EFTA01122989

Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 1 of 113 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No.: 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOES #2, Petitioners, - Vs- UNITED STATES, Respondent. HEARING BEFORE THE HONORABLE KENNETH A. MARRA Friday, August 12, 2011 United States Federal Courthouse West Palm Beach, Florida 33401 2:00 - 4:19 IMO. Stenographically Reported By: Melinda L. Colchico, FPR, RDR, CRR 5 61-8 35-022 0 EFTA01122989 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 2 of 113 2 1 APPEARANCES: 2 On behalf of the Petitioners: 3 Brad Edwards, Esq. Farmer Jaffe Weissing Edwards Fistos & Lehman 4 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 5 (954) 524-2820 6 Paul G. Cassell, Esq. USJ Quinney College of Law 7 University of Utah 332 South 1400 East, Room 101 8 Salt Lake City, Utah 84112-0730 (801) 585-5202 9 Jay C. Howell, Esq. 10 Jay Howell & Associates 644 Cesery Boulevard, Suite 250 11 Jacksonville, Florida 32211 (904) 680-1234 12 13 On behalf of the Respondent: 14 Dexter A. Lee, Esq. Marie Villafana, Esq. 15 Assistant U.S. Attorneys 99 NE 4th Street, Suite 300 16 Miami, Florida 33132 (305) 961-9320 17 18 ALSO PRESENT: 19 Roy Black, Esq.. Black Srebnick Kornspan & Stumpf 20 201 S. Biscayne Boulevard, Suite 1300 Miami, Florida 33131 21 (305) 371-6421 22 Bruce Reinhart, Esq. 250 S. Australian Avenue 23 Suite 1400 West Palm Beach, Florida 33401 24 (561) 202-6360 25 561-835-0220 EFTA01122990 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 3 of 113 1 PROCEEDINGS 2 3 THE COURT: Good afternoon. Please be seated. This 4 is the case of Jane Doe No. 1 and Jane Doe No. 2, versus United 5 States, Case No. 08-80736. Will counsel state their 6 appearances, please. 7 MR. LEE: Good afternoon, Your Honor. May it pleas 8 the Court. For the United States of America, Marie Villafana, 9 Assistant United States Attorney, and Dexter Lee, Assistant 10 United States Attorney. Good afternoon. 11 THE COURT: Good afternoon. 12 MR. EDWARDS: Good afternoon. On behalf of Jane Does 13 1 and 2, Brad Edwards, as well as my co-counsels, Paul Cassell 14 and Jay Howell. 15 THE COURT: Good afternoon. 16 MR. BLACK: Your Honor, good afternoon. Roy Black 17 appearing on behalf of the intervening lawyers, Black, Weinberg 18 and Lefkowitz. 19 THE COURT: Good afternoon. 20 MR. REINHART: Good afternoon, Your Honor. Bruce 21 Reinhart on behalf of myself. 22 THE COURT: Good afternoon. Anyone else that's going 23 to be participating as an attorney? 24 All right. We have a number of matters to go over 25 today. I thought the first thing I should do is figure out 561-835-0220 EFTA01122991 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 4 of 113 4 1 who's going to be participating in the proceedings. So I think 2 I should deal with the intervenors' motions first before we get 3 to any of the substantive motions. 4 So, Mr. Reinhart, why don't I hear from you first. 5 MR. REINHART: Good afternoon, Your Honor. 6 THE COURT: Good afternoon. 7 MR. REINHART: Let me start by saying I don't want to 8 be here and I shouldn't be here but I feel like I have to be. 9 What is pending before you today is a motion by the plaintiff. 10 to address what they purport to be violations of the Crime 11 Victims' Right Act by the government. However, buried in tha: 12 motion, for reasons that escape me to this day, are allegation.:, 13 that I, who am not a party to this litigation, have never beer 14 counsel in this litigation and was minding my own business, 15 have now been alleged to have violated the Department of 16 Justice's regulations and the Florida Bar rules. 17 If you look at the face of the motion, it's clear 18 that there's absolutely no reason for that to be in the motion 19 other than it's a personal attack for the purpose of harassment 20 and abuse. To my knowledge, these allegations have never been 21 sent to the Florida Bar, even though Mr. Edwards, as a member 22 of the bar, would have an obligation to report them if he 23 believed they were true. But he hasn't. They have never been 24 reported to the Department of Justice, even though there are 25 civil and criminal sanctions, if, in fact, they believed it was 5 61-8 35-022 0 EFTA01122992 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 5 of 113 ti 1 true and they believed I did what they said I did. 2 Rather than putting these allegations into that sot: 3 of a forum, where I would have a chance to respond and the 4 investigation would be confidential and I could clear my name 5 in private, they've thrown them into this litigation in a 6 public pleading and now they say I shouldn't be allowed to 7 respond to it. 8 THE COURT: Well, haven't you really responded to it? 9 MR. REINHART: Judge, I've said what I want to say 10 but there's been no finding. There's been no -- frankly, 11 there's been no inquiry why in the first place they did what 12 they did, and I think that's really the issue before the Court 13 today. It's not the merits of whether what they say is true or 14 not true. It's not, but that's not the issue for you today. 15 The issue is whether the Court is going to sanction this sort 16 of behavior and whether we're going to have a legal system 17 where I could stand here in a commercial litigation case and 18 put in a pleading that my neighbor is a tax evader or that th 19 guy down the street is cheating on his wife. I mean, we have 20 rules of court that are supposed to limit the facts at issue to 21 the facts at issue. And if we start letting people simply make 22 ad hominem attacks outside of the four corners of the case, the 23 Court can't allow that. 24 So what the Court ought to do, most respectfully, in 25 this case, is to -- whether you allow me to intervene and 561-835-0220 EFTA01122993 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 6 of 113 6 1 pursue it myself or whether you do it on your own, you ought to 2 convene some sort of a proceeding and make the plaintiffs 3 justify why they put these allegations in this pleading when 4 they so clearly don't belong there and what, if any, 5 investigation they did to support them. And that's what I'm 6 asking you to do today is to simply convene that process, and 7 if they complied with the rules of the court and they did their 8 sufficient investigation, then the proceeding will show that. 9 And if they were reckless and they were malicious and they did 10 it just because they could, they ought to be sanctioned for it, 11 and the Court ought to send a message that you're not going to 12 tolerate that sort of behavior. 13 So, Judge, in short, that's what I'm asking you to 14 do, either exercise your discretion under Rule 24(b) to allow 15 me to be a permissive intervenor and pursue those allegations 16 myself, or to exercise your authority under Rule 11 to 17 sua sponte issue an order to show cause and convene that 18 proceeding. 19 THE COURT: If I let you intervene to try and clear 20 your name from what you consider a slanderous or libelous 21 attack, aren't I essentially inviting anyone who has a 22 slanderous or libelous or defamatory statement made against 23 them in litigation, inviting them to come in and intervene in 24 court and have the court conduct a mini-trial on whether or not 25 the allegations are true and -- I mean, I'm basically going to 5 61-8 35-022 0 EFTA01122994 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 7 of 113 1 open up the legal system to anyone who feels offended by 2 something that's said in court to come in and start 3 mini-lawsuits within a lawsuit. 4 I'm a little concerned about, you know, opening thr 5 door to that kind of a process. 6 MR. REINHART: And I understand that, and I agree. 7 However, first of all, this is permissive -- I'm requesting 8 permissive intervention under Rule 24. So in the first 9 instance, you have the discretion to be the gatekeeper in tha: 10 instance, not to let everybody in. I'm not saying I have an 11 absolute right to be here. I'm saying you have the discretion 12 to allow me to be here and to argue these points. So that's my 13 first response, is the Court can act as a gatekeeper. And 14 specific to the facts here, all you have to do is look at the 15 face of the pleading to realize that these allegations have 16 nothing to do with this cause of action. It's not even close. 17 I would think in another case when the Court might 18 look at the face of the pleading and say, well, I can 19 understand why this might be here, you can exercise that 20 gatekeeping function. In the alternative, Judge, I'm not 21 asking you to let everybody in. I'm asking you, as the Coln. , 22 to police your own courtroom and issue an order to show cause 23 for behavior that's occurred in front of you that at least on 24 its face is improper. And that's certainly a proper function 25 for the Court. Again, that doesn't set a precedent that 5 61-8 35-022 0 EFTA01122995 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 8 of 113 P 1 anybody who wants to complain can complain. It's the Court 2 policing its own backyard. 3 THE COURT: All right. Thank you. 4 Who wants to respond? Mr. Edwards? 5 MR. EDWARDS: Thank you, Your Honor. Your Honor, a:: 6 you recognized from our pleadings, we feel that this particular 7 motion serves no purpose but to delay and prejudice the 8 plaintiffs from achieving justice. As you know, we represent 9 two victims of many victims of molestation by Jeffrey Epstein, 10 and there's one issue here and that's whether or not the Crim 11 Victims' Rights Act and their rights under that act were 12 violated. 13 First, we don't believe that Mr. Reinhart has 14 standing to make the arguments or 15 THE COURT: Well, who has standing to make the 16 arguments other than the person that you attacked in your 17 motion? 18 MR. EDWARDS: Well, a nonparty in this proceeding 19 does not have standing to make a Rule 11 sanction motion. So 20 he's asking for -- 21 THE COURT: He's asking to come into court so he can 22 seek that kind of relief. 23 MR. EDWARDS: That's the kind of satellite litigation 24 we think should be avoided here. In fact, the case law is 25 clear that permissive intervention, if denied, is virtually 5 61-8 35-022 0 EFTA01122996 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 9 of 113 1 never overturned on appeal because we don't want to encourage 2 this type of satellite litigation. 3 A Rule 11 standard, as we know, is an objective 4 standard and the analysis is whether a reasonable attorney in 5 like circumstances could believe that his actions were 6 factually and legally justified. 7 We believe there was a bad deal that went down We 8 have circumstances here that we are still trying to figure ou: 9 how it happened and why it happened, and the circumstances that 10 we had before we put them into these pleadings is simply that 11 Mr. Reinhart was a U.S. Attorney from 1996 through 2008; yet on 12 October 23rd, 2007 -- 13 THE COURT: We don't need to go over all the facts 14 again. I know what the facts are. I know what you said in 15 your pleading. I know what Mr. Reinhart said in response. And 16 I don't -- I'm not here to decide whether there was or was no. 17 a bad faith allegation. I'm here to decide whether or not I 18 should allow Mr. Reinhart into the proceeding in order to 19 litigate that whole issue. 20 MR. EDWARDS: And we're asking that you deny that 21 motion. If it's granted, we would like to take discovery on 22 that matter, including his deposition. 23 THE COURT: All right. Thank you. 24 Mr. Lee, do you have anything you wanted to say? 25 MR. LEE: Yes. Thank you, Your Honor. We did not 5 61-8 35-022 0 EFTA01122997 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 10 of 113 IL 1 oppose Mr. Reinhart's motion. We basically view this as 2 matter between the petitioners' counsel and Mr. Reinhart. 3 THE COURT: All right. At this point, I'm going to 4 reserve ruling. I'm not going to -- I'm kind of reluctant tm 5 grant the motion, but I'm going to give it some further 6 thought. There's no need to have a ruling on that today for 7 purposes of Mr. Reinhart's concerns. So I'll reserve ruling. 8 All right. Let me hear from Mr. Black on the 9 intervention by the attorneys. 10 MR. BLACK: May it please the Court, and good 11 afternoon. 12 THE COURT: Good afternoon. 13 MR. BLACK: We have filed -- the three lawyers who 14 previously represented Mr. Epstein have filed for our right to 15 intervene under Rule 24(a) as an intervention of right becaus 16 our issue relates to the property or the transaction. 17 THE COURT: Are you saying you have is it as a 18 matter of right or -- 19 MR. BLACK: Yes. 20 THE COURT: permissive intervention? 21 MR. BLACK: No, as a matter of right. I just have 22 few cases to cite to the Court. 23 In Chiles versus Thornburgh, it's an Eleventh Circuit 24 case, 1989, 865 F. 2d 1197, the court says, "The Supreme Cour' 25 has held that an interest under Rule 24(a)(2) means a 561-835-0220 EFTA01122998 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 11 of 113 1 1 'significantly protectable interest.'" 2 The Eleventh Circuit has gone on and In Re: Grand 3 Jury Matter, which is 735 F. 2d 1330, to say that -- it was a 4 motion to intervene. The district court disallowed it. It 5 went up to the circuit. It was remanded, and the court says: 6 We have recognized that a district court should allow 7 intervention by a client in the first instance as soon as the 8 attorney/client privilege issue is raised. 9 That was a grand jury proceeding dealing with a 10 client seeking to protect his attorney/client privilege, and 11 the court held that intervention was as a matter of right. 12 Now, that obviously was a criminal investigation. 13 In terms of the -- on the civil docket, this court 14 decided in El-Al Residences v. Mt. Hawley Insurance, which is 15 at 716 F. Supp. 2d 1257, an opinion by Magistrate Judge 16 McAliley, in which he says that the law in this circuit and 17 others is clear that this court must allow intervention by a 18 client in the first instance as soon as the attorney/client 19 privilege is raised, citing cases. Colorable claims of 20 attorney/client and work product privilege are a textbook 21 example of an entitlement to intervention as a matter of right, 22 and citing particular cases. 23 THE COURT: Now, let me ask you about that question 24 of privilege. As I understand your motion, you're claiming 25 that documents that were exchanged between yourself and the 561-835-0220 EFTA01122999 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 12 of 113 12 1 other attorneys representing Mr. Epstein and the United Stater 2 Attorney's Office and maybe the State of Florida I don't 3 remember if the -- 4 MR. BLACK: It is just the United States Attorney, 5 Your Honor. 6 THE COURT: Okay. The United States Attorney. 7 During the negotiations that resulted in the non-prosecution 8 agreement are somehow work product, am I correct? 9 MR. BLACK: Yes, sir. 10 THE COURT: Okay. How can a letter between you and 11 your co-counsel and an adversary in a criminal prosecution be 12 considered work product, if it's given to the adversary? 13 MR. BLACK: Yes, sir, and I am happy to answer that 14 question. In order to do so, I have to give the Court some 15 background as to the duties and functions of lawyers as they 16 are of this date in our sentencing system, under the guidelines 17 system and under the particular rules, not only of the court 18 but of the ethical rules of the ABA and the Florida Bar and 19 rules issued by the courts. 20 To begin with, the Supreme Court has recognized fol 21 long time that plea bargaining is an essential part of the 22 administration of justice. It all goes back to the Santobellc, 23 case. That was 40 years ago. The world has changed 24 significantly since then. 25 I just looked at the statistics. The last year 561-835-0220 EFTA01123000 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 13 of 113 13 1 could find in 2005, 87 percent of all federal criminal cases 2 were resolved by a guilty plea and 3.9 percent were resolved by 3 a trial. We've turned into a system of guilty pleas rather 4 than a trial system. And because of that, the courts have pu: 5 a lot of duties and obligations on lawyers dealing with this 6 plea bargaining process. And as a result of that, the courts 7 and the rules have added sanctions -- excuse me, safeguards to 8 protect us because of communications made during the course c: 9 this plea bargaining process. And I think that is really wha: 10 we trying to get to here. There are safeguards that have been 11 in effect since -- for almost 80 years. And there's a case, 12 United States v. Herman back in the seventies from the Fifth 13 Circuit, saying that the -- the old Fifth Circuit, that we have 14 recognized a type of immunity for any statements made during 15 the course of plea bargaining. And then the Supreme Court and 16 Congress enacted Rule 11(e)(6), which became Rule 11(f), and, 17 of course, now refers us to Rule 410. So those rules provide 18 safeguards. What they do is they say if you engage in the plea 19 bargaining process, there is an immunity for the statements 20 that are made. 21 Any statements that relate to the plea bargaining 22 process are immunized. They don't use the word "immunization" 23 but they make it clear that that's the type of protection or 24 cloak that's given to these kind of communications. 