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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:08-ev-80736-ICAM
JANE DOE 1 AND JANE DOE 2,
Petitioners,
v.
UNITED STATES,
Respondent.
JANE DOE 1 AND JANE DOE 2'S POSITION ON THE PROCEDURES TO BE
FOLLOWED TO DETERMINE A REMEDY FOR THE GOVERNMENT'S
VIOLATION OF THE CRIME VICTIMS' RIGHTS ACT
Jane Doe 1 and Jane Doe 2 (also referred to as "the victims"), by and through
undersigned counsel, now file their position regarding the procedures to be followed to
determine a remedy for the Government's violation of the Crime Victims' Rights Act (CVRA).
For the reasons explained below, the Court should direct the Government to begin the process by
first publicly announcing what remedy (if any) it proposes as appropriate given this Court's
finding that the rights of Jane Doe 1 and 2 were violated. Thereafter, Jane Doe 1 and 2 will file a
response, including (if necessary) proposing further remedies. Further cross-briefing could
follow, assuring all parties (including intervenor Jeffrey Epstein) a chance to place their views
before the Court. This approach would place the Court in a position to rule expeditiously. While
the Government opposes having to disclose its proposed remedies first, this approach of
requiring the Government to initiate remedial action for the violation of the Jane Doe 1 and 2's
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rights is consistent with the CVRA's language and goals. It is also the best way to bring this
decade-old litigation to a prompt conclusion.
RELEVANT BACKGROUND
As the Court is aware, Jane Doe 1 and 2 filed this action in 2008, alleging a violation of
their rights. The focus of concern in this case has recently shifted from whether the Government
violated Jane Doe 1 and 2's CVRA rights to how to remedy that now-proven violation. As the
Court is aware, this case has spanned more than a decade, during which the Government
repeatedly created obstacles to reaching the merits of whether CVRA violations occurred when
the Government (and Epstein) purposely concealed the consummation and execution of a secret
non-prosecution agreement (NPA). On February 21, 2019, this Court brought the initial phase of
the case to an end, holding that Jane Doe 1 and 2's "right to conferral under the CVRA was
violated." Jane Does I and 2 v. U.S., 350 F.Supp.3d 1201, 1222 (S.D. Fla. 2019). As the Court
explained, the undisputed evidence establishes that "the Government entered into a[n] NPA with
Epstein without conferring with Petitioners [i.e., Jane Doe 1 and 2] during its negotiation and
signing." Id. at 1218.
At the end of the Court's opinion, the Court directed counsel for Jane Doe 1 and 2 and
the Government to "confer and inform the Court within 15 days of the date of entry of this Order
how they wish to proceed on determining the issue of what remedy, if any, should be applied in
view of the violation." Id. at 1222. The next day, Friday, February 22, 2019, the Court clarified
that it "did not expect the parties to agree on a remedy. The Court only directs the parties to
confer on what submissions or proceedings they believe are necessary in order for the Court to
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make a determination on a remedy, if any. If the parties are unable to agree on the submissions
or proceedings necessary, they may submit separate filings." DE 437 at 1.
Consistent with the Court's direction for a submission within 15 days on proposed
procedures for a remedy determination, the next workday — Monday, February 25, 2019 —
Counsel for Jane Does 1 and 2 sent a letter to the U.S. Attorney for the Southern District of
Florida. See Ex. 1. The letter explained their position that the Government should take the next
step in abiding by its obligations under the CVRA. Jane Doe 1 and 2 noted that, under the
CVRA, all "[o]fficers and employees of the Department of Justice . . . shall make their best
efforts to see that crime victims are notified of, and accorded, the rights described in [the
CVRA]." Ex. 1. at 3 (citing 18 U.S.C. § 3771(c)(1) (emphases added)). Under this statutory
command, Jane Doe 1 and 2 suggested that the Government has an obligation to reasonably
confer with them. Id. Jane Doe 1 and 2 explained one possible approach to resolving the case
and their willingness to discuss others. Ex. 1 at 4.
The Government, however, did not respond to the letter. Accordingly, with the Court's
March 8 deadline drawing near, on March 4, 2019, Jane Doe 1 and 2 sent a second letter to the
U.S. Attorney for the Southern District of Florida. Noting their earlier request, Jane Doe 1 and 2
wrote "again and with increased urgency" to request that the Office "immediately work with us"
to resolve the case. Ex. 2 at 1. Jane Doe 1 and 2 requested a right to quickly confer, noting that
time was "of the essence" in view of the Court's March 8 deadline. Id. at 2.
Once again, the U.S. Attorney's Office did not respond to this request to confer. Instead,
on the evening of March 4, 2019, counsel received an email from the Government indicating that
"the Southern District of Florida has been recused from the CVRA litigation." The email did not
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explain why, after more than ten years of litigation, the U.S. Attorney's Office for the Southern
District of Florida was now being recused in the matter. Nor did the email explain why the
matter was now being sent to Georgia for review. Indeed, reassignment of the matter to Georgia
seems quite curious, given that some seven years earlier, the Government had informed this
Court that it had "reassigned responsibility for the investigation and potential prosecution of such
criminal matters [involving Epstein's sexual activities with minor females] in the Southern
District of Florida to the United States Attorney's Office for the Middle District of Florida for
consideration of any prosecutorial action that may be authorized and appropriate." DE 205-2 at
9.
On March 6, 2019, the U.S. Attorney's Office for the Northern District of Georgia
contacted Jane Doe I and 2's counsel, requesting a 90-day extension of time in which to confer
and propose procedural steps for determining an appropriate remedy. Through counsel, Jane
Doe I and 2 conferred with the Office, noting that this case has been in litigation for more than a
decade — requesting that a resolution be expedited. That same day, the Government filed with
this Court a motion for a 90-day extension of time, arguing that it needed time to learn about the
case and to confer with Jane Doe I and 2's counsel about how to determine procedures for
developing a remedy. The Court then asked that counsel for Jane Doe 1 and Jane Doe 2 to
provide their views on how best to proceed. Their counsel suggested that, as a matter of
professional courtesy to the new attorneys, the Court should grant the Government's motion but
limit the extension to 45 days (until no later than April 22, 2019) and that the Government should
announce what remedy it was voluntarily willing to provide to them on or before May 10, 2019.
