both consensua REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184049 17 ls who we had no idea who was on 1 with a secret list of individua that he would under certain 2 the list, and a commitment s, pay a minimum amount of damage 3 circumstances be required to t 5 based upon the statute tha 4 which our position is under 225 ted -- a $50,000 as to anyone who wan 5 was in effect at the time, teria. the list and met certain cri 6 who came forward who was on n asserted by a number of 7 The position that now has bee d, and cumstances, and it's been ple 8 the plaintiffs under the cir agreed, complainants is, is Epstein 9 actually a number of the from that was sent by Ms. 10 and they cite to a letter can't he has to plead guilty or he 11 the Government, that says very limited 12 contest liability. That may be true under very, 13 or specific circumstances. e done in a number of the 14 But what the plaintiffs hav said is, well, ding motions, is they've 15 cases, and these are pen they've pled 30 16 we think cases is a good example, ege d violations. And they're saying 17 separate counts of 2255 all violations, therefore, we have 2255 18 under the circumstances is, or whether times 150, or should be, 19 there's 30 of them, so 30 of money that we want, so maybe $15 20 it's 150, that's the amount number is. 21 million, or whatever the s' lawyers have been even 22 Some of the other plaintiff ll agree that it's 23 more creative. They've said is, well, we' lations; but that each number of vio 24 only one cause of action we would incidents occurred, that 25 that is, if 20 alleged REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184050 18 then we will argue are violations, 1 consider to be, or that we ch the 150, depending on whi 2 can take 20 times the 50, or 3 statute is applicable. t set of circumstance could 4 So the Government under tha it, one of the reasons that we raised 5 say, and, again, this is couldn't deal with you was that you 6 they could say, look, our your were waiving liability, or 7 contest liability, that you merated offense under 2255. 8 ability to contest an enu as to an enumerated 9 Again, part of the deal was What did he plead to? 10 offense. Okay. Well, what's that mean? another ad to anything, which is 11 Well, he really didn't ple es in 2255. But if the Government com 12 issue associated with the , our positi on was, is that you're 13 and says, no, wait a minute And, guage within the NPA. 14 stuck with 2255 and the lan tiple off ense or whether it's mul 15 therefore, whether it's an individual or each one represents an 16 offenses or violations on that's Government takes the positi 17 cause of action, if the eement was the clear reading of the agr 18 adverse to what we think lation. s, they could claim a vio 19 under those circumstance we that's one of the reasons 20 And as a result -- and sed that t gla ring one to us, so we rai 21 put -- that was the mos ment's response came with 22 issue. And then when the Govern t t proceed to indict if we think tha 23 regard to, is we can jus the agreement. 24 there's been a breach of al risk and chills our 25 That puts us at substanti REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184051 19 ability to move forward. Thank you, Your Honor. 1 the THE COURT: Thank you. Who wants to be heard from 2 3 plaintiffs first? orney who is contending 4 Is there any plaintiff's att is going il actions by Mr. Epstein 5 that the defense of these civ non-prosecution agreement? 6 to constitute a breach of the efsberg. MR. JOSEFSBERG: Your Honor, this is Bob Jos 7 8 May I speak? 9 THE COURT: Yes, sir. that any MR. JOSEFSBERG: We're not quite confident 10 , which were third-party 11 breaches of any agreement resolved by you. We're not saying it 12 beneficiaries, should be breach of agreement. We 13 shouldn't. But we have not raised any United States and Mr. Epstein. 14 think that is between the disingenuous is that 15 What I find incredulous and t he wants a stay becaus e he may be 16 Mr. Epstein is saying tha e that s in the defense of this cas 17 forced into taking action ent. 18 would violate the agreem on clear on that. If he 19 And let me make our positi , production, ositions, interrogatories 20 wants to move to take dep te, not to your rulings appropria 21 and they are according evant, then someone, and they are rel 22 invasive of the privacy of ions of the could in any way be violat 23 I don't know how those 24 agreement. ts is that there are two par 25 What I find hypocritical K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184052 20 beneficiary of. One of them is 1 to the agreement that I am a action brought in the 2255, he 2 that he has agreed that on any 3 will admit to liability. motion to dismiss, which 4 And I received on May 26 a ally and disagree with, but tot 5 we're prepared to respond to apply that the statute doesn't 6 contesting liability, saying this is ger minors and saying, and 7 because the girls are no lon tion the predicate of the convic 8 the great one, saying that sat isfied. 9 under 2255 has not been t I have is the agreement 10 Now, the understanding tha ernment Mr. Epstein was that the Gov 11 between the Government and s made whole, and wanted them to be 12 desired to see these victim d and Mr. Epstein had been prosecute 13 in the same position as if have the pled or convicted. And they would be able to 14 as a matter al conviction, which just 15 predicate oC that crimin t he's done be introduced as proof tha 16 of liability would just 17 this. , are supposed to admit to 18 They, under the agreement He has ething that's under 2255. 19 liability on limited som be no civil no conviction, there can 20 filed, but since there is totally in ch we disagree. But it is 21 suit under 2255, with whi 22 opposite of the NPA. are many young ladies, and 23 The second part is there this to his great adv antage, who are 24 this perhaps he can use ire situation. Some of them won't 25 humiliated about this ent REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184053 21 1 come forward. as a Special Master 2 We were appointed by Judge ies. And some of them don't even 3 to represent these young lad wn as Jane 4 want to file suit. They don't even want to be kno risks for these motions 5 Doe 103. They don't want any of the 6 that are pending. that if we represented 7 And part of the agreement was And he tein would pay our fees. 8 them and they settle, Mr. Eps obligation terday that he is under no 9 has written us as of yes ng cases. 10 to pay our fees on settli ieve, may be breaches. 