EFTA00229916

1 
t••••••••••.,!,r 
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 31 of 54 
filing criminal charges against BP, and thc provisions in 18 U.S.C. § 3771(a) would become 
applicable. Since it expected to formally file the criminal charges after a plea agreement had 
been concluded, it needed to consult the Court to obtain judicial approval of what it deemed 
would satisfy the CVRA. 
In contrast, the U.S. Attorney's disposition of the Epstein matter was to enter into a non-
prosecution agreement with him. Unlike a plea agreement, non-prosecution agreements are not 
subject to judicial pre-approval. United States v. Dorsett, 2009 WL 2386070 at •4 (D.Neb. Jul. 
23, 2009)("Non-prosecution agreements are similar to plea agreements, except adherence to a 
non-prosecution agreement is the responsibility of the prosecutor alone while a plea agreement is 
subject to the approval of the court"), and United States v. Minnesota Mining & Mfg. Co., 551 
F.2d 1106, 1112 (13th Cir. 1977rThis was not a traditional plea bargain arrangement in which the 
trial judge was a participant. Rather, it was a prosecutorial agreement, the inviolability of which 
rested completely in the province of the government prosecutors, who have sole power and 
responsibility to institute criminal proceedings"). Consequently, the U.S. Attorney's Office did 
not invoke the authority of the Court, or file a formal charge against Epstein. These two key 
distinctions, the absence of any invocation of the Court's authority and the absence of any formal 
charge being filed, render Dean inapplicable to the instant case. 
IV. 
THE SUBJECTIVE BFI WFS OF UNITED STATES ATTORNEY'S OFFICE 
OFFICIALS, THAT PETITIONERS WERE COVERED BY THE CVRA, ARE 
IRRELEVANT 
Petitioners next argue they are protected by the CVRA because the U.S. Attorney's Office 
took that position in letters to Jane Doe #1 and to Epstein's attorneys. DE 48 at 31-33. Further, 
petitioners have assembled a list of purportedly uncontroverted facts, based mainly upon e-mail 
31 
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red 
• 
4..4. 
• 
• 
Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/0812011 Page 32 of 54 
messages and correspondence between U.S. Attorney's Office officials and the legal 
representatives of Jeffrey Epstein, in the time surrounding the execution of the Non-Prosecution 
Agreement. In several of the e-mails, U.S. Attorney's Office personnel express the view that 
the CVRA applied to petitioners, or that the CVRA obligated the U.S. Attorney's Office to take 
certain actions with regard to the victims. 
Petitioners argue that the Government is somehow bound by the position taken in these e-
mails and letters. This assertion is plainly incorrect. These e-mails authored by members of the 
U.S. Attorney's Office are "merely a statement of assertion or concession made for some 
independent purpose," and may be controverted or explained by the party who made it. Martinez 
v. Bally's Louisiana, Inc., 244 F.3d 474, 476-77 (V' Cir. 2001), citing McNamara v. Miller, 269 
F.2d 511, 515 (D.C. Cir. 1959). In contrast, a judicial admission is a formal concession in the 
pleadings or stipulations by a party or counsel that is binding on the party making them. 
Martinez, 244 F.3d at 476. 
Significantly, an admission is binding as a judicial admission only if it pertains to a fact, 
not a legal conclusion. McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 681-82 (7th Cir. 
2002)(Rovner, J., concurring). In S1dkoff v. United States, 2003 WL 1903349 (S.D. lad. 2003), 
the United States filed its answer in a Federal Tort Claims Act case, in which it admitted that a 
physician, Dr. Jackson, was an employee of the Veterans Administration at the time he treated 
the plaintiff Sulkoff. Subsequently, the United States Attorney's Office became aware that Dr. 
Jackson was not an employee of the United States. When the United States sought to amend its 
answer, Sulkoff claimed the government was bound by its judicial admission that Dr. Jackson 
was an employee of the United States. Id. at *5. 
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The district court found that the United States' admission that Dr. Jackson was an 
employee was not a judicial admission, because "[w]hether Dr. Jackson was a federal employee 
under the FTCA appears to be a question of law." Id.(citations omitted). The court also 
observed that, "[fjactual admissions can be binding as judicial admissions; admissions of legal 
conclusions cannot." Id.(citations omitted). See also Dabertin v. HCR Manor Care, Inc., 68 
F.Supp.2d 998, 1000 (N.D. Dl. 1999)("It is well established that judicial admissions on questions 
of law have no legal effect.")(citation omitted). 
