015-01.pdf

Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 1 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 1 of 15
C.M.A.,
v.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80811-MARRA/JOHNSON
Plaintiff,
JEFFREY EPSTEIN and SARAH
KELLEN,
Defendants,
I --------------
Defendant, Jeffrey Epstein's Motion To Stay And Or Continue Action For Time Certain Based On
Parallel Civil And Criminal Proceedings With Incorporated Memorandum Of Law
Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his
undersigned attorneys, hereby moves this Court for the entry of an order staying or continuing
this action for a time certain (i.e., until late 2010 when the NP A expires), pursuant to the
application of the Fifth Amendment of the U.S. Constitution and the fact that a parallel
proceeding is ongoing and being investigated. In support of his motion, EPSTEIN states:
I. Introduction
At the outset, EPSTEIN notes this Court's prior Order, dated December 16, 2008,
(Document 28), in which this Court denied a motion for stay brought by Defendant's prior
counsel. In that instance, Defendant's counsel requested a mandatory stay under 18 U.S.C.A.
§3509(k) which the court denied. In denying the request for the stay, this Court stated that a
discretionary stay was not appropriate at the time the order was entered but also stated, in part,
that "Any such issues shall be resolved as they arise in the course of litigation.". As discussed
herein, "special circumstances" now exist which, in the "interests of justice," merit the entry of a
stay of this civil action until the criminal matter in the 15th Judicial Circuit is "closed" in
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 2 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 2 of 15
C.M.A. v. Epstein, et al.
Page2
accordance with the United States Attorney's Office ("USAO") Non-Prosecution Agreement
("NP A") and until the NP A expires.
Moreover, EPSTEIN was indicted by a grand jury in or around July 2006. See Exhibit
"A". The Non-Prosecution Agreement is part of the record in connection with that indictment,
which is signed by the State Attorney of the 15th Judicial Circuit in and for Palm Beach County,
Florida ("SAO"). In fact, the NPA acknowledges the investigation performed by the SAO.
Further, the USAO was present at the Plea hearing whereby the NPA was made part of the
record. Thus, there is no question that a parallel criminal matter exists in that the SAO's case
remains open and the NP A lives along side it, which places EPSTEIN under great scrutiny by the
USAO. The NPA actually places an affirmative duty upon EPSTEIN to undertake discussions
with the SAO to ensure compliance with the NP A. That check and balance, therefore, remains in
the hands of the SAO, which has a parallel criminal proceeding. Here, the threat of prosecution
is real, substantial, and present should the USAO determine that EPSTEIN somehow violated the
NP A. As discussed below, because the NPA fails to define what constitutes a breach, the USAO
has apparently taken it upon itself to determine whether a breach has occurred and whether to
seek criminal prosecution. In fact, the USAO has already attempted to claim violations of the
NPA due to, among other things, EPSTEIN defending the civil actions against him. Clearly, it is
NOT simply EPSTEIN's choice as to whether he violates the NPA - that discretion apparently
lies with the USAO. For this reason alone, a stay is required until the NP A expires.
The difference between this Motion and the prior motion to stay is solely due to the
ripeness of the issues discussed herein.
2
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 3 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 3 of 15
C.M.A. v. Epstein, et al.
Page 3
II. THENPA
By its terms, the NPA took effect on June 30, 2008 and expires by those same terms in
late 2010 so long as EPSTEIN complies with the terms and conditions - violations of which
remain undefined. The NP A, which remains under seal, outlines various obligations on the part
of EPSTEIN including, but not limited to, pleading guilty to the Indictment and Information
before the 15th Judicial Circuit, recommendations for his sentencing before the 15th Judicial
Circuit, waiver of challenges to the Information filed by the SAO, waiver of right to appeal his
conviction, agreement not be afforded benefits for gain time, and the agreement to not prosecute
others listed thereon so long as EPSTEIN does not breach and fulfills the requirements of the
NPA.