DE 447 at 1-2.
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On March 13, 2019, this Court entered an order extending until May 10, 2019, the time
for the parties to confer on the appropriate mechanism to propose to the Court to make a
determination regarding an appropriate remedy. DE 448. Thereafter, counsel for Jane Doe 1 and
2 and the Government have conferred several times via telephone and additional correspondence
regarding appropriate procedures to be followed in this case. As stated in their February 25 and
March 4 letters described above, Jane Doe 1 and 2 contended that the Government should take
the first step to remedy the CVRA violation, consistent with its "best efforts" obligations under
the CVRA. Jane Does 1 and 2 expressed their willingness to confer with the Government
immediately, as they are the petitioners whose rights have already determined to have been
violated. The Government, however, took the position that it was not yet prepared to engage in
any substantive discussion. The Government has also insisted that Jane Doe 1 and 2 file an
additional pleading listing their proposed remedies first with the Court.
In addition, the Government took the position that substantive proceedings in this case
should be delayed for several months to permit it to confer with some unspecified number of
victims — beyond Jane Doe 1 and Jane Doe 2 — about how to resolve the petition filed by Jane
Doe 1 and 2. This is a dramatic change in position by the Government, now represented by the
U.S. Attorney's Office for the Northern District of Georgia. As the Court will recall, in 2015
two additional victims — Jane Doe 3 and Jane Doe 4 — sought to join this case. DE 280. The
Government, then represented by the U.S. Attorney's Office for the Southern District of Florida,
"vehemently" opposed joinder. See DE 324 at 2 (citing DE 290, 314). The Court adopted the
Government's position and denied the additional victims' motion to join. DE 324 at 9 (quoting
De 280 at I). Today, some four years later, the Government now apparently wishes to confer
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with (among others) the two victims whom it successfully blocked from joining this case
previously.
What specifically the Government wishes to confer about — and what it will tell the
victims, especially those who are not formally parties to the case and presumably have not kept
up on the intricacies of the case -- remains unclear. So far as we can determine, during the
nearly three months since this Court's summary judgment ruling, the Government has not
initiated any contact with any victims or their counsel. In fact, during an April 29, 2019,
conference call between attorneys from the U.S. Attorney's Office for the Northern District of
Georgia and counsel for Jane Does 1 and 2 (and 3 and 4), the Jane Does' counsel offered to
simply have the conferral with the Government at that time on that call. The Government
declined to do so. And the Government was unable to describe the nature of any conference they
intended to conduct, did not indicate what options they would propose to victims, and did not say
what message they intended to convey to the victims about what support the Government would
offer before apparently asking these individuals what remedy they would like to seek. The
Government could not even define the scope of the victim population from whom the
Government intended to seek input.
DISCUSSION
To be clear, Jane Doe I and 2 have never opposed the Government discussing the case
with anyone. Nor are they opposed to discussing a settlement of their petition. But at this point,
the Government has not substantively begun any such process, with the two Jane Does or anyone
else. The Government has had enough time to talk with whomever will help make up its mind
on its position and the case simply needs to move forward. The Government procrastination in
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conferring should have no impact on its legal position regarding the appropriate remedy for
violating the CVRA. It is certainly not a condition precedent to the Government's ability to have
a position and at the current stage would not only cause delay but could create more issues with
concluding this case depending on the substance of the one-sided conferral they now seek.
Accordingly, Jane Doe 1 and 2 now offer their recommendations to the Court as to how
to proceed to resolve their petition. In setting up a mechanism for determining the appropriate
remedy in this case, two principles should be paramount. First, because the Government has a
statutory obligation to see that Jane Doe 1 and 2 "are . . . accorded" their CVRA rights, see 18
U.S.C. § 3771(c)(1), it should initiate the process for remedying the established CVRA violation
these two victims suffered. And second, that remedial process should be expedited given the
extended length of time that the Government's numerous motions have taken to resolve and the
Government's obligations to ensure that proceedings are "free from unreasonable delay." In
light of both of these principles, the Court should now direct the Government to move forward
with announcing the procedure it intends to follow to correct the CVRA violations suffered by
the two petitioners. That announcement should be followed by subsequent expedited briefing as
provided below.
I. THE COURT SHOULD DIRECT THE GOVERNMENT TO FIRST ANNOUNCE
WHAT REMEDIES IT IS WILLING TO PROVIDE TO JANE DOE 1 AND 2 FOR
THE VIOLATION OF THEIR CVRA RIGHTS.
While counsel for Jane Doe I and 2 and the Government have conferred on how to craft
an agreed procedure to propose to the Court for determining a remedy in this case, those efforts
foundered as to how to proceed at the opening step. Jane Doe 1 and 2 took the view that the
Government should take the first step by announcing its proposed remedy for the CVRA
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violation of their rights. On the other hand, the Government has insisted that Jane Doe 1 and 2
propose a complete solution for the Government's illegal conduct even though the two victims
do not know what steps the Government is willing to undertake.
The Government should go first. Under the CVRA's plain language, the Government
must remedy the violation of the CVRA — a statutory obligation that the Government cannot
defer pending some action by unspecified victims, including dozens of women who are not
parties to this case. Under 18 U.S.C. § 3771(c)(1), the Government has a "best efforts"
obligation to afford victims their rights, including doing so without "unreasonable delay," 18
U.S.C. § 3771(a)(7). Even if Jane Doe 1 and 2 never submitted anything to the Government (or
to the Court), the Government would have to undertake its own corrective efforts to protect their
rights to confer. Under the CVRA, the Government is obligated to take remedial measures now,
independently of whatever procedure this Court may decide to put in place for determining a
remedy in this litigation.