25 THE COURT: You're talking about inculpatory 561-835-0220 EFTA01123001 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 14 of 113 14 1 statements, aren't you? 2 MR. BLACK: Any statement; any statement made during 3 the course of plea bargaining. Rule 410 speaks, by the way, of 4 civil and criminal, and it says nothing about incriminating or 5 inculpatory or admissions of guilt. Any statement made during 6 the course of the plea negotiating process is given a type of 7 immunity. 8 THE COURT: I thought that rule relates to admitting 9 statements in evidence during the course of a trial; not that 10 it's a privileged statement that can never be disclosed. Am I 11 incorrect about that? 12 MR. BLACK: Well, I don't -- I'm not -- that's a very 13 good question that we have struggled some with. What are the 14 obligations of, for example, the United States Attorney when 15 they receive communications from defense counsel under Rule 1_ 16 and under Rule 410? Under Rule 11, they cannot even make 17 derivative use of it so they couldn't take that information and 18 give it to the FBI, for example, to continue investigating. 19 I don't believe that they could give to it third 20 parties. I think it would be a violation of the rule to use it 21 in any way other than in determining the type of plea that they 22 would offer to a defendant. 23 Beyond that, I do not believe that it can be used for 24 any purpose by the government, and I don't believe that anybody 25 could use it for any purpose. But even so, in this case, the 561-835-0220 EFTA01123002 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 15 of 113 1 purpose the plaintiffs want for this is to use it in 2 litigation. So we don't have to worry about if they're going 3 to disseminate it to the media or use it to write a book, or 4 what have you. They intend to use it as evidence in this 5 proceeding. So I don't know that we need to necessarily 6 address any other kinds of uses of this material. 7 THE COURT: Is this material -- first of all, how 8 does -- how do the plaintiffs in this case know about it? 9 Don't they already have it in their possession? 10 MR. BLACK: No. They have obtained the government 11 responses and communications to us. The courts have 12 redacted -- or the government has redacted any of our 13 communications to the government. Now, there are extensive 14 communications. I don't have it here, but my folder is about 15 this thick and I have never been in a case that has had a— 16 much, particularly written communication, from defense counsel 17 to the government as this case has. 18 We have discussed with them a panoply of things. 19 It's the classic opinion work product that we talk about, wha: 20 the statutes mean, what the import of the statutes are, what 21 the cases are, what the discretion of the Attorney General is. 22 We discuss federalism, the differences between state and 23 federal law enforcement; whether or not the government should 24 proceed with this case because of various policy reasons. This 25 is classic opinion work product that we send to the government. 561-835-0220 EFTA01123003 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 16 of 113 11 1 Now, I know what the Court's ultimate question is: 2 Well, if you send it to the government, why should I give it 3 any kind of confidentiality or privilege? The reason I'm going 4 through this is that we criminal lawyers know that today 5 anything that we send to the government is under this cloak o 6 a type of immunity; that it cannot be used for anything. The 7 government cannot use it in their case. They can't use it in 8 their investigation. They can't use it for anything other than 9 the purpose for which we give it to them, and that's to 10 determine whether or not we can come to a plea negotiation 11 And one of the policy decisions here, and this is why 12 I believe that a privilege applies, is that if the Court should 13 say a civil plaintiff could obtain our communications with the 14 government, in which we discuss everything in the world about 15 this client, and use it in a civil case against the client, all 16 this is going to do is to begin to prevent us from having those 17 kind of communications. And all these cases about plea 18 bargaining say that the most important thing is to have open, 19 honest and frank discussions between the parties to see if any 20 kind of agreement can be reached, and since you have these open 21 and frank conversations you don't have to worry that these 22 materials can in any way be used against your client. 23 THE COURT: All right. Do you have any cases that 24 address this principle in the context of -- similar to what we 25 are doing, with where someone was trying to get this kind of 561-835-0220 EFTA01123004 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 17 of 113 1 information in a civil case? 2 MR. BLACK: I have never seen a case, a civil case, 3 in which a third party plaintiff has been able to obtain 4 letters and communications and briefs of defense counsel sent 5 to a prosecutor in order to seek a plea bargain. There is no 6 such case. 7 THE COURT: And what cases are you relying on for the 8 proposition that these are cloaked with some type of privileg 9 of non-disclosure? 10 MR. BLACK: Yes, sir. I would rely on United State 11 versus Herman, which is 544 F. 2d 791. That's a Fifth Circui - 12 case of 1977. And, of course, the classic case is Santobelle. 13 For some reason I don't have it right here in my folder, 14 although I've got it right here, I believe, which is United 15 States Supreme Court at 404 U.S. 257. 16 So those talk about the safeguards. I just wanted to 17 add two things to this, after I pick up my notes. The 18 courts -- in addition to encouraging plea bargaining -- issued 19 a series of opinions starting in the late 1990s, starting with 20 the Second Circuit, moving to the Ninth Circuit, and now all 21 the circuits do this, in which they say that defense lawyers 22 are ineffective and commit malpractice if they do not 23 communicate with the prosecutor in seeking a plea bargain. 24 There's one case, United States v. Leonti, which is 25 Ninth Circuit case, which says that you not only have to 561-835-0220 EFTA01123005 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 18 of 113 1 communicate with the prosecutor, you have to go with your 2 client during the briefings. You have to keep them advised 3 to what your client is doing and you have to follow this all 4 the way through the end. So the courts put an obligation cn 5 to follow through on this. 6 Now, to get to the work product privilege 7 THE COURT: Before you move on -- 8 MR. BLACK: Yes, sir. 9 THE COURT: -- I don't remember you citing thes. 10 cases or making this argument in your brief. Did I miss it or 11 is this a new twist on what you've -- based upon my question to 12 you? Or is this a new argument that you're raising that you 13 didn't raise before? 14 MR. BLACK: Well, in our -- we filed a motion for 15 intervention and generally set forth what we I intended to do, 16 and the plaintiffs then responded saying that, we object to 17 intervention but request the right to brief whether or not the 18 work product privilege applies if we're granted intervention. 19 So we're at the stage of intervention not at the time 20 of developing the scope of what the privilege is, but the Court 21 asked me, you know, obviously what the bottom line is. But I 22 think that the only real issue here is intervention. I'm happy 23 to discuss, you know, the contours of the privilege and why it 24 applies in this case. 25 THE COURT: So you're saying -- your position at this 561-835-0220 EFTA01123006 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 19 of 113 19 1 point is, I've made an assertion of privilege; I as -- just on 2 that assertion alone, without regard to the merits of whether 3 the documents are or are not privileged, your mere assertion o: 4 the privilege requires me to let you in in order to try and 5 defend that claim? 6 MR. BLACK: Well, I don't think it's quite that cut 7 and dry. I have made -- I have asserted the privilege. I have 8 to have some basis for it. In other words, I couldn't just 9 make some frivolous comment and say, you know, there's an 10 attorney/client privilege or this or that. I think I have to 11 make some statement that there is some good faith basis for 12 saying this. And in our papers, we did this. 13 I'm happy to say more, but I think there's certainly 14 enough here for the Court to say that it is a matter that is of 15 serious concern and that we ought to be able to intervene in 16 order to address it with the Court. Because if we don't 17 address it, it will be lost. 18 THE COURT: All right. So, again, I'm trying to make 19 sure I didn't miss something in the papers. As I understood 20 your moving papers, you claim that these are work product 21 privileged documents or there was some grand jury material 22 involved in this. 23 MR. BLACK: Yes. There is some 6(e) material as 24 well. 25 THE COURT: All right. And, again, maybe I missed it 561-835-0220 EFTA01123007 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 20 of 113 20 1 in all the materials I had to go through for today, but did you 2 make the claim in your papers that it's work product because 3 part of the attorney -- criminal defense attorney's 4 responsibility is getting into plea negotiations and there'-, 5 this privilege of communications with the prosecutors in 6 dealing with plea negotiations; was that line of -- 7 MR. BLACK: Yes. 8 THE COURT: -- reasoning made? 9 MR. BLACK: Right, because that's all these papers 10 are. We said it's privileged because of these 11 communications, because of the importance of keeping open and 12 frank communications, and that it fits under the privilege. 13 THE COURT: I'm sorry. I didn't mean to interrupt 14 you. What else did you want to say? 15 MR. BLACK: All right. The other thing that I wanted 16 to mention is that there are the restatement of the law 17 regarding lawyers in the latest -- from the American Law 18 Institute, used as an example under the purpose of 410, where 19 party actually sends documents to the government to examine 20 under a limited -- under confidentiality and limited use, and 21 the American Law Institute says that does not waive the work 22 product privilege. 23 The difference -- I don't want to get too deep into 24 it right now, but the difference between the two is you can 25 give work product to other people and not waive its type of 561-835-0220 EFTA01123008 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 21 of 113 1 work product; whereas you do in the attorney/client privilege. 2 As soon as you give anything under the attorney/client 3 privilege to a third party, you waive it, but not under work 4 product. If it still has some protection associated with it, 5 the question is, under work product, did you give it to people 6 just to use however they want or was there some limitation on 7 it? And what's important here is the things that were sent to 8 the government -- and while we were adversaries at the time, 9 although we no longer became adversaries -- it was under the 10 protections that were given to these materials. 11 And I would -- there's one case I would analogize to, 12 although it's not exactly, obviously, the same. Judge Marcus 13 decided this case dealing with an American Airlines Crash neat 14 Cali, Colombia and American Airlines was part of a program 15 where its pilots could report FAA violations to them and to the 16 FAA and it was considered confidential. 17 Judge Marcus, while he was on this court, said that 18 under Rule 501 -- even if you don't find any of these other 19 privileges, under 501, where you can accept common law 20 privileges, he said, I would find a limited common law 21 privilege for a reporting function like this because it is so 22 important to prevent airline disasters that I think that thee: 23 things ought to be privileged to facilitate open and frank 24 discussions between the pilots and the FAA, and what have you, 25 because it's too important. And, certainly, this fits under 561-835-0220 EFTA01123009 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 22 of 113 1 that same type of a rubric. 2 If we have a problem with work product, I think tha: 3 we can find a common law privilege of communication here 4 because of the importance given to plea negotiations that would 5 keep these out of the hands of the plaintiffs who intend to use 6 it against our clients. 7 So I think for a number of reasons this court should 8 allow this intervention. I don't think now is the time to make 9 the decision or the ultimate decision. But I would say this: 10 If there's any kind of balancing here, the importance of 11 protecting communications in plea bargaining today is very 12 important. It's important to this court, to all the courts 13 dealing with trying to resolve criminal cases. And all the 14 cases say that's something that ought to be encouraged. 15 The plaintiffs, who have already filed for summary 16 judgment, who have said numerous times they have all the 17 evidence they need, certainly have a very low, if any, need for 18 anything from us to try to prove their case. So if there's any 19 kind of a balancing test here, I think that it certainly goes 20 in favor of protecting these materials. 21 THE COURT: What do you think in these materials is 22 protected under Rule 6? 23 MR. BLACK: I think that all the materials that the 24 plaintiff is requiring are -- oh, under 6(e)? 25 THE COURT: Yes. 561-835-0220 EFTA01123010 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 23 of 113 23 1 MR. BLACK: Under 6(e), what happens is that in 2 number of the letters we discuss materials that we have been 3 shown or know of, like names of witnesses, names of victims anc 4 what have you. That goes back and forth. That is obviously 5 grand jury material. Now, I can't say that there's a large 6 amount of that. There is some discussion of those things in 7 these letters, but I wouldn't say that it's more than 8 10 percent of them. The rest of them are just all the lawyet 9 talking about the law and that type of thing. 10 THE COURT: And what standing would you have to 11 complain about grand jury material being released? 12 MR. BLACK: I think that any officer of the court has 13 standing to complain about the dissemination and violation -- 14 of grand jury materials in violation of 6(e). I don't know 15 that anybody needs a particular standing for that. 16 THE COURT: I mean, if the government I don't know 17 what the government's position on that is. But if the 18 government isn't concerned, you think you can step in and sal., 19 hey, you're not honoring your obligations under 6(e); I'm going 20 to step in? 21 MR. BLACK: Actually, there are times when we do 22 that. For example, if a government agent should disseminate 23 grand jury materials to the news media, there have been times 24 when we have made complaints for violations of 6(e). And I'vt 25 even -- I have filed letters with the Department of Justice to 561-835-0220 EFTA01123011 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 24 of 113 24 1 the Attorney General complaining about prosecutors, and I won't 2 mention any names -- not in this case -- who have disseminated 3 6(e) material in violation of the rules. So I think that any 4 party can make a complaint. 5 THE COURT: I assume you've done that when it 6 adversely affected one of your clients? 7 MR. BLACK: Well, obviously, because -- 8 THE COURT: Not because it -- just to protect the 9 system? 10 MR. BLACK: Your Honor is exactly right. This is a 11 highly adversarial system and the only reason I'm objecting to 12 it now is because it's beneficial to my client. I'm not doing 13 it out of any eleemosynary intent 14 THE COURT: Thank you, sir. 15 MR. BLACK: Thank you, Your Honor. 16 THE COURT: Mr. Edwards. 17 MR. EDWARDS: Your Honor, we are asking that 18 Your Honor deny the motion to intervene in this case. 19 Mr. Black and these attorneys have not intervened on behalf e: 20 Mr. Epstein, who may actually have an interest. They have no 21 stake in the outcome of this case. There is no case that 22 stands for -- 23 THE COURT: Well, I mean, if they are right that this 24 is work product material -- and maybe that is not something 25 that I can decide now, but to the extent that it might arguably 561-835-0220 EFTA01123012 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 25 of 113 2!-) 1 be work product material, don't they have standing to protert 2 their own work product? 3 MR. EDWARDS: The cases that Mr. Black cited 4 indicated or held that they needed a colorable argument for 5 work product. You can't just come in and claim work product. 6 And there is a plethora of cases that stand for the 7 proposition, and has only been followed everywhere throughoL. 8 the country, that voluntary disclosure of work product 9 information to an adversary waives work product. 