036.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA,
v. 19 CR 490 (RMB)
JEFFREY EPSTEIN,

Defendant.
Conference
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New York, N.Y.
July 15, 2019
10:05 a.m.
Before:
HON. RICHARD M. BERMAN,
District Judge
APPEARANCES
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: ALEXANDER ROSSMILLER
ALISON G. MOE
Assistant United States Attorneys
Martin G. Weinberg, PC
Attorney for Defendant
Steptoe & Johnson, LLP (NYC)
Attorneys for Defendant
BY: REID WEINGARTEN
MARC FERNICH
Attorney for Defendant

JAMES BROCHIN
Attorney for Defendant
JOSEPH JAFFE
Attorney for Defendant
APPEARANCES (Cont'd)
Also Present:
David Boies
Brad Edwards
Paul Byrne, NYPD
Amanda Young, FBI
Bernisa Mejia, Francesca Tessier-Miller, and Dennis Khilkevich,
U.S. Pretrial Services n}
THE COURT: Good morning, everyone. Please be seated.
For your information and for the people sitting in the
overflow courtroom, we have tried to accommodate everybody into
this proceeding either here in my usual courtroom or in the
overflow room. So I hope everybody can hear me.
The purpose of today's proceeding, as I'm sure you're
all aware, is to conduct a bail hearing. In this matter, as I
think you know, the government is seeking continued pretrial
remand of Mr. Epstein and the defense is arguing for pretrial
release. The parties have submitted helpful written
submissions, and they have been placed on the docket.
You should also be aware, if you weren't -- I don't
think you are -- that there is what's called a pretrial
services report. One has been filed with me today.
Typically the purpose of such a report is to make a
recommendation to the Court as to whether there should be bail
or detention.
There was an additional report -- I think they've
gotten additional information in today's report -- and the
representatives of pretrial services are here in the court
today.
The report itself is typically not filed on the
docket, but it does conclude as follows. This is a quote. It
says that "There is no condition or combination of conditions
that will reasonably assure the appearance of the defendant as
required and the safety of the community." It goes on to
conclude that: "Therefore, pretrial services respectfully
recommends the defendant be detained."
Now, of course this ultimately is the issue that I
have to decide and will do so with your help.
You should be aware, incidentally, that I have not yet
reached a decision on this matter, and I do not intend to do so
today. I need a little bit more time to absorb everything
that's been submitted, and I will probably do so, that is to
say, give my decision here in the courtroom, on Thursday,
July 18, at 9:30 here in Courtroom 17B. I will endeavor to
finish by then and to be able to share with you my
determination.
We also have in the court today several persons who
are contending that they are victims in the legal context of
Mr. Epstein's conduct. They're welcome in these proceedings.
Indeed, they have the right to be present, and they also have
the right to be heard under federal law.
As I understand it, they have advised the Court,
through counsel and through the government counsel, that they
oppose bail for Mr. Epstein. They may also be heard today in
court if they wish to be heard.
So for today, I thought, if this is agreeable to the
government and the defense, I would give each side say up to 20
minutes, if they wish to have it and if they do wish to be
heard on their respective issues.
The government always has the burden of proof. So I
would start with them. They made the first application which
was for remand.
I should tell you -- and I will right now -- that I
have some questions for each side. And I'm going to go over
them with you right now so that before the government and the
defense speaks, they will know what questions I would like them
to address, if they wish to. Otherwise, they can say whatever
they wish. But these are questions that I have on my mind.
So the first question is this. It involves some
discussion that I would like each side to address. As you
know, this case involves two counts or two charges.
These are allegations contained in the indictment.
One is conspiracy to commit sex trafficking. And the other,
the second count, is the substantive count of sex trafficking.
The referenced statute is 18 U.S. Code, Section 1591. And for
our purposes, since this is a bail proceeding, also the Bail
Reform Act.
Section 1591, as is relevant here -- those cases are
unusual in the criminal law insofar as they carry with them a
presumption that "No condition or combination of conditions
will reasonably assure the appearance of the person as required
and the safety of the community."
As you probably know already, most cases carry a
presumption that bail will be granted. That is not true with
respect to the charges here.
The presumption of remand, as in this case, may be
rebutted by the defense. And if it is, the government has the
burden of proving that remand is nevertheless warranted.
Indeed, the government bears this burden of persuasion
throughout.
The burden with respect to the safety of the community
is clear and convincing evidence, and the burden with respect
to risk of flight is preponderance of the evidence.
The defense argues that the presumption of remand is
rebutted here. And I refer to several places where they say
that, but one is at page 6 and following of their letter
application for release of Mr. Epstein.
So my question as relates to this burden and
presumption is for the defense particularly, how was the burden
rebutted in this case which is something that they contend
they've been able to do.
And my question for the government is whether that
presumption has been rebutted and, if so, how has the
government been able to prove remand is appropriate, if it has.
So here is another question. Actually, I have a lot
of questions. But the ones that are on top of my mind are
five. We have all the time in the world. So if you have more
questions, I'd be happy to have them answered.
So the question is the following: Mr. Epstein has
been required to register as a sex offender in several states
going back I believe to 2008 when he pled guilty to an offense
in Florida.
Those states include New York, Florida, and the Virgin
Islands. So one question I have for each side is what about
New Mexico. That's half of the question.
The rest of the question is as follows: Mr. Epstein
has applied in New York state to lower his sex offender status
from what's called a level 3, which is the highest level which
I think carries with it a high risk of recidivism, according to
these levels and to sex offender regulation.
And he sought to have that lowered to level 1. His
application was denied, as I understand the proceedings, by the
Board of Examiners of Sex Offenders New York state and then in
state court by the courts and, particularly, a decision of the
Honorable Justice Ruth Pickholz on our about January 18, 2011.
I believe that decision was appealed to the New York State
Appellate Division and was unanimously upheld.
I read this morning a copy of the transcript of the
proceedings before Judge Pickholz which I'm likely to place on
the docket after today's session. And the question is for each
side. First of all, they're free to comment on my description
of the proceeding before Judge Pickholz.
But the question is whether there were or are other
legal or administrative proceedings in Florida, the Virgin
Islands, New Mexico, and any other jurisdiction comparable to
the one before Judge Pickholz in which she ruled on 1-18-2011.
So I'm not suggesting that there are, although I think
I did read someplace that there may be some proceeding pending
in New Mexico. I'm not quite sure. That's what I hoped you
could help me out on.
It doesn't have to be precisely the same proceeding
that Judge Pickholz had. I'm looking for any transcripts in
particular and administrative or legal proceedings in other
states relating in any way to Mr. Epstein's sex offender
status.
The third question on my mind is this: The defense
has submitted a brief financial summary to the Court of
Mr. Epstein's assets. And I, as you know, permitted that it be
submitted under seal for, among other reasons that were on my
mind, not to slow the proceedings down.
The summary is cursory I would say, short, less than a
page and does not fully assist me in rendering the bail/remand
decision, that is to say, in its detail or absence of detail.
And moreover, the information provided in that summary seems to
be known already to the government in other ways. They seem to
have gotten that information from other sources.
So I am inclined to place the summary on the docket,
but I want to hear from both sides whether I should or should
not do that.
Four, the government, as you probably know, has
conducted a search of Mr. Epstein's home on East 71st Street on
the Upper East Side a little over a week ago in tandem, as it
were, or in connection with Mr. Epstein's arrest.
The government contends in its submission that the
information uncovered as a result of that search supports
detention, pretrial detention, in this proceeding.
And I would like to know from the government
particularly what that information is and whether it would be
feasible -- it certainly would be helpful if there is such
information, that a sample of that evidence in some form be
included in this bail remand proceeding.
Lastly for now, this fifth question. The government
contends that there is evidence of recent what appears to be or
what could be alleged witness tampering or obstruction of
justice in connection with two recent payments, one in the
amount of $250,000 and another in the amount of $100,000 to, as
I understand it, to two employees or associates of Mr.
Epstein's.
Those payments were made soon after a Miami Herald
story about this case and particularly the role of the Florida
United States Attorney, Mr. Acosta at the time, and the U.S.
Attorney's Office.
And I would like to hear from the government and/or
the defense what additional insight about this episode they can
share with us to support their position in these proceedings.
So, as all good lawyers, I reserve the right to have
more questions, and I probably will.
But I'm happy to begin with Mr. Rossmiller and have
you heard on the issue of remand versus bail. If you can
include some or all of these questions in your presentation,
that would be great.
MR. ROSSMILLER: Yes, your Honor.
Your Honor, the government seeks pretrial detention in
this case due to the extraordinary risk of flight and the
danger presented by the defendant to the community, a danger
that is not speculative but, rather, is evident from his prior
actions. As a result, we join with the recommendation from
pretrial services and the requests of the victims that the
defendant be detained.
As the Court pointed out, with the sex trafficking
offense charged here, there is a presumption that no
combination of release conditions could reasonably assure the
defendant's appearance and the protection of the public.
The Court asked whether the presumption has been
rebutted, and the answer is no. There has been no information
provided by the defendant to rebut that presumption in this
case.
And in particular, as the Court noted, the defendant
provided no specific detailed financial information in its
submission. I'll get into that in a little bit more in a
moment.
But certainly the first question for a defendant of
this tremendous means is how much money does he have, where is
it, what are the accounts, is it in foreign accounts, how much
is in diamonds or art. These are all details that would be
necessary for the Court to even begin to consider this type of
application.
