018.pdf

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA
v. 19 CR 490 (RMB)
JEFFREY EPSTEIN,
Conference
Defendant.
------------------------------x
New York, N.Y.
July 8, 2019
2:00 p.m.
Before:
HON. RICHARD M. BERMAN
District Judge
APPEARANCES
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
ALEXANDER ROSSMILLER
MAURENE R. COMEY
ALISON G. MOE
Assistant United States Attorneys
REID H. WEINGARTEN
MARTIN G. WEINBERG
MARC FERNICH
Attorneys for Defendant
Also Present:
AMANDA YOUNG - Special Agent FBI
PAUL BYRNE - NYPD
KEYANA POMPEY - Probation Officer
LEA HARMON - Probation Officer
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 1 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
(Case called)
THE COURT: Good afternoon.
I think I'm pretty much up to speed as to where you
are in the sense that I am aware that you have been before
Magistrate Judge Pitman earlier this morning and up to some few
minutes ago for purposes of presentment, arraignment, and some
preliminary discussion of bail. Is that accurate?
MR. ROSSMILLER: That's correct, your Honor. I don't
want to speak for defense counsel, but my understanding is they
expect to put in some sort of written submission and return to
argue the rest of the bail hearing on Thursday before Judge
Pitman at 2:00. That is, if your Honor refers the bail hearing
to Judge Pitman on that basis as well.
THE COURT: I might just take that bail application
before me. We'll figure out a time when that would be
comfortable for all of you. How is that?
MR. WEINGARTEN: That's fine with the government, your
Honor.
THE COURT: I have a few items on my list. I want to
make mention, I'm sure Magistrate Judge Pitman did, of our
presumption of innocence. Even though in some of these
discussions, and probably more so when we get to bail, it may
sound like we are talking about merits of the case, it's
important that we underscore that the presumption of innocence
pertains to Mr. Epstein, now and until such time, if it comes,
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 2 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
that there is a guilty determination by a jury or by the Court,
that he is presumed to be innocent.
I did have these questions. One has to do with
persons who are categorized as victims. I want to get some
assurance from the U.S. Attorney's office that they have been
notified about this case and that you will keep them abreast of
developments in this case.
MR. ROSSMILLER: Yes, your Honor, we are acutely aware
of our obligations to the victims in this case. We have
notified them and we expect to continue to do so as the case
moves forward.
THE COURT: Second, for my background, I am aware that
there are certain conditions that attach to Mr. Epstein's sex
offender status resulting from his Florida state prosecution in
or about 2008. One result is that under New York law --
correct me if I'm wrong about any of this -- he is considered
to be at high risk of committing another sex crime with minors.
Is that a fair characterization of his sex offender status?
MR. ROSSMILLER: Your Honor, as the government set
forth in its submission to Judge Pitman, and we copied this
Court, it is our understanding that the defendant is a tier 3
sex offender in New York and that that is characterized as
high-risk individual.
THE COURT: The question that I have is what are the
implications, if any, of the search conducted by the U.S.
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 3 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
Attorney's office over the weekend of Mr. Epstein's residence
on East 71st Street for the terms and conditions of his sex
offender status, if any? Are there any consequences or
relationship between what was uncovered and what he is obliged
to do?
MR. ROSSMILLER: May I have one moment, your Honor?
THE COURT: Yes.
MR. ROSSMILLER: Your Honor, in response to that
question, at the outset I should say that we don't have
particular interaction with state authorities with respect to
those types of notifications. We are, I would say, in the
early stages of reviewing those materials. With respect to the
defendant's obligations or potential consequences in the New
York State system, we certainly will notify whichever
authorities are appropriate. I don't think that we have a role
other than that.
I will say that they are extremely concerning with
respect to bail here, with respect to the conduct here, and I
expect we will get into that more in our submissions and bail
argument.
THE COURT: By the way, if defense counsel wants to
jump in at any point, feel free to do that?
MR. WEINGARTEN: On that, we have not seen the
pictures.
THE COURT: I haven't either.
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 4 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
MR. WEINGARTEN: I understand. It is our expectation
that they are ancient, that they are pre his spending time in
prison, and/or they are erotic pictures of adults who
voluntarily engaged in that conduct.
THE COURT: I have a question about the Southern
District of Florida nonprosecution agreement dated probably in
2008 -- is that correct?
MR. ROSSMILLER: It's dated in 2007, your Honor.
THE COURT: Is that a public document?
MR. WEINGARTEN: It is, your Honor. It's been
publicly filed in connection with other civil litigation.
THE COURT: Does that agreement bear on in any way the
search and results of the search that were conducted at Mr.
Epstein's townhouse over the weekend?
