Document 9:08-cv-80736

obligations undertaken therein to be set aside.4 See, e.g., Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."); United States v. Harvey, 869 F.2d 1439, 1443 (11th Cir. 1989) ("Due process requires the government to adhere to the terms of any plea bargain or immunity agreement it makes."). Indeed, even if this Court were somehow to set aside the Non-Prosecution Agreement on the authority of the CVRA, and even if after consultation with Petitioners the United States determined that it would be proper and desirable to institute a criminal prosecution in the Southern District of Florida against Epstein on the criminal charges contemplated in the Non-Prosecution Agreement, the United States would still be constitutionally required to adhere to the negotiated terms of the Non-Prosecution Agreement. See, e.g., Santobello, 404 U.S. at 262; Harvey, 869 F.2d at 1443. Due process considerations further bar this Court from setting aside a non-prosecution agreement that grants contractual rights to a contracting party (Epstein) who has not been made a party to the proceedings before the Court. See, e.g., School Dist. of City of Pontiac v. Secretary of U.S. Dept. of Educ., 584 F.3d 253, 303 (6th Cir. 2009) ("It is hornbook law that all parties to a contract are necessary in an action challenging its validity . . ."); Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002) ("[A] party to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to decimate that subsequent 18-month state incarceration). 4 To the extent that the Petitioners' requested invalidation of the Non-Prosecution Agreement would implicitly reject and nullify the correctness of both the state court's acceptance of Epstein's guilty plea and the resulting judgment of conviction -which were induced in part by the Non-Prosecution Agreement - such judicial action might raise additional questions about this Court's jurisdiction under the Rooker/Feldman doctrine. See, e.g., Casale v. Tillman, 558 F.3d 1258, 1260-61 (11th Cir. 2009); Powell v. Powell, 80 F.3d 464, 466-68 (11th Cir. 1996). --- PAGE BREAK --- 48 at 6 ¶ 8; see also DE 99 at 3, and government attorneys have on multiple occasions offered to confer with Petitioners, see, e.g., July 11, 2008 Hr'g Tr. at 13 (“I will always confer, sit down with Jane Doc 1 and 2, with the two agents and Ms. Villafana. We’ll be happy to sit down with them.”). Indeed, on December 10, 2010, the United States Attorney for the Southern District of Florida, accompanied by supervisory and line prosecutors from the USAO-SDFL, personally conferred with Petitioners’ counsel and with Petitioner Jane Doe #1 and entertained discussion about Petitioners’ desires to see Epstein criminally prosecuted on federal charges.7 The United States Attorney and prosecutors in the USAO-SDFL have also corresponded with Petitioners’ counsel on multiple occasions about Petitioners’ desires to have Epstein criminally prosecuted on federal charges.8 Additionally, a number of districts outside the Southern District of Florida (e.g., the Southern District of New York and the District of New Jersey) share jurisdiction and venue with the Southern District of Florida over potential federal criminal charges based on the alleged sexual acts committed by Epstein against the Petitioners. Epstein is thus subject to potential prosecution for such acts in those districts. Furthermore, because of the nature of the allegations against Epstein, the filing of such potential charges against Epstein still remains temporally viable; charges for such sexual activities involving minors are not barred by the applicable 7 The United States Attorney also offered to confer with Jane Doe #2, but Jane Doe #2 declined the invitation and did not attend the meeting that was scheduled with the United States Attorney. 8 Since that time, the USAO-SDFL has been recused by the Department of Justice from prospective responsibility for any criminal investigation or potential prosecution relating to Epstein’s alleged sexual activities with minor females. The Department of Justice has reassigned responsibility for the investigation and potential prosecution of such criminal matters in the Southern District of Florida to the United States Attorney’s Office for the Middle District of Florida for consideration of any prosecutorial action that may be authorized and appropriate. --- PAGE BREAK --- Case 9:08-cv-80736 Document 496-1 Entered on FLSD Docket 07/13/2019 Page 10 of 20 statutes of limitations. See 18 U.S.C. §§ 3283, 3299. Petitioners are free to contact the United States Attorney's Office in those districts and seek to confer with government attorneys in those offices about investigating and potentially prosecuting Epstein based on the alleged federal crimes committed against them.9 Petitioners nonetheless have appeared to contend throughout these proceedings that the many opportunities that they have been given to consult with the attorneys for the government about Epstein's offenses and the potential charges against Epstein - opportunities which continue to be available to Petitioners - are not meaningful under the CVRA due to the existence of the Non-Prosecution Agreement. According to Petitioners, the Non-Prosecution Agreement has given Epstein a "free pass" on federal criminal charges for the offenses he committed against Petitioners and others. See, e.g., DE 9 at 15 (characterizing Non-Prosecution Agreement as "a 'free pass' from the federal government"), 2 (contending that the Non-Prosecution Agreement "allowed [Epstein] . . . to escape all federal prosecution for dozens of serious federal sex offenses against minors"), 7 ("the wealthy defendant has escaped all federal punishment"), 12 ("[T]he agreement prevents federal prosecution of the defendant for numerous sex offenses."); DE 77 at 2 (describing Non-Prosecution Agreement as "an agreement that blocked federal prosecution of Epstein for the multitude of sex offenses he committed again [sic] the victims"), 17 ("The [Non- 9 The USAO-SDFL has