Nor does any confusion exist about what possible steps the Government could take. The
Court will recall extensive litigation that occurred in this case on the issue of remedies some
seven years ago. On November 7, 2011, the Government filed its motion to dismiss this action,
arguing that it was impossible for Jane Doe 1 and 2 to obtain any remedy. DE 205-2 at 3-4. In
response to the Government's motion to dismiss, Jane Doe 1 and 2 responded that the CVRA in
fact permits multiple remedies. DE 127 at 8-13. Indeed, Jane Doe 1 and 2 also provided a list
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of approximately 27 separate remedies that the Government could provide in addition to re opening the non-prosecution agreement. See ki. at 13-18.'
After the Government replied (DE 205-6), this Court rejected the Government's position
that no remedy was possible and agreed with Jane Doe 1 and 2. In discussing one possible
remedy, this Court specifically held that "the CVRA is properly interpreted to authorize the
rescission or 're-opening' of a prosecutorial agreement—including a non-prosecution
arrangement—reached in violation of a prosecutor's conferral obligations under the statute. . . .
[T]he [CVRA] is properly interpreted impliedly to authorize a 're-opening' or setting aside of
pre-charge prosecutorial agreements made in derogation of the government's CVRA conferral
obligations . . . ." Jane Does 1 and 2 v. United States, 950 F. Supp. 2d 1262, 1267 (S.D. Fla.
2013).
In light of this earlier and extensive briefing, the legal framework for permissible
remedies is already well developed. It makes no sense to delay this case further, given that
Jane Doe 1 and 2 provided a list of more than 20 specific remedies back in 2011, DE 127 at 8-18,
and on February 25, 2019 (four days after this Court's ruling) a follow up letter outlining a way
to resolve the case. By all reasonable appearances, the Government's request for Jane Doe 1 and
2 to provide some further enumeration of what remedies are being sought is a pointless effort at
delay. So that the record is clear on what remedies are being requested, Jane Doe 1 and 2 simply
reaffirm that they are seeking each and every remedy listed in 2011 — and are waiting (as they
Jane Doe 1 and 2 also filed a short, sealed pleading with additional remedies that are
appropriate in this case.
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have since 2011) to see whether the Government will agree to some or all of them — or make
alternative proposals.
Directing the Government to go first is also consistent with judicial efficiency. In light
of the Court's binding ruling that the Government has violated its CVRA obligations, the
Government may decide to announce that it will voluntarily take the steps that are satisfactory to
Jane Doe 1 and 2. If so, this litigation might be brought to a swift conclusion without the need
for any further judicial rulings. And even if the Government's remedies are less-than-complete,
the existence of those voluntarily provided remedies may limit the scope of the dispute between
the parties2 — and, accordingly, the scope of any hearings and rulings by this Court.
Finally, this case is unlike many cases that the Court has before it. In some cases, the
defendant in an action might be uncertain as to what sorts of remedies are being requested. But
here the issue of permissible remedies was litigated more than seven years ago. The Government
took the position that no remedies were possible in this case — and this Court rejected that
position. This case is an enforcement action, designed to enforce Jane Doe 1 and Jane Doe 2's
rights under the CVRA. One of the parties — the Government — has it entirely within its power to
provide all the various remedies being sought through the lawsuit — and then some. Indeed, as
explained above, the Government is statutorily obligated to use its "best efforts" to provide
appropriate remedies, 18 U.S.C. § 3771(c)(1), even without any action by this Court. The
2 The Court has previously granted Epstein's motion to intervene on remedy issues that
might affect him. If any remedy is being proposed that affects Epstein, Jane Doe 1 and 2 have
no objection to him being heard and, indeed, have built in an opportunity for him to be heard in
the schedule that they propose.
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Government should first explain what its "best efforts" will be. Until it does so, there is no
reason to confer with Jane Doe 1 or Jane Doe 2 — or anyone else for that matter. What specific
remedy or remedies would the conference be about and what options is the Government making
available? After more than ten years of litigation, the Government's suggestion that it should
postpone explaining its proposed remedy is a transparent effort to do nothing but cause further
delay.
II. THE COURT SHOULD ESTABLISH PROCEDURES THAT WILL EXPEDITE
PROVIDING A REMEDY TO JANE DOE 1 AND 2.
The other point that the Court should consider in crafting remedial procedures is the
extraordinary amount of time that the Government has already managed to delay a resolution of
the petition filed by Jane Doe 1 and 2. As the Court is aware, Jane Doe 1 (and then Jane Doe 2)
filed this action in July 2008, and the Government has since raised a seemingly non-stop series
of objections. And not to be outdone, Epstein also intervened and succeeded in delaying the case
for a year while he took a meritless interlocutory appeal to the Eleventh Circuit. See Jane Doe I
and Jane Doe 2 v. U.S., 749 F.3d 999 (11th Cir. 2014). The upshot is that in this case involving
federal sex offenses against two child victims, a resolution of the petition has been delayed for
more than a decade.
The CVRA contemplates rapid resolution of the crime victims' issues. The CVRA's
enforcement provision provides that "[t]he district court shall take up and decide any motion
asserting a victim's right forthwith." 18 U.S.C. § 3771(dX3) (emphasis added). The Court of
Appeals is required to "take up and decide" any mandamus petition for review "within 72 hours
after the petition has been filed." Id. (emphasis added). To be clear, Jane Doe 1 and 2 have
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appreciated the care with which this Court has reviewed this complicated case and believes that
the Court has satisfied its obligations under the CVRA. But with regard to the Government, the
Court must view any request for delay by the Government with a wary eye in view of the
accelerated timelines the CVRA establishes. Indeed, the Government is statutorily obligated to
protect victims' rights to proceedings free from "unreasonable delay." 18 U.S.C. § 3771(a)(7).
Jane Doe 1 and 2 provided the Government with a specific list of possible remedies that
they were seeking in 2011. The Government has had seven years(!) to review that list — more
than ample notice of what was going to be requested as the remedies in this case. The Court
should evaluate any claim that the Government now needs more time to assess the situation
against that backdrop of years and years of litigation protracted by unfounded Government
resistance.