What the NP A does not outline or define is what constitutes a breach or what act or
omission constitutes a breach thereof. Therefore, the USAO apparently believes it has the
discretion to make that unwritten and undefined determination, which places an unreasonable
burden upon EPSTEIN in defending the civil claims in that he has no idea what the USAO will
define as a breach in the event he does not assert his 5th Amendment Rights. As an example, the
.... ,
USAO has already claimed that EPSTEIN violated the NP A by:
1. investigating the Plaintiffs (by and though his attorneys) whom brought civil suits
against him for purposes of defending those civil actions;
2. contesting damages in this action and in the other civil actions;
3. making statements to the press about this Plaintiff or other Plaintiffs by and
though his attorneys; and
3
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 4 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 4 of 15
C.M.A. v. Epstein, et al.
Page4
4. using the word 'jail" instead of "imprisonment" in the plea agreement with SA's
office.
See Exhibit "B" Goldberger Affidavit - EPSTEIN's criminal counsel.
These allegations are silly, unfounded and alleged violations which are not defined as
violations under the NPA but arrived at by the USAO. Thus, EPSTEIN is left with "Morton's
Fork" in his side - the undesirable choice of taking the 5th Amendment and having a judgment
(summary or otherwise) entered against him in the civil action or the undesirable choice of
subjecting himself to discovery in the civil action before the NP A expires and, thus, face the
possibility of criminal prosecution by the USAO based upon some illusory breach deemed by the
USAO by way of information obtained through civil discovery proceedings. This is inherently
unfair, the danger is clear, and the playing field is not level in light of the NP A language or lack
thereof.
As a result, the threat of criminal prosecution against EPSTEIN by the USAO continues
presently and through late 2010.
III. Justice Requires The Entry of A Stay Because Defendant Is Being
Forced To Choose Between Waiving His 5th Amendment Privilege Or Risk
Losing This Civil Case And Forfeiting Other Constitutional Guarantees Of
Due Process And Effective Assistance Of Counsel
Once the NP A expires, EPSTEIN fully intends to testify to all relevant and non objectionable inquiries made to him in discovery be it a deposition, in interrogatories or in
production requests. (Emphasis Added) However, the current circumstances are such that by
testifying or responding to discovery, EPSTEIN will be required to waive his constitutional
privileges, thereby subjecting himself to criminal prosecution and scrutiny by the USAO as a
4
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 5 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 5 of 15
C.M.A. v. Epstein, et al.
Page 5
result of matters alleged in this civil action ( and others before this Court and in the State of
Florida 15th Judicial Circuit Court, Palm Beach County).
The special circumstances of this action are such that a stay or continuance for a time
certain is NOT prejudicial and is required to be entered so that:
(1) EPSTEIN is not required to waive his Fifth Amendment right against self incrimination under the United States Constitution resulting in severe prejudice to EPSTEIN in
pending criminal matters; and
(2) EPSTEIN is not forced to choose between waiving his Fifth Amendment right against
self-incrimination or losing the civil case.
Here, in asserting his Fifth Amendment Privilege, the Plaintiff is afforded an opportunity
rarely given - that is, to put on only her evidence without any counterevidence from Defendant
resulting in a judgment of liability against EPSTEIN. This is inherently unfair and precisely the
special circumstances where "in the interests of justice" a stay is required. Ventura v. Brosky,
2006 WL 3392207 (S.D. Fla. 2006), citing. United States v. Lot 5, Fox Grove, 23 F.3d 359 (11 th
Cir. 1994). In Ventura, a stay was entered where a Defendant was confronted with issue of
waiving his 5
th Amendment Privilege or to loose a civil case by way of motion for summary
judgment. Id. Here, EPSTEIN is not requesting a mandatory stay. EPSTEIN only asks that this
court recognize that "special circumstances" exists in this matter and enter a stay in the "interests
of justice" and only for a specified period of time (i.e., after the NPA expires). See also
Securities and Exchange Commission, 755 F.Supp. 1018, 1019 (S.D. Fla. 1990)(Defendant was
in precarious position while being subject to criminal investigation and reasoning that
compelling Defendant to speak by ordering an accounting of alleged illicit funds would directly
5
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 6 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 6 of 15
C.M.A. v. Epstein, et al.