no present knowledge about whether the United States Attorney's Offices in those districts have opened any investigations into the allegations that have been made against Epstein, whether those offices are even aware of those allegations or the evidence supporting them, or what investigative or prosecutorial actions, if any, those offices might take in the future. Nonetheless, should any investigation be initiated involving such allegations, the evidence gathered in the Southern District of Florida could be disclosed to federal prosecutors and federal grand juries in New York or New Jersey. See 9 DOJ-OGR-0000314 --- PAGE BREAK --- Case 9:08-cv-80736 Document 596-4 Entered on FLSD Docket 07/16/2019 Page 11 of 20 Prosecution Agreement] barred prosecution of the federal sexual offenses that Epstein had committed against Jane Doe #1 and Jane Doe #2 . . .").10 That is simply not so. Contrary to Petitioners' contentions, there has been no disposition by the government of any federal criminal charges against Epstein. No federal charges involving Petitioners have ever been brought against Epstein, and no such federal charges have been resolved. The Non-Prosecution Agreement about which Petitioners complain disposes of no federal criminal charges against Epstein, and that agreement does not bar the United States from bringing federal criminal charges against Epstein. Instead, when addressing potential federal criminal charges against Epstein, the USAO-SDFL merely agreed in the Non-Prosecution Agreement that: on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below. and that After timely fulfilling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. Non-Prosecution Agreement at 2 (emphasis added). Thus, the Non-Prosecution Agreement simply obligated the government not to prosecute Epstein in the Southern District of Florida for the offenses set forth in the Non-Prosecution 10 This Court has also previously described the Non-Prosecution Agreement as "an agreement under which . . . the U.S. Attorney's Office would agree not to prosecute Epstein for federal offenses." DE 99 at 2-3. That description of the Non-Prosecution Agreement, however, was not based on the Court's interpretation of the terms of the Non-Prosecution Agreement, but was instead based on "allegations" by Petitioners that the Court concluded were "not yet supported by evidence" but upon which the Court nonetheless relied "solely to provide the context for the threshold issues addressed in" its September 26, 2011 Order. Id. at 2 n.2. 10 DOJ-OGR-00000315 --- PAGE BREAK --- Agreement. The Non-Prosecution Agreement does not bar the United States from bringing federal criminal charges against Epstein for the offenses set forth in the Non-Prosecution Agreement in any other district in the nation.11 See, e.g., United States v. Cain, 587 F.2d 678, 680 (5th Cir. 1979) ("Where . . . the prosecutor is not found to have made promises relating to nonprosecution of charges in another district and the [defendant] is not found to have relied on such alleged promises, this Court will affirm the trial court's denial of a motion to dismiss the subsequent prosecutions.") Neither does the Non-Prosecution Agreement bar prosecution in any district for offenses not identified in the agreement. Petitioners contend that the CVRA gives a victim the right to confer with the attorney for the government before there is a disposition of contemplated, but-not-yet-filed federal criminal charges arising from offenses against the victim. But, although the government disputes that the CVRA creates such a right,12 the Petitioners have never been denied any such right. The Petitioners have had and still have the ability confer to with the attorney for the government about potential federal criminal charges against Epstein and about the potential disposition of any such charges, should they be filed. In fact, Petitioners are free to approach the United States Attorney's Offices in districts such as the Southern District of New York and the District of New Jersey - whose authority to institute criminal charges against Epstein in their districts has not 11 Significantly, under the governing provision of the United States Attorney's Manual, the USAO-SDFL did not have the authority to unilaterally bar Epstein's prosecution in any other district in the country: No district or division shall make any agreement, including any agreement not to prosecute, which purports to bind any other district(s) or division without the express written approval of the United States Attorney(s) in each affected district and/or the Assistant Attorney General of the Criminal Division. USAM 9-27.641 (Multi-District (Global) Agreement Requests). 12 The government acknowledges that this Court has nonetheless ruled that "as a matter of law the CVRA can apply before formal charges are filed," DE 99 at 10; see also id. at 6-9, but has not yet determined "whether the particular rights asserted here attached," id. at 10. 11 --- PAGE BREAK --- Case 9:08-cv-80736-KAM Document 196 Entered on FLSD Docket 07/13/2010 Page 14 of 20 jurisdiction to hear the case.”)); Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir. 1994) (“The question of ripeness ‘goes to whether the district court had subject matter jurisdiction.’”) (quoting Greenbriar, 881 F.2d at 1573); see also Jacksonville Property Rights Ass’n, Inc. v. City of Jacksonville, 635 F.3d 1266, 1276 (11th Cir. 2011) (concluding that when plaintiffs ask a court “to issue a declaration on an issue that might never impact their substantive rights,” they are “asking th[e] court either to issue an impermissible advisory opinion, or to decide a case that is not yet ripe for decision”), reh’g & reh’g en banc denied, Case No. 09-15629, __ Fed. App’x __ (11th Cir. Jun. 29, 2011) (Table). Conclusion For the reasons set forth above, the United States respectfully requests that this Court enter an order dismissing the Petitioners’ claims and these proceedings for lack of subject matter jurisdiction. 13 DOJ-OGR-00000318