042.pdf

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA, New York, N.Y.
v. 19 Cr. 490(RMB)
JEFFREY EPSTEIN,
Defendant.
------------------------------x Conference
July 31, 2019
11:05 a.m.
Before:
HON. RICHARD M. BERMAN,
District Judge
APPEARANCES
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: ALISON J. MOE
ALEXANDER ROSSMILLER
MAURENE R. COMEY
Assistant United States Attorneys
MARTIN G. WEINBERG
Attorney for Defendant
STEPTOE & JOHNSON, LLP
Attorneys for Defendant
BY: MICHAEL C. MILLER
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 1 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT: So, today's conference was scheduled at
the end of the July 18 court conference hearing on that date.
I thought that we would devote at least the -- well, probably
most of today's proceeding to talking about the schedule in
this case, and I asked the lawyers to get together and see if
they could come up with a mutually agreeable schedule, which
would include trial date, motion practice, discovery, etc.
Does anybody want to let me know how you made out?
MS. MOE: Yes, your Honor.
We have conferred with defense counsel and talked
about a proposed schedule for this case. So we are prepared to
propose to the court today a schedule for discovery, for
discovery-related motions, for pretrial motions, and we are
also prepared to talk about setting a possible trial date.
THE COURT: Okay. What have you got in mind?
MS. MOE: So, with respect to discovery, we would
propose a discovery deadline of October 31 to complete
discovery, with one exception. There are materials from
devices seized from the defendant's residence in New York, and
the F.B.I. is beginning the process of reviewing that data.
In discussing that with defense counsel, we have begun
to discuss a process for a privilege-review protocol. It's
possible that process may take longer than October 31. But
aside from that universe of documents, we would propose setting
a schedule of October 31 as a deadline for discovery.
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 2 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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For discovery-related motions, we would propose that
the defense file any motions that they are aware of relating to
discovery, to include motions relating to the nonprosecution
agreement, by September 13 --
THE COURT: By when?
MS. MOE: September 13, your Honor.
-- that the government be permitted to respond by
October 4; with any reply due on October 11, as necessary.
Of course we understand that if the defense comes to
have additional motions related to discovery based on the
ongoing discovery process that we will confer and propose an
additional briefing schedule beyond that, as necessary. But
with respect to motions that the defense is already aware of,
including the NPA, that is the schedule that we would propose
at this time.
Regarding pretrial motions, your Honor, we would
propose that the defense file their motions by January 10, that
the government be permitted to respond by February 10, and that
any replies be due on or before February 24.
THE COURT: Got it.
MS. MOE: And finally, your Honor, we are prepared to
discuss a trial date in this case. The government is asking
the court to set a trial date in this matter. We would propose
that the court schedule this matter for trial in June of next
year, and we estimate that the trial would take approximately
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 3 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
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four to six weeks, and so that trial date would carry into
July. And I understand that the defense has some comments
about that proposal, but that's the government's proposal with
respect to a trial date.
THE COURT: Okay. Let me hear from the defense.
Do I understand it correctly that, with the exception
of the trial date, those dates are agreeable?
MR. WEINBERG: Those dates are agreeable, your Honor.
THE COURT: Counsel, whatever you wish to add, that
would be fine.
MR. WEINBERG: We would ask the court to set a
preliminary trial date immediately after Labor Day. I say
preliminary because we want time to assess Mr. Epstein's --
THE COURT: This year?
MR. WEINBERG: Yes.
THE COURT: This Labor Day. Okay.
MR. WEINBERG: We want time to assess Mr. Epstein's
ability to . . .
(Counsel confer)
MR. WEINBERG: I'm sorry. I am being told that your
Honor was inquiring as to the year. Let me --
THE COURT: Yes. I thought you wanted a speedy trial,
and so --
MR. WEINBERG: Not with a four- to six-week trial with
discovery coming in October, Judge. I apologize for being
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 4 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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imprecise. Labor Day 2020 or immediately thereafter. And I
make that recommendation -- we haven't received the discovery
yet. Understandably, it is coming, and I'm not in any way
contesting that there has been a delay, but we haven't had an
opportunity to start reviewing what the government has
predicted to be over a million pages of discovery with
Mr. Epstein and to assess Mr. Epstein's ability to exercise his
constitutional right, while at MCC, in assisting counsel
prepare for a very difficult case that addresses events that it
is alleged occurred 14 to 17 years ago.
THE COURT: Okay.
MR. WEINBERG: So, we need time to receive a million
pages of discovery and to prepare to defend a four- to six-week
trial, when a lot of the immediate attention is going to be on
the very unique and complex constitutional issues connected to
the nonprosecution agreement, our contention that the
government's allegations are inextricably intertwined and
constitutionally barred by the NPA. There are double jeopardy
issues both connected to the conspiracy count, which looks to
be an overlap with one of the charges that was expressly within
the immunity provisions in the NPA. We are going to be
spending a lot of time, and that's why I agreed with the
government that we should make early discovery motions on the
NPA-related issues, on double-jeopardy-related issues, so that
we could not only facially brief the motion to dismiss, but
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 5 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
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have the discovery, the subfacial discovery, if you will, so
that we could make a comprehensive briefing along the lines of
the schedule for motions.
THE COURT: That's what I was going to suggest, if
there is a time period when you could put it all together, as
it were, and there is a lot of flexibility. So I will leave
these dates, you know, for now.