III. JANE DOE I AND 2' PROPOSED PROCEDURE FOR THE COURT TO
DETERMINE A REMEDY.
In light of the principles discussed above, Jane Doe 1 and 2 propose that the Court order
the following schedule for determining a remedy in this case, which the Court should enter as
quickly as is feasible:
Not later than two weeks from the date of the Court's order: The Government should
specify in writing how and when it proposes to remedy the violation of the rights of the two
victims (Jane Doe 1 and Jane Doe 2) who are parties to this litigation. If the Government
desires, it can also simultaneously but separately specify whether, when, and how it proposes to
remedy any CVRA violations that denied other victims their rights.
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Not more than two weeks later: Jane Doe 1 and Jane Doe 2 should file any objections and
what (if any) additional remedies they seek from the Court beyond what the Government
voluntarily proposes to provide.
Not more than two weeks later: Intervenor Jeffrey Epstein should be permitted to file
responses to the proposals made by the Government and Jane Doe 1 and 2.
Not more than two weeks later: The Government responds to Jane Doe 1 and 2 and to
Epstein.
Not more than two weeks later: The Jane Doe 1 and Jane Doe 2 reply to the responses
filed to the proposals.
Thereafter, the Court would hold oral argument on the issue, and provide an opportunity
for anyone affected by the issues to address the Court.
Thereafter, the Court would rule as soon as practicable.
IV. PROMPT MEDIATION
In addition, Jane Doe 1 and 2 and the Government have discussed the possibility of a
mediation in this case. Once again, however, the parties have a different point of view as to how
best to proceed. As Jane Doe 1 and 2 understand the Government's position, it is proposing a
briefing schedule that could take months before holding a mediation. As the Court will recall, in
2016 Jane Doe 1 and 2 had joined with the Government in requesting a mediation, which this
Court ordered. DE 374. However, that mediation effort was unsuccessful but led to a delay.
Compare DE 374 (March 23, 2016 order directing mediation in the case and delaying
government response to Jane Doe 1 and 2' summary judgment motion) with DE 403 (June 2,
2017 response by the Government to Jane Doe 1 and 2's summary judgment motion).
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In Jane Doe 1 and 2's view, the mediation went nowhere because of the stage the case
was in at the time — with the Government taking the position that its handling of the case was
entirely proper. The posture of the case is much different now — the Court has ruled that Jane
Doe 1 and 2's rights have been violated and the focus is on providing them a remedy. Jane Doe
1 and 2 are willing to have a second mediation at Government expense to discuss resolving the
case, but they strongly believe that mediation is more likely to be successful if it takes place
against a backdrop of an on-going schedule leading quickly to a court-imposed solution if the
mediation fails. Consistent with their wish to rapidly resolve this case, Jane Doe 1 and 2 ask for
a court-ordered mediation, to be concluded no later than June 3, 2019. The Court should also
direct the Government to have available at the mediation participant(s) with full settlement
authority. Because any resolution could impact on the rights of Epstein, Jane Doe 1 and 2
propose that he should have a full opportunity to participate in the mediation process in a
separate mom from any victim.
Consistent with the position outlined here, Jane Doe 1 and 2 attach for the Court's
consideration a proposed order implementing all these scheduling matters.
V. IF THE COURT GRANTS THE GOVERNMENT'S REQUEST FOR
ADDITIONAL DELAY, IT SHOULD SIMULTANEOUSLY PERMIT JANE DOE
1 AND 2 TO TAKE LIMITED DISCOVERY RELEVANT TO REMEDIAL
ISSUES.
For the reasons just explained, Jane Doe 1 and 2 request that the Court should put this
case on a path toward expeditious resolution as just outlined. The Government will apparently
propose a different approach, including (as we understand it) months of additional delay for
meetings with additional (and unspecified) victims (or lawyers) other than Jane Doe 1 and Jane
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Doe 2. If the Court decides to approve the Government's approach, Jane Doe 1 and 2 would
request two additions to the Government's proposal. First, Jane Doe 1 and 2's counsel should be
permitted to participate in any meetings with other victims. And second, to ensure that any
additional time required to bring this case to a conclusion is minimized, Jane Doe 1 and 2 should
be allowed to take six depositions of witnesses with directly relevant information concerning
remedial issues.
Turning to the first point, the Government appears to want to meet individually with
dozens of victims (apart from Jane Doe 1 and Jane Doe 2) over the coming months — even
though it has not previously met (or, so far we can tell, even communicated) with these persons
during more than ten years of litigation. The Government misunderstands the current posture of
this case. As noted above, the Government had previously objected when just two additional
victims — Jane Doe 3 and Jane Doe 4 — tried to join the case. Indeed, the Government was quite
specific in its position: "[T]his Court should decline to enlarge these proceedings to allow
additional claims and additional petitioners . . . ." DE 314 at 3-4 (emphasis added). The
Government went on to argue that Jane Doe 3 and 4 "have provided no satisfactory explanation
for the delay" in attempting to join the case in 2015. Id. at 8. Indeed, the Government argued
that adding even two additional victims into the case "would prejudice the Government since it
would inject new issues into this litigation." Id. at 11. The Government never gave even a hint
that it was willing to allow Jane Doe 3 and 4 (for example) to be heard at the remedy stage.
On the particular issue of expanding that case to include two additional victims, the Court
agreed with the Government's objection. In so ruling, the Court noted that the Government had
"vehemently" opposed joinder. See DE 324 at 2 (citing DE 290, 314). The Court then explained
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that the merits of this case will be decided based on a "determination of whether the Government
violated the rights of Jane Doe 1, Jane Doe 2, and all 'other similarly situated victims' under the
CVRA. Jane Doe 3 and Jane Doe 4 may offer relevant, admissible, and non-cumulative evidence
that advances that determination, but their participation as listed parties is not necessary in that
regard." DE 324 at 9 (emphasis deleted) (quoting DE 189 at 1; DE 311 at 2, 12, 15, 18-19).