MR. ROSSMILLER: Not in ways that I am aware of now,
your Honor. Again, we are very much in progress on the search.
We will continue to consider any other implications beyond this
case as we continue to review those materials.
On a separate note, your Honor, I want to add the
government noted it is aware of its victim obligations. In
terms of notification, we have made notification to individuals
that we are in particular aware of. We also have listed a
phone number for victims to be in touch with the FBI, with the
U.S. Attorney's office. We have also put a website up and have
asked victims to be in touch with us through those sources as
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 5 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
well. That is just to round out the notification that the U.S.
Attorney's office has made.
MR. WEINGARTEN: May I be heard briefly on that?
THE COURT: Sure.
MR. WEINGARTEN: For us, your Honor, the NPA is the
center of the universe for everything, search included, because
the NPA was the result of an extensive 3-year investigation by
law enforcement in Florida. In essence, the Feds made Mr.
Epstein plead to a state offense and they declined prosecution
federally, and that is translated in the NPA. Mr. Epstein did
his time, Mr. Epstein is on the registration list, and Mr.
Epstein paid the alleged victims.
As I am sure you have noted from the indictment, that
conduct too is an ancient history. That conduct is 2002 to
2005. It is our belief that this is basically a re-do. This
is basically the Feds today, not happy with what happened in
the decision that led to the NPA, redoing the same conduct that
was investigated 10 years ago and calling it, instead of
prostitution, calling it sex trafficking. We think that is the
heart of everything, and that will be the centerpiece of our
defense, at least legally.
THE COURT: My understanding of what the government is
asserting is that the episodes that occurred in Manhattan were
not included in the nonprosecution agreement in Florida and
that there is a separate basis not only for a sex trafficking
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 6 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
count but also for a sex trafficking conspiracy count.
MR. WEINGARTEN: We have had good conversations with
the prosecutors, and we like and respect them. We are looking
forward to getting discovery. We are interested to see whether
the prosecutors in Florida, who are now under severe criticism
10 years later, steered the alleged victims to New York,
whether or not they violated their responsibilities under the
NPA.
THE COURT: Whether the federal prosecutors in Florida
violated their terms and conditions?
MR. WEINGARTEN: That will certainly be germane.
THE COURT: Is that the point?
MR. WEINGARTEN: Yes.
THE COURT: Got it.
MR. ROSSMILLER: Your Honor, if I could very briefly
respond to those points?
THE COURT: Sure.
MR. ROSSMILLER: I expect this will be briefed and
argued on Thursday. I don't intend to go into extensive
details about that. I just want to flag for the Court that
defense counsel is saying that this conduct is ancient. What
he is not saying is it is beyond the statute of limitations,
because it is not.
Second, the allegation that this is some kind of a
conspiracy within the Department of Justice is just false.
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 7 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
There is no evidence to support that. The investigation was
begun and conducted entirely separate from any other district.
It began in the Southern District of New York.
Certainly there is evidence that was gathered that is
consistent with and even overlapping with the prior
investigation. But as the Court noted, in particular an entire
count of this indictment is with respect to New York victims.
And that is before we even get to the fact that the
nonprosecution agreement does not bind the Southern District of
New York.
THE COURT: I was going to ask you about that too.
Now that you have mentioned the topic, explain that, would you.
MR. ROSSMILLER: Yes, your Honor. I do expect that we
can brief this, but the short version is that this prosecution
is not precluded by the nonprosecution agreement entered into
by the defendant in the Southern District of Florida. That
agreement expressly referred to that federal district. It
didn't purport to bind any other office or district.
It is well-settled in the Second Circuit that a plea
agreement in one U.S. Attorney's office does not bind another
unless otherwise stated. That is even if, based on case law,
the agreement refers generally to "the government." Again,
additionally, as set forth in the indictment returned by the
grand jury, the substantive count alleges acts occurring in New
York and alleges New York-based victims.
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 8 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
That is in spite of the fact that the Southern
District is not bound, is not a signatory to, and otherwise has
no connection to the NPA. And there is no evidence that we
have come across that the Southern District of New York was
consulted, asked, involved, notified as far as we have seen.
For those reasons and others I'm sure we will brief,
we don't think the NPA applies to us.
MR. WEINBERG: If I may reply briefly, your Honor?
THE COURT: Yes.
MR. WEINBERG: I have been one of Mr. Epstein's
counsel through the CVRA litigation which started in 2008 and
continues. In fact, our briefing is today. The NPA provided
him with immunity for any offenses arising from a joint
FBI/grand jury/U.S. Attorney investigation that led to a
decision by Mr. Epstein to plead to a higher state offense than
the state prosecutors contemplated. He went to jail, signed an
agreement, and has lived up to its terms 100 percent.