So, no. The presumption has not been rebutted.
However, your Honor, even if the defense were able at some
point to rebut the presumption by providing some more
information, there simply is no way that they can meet the
standard here.
The evaluation of the Bail Reform Act suggests that
all of those factors counsel in favor of remand, which we'll go
into in a little more detail.
THE COURT: It is accurate to say that you as the
government has the burden of persuasion or proof in this
instance. Right?
MR. ROSSMILLER: Yes, your Honor. There are good
reasons why sex trafficking has a presumption of detention and
even more so where a defendant, as this defendant has, has
previously been convicted of a sex offense.
And in connection with that, his dangerousness is
clear from his willingness to tamper with witnesses and victims
as the Court can see from the two police reports produced to
the Court and from the defendant's payments just months ago to
individuals associated with the defendant during the relevant
time. The Court asked a question about that.
Your Honor, we just became aware of those payments
late last week. We, frankly, don't have additional information
other than that they were paid, that they were paid to two
individuals who were associated with the defendant at the time,
and that those two individuals are both listed in the
non-prosecution agreement.
So there is certainly an inference there that the
defendant was attempting to influence them right around when he
came back into public consciousness.
Your Honor, the victims in this case seek detention
and fear his release. And most of all, he is an extraordinary
flight risk. As the government has discussed, he has six
homes. He owns two private islands. He owns a residence in
France. And he has told his own financial institution that he
is worth more than $500 million.
In the government's filing last Monday, we described
the defendant as being extraordinarily wealthy which was
confirmed by the defense even in his very minimal financial
disclosure.
Since the government's initial filing, we have
obtained records from a financial institution that has been
associated with the defendant confirming that the defendant
represented his net worth as more than $500 million.
Your Honor, just as one example, the defendant had a single
account at that financial institution totaling more than $110
million.
There can be no dispute whatsoever that this defendant
has vast assets and every incentive in the world to use those
assets to flee from justice.
Your Honor, the government seeking detention in this
case is not unusual. Defendants are routinely detained in this
district when facing such charges, and this defendant should be
treated no differently. The fact that he has considerable
resources to flee prosecution only makes the case for his
detention stronger.
On that note, with respect to the strength of the
evidence, again, last Monday, the government described its
evidence as "strong." Just a week later, after seven days of
this case being public following months of a covert
investigation, the evidence is already significantly stronger
and getting stronger every single day.
Many individuals identifying themselves as victims and
witnesses have contacted the government, and we are in the
process of receiving and corroborating this additional
evidence.
Your Honor, with a case that's no longer covert, we
have been able to dramatically expand the scope of our
investigation in just the last week. And that additional
evidence builds on a case that was already indicted by a grand
jury, that already included evidence of dozens of alleged
victims, that already included significant corroborated
evidence, evidence that led to the charges for which this
66-year-old defendant could serve up to 45 years in prison.
The defendant has essentially conceded that the
government will be able to prove the elements of the crimes
currently alleged. They acknowledged in their submission that
the government likely will be able to show that the defendant
engaged in sex acts for money with girls he knew were under
age.
Now, in the face of all of this evidence and the
extraordinary incentives for the defendant to flee, what does
the defendant propose? Nothing that would meaningfully
mitigate the risks of danger and especially flight.
THE COURT: Are you talking about the bail package
now?
MR. ROSSMILLER: Yes, your Honor.
So in the first instance, the defendant's one-page
financial disclosure form is more significant for what it does
not include than what it does. It is cursory, as the Court
said, at best.
It does not include a list of accounts. It does not
include a list of financial institutions. It does not identify
what types of currencies the defendant holds. It does nothing
to identify the location of his holdings. It does nothing to
identify high-value property such as diamonds or art, both of
which were observed in abundance in just the government's
search of his Manhattan mansion.
The other thing, your Honor, is we're just relying on
the defendant's word for all of this. This is not sworn. It's
not under penalty of perjury. There are no account statements.
There are no bank records. There is nothing to validate this.
That's not to say that if this were validated, that
this would somehow rise to the level of being granted bail, but
it's notable with respect to the presumption in particular and
also with respect to how the Court evaluates the defendant's
assets that we are relying on him.
The defendant's financial disclosure form should alarm
the Court, your Honor, not give it comfort that there are
conditions that would keep the defendant from fleeing and
prevent him from being a danger.
With respect to the proposed package, the defendant
proposes the Court accept his Manhattan mansion as security for
a bond. Now, the government has already designated that
property for seizure making it worthless to the defendant. He
proposes cosigners who couldn't possibly secure a package
representing even a fraction of his wealth.
THE COURT: I don't know that we know that because we
don't really know what their financial situation is.
MR. ROSSMILLER: I suppose that's true, your Honor.
Based on the government's preliminary research, it seems like
they wouldn't be able to, but we have no idea. That's exactly
right.
The defendant's proposal of home confinement and
electronic monitoring is also meaningless for an individual
with his financial resources. Reducing this defendant's head
start in fleeing should be of no comfort whatsoever.
In connection with that factor, your Honor, just this
morning, the government became aware that in a locked safe in
the defendant's mansion there were piles of cash, dozens of
diamonds, and a passport appearing to be issued from a foreign
country with a photo of the defendant and a name on that
passport that is not the defendant's name.
THE COURT: Say that again.
You found that today?
MR. ROSSMILLER: We became aware of it today. It was
seized in connection with a warrant, and we became aware of it
just this morning, the particular details this morning.
THE COURT: When you say "piles of cash," did you
count it?
MR. ROSSMILLER: No. We have not counted the cash,
your Honor. It does raise the question of how many other safes
are there in how many other locations with items like these.
The defendant also makes proposals that highlight,
rather than mitigate, the dangers of granting bail. His offer
to consent to extradition is unenforceable, and it highlights
his extensive connections abroad.
I should say, your Honor -- I forgot to mention -- the
passport that I just referenced listed at the time his
residence as Saudi Arabia, and this was from the 1980's.
THE COURT: Would you describe that passport again.
I'm not sure I caught it.
MR. ROSSMILLER: I can, your Honor.
The passport was issued in the name of a foreign
country. It appears to have been issued sometime in the
1980's. It is expired currently. It has a photo that appears
to be the defendant, and it has a name that is not Jeffrey
Epstein.
In connection with that, I also want to note that the
defendant's proposal for private security is inadequate and
impractical and would put the defendant in the position of
having complete financial control over the people who are
supposed to guard him.
As this Court has written: "What more compelling case
for an order of detention is there than a case in which only an
armed guard and the threat of deadly force is sufficient to
assure the defendant's appearance."So that's just on flight,
your Honor.
With respect to danger to the community, none of the
defendant's proposals address the very significant danger this
defendant proposes, both to victims and witnesses and to the
proper administration of justice.
The government has heard from more than one victim
that in connection with the prior investigation, they believed
they were being instructed by the defendant or his associates
to avoid or lie to law enforcement.
The defense said in its submission that it was without
knowledge as to the basis of the incidents referenced by the
government in our initial filings.
So, as the Court saw, we submitted the underlying
police reports. Those police reports are detailed, they're
credible, and they're supported by corroborating evidence such
as phone records.
THE COURT: These are from Florida; right?
MR. ROSSMILLER: That's correct, your Honor. These
are very real concerns, and they cannot be mitigated if the
defendant is released.
And as the government noted in its submission and as
the Court asked about, even recently the defendant has sent
hundreds of thousands of dollars to two individuals just days
after the publication of significant news articles about the
defendant.
THE COURT: Could you go back to those Florida police
reports and tell us what you think they demonstrate.
MR. ROSSMILLER: Yes, your Honor.
They certainly suggest that there were individuals who
believed that they were being harassed and interfered with by
the defendant or his agents. That was investigators or other
individuals working on behalf of or at the behest of the
defendant.
Now, those aren't charges proven in court. Those
aren't convictions. But they certainly are factual occurrences
that people reported contemporaneously and that are significant
and concerning.
With respect to just a couple of the Court's
questions, bouncing around just slightly, with respect to the
financial information which, again, is limited at best, the
government took no position on the defendant's sealing
application for, among other reasons, the fact that we did not
know what they were going to submit. We imagined that it would
be more detailed.
Secondly, the government obviously had just hours to
respond to the defendant's at that point. So we took no
position and of course defer to the Court as to whether there
is a valid reason to seal such limited and summary information.
We will confer, your Honor, on whether we're able to
provide a sample of the search warrant materials. Those
materials remain under review. They are, generally speaking,
many, many, many photographs of nude and partially nude women
and girls who appear to be young.
The government has identified at least one individual
in those photos who has self-identified as a victim of the
defendant. And, frankly, it is a lot of material that we are
continuing to work through.
With respect to the sex offender registration of the
defendant in other states, your Honor, following up on the
Court's question last week, we did confer with New York state
authorities.
There is no particular result from this case in terms
of his registration in New York. He remains registered, but
there is no specific consequence as to him being charged or
arrested in this case and no change of his status. He is
already, of course, at the highest status of risk for
re-offense.
Just very briefly, your Honor, with respect to some of
the other arguments that defense counsel made --
THE COURT: Are you familiar with whether or not there
are other proceedings in other jurisdictions of a similar
nature to Judge Pickholz's decision?