Inasmuch as judicial admissions, which are formally made in pleadings or stipulation by a 
party or its counsel, cannot extend to legal conclusions, it follows that evidentiary admissions, 
which are not made in the course of the litigation itself, also cannot bind a party on a question of 
law. Simply stated, the subjective beliefs of some U.S. Attorney's Office officials that the 
CVRA applied to petitioners does not make it so. 
Whether any of the rights in 18 U.S.C. § 3771(a) applied to petitioners is a question of 
law, to be decided by this Court. Under petitioners' argument, the pre-litigation position taken 
by the U.S. Attorney's Office should be binding. Of course, if the same e•mails and letters 
expressed the view that 18 U.S.C. § 3771(a) did not apply until a formal charge was Sled, the 
government doubts petitioners would be withdrawing their motion. If petitioners' argument is 
correct, then the resolution of whether rights accorded in § 3771(a) apply would depend upon the 
position asserted by the government, prior to the litigation. Court decisions would be based 
upon what position the DOJ took prior to the inception of the litigation, what could lead to 
conflicting decisions, based not upon statutory interpretation, but the pre-litigation position taken 
by the Government. Simply stated, the positions taken by the government in the e-mails and 
33 
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letters are irrelevant to the resolution of the legal question of whether § 3771(a) applies prior to 
the filing of a fortnal charge. 
V. 
CONSIDERING EACH OF THE CVRA RIGHTS SEPARATELY, THERE 
WAS NO CVRA VIOLATION 
As set forth above, the CVRA did not apply because the U.S. Attorney's Office ultimately 
exercised its discretion to defer prosecution in favor of prosecution by the State of Florida. 
Nonetheless, during its investigation, the agents and AUSA, in compliance with the Justice 
Department's guidelines on working with victims and witnesses, went above and beyond the 
legal minimum requirements and provided information and assistance prior to the decision to 
decline prosecution and even afterwards. Those guidelines encourage Justice Department 
employees to do more than the legal minimum when possible and to treat victims and witnesses 
with courtesy and respect. In doing so, the Court will see that, even if the CVRA had applied, 
there was compliance. 
1. 
The right to be reasonably protected from the accused 
The first CVRA right is to be "reasonably protected from the accused." 18 U.S.C. § 
3771(aX1). As explained in Rubin, some victims have fastened "on this first enumerated right as 
a wellhead of boundless authority to fashion protection for victims in the guise of 'protecting 
them from the accused.' .. . Simply put, the 'accused' must be accused by the government, not 
just be someone complaining to the government that they have been the victim of a crime. The 
CVRA cannot realistically be read to create upon mere citizen complaint a self effectuating right 
to protection from the one accused, regardless of its impact on resources, any pending 
investigation or prosecutorial discretion." Rubin, 558 F. Supp. 2d at 420. Thus, according to the 
34 
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Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 35 of 54 
statute's language, this first right only applies following a formal charge filed via a Criminal 
Complaint or Indictment." Nonetheless, it is undisputed that Petitioners were given letters in 
approximately June 2007 [Jane Doe #1] and August 2006 [Jane Doe #2) wherein they were 
advised of this right and given the phone numbers of AUSA 
FBI Special Agent 
and the Justice Department's Office for Victims of Crime. The letters specifically 
advised that if the Petitioners felt that they were "being threatened or harassed, then please 
contact Special Agent 
or [AUSA 
I (See DE14, as. I and 2.) 
It is further undisputed that Jane Doe #1 actually took advantage of the offer of protection 
when Epstein's counsel began harassing her to take her deposition. Although not required to do 
so, the AUSA and agents handling the investigation went above and beyond the minimum 
required by law and secured legal representation for Jane Doe #1 in connection with that 
deposition. (See DE14 ¶ 9.) 
2. 
The right to notice of any public court proceeding, or release of the accused 
Again, by definition, a "public court proceeding" requires the existence of a federal case. 
Nonetheless, it is undisputed that the Petitioners were advised, through counsel, of the state court 
proceeding by the AUSA who conducted the federal investigation, so that the Petitioners, or their 
counsel, could attend if they desired and could address the Court, either in person or via letters to 
"The Victims Rights and Restitution Act (VRRA), 42 U.S.C. § I 0607(c)(2), provides for 
a crime victim to have "reasonable protection from a suspected offender and persons acting in 
concert with or at the behest of the suspected offender." Congress's use of the term "suspected 
offender" in the VRRA, and "the accused" in section 3771(a)(I) of the CVRA, demonstrates the 
intent to have the right to reasonable protection attach at different times, depending on which 
statute applies. The right to reasonable protection, from a suspected offender, applies prior to 
the lodging of formal criminal charges. In contrast, "the right to be reasonably protected from the 
accused," arises only when there is an "accused," which occurs when formal charges are filed. 