Page6
impinge his right against self-incrimination). The court found it appropriate to grant the request
for stay. (Emphasis Added).
Citing to U.S. v. Lot 5, Fox Grove, supra, the Southern District Court, Florida, in
Ventura v. Brosky. 2006 WL 3392207 (S.D. Fla. 2006), stated The Eleventh Circuit has also created a test for these circumstances, stating that
where there exists a concurrent civil and criminal proceeding, a court must stay
a civil proceeding pending resolution of a related criminal prosecution when
"special circumstances" so require in the "interests of justice."
(Bold emphasis added). See also United States v. Kordel, 397 U.S. 1, 12 & n. 27, 90 S.Ct. 763,
769-70 & n.27 (1970). The Ventura Court went on to state that "situations where a defendant in
both criminal and civil proceedings must choose whether to waive his privilege against self incrimination or to lose the civil case in summary or default judgment proceedings have met this
test's burden and warrant a stay." Id. The Ventura court granted the stay. Here, the l 5th Judicial
Circuit action lives along with the NP A.
In making a decision to enter such a stay, the court may consider the following factors:
(1) the interests of the Plaintiffs in proceeding expeditiously with litigation, or any
aspect of it, and the potential prejudice of Plaintiff to the delay;
(2) the burden which any particular aspect of the proceedings may impose on the
defendant;
(3) the convenience of the court in the management of its cases, and the efficient use
of judicial resources;
( 4) the interests of persons not parties to the civil litigation; and
(5) the interest of the public in the pending civil and criminal litigation.
6
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 7 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 7 of 15
C.M.A. v. Epstein, et al.
Page 7
See U.S. v. Pinnacle Quest International, 2008 WL 4274498 (N.D. Fla. 2008).
First, in applying the above factors, the Plaintiff in the instant matter will not be
prejudiced simply by claiming a delay in time. Second, the burden is far greater on the
EPSTEIN if he is forced to waive his 5th Amendment Privilege or remain silent and have a
judgment entered against him or choose to testify and face criminal prosecution. Third, efficient
use of judicial resources would be rendered upon a stay by way of preventing an appeal if such a
stay is not entered. The Court has broad discretion to enter such a stay. Fourth, the interests of
the individuals outlined in the NPA will be served because EPSTEIN's fulfillment of NPA
alleged obligations is determinative upon whether the USAO prosecutes those individuals or
whether the claims will be dropped upon the expiration of the NP A. Finally, the interest of the
public in the pending civil and criminal cases will not be prejudiced as EPSTEIN is already
serving his term whereby a plea was entered in the 15 Judicial Circuit action.
a. Application of the 5th Amendment
Next, the Fifth Amendment privilege against self-incrimination "permits a person not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings." Edwin v.
Price, 778 F.2d 668,669 (11 th Cir. 1985), citing Lefkowitz v. Turley. 414 U.S. 70, 77, 94 S.C.
316,322 (1973). See also Ohio v. Reiner, 532 U.S. 17, 21, 121 S.Ct. 1252 (2001)(The Fifth
Amendment privilege is also available to those who claim innocence. One of the Fifth
Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be
ensnared by ambiguous circumstances."); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the
Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process
7
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 8 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 8 of 15
C.M.A. v. Epstein, et al.
Page 8
Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards
determine the validity of a claim of privilege based on the same feared prosecution, depending
on whether the claim was asserted in state or federal court."); Kastigar v. U.S., 406 U.S. 441,
444-45, 92 S.Ct. 1653 (1972)(The Fifth Amendment privilege "can be asserted in any
proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures which the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so used. This Court has been
zealous to safeguard the values which underlie the privilege." (Emphasis added)).