10 The other rules of evidence that Mr. Black referred 11 to, 410, don't apply to this case. That is a rule of 12 admissibility rather than discoverability. They're not being 13 entered against Mr. Epstein in this case. They are being 14 entered, if at all, against the government. 15 And just to correct the statement that he made than.. 16 the government redacted the portions of the emails and 17 correspondence from Mr. Epstein's attorneys to the government, 18 that's not how this happened. In previous litigation, it wa 19 ordered that all of it be turned over to us from Mr. Epstein, 20 and they unilaterally made the decision to redact the 21 information from their attorneys going to the government. And 22 prior to the order that granted us permission to receive this 23 correspondence, all of these arguments, the work product, th, 24 410 argument, all of them were before this court and all of 25 them were overruled. We've been down this road before. We 561-835-0220 EFTA01123013 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 26 of 113 1 would argue that it's the law of the case at this point, sinc 2 these are similar issues, and there is no colorable argument o: 3 work product at this point, and the intervention should be 4 denied. 5 THE COURT: All right. The cases that you're relying 6 on and that I, at least coming in here, was thinking about that 7 when you disclose something to an adversary it's no longer a 8 work product, are you familiar with the cases in the context of 9 plea negotiations where there's an exception or there's some 10 different type of privilege that applies in plea negotiations 11 between the government and a criminal defendant? 12 MR. EDWARDS: We have read every case in his brie:, 13 as well as any others on this subject, and can't find a sing! 14 case out there that stands for that proposition. It just 15 doesn't exist. So the cases that he's spoken about don't say 16 that there is this automatic cloak of immunity between plea 17 discussions. In fact, there are cases talking about plea 18 discussions, and there isn't that. 19 This doesn't come up that much because this is 20 unique scenario where the best evidence of how the victims' 21 rights were violated, when and by whom, is going to be found in 22 the correspondence between the government and Mr. Epstein, as 23 we have already seen from the half of the conversation that 24 we've been able to see. 25 THE COURT: Let me ask you this, and this kind of 561-835-0220 EFTA01123014 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 27 of 113 1 gets to the merits of the argument, which I don't really war - 2 to discuss right now, but do you really need the defense 3 lawyers' correspondence or statements to the government 4 attorneys in proving up whether or not the government violated 5 the Victims' Rights Act, assuming I'm going to find that it's 6 not -- it doesn't start from the point of indictment; the 7 rights are triggered earlier than that? Don't you have enough 8 information, without their comments in there, trial strategies 9 that may have been revealed to the government -- it is really 10 the government's actions or inactions that you're complaining 11 about, not Epstein's lawyers' actions or inactions. 12 MR. EDWARDS: We have a lot of information but som , 13 of the information that we have are clearly responses by 14 Assistant U.S. Attorneys, and the U.S. Attorney at the time, 15 that is responding back to some letters or correspondence 16 saying, I understand that you're urging us not to tell the 17 victims certain information, but here's our problem with that, 18 and there's a back and forth. And we can never gain the 19 context of how it all came about and the rights were violated. 20 We additionally believe that this will go to the 21 heart of the relief or remedy that we are able to seek when we 22 learn the whole puzzle as to how this whole thing went on 23 behind the victims' backs, how deliberate it was and which 24 parties initiated it or caused the rights that we've claimed 25 were violated to be violated. 561-835-0220 EFTA01123015 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 28 of 113 1 THE COURT: Well, again, this is getting more to th' 2 merits. But it's the government's either actions or inaction 3 that are at issue here and not what Mr. Epstein or any of his 4 lawyers may have done either to induce or encourage or suggest 5 that the -- again, hypothetically, that they violated the 6 victims' rights under the Act. So aren't you really focusing 7 on what the government did or didn't do regardless of what 8 Mr. Epstein may have done, or his lawyers? Is that really 9 relevant? 10 MR. EDWARDS: To prove violation, yes. But the scope 11 of the remedy or relief that we are able to seek, if it is 12 ultimately to invalidate this contract between the government 13 and Mr. Epstein, and it is ultimately going to be detrimental 14 at all to Mr. Epstein, then his deliberateness in the 15 insistence that the rights of these victims were violated is 16 going to be very important when we brief the issue on remedy 17 and relief. 18 THE COURT: All right. Thank you. I want to see 1: 19 the government has anything to say before I hear back from 20 Mr. Black. 21 Mr. Lee, did you have anything to add on this? l'a 22 be curious to know the government's position regarding 23 Mr. Black's assertion that any plea negotiations, statements 24 made during the course of plea negotiations, are somehow 25 privileged and protected and therefore can't be disclosed or 561-835-0220 EFTA01123016 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 29 of 113 29 1 disseminated. 2 MR. LEE: Your Honor, on that particular issue I am 3 going to defer to my colleague, Ms. Villafana, but I would ilke 4 to note -- to invite the Court's attention, in response to 5 their motion to use correspondence and to unseal, we did raise 6 the 6(e) issue and we also raised a due process issue about 7 requiring the government to make a factual assertion that 8 somebody was guilty of a certain crime without even being 9 charged with a crime. That was raised independently of what 10 Mr. Black was asserting. So we did raise that. 11 THE COURT: Okay. I'm not sure how that -- explain 12 to me how those tie together. Your statement that -- the 13 government asserting someone may have been guilty of a crime 14 might be a due process violation, how does that relate to 15 statements made by the defense to you in the course of plea 16 negotiations? 17 MR. LEE: That's actually a separate issue that was 18 subsumed within the motion, Your Honor. The motion that the% 19 filed was a motion to unseal correspondence and to file -- 20 unseal pleadings and use correspondence in order to prove 21 violations of the CVRA. Included in that were a number ot 22 factual assertions that the petitioners claimed that we are 23 obligated to agree or disagree with in terms of presenting that 24 issue for the Court to resolve. And some of those factual 25 assertions that they suggested were true involved essentially 561-835-0220 EFTA01123017 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 30 of 113 1 assertions that Mr. Epstein was guilty of various crimes, 2 crimes that he was not charged with. 3 And so we noted that would be a violation of due 4 process principles to name somebody in such a fashion or to 5 agree to an assertion, which basically becomes our assertion. 6 And secondly, we also mentioned the 6(e) issue in so far as 7 some of these emails that were generated that touched upon 8 matters occurring before the grand jury. That was in tha: 9 motion regarding -- motion to unseal and use correspondence. 10 If I could defer to my colleague to address the issue about the 11 philosophy about the plea negotiations? 12 THE COURT: All right. Thank you. 13 MR. LEE: Thank you, Your Honor. 14 MS. VILLAFANA: Thank you, Your Honor. I'm not 15 certain that this was raised in the pleadings so this is not 16 something that I was necessarily prepared to address. 17 THE COURT: Well, if you're not prepared to address 18 it, then I don't want to put you on the spot and bind you to 19 anything you might say here, if you want some time to consider 20 it. I am really going to have to look into this issue becaus 21 I took it as a new -- a new angle. 22 MS. VILLAFANA: I think I would prefer to look into 23 it a little bit and respond in writing, if that's all right 24 with Your Honor. 25 THE COURT: All right. 561-835-0220 EFTA01123018 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 31 of 113 '1 1 MS. VILLAFANA: Thank you. 2 THE COURT: Mr. Black, did you want to say anything 3 else? 4 MR. BLACK: Yes, Your Honor. At the beginning of 5 their argument, the plaintiff tells you they do not want to use 6 the statements in any way against Mr. Epstein. At the end of 7 the argument, they say they want to use the statements as 8 remedy to vacate the non-prosecution agreement and try to hay 9 him sentenced to a longer sentence, I assume. Mr. Edwards har. 10 said that in previous times before this court. I think that' 11 more than sufficient to meet the standard that they intend to 12 use these 410 materials against Mr. Epstein to his detriment. 13 THE COURT: All right. 14 MR. BLACK: Thank you, sir. 15 THE COURT: That's a Mr. Epstein argument as opposed 16 to a Roy Black attorney argument? 17 MR. BLACK: It -- hopefully, they can't use those 18 statements against me but they certainly want to use it against 19 the client. And when we wrote the letters, we are acting for 20 the client. 21 And here is the problem, Your Honor, just to tell you 22 practically what it's like out in the field practicing criminal 23 law: If we believe that our statements in any way during this 24 plea bargaining process would end up coming back to damage out 25 clients in some way, why would we do this? Why would we go 561-835-0220 EFTA01123019 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 32 of 113 2"7 1 through this whole process of sending these briefs and letter:: 2 and interpretations of the law and discussions of various 3 offenses and how things could be arranged and the discretion 4 between the federal and the state government and all those kind 5 of things, even discussing proposed charges and all of that, 6 why would we ever engage in that if we ever thought these 7 things could come back to bite our clients? 8 All we're going to do here is going to, for no good 9 reason, put a damper on the ability of lawyers to negotiate and 10 resolve criminal cases and I believe that is against the policy 11 of these courts, and our system of justice. 12 THE COURT: All right. Thank you, Mr. Black. I'm 13 going to reserve ruling. I guess I'm going to ask the 14 government, or both sides to -- Mr. Black, did you want to -- 15 an opportunity to further develop this privilege argument on 16 plea negotiations in writing? 17 MR. BLACK: Yes, sir. I would also ask for whatever 18 time you give the government. I'll make another submission. 19 THE COURT: Why don't you make an initial submission 20 and then let the other side, both -- the other parties respond 21 to that. 22 MR. BLACK: That's fair enough, Your Honor. 23 THE COURT: How much time do you want to do that? 24 MR. BLACK: Two weeks? 25 THE COURT: That's fine. 561-835-0220 EFTA01123020 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 33 of 113 33 1 MR. BLACK: Thank you. 2 THE COURT: Thank you, Mr. Black. 3 How much time did you want, Ms. Villafana, or Mr. 4 Edwards, to respond to whatever Mr. Black submits? 5 MR. EDWARDS: Two weeks as well, Your Honor. 6 MS. VILLAFANA: Two weeks is fine. 7 MR. LEE: Two weeks would be fine, Your Honor. 8 MR. EDWARDS: Your Honor, we would ask that we 9 able to reply after the government? 10 THE COURT: Okay. So you want two weeks after 11 Mr. Black and then after the government responds? 12 MR. EDWARDS: One week would be fine. 13 THE COURT: After? 14 MR. EDWARDS: The government responds. 15 THE COURT: Okay. Mr. Black, two weeks for the 16 government and a week for you? 17 MR. EDWARDS: Sounds great. 18 THE COURT: Okay. Mr. Black, are you going to want 19 to file a reply or are you going to wait and see? 20 MR. BLACK: I'll see. Why don't you give us three 21 days for a reply. 22 THE COURT: Okay. How about a week, all right? 23 MR. BLACK: Thank you. 24 THE COURT: All right. Let's talk about some of 25 these other procedural motions that don't delve into the real 561-835-0220 EFTA01123021 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 34 of 113 34 1 merits. Let's talk about the plaintiffs' motion to have their 2 facts accepted because of the government's failure to contes' 3 any of the facts. Who's going to argue that? Mr. Edwards? 4 MR. EDWARDS: Yes, Your Honor. 5 THE COURT: All right. Now, let me kind of just 6 start off and try and focus the inquiry here. 7 MR. EDWARDS: Okay. 8 THE COURT: I read your motion. The motion you 9 filed, the ultimate motion on whether or not there's been a 10 violation of your clients' rights, it's not labeled a summary 11 judgment motion. It's not sworn to. It doesn't have any 12 affidavits. It doesn't -- no depositions, request for 13 admissions, nothing that you would ordinarily rely upon in the 14 context of a case dispositive motion. As far as I know, 15 there's been no attempt to conduct discovery; no request for 16 admissions; no document production; nothing in the ordinary 17 in an ordinary civil case that would be done in order to get 18 the other side to admit to certain facts. 19 It seems like you're saying, well, we've talked to 20 them back and forth. We've asked them to admit things. They 21 haven't admitted anything. They refused or we can't come to 22 some agreement, so admit everything we say in our motion and 23 use it against them. How does that work when there seems to 24 me, whether you consider this an aspect of an offshoot of a 25 criminal case or a separate civil case, that there is a means 561-835-0220 EFTA01123022 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 35 of 113 1 or a method by which you could have, if you wanted to, asked 2 for the opportunity to conduct discovery or send out discovery 3 requests and get them to either admit or deny certain things? 4 Can you just negotiate, they say, I'm sorry, we're 5 not admitting anything, and come into court and say, we tried; 6 they won't admit anything, so now you've got to everything 7 is deemed admitted against them? I mean, how does that work? 8 MR. EDWARDS: Your Honor, let me confer with 9 co-counsel for one second because I believe there was some 10 attempt to do some discovery. 11 We made an initial disclosure under Rule 26, and the 12 response back that we got from the government was that this is 13 not a civil case because the Crime Victims' Rights Act is nr'' 1 14 civil case. And we said, okay, well, then we get certain 15 information from you if it's a criminal case. And they said, 16 well, if it's a criminal case, it's United States versus 17 somebody else. So it's not a criminal case. So we are kind of 18 stuck in this middle ground and we need -- similar to a summary 19 judgment motion, we need an ultimate finding on a legal issue, 20 which is a finding of violation of the Act. So we've been kina 21 of stuck in limbo not knowing what's really available to us in 22 terms of how we go about getting discovery. 23 So we did negotiate with them for a long time over 24 facts, and they finally said, all the facts are irrelevant. 25 And if they're irrelevant, then what's the harm in accepting 561-835-0220 EFTA01123023 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 36 of 113 1 them as true? And if they want to insert the one fact that 2 they believe is relevant, Jeffrey Epstein was not indicted, 3 then we agree. 4 THE COURT: Well, I presume their position is, the 5 rights under the Act don't kick in or aren't triggered until 6 there's an indictment, and if I accept that proposition then it 7 doesn't make any difference what the facts are. But if I don't 8 accept that proposition, then I have a feeling they're going to 9 say that all the facts do make a difference. I don't want to 10 speak for them but I presume that's going to be their approach. 11 MR. EDWARDS: Well, there -- 12 THE COURT: If I rule against them on the indictment 13 is the triggering event, they're going to want to contest. 1 .7,- 14 of these facts. 15 MR. EDWARDS: Well, there are certain undeniable 16 facts that are in the record that they will not contest, which 17 based on those facts alone the -- the finding of a violation, 18 we could reach that decision and it would be ripe for tha- 19 finding. It's not ripe until we have all of the circumstancc 20 and all of the facts. But just given those -- the information 21 that we have in the record, such as when the non-prosecution 22 agreement was signed, the confidentiality provision, when the 23 letters were sent to the clients, when the plea negotiation 24 went down, the fact that it was a year after the 25 non-prosecution agreement that disposed of the clients' right 561-835-0220 EFTA01123024 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 37 of 113 3 1 before the clients knew about the non-prosecution agreement and 2 were receiving letters telling them to be patient, this is a 3 long process, after their rights were already gone, is enough. 4 And those are not things that are being contested. 