EFTA00016596.pdf

U.S. Department of Justice
United States Attorney
Southern District of New York
The Si!lo J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
August 6, 2019
VIA EMAIL
Martin G. Weinberg, Esq.
Martin G. Weinber P.C.
Boston, MA 02116
Reid Weingarten, Esq.
Michael Miller, Esq.
Ste toe & Johnson LLP
New York, NY 10036
Re: United States v. Jeffrey Epstein, 19 Cr. 490 (RMB)
Dear Mr. Weinberg:
The Government writes in response to your letters dated July 26, 2019, requesting
preservation and production of seven general categories of documents (the "July Letter"), and
August 1, 2019, requesting preservation and production in connection with a particular individual
(the "August Letter") (collectively, the "Letters"). Without conceding any obligation to preserve
any of the categories of documents, or, further, any obligation to produce responsive such
documents to the extent any exist, we will take reasonable steps to ensure the preservation of
documents we believe may be covered by the Letters' identified categories to the extent such
documents are already within the possession, custody, or control of the U.S. Attorney's Office for
the Southern District of New York (the "Office"). Other than documents already within the
possession, custody, or control of the Office, we will not be directing any other office or agency,
local, state, federal, or foreign, including any other office or component of the U.S. Department of
Justice, or any other nonparty to this case, including but not limited to victims or their counsel
(collectively, and without limitation, the "Non-Party Entities and Individuals"), to institute such
preservation.' Such agencies, departments, entities, and individuals are not parties to this
litigation, they are not a part of the prosecution team as that term has been defined under well The departments, agencies, entities, and individuals for which you assert this Office has "the
legal right or practical ability obtain" includes, without limitation, all 93 U.S. Attorney's Offices
across the nation, the Department of Justice Child Exploitation and Obscenity Section, the
Securities and Exchange Commission, the Department of Homeland Security, the New York [City]
Police Department, the Manhattan District Attorney's Office, the State Attorney's Office for the
15th Judicial District in and for Palm Beach County, the Palm Beach County Sheriff's Office, the
New Mexico Attorney General's Office, and any other "local, state, or foreign law enforcement
entities involved in any way in regulating or investigating the activities alleged in the Indictment
or related transactions." July Letter at 2-3. The scope of these requests is outlandishly overbroad.
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established Second Circuit law, and they are beyond the scope of this Office's disclosure
obligations in this case.
We expect to take all necessary steps to comply with our obligations under or pursuant to
Federal Rules of Criminal Procedure 16 and 26.2, Brady v. Maryland, and 18 U.S.C. § 3500
(collectively, this Office's "Obligations"). If you have a specific request to make to us under Rules
16 or 26.2, Brady, or § 3500, we will address it appropriately.
With respect to the specific requests in the Letters, we note at the outset that a number of
those categories call for material that falls well beyond the scope of Rule 16 or any recognized
obligation under Brady and its progeny. In particular, we note that for purposes of discovery
demands, "a 'defendant must make a prima facie showing of materiality, and must offer more than
the conclusory allegation that the requested evidence is material.' United States v. Abdalla, 317
F.Supp.3d 786, 790 (S.D.N.Y. 2018) (quoting United States v. Urena, 989 F.Supp.2d 253, 261
(S.D.N.Y. 2013)). Notably, "if the purported defense for which a defendant seeks to compel the
production of certain documents is meritless as a matter of law, then the requested documents are
not `material' for purposes of Rule 16." Id. at 791.
Additionally, with respect to your assertion that the requested materials generally are
necessary due to an intended motion to dismiss based on a prior non-prosecution agreement
entered into by a U.S. Attorney's Office in a separate District, see July Letter at 3, we note that the
defendant has failed to make any showing, much less a threshold credible showing, of the kind of
due process violation that would make appropriate any discovery on an issue that is not a defense
on the merits of the charges themselves, but rather an independent assertion that charges were
brought for reasons that were improper or constitutionally invalid. See United States v. Armstrong,
517 U.S. 456, 463 (1996). Indeed, the defendant will be unable to make any kind of showing of
the conspiracy theory that there was activity inconsistent with any duty not to circumvent or
transfer a case from an immunizing district to another district, because-as we have proffered to
you and to the Court previously-this Office initiated its investigation without any transfer,
circumvention, or other influence from any other District.