The United States Supreme Court made it clear that the scope of the Fifth Amendment
Privilege includes the circumstances as here "the act of producing documents in response to a
subpoena (or production request) has a compelled testimonial aspect." United States v. Hubbell,
530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000); see also Fisher v. United States, 425 U.S. 391
(1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self-Incrimination,
§138 (6th Ed.). The privilege against self-incrimination may be asserted during discovery when a
litigant has "reasonable grounds to believe that the response would furnish a link in the chain of
evidence needed to prove a crime against a litigant." A witness, including a civil defendant, is
entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the
answer to a question could be used in anyway to convict the witness of a crime or could aid in
the development of other incriminating evidence that can be used at trial. Id; Pillsbury Company
v. Conboy, 495 U.S. 248, 103 S.Ct. 608 (1983).
Certainly, if the USAO decides to prosecute EPSTEIN for an alleged violation of the
NP A, it would undoubtedly be able to use information obtained during discovery against him or
8
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 9 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 9 of 15
C.M.A. v. Epstein, et al.
Page 9
use that information to aid in the development of other evidence against him at a criminal trial.
The USAO is already claiming violations of the NPA based upon EPSTEIN defending the civil
actions and, at the same time, while EPSTEIN asserts the 5th Amendment. Imagine, because that
is all we can do based on the lack of wording in the NP A, what violations the USAO will assert
if EPSTEIN is forced to waive his 5th Amendment privilege to defend himself in this and the
other civil actions.
The Fifth Amendment provides, in relevant part, that "No person ... shall be compelled
in any Criminal Case to be a witness against himself." Hoffman v. United States, 341 U.S. 479,
486, 71 S.Ct. 814 (1951), citing Feldman v. United States, 1944, 322 U.S. 487, 489, 64 S.Ct.
1082, 1083, 88 L.Ed. 1408." The Fifth Amendment's privilege against self-incrimination is
"accorded liberal construction in favor of the right it was intended to secure." "The immediate
and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of
the privilege may impose on society in the detection and prosecution of a crime." Id., at 490;
and In re Keller Financial Svcs. of Fla., Inc., 259 B.R. 391, 399 (M.D. Fla. 2000). The privilege
not only extends to answers that would in themselves support a conviction under a criminal
statute but likewise embraces those which would furnish a link in the chain of evidence needed
to prosecute the claimant for a crime. Id, citing Blau v. United States, 1950, 340 U.S. 159, 71
S.Ct. 223. The Fifth Amendment privilege against self-incrimination "permits a person not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings." Edwin v.
Price, 778 F.2d at 669, citing Lefkowitz v. Turley. 414 U.S. 70, 77, 94 S.C. 316,322 (1973). As
EPSTEIN is here, "the claimant must be 'confronted by substantial and 'real,' and not merely
9
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 10 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 10 of 15
C.M.A. v. Epstein, et al.
Page 10
trifling or imaginary, hazards of incrimination."' See generally. United States v. Apfelbaum, 445
U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980)). See also, United States v. Neff. 615
F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117
(l 980)(1nformation is protected by the privilege not only if it would support a criminal
conviction, but even if "the responses would merely 'provide a lead or clue' to evidence having a
tendency to incriminate."). EPSTEIN falls under each of the above category of cases.
The United States Supreme Court has made clear that the scope of the Fifth Amendment
Privilege also encompasses the circumstance where "the act of producing documents in response
to a subpoena (or production request) has a compelled testimonial aspect." United States v.
Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000); see also Fisher v. United States, 425 U.S.
391 (1976). In explaining the application of the privilege, the Supreme Court stated:
We have held that "the act of production" itself may implicitly communicate
"statements of fact." By "producing documents in compliance with a subpoena,
the witness would admit that the papers existed, were in his possession or control,
and were authentic." Moreover, as was true in this case, when the custodian of
documents responds to a subpoena, he may be compelled to take the witness stand
and answer questions designed to determine whether he has produced everything
demanded by the subpoena. The answers to those questions, as well as the act of
production itself, may certainly communicate information about the existence,
custody, and authenticity of the documents. Whether the constitutional privilege
protects the answers to such questions, or protects the act of production itself, is a
question that is distinct from the question whether the unprotected contents of the
documents themselves are incriminating.