MR. ROSSMILLER: We are not aware of any similar
proceedings. That's not to say that there aren't any, but the
government is not aware of any at this time, your Honor.
Now, turning just very briefly to some of the legal
arguments that defense counsel raised in their submission, the
defendant raised legal arguments that he says he intends to
argue later.
The Court should have no confidence whatsoever that
the defendant would stick around to pursue long-shot, dubious
legal arguments at some future time. As set forth in the
government's submission, the non-prosecution agreement does not
preclude this prosecution.
And even if that agreement were applicable to this
district, which it is not, the defense itself acknowledges that
the indictment included evidence beyond the initial
investigation. That effectively moots this issue for the bail
argument. This case will go forward.
The defendant will lose any argument about due
process. He will lose any argument about pre-indictment delay.
And if he choses to be tried before a jury of his peers, we are
confident he will be convicted.
The Court should ensure he is here when that time
comes by ordering his detention.
THE COURT: Counsel.
MR. WEINBERG: Thank you, your Honor.
If I can, your Honor, before responding to the Court's
questions, put this case in some context.
Before 1984, before the Bail Reform Act, there was an
Eighth Amendment that the United States Supreme Court
guaranteed bail to anyone who wasn't charged with a capital
offense, and the justices wrote continuously that was because
detention impairs a defendant's ability to prepare a defense.
In this case, the government has told us there's going
to be an enormous amount of discovery. The stakes are grave,
and one of the most important reasons for Mr. Epstein's release
is to permit him the right to fully prepare a defense.
The second reason that before 1984 there was an
entitlement to bail was because of the presumption of innocence
and because of the basic premise of the American criminal
justice system that you don't punish first and have a trial
second; that non-convicted citizens don't get detained which is
essentially a label for punishment.
There is no way to replace the freedom if Mr. Epstein
is to prevail on these charges. If the government's over a
decade of delay is found prejudicial by the Court which
thereafter dismisses the charges, if the Court determines that
the nonpros agreement was circumvented by the prosecutors in
Florida when they encouraged their witnesses and their
witnesses' lawyers to go to the Southern District and catalyze
and create a case. That's unique.
These were not two silos, the Southern District of
Florida and the Southern District of New York. It is more than
coincidental that on the Saturday before the Monday filing by
Mr. Epstein in Florida in the CVRA case Mr. Epstein is
arrested.
We have evidence not only of an enormous amount of
overlapping evidence, but we have evidence of the involvement
of the Department of Justice; the CEOS unit, the Child
Exploitation Unit, both before the nonpros agreement was
executed, they were involved with the Southern District of
Florida. And after, they volunteered essentially to be part of
a team in the event that Mr. Epstein did not conclude his
obligations under the CVRA.
THE COURT: You mentioned in your submissions -- and I
think you mentioned or your colleague mentioned the last time
that we were in court -- that high-level Department of Justice
officials approved the non-prosecution agreement.
MR. WEINBERG: Yes, your Honor.
THE COURT: Who are they?
MR. WEINBERG: First, the agreement was executed on
September 24, 2007. Appeals were taken by Mr. Epstein
challenging the federal interest in what was a potential state
prosecution.
The first level was the criminal division. The head
of the criminal division, Alice Fisher, assigned to Sigal
Mandelker. I may be mispronouncing her name, but she is the
current Undersecretary of the Treasury.
She received submissions from the defense that this
was essentially a local crime without the necessary interstate
elements that constitute the foundation of federal prosecution.
We had a meeting in Washington with a number of the
defense team with representatives of the criminal division and
the representatives of the CEOS, the Child Exploitation Unit.
They recognized that their position was not squarely
within the precedence that had preceded this March 2008
meeting. They recognized the arguments were novel; that some
of the provisions in the NPA were novels. But they endorsed
the exercise of prosecutorial discretion that was at the heart
of the NPA.
THE COURT: Was there any proceeding at which their
position is documented or any correspondence?
MR. WEINBERG: Yes, your Honor. There are submissions
by the defense to the criminal division in Washington that I
believe were dated in March. And then there was a response in
May which in essence authorized --
THE COURT: May of what year?
MR. WEINBERG: May of 2008.
THE COURT: What did it say?
MR. ROSSMILLER: It endorsed the exercise of
discretion after recognizing in about a six- or seven-page
letter that the facts and circumstances surrounding the NPA
were unusual; that these allegations were not within the
heartland of federal jurisprudence or the federal statutes that
were targeted for Mr. Epstein.
THE COURT: They actually said that and then endorsed
the agreement --
MR. WEINBERG: They said that they were unusual
arguments; that they essentially understood the arguments we
were making. They didn't denounce the federal case.
They, instead, said that they believed, after a
review, that there was authority and that there was a
sufficient discretion that should be accorded to the U.S.
Attorney.
An appeal was then taken to the Deputy Attorney
General who at the time was Mr. Filip, F-i-l-i-p. Again, I may
be butchering his name.
THE COURT: That's his last name?
MR. ROSSMILLER: That's his last name. Mark I think
is his first name.
He assigned John Roth, who was a former Florida
prosecutor and was his deputy or the deputy to the Deputy
Attorney General. And Mr. Roth received further written
submissions. Again, there was the second endorsement of the
discretion that Mr. Acosta in Florida exercised when he
approved.
And this was not a single-man approval. The
negotiations in the Southern District of Florida included the
head of the first assistant, Mr. Sloman.
THE COURT: In New York.
MR. WEINBERG: Right. In the Southern district, there
were six or seven prosecutors, including New York City
prosecutors, in what was either the largest or second largest
U.S. Attorney's Office. I don't know how the manpower compares
to the Southern District of New York.
This was well thought through. Again, it was with
consultation of the Department of Justice before September 24
and then again after where the government continued to
investigate.
THE COURT: Is Mr. Filip the highest level official in
the Department of Justice?
MR. WEINBERG: Yes. He was just one step below the
Attorney General.
THE COURT: He was Deputy Attorney General?
MR. WEINBERG: Deputy Attorney General.
In May or June of 2008, he approved the discretion to
enter the NPA and to essentially endorse the decision and
implicitly endorsed that there was some federal interest in
this case because we were contesting whether or not this was a
case that warranted the weight of the federal government which
required Mr. Epstein to go to the state which had returned an
indictment for solicitation and actually urged the state of
Florida to bring a second charge that would subject Mr. Epstein
to registration which was part of the obligations that he
accepted, and no one quarrels with his performance.
He went to the state. They returned the higher
charge. He went to jail. He did his strict probation with
home detention. And he's been registered since 2010.
I think these facts are important, not just because
they are the cornerstone of a potential legal defense, and I
won't go through all of the different factors that we believe
on a principal basis will distinguish this case from the
precedence that Mr. Rossmiller is relying on.
These were not two silos. The Southern District
didn't stand completely detached from the activities and the
events in Florida. But that's a motion to dismiss that will be
brought later. The premise is if we're right and they're wrong
and he's detained, he's lost freedom without punishment.
Your Honor asked about the rebuttable presumption, and
I think this also goes back to the events of the 2007 and 2008
era.
THE COURT: So the presumption, first of all, the
people who wrote that presumption into law clearly know about
bail and history and the need for defendants to consult with
their counsel, etc.
But in this rather narrow class of cases, almost all
of them I think relating to children or young people, there are
a whole series of cases, exceptions to be sure, where the
presumption of remand maintains. And this is one of those
cases.
MR. WEINBERG: Yes, your Honor.
THE COURT: So why is that?
MR. WEINBERG: Interestingly, if I can point out
another provision in the Bail Reform Act, and this is 3142(c).
At the very end of the set of conditions, the Congress in 1984,
which was essentially revolutionizing the criteria for release,
says that: "In any case that involves a minor victim under" --
and they quote a series of statutes, including 1591 -- "any
release order shall contain at minimum a condition of
electronic monitoring, a curfew, and other conditions."
So Congress recognized that despite the presumption,
which the law says is rebuttable and is more a burden of
production than an ultimate burden of persuasion issue,
Congress understood that defendants charged with 1591 would be
released under conditions at the discretion of the court and
that if they were --
THE COURT: I think they understood that they could be
released, not that they would be, otherwise, they wouldn't have
written that presumption.
MR. WEINBERG: Absolutely.
THE COURT: So could you share any insight why,
notwithstanding -- and I don't disagree with you. Bail is the
norm rather than the exception. But we totaled up -- I don't
know if there are more -- 12 cases, all of which involve a
minor victim -- kidnapping, sex trafficking of children,
aggravated sexual abuse, sexual abuse, offenses resulting in
death, sexual exploitation of children, selling and buying of
children, the production of sexually explicit depictions of a
minor for importation into the United States, crimes involving
the transportation of minor victims, coercion and enticement,
transport of minors, and use of interstate facilities to
transmit information about a minor.
All of those -- there may be others, but those are the
ones we found -- also carried this presumption of remand
instead of bail.
MR. WEINBERG: Yes, your Honor.
THE COURT: Presumption.
MR. WEINBERG: Yes, your Honor. If we're looking at
1591 -- and I'm not here today to in any way diminish the
gravity of the allegations against Mr. Epstein, but it's far
away from the heartland of 1591 commercial sex trafficking that
deals with servitude and deals with enslavement and deals with
pimps, if I can use that word, selling women for commercial
profit.