11 Now, those two matters, I bel thing rt at this time to do any 12 But I am not asking this Cou ment, I'm not running 13 about them. Nor am I telling the Govern want you to ing indict him because I 14 to the Government and say he agreed to. 15 pressure him to do what ry for that agreement, and 16 I'm a third-party beneficia tain parts of it. But as far as the 17 I may move to enforce cer osite of tion, that is the exact opp 18 issue of staying the litiga of the NPA. The purpose of the NPA 19 the intent and the letter have been ladies, these victims who 20 was so that these 34 young mov e on with their lives. 21 severely traumatized, may te of would be the exact opposi 22 And to stay this action ent and would be horrible 23 the purpose of that agreem my clients. 24 psychologically for all of d your THE COURT: Mr. Josefsberg, I understan 25 LTIMEDVMOUPTION TOTALACCESSCOURTROOMNEDNOW<REA EFTA00184054 22 1 position. And I don't want to argue the merits of whether a 2 stay should or should not be granted. rules 3 I'm just trying to understand what the ground a stay. And 4 are going to be if I grant a stay or if I deny 5 I've already denied a stay once. I have to decide this current to happen if I 6 motion, and I just want to know what is going under the 7 deny the stay in terms of Mr. Epstein's exposure 8 non-prosecution agreement. That's my concern. g to urge 9 So if you're telling me that you're not goin clients, to take 10 the United States, on behalf of any of your ement becau se he's 11 the position that he's breached the agre discovery, because 12 taking depositions, because he's pursuing ne in any other type of 13 he's conducting investigations that anyo ect to plaintiffs that 14 civil litigation might conduct with resp that those typical 15 are pursuing claims against a defendant, not breaches of the 16 types of actions, in your judgment, are defend the case as any 17 agreement and that he can go forward and not going to run to 18 other defendant could defend, and you're breaching the agreement by 19 the United States and say, hey, he's agreement by issuing 20 taking depositions and he's breaching the r information 21 subpoenas to third parties in order to gathe problem. But if he's 22 necessary to defend, then I don't have a ement because he sends 23 going to be accused of breaching the agre clients, how is he 24 out a notice of deposition of one of your 25 supposed to defend the case? ON TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTI EFTA00184055 23 rect. MR. JOSEFSBERG: Your Honor, you're totally cor 1 That's not a problem. But the 2 He can depose my client. a typical clients and this is not 3 problem is that these are not that he wants to 4 typical case. He has written in his pleadings t ls in the newspapers so tha 5 publish the names of these gir d to discuss their sexual 6 other people may come forwar ent plaintiffs. That's not your 7 activities with these differ make in this case, 8 typical case. But are rulings that you'll NPA. 9 and they're not part of the Government is concerned, I 10 As far as my going to the t to try for me to use the Governmen 11 find it very uncomfortable st in litigation. And I know that 12 to pursue my financial intere it. So I l will make much ado about 13 Mr. Epstein and his counse there. 14 am not going to be running depositions regarding 15 However, if they start taking e they're that to be a breach becaus 16 liability, I will consider liability. 17 supposed to have admitted the agreement and 18 THE COURT: But, again, I don't have the agreement. But what I'm being 19 I don't remember reading ity is only eement that admits liabil 20 told is the part of the agr sonal re are numerous other per 21 as to a 2255 claim, and the than 2255 claims. 22 injury tort claims other I ages on the 2255 claim, as 23 And there's a limit of dam are going e that all the plaintiffs 24 understand it, but I presum damages in ited or capped amount of 25 to seek more than the lim IMETRANSCRIPTION TOTALACCESSCOUR7ROOMNETWORKREALT EFTA00184056 24 to the other claims. 1 the non-prosecution agreement as ed to defend and limit 2 And so why aren't they entitl r client is seeking on the 3 the amount of damages that you 4 non-2255 tort claims? On MR. JOSEFSBERG: Your Honor, you are correct. 5 are per mitted to do the defense, 6 non-2255 tort claims, they 7 whatever is appropriate. ch liability under the 8 My cases are pure 2255 on whi admitted. Now, as to the amount of 9 agreement is supposed to be and ues that will be before you 10 damages, there are legal iss you, as to 11 under the cases that are getting before the NPA. That has nothing to do with 12 whether it is 50 or 150. t are before you as to 13 There are legal issues tha per per count or per incident or 14 whether it is per statute, h the NPA. There is no 15 plaintiff. Those have nothing to do wit 16 amount in NPA. Those will be resolved. 5, case that is outside of 225 17 Anyone who has brought a the NPA. to contest liability under 18 the defense is permitted 19 That's no violation. brought a case under just 20 Under the NPA if someone contest is to keep his word, cannot 21 2255, Mr. Epstein, if he stay this. Because it 22 liability. And there would no need to And ent. He can contest liability. 23 is a self-fulfilling agreem go over ages, anyone that wants to 24 as far as the amount of dam t in any course, he can contest tha 25 the statutory minimums, of REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184057 25 es of Evidence and your 1 way that is proper under the Rul his contesting damages 2 rulings. The NPA has no limitation on amo unt. 3 above the minimum statutory is in his actions of 4 The only thing that he has done that defendants, and in his saying 5 refusing to pay for settling those appear to be contrary to 6 he has no liability under 2255, 7 what's in the NPA. ht now to claim a 8 But I'm not in any position rig ther I'd be claiming a breach or 9 breach, and I don't know whe you to , suing him for fees, asking 10 enforcing it in front of you compla ining to the Government. 11 have him admit liability, or ause I helpful in this situation bec 12 And that's why I'm not that e. 13 think it's the Government's rol to be a third-party 14 But I do not waive the right to my appointment, which was 15 beneficiary because pursuant rights, and my clients have certain 16 agreed to by Mr. Epstein, I 17 and we want to enforce them. t will not in any way be 18 But his defending this lawsui stayed would be a 19 a violation. His getting this lawsuit and taking care of these girls, 20 violation of the spirit of r . Like if there is a stay, You 21 there would be other issues a bond? 22 Honor, would he be posting ut those issues. 23 THE COURT: We don't need to talk abo 24 That's not my concern. 't. MR. JOSEFSBERG: I agree, Your Honor, we don 25 TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00184058 26 That's not my concern. So, again, I just 1 THE COURT: cases go forward and if 2 want to make sure that if the ld defend e as someone ordinarily wou 3 Mr. Epstein defends the cas t in uted aga inst him or her, that tha 4 a case that's being prosec to to cause him to be subject 5 and of itself is not going 6 criminal prosecution. MR. JOSEFSBERG: I agree, Your Honor. 