"The issue presented in those cases was whether the act of producing subpoenaed
documents, not itself the making of a statement, might nonetheless have some
protected testimonial aspects. The Court concluded that the act of production could
constitute protected testimonial communication because it might entail implicit
statements of fact: by producing documents in compliance with a subpoena, the
witness would admit that the papers existed, were in his possession or control, and
were authentic. United States v. Doe. 465 U.S .. at 613. and n. 11, 104 S.Ct. 1237;
Fisher, 425 U.S.. at 409-410. 96 S.Ct. 1569; id., at 428. 432. 96 S.Ct. 1569
10
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 11 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 11 of 15
C.M.A. v. Epstein, et al.
Page 11
(concurring opinions). See Braswell v. United States, [487 U.S.,] at 104, 108 S.Ct.
2284; [ id.,] at 122, 108 S.Ct. 2284 (dissenting opinion). Thus, the Court made
clear that the Fifth Amendment privilege against self-incrimination applies to acts
that imply assertions of fact." ... An examination of the Court's application of these
principles in other cases indicates the Court's recognition that, in order to be
testimonial, an accused's communication must itself, explicitly or implicitly, relate
a factual assertion or disclose information. Only then is a person compelled to be a
'witness' against himself." Doe v. United States, 487 U.S., at 209-210, 108 S.Ct.
2341 (footnote omitted).
Finally, the phrase "in any criminal case" in the text of the Fifth Amendment might
have been read to limit its coverage to compelled testimony that is used against the
defendant in the trial itself. It has, however, long been settled that its protection
encompasses compelled statements that lead to the discovery of incriminating
evidence even though the statements themselves are not incriminating and are not
introduced into evidence. Thus, a half century ago we held that a trial judge had
erroneously rejected a defendant's claim of privilege on the ground that his answer
to the pending question would not itself constitute evidence of the charged offense.
As we explained:
"The privilege afforded not only extends to answers that would in themselves
support a conviction under a federal criminal statute but likewise embraces those
which would furnish a link in the chain of evidence needed to prosecute the
claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486, 71
S.Ct. 814, 95 L.Ed. 1118 (1951).
Compelled testimony that communicates information that may "lead to
incriminating evidence" is privileged even if the information itself is not
inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6, 108 S.Ct. 2341, 101
L.Ed.2d 184 (1988). It's the Fifth Amendment's protection against the
prosecutor's use of incriminating information derived directly or indirectly from
the compelled testimony of the respondent that is of primary relevance in this case.
The privilege against self-incrimination may be asserted during discovery when a litigant
has "reasonable grounds to believe that the response would furnish a link in the chain of
evidence needed to prove a crime against a litigant." A witness, including a civil defendant, is
entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the
answer to a question could be used in anyway to convict the witness of a crime or could aid in
11
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 12 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 12 of 15
C.M.A. v. Epstein, et al.
Page 12
the development of other incriminating evidence that can be used at trial. Id; Pillsbury Company
v. Conboy, 495 U.S. 248, 103 S.Ct. 608 (1983). See also, Hubbell, supra, as to what is
encompassed by the phrase "in any criminal case" contained in the Fifth Amendment.
As noted, the Fifth Amendment privilege against self-incrimination is broad. Hoffman;
In re Keller Financial Svcs., supra. To deny a witness the right to invoke the privilege, the judge
must be perfectly clear, from a careful consideration of all the circumstances in the case, that the
witness is mistaken, and that the answers cannot possibly have such tendency to incriminate. IQ,
at 488, 399. Recognizing the breadth and magnitude of this constitutional privilege, the United
States Supreme Court in discussing how a court is to analyze the application of the privilege
stated-
... It is for the court to say whether his silence is justified, Rogers v. United States,
1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it clearly appears
to the court that he is mistaken.' Temple v. Commonwealth, 1880, 75 Va. 892, 899.
However, if the witness, upon interposing his claim, were required to prove the
hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed
to guarantee. To sustain the privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim 'must be
governed as much by his personal perception of the peculiarities of the case as by the
facts actually in evidence.'