We've provided the Court with some of the division in
the law, including decisions by this Court, by Judge Jones
relying on a South Dakota opinion, by the chief justice that
finds the statute inapplicable.
THE COURT: Is that the Fiaro (phonetic) case?
MR. WEINBERG: Yes, your Honor. Again, today is not
the day to be arguing Rule 29 issues or even the construction
and scope of the statute. But I think lots of the detentions
are for your quintessential traffickers.
And I understand we don't have consent and, therefore,
the government substitutes that language. But this is not
quintessential commercial sex trafficking to third parties for
profit.
But more important or as important, if I can say that,
the presumption is rebuttable. Even in those cases that
your Honor listed, the statute contemplates that some 1591
defendants will be released under conditions, and I believe
that the rebuttal to the presumption -- one is the danger
prong; one is the flight prong. If I can address them
separately.
THE COURT: Sure.
MR. WEINBERG: I apologize if I'm using the time.
THE COURT: No. You have the right.
MR. WEINBERG: Thank you, Judge.
THE COURT: I think that is interesting. So those
prongs have different burdens of proof for one thing, clear and
convincing in one instance and preponderance in the other.
It's either/or or both one could find. But if one
found one of those, either a danger to the community or flight
risk, that would suffice.
MR. WEINBERG: I think I have to bear the burden of
rebutting the presumption as to each prong, although I think
once rebutting the burden falls on the government, and then
they have different substantive burdens of proof.
So danger. There are two categories of the dangers
that have been identified by the government. Number one is
simply the danger of recidivism which is the classic danger
that results in detention when detention is predicated on
danger.
And Congress was very clear that they -- because the
danger prong is predictive. It is not just was he a bad guy.
Did he do things in the past. That's what a trial is for.
That's what legal issues are for. It's can we infer from the
past that he is a future danger and can we do it by clear and
convincing evidence.
In terms of rebutting and the burden of production as
to that part of the danger prong, 14 years, since 2005 until
2019. And the government, despite a website, despite their
enormous ability to investigate -- and they've been
investigating for months -- there is no allegation that
Mr. Epstein, after 2005, engaged in illegal sexual activity
with a minor.
Again, I'm not diminishing the gravity of the
allegations in 2005 and 2004, but once he knew that he was
being investigated, he wasn't a predator that couldn't control
his conduct. He disciplined himself.
There has been no allegation since the commencement of
that investigation that Mr. Epstein again endangered a minor.
Putting aside consent, there is just no allegation.
The witnesses that Mr. Rossmiller will offer to the
Court in the future, at least to the extent that they've been
characterized by the government, are more witnesses with a kind
of a parallel group of witnesses to the 2002 and '05
allegations. So I think a 14-year gap is an eloquent rebuttal
to a burden of production presumption as to danger.
THE COURT: So I have a question about that too
because I'm not so sure. I don't purport to know, but I'm not
so sure.
So in your letter to the Court -- I think it's at page
6 -- is one of a series of strong statements. This one in
particular says: "Any danger that Mr. Epstein may have once
posed to the community has long since abated." Another
sentence used the word "evaporates," but let's say "abated."
The defense submission goes on to say: "At the very
least, this enormous gap in time precludes a finding,"
"precludes a finding by clear and convincing evidence that no
conditions of release can reasonably assure the community's
safety."
Right? That's your position as a matter of law. You
don't find any case where that says 14 years, and it's over or
it evaporates, etc.
The argument though is that 14 years ought to be
enough of a period of time. Right?
MR. WEINBERG: I think the premise is that when the
man was not under conditions of release, if your Honor was to
exercise your power to release him, he didn't re-engage in this
activity that constitutes the heart of both the Florida and the
current New York prosecutions.
And at a certain point, when you're dealing with the
government's burden to prove by clear and convincing evidence
going forward in the future, the idea that he would abandon his
14 years of self-discipline when he's under conditions of bail
that can result in his rearrest and re-detention -- I don't
think the government can carry that weight or carry that
burden.
THE COURT: So I'm very interested in this question.
It's a very interesting question. As you may or probably know,
there are studies of recidivism, studies of recidivism directly
related to sex offenders.
I'll share with you what I've looked at because I
don't want you to think I'm researching on my own anything that
you are not aware of. These are, I think, government-supported
studies that measure recidivism beyond 10 or 14 or 15 years and
that purport, if I read these studies, to show that the nature
of recidivism is not always that, oh, I'm not going to do this
conduct anymore. It's more of a psychological aspect I would
say.
But they measure recidivism rates -- for example, one
study that I saw -- and I'll put this up on the docket so
you'll know what I was looking at -- measures recidivism at
five years, at ten years, and at fifteen years.
And the response, the percentage of recidivism
actually goes up at 15 years. I'm not going to quote the
percent. I know it, but I don't know how accurate it is, but
it is substantially higher than the recidivism rate at five
years, for example.
So all I'm saying is I don't think it's so clear that
with the passage of time, the presumption, so to speak,
evaporates or disappears.
There is other discussion in some of these studies
that sex crimes are the most difficult to evaluate in relation
to recidivism and a lot of other concepts because in sex
crimes, victims very often don't come forward.
This is not a phenomenon when we hear in this case or
even in another case on the news that where was the victim
then, didn't come forward. That's not an uncommon phenomenon
having to do with a whole complex number of factors. So a lot
of these cases are never reported.
I don't know that you can just draw the conclusion
that -- by the way, you're suggesting that the measure of
recidivism is a reported classic case by the prosecutor, state
or federal, indictment, etc., etc.
That may not even occur in most instances because a
lot of cases that are even referred to prosecutor offices are
never formalized or never brought.
So I'm not sure that the passage of time, without more
and without more study and with let's say discipline of a
defendant -- I'm not sure that that gets us there.
MR. WEINBERG: I guess I would have two responses.
THE COURT: Sure.
MR. WEINBERG: One, that the level of publicity
brought to Mr. Epstein and brought in this case and even
brought before the bringing of this case, his wealth which
makes him an attractive civil defendant as well as a criminal
defendant -- and there have been a number of complaints or
threats or notices or demands by different civil lawyers.
But there is an unprecedented amount of publicity that
would mobilize and motivate people who were victimized by him.
If there were any people victimized by him after 2005, it is
utterly lacking in the average case where some victim doesn't
know that they've got an ear, whether it's an ear of the civil
bar or an ear of the United States Attorney, to receive,
positively receive, and embrace an allegation against
Mr. Epstein.
And, two, again, without getting into in any way of
appreciating the gravity of these charges, the government
writes on page 2 of its submission, this was not a case --
again, putting the age of these witnesses and putting the
consent issue aside, it's not like he's an out-of-control
rapist.
He doesn't fit within the paradigm of many of the sex
offenders that are the subject of the research that your Honor
is accessing.
THE COURT: And I don't mean this personally directed
because I don't have any way of knowing one way or another of
Mr. Epstein, but the question is: How do you know that?
MR. WEINBERG: I know that because --
THE COURT: You may say, he's my client, and I know
he's a good fellow and all that.
MR. WEINBERG: I actually do think that if he was
unable to control his conduct, given the level of publicity,
we'd know it. The government would know it.
But secondly, these 15 years have not been uneventful.
I think this goes also to rebut the notion that he is a flight
risk. His house was searched in 2005 giving him notice that
the state authorities were conducting an investigation.
It was an intensive investigation. It led in 2006 to
the U.S. Attorney's investigation that itself was intensive.
There were grand jury subpoenas. There was an enormous amount
of attention by the FBI.
He didn't flee. This was all before the NPA while he
was facing the very same 1591 and even additional statutes that
carried additional potential federal penalties, interstate
travel, interstate communications.
Again, we have to infer from the past what the future
conduct would be. I think it's important that he hired lawyers
to defend him. He didn't run away.
Despite the fact there was no bail, no conditions, he
didn't have the publicity he has now, he could have, if he was
a fleer, left at that time and done what the government fears
he would do today if released under an enormous set of
conditions that I will ask to supplement.
Two is the next period was the NPA period. Again, he
signed up to go to state jail, county jail. He went to county
jail. He got out in 2010. He was subject to the
registrations.
And if I can go back in to try and answer your Honor's
questions on registration. He has not reapplied challenging
the New York Appellate Division or the New York Supreme Court
decision.
There was a legal dispute. Mr. Epstein's counsel at
the time believed that the classification in New York should be
restricted to the offense of conviction. And the Court
determined that it would rely instead on an affidavit that it
had presented in the state of Florida that talked about other
allegations leading to the tier three classification.
New Mexico, as I understand it --
THE COURT: Before you get to New Mexico, the court,
as I read -- and I did this morning. So it's fresh in my
mind -- Judge Pickholz -- she relied on the state
administrative body that imposed, so to speak, or who in the
first instance said that a level 3 was the appropriate level,
after considering the series of factors which are reflected in
this transcript.
You know, judges often do just that. She says in this
transcript that she's had many of these cases. They're called
SORA hearings. I must say it's -- I don't know what the word
is I'm looking for, but you'll read it yourself.
She was taken aback I have to say, really taken aback,
Judge Pickholz was, that this application was being presented
to her. She says things like, I have never even the
prosecutor's office do this. So the prosecutor joined in with
defense counsel. I think Kirkland & Ellis and the ADA from
Vance's office joined together, and they both argued for
lowering the offense level from a 3 to a 1.