In quoting Jane Doe 1 and Jane Doe 2's pleadings about "similarly situated victims," the
Court was implicitly recognizing the parallels between this case and a class action lawsuit. In
light of this ruling, Jane Doe 1 and Jane Doe 2 can be viewed as the functional equivalent of
"class representatives" in a class action lawsuit. See Fed. R. Civ. P. 23(a)(4). And, further
developing the parallel to a class action lawsuit, Jane Doe 1 and 2's proposed schedule outlined
above allows for a court hearing, during which any individual member of the victims' class
would be able to provide their views to the Court as to how best to proceed — subject to a later
Court ruling — a much more rapid way of obtaining any necessary input than the delay proposed
by the Government. And Jane Doe 1 and 2 also have made clear that Epstein should have a
chance to raise any points he believes that the Court should consider — and have built that into
their proposed schedule.
If the Court determines to allow the Government to delay the case to have meetings with
multiple other persons who are not parties to this case, then Jane Doe 1 and Jane Doe 2 — as class
representatives - should at least be permitted to participate in those meetings through their legal
counsel. The Government, of course, has been litigating against Jane Doe 1 and 2 for more than
ten years. Indeed, the Government even threatened at one point to accuse all the victims of being
criminal participants in their own abuse. See DE 344 at 3-4 (citing Nov. 23, 2015 Tr. at 4-5). It
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is Jane Doe 1 and Jane Doe 2 who have been fighting the Government to vindicate their rights as
Epstein's victims. It makes no sense for the Government to now be able to present its side of this
case in private meetings with victims without the class representatives being able to participate,
in order to frame the proceedings in a way that could be designed to prompt a certain
(presumably pro-Government) view from the other victims.
In addition, as a second point, if the Court approves the months of delay that the
Government proposes, the Court should at least make sure that time is used productively to put
the case in a position for rapid resolution thereafter. The Court can do this by allowing Jane Doe
1 and Jane Doe 2 to collect evidence that might be necessary at any contested hearing on remedy.
In particular, it appears that the Government may attempt to inject into any remedy hearing the
extent to which Epstein was involved in the CVRA violations. The Government has vaguely
alluded in its discussions with Jane Doe 1 and 2 to the possibility that if, for example, the NPA
immunity provisions were rescinded in any way, then Epstein might have the ability to challenge
certain settlement payments made to some of his victims. Whether Epstein would actually make
such a challenge and potentially expose himself to far greater civil liability seems highly unlikely
— and the Government does not appear to have made any effort to even ask him his position.
(Again, Jane Doe 1 and 2 believe Epstein should be given a full and fair opportunity to provide
his position on these issues.) But even more important, the Government has not disclosed to
Jane Doe 1 and 2 the Government's position on any such hypothetical challenge by Epstein —
much less the evidence within the Government's possession that could be used to respond to that
challenge.
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As Jane Doe 1 and 2 have made clear for years, it is their position that "Epstein has
'forfeited' any right to seek specific performance of the non-prosecution agreement. . . . [H]e
was a party to — and, indeed, the instigator of — the Government's CVRA violations. . . . [H]ere
the illegal agreement was a deliberate plan. In such circumstances, any equitable claim Epstein
has for specific performance of the non-prosecution agreement disappears." DE 127 at 9 (citing
U.S. v. Walker, 98 F.3d 944, 947 (7th Cir. 1996) (defendant forfeited right to seek specific
performance of a plea agreement because the agreement was illegal)). Jane Doe 1 and 2 have
reiterated that position in discussions with the Government over the past several months. But the
Government has yet to share with Jane Doe 1 and 2 all of the information it possesses that
Epstein instigated the illegal decision not to notify them of the agreement — or even if it will join
Jane Doe 1 and 2's legal position.
Given the Government's failure to disclose all its information about Epstein's
involvement in the illegal agreement, Jane Doe 1 and 2 need depositions of key witnesses on this
subject. This Court has previously ruled that Jane Doe 1 and 2 could undertake "limited
discovery in the form of document requests and requests for admissions from the U.S. Attorney's
Office." DE 99 at 11. The Court also stated that "[e]ither party may request additional discovery
if necessary." Id.
If the Government will not announce what remedy it is prepared to provide, then
depositions are necessary. Depositions will shed important light on remedial issues beyond what
the available documentary evidence currently reveals. One example of a subject for a deposition
is a "breakfast meeting" that appears to have taken place on around October 12, 2007, between
U.S. Attorney Acosta and Epstein attorney Jay Lefkowitz. This Court has previously noted that
18
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this meeting occurred. See Jane Does I and 2 v. U.S, 359 F.Supp.3d 1201, 1210 (S.D. Fla.
2019). And a subsequent letter from Lefkowitz to Acosta briefly refers to "a commitment" by
the U.S. Attorney at that meeting that his Office "would not . . contact any of the identified
[victims] . . . in this matter." Id. But what was discussed specifically does not appear to have
been memorialized. A deposition will answer that and other related questions and will, Jane Doe
1 and 2 believe, establish that the Epstein was ultimately responsible for the decision not to
disclose the existence of the immunity provisions to them.
With the assistance of the Court, Jane Doe 1 and 2 were able to secure various emails and
letters between the Government and Epstein's attorneys. But the documents available to Jane
Doe 1 and 2 do not fully reveal what was agreed to among the lawyers for the United States,
Palm Beach County, and Epstein. Indeed, it appears that some of the key players decided not to
put in writing what was happening — as this Court has previously noted. See Jane Does I and 2
v. U.S., 359 F.Supp.3d 1201, 1207 (S.D. Fla. 2019) ("Palm Beach County State Attorney
wrote the line prosecutor about the proposed agreement and added: 'Glad we could get
this worked out for reasons I won't put in writing. After this is resolved I would love to buy you
a cup at Starbucks and have a conversation."' (emphasis added)).