Regarding the specific requests the July Letter does contain, we respond as follows:
First Request: Any investigatory files provided to the United States Attorney's Office for the
Southern District of New York (or FBI agents working therewith) by the United
States Attorney's Office for the Southern District of Florida, the Middle District
of Florida, and/or the Northern District of Georgia (or FBI agents working
therewith).
We will produce materials consistent with our Obligations that are in the care, custody, or
control of this Office, irrespective of the source from which those files were obtained.
Second Request: Any investigatory files that were received or accessed by the United States
Attorney's Office for the Southern District of New York (or FBI agents working
therewith) that were sent or disclosed by or originated with the United States
Attorney's Offices of the Southern District of Florida, the Middle District of
Florida, and/or the Northern District of Georgia (or FBI agents working
therewith).
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Consistent with our response to the First Request, we will produce materials consistent
with our Obligations that are in the care, custody, or control of this Office, irrespective of the
source from which those files were obtained.
Third Request: Communications regarding Mr. Epstein between and among "Main Justice"
(including the Child Exploitation and Obscenity Section) and the United States
Attorney's Offices for the Southern District of Florida, Middle District of
Florida, Northern District of Georgia, and the Southern District of New York.
To the extent any such communications constitute materials pursuant to our Obligations
and are in the care, custody, or control of this Office, we will produce such materials. However,
we are not currently aware that any such communications within this Office's care, custody, or
control do fall within our Obligations. To the extent this request seeks materials not subject to our
Obligations, they are vastly overbroad and fall well outside the scope of Rule 16 discovery or any
other of our Obligations. See Fed. R. Crim. P. 16(a)(2) (noting that Rule 16 does not authorize the
discovery or inspection of internal government documents made by an attorney for the government
or other government agent in connection with investigating or prosecuting the case); see also
Armstrong, 517 U.S. at 463 ("[U]nder Rule 16(a)(2), [a defendant] may not examine Government
work product in connection with his case."). Accordingly, we will not produce any such
communications in the care, custody, or control of this Office that are not subject to our
Obligations.
As noted above, we also will not direct Non-Party Entities and Individuals to preserve or
produce materials that are not within the care, custody, or control of this Office.
Fourth Request•. Any decision to initiate (or not initiate) criminal proceedings against Mr.
Epstein.
To the extent any such communications constitute materials pursuant to our Obligations
and are in the care, custody, or control of this Office, we will produce such materials. However,
we are not currently aware that any such communications within this Office's care, custody, or
control do fall within our Obligations. To the extent this request seeks materials not subject to our
Obligations, they are vastly overbroad and fall well outside the scope of Rule 16 discovery or any
other of our Obligations. See Fed. R. Crim. P. 16(a)(2) (noting that Rule 16 does not authorize the
discovery or inspection of internal government documents made by an attorney for the government
or other government agent in connection with investigating or prosecuting the case); see also
Armstrong, 517 U.S. at 463 ("[U]nder Rule 16(a)(2), [a defendant] may not examine Government
work product in connection with his case."). Accordingly, we will not produce any such
communications in the care, custody, or control of this Office that are not subject to our
Obligations.
To the extent this request seeks materials not within the care, custody, or control of this
Officer, as noted above, we also will not direct Non-Party Entities and Individuals to preserve or
produce materials that are not within the care, custody, or control of this Office.
Finally, as described above and as previously represented to the Court and to defense
counsel, this Office initiated its investigation into the defendant independent of influence by any
other U.S. Attorney's Office.
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Fifth Request: The NPA, including but limited to communications within the Department of
Justice, with counsel for Mr. Epstein, with representatives of the United States
Attorney's offices for the Southern and Middle District of Florida or the
Northern District of Georgia and/or counsel for the alleged victims.
To the extent any such communications constitute materials pursuant to our Obligations
and are in the care, custody, or control of this Office, we will produce such materials. However,
we are not currently aware that any such communications within this Office's care, custody, or
control do fall within our Obligations, with the possible exception of any communications with
counsel that include or constitute victim statements conveyed to this Office through victims'
counsel that are within the definitions of materials subject to Brady or § 3500 obligations, any of
which will be disclosed promptly and based on the Court's schedule, respectively. To the extent
this request seeks materials not subject to our Obligations, they are vastly overbroad and fall well
outside the scope of Rule 16 discovery or any other of our Obligations. See Fed. R. Crim. P.