Hoffman, supra at 486-487.
Hoffman and its progeny establish that "in view of the liberal construction of the
provision [protecting against self-incrimination], after a witness has asserted the privilege, he
should be compelled to provide the requested information only if it "clearly appears" to the court
12
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 13 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 13 of 15
C.M.A. v. Epstein, et al.
Page 13
that the witness was mistaken in his invocation of the privilege." (Emphasis added). In re Keller
Financial Svcs., supra at 399, citing Hoffman, at 486.
In the instant case, the privilege applies as Defendant EPSTEIN "has reasonable cause to
apprehend danger from a direct answer." The risk of incrimination resulting from being subject
to discovery or to testify in his own defense while the NPA exists is "substantial and real" and
"not trifling or imaginary haphazards of communication." See generally, In re Keller Financial
Svcs., supra at 400. Based on the nature of Plaintiffs claims, along with the ongoing scrutiny
of the USAO in the criminal matters, EPSTEIN has "reasonable grounds to believe that his
responses to the discovery would furnish a link in the chain of evidence needed to prove a crime
against him. Finally, in order to preserve the privilege, the privilege must be asserted or one
risks the loss or waiver of this liberty ensuring protection. See generally. U.S. v. White, 846
F.2d 678, 690 (11 th Cir. 1988)("First, it ignores the settled principle which requires a witness to
assert his Fifth Amendment rights. A witness who testifies at any proceeding, instead of asserting
his Fifth Amendment rights, loses the privilege .... A civil deponent cannot choose to answer
questions with the expectation of later asserting the Fifth Amendment.").
Also applicable in upholding the assertion of the Fifth Amendment privilege is the
guarantee of effective assistance of counsel by the Sixth Amendment of the U.S. Constitution.
See Yarborough v. Gentry, 124 S.Ct. 1, 540 U.S. 1, 157 L.Ed.2d 1 (2003)(Sixth Amendment
guarantees criminal defendants effective assistance of counsel.), on remand 381 F.3d 1219. The
United States Constitutional guarantees are applicable to the states through the Fourteenth
Amendment. Obviously, EPSTEIN's assertion of his constitutional privileges and protections is
on the advice of counsel. Again, EPSTEIN continues to face criminal prosecution by the USAO
13
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 14 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 14 of 15
C.M.A. v. Epstein, et al.
Page 14
until the expiration of the NP A; under the constitutional guarantee of effective assistance of
counsel, he is entitled to follow the recommended advice of his criminal defense attorney. See
Goldberger Affidavit attached hereto.
EPSTEIN' s invocation of his constitutional protections of the Fifth, Sixth and Fourteenth
Amendments must be upheld for the reasons set forth herein; otherwise such constitutional
protections would be rendered meaningless. Already and recently, Defendant EPSTEIN in his
Response and Objections to discovery, attached hereto as Exhibit "C", has been required to
assert, on advice of counsel, his Fifth Amendment privilege against self-incrimination, along
with his constitutional rights afforded under the Sixth and Fourteenth Amendments of the United
States Constitution. Thus, EPSTEIN' s entitlement to a stay is ripe for determination.
Based upon the foregoing, a stay is warranted in this action as the Defendant is being
forced to choose between the assertion of his Fifth Amendment right or losing this case by
judgment (summary or otherwise) or waiver of his 5th Amendment right and face potential
criminal prosecution.
Florida Bar No.
rcrit@bclclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the
Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this
14
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 15 of 24 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 15 of 15
C.M.A. v. Epstein, et al.
Page 15
day on all counsel of record identified on the following Service List in the manner specified by
CM/ECF on this 24th day of March, 2009
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
561-582-7600
Fax: 561-588-8819
Counsel for Plaintiff C.MA.
reelrhw@hotmail.com
Jack Scarola, Esq.
Jack P. Hill, Esq.