7 l want to 8 THE COURT: Any other plaintiff's counse 9 chime in? of MR. WILLITS: Richard Willits on behalf 10 what Mr. Josefsberg said. 11 would join, to weigh in on r. MR. JOSEFSBERG: Your Honor, I could not hea 12 hone. THE COURT: We'll get him to a microp 13 14 Mr. Willits is speaking. ., we join MR. WILLITS: On behalf of my client, 15 point out said, and we also want to 16 in what Mr. Josefsberg 17 something to the Court. rt, representation to the Cou 18 First, we want to make a ey's plaining to the U.S. Attorn 19 we have no intention of com intention, don't have that intention in 20 Office, never had that the , subject to what occurs in 21 the future, but, of course 22 future. went the Court that Mr. Epstein 23 I want to point out to resented by h his eyes wide open, rep 24 into this situation wit . If he il suits had to be coming 25 counsel, knowing that civ IMETRANScRIPTION TOTALACCESSCOURTROOMNETWORKREALT EFTA00184059 27 knew it. 1 didn't know it, his lawyers ond thoughts now about he 2 He appears to be having sec ated that way or he could have negoti 3 could have negotiated this s Office. And they want to impose 4 way with the U.S. Attorney' innocent plaintiffs. We don't 5 their second thoughts on the of invited 6 think that's fair. We think it's in the nature or whatsoever. 7 error, if there was any err Thank you. e to take the 9 THE COURT: You agree he should be abl take and endant in a civil action can 10 ordinary steps that a def ing to be prosecuted? 11 not be concerned about hav Of course. And we say the same thing 12 MR. WILLITS: rulings and the Mr. Josefsberg said. It's all subject to your 13 t is not to what is proper and wha 14 direction of this Court as de by the rulings of this 15 proper. And we're prepared to abi State's ention of running to the 16 Court, and we have no int 17 Attorney. THE COURT: The U.S. Attorney? 18 I'm sorry. The U.S. Attorney. 19 MR. WILLITS: 20 THE COURT: Mr. Garcia. MR. GARCIA: Thank you, Your Honor. 21 perhaps defense counsel 22 If I may briefly, I think orandum of pages 17 and 19 of my mem 23 forgot about this, but on e mot ion to dismiss, I did mak 24 law in opposition to the did say that cution agreement, and I 25 reference to the non-prose TIMETRANSCRIPTION TOTALACCESSCOURTROOMNETWORKFtEAL EFTA00184060 28 ion of this Court was a 1 the contesting of the jurisdict -prosecution agreement. 2 potential breach of the non they have filed with 3 So my client happens to have, and fact te court complaint, given the 4 the Court a copy of her sta ng of ent limits the non-contesti 5 that the non -prosecution agreem eral ively brought under the fed 6 jurisdiction to claims exclus 7 statute. hdraw those contentions 8 I'm going to go ahead and wit ly o of law because it doesn't app 9 on pages 17 and 19 of my mem sed this issue with 10 to my case. So to the extent that I rai t rt, I'm going to withdraw tha 11 defense counsel and the Cou 12 aspect of it. tin g on that THE COURT: Can you file something in wri 13 14 point with the Court? MR. GARCIA: Yes. 15 issue that 16 THE COURT: What do you say about this 17 we're here on today? that I have with 18 MR. GARCIA: I think that the problem d by cution agreement is being use 19 it is that this non-prose was ct opposite purpose that it 20 defense counsel for the exa ng, and I wasn't around, is 21 intended. My perception of this thi minal bought his way out of a cri 22 that Mr. Epstein essentially way, and ful for the victims in a 23 prosecution, which is wonder 24 wonderful for him, too. non -prosecution agreement 25 Now he's trying to use the TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00184061 29 e s that he was supposed to mak 1 as a shield against the plaintiff 2 restitution for. client's depo. He's 3 And, certainly, he can take my the state court case -- very 4 done extensive discovery in can win 5 intrusive, I might add. And we don't care, because we agreement or without the 6 this case with the prosecution 7 prosecution agreement. We are ready to go forward. to the United 8 THE COURT: You're not going to assert case is he's doing in defending the 9 States Government that what uld be further prosecuted? 10 a violation for which he sho MR. GARCIA: Absolutely not. 11 iffs? 12 THE COURT: Anyone else for the plaint l for MR. HOROWITZ: Judge, Adam Horowitz, counse 13 h 7. 14 plaintiffs Jane Doe 2 throug point that I think you've 15 I just wanted to address a it's crystal clear, 16 articulated it. I just want to make sure the a broad brush for all of 17 which is that we can't paint 18 cases. to Mr. Epstein being unable 19 The provision relating to who have only to those plaintiffs 20 contest liability pertains the federal statute. My clients, 21 chosen as their sole remedy causes e ele cted to bring additional 22 Jane Doe 2 through 7, hav n you t reason we were silent whe 23 of action, and it's for tha ach of the d Mr. Epstein to be in bre 24 said does anyone here fin tand . That provision, as we unders 25 non-prosecution agreement TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184062 30 clients. 1 it, it doesn't relate to our THE COURT: Okay. But, again, you're in agreement 2 t's spoken on behalf of a 3 with everyone else so far tha case in the normal course of 4 plaintiff that defending the ? ing motions would not be a breach 5 conducting discovery and fil course, MR. HOROWITZ: Subject to your rulings, of 6 7 yes. 8 THE COURT: Thank you. say from the plaintiffs? 9 Anyone else have anything to to maybe 10 Ms. if you would be so kind as you're here, and I 11 help us out. I appreciate the fact that tion these cases and under no obliga 12 know you're not a party to ld be . But as I indicated, it wou 13 to respond to my inquiries on. d the Government's positi 14 helpful for me to understan And we, of MS. . Thank you, Your Honor. 15 much as try to help the Court as 16 course, are always happy to any of these lawsuits, and 17 possible. But we are not a party to 't have disadvantage because we don 18 in some ways we are at a t's on Pacer. So I don't 19 access. My access is limited to wha her in Mr. Epstein may have taken eit 20 really know what positions filed in ery responses that aren't 21 correspondence or in discov 22 the case file. really just what do you think 23 But your first order was s hearing second order related to thi 24 about a stay, and then the whether we cific question, which is 25 and asked a much more spe REALTIME TRANSCRIPTION TOTAL ACCFcS COURTROOM NETWORK EFTA00184063 31 ens e was a breach of the 1 believe that Mr. Epstein's def 2 agreement. y of the pleadings as 3 And I've tried to review as man vol uminous. And I 4 possible. As you know, they're extremely them. But we do believe that there 5 haven't been through all of erred ing that Mr. Josefsberg ref 6 has been a breach in the fil we have tton, we do understand that 7 to, and contrary to Mr. Cri ice to ice, and we are providing not 8 an obligation to provide not 9 Mr. Epstein today. to be in bre ach -- the 10 The pleading that we found ch was to sought to do one thing, whi 11 non-prosecution agreement, e been if e position they would hav 12 place the victims in the sam es for ted of the federal offens 13 Mr. Epstein had been convic . 