Accordingly, if the Court grants the Government's request for delay, Jane Doe 1 and 2
request that during the months of delay, they be given leave to depose six witnesses - former
U.S. Attorney Acosta, who negotiated restrictions on what the victims could be told, during the
"breakfast meeting" and otherwise; Assistant U.S. Attorney who implemented the
directions she was given by the U.S. Attorney; former Palm Beach County State Attorney Barry
, who was involved in the plea discussions and was "glad" to work a deal out for reasons
19
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he would not "put in writing"; Epstein Attorney Jay Lefkowitz, who was a key participant in the
"breakfast meeting" and was deeply involved in crafting the restrictions on what the victims
were to be told; and FBI Agen who were responsible
for interacting with the U.S. Attorney's Office on the subject of victim notifications and provided
some of those notifications.
Jane Doe 1 and 2 can provide further information about why these six witnesses have
important information connected with the remedies that are available in this case. But the
Government has already agreed that this Court has this power to allow such discovery. See DE
99 at 11 ("the United States agreed that this Court, under its inherent authority to manage this
case, could impose discovery obligations on each party."). And in its July 20, 2015 initial
disclosures under Fed. R. Civ. P. 26(a)(1)(A)(1), the Government itself listed all these witnesses
as persons who possess information relevant to this case. Jane Doe 1 and 2 respectfully submit
that it would expedite a resolution of this case if they were permitted to take depositions during
any delay in a resolution proposed by the Government.'
CONCLUSION
For all the reasons explained above, the Court should adopt Jane Doe 1 and 2's proposed
procedures and schedule for reaching a resolution on the appropriate remedy in this case.
DATED: May 10, 2019
3 Based on their current (limited) understanding of the Government's position on
remedies in this case, Jane Doe 1 and 2 believe that with six depositions, they could collect the
necessary evidence for a remedial hearing. They reserve the right to seek additional discovery if
the Government's position on remedy necessitates it.
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Respectfully Submitted,
/5/ Stagg P. Seiwalua
Bradley J. Edwards
Edwards Pottinger LP
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the University of Utah*
383 S. University St.
alt Lake it T 84112
John Scarola
Searcy Denney Scarola Barnhart & Shipley
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
Attorneys for Jane Does I and 2
This daytime business address is provided for identification and correspondence
purposes only and is not intended to imply institutional endorsement by the University of Utah.
21
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Case 9:08-cv-80736-KAM Document 452 Entered on FLSD Docket 05/10/2019 Page 22 of 22
CERTIFICATE OF SERVICE
I certify that the foregoing document was served on May 10, 2019, on counsel of record
using the Court's CWECF system:
U.S. Attorneys' Office for the Northern District of Georgia
600 U.S. Courthouse
75 Ted Turner Drive, S.W.
ltlantainGA 30303
Attorneys for the Government
Roy Eric Black
Jacqueline Perczek
Black Srebnick Komspan & Stumpf
201 S Biscayne Boulevard
Suite 1300
Miami FL 33131
Attorneys for Jeffrey Epstein
/8/ saraeet p. Edwevzo
22
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EXHIBIT
1
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PAUL G. CASSELL
Ronald N. Boyce Presidential Professor of Criminal Law
S.J. Quinney College of Law at the University of Utah
383 S. University St.
Salt Lake Ci , UT 84112
February 25, 2019
Ms. Arian Fajardo Orshan
U.S. Attorney for the
Southern District of Florida
500 E. Broward Blvd.
Ft. Lauderdale, FL 33394
Re: Protecting the Rights of Teffrey Epstein's Victims
Dear Ms. Orshan:
We represent several victims of sex abuse and trafficking crimes committed by
Jeffrey Epstein, including Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4. We write
to request that you make your best efforts to see that these victims are accorded their
rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771. In particular, we
ask you to immediately rescind the provisions in the non-prosecution agreement
barring prosecution of Epstein and his co-conspirators and reopen the investigation. As
Judge Marra has clearly ruled, your Office entered into those particular provisions with
Epstein in 2007 illegally. We ask that you now extend to our clients — and all of
Epstein's victims — their right to confer about the reasons Epstein and his co- conspirators should be federally prosecuted by your Office for the crimes he committed
against them.
You are no doubt generally familiar with the facts surrounding Epstein's
numerous federal sex crimes committed within your District, so we will just highlight a
few salient facts that were all recently found by U.S. District Judge Kenneth Marra in his
detailed opinion and order granting our clients summary judgment and finding that
your Office had violated the CVRA. Opinion and Order, Jane Does v. United States, No.
9:08-cv-80736 (Feb. 21, 2019) (hereinafter referred to as "Summary Judgment Order").
As Judge Marra explained, between about 1999 and 2007, "Jeffrey Epstein
sexually abused more than 30 minor girls, including Petitioners Jane Doe 1 and Jane
Doe 2 ... at his mansion in Palm Beach, Florida, and elsewhere in the United States and
• This daytime business address is provided for identification and correspondence purposes only and is not intended
to imply institutional endorsement by the University of Utah.
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Case 9:08-cv-80736-KAM Document 452-1 Entered on FLSD Docket 05/10/2019 Page 3 of 6
overseas. Because Epstein and his co-conspirators knowingly traveled in interstate and
international commerce to sexually abuse Jane Doe 1, Jane Doe 2 and others, they
committed violations of not only Florida law, but also federal law." Id. at 1-2 (internal
citations omitted). To make a long story short, ultimately in 2007 your Office entered
into a non-prosecution agreement with Epstein, in which your Office agreed not to
prosecute him for federal sex abuse crimes committed against Jane Doe 1 and Jane Doe
2 and countless other underage girls whom Epstein and his co-conspirators victimized.