We have seen in the paperwork of the CVRA, in the
Southern District of Florida, in writing at docket 205-2 the
government's motion to dismiss CVRA, urging that the witnesses
there go to the Southern District of New York and essentially
try to motivate them to prosecute for the very same conduct, in
other words, the conduct that Mr. Epstein was immunized,
including travel between two states, telephonic communications
between two states. Florida immunized him for the same travel
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 9 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
and telephonic communications as well as the 1591 category.
In addition, the Department of Justice reviewed the
NPA on several occasions in 2008 and essentially confirmed that
the exercise of discretion shown in Florida was appropriate.
But the most important thing is that there was communication
between the prosecutors in Florida, perhaps through prosecutors
in Georgia that took over the case because the Florida
prosecutors were recused as a result of Judge Marrah's
decisions in the CVRA case.
We know the government is relying in part on evidence
that was generated by the Southern District of Florida case
back in 2007. They have talked about message pads, telephone
records. They are the same message pads and telephone records
that reflect conduct that was exclusively 15, 16, 17 years ago.
So we do have a principal position that we will put to the
Court at the appropriate time regarding the legality of this
prosecution and whether or not it is appropriately barred.
I can say as a criminal defense lawyer of 45 years,
when there is an interstate wire, mailing, travel, and there is
one district that is conducting an investigation, you negotiate
with that district and count on the Department of Justice to
what it does every day decade after decade after decade, which
is not to go to the second jurisdiction that received the mail
that was sent from the immunizing jurisdiction and have a
prosecution on the very same conduct. We will be briefing
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 10 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
that.
THE COURT: Do you anticipate that there is going to
be any discussion here about the legality of the NPA?
MR. WEINBERG: Not the legality of the NPA. I think
the discussion here is going to be about its scope.
THE COURT: From the defense, yes. You don't think
you expect to hear anything from the government, for example?
MR. WEINBERG: In the Southern District case, the CVRA
case, maybe two weeks ago the Northern District of Georgia
prosecutors, who are proxy for the Southern District of
Florida, filed the submission before District Judge Marrah in
the CVRA case totally supporting the constitutionality and
legality of the NPA, their discretion to enter into it, and
that there absolutely has never been a charge that Mr. Epstein
ever did anything other than fully perform his end as a citizen
who is expecting the benefits of a contract that he lived up
to.
THE COURT: I thought there had been some contention
that the way that the victims vis-a-vis the Florida NPA were
dealt with or not dealt with was one basis for attacking the
legality of that arrangement.
MR. WEINBERG: The petitioners are vigorously and have
vigorously for many years challenged, many years starting quite
frankly after Mr. Epstein performed his obligations to go to
jail and challenged it, claiming that there was no consultation
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 11 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
prior to the government's entering the agreement.
The Department of Justice at the time did not believe
the CVRA extended absent a federal charge. The predicate is a
federal crime that harms a victim. The petitioners have
vigorously asserted a different position. Judge Marrah, in a
summary judgment motion, agreed with the petitioners as to the
fault of the government in not conferring. The issue of remedy
is before Judge Marrah at the present time, your Honor.
THE COURT: Okay.
MR. ROSSMILLER: Your Honor, if I may very briefly?
THE COURT: Yes.
MR. ROSSMILLER: The crux of the defense argument here
I think cuts precisely the other way. They are arguing that
the Southern District of Florida has sort of sent up a flag
that these prosecutions could be undertaken elsewhere. That's
true. The Southern District of Florida has argued in papers
that they believed, the Southern District of Florida believed,
that the nonprosecution agreement was limited to that district.
They have said that out loud and in public and in their
positions in filing.
So certainly this investigation was not shoveled to
the Southern District of New York from anywhere else, including
the Department of Justice. We expect that the nonprosecution
agreement will not be an impediment, in particular because the
defendant certainly did not lack for sophisticated counsel in
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 12 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
negotiating that agreement, which again did not include the
Southern District of New York. We don't expect that to be any
impediment at all here.
THE COURT: Got it.
This is a small item. In the pretrial services report
which was prepared today -- how many, if more than one,
passports does Mr. Epstein have?
MR. WEINGARTEN: Mr. Epstein reported today one. Two
others were rescinded. As we understand it, there is one
effective passport today.
I would like to make one other point about the
pretrial that is extremely important.
THE COURT: Go ahead.
MR. WEINGARTEN: The way it reads is that we have
refused to provide information about income and assets.
THE COURT: I didn't really read it that way myself.
I thought it was incomplete in some places and I thought it
could be beefed up, so to speak. But I imagine that in the
bail application those matters may be dealt with.