5 So we could at least have had a meaningful discussion 6 as to which of these other facts, in addition to the fact tha - 7 Mr. Epstein was not indicted, that they would agree upon. And 8 if they're saying that it's irrelevant, it goes back to my 9 original argument, what's the harm then? We can get all the 10 way to making the decisions if we have a bunch of -- and 11 Your Honor can make the legal determination what weight to give 12 various facts, whether they're relevant or not relevant. 13 THE COURT: But that's assuming they're all true for 14 purposes of the proceeding. I guess my question to you is: If 15 you are uncertain or the government is uncertain as to what 16 kind of a case this is, is it an offshoot of a -- or ancillary 17 to a criminal case or is it a separate and independent civil 18 case or some hybrid, and you wanted to get them to admit 19 certain facts, you could have filed a motion and asked for some 20 assistance from me and said, hey, this is what we're trying to 21 accomplish. They won't cooperate. Can we employ some 22 discovery mechanisms in order to limit or narrow the disputed 23 issues? 24 I think whether it's criminal or civil, I probably 25 would have discretion to say, engage in some discovery if 561-835-0220 EFTA01123025 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 38 of 113 1 that's going to simplify things or bring this to a head. But 2 you just filed a motion and say, they're stuck with everything 3 we say in our motion. 4 MR. EDWARDS: Well, we believe that this did fall 5 under local Rule 7.5, and assuming that it does, then any 6 any facts that are uncontroverted would be deemed admitted and 7 accepted as true. 8 THE COURT: So you're saying this is a summary 9 judgment motion? 10 MR. EDWARDS: Yes. 11 THE COURT: You didn't call it a summary judgment 12 motion. 13 MR. EDWARDS: I understand. 14 THE COURT: You didn't file -- you didn't file a 15 statement of undisputed facts. 16 MR. EDWARDS: We did file a statement of undisputed 17 facts. We filed 53 undisputed facts. 18 THE COURT: You did? 19 MR. EDWARDS: We filed -- within our motion for 20 finding violations of the Crime Victims' Rights Act, we filed 21 53 undisputed facts and attached, as exhibits, A through K. 22 THE COURT: Okay. I see. Let me go to that section. 23 Okay. 24 MR. EDWARDS: Various pieces of the record. And we 25 have agreed with the government that we would agree to that 561-835-0220 EFTA01123026 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 39 of 113 39 1 additional fact that Mr. Epstein was not indicted, and then w- 2 would start with various correspondence indicating that there 3 was a 53-page indictment prepared against him and move on all 4 the way through the plea agreement so that we could reach thr 5 determination on the violation. 6 THE COURT: All right. Well, I don't think I can 7 just accept your version of the facts, some of which are not 8 facts but are opinions and conclusions, just because the 9 government didn't choose to sit down and work out an agreement 10 with you. I think there are other ways of getting to the point 11 where you want to get. I think a discovery process is probably 12 the -- and you didn't label it a motion for summary judgment. 13 It's kind of -- so I don't think they were on notice that you 14 were intending to consider this a summary judgment motion and 15 therefore had to respond under the local civil rule and file 16 their statement of disputed material facts. 17 MR. EDWARDS: Okay. I could be incorrect but I 18 believe in their response that they referred to it as a summary 19 judgment motion. 20 THE COURT: All right. 21 MR. EDWARDS: But I could be wrong on that. Okay. 22 THE COURT: I'm going to deny that motion. Okay. I 23 think there's another way of trying to get these facts narrowed 24 and we can talk about how to do that after. 25 MR. EDWARDS: Okay. In terms of the motion for 561-835-0220 EFTA01123027 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 40 of 113 1 finding a violation, is at least the information that is 2 already in the record and is stipulated to, meaning the 3 exhibits that both parties agree were exhibits, is that 4 something that we are going to be permitted to rely upon fc-' 5 that motion? 6 THE COURT: Well, let's wait until we get to that 7 motion and then we'll talk about it. 8 MR. EDWARDS: Thank you, Your Honor. 9 THE COURT: Okay. How about the motion for the order 10 directing the United States Attorney's Office not to withhold 11 relevant evidence, who wants to talk about that? Mr. Cassell. 12 MR. CASSELL: Good afternoon, Your Honor. As the 13 Court is aware, we've been trying to sort through some of these. 14 issues. The Court, I guess, is wondering about some of these 15 things, and we've been wondering as well. The one thing we 16 think is very clear is that the United States cannot sit on 17 information that's highly relevant to the plaintiffs' claims. 18 We've repeatedly asked the United States for 19 information that would support our claim both that there were 20 substantive violations of the Crime Victims' Rights Act and 21 that the appropriate remedy for this violation would be setting 22 aside the non-prosecution agreement. We've offered to provide 23 them very narrow and specific documents that we're looking for. 24 And in response, the United States Attorney's Office has taken 25 the position that it can and will withhold this relevant and 561-835-0220 EFTA01123028 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 41 of 113 41 1 useful information from the victims. So we think the legal 2 issue is starkly present: Can the United States withhold 3 information from the victims that will help them establish a 4 violation of congressionally-mandated crime victims' rights? 5 And we submit that the answer to that question must be, no, for 6 three reasons. 7 THE COURT: Why isn't this, again, sort of a 8 discovery issue? We go through a discovery process and you 9 submit specific requests for information. They either produc 10 it or object to it, and if there's an objection and they say, 11 we're not going to produce it, we have a hearing on whether or 12 not it should be turned over. 13 MR. CASSELL: So that is our third argument. Let m 14 jump right to that. The third argument we have made in our 15 brief is that this is a civil case and so we should proceed 16 under the ordinary civil rules. As Your Honor is well aware, 17 the first step in the civil rules is to make initial 18 disclosures. So we made all of our initial disclosures under 19 Rule 26 and we asked the government then to make theirs. They 20 refused. They said, sorry, we're not going to make any 21 disclosures. So we were stopped at first base. We can't, of 22 course, move to request for depositions, request for admissions 23 because we haven't even had the initial disclosures that Rule 24 26 envisions. So basically -- 25 THE COURT: But you could have asked me to interven 561-835-0220 EFTA01123029 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 42 of 113 4 1 and make some preliminary determinations as to who's right or 2 wrong about that process. 3 MR. CASSELL: And that's what we tried to do with 4 this motion. We said there should be a motion for them, and we 5 styled it, not to withhold evidence. And, of course, our third 6 argument was that the civil rules apply and they should -- lc- 7 me make clear, we're not trying to suggest that we're afraid of 8 the civil rules. To the contrary, if the Court were to enter 9 an order in a few minutes saying the civil rules apply, simply 10 proceed under the civil rules, we would be ecstatic about tha - 11 That would let us get to the bottom of this case and we would 12 be happy to move forward on an expedited basis to produce some 13 requests for admissions, maybe take a few depositions and do 14 the ordinary thing that civil rules -- the civil rules require. 15 So we're certainly not opposed to that in any way. 16 In fact, we proposed that to the government; again, only to ID 17 blocked at square one, to even go down that path. So we're 18 happy to go down that path. We hope that the Court would go 19 that way. 20 But there's one -- there are a couple of other things 21 that I think above and beyond the ordinary civil rules that 22 factor in here that are highly relevant. This is not an 23 ordinary civil case where the victims and the government are 24 supposed to be adversaries, where both sides duke it out. To 25 the contrary, Congress has passed a specific provision that 561-835-0220 EFTA01123030 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 43 of 113 43 1 mandates that the government must use its best efforts to 2 afford victims their rights. That best efforts clause then 3 suggests that, well, the government isn't entitled to try to 4 conceal things and withhold them. They have to undertake their 5 own affirmative search for information and provide it to us. 6 And here again, we think this is a very simple task. 7 They've never argued that this is burdensome. They've never 8 argued, we don't know what you're looking for. To the 9 contrary, they have said, we have information and we're simply 10 not going to produce it to you. That is simply not consisten - 11 with the Crime Victims' Rights Act, which obligates them to use 12 their best efforts to help us. You shouldn't view this as an 13 adversarial position. And this is, again, where we have come 14 to the Court to request your assistance. We would like an 15 order that says to the government, come on, comply with the 16 Crime Victims' Rights Act; use your best efforts to assist the 17 victims to receive the information that they're looking for. 18 And the last argument we make is, remember what the 19 government has already done for the sex offender in this case. 20 Our understanding is they have provided hundreds of pages of 21 information to a child molester, but we're simply asking for a 22 few documents that will now help us make our claim that there 23 have been violations of the Crime Victims' Rights Act and that 24 the appropriate remedy for that is setting aside the 25 non-prosecution agreement. We're entitled to that information 561-835-0220 EFTA01123031 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 44 of 113 44 1 no less than the defense was entitled to that information as i 2 matter of fairness. 3 Now, they say fairness, due process, that's under the 4 Constitution. We are not raising a constitutional claim. We 5 are raising a statutory claim. The Crime Victims' Rights Act 6 says that victims of crime must be treated with fairness. And, 7 again, we think this is a very simple and very stark question 8 that the Court can ask and should ask the government: How is 9 it treating the victims with fairness to allow you, the 10 government, to withhold information that will permit them to 11 show, first, that there's been a violation of the Crime 12 Victims' Rights Act and, secondly, that the appropriate remual, 13 is the remedy they're seeking to set aside the non-pros ,.mar. 14 agreement? 15 And, in fact, the cases that they cite even say tha - 16 the victims should go and seek the assistance of the government 17 when they run into situations where their rights are being 18 violated. The very first case they cite, U.S. v. Rubin, says 19 that the victims should go about conferring with the government 20 if they're trying to obtain information since, after all, it's 21 the government who is supposed to be the ally of the victims in 22 this process, not the adversaries. 23 And so for all of those reasons, the government's 24 best efforts and obligations, our right to be treated with 25 fairness, and the fact that this is a civil case and the 561-835-0220 EFTA01123032 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 45 of 113 1 ordinary civil rules apply, for all of those reasons, 2 Your Honor, we think they are not entitled to withhold 3 information from us that they well know is very helpful to us, 4 both on the liability phase of this case and the ultimate 5 remedy phase of this case. 6 THE COURT: All right. Thank you. 7 Mr. Lee. 8 MR. LEE: Thank you, Your Honor. May it please the 9 Court. Let me address the first issue about the initial 10 disclosures that the petitioners claim. Those initial 11 disclosures were given to the government in March of 2011, 12 probably about two weeks before they filed their series of four 13 motions. This lawsuit commenced in July of 2008. So while 14 these are disclosures, they certainly were initial disclosures 15 which are typically done within a few weeks of the commencement 16 of the lawsuit. 17 Your Honor, this is a case that is really kind of a 18 hybrid. It's not a criminal case in the sense that nobody is 19 being charged with a crime. Nobody is in jeopardy of going to 20 jail. But it's not completely a civil case, either. I believe 21 that the CVRA intended that most of these actions where 22 individual victims seek to have their rights enforced, they ar- 23 usually done as an ancillary proceeding to an extant criminal 24 proceeding. 25 In such proceedings, an individual victim would not 561-835-0220 EFTA01123033 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 46 of 113 46 1 necessarily have discovery rights that one would have under the 2 Federal Rules of Civil Procedure. Not only that, not every 3 civil action comes with it rights to conduct full discovery. 4 If somebody files an agency APA action, Administrative 5 Procedures Act, seeking to get judicial review of an agency 6 action, those are record reviews and you're not entitled to 7 discovery. 8 If somebody files a habeas, in order to get discovery 9 in a habeas proceeding there must be a court order. And we 10 believe that just because this is a civil action in the sense 11 that it's not a criminal action, that they're not entitled to 12 discovery. It can only be done pursuant to an order of this 13 court. 14 THE COURT: All right. Well, do you believe I don'• 15 have the discretion or do you believe or agree that regardless; 16 of whether it's an ancillary action to a criminal proceeding or 17 it's a separate and independent civil proceeding, or it's som 18 hybrid, wouldn't I have discretion to order discovery if I 19 believed it was appropriate? 20 MR. LEE: Yes, you would, Your Honor. 21 THE COURT: Okay. 22 MR. LEE: Even in a habeas, the court has broad 23 discretion. Your Honor, I would note for this, we believe that 24 the first issue the Court must resolve is whether or not any 25 legal rights under 3771(a)(1) through (8) accrued prior to the 561-835-0220 EFTA01123034 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 47 of 113 47 1 filing of a charge in the Southern District of Florida agains- 2 Mr. Epstein. That can be resolved. That's a statutory 3 interpretation question. It is a legal question. 4 The only predicate fact that is necessary for the 5 Court to engage in this analysis is to have -- to know that 6 there was no charge filed against Mr. Epstein in the Southern 7 District of Florida. There's no dispute as to that. I mean, 8 for that very reason, we believe that the discovery that the 9 petitioners claim that they need is unnecessary. 10 THE COURT: Well, I agree if I agree with you, then 11 that's the end of the case. But if I don't agree with you, I 12 have to have some way of dealing with the issue of whether or 13 not the plaintiffs' rights were violated and how we're going to 14 come to a resolution of that. So I'm now in the posture of -- 15 on the assumption, hypothetically, that I disagree with your 16 legal position and feel that there is an issue of fact as to 17 whether or not the rights were violated and how are we going to 18 resolve that factual issue. 19 MR. LEE: Your Honor, the Court would at that point 20 have the discretion, if there was good cause shown and the 21 Court believed it necessary to the resolution of the dispute, 22 to allow discovery. 23 THE COURT: All right. And I guess this is over and 24 above just discovery obligations. The plaintiffs are claiming 25 that you have some statutory obligation over and above a 561-835-0220 EFTA01123035 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 48 of 113 1 discovery obligation to produce information that would be 2 what's in your possession, out of treating them fair under the 3 statute. What's your position on that? 4 MR. LEE: We respectfully disagree. They cite Brady 5 v. Maryland, which, of course, pertains to a criminal case. 6 Brady v. Maryland is based on the due process clause, because 7 if the government is seeking to deprive somebody of their life, 8 liberty or property, they have to accord them the process tha: 9 is due. The process that is due to a criminal defendant is 10 information that is exculpatory that is in the hands of the 11 government. This is not a criminal case. 12 In order to invoke the due process clause, they have 13 to establish that there's a protected life, liberty or propert% 14 interest, outside of Brady versus Maryland. So in this case, 15 they would have to demonstrate that some liberty or property 16 interest is in jeopardy and the government is seeking to take 17 it away from them and they are accorded a certain amount of 18 process. In their view, that process is the right to hay, 19 access to this information. 