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
561-659-8300
Fax: 561-835-8691
j agesq@bellsouth.net
Counsel for Defendant Jeffrey Epstein
Searcy Denney Scarola Barnhart & Shipley,
P.A.
Bruce Reinhart, Esq.
Bruce E. Reinhart, P.A.
250 S. Australian Avenue
Suite 1400
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
561-686-6300
Fax: 561-383-9424
jsx@searcylaw.com
jph@searcylaw.com
Co-Counsel for Plaintiff
West Palm Beach, FL 33401
561-202-6360
Fax: 561-828-0983
ecf@brucereinhartlaw.com
Couns fo. efendant Sarah Kellen
rcrit@bclclaw.com
MICHAELJ. PIKE, ESQ.
Florida Bar #61 7296
mpike@bclclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant, Jeffrey Epstein)
15
Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 16 of 24 Case 9:08-cv-80811-KAM Document 51-2 Entered on FLSD Docket 03/24/2009 Page 1 of 1
INDICTMENT
A TRUE BILL rl0" ,_,-1s11-_ cF V , -/' ;>
/-'f"I ·-
IN THE NAME OF AND BY THE AUTHORITY OF THE STATE OF FLORIDA , _ _:J - J
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL
CIRCUIT OF THE STATE OF FLORIDA
, I
For Palm Beach County, at the Spring Term thereof, in the year of our Lord Two Thousa8d and Six, to-wit:
The Grand Jurors of the State of Florida, inquiring in and for the body of said County of Palm Beach, upon their
oaths do present that JEFFREY E. EPSTEIN in the County of Palm Beach aforesaid, in the Circuit and State
aforesaid,
COUNT ONE
FELONY SOLICITATION OF PROSTITUTION
on or about or between the 1st day of August in the year of our Lord Two Thousand and Four and October 31,
2005, did solicit, induce, entice, or procure another to commit prostitution lewdness, or assignation, contrary to
Florida Statute 796.07(1) on three or more occasions between August 01, 2004 and October 31, 2005,
contrary to Florida Statute 796.07(2)(f) and (4)(c). (3 DEG FEL)(LEVEL 1)
against the form of the statute, to the evil example of all others, and against the peace and dignity of the State
of Florida.
I hereby certify that I have advised the Grand Jury returning this indictment as authorized and required by law.
3RANDJURYFOREPERSON
-Ass nt State
Fifteenth Judicial Circuit of the State
of Florida, prosecuting for the said
State
i I I(
EXHIBIT.'.i[
leffrey E. Epstein, Race: White, Sex: Male, DOB: January 20, 1953, SS#: 090-44-3348; Issue Warrant
, •Cas~ Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 17 of 24 9:08-cv-80811-KAM Document 51-3 Entered on FLSD Docket 03/24/2009 Page 1 of 3
AFFIDAVIT OF JACK A. GOLDBERGER, ESQUIRE
STATE OF FLORIDA ) SS
COUNTY OF PALM BEACH )
BEFORE ME, the undersigned authority, personally appeared
having personal knowledge and being duly sworn, deposes and says:
1. I, Jack A. Goldberger, have personal knowledge of the matters set
forth herein. I am an attorney licensed to practice in the State of Florida since
1978. I am a partner with the law firm of Atterbury Goldberger & Weiss, P.A.,
located at One Clearlake Centre, Suite 1400, 250 Australian Avenue South, West
Palm Beach, FL 33401.
2. My practice includes and specializes in the defense of criminal
matters. I am board certified in criminal law. I have been and currently am the
criminal defense attorney for JEFFREY EPSTEIN.
3. I represented Mr. EPSTEIN in the negotiation of and entering into a
Non-Prosecution Agreement with the United States Attorney's Office (USAO) for
the Federal Southern District of Florida. The terms and conditions of the Non Prosecution Agreement also entailed the entering of a Plea Agreement with the
State Attorney's Office, Palm Beach County, State of Florida. (The Non Prosecution Agreement shall hereinafter be referred to as the "NPA").