14 which he was investigated erally prosecuted and 15 And that if he had been fed on, ld have been entitled to restituti 16 convicted, the victims wou the crimes were committed, 17 regardless of how long ago they y wer e at the time, and how old 18 regardless of how old the e of the conviction. 19 are today, or at the tim e them eligible for damages 20 And it also would have mad 21 under 2255. up hope was that we could set 22 And so our idea was, our restitution these victims to get that 23 a system that would allow will expose h what civil litigation 24 without having to go throug 25 them to. REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184064 32 were very hes itant 1 You have a number of girls who ities about this because of the 2 about even speaking to author t that ed and about the embarrassmen 3 trauma that they have suffer ught upon themselves and upon 4 they were afraid would be bro 5 their families. osecution agreement tried 6 So we did through the non-pr vacy. le also protecting their pri 7 to protect their rights whi other cution agreement -- on the 8 So, pursuant to the non-prose to a hand them a jackpot or a key 9 hand, we weren't trying to them in that same position. 10 bank. It was solely to sort of put ge that said if -- that 11 So we developed this langua represent them. Most of the 12 provided for an attorney to pleadings , come from not wealthy 13 victims, as you know from the ld be in known any attorneys who wou 14 circumstances, may not have 15 a position to help them. l Master procedure that 16 So we went through the Specia the goal was nt of Mr. Josefsberg, and 17 resulted in the appointme Epstein to try to negotiate with Mr. 18 that they would be able ution/damages. And if Mr. Epstein 19 for a fair amount of restit apparently he has, whi ch is that the 20 took the position, which . That und er 2255 also would be a cap 21 $50,000 or $150,000 floor to get file suit in Federal Court 22 if they were to proceed to bility, but Mr. Epstein would admit lia 23 fair damages under 2255, ch means the damages portion, whi 24 he, of course, could fight of be entitled to depositions; 25 that, of course, he would REALTIMETRANSCRIPTION TOTAL ACCESS COURTROOM AETWORK EFTA00184065 33 tak e discovery, and we don't 1 course, he would be entitled to es the non-prosecution 2 believe that any of that violat 3 agreement. t he filed, the motion 4 The issue with the pleading tha ented e it's Jane Doe 101, repres 5 to dismiss the case, I believ t is a case that was filed 6 by Mr. Josefsberg, is that tha , Section 2255. She met that 7 exclusively under 18 U.S.C. miss it, not on the 8 requirement. Mr. Epstein is moving to dis liable ing that he cannot be held 9 basis of damages, he is say convicted of an offense. 10 under 2255 because he was not victed of an offense is 11 The reason why he was not con So that non-prosecution agreement. 12 because he entered into the 13 we do believe is a breach. y raised in the motion to sta 14 The issue really that was stay is response to the motion to 15 and that I addressed in our litigation Epstein wants to stay the 16 that Mr. Epstein's -- Mr. es of the to sort of attack the cas 17 in order to leave, in order fully within the non -prosecution or 18 victims whether they are Government ent or not, and leave the 19 not, non-prosecution agreem ms. And s, in fact, breach those ter 20 without a remedy if he doe stay. 21 that is why we opposed the n by that last THE COURT: I'm not sure what you mea 22 23 statement. related to MS. . Well, because this issue 24 e up after Mr. Josefsberg's client cam 25 the motion to dismiss on REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184066 34 se And what we said in the respon 1 we had filed that response. stay t the reason why he wants to 2 to the motion to stay is tha non-prosecution agreement 3 the litigation is so that the of time, as he puts it. And then 4 terminates based on a period to come in here and make all of 5 afterwards he would be able ion y violate the non-prosecut 6 these arguments that clearl hout remedy. 7 agreement but we would be wit ition that 8 THE COURT: But you're not taking the pos ething in litigation which is a 9 other than possibly doing som ion vision of the non-prosecut 10 violation of an express pro igations ery, motion practice, invest 11 agreement, any other discov defending a rily do in the course of 12 that someone would ordina ent? a violation of the agreem 13 civil case would constitute No, Your Honor. I mean, civil 14 MS. e tion, and being able to tak 15 litigation is civil litiga And while il litigation is about. 16 discovery is part of what civ subpoena if someone were to try to 17 there may be, for example, tutory obviously resist under sta 18 the Government, we would stuff. But, no, Mr. Epstein is 19 reasons, all that sort of subpoena tion of a plaintiff and to 20 entitled to take the deposi 21 records, etc. covery from a THE COURT: And even if he seeks dis 22 e the right to res ist it under the 23 Government agency, you hav violation, t would not constitute a 24 rules of procedure but tha agreement vision in the prosecution 25 again unless there's a pro REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184067 35 1 that says I can't do this? MS. : Correct. 2 3 THE COURT: That's your position? MS. : Yes. 4 5 THE COURT: Thank you. MS. : Thank you, Your Honor. 6 add anything? 7 THE COURT: Mr. Critton, did you want to e Yes, sir. Just a few responses to som 8 MR. CRITTON: n raised. 9 of the issues that have bee from our perspective, is 10 The most glaring, at least re's a ments that he believes that the 11 both Mr. Josefsberg's com l as Ms. with regard to 12 violation of the NPA as wel 13 Jane Doe 101. was was the attorney rep who 14 Mr. Josefsberg, while he duals, selected by Judge to represent a number of indivi 15 represents have been on the list, he 16 alleged victims that may that was filed in 101 17 many of them. And the type of response e if he ilar to what we will fil 18 would probably be very sim as well. But if he files 103, 104 19 files -- and he filed 102 ber he files, we may wel l take that 20 and 105, or whatever num or in our motions and in our response 21 same legal position in 22 reply. ess ence, told today is we 23 And what we've been, in the lation of the NPA under 24 consider that to be a vio 25 circumstances. REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184068 36 t he filed is, we have 1 102 is a perfect example tha my between the Government and 2 e-mails going back and forth bably e that suggested that 102 pro 3 clients' attorneys at the tim statute of limitations. 