With respect to the trial date, I could accommodate
either June or September of 2020. The issue is not so much as,
from my point of view, when you are all ready, but what part of
the calendar I block out. So is it realistic to block out time
in June?
MR. WEINBERG: I think it is -- I don't want to have
the court block out a six-week time and then come to the court
in March and say we need a continuance and risk a September
date.
THE COURT: Got it. Okay. So a September date, you
are saying, sounds like it certainly is realistic.
MR. WEINBERG: Thirteen months sounds like the amount
of time that we would ordinarily need to prepare a case of this
magnitude and scope.
THE COURT: All right. That is fine for me.
Just while we are taking care of details, a speedy
trial issue or application? Why don't we extend it to
September of 2020?
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SOUTHERN DISTRICT REPORTERS, P.C.
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MR. WEINBERG: This case certainly meets all of the
statutory criteria for complexity and we would agree to that
extension, Judge.
MS. MOE: Your Honor, may I briefly be heard with
respect to the trial date?
THE COURT: Oh, sure. You know, it does sound like it
is kind of premature, but I'm happy to hear you. It is often
the defense that is ahead of the government, or not often, but
equally, but here it is the other way around. So if the
defense is not ready, it would be my practice to defer to the
defense, but I don't know that it is fixed in stone either way.
But, sure, I am happy to hear you.
MS. MOE: Your Honor, by way of background, we had
initially proposed to the defense a May trial date. We think
that there is a public interest in bringing this case to trial
as swiftly as manageable. We understand, given their concerns
in wanting to have more time, we proposed a date in June as a
compromise position. We understand if the defense has
indicated that they need additional time. We are sensitive to
those concerns. But we do have a concern about the notion of
setting a September trial date and that that trial would be
preliminary or as a placeholder. Thirteen months is a
considerable amount of time for a case of this nature to go to
trial; and, again, given the time period of the charged conduct
and the length of time that's passed, we do think that there is
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 7 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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a public interest in scheduling a fixed trial date in this
case. Of course we understand if issues arise in the interim,
we will address that as it occurs, but we do think it makes
sense at this juncture to set a firm trial date. We don't
think that any delay in this case is in the public interest.
THE COURT: Counsel.
MR. WEINBERG: We think that the delay in bringing
this charge, your Honor, the natural corollary of that is to
make it more difficult, not easier, for us to defend
Mr. Epstein. For instance, there are certain sealed files for
potential witnesses that we would have to go to other courts to
seek to unseal. There is an NPA to litigate. This case is not
your ordinary 1591 case. A case of four to six weeks is not
the ordinary amount of time the government takes to prosecute,
whether it is old or new cases. We need 13 months. I'm trying
to make a principled argument, Judge, that that would be a
schedule that we would try our best to meet, conditioned on our
ability to work with Mr. Epstein under the current conditions.
Thank you, sir.
THE COURT: Okay.
So, we are going to monitor the case from now until
then anyway, so I think everybody will be in a better position
to know what is realistic with respect to a trial date. I will
exclude time from today through, let's say, June 8, but that,
of course, is without prejudice to hearing from the defense and
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Case 1:19-cr-00490-RMB Document 42 Filed 08/06/19 Page 8 of 10
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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the government as to actually where things stand. Long before
then we will know. So we will have a conference, or several,
between now and then. Let's see where everybody is as the
months go by, and then we will know when we can effectively
hold the trial.
So I am going to find, under 18 United States Code §
3161, that the request for adjournment, joined in by both
sides, is appropriate and warrants exclusion of the adjourned
time from Speedy Trial calculations. I further find that the
exclusion is designed to prevent any possible miscarriage of
justice, to facilitate these proceedings, including extensive
pretrial preparation, and to guarantee effective representation
of and preparation by counsel for both sides, and thus the need
for exclusion and the ends of justice outweigh the interests of
the public and the defendant in a speedy trial pursuant to 18
United States Code § 3161(h)(7)(A) and (B). So that exclusion
goes to June 8, 2020 preliminarily.
Counsel, is it your thought that these motions would
be on submission or did you want to have oral argument with
respect to any aspect of them?
MR. WEINBERG: We would seek oral argument, your
Honor.
THE COURT: So let's set October 28, 2019 for oral
argument, and I am tentatively reserving some time on my
calendar, as I said before, on June 8, 2020, but I will have a
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SOUTHERN DISTRICT REPORTERS, P.C.
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much better feel for where things are long before that and
certainly I would say on October 28 we would have a much
clearer picture of how things stand.
So there you have it. Did you have -- go ahead.
MS. MOE: Just to clarify, your Honor, what time would
the court like the parties to appear on October 28?
THE COURT: 10 a.m.
MS. MOE: Thank you, your Honor.
THE COURT: And the June 8 date is 9 a.m. Okay?
MR. WEINBERG: Would your Honor want to schedule an
argument on the substantive motions that will be fully briefed
before the court on February 24?
THE COURT: Yup.
So let's schedule that oral argument for March 12,
2020, at 10 a.m.
Great. So anything anybody else has to talk about?
MR. WEINBERG: Not from the defense, your Honor.
MS. MOE: Not from the government, your Honor. Thank
you.
THE COURT: Okay.
MR. WEINBERG: Thank you very much, sir.
THE COURT: Nice to see you all.
oOo
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