16(a)(2) (noting that Rule 16 does not authorize the discovery or inspection of internal government
documents made by an attorney for the government or other government agent in connection with
investigating or prosecuting the case); see also Armstrong, 517 U.S. at 463 ("[U]nder Rule
16(a)(2), [a defendant] may not examine Government work product in connection with his case.").
Accordingly, we will not produce any such communications in the care, custody, or control of this
Office that are not subject to our Obligations.
To the extent this request seeks materials not within the care, custody, or control of this
Officer, as noted above, we also will not direct Non-Party Entities and Individuals to preserve or
produce materials that are not within the care, custody, or control of this Office.
In particular, as described above, to the extent any communications between this Office
and victims or their counsel are subject to our Obligations, we will disclose them as appropriate;
however, we strongly oppose any effort to obtain the identity of victims at this stage through
meritless and unsupported suggestions of impropriety.
Sixth Request: Communications with alleged victims (or their counsel), including but not
limited to consultations conducted in relation to the government's response to
the court's summary judgment order and proposed remedies in Jane Doe v.
United States, No. 08-cv-80736 (S.D.FI.).
This request for any and all communications with victims and their counsel, and apparently
intended to apply to this Office as well as all Non-Party Entities and Individuals, is grossly
overbroad and vastly beyond the scope of our Obligations. As described above, to the extent this
Office has within its care, custody, or control statements made by victims or their counsel that are
within the definitions of materials subject to Brady or § 3500 obligations, any such statements or
materials will be disclosed promptly and based on the Court's schedule, respectively. Indeed, we
note that this Office has already made disclosures of certain victim and/or witness statements in
an abundance of caution.
As to the request for any and all communications with victims and their counsel beyond
those subject to our Obligations-a fishing expedition clearly intended to result in the disclosure
of the identities of the victims in this case—we will not produce such material.
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Seventh Request: Information provided by alleged victims (or their counsel) related to Mr.
Epstein prior to the return of the above-captioned Indictment.
This request for any and all information provided by victims and their counsel, and
apparently intended to apply to this Office as well as all Non-Party Entities and Individuals, is
grossly overbroad and vastly beyond the scope of our Obligations. As described above, to the
extent this Office has within its care, custody, or control information provided by victims or their
counsel that are within the definitions of materials subject to Brady or § 3500 obligations, any such
statements or materials will be disclosed promptly and based on the Court's schedule, respectively.
Indeed, we note that this Office has already made disclosures of certain victim and/or witness
statements in an abundance of caution.
Similar to the above, as to the request for any and all information provided by victims and
their counsel beyond those subject to our Obligations, which is plainly intended to result in the
disclosure of the identities of victims in this case, we certainly will not produce such material.
Regarding the specific requests contained in the August Letter, all of which relate to a
particular employee of the U.S. Attorney's Office for the Southern District of Florida, to the extent
any such communications constitute materials pursuant to our Obligations and are in the care,
custody, or control of this Office, we will produce such materials. However, we are not currently
aware that any such communications within this Office's care, custody, or control do fall within
our Obligations. To the extent these requests seek materials not subject to our Obligations, they
are vastly overbroad and fall well outside the scope of Rule 16 discovery or any other of our
Obligations, as described above. Accordingly, we will not produce any such communications in
the care, custody, or control of this Office that are not subject to our Obligations. Additionally, to
the extent the requests of the August Letter seek materials not within the care, custody, or control
of this Officer, as noted above, we also will not direct Non-Party Entities and Individuals to
preserve or produce materials that are not within the care, custody, or control of this Office. In
connection with the August Letter, we further reiterate that the undersigned had no pit-indictment
contact with any individuals employed at the U.S. Attorney's Office for the Southern District of
Florida, and the investigation resulting in the charges in the above-captioned case was not initiated
by the provision of any investigative materials from any other U.S. Attorney's Office or other
Non-Party Entities or Individuals.
Very truly yours,
GEOFFREY S. BERMAN
By:
Assistant United States Attorneys
Southern District of New York
Tel:
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