4 doesn't even fit within the ument is as well, we've 5 So under Mr. Josefsberg's arg within We don't care whether she's 6 only brought a 2255 claim. limitations. Because she was on 7 or is outside the statute of cumstances, he has to admit 8 the list and under the cir stances is under that set of circum 9 liability, which we contest can, but you're stuck with it. You can fight damages if you 10 can't raise statute of limitations. 11 she's a real person and you of strikes out is there's 12 The other point that kind copy of the probably a difference. And I'm happy to provide a 13 the civil of the NPA which deals with 14 NPA or a redacted portion s 7, 8, 9 and 10, and the entire 15 issues, which are paragraph 's rt to look at, if plaintiff 16 addenda in camera for the Cou e they're t, I guess, really, becaus 17 counsel and the Governmen y all have e no objection because the 18 not a party, is if they hav cution rt order to the non-prose 19 access based on a prior cou 20 agreement. t to the Court today and 21 So I'm happy to provide tha t. t the Court can review tha 22 show it to counsel so tha to the 2255 claims is 23 But our position with regard filed, one es of claims that could be 24 that -- there were two typ tion. the second was contested litiga 25 was consensual litigation, K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00184069 37 is essence, which Mr. Epstein did, 1 And under the consensual, in e tutory minimum for that tim 2 he's offered $50,000 of the sta duals. 3 period to all of those indivi ? 4 THE COURT: Can I interrupt you a second 5 MR. CRITTON: Yes, sir. ieve it's my 6 THE COURT: I'm not here, and I don't bel of there is or is not a breach 7 role to decide whether or not d what the 8 the agreement. I'm just trying to understan ing your defending these cases. 9 Government's position is regard an example. If, for 10 Now, I'm just saying this as vision cut ion agreement there was a pro 11 example, in the non-prose e to that said explicitly: Jeffrey Epstein shall not mov 12 matter er 2255 by any victim no 13 dismiss any claim brought und iod. or the acts took place, per 14 how long ago the allegations and you filed a motion to 15 If that was in the agreement ught a claim, it mig ht sound like it 16 dismiss by someone who bro 17 might be a violation. MR. CRITTON: i agree. 18 you filed your THE COURT: So you would know that when 19 there for you to read. 20 motion because it was right ing because I want to do someth 21 And so to stay the case stay prohibits me from doing, so 22 that the contract expressly something expires so then I can do 23 the case until the agreement in fear couldn't do so you won't be 24 that the agreement said I e that that is what I'm concerned 25 of prosecuting, I'm not sur LTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REA EFTA00184070 38 1 about. , investigation, motion 2 I'm concerned about discovery hibited by a provision of the 3 practice, that's not pro prohibited by the 4 agreement. If there's something that's g what the agreem ent says, go ahead 5 agreement that you, knowin have to t's a risk you're going to 6 and do, anyway, I guess tha e pute about it, I guess som 7 take. If there's a legitimate dis . whether it's a breach or not 8 arbiter is going to decide you and Mr. Burman, 9 But, again, that's something are all very good lawyer s, and he's got 10 Mr. Goldberger, and you got the rep resenting him, and you've 11 a whole list of lawyers to make legal decisions on how to 12 agreement and you're going to have to go and make your own 13 proceed, and you're going 14 decisions. that aren't in the 15 I'm concerned about things accused ere d, that you're going to be 16 agreement, that aren't cov you send out in, you take depositions, 17 of violating because, aga s that are not prohibited by the 18 subpoenas, you file motion ned about. 19 agreement. And that's what I'm concer r Honor. MR. CRITTON: And I understand that, You 20 the s as if the lawyers and 21 But at the same time, it' ent, and, int erpretation of the agreem 22 clients, based upon our to dismiss, hav e filed 101, the motion 23 believe me, we would not that re was a good faith basis to do 24 but for believing that the 25 under the circumstances. REALTIME TRANSCRIPTION TOTALACCESSCOURTROOM NETWORK EFTA00184071 3 ng acc used not only by 1 And now, in essence, we're bei suggested that there's a breach 2 -- not accused, but it's been but as Josefsberg on behalf of 101, 3 of the NPA, not only by Mr. . 4 well Ms. on behalf of the United States They're basically saying 5 That's the perfect example. the we think you violated. We may send you notice under 6 we have to back 7 circumstances. So does that mean that on 101 ion and in good faith that it's a mot 8 off of it because we think Court ultimately will rule? 9 is that something that this who is going 10 THE COURT: I don't know that I'm the one of thing to make that decision. Again, that's not the kind 11 the I was more concerned about 12 that I was concerned about. that conduc ting and defending a case 13 normal, ordinary course of eement, sly be covered under the agr 14 would not otherwise expres s sen t a have someone say, ah, he' 15 that you're going to then I don't harassing the plaintiffs. 16 notice of deposition, he's ent or no t provision in the agreem 17 know if there's a no contac this is a ion in the agreement. Ah, 18 harassment type of provis covery, or he's issuing subpoenas to 19 breach because you sent dis d out about these victims' 20 third parties trying to fin the agreement. 21 backgrounds, he's breaching that I was worried about. 