She says a few things like that which are pretty
unusual for a judge to say, in effect -- first of all, she said
the board made a recommendation. And second, she seemed to be
suggesting that this was unique.
The prosecutor, the DA's office, and the defense
joining together in making such an application is very unusual
I think is what she said. And then on appeal, I think it was
affirmed 5 to 0 actually. They sit on panels of five. So I
was surprised.
MR. WEINBERG: It was, to my recollection, a legal
issue about whether or not the premise for a classification
decision should be the offense of conviction which would have
been consistent with a tier 1 or the overall investigation as
reflected by a probable cause affidavit that ultimately six
judges, the five on the appellate division and one on the
Supreme Court, believed was the appropriate barometer of sex
offender registration.
What's important is that Mr. Epstein has complied with
the registration imperatives of each state of his residence.
He's got the unusual circumstance of having multiple
residences.
His principal residence is the Virgin Islands which
has him at a tier 1 or the lowest level of classification. New
Mexico he tried to register, and my understanding is that they
said that his nexus to the state did not require further
registration because his travels, his daily occurrences, were
being monitored by his principal residences.
THE COURT: That goes back to the question I have, but
before I get there, we've gone far along. Normally by this
time I would have said -- and I will say it now -- as you
pointed out, what I said the other day at our conference is
that when we get to the bail issue, we're going to have
conversations and discussions that sound like merits
discussions, and they aren't.
And I very much agree with you that the presumption of
innocence everybody has to bear in mind, although sometimes
it's a little difficult when we have these conversations to
separate them out.
It's just fundamental that Mr. Epstein is presumed to
be innocent now and until such time, if it comes, that a jury
or a court makes a determination of guilt. So we always have
to remind ourselves of that, even though we're having these
conversations that seem to touch on merits discussions.
Back to Judge Pickholz, she says, among other things,
but the board found a level 3. Then she goes on to say: "I
have to tell you, I'm a little overwhelmed because I have never
seen the prosecutor's office do anything like this. I have
never seen it."
So I read it today. It came up, and I thought I'd
share it with all of you. She's suggesting, although you're
making plausible legal arguments, that there is really no
basis, at least in her opinion, to reduce the level from level
3 to level 1.
What is the practical difference between a 3 and a 1
in terms of the registrant's obligations to appear or submit
reports or whatever?
MR. WEINBERG: I don't think I can reliably respond
except to say that there was some discussion about whether or
not he was required to physically appear in New York.
And my understanding from the lawyers with personal
knowledge is he was told that unless he was here nine or more
days a month, he was not required to conform to the physical
90-day appearance, despite being a tier 3.
THE COURT: He wouldn't have to come.
MR. WEINBERG: Right. Nobody has ever given him or
noticed a violation in almost ten years of daily monitoring.
He's not someone that just stays at one location.
I've got a stack from one of his lawyers that I won't
burden the Court with about putting on record with the Virgin
Islands, which is the principal monitor of his travels every
day, what is the transportation, where is he going to be. I
see letters saying, we're delayed one day. We'll be coming
into Palm Beach on a certain day.
The point being, I think, two: One, there's been no
violation in nine years; that he's being carefully monitored.
He himself is extraordinarily careful not to trigger a federal
SORA or a state SORNA violation, and he hasn't.
Two, I think that speaks to his ability to be
disciplined, his ability to regulate his conduct consistent
with the mandates, whether it's an administrative agency or a
court's bail release order.
Three, I know of no other proceedings, in answer to
the question your Honor asked -- I think it was question two --
like the proceedings in New York.
I will verify that with the counsel in the different
jurisdictions who can provide primary rather than secondary or
hearsay evidence so we can give you in an additional submission
some meaningful and particularized responses to your Honor's
questions of this morning.
THE COURT: That would be helpful.
There are two things. One is another disclosure on my
part. I did happen to read in the New York Post a story about
the New York state sex offender registration.
The thrust of that story was that Mr. Epstein -- or at
least it appeared to me to be the thrust -- was not in
compliance with his obligations in New York.
Again, it's a newspaper story. I did see it. I share
it with you. You probably saw it too.
MR. WEINBERG: I think I did. I think that's where I
checked with counsel, and that's where I learned of this
nine-day rule which I was not familiar with before checking.
But what I can say is nobody on the New York side has
ever informed Mr. Epstein, despite the now ten-day deluge of
publicity, that he has ever been in violation.
There has been no notice to his New York counsel. And
he has done everything in his power to meticulously conform to
these multiple registrations and inform, through the Virgin
Islands, of travel whether it's to Paris, whether it's to
Florida, whether it's to New York. I don't think there is a
complaint in nine years that he has been in violation.
THE COURT: So is the point or one point that if he is
not here for ten consecutive days or more, he does not have to
report?
MR. WEINBERG: Again, I don't want my credibility
resting on what I haven't personally verified. I am told that
that is the criteria for physical appearance, whether that's
correct or not.
I can tell you that from talking to counsel, there has
been no notice that he should appear and no notice that he's
been in violation, despite the recent media.
THE COURT: When you put together the supplemental
submission particularly about New Mexico, it was hard for me to
imagine, would New Mexico reach out to someone and say, oh, you
don't have to register here?
Or was there some form of application to be exempt or
excused? I don't know for sure.
MR. WEINBERG: My best knowledge is that registration
kicks in when your criminal justice sentence ends. Therefore,
as soon as he was within weeks or months of ending the Florida
probation or community control part of the Florida state
sentence, he tasked lawyers to go to these different
registration boards in the states where he had residence.
It was complicated because of the multiple residences.
And the ultimate decision in New Mexico -- and I can't tell you
whether there was a period where he did register, but I can
tell you that at a point in time very close to the beginning,
New Mexico said, you don't need to register.
I know he made an effort to register because the
concern was that the federal registration statute requires that
you contact the states where you reside.
It was complicated because of the multiple residences,
and the last thing he wanted to do was to create a new offense
through an omission of the obligations under the federal SORNA.
So he went to New Mexico. And I will particularize
the names of the people and the names of the lawyers, but he is
not required to register. New Mexico knows he's there because
the Virgin Islands tells the different places where he travels
that he's coming. He's under close supervision.
THE COURT: I got it.
I think I sort of assumed something like that, that
counsel in different jurisdictions would have had a meeting or
filed an application or a letter or something or rather causing
the administrative agency to respond.
This is really now stretching my recollection. I
thought I read in all of these papers somewhere that New Mexico
was examining its decision that he needn't be registered in
that state.
MR. WEINBERG: It may be. And if they advise that he
is to register --
THE COURT: He would I'm sure.
MR. WEINBERG: -- it is just an incremental additional
registration obligation because he's under so many in Florida,
New York, and the Virgin Islands.
The so other part of danger -- and I apologize. I
will get to flight --
THE COURT: No apology needed.
MR. WEINBERG: -- is the government allegation that as
a result of the incident reports in Palm Beach dating back to
2006 that Mr. Epstein is a danger to others and should be
detained.
What I would respond to that is that the report -- and
I showed Mr. Rossmiller a slightly better, unredacted version
of page 86 of an incident report of Detective Recarey from the
Palm Beach Police -- reflected that the date of the complaints
by the parents was May 22 or May 23, 2008.
It was the week that Mr. Epstein had hired new counsel
there which was a Mr. Jack Goldberger from West Palm Beach.
And Mr. Goldberger was scheduled, according to the incident
report, to meet with the representatives of the State
Attorney's Office. So Lanna Belohlavek who was the head of the
sex offender unit of Mr. Kirshner's state attorney's office.
Mr. Goldberger -- again, this is hearsay, and
Mr. Goldberger can attest to it, if it's necessary -- was never
asked about this alleged incident.
The investigators, certainly not authorized by
Mr. Epstein, to go and drive people off the road. There is
simply no proof that he authorized it or until discovery knew
it. There was no charge against an investigator which I
contend there would be, given the intensity of this
investigation in Florida.
I can't explain what the facts are. I see the report.
I see the claim. But if the state attorney believed that a
representative of Mr. Epstein drove a parent off the road, I
don't think that would be missing in the negotiations between
his new counsel.
Then Mr. Goldberger was joined by Roy Black, a Miami
attorney who I know well. Mr. Black has never been asked about
it or told about it and does not know the investigator.
Mr. Goldberger doesn't know the investigator. I have no other
explanation, other than it doesn't rise to clear and convincing
evidence.
In terms of the wires that the government -- I think
that the government's language on page 11 of their submission,
your Honor, is most telling in terms of whether these wires
constitute the predicate of detention and the predicate --
THE COURT: The $250,000 and the $100,000?
MR. WEINBERG: Yes, your Honor.
The government says -- and I think they're being
candid in their language in the last sentence on page 11 --
that "Given the timing, it suggests" -- and I underline that
word -- "the defendant was attempting to further influence
coconspirators who might provide information."
So the government -- and I think they've been candid
today -- has not confirmed the witness testimony through
corroboration, through any other corroborative mechanism
whether this was an act of generosity or an act that somehow
was connected to what the government suggests might have been a
motive.
But this occurring when there was no pending judicial
proceeding and no knowledge of a pending investigation doesn't
rise to the level of a federal obstruction which requires the
pendency or the foreseeability of a federal investigation under
the Supreme Court's decision in Aguilar, A-g-u-i-l-a-r, a judge
in California.