MR. WEINGARTEN: Exactly.
THE COURT: For Mr. Rossmiller: In your letter you
describe some obstruction or harassment, witness tampering,
alleged, by Mr. Epstein. That, I take it, is going to be
included in any response or any bail submission made by the
government?
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 13 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
MR. ROSSMILLER: Your Honor, I think we addressed that
in our initial submission. To the extent defense counsel has a
response to it, we will evaluate that response and see whether
additional submission from the government is required or
appropriate.
THE COURT: I think that's it for me in terms of
questions that I might have had.
There is, of course, a conspiracy charge here, one of
the two counts. It may be early in your investigation to know.
Do you anticipate that there may be other defendants in this
proceeding?
MR. ROSSMILLER: Your Honor, we don't expect any
imminent superseding indictments in this case. It certainly is
possible down the road.
MR. WEINGARTEN: May I make one point, your Honor?
These obstruction allegations we find very nettlesome and
bothering. My understanding is that the Feds and Mr. Epstein's
attorneys back in the early 2000s, or 2007 and 8, when they
were negotiating were looking desperately for an appropriate
statute. They finally settled on a state statute that Mr.
Epstein pled to. We all know how unusual that is. There was
some consideration of a federal statute, including obstruction.
So lawyers in good faith were having discussions back
and forth whether or not they could squeeze Mr. Epstein's
conduct into a particular statute, and they concluded they
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 14 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
couldn't because the facts didn't fit. That is my
understanding of how those obstruction discussions arose.
THE COURT: Got it.
In terms of bail application, it would be helpful, and
maybe this is your anticipation, to file written submissions.
If you could do that. What I'm getting to is Thursday
afternoon is not a good time, in my opinion. I would prefer to
do it, if you would go along with this, Monday morning at, say,
9:30. That would give everybody more time to make these
submissions and to study them. Is that agreeable?
MR. WEINGARTEN: Yes.
MR. WEINBERG: Yes.
THE COURT: Why don't we say Monday at 10:00. Have
you arranged written submissions on any time schedule with
Magistrate Judge Pitman?
MR. ROSSMILLER: May we have just a moment, your
Honor, with defense counsel?
THE COURT: Yes, would you. And also determine if one
party or the other is going first and that the other is
responding or they are simultaneous.
MR. ROSSMILLER: Yes, your Honor. Thank you.
(Pause)
MR. ROSSMILLER: Your Honor, the government is
prepared to rely on its initial submission at least for its
first argument. I expect defense counsel will respond to that
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 15 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
and propose a package. Then the government would like an
opportunty to reply to that submission.
The parties would be happy to make those deadlines
Thursday and Saturday respectively. However, we are also happy
to back that up a little bit if the Court prefers not to
receive the government's submission over the weekend. We could
do an earlier deadline on Thursday for defense and a late
Friday deadline for the Court from the government, depending on
what the Court prefers.
THE COURT: I was going to propose defense Thursday at
noon. Is that okay to get your submission in?
MR. WEINBERG: We can do that, your Honor.
THE COURT: Thanks.
And if you could respond Friday by 5:00 p.m.
MR. ROSSMILLER: We will, your Honor. Thank you.
THE COURT: Then we can have oral presentations. I
take it everybody wants to have oral presentations in addition
to the written. I'll set aside as much time as we need on the
15th at 10:00.
I ask the government if there is a speedy trial issue
or application that takes us to Monday at 10:00 a.m.
MR. ROSSMILLER: Yes, your Honor. The government asks
that speedy trial time be excluded until Monday. We do expect
to begin the process of working on producing discovery, to
include discussions with defense counsel about a protective
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 16 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
order. I think, frankly, the outcome of that will be effected
by the coming week. But we do expect to have those
conversations and therefore request that speedy trial time be
excluded until Monday.
THE COURT: I am going to find under 18 United States
Code 3161 that the request for adjournment, joined in by both
sides, to and including Monday the 15th at 10:00 a.m., 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 and, initially at least, so that counsel has time
to prepare written bail submission and to guarantee effective
representation of and preparation by counsel for both sides.
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 U.S.C. section 3161(h)(7)(A) and (B).
Does anybody want to add anything to today's session?
MR. ROSSMILLER: Your Honor. May we have one more
moment with defense counsel?
THE COURT: Sure.
(Pause)
MR. ROSSMILLER: Nothing from the government. Your
Honor.
THE COURT: Defense?
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 17 of 18
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J78repsc
MR. WEINBERG: Nothing from the defense, your Honor.
THE COURT: Nice to see you all. See you on Monday.
Thank you.
(Adjourned)
Case 1:19-cr-00490-RMB Document 18 Filed 07/16/19 Page 18 of 18