35 
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1-z 
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 36 of 54 
the judge. They elected not to do so." 
Although not required to do so, the AUSA who conducted the federal investigation also 
attempted to keep the victims apprised of Epstein's release. These attempts were met with 
resistance from Epstein's counsel, who took the position that the CVRA required no such 
notification and were evidence of overreaching by the AUSA conducting the investigation. 
Nonetheless, the AUSA and agents attempted to go above and beyond on behalf of these victims. 
A request was made to the Palm Beach County Sheriff's Office ('PBSO") that it notify the U.S. 
Attorney's Office of Epstein's release so that further release notification could be made, but 
PBSO did not honor that request. 
3. 
The right not to be excluded from public court proceeding 
There is no dispute that the Petitioners have never been excluded from a public court 
proceeding. 
4. 
The right to be reasonably heard at a public proceeding in the district court 
There was no proceeding in the District Court, and there is no allegation that Petitioners 
were ever kept from being heard at a public proceeding in the District Court." 
"In the "statement of undisputed fact," Petitioners suggest that, during negotiations for a 
possible plea to a federal charge, discussions of "avoiding the press" and handling the case in 
Miami were done so that the victims would not be informed of the case. This is directly 
contradicted by the fact that, as shown, there was no obligation to inform the victims of the state 
court plea but, instead, the AUSA and agents who handled the federal investigation worked to 
contact the identified federal victims to personally inform them of the state court hearing so that 
they could attend. Instead, as will be explained, infra, as part of the duty to respect the victims' 
privacy, the AUSA and agents sought a venue where the victims could participate in the process 
without fearing exposure of their identities due to excess press coverage. 
"While this is not in dispute, it is worth noting, that "(i)t is, perhaps, with this 
enumerated CVRA right, though that it is most important to underline what the CVRA does not 
empower victims to do. The right does not give the victims of crime veto power over any 
36 
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• . . . 
1
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 37 of 54 
5. 
The reasonable right to confer with the government in the case 
Again, the use of the words "in the case," as opposed to "in the investigation" or 
otherwise, by definition requires that a case — i.e., a tiled federal criminal charging instrument —
exist. Thus, because no federal criminal case was ever filed against Epstein, this statutory right 
to confer never ripened. 
Nonetheless, AUSA 
and the agents who conducted the federal investigation 
went above and beyond the minimum statutory requirements. For example, it is undisputed that: 
(1) Petitioners were both advised of their right to consult with AUSA 
in August 2006 
and June 2007 and were given her telephone number; (2) Petitioners both met with AUSA 
Villafaiia and the agents before the NPA was signed in the context of witness interviews; (3) 
neither of them contacted AUSA 
prior to the NPA being signed to discuss plea 
negotiations or asked to be consulted regarding a plea;" (4) there was never a time when 
Petitioners asked to consult with AUSA 
when she refused to meet with Petitioners; (5) 
when counsel for Petitioners contacted AUSA 
to ask her to consider certain evidence, 
she encouraged counsel to send the evidence to her to review; and (6) at the time the Petitioners 
became interested in seeing Epstein prosecuted in January 2008, he had already signed the NPA. 
Thus, by the time the Petitioners were interested in urging individuals at the U.S. Attorney's 
Office to seek harsher punishment for Epstein, the decision to decline prosecution in favor of the 
state's prosecution had already been made. 
prosecutorial decision, strategy or tactic regarding bail, release, plea, sentencing or parole." 
Rubin, 558 F. Supp. 2d at 424 (citation omitted). 
"As is discussed in the Response to DE49, Jane Doe #2's position at the time of her 
interview was that Epstein should not be prosecuted. 
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6. 
The right to full and timely restitution as provided in law 
With respect to restitution, the "CVRA does not grant victims any rights against 
individuals who have not been convicted of a crime. Concomitantly, neither the Government nor 
the sentencing court are restricted by the CVRA from effecting reasonable settlement or 
restitution measures against nonconvicted defendants." In re W.R. Huff Asset Mgt. Co., LLC, 409 
F.3d 555, 564 (2d Cir. 2005) (emphasis added). In WR. Huff petitioners filed two writs of 
mandamus seeking to vacate settlement agreements of forfeiture actions between the United 
States and members of the Rigas family. Two members of the Rigas family were convicted of 
securities fraud. A third was acquitted. Adelphia Communications Corporation (a company 
founded by the Rigas family) entered into a non prosecution agreement with the Government, 
pursuant to which it paid the Government $715 million for a Victim Compensation Fund. The 
Rigas family members signed a proposed Settlement Agreement with the government consenting 
to forfeitures. As part of the Settlement Agreement, any victim who agreed to receive restitution 
from the Victim Compensation Fund had to agree to a release of all civil and other claims, 
including claims in bankruptcy court, against the Rips family, Adelphia, and other conspirators. 