We just contend that even when you look backwards to
whether this constitutes an obstruction, the payment of an
employee or the payment of a friend is simply not witness
tampering because the Miami Herald ran an article.
It simply doesn't rise to the level of a past crime
that your Honor has clear and convincing proof occurred, much
less the predictive factor that if Mr. Epstein was released
under the kind of combination of conditions, there would be any
risk of his influencing adversely a witness, now that there is
a federal prosecution. That would be self-destructive. It
would constitute a crime with a nexus to what the statutes
require.
But the conditions also, your Honor, radically
limit -- we've asked your Honor for home detention, and I will
get to the monetary conditions and the risk of flight in a
moment.
We've asked for home detention. We've asked for the
visiting list to be approved by pretrial, meaning almost nobody
except Mr. Weingarten and myself, Mr. Fernich, lawyers on our
defense team.
We would rip out the cell phones. There is one line.
We consent to the monitoring of that line. We consent to the
waiver of search and seizure. These are the conditions that
have been accepted and, again, not always, Judge. There are
detention orders.
I'm a Boston lawyer. I remember arguing before the
Former Chief Judge Mark Wolf on behalf of a defendant who was
arrested about two months after an induction ceremony for
organized crime about 20 years ago.
And Judge Wolf found that along with financial
conditions, along with monetary conditions, the combination of
home detention, monitoring, video cameras, a visiting list
approved by pretrial, a waiver of search and seizure were more
than sufficient to abate any danger, either of obstruction or
of underlying criminal behavior in a case called, U.S. v.
Patriarca.
THE COURT: That reminds me of another question.
Do you think that bail conditions equally apply to
risk of flight and/or danger to the community? It strikes me
that they're different kind of concepts.
MR. WEINBERG: I think your Honor is completely
correct. There is an overlap. I think the danger to the
community is abated more by a lesser list of conditions that I
don't even think the government would quarrel with, were they
not seeking detention.
We could work with the United States Attorney and
agree to conditions that would essentially eliminate danger
because he'd have no way to communicate, so long as the
government trusted that the lawyers who were visiting him were
not going to go and engage in license threatening misbehavior
which I assure you that Mr. Weingarten, myself, and Mr. Fernich
are not.
The conditions for flight, if I can turn to flight, I
contend deal directly with some of your Honor's questions about
the monetary conditions and some of the government's objections
to those that are offered.
So let me be as clear as I can.
THE COURT: You might as well know what I'm thinking.
So respectfully, I don't think that the financial summary tells
me anything really. For one thing, it's some unverified list
of assets, not audited, not certified, and not very detailed
either.
Mr. Epstein may be unusual, but there are no
obligations, for example, no debts, no expenses. That,
depending on if that's true -- maybe he's debt free and
obligation free. But that would impact whatever the list of
assets were if that were known too.
It seems to me you have to know a -- there needs to be
a fuller financial picture to know what would be appropriate.
MR. WEINBERG: Let me be blunt. It was our first
effort, and I am authorized to say to the Court that whatever
bond you want Mr. Epstein to sign, whether it's $100 million or
an amount close to the amount of the assets that we have
provided, Mr. Epstein is prepared to sign it.
He intends to appear. Once he appears, the prejudice
of a large bond is extinguished. He's met its conditions. The
same with collateral. Whatever collateral your Honor believes
would disincentivize him -- again, it's a temporary lien on
property that would be extinguished upon his appearance in
court, and he fully intends to appear.
Whereas, in our bail submissions -- and they were
admittedly rushed -- we did what we could amongst defense
counsel. We want the Court to know that whatever monetary
conditions, Judge, you believe are necessary and appropriate to
meet the imperatives of the Bail Reform Act, which is to
reasonably assure his appearance.
And I would go farther, to virtually guarantee his
appearance, in combination with the home detention and
monitoring and limitation of communications he would accept.
He would sign any bond, and he would give your Honor and the
United States District Court clerk whatever collateral the
Court ordered.
Likewise, were your Honor to consider monetary
conditions, we would provide a more particularized list
believing that monitoring his accounts and making sure that
they didn't fall beneath the level of the personal recognizance
bail would be appropriate.
Again, I think to some extent, I'm backing into the
answer to question three which is the sealing question and
whether the financial information should be public.
I think if your Honor is to grant bail that includes
the monetary conditions, then this becomes a judicial document
that is at the heart of a bail release order, and the public is
entitled to it.
I think if your Honor is to determine that release is
not appropriate, despite all of the conditions that we argue
provide a compelling basis for both safety and appearance, that
I don't think the financial conditions information should be
other than confidential because it wasn't at the heart of the
judicial ruling that the public would want to understand.
THE COURT: I'm not sure I understand why it comes in
sort of heads, I win/tails you lose. Or no?
If it's a public interest and no harm in releasing it
and if you were to get bail you would happily release it. But
if you didn't, you wouldn't, I don't really get why it wouldn't
just be disclosable in either case.
MR. WEINBERG: It's two reasons really. One is that
the financial information, if provided to pretrial, is
confidential and to be used by the Court for bail
determinations. Two is there is an enormous public interest --
THE COURT: That's true even if I determined that
there should be bail.
MR. WEINBERG: Yes, your Honor. But I do think, as
much as I'm not urging the Court to disclose it, I think there
are overriding considerations that if your Honor were to
release a man on bail, the public has a right to know the your
bail conditions -- how they correlate to a man's wealth.
If a man has a billion dollars -- and he doesn't. If
your Honor were to set a $20 million bail, that's an enormous
bail for someone with $21 million but not an enormous bail for
someone with more.
I think in the First Amendment common law it would be
a judicial document of importance to explain a judicial
decision.
However, there are countervailing weights, not only
the bail, the pretrial statute and its confidentiality but also
that we are facing a trial some day. And I know it's early,
but there's an enormous amount of publicity, and every fact
that is generated by this proceeding becomes the bases of an
enormous amount of articles.
It's one thing to say Mr. Epstein is wealthy. That's
a kind of generic. It's another thing to be chasing down
values and accounts. And for that reason, we ask the Court not
to publish it unless it's a predicate for your Honor's release
decision.
And, similarly, if the government is to give you a
sample of the seizures, we would make the same request, that
this may be evidence some day and that it's the kind of
evidence that would burden his future right to a fair and
impartial jury in the Manhattan venue.
Judge, unless there are other questions, I would just
conclude by saying that in my many years at the bar, I've read
many detention requests and I've heard many detention
arguments.
Mr. Rossmiller writes eloquently and speaks
eloquently. I've heard the government in different venues,
including this one, talk about extraordinary risks of flight
and extraordinary danger and to diminish the persuasiveness of
the set of combination of conditions.
Madoff was released on bail. He surrendered. Dryer
called the colossal fraud by Judge Rakoff -- he surrendered and
went to jail. Mr. Skilling from the Enron fame went to jail
for 24 years.
I recently had a case with Judge Furman where the
government was arguing for detention that were associated with
somebody in a different country. And he granted bail over
detention, and those defendants came to court and were
sentenced and went to jail.
I'm sure there are examples that the government here
can point to that certain people that can't comply with
conditions. But an enormous amount of people facing detention
requests honor their obligations, particularly when conditions
are set such as the conditions that Mr. Weingarten,
Mr. Fernich, and I have just mentioned to the Court.
THE COURT: Of the cases you just mentioned, were any
of them presumption cases like this one?
MR. WEINBERG: I can't say they are, your Honor, but I
do believe that presumption becomes just a factor when the
burden of production is negated by in this case the 14 years of
non danger to the community and the danger prong and by
Mr. Epstein's compliance and not fleeing an almost elaboratory
setting where in 2004, 2005, 2006, and 2007, Mr. Epstein was
facing the same vigorous U.S. attorneys.
It wasn't until the negotiations that he knew that
they were open to a negotiated resolution. But until then, he
was facing the same power of a very large, very resourced
United States Attorney's Office.
I did want to address the last point which is the
private security point, your Honor.
THE COURT: Sure.
MR. WEINBERG: I'm familiar with your Honor's
decision. I've read it several times regarding the citizen of
Turkey and Iran and Macedonia that had foreign passports and no
ties to the United States except he was arrested while visiting
Disneyland, who lied to pretrial about his background which
Mr. Epstein did not.
He's not that man. Before we even get to the issue of
whether or not your Honor would reconsider your strongly felt
feelings about whether or not the additional condition, on top
of all of the other conditions of money and home detention, the
additional conditions -- I could frame it as a trustee, which
is somebody that the U.S. Attorney would respect, be credible,
living at Mr. Epstein's home, and making sure that there were
no violations.
I know the government would say that's like a
bracelet. It's just a head start.
THE COURT: I was going to ask about that.
So there is a suggestion in the bail package that two
trustees would be living with him. I have not experienced
anything like that before, either in reality or in an
application.
Mr. Weingarten reminds me that a representative of the
company that has been approved by other courts for the security
prong is here and could speak to that condition, whether it's a
trustee condition or whether it's a private guard condition.
But I did want to make one point about the law because
I know your Honor knows the law better than I. Judge Bianco
and your Honor and maybe several other judges are on one side
of a debate. Judge Rakoff and maybe other judges on another.
I read carefully the Second Circuit decisions. There
are three of them. The most recent one actually is the
Esposito decision where the court says that a private guard in
that case is appropriate because he wouldn't be a flight risk
but for his wealth.