20 There is no protected liberty or property interest in 21 the CVRA. And in so far as the right that they invoke under 22 3771(a)(8) about the right to be treated with fairness, there's 23 no authority that fairness includes a discovery right to compel 24 the government to produce information that might be of 25 assistance to a victim in prosecuting his or her claim that 561-835-0220 EFTA01123036 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 49 of 113 1 their rights were violated. Thank you, Your Honor. 2 THE COURT: Thank you. 3 MR. CASSELL: Thank you, Your Honor. Mr. Lee first 4 talks about the timing of this case and the time line. Let m 5 just touch on two things that I think are highly relevant. 6 Back in July of 2008, when this case first began, you recall 7 that Mr. Edwards and Mr. Lee said, Your Honor, we think we can 8 work out a set of facts so that you can then decide the case. 9 That was the agreement of Mr. Lee and Mr. Edwards. And so I 10 assisted Mr. Edwards and worked with Mr. Lee to begin working 11 on the facts, and after a few weeks we heard back from the 12 government, we've changed our mind; we no longer want to work 13 with you on the facts. 14 So at that point, as you know, we began working on 15 the civil cases, got some additional information, prepared. 16 And I have to confess maybe we didn't style it properly. Maybe 17 we should have put "summary judgment" on it or something else. 18 We weren't quite sure. But we put together 53 facts and we 19 sent them to the government before we ever presented them to 20 you and said, here are the facts. We would like to work with 21 you because we don't want to get in a squabble in front of the 22 judge when we can work together. And Mr. Lee sent me an email 23 saying, we will work with you and agree to any of the facts 24 that we think are true. 25 So we thought, great, we will move forward with tha: 561-835-0220 EFTA01123037 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 50 of 113 5.0 1 process. And then in, I believe it was February of this year, 2 we then got another about face from the government: No, we've 3 changed our mind; we're not going to work with you to stipulate 4 facts. And at that point, we were then forced to file this 5 motion. 6 Now, Mr. Lee keeps calling it a discovery motion. I 7 don't think that's the right term. Discovery motion means we 8 would be fishing around trying to find something that's useful. 9 We see the principle at stake here as being something quite 10 different. The government admits -- and you notice Mr. Lee 11 didn't deny this -- that they have information that they know 12 will be helpful to us. We're asking you to order them to 13 produce it to us. That's not discovery, let's fish around an 14 see what we can find. 15 THE COURT: What does that mean? I guess, are you 16 trying -- it seems like it's a Brady concept. 17 MR. CASSELL: Exactly. 18 THE COURT: So they're supposed to, in good faith, I 19 presume, look through their files and decide, you know, this 20 looks like something that would be helpful to the plaintiffs to 21 prove that we violated their rights, so here it is. 22 MR. CASSELL: Exactly. And let me just explain 23 why -- and notice that the government has never raised the 24 point that this is burdensome; we can't figure it out; oh, 25 gosh, there are so many files we don't know what to look at. 561-835-0220 EFTA01123038 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 51 of 113 51 1 And let me explain to you why I think they are not making tha - 2 representation. We went to the U.S. Attorney for the Southern 3 District of Florida in December and raised a number of 4 questions about this case. At that point, the U.S. Attorney 5 for the Southern District of Florida referred the matter to 6 OPR, the Office of Professional Responsibility in Washington, 7 DC, for an investigation. 8 It's our understanding that for about five months 9 there was an inquiry or an investigation into the nature of 10 this case. And then in May, we received a letter that said, 11 well, all these issues are being litigated in front of thr 12 court so we're not going to proceed any further with the 13 investigation, or the inquiry, whatever you want to call it. 14 We think there is a collection of materials, sealed 15 and wrapped in a ribbon, that they could simply hand to us 16 right now that would have basically 90 percent of all the 17 relevant information in the case. We further believe that they 18 know darn well that that information is very, very helpful to, 19 us in proving that there were deliberate violations of the 20 Crime Victims' Rights Act; second, that Mr. Epstein was 21 involved in orchestrating those violations; and, third, that 22 that would show that the appropriate remedy in this case is to 23 invalidate the non-prosecution agreement because it is an 24 illegal agreement. And yet they're refusing to provide that to 25 us. 561-835-0220 EFTA01123039 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 52 of 113 1 What is the basis that they say you shouldn't order 2 that information provided to us? They say, well, you just need 3 one fact to decide this case. As the Court, I think, is aware 4 and we may be getting into shortly, when you look at the case 5 laws you can't decide an issue like this based on just one 6 fact. You have to have some context. 7 Let me give you an example of one additional fact 8 that we think is highly relevant. The government prepared, ar. 9 we understand it, a 53-page indictment against Epstein and 10 presented that to the defense attorneys. Well, we think that 11 that is highly relevant information showing that they 12 mistreated the victims in this case. Why didn't they share 13 that with the victims? Why didn't they just share the 14 discussions about that with the victims? They were obligated 15 to do so. We think that's part of the context that the Court 16 will need. 17 Now, you notice what Mr. -- what Mr. Lee did as well. 18 He talks about the Brady principle. Let's think about what the 19 Brady principle is and why it's so important in this case. The 20 Brady principle is basically that the government wins when 21 justice is done. And the government is asking you to take the 22 that even though it has information that's highly 23 relevant to the crime victims, there's no one that can force, 24 them to turn it over to us. That is not justice. That 1_, 25 not -- 561-835-0220 EFTA01123040 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 53 of 113 53 1 THE COURT: I don't think -- I think Mr. Lee 2 acknowledged that if I ordered discovery that they would be 3 ordered to comply with -- 4 MR. CASSELL: Right. 5 THE COURT: -- discovery requests. 6 MR. CASSELL: Well, maybe then -- maybe this is, in 7 essence, an unopposed motion. I mean, he said you have 8 discretion to do it. And the only argument I heard him make 9 against you exercising your discretion to do this is, Judge, 10 you only need one fact. So I assume that if you disagree with 11 Mr. Lee on that, that at that point I haven't heard any 12 arguments from the government, either in the written pleadings 13 they have filed or here this afternoon, that would suggest you 14 shouldn't exercise your discretion to, first of all, order them 15 to produce the information that we think that they have that is 16 highly relevant to us and, second, allow us to do some 17 discovery, take some depositions, get some requests for 18 admissions, get some document production, which we would 19 ordinarily get in a civil case. 20 The other thing Mr. Lee said is, they're not being 21 deprived of any property here. The crime victims in this case, 22 Jane Doe No. 1 and Jane Doe No. 2 have made a very powerful 23 case that they are being deprived of congressionally-mandated 24 rights: The right to confer with prosecutors; the right to 25 treated with fairness; and the right to accurate notice of 561-835-0220 EFTA01123041 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 54 of 113 1 court proceedings. That's the deprivation that's at issu, 2 And as a result, it is only fair, as it would be if this were 3 under a due process situation, that they receive relevant 4 information that the government has. And so for all of those 5 reasons, we would ask you to order the government to produce 6 information and allow us to do some discovery as well. 7 THE COURT: All right. Thank you. I think this is 8 somewhat related to what we've been talking about, and this ir. 9 the plaintiffs' motion to use correspondence to prove 10 violations under the Crime Victims' Rights Act and to have 11 unsealed -- have the unredacted pleadings unsealed. Have 12 already talked about this or is there some -- 13 MR. CASSELL: I think this one is unopposed. Maybe 14 you can just grant at least the first part of it, to use 15 correspondence. 16 THE COURT: Well, exactly what are we talking about, 17 I guess? I need to have a better understanding. What has been 18 redacted and -- well, I guess, what is -- it is unredacted, 19 material that's not redacted. 20 MR. CASSELL: We have material that was provided to 21 us that was, for example, Mr. Lee or some of the other 22 attorneys in the U.S. Attorney's Office talking about the plc 23 discussion. We have that information right now. 24 THE COURT: And that's the government's side of the 25 discussion? 561-835-0220 EFTA01123042 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 55 of 113 1 MR. CASSELL: That's the government's side. 2 THE COURT: Okay. 3 MR. CASSELL: And we simply want to use that. The 4 government does not oppose that motion. We were obligated to 5 provide notice to Mr. Epstein, which we did. There was the 6 magistrate judge process. All of the work product and other 7 objections that you've been hearing about today have been 8 overruled. And then the magistrate judge said, simply go to 9 the appropriate authority, which I assume is Your Honor, and 10 have the -- you know, have a decision made about whether that 11 information can be used. 12 THE COURT: Now, is this information -- is any of 13 this information, the unredacted correspondence -- I guess I 14 need to speak to Mr. Black about this. Is any of this 15 information information that you're concerned about, Mr. Black? 16 Or is this information that is not anything that you're 17 concerned about? 18 MR. BLACK: It is none of our information. It's only 19 the government's side of the communication, Your Honor. That's 20 what I understand. 21 THE COURT: So you don't have any concern about 22 whether I allow the plaintiffs to use it or whether it's 23 unsealed? 24 MR. BLACK: We have no position on that because tha: 25 does not implicate our rights. 561-835-0220 EFTA01123043 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 56 of 113 1 THE COURT: All right. 2 MR. CASSELL: So I think this motion may be 3 unopposed, although the government, I think, is opposing 4 unsealing of the information because they claim some of 5 Rule 6(e) grand jury material. 6 I have the same question I think Your Honor does. 7 For the life of me, I can't see how any of the emails we have 8 could be Rule 6(e) material because they've been given to us. 9 They've been given to Mr. Black. And, if so, that can't be 10 confidential grand jury material because it shouldn't have been 11 shared with anyone else. 12 None of the materials talk about what's going on 13 inside the grand jury room, which is what Rule 6(e) covers. So 14 we think any kind of argument that Rule 6(e) is implicated here 15 is just frankly frivolous. 16 THE COURT: All right. Mr. Lee, or Ms. Villafana, do 17 you want to be heard on this? 18 MR. LEE: Yes, Your Honor. Thank you. Very briefly, 19 we raised two arguments in so far as unredacting these 20 materials. 6(e) -- 21 THE COURT: I don't think -- I don't think amjcL.uy -3 22 asking that they be unredacted. I think they're just -- they 23 want to use it in the form that they have it right now. 24 MR. LEE: Okay. Let me address the 6(e) issue. As 25 we stated in our pleadings, Your Honor, or our opposition to 561-835-0220 EFTA01123044 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 57 of 113 1 the motion, 6(e) is not a privilege like the attorney/client 2 privilege or deliberative process that can be waived once the 3 contents of the information that is protected is made known. 4 Somebody can be served with a grand jury subpoena and the press 5 may get ahold of it and say, ah, you're investigating so and 6 so; government, you need to confirm with us whether or nor 7 you're investigating so and so. 8 Even though there is an existence of a grand jury 9 subpoena which would seem to indicate that, that doesn't 10 breach, if you will, Rule 6(e) obligations. The government ir. 11 still obligated to neither confirm nor deny. So just because 12 somebody has this information doesn't mean that the 6(e) 13 protections are gone and vitiated. So that's why we belieYr 14 that this information should not be made public. 15 THE COURT: Well, are you talking about all of it or 16 just a portion of it? 17 MR. LEE: There are certain portions that we 18 redacted. We filed an actual document putting forth what we 19 believe should be redacted; what the petitioners agreed was 20 fine and where the areas of disagreement were. It was color 21 coded. 22 THE COURT: Right. So some of the material -- the 23 copies I have, I lose the color in them. I just have black. 24 Everything is black. So there's some material that you believe 25 needs to be redacted? 5 61-8 35-022 0 EFTA01123045 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 58 of 113 1 MR. LEE: Correct. 2 THE COURT: And others that the plaintiffs say should 3 be unsealed and unredacted? 4 MR. LEE: That's correct, Your Honor. 5 THE COURT: Okay. All right. 6 MR. LEE: Thank you, Your Honor. 7 THE COURT: You're welcome. All right. Let's talk 8 about, I guess, the main issue of this case here. When do the 9 victims' rights start to accrue? 10 Who's going to present that argument? Mr. Cassell. 11 MR. CASSELL: Thank you, Your Honor. So I'll address 12 what I think you've called the main event. The question is: 13 When does the Crime Victims' Rights Act begin to apply? The 14 government's position, as I understand it, is that unless it 15 makes the decision to publicly file an indictment, crime 16 victims have no rights in the criminal justice process. That' 17 a very important issue for crime victims' rights in this 18 country, and I think it's a very important question for the way 19 in which this congressional statute is going to be put into 20 effect. 21 The Crime Victims' Rights Act makes it quite clear 22 that it wasn't designed to be so narrowly circumscribed. In 23 fact, the rights apply throughout the criminal justice process. 24 You need go no further than the plain language of the CVRA, 25 which says that there is an obligation of, quote, officers and 561-835-0220 EFTA01123046 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 59 of 113 59 1 employees of the Department of Justice, and other departments 2 and agencies of the United States, engaged in -- and here is 3 the important part -- the detection, investigation or 4 prosecution of crime. And those entities are obligated to 5 afford crime victims their rights. 6 If you take the position of the government and accept 7 it, then that language in the CVRA simply because superfluous. 8 It becomes meaningless. It would never apply. Agencies that 9 are involved in the detection and investigation of crime, lik 10 the FBI and other agencies, would never have any obligations 11 under the Crime Victims' Rights Act. 12 We have cited that language, as you know. Back in 13 July of 2008, every single pleading we have filed in this cat 14 has led with that particular argument. And the government, 15 despite having, I think, by this point, four separate pleadings 16 has never discussed that language with you at all, and we think 17 the answer -- the reason why they are not discussing that 18 language is obvious. They have no answer for that. 19 If they were to look at that language -- if their 20 position were to be accepted, that language would be written 21 out of the statute. But that, of course, is not the only 22 language we rely upon in the CVRA. The CVRA goes on to say 23 that what should victims do if they are asserting rights and, 24 quote, no charges are -- or no prosecution is underway, which 25 is our situation here, no prosecution, at least federal 561-835-0220 EFTA01123047 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 60 of 113 1 prosecution, is underway? 2 In that situation, a victim should assert her right 3 in the district court in which the defendant is being 4 prosecuted, or if no prosecution is underway in the district 5 court, in the district in which the crime occurred. That's 6 here in the Southern District of Florida, which is why we 7 proceeded here. 8 Now, the government says this is a venue provision. 9 True, enough. But venue over what? The theory that we'v, 10 given you is that that provides venue over cases that are in 11 pre-indictment situation. The government merely does not hay 12 a coherent theory on how that venue provision applies. 