22 Those are the kind of things is as part of MR. CRITTON: The concern that we have 23 igation, it's not just the 24 doing this general civil lit that the Court 25 discovery process. And I understand the issues REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184072 40 1 has raised. cases are disposed of 2 But part of it is that often come certainly legal issues that 3 either on a summary basis or a cou rse of the case, just like in 4 before the Court during the I'd say the defense 5 criminal case. That's clearly part of the, an stances; and if, in fact, 6 of the case under the circum certain ng a cause of action for 7 individual can't legally bri suggested in 101, and may be 8 reasons, such as has been tainly is t pleading is filed, that cer 9 suggested in 102 when tha ent at risk. 10 a position that puts my cli As another example that I use with Ns., that they 11 court int. Now, they have the state 12 filed this 30-count compla e said they filed 13 claims as well. But they, in essence, hav what the Cou rt that says depending on 14 another pleading with the multiple claims on whether we can file 15 Court rules, in essence, dump h multiple violations, we may 16 or one cause of action wit e along on , therefore, we'll just rid 17 the state court claims and 18 that. That's a very different -- e entered into, nor would 19 Mr. Epstein would never hav agreement d him to enter into that 20 his attorneys have allowe where he had this unlimited 21 under those circumstances envisioned by any of the 22 liability. That clearly was never under the ant or any of his lawyers 23 defendants -- by the defend 24 circumstances. by the be a violation, either 25 And if that's claimed to CIMETWOMCMPTION IWALACCESSCOURTROOMNETINOWCREA EFTA00184073 41 the apitulating on liability under 1 attorneys; i.e., he's not rec now. That's our exclusive remedy. 2 2255, and that's all we have that's right, that's a 3 And the Government says, yeah, forward, 4 violation of the NPA. It again chills us from moving papers and taking legal positions 5 filing the necessary motion then k for violating the NPA and 6 that may put my client at ris m of, after having been in jail, 7 creating the irreparable har er the state court counts, aft 8 after having pled guilty to and sex offender, he's complied 9 registering on release as a with the raordinary efforts to comply 10 done everything, taken ext al risk. And that's what our worry 11 NPA, puts him at substanti 12 is moving forward. May I MR. JOSEPSHERG: Your Honor, may I be heard. 13 minute. make three comments? It will take less than a 14 THE COURT: Yes, sir. 15 alleged MR. JOSEFSBERG: Mr. Critton refers to the 16 position is that pursuant 17 victims. I want you to know that our eged victims. They are actual, real 18 to the NPA they're not all 19 victims, admitted victims. the statute of limitations 20 Secondly, he argues about I'm t to hear about that, and 21 on 102. I know that you don't wan lack it. But please don't take our 22 not going to comment about ng. being we agree with anythi 23 of argument about this as we totally agree with 24 Last and most important, y of the tion that he hand you a cop 25 Mr. Critton in his sugges REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00184074 42 will be questions you asked 1 NPA. I think that many of the ir of the NPA, and I think it's very unfa 2 answered when you read have the NPA to be g in front of you who 3 everyone who is sittin e eached, whether ther cussin g wit h you whether it's being br 4 dis with it. be a st ay whe n you 're not that familiar 5 should it would be we wou ld gi ve you a copy of it, I think 6 If . in making your ruling 7 much more helpful sue will resolve this is THE CO UR T: Maybe Judge Colvat 8 9 for me. Your Honor, I MR. JOSEFSBERG: Even if he doesn't, 10 d to show it to you. 11 believe we are allowe i'll wait for Judge THE COURT: I'll tell you what: 12 remain then if he rules that it should 13 Colvat to rule, and t I want to have it nsider whether or no 14 sealed, then I'll co camera. 15 submitted to me in sefsberg? 16 Anything else, Mr. Jo of myself No. I thank you on behalf 11 MR. JOSEFSBERG: appear l on the phone for permitting us to 18 and the other counse 19 by phone. hing they All right. Anyone else have anyt 20 THE COURT: 21 want to add? lf of Jane Doe. MR. EDWARDS: Brad Edwards on beha 22 ad your motion here, and when I re 23 I only had one issue defense in hear on the narrow issue of just 24 that you wanted to lates the led against him vio 25 the civil actions fi RIPTION NETWORK REALTIME TRANSC TOTAL ACCESS COURTROOM EFTA00184075 43 we were going ement, I was expecting that 1 non-prosecution agre affidavit om the Govern ment similar to the 2 to hear something fr wherein he indicates . Epstein's attorneys 3 that was filed by Mr motion to stay, affida vit attached to the 4 as of the day of this Eps tein Office has tak en the position that 5 the U.S. Attorney's t and it names -prosecution agreemen 6 has breached the non plaintiff and ation by Epstein of this 7 specifically investig is action. stein's cont esting damages in th 8 other plaintiffs, Ep to the l representatives , making statements 9 Epstein, or his lega any of those things. 10 press. And we didn't hear U.S. expecting that the 11 So that's what I was s, we've s going to ex pound on and say, ye 12 Attorney's Office wa ns to Epstein. He's violating. io 13 made some communicat st so that I'm right now, today, ju 14 What we're hearing now, is that the the Court is clear 15 clear, and I think is. There have been no ement is what it 16 non-prosecution agre brought up. maybe what Mr. Josefsberg 17 violations, but for Mr. Epstein. few restrictions on 18 But there are very I ag ree es wide open. And whether or not 19 He went into this ey the first place, is how it came to be in 20 with the agreement, ere. 21 neither here nor th breaches up to no violations or 22 But there have been st at was filed, I'm ju this point. And his affidavit th 23 ng ev en came from. I mean, it's maki 24 troubled by where it ce is s that the U.S. Attorney's Offi 25 specific allegation RIPTION NETWORK REALTIME TRANSC TOTAL ACCESS COURTROOM EFTA00184076 44 to stay, this is part of the motion 1 threatening a breach, and here. 2 which we're all battling to the Court or remind 3 So I just wanted to indicate the n specific allegations made, 4 the Court that there have bee tions of ice is making these allega 5 United States Attorney's Off rd any of the evidence of. 6 breach, which we haven't hea 7 Thank you. 8 THE COURT: All right. that Ms. , did you want to respond to 9 besides e other allegations of breach 10 suggestion that there wer tioned today? 11 the one that you've just men MS. : No, Your Honor. 12 me THE COURT: Thank you. I appreciate your giving 13 l tod ay, and think has been very helpfu 14 the information, which I out as soon as possible. 15 I'll try and get an order 16 [Court adjourned at 11:10 a.m.). 17 CERT/F/CATE foregoing is an accurate 18 I hereby certify that the matter. gs in the above-entitled 19 transcription of proceedin 20 sI 21 , RPR-CM-RMR-FCRSC DATE rt Reporter 22 Official United States Cou 400 N. 