So there isn't this kind of invidious discrimination
between somebody who is poor and someone who is wealthy because
if a person is poor, even someone in Mr. Epstein's position,
the government would not be making the same kind of flight
arguments that are predicated upon his wealth.
So they uphold the private guard saying it doesn't
reach the decision some day the Second Circuit may have to
address about whether or not a wealthy person should be denied
release because the private guard condition somehow is more
like detention than release.
We need him released, Judge. This is an enormously
challenging case for his defense counsel. The government is
hugely resourced. They've got over a million pages of
discovery.
He's in the SHU unit. It's not a condition that
somebody can defend themself. And Mr. Epstein's goal, like it
was before, is to hire counsel to defend him and to work with
counsel closely to exercise his presumption of innocence, to
defend himself in a principled way in a courtroom, and not to
flee. And I would urgently ask your Honor to consider our bail
application.
THE COURT: I will.
MR. WEINBERG: Thank you, Judge.
THE COURT: I will consider and reconsider.
On that point, I noticed that was the last paragraph I
think in your letter -- I'll examine that again too -- here is
my reaction. I don't know if this is legally sustainable or
not. I will look at the cases.
You have all these people or have had on Rikers Island
who can't make a thousand dollars bail, for example, and they
have every right to consult with their lawyer, perhaps even
more so than someone who is educated and privileged, and they
might need it more.
I think everybody has the same right, but it's very
hard. If the test is consult with counsel, well, then all this
other conversation we've been having is out the window because
everybody has a right to consult with counsel, and we have to
come up with a new set of cases and a new set of tests.
By the way, don't think I don't appreciate that a
defendant should be counseled and should be able to consult
with counsel. But if that's the standard, then what are we
going to tell all those people who can't make a $500 or $1,000
bail who say, I want to talk to my lawyer because the
immigration authorities are going to come and take my wife
away, etc., etc., separate the kids.
MR. WEINBERG: I have three answers to that too.
THE COURT: I'd like them.
MR. WEINBERG: That's an important question. The
first is that the defendants in Rikers Island, or at least the
vast majority of them, are not facing a prosecution team as
well resourced and as talented as this one. They're not facing
a million pages of discovery. There may be exceptions.
THE COURT: They might be facing a lot more serious
consequences in terms of jail or incarceration for let's say
assault or murder or rape or whatever, and many of them do face
those consequences.
MR. WEINBERG: I do understand, but it's the
complexity and the magnitude of the pretrial preparation, not
just the sentencing consequences that requires us to put that
issue before the Court.
Second, I'm not here to say there should be those kind
of monetary conditions. I know, at least in my state, the
Commonwealth of Massachusetts, there's a movement that I read
regularly about in the Boston Globe -- maybe it's similar
here -- to stop that state practice.
THE COURT: It is.
MR. WEINBERG: Third, the Bail Reform Act, the federal
Bail Reform Act of 1984, has a provision saying that a
defendant should not be denied release based on their inability
to satisfy a monetary condition. So I think to some extent
Congress disapproves of locking someone up because there's a
$500 bail that they can't make.
I'm 73 years old. I grew up in the Warren Court
where life was different, and the criminal justice system got
politicized to some extent. I think there is almost the
reaction to the excess, the overcriminalization, the
overimprisonment that characterized the 1980's and the war on
crime and the war on drugs.
So I at least stand here, as someone with over 45
years of observation, and believe and hope that one of the
areas that we begin to reverse the excess is in keeping so many
presumed innocent people in jail, whether it's Rikers Island or
the MCC.
I again passionately urge your Honor to consider
Mr. Epstein's release. Thank you so much for the time, Judge.
THE COURT: Thank you.
Anybody else? Did you want to comment?
MR. ROSSMILLER: If we could just briefly respond,
your Honor.
THE COURT: Also I know if there are going to be any
more submissions in response to today, can you do them by noon
tomorrow? Is that reasonable?
MR. WEINBERG: 5:00 would be easier, given my travel
obligations, Judge. And I do want to meet the government's
reference today to a 1982 passport when he was 28 years old
that expired over 30 years ago. I'd rather address that when I
have some more time.
THE COURT: 5:00.
What about you, Mr. Rossmiller? Are you going to
respond?
I don't know if there are open issues, but there are
some instances where you're entitled to rest on the record,
but the search of the East 71st mansion, there might be some
evidence from that.
MR. ROSSMILLER: Your Honor, I can tell you certainly
we'd be prepared to file anything additional by tomorrow at
5:00. That's no problem.
THE COURT: Fair enough.
MR. ROSSMILLER: I can't say whether we will, but
we'll certainly re-examine the record.
THE COURT: So you'll look at the record, so to speak,
and what we discussed here today and see where there could be
some more strength in terms of evidence.
MR. ROSSMILLER: Yes, your Honor.
Just very briefly to respond, and I'll try to go sort
of lightning round through some of these.
Starting at the very beginning with this issue of
being able to prepare a case having access to counsel, the idea
that detention impairs the ability to prepare a defense -- this
is certainly a challenging case. It's a significant case.
This Court has significant experience with precisely
that type of case with a detained defendant in Zarrab. In that
case, I think the Court saw -- and the country and the world
saw -- that it is eminently possible for a defendant to have
excellent, excellent counsel and every opportunity to consult
with that counsel while detained and while detained here.
I'm not specifically familiar with the conditions of
Mr. Zarrab's detention, but my general understanding is that
there were concessions made with respect to his ability to
review documents and have space.
Those are certainly factors that we're willing to be
in touch with the defense about. But there is a proven,
existing example for how that works and how that works well.
What the defendant is asking for here is for special
treatment to build his own jail, to have his own private jail
that he gets to stay in away from everybody else who is in jail
and have him be limited in his own gilded cage surrounded by
people with guns, surrounded by trustees with cameras on all
sides of his house. A person who needs those conditions should
be detained.
Second, the issue of whether the case was brought to
us, whether this was funneled to the Southern District of New
York from anywhere else, your Honor, it was not. It was not
brought to us by anyone else.
We opened the case. We investigated the case. By
"we," I mean the FBI, CBP, the NYPD, and of course the U.S.
Attorney's Office. We opened the case. We investigated the
case. And I can tell you that not one of the prosecutors
sitting at this table has spoken with anyone at the Southern
District of Florida.
The issue of the Department of Justice appeal by the
defendant is a distraction from the bail determination,
your Honor. The chain of events that defense counsel describes
makes clear that the Department of Justice did not have a role
in negotiating the NPA.
It didn't have any role in confirming if other
districts were aware of it, which there is no evidence that
they were. The approval of jurisdiction to contemplate federal
charges and a federal NPA, as the defendant tried to wiggle out
of this agreement after it had been signed, is different from
having the NPA apply outside of the Southern District of
Florida which it does not.
What they're describing is a normal appeal process,
and there is an entirely separate process for getting coverage
outside of the relevant district, and what they're describing
ain't it. It didn't happen here.
Your Honor, the defense has kept coming back to this
idea of 1591 being enslavement, of pimping people out, of
people servicing individuals 15 to 20 times a day as they
mentioned in one of its submissions. Quintessential sex
trafficking is sex trafficking that is met by the elements of
the crime which we have here.
The defense said we don't have consent here or putting
the issue of consent aside. Your Honor, it's underage girls.
It's underage girls that are involved in this case, and it's
underage girls who are the victims. To say that consent is
some sort of a separate issue that we should ignore is
offensive, frankly, and it's not supported by the law.
Moving along, with respect to compliance following a
prior conviction rebutting the presumption, it's easy to figure
out why that's not the case, your Honor. I'll explain why.
Here's how we know that it's not the case that someone
who doesn't commit a crime for 15 years, if that is the case
here, but for someone who has not been convicted of a crime for
15 years, that that establishes the rebuttal of presumption.
The reason we know that's not the case is because
someone who is 70 years old who is arrested for the very first
time who's lived a law-abiding life for 70 years is still
subject to the presumption.
So the idea that if you're convicted of a crime and
then you're not convicted of a crime for a while, that that
itself rebuts the presumption, really turns the presumption on
its head. That simply doesn't make any sense, your Honor.
With respect to the idea that it's old conduct which
is related, the statute of limitations goes very far back. And
in fact, there is no explanation for this type of crime.
Congress has decided that if you commit sex crimes
against children, you will have to look over your shoulder for
the rest of your life. And that's as it should be, your Honor.
Certainly there is no argument here from the defense regarding
the statute of limitations.
The defense has argued a couple different times about
a couple different things that if there was a crime, it would
have been charged. So in discussions of obstruction, in
discussions of witness tampering.
Your Honor, the idea that if there was misconduct it
would have been charged is particularly rich in this case.
There are plumes of smoke as to those particular issues, and
the Court can reasonably infer that there is fire.
The idea that Mr. Epstein was feeling particularly
generous to his old friends and associates days after the Miami
Herald published a series of articles about his misconduct and
the circumstances leading to his non-prosecution agreement is
not credible, and the Court shouldn't find it to be credible.
Finally and most importantly, this idea that the
defendant has disciplined himself, the defendant is asking the
Court to risk the safety of the community on the
self-discipline of a man they appear to concede has a
preference for underaged girls.