13 If you read through the footnotes in their brief, you 14 discover that they say, well, if somebody is arrested, then at 15 that point The Crime Victims' Rights Act is triggered. Of 16 course, that footnote is inconsistent with the entire body of 17 their brief, which says that the triggering event for the Crime 18 Victims' Rights Act is the filing of an indictment. 19 So I'll be interested to hear from Mr. Lee, when he 20 makes his presentation, exactly what point in the process do 21 rights apply? Is it the indictment? Is it the arrest? Or is 22 it some earlier point, as we suggest? 23 Now, it's interesting, too, when you look at what 24 Mr. Lee said back on July 11th, 2008, because Your Honor asked 25 the same question that I think you're asking me and the 561-835-0220 EFTA01123048 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 61 of 113 61 1 government right now, are there rights that apply under the 2 Crime Victims' Rights Act before the filing an indictment? And 3 the answer that Mr. Lee gave on July 11, 2008, was, yes, there 4 are rights that apply before the indictment. Quoting here: 5 Now, there are certain of eight rights accorded in 3771(a) that 6 could come up before any charges being filed. And he goes on 7 to give the example of the right of a victim to be reasonably 8 protected, and he conceded that those rights would apply before 9 indictment. 10 I think the government, once again, is reversing a 11 position that they took earlier in this litigation because they 12 now find it convenient to do so. 13 The government has also cited remarks from Senator 14 Kyl, saying if you look at Senator Kyl's legislative history 15 you'll see that the Senate didn't want the rights to apply 16 before the indictment was filed. As you know, just a couple of 17 weeks ago we provided supplemental authority to this court, 18 which was a letter from Senator Kyl to Attorney General Eric 19 Holder sent on June the -- 20 THE COURT: Well, I'm not sure I should rely on his 21 letter. I mean, I think you can rely on the full context of 22 the legislative history and the full -- the complete statement 23 that Senator Kyl made when this was being discussed, but I'm 24 not sure a letter sent years after the fact, which is one 25 person's statement of what he thinks now, I don't think 561-835-0220 EFTA01123049 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 62 of 113 1 that's -- I wouldn't want to rely on that. 2 MR. CASSELL: In the -- if I could just take a shor. 3 moment then. Let me explain to you why you should rely on it. 4 The government has said Senator Kyl would want you to rule in 5 their favor in this case because he didn't want the Crime 6 Victims' Rights Act to apply pre-indictment, and now we have 7 letter from Senator Kyl, just six weeks ago, saying, That is 8 quoting my remarks out of context. We could not have been 9 clearer when we drafted the Act, and he cited the same 10 statutory provisions that I just mentioned to you. And he 11 said, obviously we intended for the Act to apply 12 pre-indictment. 13 So at the very least, I think you have to disregard 14 the government's position that Senator Kyl has certain remarks 15 that they think ought to lead you to conclude that there's no 16 pre-indictment rights under the CVRA. 17 The other point that we would press, of course, is 18 that case law, in our view, all concludes that the Crime 19 Victims' Rights Act applies before indictment. Of course, the 20 lead Court of Appeals case on this is the Fifth Circuit case, 21 In re: Dean. The government -- you've had a chance to read the 22 government's briefing on that. Frankly, I don't think anything 23 they say is persuasive. 24 In re: Dean very specifically holds -- and I'm 25 quoting here -- quote, logically the rights that apply before 561-835-0220 EFTA01123050 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 63 of 113 63 1 any prosecution is underway included the CVRA's establishment 2 of the victim's reasonable right to confer with the attorney 3 for the government. That's the Fifth Circuit's holding. Tha: 4 is persuasive authority, we would suggest, and the government 5 has no answer for that. 6 There are a number of district court cases that reach 7 exactly the same conclusion that the Crime Victims' Rights A:. 8 applies before any indictment is filed. And so for all of 9 those reasons, Your Honor, we would ask you to conclude that 10 the Crime Victims' Rights Act applies before an indictment. 11 THE COURT: I don't know if you're prepared to answer 12 this question or whether you're going to say, well, the facts 13 of this case don't require me to deal with it. But when is the 14 earliest point when these rights trigger? 15 MR. CASSELL: And, you know, Your Honor, we believe 16 that is a very difficult issue that courts will be wrestling 17 with, how far back in the process does it go? And I think you 18 anticipated part of our response, which is, look, there are 19 going to be some line-drawing issues down the road. There ar- 20 certainly going to be some close-call cases, but we are not 21 anywhere near to a close-call case. 22 We are asking you for a very narrow holding in this 23 case, and we have set forth in our brief five factors that we 24 would ask you to rely upon in this case that will limit your 25 holding to these particular facts and leave for another day 561-835-0220 EFTA01123051 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 64 of 113 1 some of the more theoretical questions. 2 Here are five factors that we think are present in 3 this case that make it clear the Crime Victims' Rights Act was' 4 triggered, that may cut off some of the more theoretical or 5 preliminary stages that perhaps Your Honor is worried about. 6 The first fact is that prosecutors in this case 7 identified specific federal offenses committed against specific 8 victims, and that's one of the reasons we need the 9 correspondence, to show that that fact exists. 10 Secondly, the prosecutors in this case determined 11 that there was evidence which they could present at trial and 12 prove beyond a reasonable doubt that those crimes had been 13 committed. 14 The third fact is that in this case, the victims were 15 given notices that their rights had attached under the Crime 16 Victims' Right Act. You will recall in our exhibits, several 17 notices that went to both Jane Doe No. 1 and Jane Doe No. 2 18 saying, you have rights under the Crime Victims' Rights Act. 19 At least in a situation where the government itself has said, 20 we think at this point rights have attached, that's when rights 21 should be deemed to have attached. 22 The fourth fact that's present here is that the 23 prosecutor sat down with defense attorneys to negotiate a 24 non-prosecution agreement. So let's take a case where the bank 25 robber runs out of the bank and he's on the front steps of the 561-835-0220 EFTA01123052 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 65 of 113 1 bank, do the rights attach then? Well, no, that's a very 2 preliminary stage. But if they start negotiating with the bank 3 robber's attorney saying, okay, we're looking at filing federal 4 bank robbery charges, we're thinking of filing these counts, we 5 would like to discuss with you plea options, at that point in 6 the process that's when the rights attach. 7 That, by the way, I think is exactly what the Fifth 8 Circuit did in the Dean case. There, the government had sat 9 down with a company that was responsible for some deaths. They 10 had negotiated -- they were contemplating filing specific 11 federal charges, and at that point the Fifth Circuit said the 12 rights attached. 13 And the last point is that there is at least the 14 attachment of crime victims' rights when the government is 15 prepared to execute an agreement that will abolish or 16 extinguish the rights of crime victims, and that's exactly what 17 happened here, of course. There was this non-prosecution 18 agreement that was executed that's then eviscerated any 19 possibility that Jane Doe No. 1 or Jane Doe No. 2 would have 20 their day in this federal court and see the child molester that 21 abused them brought to justice. Before that contract could be 22 signed, sealed and delivered, the government had an obligation 23 under the Crime Victims' Rights Act to confer with the victims. 24 So this is a very narrow case. 25 So if you want to ask, you know, the kind of law 561-835-0220 EFTA01123053 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 66 of 113 1 professor's question, how far back, you know, do you go, I 2 mean, are all five of those necessary, I mean, I think that' 3 an interesting question. I would say, you really probably 4 don't need all five of those to conclude that the Crime 5 Victims' Rights Act applies. But I think at an absolute 6 minimum, when you have the combination of those five factors, 7 as you do in this case, it's quite clear that the Crime 8 Victims' Rights Act applies here. 9 THE COURT: All right. Thank you. 10 Mr. Lee, I am -- Mr. Lee, before I hear from you, I 11 want to -- I think I'm going to give the reporter a break 12 because I think she has probably had a hard time keeping up 13 with some of the participants this afternoon. Why don't we 14 take a 15-minute break and then we will hear from the 15 government. 16 (Recess.) 17 THE COURT: Please be seated, everyone. All right, 18 Mr. Lee. 19 MR. LEE: Thank you very much, Your Honor. 20 Your Honor, the initial task before this court is to determine 21 the legal issue of when a right would attach under any of thr 22 provisions in 3771(a)(1) through (8), and probably the most 23 important and prominent one that the petitioners have alleged 24 is 3771(a)(5), which is a reasonable right to confer with thr 25 attorney for the government in the case. 561-835-0220 EFTA01123054 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 67 of 113 67 1 Initially, this is a statutory interpretation task 2 for the Court and, of course, the Court is guided by the word 3 of the statute, simple enough. And there are various doctrines 4 about plain meaning and the statutes say what they mean and 5 mean what they say, and things like that. 6 Congress provided a very definitive guidepost for 7 courts to interpret the various provisions of the CVRA, and 8 that's contained in Section 3771(d)(6). And if I could quote, 9 and it's the last sentence, Your Honor, quote: Nothing in this 10 chapter shall be construed to impair the prosecutorial 11 discretion of the Attorney General or any officer under his 12 direction, end quote. 13 So this is a guidepost to courts interpreting the 14 CVRA. If there are two conflicting interpretations, perhaps 15 equally reasonable and plausible under the statute -- under the 16 terms of the reading of the statute, if one impairs the 17 discretion of the Attorney General and one does not, then the 18 one that does not impair the discretion of the Attorney General 19 would be the one that would be correct. 20 THE COURT: Well, why does conferring have anything 21 to do with exercising discretion? You can confer with a victim 22 without infringing on your prosecutorial discretion, can't you' 23 MR. LEE: Yes, Your Honor, but here is what I mean: 24 In terms of construing it to apply at a certain point, the 25 Court needs to be mindful of whether this would impair the 561-835-0220 EFTA01123055 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 68 of 113 1 prosecutorial discretion of the Attorney General or those 2 acting under him. 3 THE COURT: Well, why would conferring impinge on 4 prosecutorial discretion? I mean, you're saying part of 5 prosecutorial discretion is to decide whether or not to confer? 6 MR. LEE: No. What I'm saying is this: To the 7 extent that the individual is given a right to basically 8 undermine or call into question otherwise lawful prerogatives 9 of the Attorney General in deciding what to charge somebody 10 with, when to charge somebody with this, this would constitut 11 an impairment of the prosecutorial discretion and that would be 12 a construction that would not be favored under this advice. 13 Your Honor, this is particularly compelling in this 14 case, because what we are dealing with here is not an 15 indictment that was ultimately returned or a plea agreement 16 that came before this court. This was a non-prosecution 17 agreement. It was a determination by the United States 18 Attorney to engage in an agreement with Mr. Epstein that in 19 consideration for him doing certain things that he would not be 20 prosecuted in federal court for various things. 21 THE COURT: Well, but I think that we wouldn't be 22 here if your office conferred with the victims, told them what 23 you were contemplating, heard them out, and after hearing them 24 out said, thank you very much for your input; we appreciate 25 your position; we understand you'd rather we prosecute 561-835-0220 EFTA01123056 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 69 of 113 69 1 Mr. Epstein federally and send him to prison for 50 years, bu - 2 we, exercising our discretion under (d)(6), have chosen to no: 3 prosecute him. And I think we wouldn't be here. I don't see 4 how that would have been an infringement on prosecutorial 5 discretion. 6 MR. LEE: Well, Your Honor, we respectfully believe 7 that we probably still would be here, because -- for this 8 reason: If all of that had been done in 2007, when the 9 agreement was still in its initial stages and about to be 10 executed, and all of these things were done to Jane Does 1 and 11 2, they were told this, this, this, and this, if they were 12 dissatisfied with this agreement, they would forward and 13 presumably invoke 3771(d)(3) and file an action just like the:, 14 did in this case, and they would complain about this being 15 improperly done. And this is something that this court would 16 have no authority to render an opinion on because under the 17 Separation of Powers Doctrine this is an exercise of discretion 18 on the part of the Government of the United States to which 19 prosecution functions are exclusively entrusted. 20 THE COURT: Well, they may have filed a proceeding 21 even if they had been advised of what your intent was or what 22 your thoughts were. But I'm -- it wouldn't be the same case. 23 I don't know what they would be complaining about, maybe that 24 you didn't confer adequately enough, but I don't think they 25 would be saying, you can't enter into the non-prosecution 561-835-0220 EFTA01123057 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 70 of 113 1 agreement because we object. 2 MR. LEE: Well, they seem to be suggesting that now, 3 that it should be vacated because they weren't consulted on i. 4 That's exactly what they are claiming. 5 THE COURT: Because they weren't consulted. But if 6 they had been consulted, I don't know how they would have tha: 7 same argument. 8 MR. LEE: Well, Your Honor, what I'm saying is that 9 any interpretation has to be mindful of whether or not it would 10 impair the prosecutorial discretion of the Attorney General. 11 All right. So the issue of when rights attach does impair or 12 could potentially impair the prosecutorial discretion. 13 THE COURT: Why? 14 MR. LEE: Well, because the government believes that: 15 these rights would only attach after a formal charge has been 16 filed. All right? The government has exercised its 17 discretion, and at that point these rights would attach. So if 18 somebody is formally charged and the government enters into 19 negotiations to resolve the matter by a plea, then the 20 individual victims who are identified can be notified, 21 consulted, given a voice, not a veto, and those individuals can 22 have their voice heard. If they're dissatisfied with what the 23 government does -- we've decided to go ahead with the plea 24 they can voice their objections anew before the court in a Rule 25 11 plea proceeding. So that is a construction that does not 561-835-0220 EFTA01123058 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 71 of 113 1 impair a prosecutorial discretion. 2 THE COURT: But why does it make any difference if 3 the conferring or the expression or disapproval is done before 4 indictment or after indictment? How does it impinge on your 5 discretion? I don't follow. 6 MR. LEE: Well, Your Honor, what this would involve 7 is involving the executive branch in litigation because the 8 individual victims, after being consulted -- or after not being 9 consulted -- would basically try to assert rights and basically 10 interfere with the process of returning the charge. 11 Let me give you an example, Your Honor. Let's say 12 somebody is the victim of a crime of violence and the 13 government is investigating it. It's the FBI. And the FBI ha:? 14 decided to refer it to the U.S. Attorney's Office and the U.S. 15 Attorney's Office decides, we don't think there's sufficient 16 evidence to return an indictment in this case; we're not going 17 to accept this for prosecution. 18 Well, there's an FBI case. Under petitioners' 19 formulation, they would have rights to be consulted on the 20 decision whether or not to accept the case for prosecution. 21 And that, we believe, would be an improper interference with 22 the discretion of the United States Attorney's Office. That' 23 exactly what we're talking about, Your Honor. 