The district court approved the Settlement Agreement over the objection of the victims and the 
victims filed the petitions for mandamus. 
On appeal, the Second Circuit disagreed with the victims: 
To the extent that the Government recognizes that victims would have difficulty 
in effecting any recoveries from the Rigas family members because of difficulties 
in proof of culpability and because of security interests affecting the family's 
assets, petitioners cannot meet their burden in showing that the Government or the 
district court acted unreasonably in entering the Settlement Agreement or 
approving it. Additionally, the district court in no way treated the victims unfairly 
or without "respect for [their] dignity and privacy," 18 U.S.C. § 3771(10(8), but 
38 
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rather took into consideration the numerosity of victims, the uncertainty of 
recovery, and the prospect of unduly prolonging the sentencing proceedings when 
adopting the settlement, factors which Congress has required the court to 
consider. See 18 U.S.C. § 377l(dX2). 
W11. Huff 409 F.3d at 564. 
In this instance, as in W.R. Huff there was an un-convicted defendant, Epstein. Unlike in 
Wit. Huff here Epstein was the only defendant. Nonetheless, the AUSA who investigated 
Epstein developed a procedure to provide for restitution, despite the fact that the "CVRA does 
not grant victims any rights against individuals who have not been convicted of a crime." Id. 
That procedure not only provided for funds and attorney representation, it also provided for 
privacy and discretion, again to protect the victims' dignity. (See discussion, infra.) 
7. 
The right to proceedings free from unreasonable delay 
The use of the term "proceedings" again refers to a federal court proceeding. 
Accordingly, Petitioners have not alleged a violation of this right. Nonetheless, Petitioners do 
complain about the delay in notification between the time of signing the NPA and the notification 
of its existence at the time of Epstein's state court plea. As has been explained at hearings in this 
matter, the delay stemmed from Epstein's appeal to higher authority within the Department of 
Justice. As will be further explained in the response to DE49, one of the bases for Epstein's 
counsel to appeal to the Department of Justice — which has been explained to Petitioners' counsel 
— was the inclusion of Jane Doe #2 among the list of identified victims. The efforts of the AUSA 
and the agents to treat Jane Doe #2 with respect, despite her own insistence at the time that she 
was not a victim — resulted in allegations of overreaching and prosecutorial misconduct. After 
several levels of review, the Senior Associate Deputy Attorney General concluded that there was 
39 
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Entered on FLSD Docket 04/08/2011 Page 40 of 54 
no misconduct. 
8. 
The right to be treated with fairness and with respect for the victim's dignity and 
privacy 
The Petitioners maintain that this right has been violated. Because there has been no 
"court proceeding involving an offense against a crime victim [where] the court shall ensure that 
the crime victim is afforded the rights described in subsection (a)," Petitioners are alleging that 
the "employees of the Department of Justice 
. [failed to] make their best efforts to see that 
crime victims are notified of, and accorded, the rights described in subsection (a)." 18 U.S.C. 
3771(6)(1), (cX1). It is undisputed that Jane Does #1 and #2 were notified of this right in August 
2006 and June 2007. (DE14 Exs. I and 2.) Thus the allegation is that best efforts weren't used 
to accord them these rights. Since this right is the only one that does not mention the existence 
of a court proceeding or an accusation, Petitioners are trying to assert through this right 
everything from the right to be advised of and veto pre-indictment plea negotiations, to a demand 
that the prosecutor disregard her ethical obligation to treat opposing counsel and the putative 
defendant politely. 
So, for example, Petitioners make numerous allegations regarding efforts to mininthP
press coverage, for example, "the U.S. Attorney's Office was interested in finding a place to 
conclude a plea bargain that would effectively keep the victims from learning what was 
happening through the press." (UE48 at 7.) Yet Petitioners admit that they were notified 
regarding the change of plea in state court. Petitioners also neglect to mention that numerous 
other victims were not willing to give up their privacy and were very concerned about family 
members learning that they were even connected to the Epstein case, much less that they were 
40 
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victims. To allow them to participate in court proceedings, while maintaining their dignity and 
privacy, the AUSA handling the case thought it was, balancing the competing interests of several 
different girls, best to consider a venue outside of Palm Beach County. 