This idea that he has disciplined himself is a
concession that the defendant has a problem, that he has an
appetite for children. Your Honor, the defendant keeps telling
on himself here.
They concede that the government will be able to show
the elements of the crime. They concede that he has to
discipline himself to avoid committing the types of crimes he
has before.
They say that he didn't flee because he thought that
there was the potential he would be -- I'm sorry. They say he
didn't flee despite the fact that he thought there was a
potential to be charged.
That's not consistent with the explanation that he had
no idea that there was a federal case that would be brought
when he made the payments to his old associates.
The fact is, your Honor, the defendant thought he'd
gotten away with it. And the government really put its money
where its mouth is on this issue of notice and of the covert
nature of the investigation.
This investigation was going on for months, and the
government took extraordinary efforts not to have the defendant
find out about it, and he didn't. And neither did anyone else
until the case was unsealed.
Any number of people in this court who would have
loved to have reported the fact of this investigation, and it
didn't get out because the government was concerned that the
defendant would flee as we continue to be now.
Your Honor, this is the Southern District. The
defendant is indicted. He is in a grave position, and he has
every motive and every means to flee if he's released.
THE COURT: I have one question of you.
In your submission -- I think it was in your most
recent submission -- you mentioned that you had been contacted
by victims or their counsel probably or perhaps and that they
were of the view that there should not be any bail, any
release.
Are you aware if any of them wish to be heard?
Mr. Boies?
MR. BOIES: Yes, your Honor.
THE COURT: Hold on one second. Mr. Boies, just wait
until we finish with them.
I take it that the answer is yes?
MR. BOIES: Yes, your Honor.
THE COURT: Go ahead.
MR. ROSSMILLER: Your Honor, my understanding,
including from representatives of the Boies, Schiller law firm,
is that victims have expressed the views that we conveyed to
the Court.
I was not aware of any victims or victims' counsel who
wished to be heard today, though we have made efforts to reach
out to a variety of victims and counsel.
THE COURT: That's fine. I'm just asking you, and
Mr. Boies wishes to be heard on behalf of them. I think that's
perfectly fine. I think it's just fine.
MR. ROSSMILLER: Understood, your Honor.
THE COURT: Counsel, did you want to get the last
word?
MR. WEINBERG: Just two brief matters.
THE COURT: Okay.
MR. WEINBERG: First, the government has been
repeatedly saying that Mr. Epstein concedes the elements or the
evidence. That's simply not so. He's going to defend this
case.
Second, there's an inherent contradiction between the
government's tying these two payments by Mr. Epstein in
November and early December of 2018 to witnesses as if these
are akin to an attempt to influence a witness.
If the government's position has any reality to it,
that Mr. Epstein reads an article and perceives that a friend
may be a witness, then that provides pretty strong evidence
that Mr. Epstein was concerned about an investigation.
Even if the government kept it secret and yet he
repeatedly flew not just out of the country but into the
country with the knowledge, with the belief, again, if the
government can tie these payments to an understanding, an
intent to effect a future investigation, that provides fairly
eloquent evidence, your Honor, that Mr. Epstein does not intend
to flee.
And his conduct between November and December 3, 2018,
and the present is the antithesis of a defendant who wants to
flee. He was arrested flying into Teterboro from Europe.
Lastly, Mr. Joseph Jaffe is here, your Honor. If
your Honor in any way wanted him to inform the Court what
services he and his company can provide to better or to be one
of the multiple conditions that we've offered the Court as a
condition of release, he is here.
THE COURT: I could ask you through him or him
directly.
MR. WEINBERG: I'd rather you ask him, your Honor.
Thank you.
THE COURT: Then we'll get to Mr. Boies.
By the way, before we do, does everybody here except
me know who the two people are who got the $250,000 and
$100,000 checks?
MR. ROSSMILLER: Your Honor, we've advised defense
counsel who those individuals were. Yes.
THE COURT: Can you tell us.
MR. ROSSMILLER: We're not prepared to make that
statement currently, your Honor.
MR. WEINBERG: Generically, your Honor, they're
long-time friends and employees of Mr. Epstein. One is a
friend. One is an employee.
THE COURT: Okay. The only question I really have --
MR. ROSSMILLER: I'm sorry, your Honor. I apologize
for interrupting.
I should say the government is more than happy to
advise the Court of that information in a sealed submission. I
just don't want to reveal the names of potential witnesses and
frankly potential victims in open court at this time.
THE COURT: So you know them, and the defense knows
them as well.
MR. ROSSMILLER: We're happy for the Court to know
them, but that's not something that we're prepared to file
publicly.
THE COURT: Is that okay with you if he submits
something?
MR. WEINBERG: Yes, your Honor.
THE COURT: So the only question I have of you is
these trustees or guards -- are they armed?
MR. JAFFE: They will either be armed or unarmed as
the U.S. Attorney and defense counsel agree, and we will follow
that order, your Honor.
THE COURT: Got it.
Mr. Boies, you're going to get the last word here.
MR. BOIES: May it please the Court, your Honor. I'll
be very brief, and I apologize. I wasn't planning to speak
today.
But there was one thing that I wanted to clarify for
the Court that came up, and I would like one of the victims
that I represent who is here in court to be able to just speak
to you for 60 seconds.
THE COURT: Sure.
MR. BOIES: The matter that I wanted to clarify is
that counsel for the defendant indicated that there was no
proceeding pending at the time that the payments of $250,000
and $100,000 were made.
It's true that there was no federal criminal
proceeding against him pending, but we had a case pending
against him at that time. And we were in the middle of
discovery, and we had situations in which we had witnesses who
were cooperating with us and then were contacted by either
Mr. Epstein or his lawyers and who then stopped cooperating
with us. So I thought the Court ought to have that piece of
information.
THE COURT: So that sort of supports the idea that
payments were made or at least the inference that one could
draw to keep people silent.
MR. BOIES: Yes. I don't personally know to whom they
were made, and I have been given no explanation as to why they
were made.
What I do know is that this was a time when we had
intensive evidence to take depositions and discovery and
interview present and former employees of Mr. Epstein.
We had experience where if we contacted somebody and
we actually had some conversations with them, then Mr. Epstein
would get them a lawyer, and they would stop cooperating. That
proceeding was still going on at the time that these payments
were made.
If I could just introduce you to Annie Farmer who is
one of our clients who would just like to speak very briefly to
the Court.
THE COURT: Sure.
MS. FARMER: Hello, your Honor.
THE COURT: Could you help us out and spell your first
and last name.
MS. FARMER: Yes. Annie Farmer, A-n-n-i-e
F-a-r-m-e-r.
I was 16 years old when I had the misfortune of
meeting Jeffrey Epstein here in New York. He later flew me to
New Mexico to spend time with him there.
I wanted to voice my support for the government's
request that his bail not be set and also just my reaction to
the fact that the defense was claiming that it would be perhaps
easier for victims or more likely for victims to come forward
given the publicity and some of the other issues surrounding
this case.
Well, I would say that it would be quite the opposite;
that his wealth and privilege and the notoriety of the case
would actually make it I think often more difficult.
Also that they now were arguing that the discipline of
this time, but yet we know that they have found photos of young
women in his home and that if he's continuing to engage with
pornography of young women, I would say that would be quite the
opposite of disciplining.
Also those victims in the photographs are continuing
to be victimized.
THE COURT: Are you in a position to answer this
question? Are you saying that Mr. Epstein engaged in sexually
inappropriate conduct with you?
MS. FARMER: He was inappropriate with me. He was
inappropriate with me. I would prefer not to go into the
details of that at this time. Yes.
THE COURT: Thank you very much.
MS. FARMER: You're welcome.
MR. EDWARDS: Your Honor, may I also be heard?
THE COURT: Absolutely.
MR. EDWARDS: Brad Edwards. I represent Courtney Wild
who wishes to make a statement today to the Court. Let me just
give you a brief context.
THE COURT: Could you just for a minute spell her
name.
MR. EDWARDS: Sure. Courtney, C-o-u-r-t-n-e-y, Wild,
W-i-l-d.
Just for context, I have represented her since 2008 in
a civil action as lead counsel that we filed against the
United States Attorney's Office under the Crime Victims' Rights
Act where we have alleged and now proven that the previous
non-prosecution agreement was structured in violation of the
rights of many of the victims.
Courtney Wild was the Jane Doe in that lawsuit. And
for that reason, she has a particular interest in this case.
We want to first say we appreciate your Honor's acknowledgment
of the Crime Victims' Rights Act and the rights of the victims,
particularly the way in which they're being treated in this
particular process which is different than last time.
So with that, if your Honor had any questions to
educate the Court on the CVRA case, I would answer them. But
otherwise, she would just like to make a statement. Thank you.
THE COURT: Absolutely.
MS. WILD: Hi, your Honor. My name is Courtney Wild.
I was sexually abused by Jeffrey Epstein starting at the age of
14. And I would just like to ask the Court to not grant him
bond, to keep him in detention just for the safety of any other
girls out there that are going through what I'm going through.
It is a public case, and it's just -- he's a scary person to
have walking the streets.
THE COURT: Where did that occur? The sexual
inappropriateness.
MS. WILD: In Palm Beach, Florida.
THE COURT: Great. Thank you so much.
MS. WILD: Thank you.
THE COURT: I think that concludes our work for today.
I'll hopefully see you all on Thursday. Thanks very much.
(Adjourned)