Id. at 7-10. This non-prosecution agreement was an illegal agreement, as your Office
entered into it by violating the CVRA:
Here, it is undisputed that the Government entered into a NPA
with Epstein without conferring with [Jane Doe 1 and Jane Doe 2] during
its negotiation and signing. Instead, the Government sent letters to the
victims requesting their "patience" with the investigation even after the
Government entered into the NPA. At a bare minimum, the CVRA
required the Government to inform Petitioners that it intended to enter
into an agreement not to prosecute Epstein. Although the binding effect of
the NPA was contingent upon Epstein pleading guilty to the state charges,
that contingency was out of the control of the Government. The
Government's hands were permanently tied if Epstein fulfilled his
obligations under the NPA. Thus, Petitioners and the other victims should
have been notified of the Government's intention to take that course of
action before it bound itself under the NPA. Had the Petitioners been
informed about the Government's intention to forego federal prosecution
of Epstein in deference to him pleading guilty to state charges, Petitioners
could have conferred with the attorney for the Government and provided
input. In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (there are rights under
the CVRA including the "reasonable right to confer with the attorney for
the Government"). Hence, the Government would have been able to
"ascertain the victims' views on the possible details of the [non prosecution agreement]." Id. Indeed, it is this type of communication
between prosecutors and victims that was intended by the passage of the
CVRA. See United States v. Heaton, 458 F. Supp. 2d 1271 (D. Utah
2006)(government motion to dismiss charge of using facility of interstate
commerce to entice minors to engage in unlawful sexual activity would
not be granted until government consulted with victim); United States v.
Ingrassia, No. CR-04-0455ADSJO, 2005 WL 2875220, at *17 n. 11 (E.D.N.Y.
Sept. 7, 2005) (Senate debate supports the view that the contemplated
mechanism for victims to obtain information on which to base their input
2
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Case 9:08-cv-80736-KAM Document 452-1 Entered on FLSD Docket 05/10/2019 Page 4 of 6
was conferral with the prosecutor concerning any critical stage or
disposition of the case).
Id. at 26-27.
Judge Marra also noted that your Office had "concealed" the NPA from the
victims and "misled" the victims about the possibility of a federal prosecution:
Particularly problematic was the Government's decision to conceal the
existence of the NPA and mislead the victims to believe that federal
prosecution was still a possibility. When the Government gives
information to victims, it cannot be misleading. While the Government
spent untold hours negotiating the terms and implications of the NPA
with Epstein's attorneys, scant information was shared with victims.
Instead, the victims were told to be "patient" while the investigation
proceeded.
Id. at 28.
In light of these and other illegal actions by your Office, Judge Marra specifically
held that "under the facts of this case, there was a violation of the victims' rights under
the CVRA." Id. at 33. He granted Jane Doe 1 and Jane Doe 2's motion for summary
judgement on the issue of whether your Office violated the CVRA, holding that their
"right to conferral under the CVRA was violated." Id.
Because of these clear and specific findings, your Office now has clear and
specific obligations under the CVRA. In particular, under 18 U.S.C. § 3771(c)(1), all
"[o]fficers and employees of the Department of Justice ... shall make their best efforts to
see that crime victims are notified of, and accorded, the rights described in [the
CVRA]." Your Office must follow this congressional command and "accord" Jane Doe
1 and Jane Doe 2 - along with Epstein's numerous other victims - their right to
reasonably confer with your Office concerning the need for federally prosecuting
Epstein and his co-conspirators for the numerous sexual trafficking crimes they
committed in your District.
Judge Marra has already directly ruled on how your Office must protect
Epstein's victims' rights. Judge Marra has held that the victims' "rights under the
CVRA attach before the Government brings formal charges against a defendant."
Summary Judgment Order at 26 (citing Does v. United States, 817 F. Supp. 2d 1337, 1341
3
EFTA00027801
Case 9:08-cv-80736-KAM Document 452-1 Entered on FLSD Docket 05/10/2019 Page 5 of 6
(S.D. Fla. 2011)). Judge Marra has also held that "the CVRA authorizes the rescission or
"reopening" of a prosecutorial agreement, including a non-prosecution agreement,
reached in violation of a prosecutor's conferral obligations under the statute." Id.
(emphasis added) (quoting Does v. United States, 950 F. Supp. at 1267). Judge Marra has
further held that "section 3771(d)(5) of the CVRA authorizes the setting aside of pre charge prosecutorial agreements ...." Id. (citing Does v. United States, 950 F. Supp. 2d at
1267). And, finally, Judge Marra has further held that "the 'reasonable right to confer ..
. in the case' extends to the pre-charge state of criminal investigations and proceedings."
Id.
In view of these findings - binding on your Office as a party to the litigation —
your Office has a statutory duty to protect the CVRA rights of Jane Doe 1 and Jane Doe
2 through "rescission or reopening" of Epstein's non-prosecution agreement. We
request that your Office immediately take that step and notify all of Epstein's victims
that the provisions in the agreement blocking the federal prosecution of Epstein and his
co-conspirators have been rescinded and that the victims now have a right to confer
with your Office about federal prosecution of Epstein. You and the other prosecutors in
your Office have specific and personal obligations under the CVRA to make your "best
efforts" to accord the victims of their rights. Congress did not limit those obligations in
any way, and your Office must follow that congressional command.
In the past, we have met at various times with your predecessor and the capable
prosecutors handling this matter, trying to resolve these issues without the need for
further litigation. All those efforts have been for naught, because your Office
continually asserted the position that it had not violated the victims' CVRA rights.
Now that Judge Marra has directly rejected your Office's claim, we hope that your
Office will rapidly do the right thing and give the victims' the conferral and other rights
to which they are entitled.
We would be happy to meet with your Office further to discuss how protecting
victims' rights can be most effectively accomplished. In light of Judge Marra's order
that we are to confer with your Office regarding issues concerning remedies in this case
by March 8, the favor of a prompt reply is requested.
4
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Thank you in advance for considering these requests.