Petitioners also allege that they were not treated with respect when they received letters 
stating that the case was "still under investigation" after the NPA was signed. As noted above 
and in earlier presentations, after the NPA was signed, Epstein's counsel sought higher-level 
review in the Department of Justice seeking to set aside the NM. The U.S. Attorney's Office 
determined that, if Epstein were not to abide by the terms of the NPA, then it wanted to be 
prepared to go forward with charges. Accordingly, the investigation of Epstein had to continue. 
Thus, the letters sent to Jane Does #1 and #2 were not false. In fact, as set forth in Petitioners' 
"Undisputed Facts," on "January 31, 2008, Jane Doe #1 met with FBI Agents and AUSA's from 
the U.S. Attorney's Office. She provided additional details of Epstein's sexual abuse of her." 
(DE48 at 17.) And, one of Petitioners' counsel's other clients, S.R., was originally interviewed 
in October 2007 and refused to provide information regarding Epstein. (DE14 at It 7.) During 
the time that Epstein was challenging the NPA, the investigation continued and agents were able 
to conduct a more thorough interview of S.R. in May 2008, such that she was identified as a 
victim who could benefit under the NPA. Thus, the "undisputed facts" themselves show that the 
investigation was ongoing. 
Petitioners also argue that "[alt all times material to this statement of facts, it would have 
been practical and feasible for the federal government to inform Jane Doe #1 and Jane Doe #2 of 
the details of the proposed non-prosecution agreement with Epstein . .." 
First, Jane Doe #1 was informed of the details, including the fact that Epstein would not 
41 
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be prosecuted federally, shortly after the NPA was signed. (See DE14 at ¶ 8.) In Petitioners' 
"Undisputed Facts," Petitioners allege that Jane Doe #1 was told that Epstein would enter a 
guilty plea to state charges, would register as a sex offender for life, and "he had made certain 
concessions related to the payment of damages to the victims, including Jane Doe #1." (DE48 at 
12.) Despite this, Petitioners suggest that it was "quite reasonable" for Jane Doe #1 to believe 
that "Jane Doe #1 also understood her own case was move [sic] forward towards possible 
prosecution." (Id.) It was not "quite reasonable" for Jane Doe #1 to believe that Epstein would 
pay damages to Jane Doe #1 while still being exposed to criminal penalties for his conduct 
towards Jane Doe #1. While Jane Doe #1 may not have understood this, it was not due to any 
misleading behavior by the agents; it was simply a misunderstanding on Jane Doe # l's part. And 
that misunderstanding was not a reasonable one. 
Second, after Jane Doe #1 was notified about the NPA, Epstein's attorneys began their 
appeal to the Justice Department. Hence, there was a situation where there was a signed NPA 
that provided, amongst other things, that the victim-witnesses would receive compensation from 
Epstein as a result of his resolution of the matter, but there also was a possibility that Epstein 
would not perform the NPA. A determination was made to cease notifications for the simple 
reason that, if Epstein did not perform, and there was a trial, on cross-examination of the victim-
witnesses, Epstein would claim that the victims had been told, by the United States, that Epstein 
would pay them if he were convicted. This concern was not an unfounded one. Epstein's 
attorneys actually made these baseless allegations in depositions and other court filings. (See, 
e.g., Jane Doe l. Jeffrey Epstein, 
nc=Court 
File No. 08-80804-Civ-
, DE1 at 44-52.) 
42 
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Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 43 of 54 
Petitioners' allegations provide further examples of why die CVRA contains the caveat 
that nothing within the statute is meant to "impair the prosecutorial discretion of the Attorney 
General or any officer under this direction." 18 U.S.C. § 3771(dX6). Petitioners simply cannot 
understand how their demands and allegations would have impacted the plan to prosecute 
Epstein. The AUSA and agents did use their "best efforts" to accord all of the tights to these and 
all of the identified victims. They also needed to preserve the possibility of prosecuting Epstein 
should he violate or not perform the NPA. 
These Petitioners' interests are adverse to several of the other victims. For example, they 
neglect to mention that several other victims obtained counseling services during the 
investigation through the efforts of the AUSA and agents. If the Petitioners succeed in using 
these "above and beyond" efforts as proof of violations of the CVRA, it will preclude AUSAs 
and agents from offering such services in the future. 
Finally, if Petitioners succeed in convincing the Court to set aside the NPA, all of the 
victims who obtained counsel and damages paid for by Epstein through the NM will be 
adversely affected. 