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EFTA00184084 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, , THE PALM BEACH POST, If Respondents. a'S SEALED REQUEST TO DISMISS THE PETITION FOR LACK OF JURISDICTION Respondent, IIII., would show the Court as follows: 1. This Court lacks jurisdiction to hear this petition. is The order under review is a non-final order for which no appeal is provided provided by Rule 9.130. A non-final order for which no appeal ed by Rule 9.130 is reviewable by petition for certiorari only in limit ents of law circumstances. The order must depart from the essential requirem inder of and thus cause material injury to the petitioner throughout the rema on appeal. the proceedings below, effectively leaving no adequate remedy d & Co. I. Allstate Ins. Co.'. Langston, 655 So.2d 91, 94 (Fla. 1995); Bara EFTA00184085 Broward McGuire, 670 So.2d 153 (Fla. 4th DCA 1996); see, Menke' School Bd, 916 So.2d 8 (Fla. 4111DCA 2005). ate; Barad The requirement of irreparable harm is jurisdictional. Allst n of this & Co. A petitioner's failure to demonstrate the satisfactio on for writ of jurisdictional element should result in dismissal of a petiti certiorari. Barad & Co. threshold. As shown below, petitioner fails to meet this jurisdictional arable 2. Disclosure of the NPA will not cause petitioner irrep harm. disclosure a. There is nothing in the NPA that is confidential and cat in the bag"). will not cause petitioner irreparable harm ("there's no or word in Petitioner does not cite a single term, provision, sentence y provisions" in the NPA' that is confidential. There are no "confidentialit petition at page the NPA, contrary to petitioner's misleading assertions (i.e., plea deal with the 10). There is not a single detail about this sex offender's en from the public. U.S. Attorney or the state attorney that should be hidd first page A page-by-page review of the NPA demonstrates this. The tigations of discusses that local law enforcement have conducted inves through the The undersigned attorneys were given a co of the NPA federal proceedings before Judge Marra (see 's response to the petition ided a copy of filed herewith), but, inexplicably, undersigned was not prov contents. the Addendum. We have never seen it and do not know its 2 EFTA00184086 n of petitioner; that he was charged by indictment with solicitatio their own prostitution; that the U.S. Attorney and FBI have conducted 2001-2007 investigation of his crimes against the United States from prost itution; including crimes for inducing minor females to engage in al conduct; conspiring to use interstate commerce to engage in illicit sexu ge in prostitution; using interstate commerce to induce minor females to enga conduct with traveling in interstate commerce to engage in illicit sexual l sexual act. minor females; recruiting minors to engage in a commercia globally The second page provides that petitioner wishes to resolve , the United States his state and federal charges; that the interests of the state n by the U.S. and petitioner would be served by so doing; that prosecutio state provided Attorney shall be deferred in favor of prosecution by the violate any petitioner abides by the agreement; that should petitioner offense; that if conditions of the agreement he may be prosecuted for any rney will not petitioner fulfills the terms of the agreement, the U.S. Atto prosecute him for any offense. charges of The third page discusses that he will plead guilty to state ge in solicitation of prostitution and solicitation of minors to enga to a county jail prostitution and be registered as a sex offender; he will agree months sentence of 18 months for the two charges followed by 12 3 EFTA00184087 the community control; the state judge must approve the sentence; from agreeing agreement does not preclude petitioner and the state attorney or to recommend additional charges or additional terms of probation ide the U.S. incarceration; petitioner waives his rights; petitioner shall prov Attorney with copies of his agreements with the state attorney. with Page four provides that the United States shall provide petitioner represent the a list of victims; the United States shall select an attorney to will not victims; if any victims files suit based on federal claims petitioner ment; that he contest them; he is not admitting liability by signing this agree will use his best efforts to plead guilty by a certain date. any Page five provides that he will not be treated differently than ipate this other offender as to county jail gain time; that the parties antic there is a agreement will not be made part of any public record but if on the United Freedom of information Act Request or compulsory process before States for this agreement, the U.S. will give petitioner notice antee what the disclosing the agreement; that the U.S. Attorney cannot guar potential co- state attorney does; that the United States will not prosecute d. conspirators; that ongoing grand jury proceedings will be halte 4 EFTA00184088 breach Page six provides there is consideration for the NPA and a waiv es certain allows the United States to elect to terminate it; that petitioner rights. ment Finally, page seven provides that petitioner has read the agree and understands it. or word Where is there a single confidential term, provision, sentence arable harm? in the NPA the disclosure of which will cause petitioner irrep The answer is there is none. learn that he Will it cause petitioner irreparable harm for the public to court to a mere 18 and the U.S. Attorney agreed he will be sentenced in state all the usual months county jail time (in his home county, not a prison, with prison system, gain time and work release benefits not available in the state sexual offender so he serves about 60% of the sentence) plus 12 months non- prostitution, a community control, for solicitation of a minor to engage in n, and felony second degree felony punishable by up to 15 years in priso up to 5 years solicitation of prostitution, a third degree felony punishable by in prison? that if Will it cause petitioner irreparable harm for the public to learn rney will not petitioner fulfills the terms of the agreement, the U.S. Atto 5 EFTA00184089 e he committed against multiple prosecute him for a single federal crim minor female victims? for the public to learn the Will it cause petitioner irreparable harm for just two of his crimes involving state attorney will only prosecute him s and that he does not face any only just two of his minor female victim crimes against the many more further state prosecution for all his other U.S. Attorney? minor female victims identified by the for the public to know that Will it cause petitioner irreparable harm erprise for procuring minor females the other participants in his criminal ent ators M IS Lesley to engage in prostitution, co-conspir Groff and =Ma will not be prosecuted at all? for the public to learn that an Will it cause petitioner irreparable harm other minor female victims in attorney will be appointed to represent his single specified federal cause of civil lawsuits; that, if they bring only a liability, but if they bring