24 THE COURT: But we're talking about consulting, not 25 deciding whether to or not to prosecute. 561-835-0220 EFTA01123059 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 72 of 113 1 MR. LEE: Yes, Your Honor. 2 THE COURT: So I'm trying to understand how the fac: 3 that you might -- if I accept the plaintiffs' position or 4 interpretation, you might have to consult with the victim 5 before you decide not to prosecute, how that impinges on your 6 ultimate decision to or not to prosecute? 7 MR. LEE: Well, Your Honor, we believe that the 8 proper construction of this thing is to allow the government to 9 exercise its discretion in terms of whether to charge or not to 10 charge. Once that discretion is exercised and there's a charge 11 filed, then these rights would come into play. To do 12 otherwise, to create rights prior to any charging decision 13 being made, would basically allow these individuals to 14 essentially interfere with the exercise of discretion and 15 basically hail the United States Government into court every 16 time somebody is now dissatisfied with something that is being 17 done. 18 The more orderly process is to have those rights 19 attach after the filing of a formal charge, in which case there 20 is an extant case; it is a matter before a judicial officer of- 21 the United States Federal Courts; and these things can be mor 22 orderly ironed out and these disputes can be aired out. 23 Your Honor, if I may, let me move on. 24 THE COURT: Hold on. 25 MR. LEE: Okay. 561-835-0220 EFTA01123060 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 73 of 113 73 1 THE COURT: Would you or would you not agree that all 2 of the rights that are set forth in 3771(a), all of them have 3 to do with an actual ongoing proceeding other than possibly the 4 right to confer and the right to be treated with fairness? 5 MR. LEE: That's correct, and also -- 6 THE COURT: Or the right to be protected from the 7 accused. 8 MR. LEE: Yes, (a)(1). There are actually five of 9 them, Your Honor, that specifically reference or -- arguably 10 clearly suggest that it only applies to a proceeding that's in 11 existence, yes. 12 THE COURT: All right. Well, if you -- if I agree 13 with your interpretation of the case, meaning _'t -z; 14 case. 15 MR. LEE: Yes. 16 THE COURT: But the concern that you're having about 17 if I interpret this act to create rights in a victim before 18 indictment, somehow it's going to flood the court with lawsuits 19 challenging the government's decision either to or not to 20 prosecute, the only one that can possibly apply would be the 21 right to confer. Everything else in there has nothing to do 22 with that possibility. They couldn't come in under any of the 23 other subsections based on a decision not to prosecute, 24 correct? 25 MR. LEE: Well, perhaps (a)(8) might come into play 561-835-0220 EFTA01123061 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 74 of 113 1 because the individual could say that they weren't being 2 treated with fairness. 3 THE COURT: All right. But if the government does 4 confer, then that would be the only thing. They confer. They 5 decide not to prosecute. Then a victim comes in and says, 6 we're not being treated with fairness because they chose not to 7 prosecute. Then you resort to (d)(6), which says they don't 8 have to agree with you; they just have to confer. And fairness 9 can't be telling them how to go forward with a case or not to 10 go forward with a case, because of (d)(6). 11 So I'm trying to understand how your concern about 12 creating a right to confer before indictment is going to upset 13 your prosecutorial discretion. 14 MR. LEE: Your Honor, I'm not suggesting that any 15 action to enjoin the failure to prosecute, an action to compel 16 the government to prosecute or in this case an action to compel 17 the government not to enter into a non-prosecution agreement 18 would ultimately be successful. But to the extent that a court 19 finds that these rights attach prior to the filing of a formal 20 charging instrument already when the government has -- the 21 United States Attorney's Office has exercised its discretion, 22 to the extent that that right is deemed to exist prior, then 23 it's going to encourage people to come forward and assert wha: 24 they believe to be their rights. 25 THE COURT: All right. Let me ask you about th. 561-835-0220 EFTA01123062 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 75 of 113 1 provision that talks about when there's no ongoing proceeding. 2 Where is that subsection? 3 MR. LEE: Yes. Well, the venue provision in (d)(3), 4 Your Honor? 5 THE COURT: (d)(3), if no prosecution is underway in 6 the district court in which the crime occurred. If there's no 7 prosecution underway, yet they are recognizing a lawsuit can be 8 filed in the district where the crime occurred, doesn't that 9 suggest that the rights can be enforced before an indictment? 10 MR. LEE: Your Honor, we believe that this 11 provision -- well, it's a venue provision, to tell the 12 individual who seeks to enforce their rights where to file, arc 13 in so far as where the -- if no prosecution is underway in the 14 district where the offense occurred, this would allow somebody 15 to come in and essentially assert their rights for an 16 individual who has been arrested and perhaps charged by a 17 complaint but has not been formally indicted yet and the time 18 limitation for a formal indictment has not lapsed. 19 THE COURT: But you said that the rights don't begin 20 to accrue until indictment. So how can it, you know, work both 21 ways? 22 MR. LEE: Well, there's a right to a notice of public 23 proceedings. So there is an intervening period between initial 24 arrest and initial appearance in a bond hearing. And the 25 individual, if they feared whether -- that the accused wa 561-835-0220 EFTA01123063 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 76 of 113 1 going to harm them, should have the opportunity to attend and 2 have their say in so far as whether somebody should be released 3 and the conditions upon which he or she should be released. 4 THE COURT: All right. So let's assume that someon 5 is arrested; a criminal complaint is filed; there's no 6 indictment; there's a bond hearing; the victim is not notified; 7 the accused is released on bond; attacks the victim; and the 8 victim comes in and files a complaint or a lawsuit. Do they 9 have rights? 10 MR. LEE: There's no cause of action for damages 11 under the CVRA, Your Honor. 12 THE COURT: They file an action asking the court to 13 conclude that their rights were violated under the Act and want 14 the court to know about it, can they do that? Do they have 15 standing to come in and file an action to make the court award 16 of the fact that their rights were violated and you should, you 17 know, take that into account with respect to these prosecutor 18 and -- do they have standing to file a lawsuit and come into 19 court and make the court aware of that? 20 MR. LEE: If they were somebody who was entitled to 21 notice of a public proceeding, like a bond hearing, a pretrial 22 detention hearing, et cetera, and the individual had been 23 apprehended and was before the court, yes, they would have the 24 ability to do that. 25 THE COURT: So they have rights pre-indictment? 561-835-0220 EFTA01123064 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 77 of 113 1 MR. LEE: Yes, in this situation they would. 2 THE COURT: All right. 3 MR. LEE: We've already talked about 3771(a)(1), 4 Your Honor. The petitioners' counsel talked about what I said 5 back on July the 11th, 2008. There is a right to protection 6 from the accused, and whether it springs from 3771(a)(1) or 7 some other provision -- and we did note that there was anothe: 8 provision in the Victims' Rights Act to cover individuals 9 are entitled to protection, that would apply, yes. 10 THE COURT: So is your position then that only with 11 respect to 3771(a)(5), that's the only subsection and only 12 right under this act that requires an indictment, but all th, 13 other rights accrue, at least at the filing of a criminal 14 complaint or an arrest? 15 MR. LEE: Well, Your Honor, five of them reference 16 specific public -- a proceeding. Okay? So that, I think, 17 suggest assumes that there is a formal charge. So we're 18 talking about the three remaining. 19 THE COURT: Well, why can't a bond hearing require 20 full -- you're talking about a criminal complaint is a formal 21 charge? 22 MR. LEE: Well, a formal charge is actually an 23 information or an indictment. A criminal complaint, however, 24 brings the accused before the court for the purposes of 25 detention and then subsequent charging pursuant to the running 561-835-0220 EFTA01123065 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 78 of 113 1 time that you have -- that the government has before they can 2 return an indictment on the individual. A number of 3 individuals, because of how the crime was discovered, are 4 charged by complaint first, with an indictment to subsequently 5 follow. This basically covers that period of time between the 6 return of a formal indictment and the initial arrest of the 7 individual appearance, bond hearing, pretrial detention 8 hearing. 9 THE COURT: All right. So does a person -- does a 10 victim of a crime, where the accused is arrested and had a 11 criminal complaint filed against him or her, does that victim 12 have a right to notice of the bond hearing? 13 MR. LEE: Yes, they would, Your Honor. 14 THE COURT: All right. Does that person have the 15 right not to be excluded from the bond hearing? 16 MR. LEE: Yes, they would. 17 THE COURT: Does that person have the right to be 18 heard at the bond hearing? 19 MR. LEE: Yes, they would. 20 THE COURT: Does that person have the right to hal., 21 that bond hearing be conducted without unreasonable delay? 22 MR. LEE: Yes. 23 THE COURT: But that person doesn't have a right to 24 confer with the attorney for the government because an 25 indictment hasn't been filed yet? 561-835-0220 EFTA01123066 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 79 of 113 1 MR. LEE: That is correct, because there is no 2 attorney for the government in the case, and we believe that 3 "in the case" is the relevant term that is referenced. 4 THE COURT: And the -- 5 MR. LEE: I'm sorry, sir? 6 THE COURT: No, go ahead. 7 MR. LEE: And "case" means, in our view, informatics 8 or indictment, formal charge. 9 THE COURT: So again, I think I asked you earlier, 10 you're saying that the indictment as a triggering event only 11 applies in subsection 5, because all the others can apply -- 12 can occur before indictment. 13 MR. LEE: It could, under the circumstances of an 14 individual being charged by a complaint. For that period of 15 time in between arrest -- the filing of the complaint, initial 16 arrest and the return of the indictment, it could apply, yes. 17 We believe the strongest case for not applying is 3771(a)(5) 18 because there is no case. 19 THE COURT: And so when a criminal complaint is 20 filed, I think in the clerk's office they give it a case 21 number. 22 MR. LEE: I believe the Court is correct. 23 THE COURT: That's not a case? 24 MR. LEE: No. It would have to be an information or 25 an indictment. 561-835-0220 EFTA01123067 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 80 of 113 1 THE COURT: But as far as the clerk's office is 2 concerned, there's a case? 3 MR. LEE: That is correct. 4 THE COURT: But that statute -- that word "case" 5 there, even though in the ordinary course of events in every 6 district of the United States they give a case number to - 7 person who is arrested and a criminal complaint is filed, tha: 8 understanding of the word "case" doesn't apply here; it's cat 9 meaning indictment or information? 10 MR. LEE: That is correct, Your Honor. We referenced 11 Federal Rule of Criminal Procedure 7(c), which talks about 12 indictments and information having to be signed by the attorney 13 for the government, which is the same phrase that is used in 14 3771(a)(5). 15 THE COURT: Okay. And so I guess the subsection that 16 talks about investigation -- 17 MR. LEE: You're talking about (b)(1), Your Honor? 18 THE COURT: (b)(1)? 19 MR. LEE: Let's see. I'm sorry. You're talking 20 about (c)(1), Your Honor, I think, best efforts, and the 21 personnel who are responsible for assuring the individual was 22 accorded their rights? 23 THE COURT: Yes. And the detection, investigation or 24 prosecution of the crime. 25 MR. LEE: This is (c)(1), Your Honor. Your Honor, 5 61-8 35-022 0 EFTA01123068 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 81 of 113 81 1 the last phrase in (c)(1) is the -- shall be "notified of, and 2 accorded, the rights described in subsection (a)." So this 3 does not inform when those rights attached. It essentially 4 says, these are the persons who are responsible for ensuring 5 that best efforts are utilized to ensure these individuals have 6 these rights once they attach under subsection (a). 7 If I may give an example, Your Honor, somebody is 8 charged with a crime. Let's say it's a crime of violence. And 9 the individual fears that they may be threatened by either th 10 defendant, if the individual makes bond, or the defendant's 11 relatives. This is a matter before the court because a formal 12 charge has been filed, but the responsibility for ensuring 13 reasonable protection under 3771(a)(1) would not be a 14 responsibility of the prosecutor doing the case or the United 15 States Attorney's Office, but it would also include those who 16 investigated the case, the agency who has basically brought the 17 case. So this would be the FBI, ATF, whatever law enforcement 18 agency. 19 So this explains what individuals are responsible for 20 ensuring that best efforts are used to afford these rights once 21 those rights attach. But just because individuals who are 22 described as having responsibilities are in the investigative 23 process doesn't necessarily mean that in the investigative 24 process, pre-charge, that such rights attach. 25 THE COURT: So, again, you just basically go back 561-835-0220 EFTA01123069 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 82 of 113 82 1 to -- or fall back on the argument that "case" means indictment 2 or information, and whatever rights accrue under these 3 subsections, those are the people that have to afford the 4 rights? 5 MR. LEE: That is correct, Your Honor. 6 THE COURT: All right. What else did you want to 7 argue? 8 MR. LEE: Your Honor, that was -- that basically is 9 the argument. Again, we ask the Court to be mindful of the 10 admonition about the prosecutorial discretion. The question of 11 when these rights attached is extremely significant in so far 12 as when people can go into court and invoke rights which they 13 believe to exist, and to complain about things that happened 14 which involved the exercise of the broad discretion of the 15 executive branch whether to charge somebody, how to charge.:: 16 them, who to charge, what to charge, and how to resolve the 17 charges against an individual. Thank you. 18 THE COURT: I'm -- 19 MR. LEE: Yes, sir? 20 THE COURT: Let me ask you another question. Assume 21 for the sake of argument, because the motion that -- the motion 22 that the plaintiffs have filed have asked me to not only to 23 make a determination as to when their rights accrued but also 24 that -- to make a finding that the government has in fact 25 violated their rights based upon the information contained in 561-835-0220 EFTA01123070 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 83 of 113 83 1 their motion. If I reject your argument and conclude that th- 2 plaintiffs did have rights as victims, that that were to be 3 respected under the statute, do you agree or do you believe wt, 4 need to resolve on another day whether or not their rights 5 were, in fact, violated, based upon what has been presented to 6 me thus far? 7 MR. LEE: Yes, Your Honor. Your Honor, if the Cour.. 8 finds that these rights did indeed attach prior to the filing 9 of a formal charge, we have asserted a best efforts defense, if 10 you will -- I will call it that -- that we did exert our best 11 efforts to notify individuals under these circumstances of what 12 was going on in so far as the non-prosecution agreement. That, 13 in our view, would require an evidentiary hearing and testimony 14 and documents -- factual matters to be submitted for the Court 15 to make a determination as to what occurred and whether this 16 constituted best efforts or not. 17 THE COURT: All right. Thank you. 18 MR. LEE: Thank you, Your Honor. 19 MR. CASSELL: May I have just one moment? 20 THE COURT: Yes. I think Mr. Lee is conferring with 21 Ms. Villafana so he may want to add something. 22 Did you have anything else you wanted to add, 23 Mr. Lee? 24 MR. LEE: No, Your Honor. 