VL 
UNDER ELEVENTH CIRCUIT LAW, ESTOPPEL WILL NOT LIE AGAINST 
THE GOVERNMENT WHEN IT ACTS IN ITS SOVEREIGN CAPACITY 
Petitioners argue the government should be estopped from denying that they had right 
under the CVRA, due to its representations in letters to Jane Doc #1 and Jane Doc #2 that they 
did have rights under § 3771(a). DE 48 at 33-36. 
This argument should be rejected because 
the government, under Eleventh Circuit law, cannot be estoppel when it is acting in its sovereign 
capacity. 
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In FDIC v. Harrison, 735 F.2d 408 (11* Cir. 1984), the Eleventh Circuit found that, 
"(aJctivities undertaken by the government primarily for the commercial benefit of the 
government or an individual agency are subject to estoppel while actions involving the exercise 
of exclusively governmental or sovereign powers are not." Id. at 411. In a subsequent case, 
United States v. Vondereau, 837 F.24 1540 (I I* Cir. 1988), the Eleventh Circuit observed: 
This Court has held that for estoppel to apply against the 
Government (1) the traditional private law elements of estoppel 
must have been present; (2) the Government must have been acting 
in its private or proprietary capacity as opposed to its public or 
sovereign capacity; and (3) the Government's agent must have 
been acting within the scope of his or her authority. 
Id. at 1541, citing FDIC v Harrison, 735 F.2d at 410. 
In this case, the Government was acting in its sovereign capacity when it investigated 
whether Epstein had committed any federal crimes, and entered into the non-prosecution 
agreement with Epstein, which was an exercise of its prosecutorial discretion. Nixon v. United 
States, 418 U.S. 683, 693 (1974)("the Executive Branch has exclusive authority and absolute 
discretion to decide whether to prosecute a case."). 
Therefore, estoppel will not lie against the 
Government. 
Estoppel will also not lie in this case because this Court's authority is limited by what 
legal duties are created by section 3771(a). "The proposition that the law alone defines the 
limits of a court's power to enter a judgment can be traced to this Court's early precedents." 
Libretti v. United States, 116 S.Ct. 356, 371 (1995)(Stevens, J., dissenting). Just as a court's 
subject matter jurisdiction cannot be conferred by estoppel, Mickler v. Nimishillen and 
Tuscarawas Railway Co., 13 F.3d 184, 189 (6* Cir. 1993), and Intercontinental Thavel 
44 
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ovenfiedry#,
Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 45 of 54 
Marketing, Inc. v. FDIC, 45 F.3d 1278, 1286 (9' Cir. 1994)("Estoppel may not prevent an 
objection to subject matter jurisdiction, because such an objection to subject matter jurisdiction 
may be raised at any time, by any party or the court."), estoppel cannot prevent the Government 
from contending it owed no duty to petitioners under section 3771(a). This Court's authority to 
enter a judgment is based on its determination whether any legal duties were owed to petitioners 
under section 3771(a) in the absence of a formal charge being filed against Epstein. The 
Government cannot be estopped from maintaining that such duties did not exist. 
VII. 
PETMONERS' CASE SHOULD BE DISMISSED DUE TO THEIR FAILURE 
TO PROSECUTE THEIR CASE EXPEDITIOUSLY AS REQUIRED BY THE 
CVRA 
As explained above, at the initial hearing on the Emergency Petition, Petitioners stated 
that their desired result was the setting aside of the NPA and the prosecution of Epstein. At the 
second hearing on the matter, counsel stated that they no longer wanted that remedy and stated 
that they would inform the Court of their desired remedy upon reviewing the full NPA. 
However, after reviewing the NPA, no such notification was provided, other than filing a motion 
to unseal the NPA. And, although the most recent motion (DE48) contains no demand for a 
remedy, the clear suggestion is that Petitioners are seeking to set aside the NPA.21
Epstein entered his guilty plea to state charges on June 30, 2008. At the time that 
Petitioners filed the Emergency Petition on July 7, 2008, Epstein had been imprisoned for seven 
21 See Jon Swaine, Duke of York to Face Fresh Questions as Epstein Case Takes New 
Twist, TELEGRAPH (London), Mar. 11, 2011 ("Several women who claim they were sexually 
abused by Epstein are challenging a plea bargain deal that enabled the billionaire to avoid being 
tried for offences that carried a possible life sentence. They say the deal with prosecutors was 
unlawful because under US law they should have been consulted, and want Epstein's convictions 
for lesser offences to be set aside so he can face a fresh trial. ... One lawyer said the plea bargain 
deal 'stinks to high heaven' ...") 
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(7) days. At the time of the first hearing on the matter on July 11th, when the Petitioners made 
clear that they wanted to invalidate the NPA, Epstein had been imprisoned for eleven (11) days. 