other action, he will not contest, but not admit, ntional infliction of emotional causes of action such as battery or inte choices? distress, he can defend in any manner he for the public to know that Will it cause petitioner irreparable harm y have utterly compromised their roles the U.S. Attorney and the state attorne 6 EFTA00184090 into this as prosecutors and protectors of the public safety by entering sweetheart deal with petitioner? As in the old Wendy's commercial, "Where's the beef?" tial; b. The parties to the NPA did not agree it would be confiden disclosed if in fact, the United States agreed the NPA would be publicly ess were a Freedom of Information Act Request or compulsory proc made to disclose it. that the There is nothing in the record to support petitioner's assertion any evidence parties agreed to confidentiality. Petitioner has not proven by extrinsic to the NPA that it was intended to be confidential. intended by The wording of the NPA, moreover, does not show it was not state anywhere both parties to be confidential. The NPA on its face does ar in it. There that it is confidential. The word "confidential" does not appe e both parties is not a single term, provision, sentence or word in it wher fidential" affirmatively agree to keep it confidential. The term "con Black's law essentially means that something is "meant to be kept secret." ssion of this dictionary (81" ed. 2004). The NPA does not contain an expre that the intent. In fact, the parties to it expressly agree to the contrary: mation Act United States will disclose the NPA if a Freedom of Infor Request or compulsory process is made to disclose it: 7 EFTA00184091 part The parties anticipate that this agreement will not be made om of of any public record. If the United States receives a Freed anding the Information Act request or any compulsory process comm in before disclosure of the agreement, it will provide notice to Epste making that disclosure. (NPA, paragraph 13(emphasis added.) an The first sentence of the above quote does no more than state ment being expectation by both sides that they do not anticipate the docu t. At most it states made part of a public record, i.e., not filed in federal cour to make place it merely an intent that neither side will take affirmative steps ment is in a public record. But that is not a provision that the docu paragraph, the confidential or that it will be kept confidential. In the same of Information Act United States agrees to disclose the NPA if a Freedom . Request or compulsory process for the document is made nt on this In fact, with all the hearings held in state court to the prese once intervened issue, the United States, which was always noticed, has not d. A representative in state court to request that the document remain seale any of the hearings of the U.S. Attorney's office has not even appeared at the plea colloquy, before the trial judge below on this issue. Moreover, at not object to the representatives of the United States were present and did 8 EFTA00184092 placed in the terms of the agreement being discussed on the record or being state court file (see below).2 petitioner's Also, the text of the NPA quote above (par. 13) shows that secrecy of arguments based on the supremacy clause and the doctrine of arguments have grand jury proceedings are wholly without merit. Can these icly disclose the any conceivable validity if the U.S. Attorney agreed to publ or compulsory NPA if there were a Freedom of Information Act Request tion given to service of process? There should be no serious considera look to petitioner petitioner's contention that the U.S. Attorney intended to macy clause or to to protect the rights of the United States under the supre cy. This is but protect the sanctity of the doctrine of federal grand jury secre another smoke-screen. publicly c. Petitioner himself and the state prosecutor already of the bag"). disclosed the contents of the NPA ("the cat's already out Attorney At the plea colloquy (A-8), with representatives of the U.S. on the record, in present, petitioner's attorney and the prosecutor disclosed public, the essential terms of the NPA. After the trial judge cautioned Attorney were 2 It was noted on the record that representatives of the U.S. present in court. A-8, page 39, lines 22-23. 9 EFTA00184093 d, the following counsel that any sidebar conversation would be on the recor exchange occurred: I MR. GOLDBERGER [petitioner's counsel]: The reason why nt with asked to come sidebar is there is a nonprosecution agreeme of the the United States Attorney's office that triggers as a result and said plea agreement. In other words, they have signed off District of they will not prosecute Mr. Epstein in the Southern plea Florida for any offense upon his successful [sic] taking of this d to. today. That is a confidential document that the parties have agree I wanted to tell the court. ed THE COURT: I understand, that would also be invalidat should he violate community control? MR. GOLDBERGER: Absolutely. That nonprosecution agreement — MS. [the state prosecutor]: They spell all that out. THE COURT: Mr. Epstein needs to come closer. to Mr. Epstein, your attorney has told me that in addition we say, to everything, we talked about another inducement, shall Southern your taking this plea is that the U.S. Attorney for the ed to a District of the State of Florida, federal prosecutor, has agre if you nonprosecution agreement with you, meaning that you're successfully complete probation and do everything ecute you supposed to, they have, have agreed not to pros federally, did you understand that? THE PETITIONER: Yes, ma'am. (A-8, pages 38-39Xemphasis added). ion 2a. We can see from the page-by-page review of the NPA (sect the highlighted above) that the other provisions of the NPA are incidental to osed provision quotations. The substance of the NPA is the publicly discl federal offense that the U.S. Attorney will not prosecute petitioner for any 10 EFTA00184094 the sentence upon his pleading guilty to the two state crimes and agreeing to discussed in the plea colloquy. CONLUSION For the reasons stated above, it is respectfully requested that the petition for certiorari be dismissed for lack of jurisdiction. d by I HEREBY CERTIFY that a copy of the foregoing has been serve mail on the parties listed below this day of July, 2009. s New I HEREBY CERTIFY that the foregoing is submitted in Time 9.100. Roman 14-point font and complies with the font requirement of Rule ROTHSTEIN AggENFELDT ADLER Attorneys for 115 401 East Las Olas Blvd., Suite 1650 Fort LauderliS* 301 Telephon Telecop 54) 527M663 By: SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 11 EFTA00184095 Robert D. Critton Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 12 EFTA00184096