25 THE COURT: Okay. Thank you. 561-835-0220 EFTA01123071 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 84 of 113 84 1 MR. CASSELL: I think Mr. Lee is correct when he says 2 this is at bottom an issue of statutory construction, and we 3 think the cardinal rule of construction you should apply here 4 is Congress passed the Crime Victims' Rights Act as a remedial 5 statute to address a particular problem, the unfair treatment 6 of crime victims throughout the criminal justice process. And 7 so the Act should be broadly construed to effectuate its 8 remedial purposes, that is, to make sure that crime victims are 9 treated fairly throughout the process. 10 The position they are staking out today is that they 11 can simply make rights in the statute disappear through the 12 simple device of not filing an indictment. And I think 13 Your Honor has done a very nice job of walking through why that 14 doesn't apply on a number of the different provisions that are 15 in there, and it would be interesting to see. 16 I think the government is conceding that the right to 17 fairness can apply even before an indictment is filed because 18 that doesn't link to a court proceeding. And, of course, 19 that's one of the rights we've alleged has been violated here, 20 the right to fair treatment. So perhaps I misunderstood but I 21 think the -- at least the effect of the government's position 22 is that that particular right would apply, even though no 23 indictment was applied in this case. 24 But let's look at the (a)(5) right then, the right to 25 confer and whether there was a violation here. The main 561-835-0220 EFTA01123072 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 85 of 113 5 1 argument that Mr. Lee seems to be advancing is that while tha - 2 would impair the discretion of the Justice Department, the 3 Justice Department advanced the same argument in the Fifth 4 Circuit in the Dean case, and the Fifth Circuit rejected it. 5 Here is what the Fifth Circuit said: Recognizing a right to 6 confer about dispositions is, quote, not an infringement on the 7 government's independent prosecutorial discretion. And 8 instead, it is only a requirement that the government confer in 9 some reasonable way with the victims before ultimately 10 exercising its broad discretion. 11 We would ask you to take exactly the same position in 12 this case. We simply believe that we had an -- we were 13 entitled to an opportunity to confer with them before 14 decided to do what they did in this particular case. 15 Now he says, well, if you open up this particular 16 case, rule in our favor, the flood gates will be open. IN, 17 wouldn't be here if our clients had been given an opportunity 18 to confer about the non-prosecution agreement and having made 19 what we think would have been compelling arguments not to mov 20 forward in that direction. The government had nonetheless 21 exercised its discretion to move forward. But our clients were 22 denied that chance. They never got to make a presentation to 23 the government about why that was a bad resolution of the case. 24 And we submit that the only remedy, if we get that far, is to 25 therefore set aside the non-prosecution agreement and give them 561-835-0220 EFTA01123073 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 86 of 113 1 that opportunity. But certainly you shouldn't worry about 2 frivolous claims being raised because those would be frivolcu 3 and would be routinely rejected. 4 In fact, it's interesting, let's look at what has 5 happened in the Fifth Circuit since the Dean case three years 6 ago, when the Fifth Circuit clearly recognized that there wet.o 7 rights before indictment. I don't think Mr. Lee can say in 8 good faith there have been a flood of frivolous claims. I 9 track crime victims' rights litigation. I don't think that 10 there's been any sudden spurt of litigation down there. 11 Now, he also says that, well, this would lead to 12 interference because people would object to whether we decidc 13 to accept a case or not. That's the question that you were 14 raising with me earlier, how far back in the process do we go. 15 We don't have to deal with those questions in this particular 16 case. The government accepted this case for prosecution. They 17 then did what? They sent CVRA notices to our clients saying, 18 you have rights under the Crime Victims' Rights Act. Then they 19 sat down with Epstein's attorney to negotiate a very specific 20 non-prosecution agreement which would make it impossible for 21 any federal prosecutorial agency to prosecute the federal 22 crimes that were committed against Jane Doe No. 1 and Jane Do 23 No. 2. 24 At least at that point, they had the right to say to 25 the prosecutors, you are making a mistake, and that's the right 561-835-0220 EFTA01123074 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 87 of 113 1 that Congress gave them and that's the right that's being 2 violated here. 3 Now, how far back in the process do we go? I think 4 we got a little more specificity from the government today. We 5 hear that it turns out it's not really the indictment that 6 triggers the right. You go all the way back to a complaint. 7 But then you pushed him a little bit more, what about an 8 arrest? And if I understood Mr. Lee correctly, they agree that 9 even an arrest would be enough to trigger that. But, of 10 course, an arrest is not a formal charge. And why would we 11 magically stop the Crime Victims' Rights Act at the point of 12 arrest? The term "arrest" doesn't appear anywhere in the 13 statute. Essentially, they are trying to stake out a 14 litigating position that helps them in this case but it doesn't 15 have any grounding at all in the language of the statute. Th. 16 language of the statute that's relevant here is that it applies 17 to agencies that are involved in the detection and 18 investigation of crimes. The words "investigation of crimes" 19 will become completely meaningless in the statute if you agre- 20 with the government's position. 21 Now, the last thing that Mr. Lee says is, well, this 22 right to confer applies only to cases, and obviously there's no 23 case here. I don't think that point is obvious at all. And, 24 in fact, I would simply use the words that the government used 25 when they communicated with Jane Doe No. 1. Here is the letter 561-835-0220 EFTA01123075 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 88 of 113 1 that they sent to Jane Doe No. 1 on January 10th, 2008: Dear 2 Ms. Jane Doe No. 1, this case is currently under investigation. 3 They told Jane Doe No. 1 that her case was under 4 investigation, and they told her in communications like this 5 that she had rights under the Crime Victims' Rights Act. And 6 now they come into this court and ask you to find that even 7 though that's exactly what they told Jane Doe No. 1, you should 8 simply ignore what they said then and conclude that they had no 9 rights. 10 Whatever else you might say about that, I think 11 that's clearly a violation of a right to confer but it's 12 certainly a violation of their right to be treated with 13 fairness. It is a violation of their right to accurate notic 14 about what's going on in court proceedings. 15 And so how should you proceed at this point? Let m. 16 offer just one possible way out procedurally of where we are 17 right now. I think the Court has plenty of information to rule 18 today that the Crime Victims' Rights Act applied to the victims 19 in this particular case and we would ask you to enter an order 20 to that effect. If you're not prepared to do that, then at 21 that point we would request full discovery in this case. Or 1: 22 you enter an order saying it applies pre-indictment, we would 23 also ask to move forward with full discovery. Simply to say 24 that the civil rules apply, we're prepared to move forward on 25 an expedited basis. We're prepared to move forward with 561-835-0220 EFTA01123076 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 89 of 113 89 1 narrowly tailored requests on the information that we need; 2 recalling, though, that we're going to be asking for 3 information not only to prove that the victims' rights were 4 violated in this case but we are also going to be asking for 5 information that we hope will ultimately convince you that the 6 only just remedy in this case is to take this illegal agreement 7 that was reached by the government, in violation of the right 8 of Jane Doe No. 1 and Jane Doe No. 2, and to set that agreement 9 aside. 10 THE COURT: I guess this is maybe getting ahead of 11 ourselves. You call it an illegal agreement and you rely upon 12 cases that basically set aside sentences or that are in fact 13 beyond the statutory authority of the court to impose. Therc' 14 nothing illegal about the substance of this agreement itself, 15 as compared to a sentence which is, let's say, in excess of the 16 statutory maximum. That is clearly an illegal sentence; it's 17 beyond the power of the court to impose. This agreement is not 18 outside of the U.S. Attorney's Office to enter into. The 19 substance of it is not illegal. You're saying the manner in 20 which it was entered into or the process -- 21 MR. CASSELL: That's right. 22 THE COURT: So those cases -- do you think those 23 cases really apply to this situation saying that it's illegal 24 and therefore an unenforceable agreement? 25 MR. CASSELL: Yes, we do. I mean, the point -- the 561-835-0220 EFTA01123077 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 90 of 113 1 general proposition that those cases stand for is that an 2 illegal agreement can be set aside. And so the question then 3 becomes, all right, does it have to be substantively illegal or 4 is it enough to show that something is procedurally illegal? 5 Let me give you what I think is a very 6 straightforward example of an illegal procedural agreement. 7 Suppose this court were just to enter an order today saying, I 8 know Smith is a criminal; I'm going to sentence Smith to two 9 years in prison. Well, wait a minute. That would be within -- 10 two years in prison for dealing drugs. Well, dealing drugs i - 11 a five-year maximum. Two years is within that. But that is r. 12 procedurally illegal sentence because Mr. Smith never had his 13 right to a jury trial, his right to counsel, opportunity to 14 confront. So you would -- that agreement or that sentence 15 would be ultimately challenged as being procedurally illegal. 16 We think the same analysis applies here. There is 17 document, a non-prosecution agreement, that is void because is 18 was entered into in a procedurally illegal way. It violated 19 the rights of both Jane Doe No. 1 and Jane Doe No. 2 to have an 20 opportunity to confer with the government and to be treated 21 with fairness. But, again, we have not had a full opportunity 22 to brief that. 23 THE COURT: I understand that. I was just 24 MR. CASSELL: But that's where we are going, and I 25 want to be clear when we get into the discovery phase we 5 61-8 35-022 0 EFTA01123078 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 91 of 113 91 1 think -- I mean, we think you could rule this afternoon that 2 their rights were violated. We think it's patently obvious 3 they weren't treated with fairness, patently obvious they did 4 not give a right to confer. And if you say, hey, do you really 5 need discovery to do that, we think you could rule on that 6 today. 7 You have denied our motion to accept facts. I'm 8 assuming that's without prejudice to give us the opportunity to 9 deal with that in an appropriate way. 10 THE COURT: Of course. 11 MR. CASSELL: The trickier issue in the case, or at 12 least the one we think requires some discovery, is how was that 13 illegal agreement reached? We intend to produce -- or obtain 14 information from the government which shows they deliberately 15 violated the rights of the victims and they did so with the 16 defendant, Mr. Epstein, engineering them. And for that reason, 17 we are going to ask for the agreement to be set aside. 18 THE COURT: To the extent you want to show that, and 19 assuming I agree that you're entitled to show that, you would 20 agree the government is entitled to show to the contrary and 21 that they exercised best efforts, and they should be entitled 22 to prove otherwise? 23 MR. CASSELL: We're not arguing for a one-sided 24 affair here at all, no, Your Honor. 25 THE COURT: All right. Thank you. 561-835-0220 EFTA01123079 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 92 of 113 1 MR. CASSELL: Thank you. 2 THE COURT: Mr. Lee, did you have something else? 3 MR. LEE: Your Honor, I have one procedural matter, 4 if I may. Thank you, Your Honor. 5 Your Honor, in May of this year, the Office of Legal 6 Counsel for the Department of Justice issued an opinion about 7 the very issue that the Court is grappling with, and we would 8 like to offer to the Court we will actually file it, but i: 9 I may approach and provide a copy, I've provided a copy to 10 counsel. We believe that this is entitled to some deference in 11 so far as this is the position of the Department of Justice. 12 We're not suggesting that it's entitled to full deference under 13 Chevron versus Natural Resources Council, because this was not 14 subject to notice and comment procedures. We are going to file 15 it electronically and we wanted to provide a copy to the Cour' 16 now, if we may. 17 THE COURT: Any objection? 18 MR. CASSELL: If I could just comment briefly on the 19 substance that's in there? 20 THE COURT: Sure. 21 MR. CASSELL: This is a -- you will recall just 22 little bit ago we were discussing Senator Kyl's remarks. 23 That's why Senator Kyl sent the letter to the Attorney General 24 saying, how dare you put in this memorandum my remarks during 25 the drafting of the CVRA as suggesting that the rights don't 561-835-0220 EFTA01123080 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 93 of 113 93 1 apply at the early stages of the criminal justice process. So 2 if you're going to look at this, I think in fairness you need 3 to look at Senator Kyl's rebuttal. 4 The other point that I would make is, we believe tha- 5 this document was engineered precisely to help the government 6 win, among other things, this particular case. And so we don't 7 believe that it's entitled to the same kind of deference as you 8 would ordinarily give to agency decisions that are decided 9 without regard to pending litigation. Perhaps Mr. Lee could 10 acknowledge the fact, which I think is clear, that the Justice 11 Department knew it had this very serious matter pending in this 12 court, which is why it asked for this opinion. And so this 13 opinion is, I think, simply like an extra brief coming in cn 14 their side. 15 THE COURT: And you didn't ask Senator Kyl to write 16 the letter? You didn't ask Senator Kyl to write the letter? 17 MR. CASSELL: We keep Senator Kyl apprised of 18 significant developments. 19 MR. LEE: Your Honor, we did not -- we, the United 20 States Attorney's Office, did not request this. It was issued 21 originally on December 17th but it was not made public. 22 Essentially, this was a position taken by the Department of 23 Justice. 24 THE COURT: Okay. Thank you. 25 MR. LEE: Thank you. 561-835-0220 EFTA01123081 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 94 of 113 ,,.1 THE COURT: All right. Anything else we need or 2 should talk about before we adjourn? 3 MR. EDWARDS: I don't think so, Your Honor. 4 THE COURT: All right. Thank you. Thank you all fm, 5 coming. We will try and get some rulings out in the near 6 future. Have a good afternoon. 7 (The hearing was concluded.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 61-83 5-022 0 EFTA01123082 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 95 of 113 95 1 CERTIFICATE 2 3 STATE OF FLORIDA 4 COUNTY OF PALM BEACH 5 6 7 I, Melinda Colchico, Florida Professional Reporter, Star.: 8 of Florida at large, do hereby certify that I was authorized to 9 and did stenographically report the foregoing proceedings and 10 that the transcript is a true and complete record of my 11 stenographic notes. 12 Dated this 15th day of August, 2011. 13 14 15 16 MELINDA COLCHICO 17 18 19 20 21 22 23 24 25 561-835-0220 EFTA01123083 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 96pcgdpi A actions9:5 27:10 94:6 90:16 ABA12:18 27:11 28:2 45:21 agencies 59:2,8,10 ancillary37:16 ability32:9 76:24 actual57:18 73:3 87:17 45:23 46:16 able . ..7:3 19:15 73:13 agency46:4,5 Andrews2:4 26:24 27:21 ad5:22 81:16,18 86:21 anew 70:24 28:11 33:9 add17:17 28:21 93:8 angle30:21 abolish65:15 83:21,22 agent23:22 answer12:13 41:7 absolute7:11 66:5 added13:7 ago _2:23 61:17 59:17,18 61:3 absolutely4:18 addition17:18 : : 7 86:6 92:22 63:5,11 abuse4:20 37:6 agree7:6 29:23 anticipated 63:18 abused65:21 additional39:1 70:S 36:3 37:7 anybody8:1 14:24 accept21:19 36:6 49:15 52:7 38:25 40:3 46:15 23:15 56:21 36:8 39:7 59:6 additionally 27:20 47:10,10,11 APA46:4 71:17,20 72:3 address4:10 15:6 49:23 73:1,12 appeal9:1 86:13 91:7 16:24 19:16,17 74:8 83:3 87:8 Appeals62:20 accepted34:2 38:7 30:10,16,17 45:9 87:19 91:19,20 appear87:12 59:20 86:16 56:24 58:11 84:5 agreed38:25 57:19 appearance 75:24 adequately 69:24 agreement12:8 78:7 accepting35:25 access48:19 adjourn94:2 :6:20 31:8 34:22 appearances2:1 accomplish37:21 administration 36:22,25 37:1 3:6 accord48:8 12:22 39:4,9 40:22 appearing3:17 accorded48:17 Administrative 43:25 44:14 49:9 applied84:23 61:5 80:22 81:2 46:4 51:23,24 64:24 88:18 acc0unt76:17 admissibility 65:15,18 68:15 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