At that hearing, the Petitioners again stated that they wanted to invalidate the NPA, even though 
Epstein had entered his state court guilty plea in reliance on the NPA. (DE15 at 20.21.) The 
Court asked Petitioners about whether the Court needed to rule on the Emergency Petition 
quickly, and the Petitioners said that the Court did not need to do so. (Id. at 26.) 
Briefing on the "Emergency Petition" was completed by August 1st, and the second 
hearing on the Petition was completed on August 14, 2008, wherein the Petitioners admitted that 
the Court had a sufficient record and did not need to take any additional evidence in the matter. 
(DE19; DE27 at 4-5.) By this point, Epstein had served 49 days of his 18-month term of 
imprisonment. 
Thereafter, other than Petitioners' motion to unseal the NPA, there was no further action 
on the matter until the Court's Order to administratively close the case. Epstein was released 
from prison in July 2009 and his term of probation ended in July 201032
The CVRA's drafters understood that victims' rights of access needed to be balanced 
against defendants' rights to Due Process. Unlike victims' rights, which are only statutory 
constructs, defendants' rights are guaranteed in the Constitution. Accordingly, the CVRA 
contains strict time constraints. First, a "district court shall take up and decide any motion 
22To be clear, the delay from October 28, 2010 through early March 2011 was due to the 
United States' efforts to reach amicable resolution of the case and the need to obtain an opinion 
from the Justice Department as set forth in the Status Report filed by the United States. (DE45.) 
That additional delay is irrelevant to the analysis under the CVRA and the Due Process clause. 
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asserting a victim's right forthwith." 18 U.S.C. § 3771(4X3)." Second, if the district court 
denies the victim's motion, the victim may petition the court of appeal for a writ of mandamus 
and the "court of appeals shall take up and decide such application forthwith within 72 hours 
after the petition has been filed." Id. Third, in "no event shall proceedings be stayed or subject 
to a continuance of more than five days for purposes of enforcing this chapter." Id. Fourth, the 
CVRA specifies that "Din no case shall failure to afford a right under this chapter provide 
grounds for a new trial. A victim may make a motion to re-open a plea or sentence only if .. . 
(B) the victim petitions the court of appeals for a writ of mandamus within 14 days . . ." 18 
U.S.C. § 3771(d)(5). 
The First Circuit addressed how the conflict between the rights of victims and defendants 
is exacerbated by the passage of time in United States'. Aguirre-Gonzalez, 597 F.3d 46 (1st Cir. 
2010). In Aguirre-Gonzalez, a group of victims appealed an order of restitution, asserting that 
they were improperly excluded from the restitution award. However, rather than seeking a writ 
of mandamus under the expedited procedure in the CVRA, the victims filed a "regular" appeal. 
The Court of Appeals began by deciding that "crime victims are not parties to a criminal 
sentencing proceeding [and) the baseline rule is that crime victims, as non-parties, may not 
[directly] appeal a defendant's criminal sentence;" id. at 53 (extensive citations omitted); thus, 
crime victims are limited to proceeding via mandamus. Id. at 54-55. 
Next, the First Circuit considered whether it could convert the crime victims' direct 
appeal into a petition for writ of mandamus. Although the parties agreed that the court had the 
"The Federal Rules Committee interpreted this as: "The court must promptly decide any 
motion asserting a victim's rights described in these rules." Fed. R. Crim. P. 60(bX1). 
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authority to do so, the First Circuit declined because of its effect on the Duo Process rights of the 
defendant: 
The CVRA plainly envisions that crime victims' petitions challenging a denial of 
their rights will be taken up and decided in short order. It requires expeditious 
consideration by the district court, quick appellate review, and provides that a 
victim may not move to disturb a defendant's plea or sentence unless, among 
other things, "the victim petitions the court of appeals for a writ of mandamus 
within 14 days" of the denial of the victim's motion in the district court. 18 
U.S.C. §§ 37771(d)(3), 3771(dX5). We are mindful that the federal restitution 
statutes are intended to protect victims, not defendants. See, e.g., United States v. 
Rostoff, 164 F.3d 63, 66 (1st Cir. 1999) (applying VWPA). However, the 
criminal justice system also has a strong interest in the finality of criminal 
sentences. Olsen v. Correiro, 189 F.3d 52, 69 (1st Cir. 1999) (noting society's 
"interest in the integrity of the system of compromise resolution of criminal 
charges"); see Blackledge v. Allison, 431 U.S. 63,71 (1977) ("The guilty plea and 
the often concomitant plea bargain are important components of this country's 
criminal justice system . . . The advantages can be secured, however, only if 
dispotision by guilty plea are accorded a great measure of finality."); see also 
Teague v. Lane, 489 U.S. 288, 309 (1989) ("The principle of fmality ... is 
essential to the operation of our criminal justice system.") These finality concerns 
animate the CVRA's procedural mechanisms. 