4. By its terms, the NPA took effect on June 30, 2008. Also, pursuant
to the terms of the NPA, any criminal prosecution against EPSTEIN is deferred
as long as the terms and conditions of the NPA are fulfilled by EPSTEIN.
(
1 ~ti
EXHIBIT-1:'_
Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 18 of 24 9:08-cv-80811-KAM Document 51-3 Entered on FLSD Docket 03/24/2009 Page 2 of 3
5. The criminal matters against EPSTEIN remain ongoing until the
NPA expires by its terms in late 2010, and as long as the USAO determines
EPSTEIN has complied with those terms and conditions. The threat of criminal
prosecution against EPSTEIN by USAO in the Southern District of Florida
continues presently and through late 2010.
6. Pursuant to the terms of the NPA, the USAO possesses the right to
declare that the agreement has been breached, give EPSTEIN's counsel notice,
and attempt to move forward with a prosecution. As of the date of this Affidavit,
the USAO has taken the position on a number of occasions that it might consider
the following actions by EPSTEIN to be a breach of the NPA.
• Investigation by EPSTEIN (by and through his attorneys) of this Plaintiff
and the other Plaintiffs in other pending civil cases for purposes of
defending the civil actions;
• EPSTEIN's contesting damages in this action and other civil actions.
• EPSTEIN or his legal representatives making statements to the press
about this Plaintiff or the other Plaintiffs.
• Using the word "jail" instead of "imprisonment" in the plea agreement with
the Palm Beach County State Attorney's Office.
7. EPSTEIN, through counsel, submitted a Freedom of Information
Act request to the Federal Bureau of Investigation (FBI) for documents relating to
this and the other cases; the FBI denied the request stating the materials are at
this time exempt from disclosure because they are in an investigative file, i.e. the
matter is still an ongoing criminal investigation.
Page - 2 -
•Case Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 19 of 24 9:08-cv-80811-KAM Document 51-3 Entered on FLSD Docket 03/24/2009 Page 3 of 3
8. The NPA expires in late 2010.
FURTHER THE AFFIANT SAYETH NAUGHT
STATE OF FLORIDA
COUNTY OF PALM BEACH
I hereby Certify that on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared
Jack A. Goldberger, Esquire, known to me to be the person described in and who
executed the foregoing Affidavit, who acknowledged before me that he/she
executed the same, that I relied_ upon the I following form of identification of the
above named person: /Jvo1w1 rer.s{)yl (. .. ft'J= , and that an oath was/was
not taken.
this
Wl~NESS my hand and official seal in the County and State last aforesaid /1 day of r-ti:Jri,1_~ , 2009. __
Notary Public State of Florida
Kim E Rosin
My Commillion D0489790
EKpirH 11113/2009 NOTARY P UC/STATE OF FLORIDA
COMMISSION NO.: Db yQ97'r O
MY COMMISSION EXPIRES: ll / (3 /).,,rJU°,
Page - 3 -
Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 20 of 24 •• Case 9:08-cv-80811-KAM Document 51-4 Entered on FLSD Docket 03/24/2009 Page 1 ?f j
~
C.M.A.,
V.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80811-MARRA/JOHNSON
Plaintiff,
JEFFREY EPSTEIN and SARAH
KELLEN,
Defendants,
I --------------
DEFENDANT JEFFREY EPSTEIN'S RESPONSE & OBJECTIONS
TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION
Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys,
hereby responds to Plaintiff's First Request For Production To Defendant, served
January 8, 2009 and states:
Request No. 1: Any and all evidence required to be maintained by Epstein
and the United States Attorney for the Southern District of Florida, specifically evidence
requested by or directly related to the grand jury subpoenas that have been issued in
connection with the investigation referenced in the Non-Prosecution Agreement, and
including certain computer equipment.
Response: Defendant is asserting specific legal objections to the production
request as well as his U.S. constitutional privileges. I intend to produce all relevant
documents regarding this lawsuit, however, my attorneys have counseled me that at the
present time I cannot select, authenticate, and produce documents relevant to this
I( /1 ti i
EXHIBIT_L....-_ ~:,~."6~