Sincerely,
4
Bradlef Ed#vards
Paul G. Cassell
Jack Scarola
Counsel for Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4
cc:
5
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EXHIBIT
2
EFTA00027804
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PAUL G. CASSELL
Ronald N. Boyce Presidential Professor of Criminal Law
Si. Quinney College of Law at the University of Utah
383 S. University St.
Salt Lake Ci , UT 84112
March 4, 2019
Ms. Arian Fajardo Orshan
U.S. Attorney for the
Southern District of Florida
500 E. Broward Blvd.
Ft. Lauderdale, FL 33394
Via email: Sarah.Schall@usdoj.gov
Re: Protecting the Rights of ieffrey Epstein's Victims
Dear Ms. Orshan:
As you know, we represent several victims of federal sex abuse and sex
trafficking crimes committed by Jeffrey Epstein, including Jane Doe 1, Jane Doe 2, Jane
Doe 3, and Jane Doe 4. On February 25, 2019, we wrote to request that you make your
best efforts to see that these victims are accorded their rights under the Crime Victims'
Rights Act (CVRA), 18 U.S.C. § 3771 — specifically that your Office immediately rescind
the provisions in the non-prosecution agreement barring prosecution of Epstein and his
co-conspirators and reopen the investigation. We requested the favor of a prompt
reply. Judge Marra has directed that we confer to determine whether we can jointly
fashion a remedy for the violation of the victims' rights and, in any event, what
submissions and proceedings are needed to reach a final resolution of the remedy issue.
We have a right to confer under the CVRA. You have not yet responded.
We write — again and with increased urgency — to request that your Office
immediately work with us to implement the only efficacious remedy for the victims that
is available: rescinding the provisions in the non-prosecution agreement barring
Epstein's prosecution for federal sex crimes by your Office. As we explained in our
earlier letter, Judge Marra has already ruled that the law permits this remedy. Judge
Marra has specifically held that "the CVRA authorizes the rescission or "reopening" of a
prosecutorial agreement, including a non-prosecution agreement, reached in violation of a
prosecutor's conferral obligations under the statute." Opinion and Order at 26, Jane
Does v. United States, No. 9:08-cv-80736 (Feb. 21, 2019) (quoting Does v. United States, 950
F. Supp. at 1267). Judge Marra has further held that "section 3771(d)(5) of the CVRA
authorizes the setting aside of pre-charge prosecutorial agreements ...." Id. (citing Does
v. United States, 950 F. Supp. 2d at 1267).
• This daytime business address is provided for identification and correspondence purposes only and is not intended
to imply institutional endorsement by the University of Utah.
EFTA00027805
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You and the prosecutors in your Office have an obligation to afford our clients
their congressionally granted right to confer about whether to prosecute Epstein. See 18
U.S.C. § 3771(c)(1). Through more than a decade of litigation, the U.S. Attorney's Office
for the Southern District of Florida and sexual assault victims have been litigating
whether the victims' rights were violated. That issue has been decided. The only issue
for your Office now is whether it wants to confer with victims about whether federal
prosecution of serial pedophile and major international sex trafficker is appropriate.
Congress has directed that prosecutors must confer with victims about important
prosecutive decisions. The path forward now is simple. We could work together to
draft a proposed court order that will quickly resolve this long-running litigation, by
declaring the provisions of the NPA barring Epstein's prosecution to be invalid and that
your Office will confer about whether to prosecute. We stand ready to discuss details in
the proposed order, including creating time for Epstein to raise any objections he might
have with the court.
If for any reason you are unwilling to agree with what we believe is the obvious
resolution of this unfortunate split between victims of federal sex crimes and
prosecutors with power to prosecute those crime, we would —again — like to quickly
confer about the matter. On behalf of our clients, we have a right to confer under 18
U.S.C. § 3771(a)(5).
Time is of the essence. On Friday of this week, we must advise the judge
whether the victims and the prosecutors are united - or divided. The favor of quick
response is — again — requested.
cc:
Sincerely,
4
Bradle E ards
Paul G. Cassell
Jack Scarola
Counsel for Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4
2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:08-cv-80736-KAM
JANE DOE 1 AND JANE DOE 2,
Petitioners,
v.
UNITED STATES,
Respondent.
ORDER REGARDING SCHEDULING ON REMEDY ISSUES
This matter is before the Court pursuant to the Court's order directing the parties to
confer regarding how they propose proceeding on the determining what remedy, if any, should
be applied in view of the Court's finding that petitioners Jane Doe 1 and Jane Doe 2's right to
conferral was violated. DE 435 at 33. The parties have conferred, and each have submitted
proposed procedures for making that remedy determination.
The Court having carefully reviewed that parties' submissions, it is hereby ORDERED
AND ADJUGED that:
Not later than two weeks from the date of the Court's order, the Government shall file a
statement specifying how and when it proposes to remedy the violation of the rights of the two
victims (Jane Doe 1 and Jane Doe 2) who are parties to this litigation. If the Government
desires, it can also simultaneously but separately specify whether, when, and how it proposes to
remedy any CVRA violations that denied other victims their rights.
Not more than two weeks later, Jane Doe 1 and Jane Doe 2 shall file any objections and a
statement of what (if any) additional remedies they seek from the Court beyond what the
Government voluntarily proposes to provide.
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Not more than two weeks later, Intervenor Jeffrey Epstein is permitted to file, if he so
chooses, any response to the proposals made by the Government and Jane Doe 1 and 2.
Not more than two weeks later, the Government shall respond to Jane Doe 1 and 2 and to
Epstein.
Not more than two weeks later, Jane Doe 1 and Jane Doe 2 shall reply to the responses
filed to the proposals.
Thereafter, the Court may either rule on the basis of the submitted papers or may hold
oral argument on the issue at a time it shall direct, at which it will provide an opportunity for
anyone affected by the issues to address the Court.
The Court also refers this matter to mediation for purposes of conducting a conference
with respect to the manner in which violations of the CVRA will be remedied. The mediation
shall be held no later than June 3, 2019. The mediation shall be held in Palm Beach County,
Florida, unless otherwise agreed by the parties and shall be conducted by a mediator chosen by
agreement of the parties. The parties shall have available at the conference participant(s) with
full settlement authority. Because Intervenor Jeffrey Epstein has intervened on the issue of
remedy, he shall also participate in the mediation with appropriate legal counsel, who shall
remain in a separate room from Jane Doe 1 and Jane Doe 2. The Government shall bear the
costs associated with the settlement conference.
DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County,
Florida, this day of May, 2019.
KENNETH A. MARRA
United States District Judge
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