The CVRA was in force when appellants elected to pursue a direct appeal rather 
than petition for the writ as provided by statute and more than two years have 
passed since the district court sentenced Aguirre. Under these circumstances, we 
conclude that appellants would not be entitled to mandamus relief ... 
Id. at 55-56 (brackets in original removed). 
In this case, the CVRA was in force when Petitioners elected to tell the Court that there 
was no longer any "Emergency." It was in effect during the second hearing when Petitioners 
announced that they were no longer seeking to have the NPA set aside, but, instead, would 
review the NPA and then advise the Court of the remedy they were seeking. It was in effect 
throughout the years thereafter when there was no activity on the case. Petitioners' counsel is 
well acquainted with the CVRA and Rule 60, as he is credited with being the source of the initial 
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draft of Rule 60. See 153 Cong. Rec. 58742, S8746 (June 29, 2007) ("Federal district court judge 
Paul Cassell initiated the process [of incorporating the CVRA into the Federal Rules] by 
recommending rule changes to the Advisory Committee on Criminal Rules.") And Petitioners 
were also well aware that Epstein was serving his prison sentence for his state court guilty plea, 
as administered by the Palm Beach County Sheriff's Office, in accordance with the terms of the 
NPA. 
Against this backdrop, the Petitioners elected to focus on exercising their right to collect 
damages from Epstein, and filed civil suits against him. Through those civil suits, they had the 
opportunity to have a public trial where they could have held him publicly accountable for the 
harms they alleged he caused them. Instead, they chose to enter into confidential settlement 
agreements with him. Only after those confidential settlement agreements were signed, and after 
Epstein completed his term of imprisonment and his term of community control, did the Court 
file its administrative order closing the case, which prompted Petitioners to file their notice that 
they intended to continue litigating this claim. 
Petitioners bear the burden of proof as to all stages of their claim, that is, (1) that there is 
a justiciable case or controversy; (2) that there was any violation of the CVRA in this case where 
no federal charges were ever filed; and (3) that there is still a remedy available for the harm that 
was alleged to have occurred and that Petitioners are entitled to that remedy despite their failure 
to proceed promptly. The remedy that is sought is an equitable one, because the CVRA clearly 
states that no claim for damages is allowed, see 18 U.S.C. § 3771(d)(6), and that remedy will 
impact a non-party to this suit — Epstein. In deciding whether the Petitioners have shown that 
they are entitled to the remedy that they at one time disavowed — setting aside the NPA — the 
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Court should consider a comment from Washington Supreme Court Justice James M. DoInver. 
"[E]mphasizing the conflict between the victim and the accused and placing the victim in the role 
of a quasi-prosecutor or co-counsel... represents a dangerous return to the private blood feud 
mentality." Dolliver, James, "Victims' Rights Constitutional Amendment A Bad Idea Whose 
Time Should Not Come," 34 Wayne L. Rev. 87, 90 (1987) (quoted in Levine, Danielle, "Public 
Wrongs and Private Rights: Limiting the Victim's Role in a System of Public Prosecution," 104 
Nw. U. L. Rev. 335, 353 (2010)). 
Everyone who has encountered the Epstein case has an opinion regarding the NPA, the 
state court plea, the sentence imposed, and the way the sentence was served. If the civil 
settlement agreements were made public, people would doubtless have differences of opinion on 
those, as well. Nonetheless, the facts remain that Epstein entered his state court guilty plea in 
reliance on the NPA and he served his sentence. The Petitioners knew these facts and could have 
sought expedited review of their claim. They elected not to do so. As in Aguirre, the 
Petitioners' election not to seek expedited resolution should not be used to violate a criminal 
defendant's Due Process rights. 
VIII. PETITIONERS LACK STANDING TO SEEK RELIEF UNDER SECTION 
3771(d)(3)
Based on the foregoing, it is apparent that petitioners have no enforceable rights under 
section 3371(a) because no charges were filed in the district court. Petitioners invoked section 
3771(d)(3) in seeking relief, but they lack standing to seek such relief since the rights provided in 
section 3771(a) have not attached. In Baloco v. Drummond Company, Inc., 631 F.3d 1350 (11th 
Cir. 2011), the Eleventh Circuit observed that the Supreme Court discussed the standing inquiry 
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