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which is waived once public disclosure occurs. The Government is obligated to stand silent 
regardless of what is reported, accurate or not, by the press.").) 
The reasons for Rule 6(e) are multiple: 
In addition to preventing adverse pretrial publicity about a person who may be 
indicted and subsequently tried, secrecy protects the reputation of a person under 
investigation who is not indicted. The secrecy requirement also encourages reluctant 
witnesses to testify without fear of reprisals from those against whom testimony is 
given, prevents tampering with grand jury witnesses in an effort to alter their trial 
testimony, and 'permits the grand jury to deliberate free from the influence of 
publicity. Finally, secrecy prevents disclosures to persons who may be interested in 
the investigation if the facts are known or might attempt to escape if they have reason 
to believe certain indictments will issue. 
United States. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983) (citing United States. Procter & 
Gamble Co., 356 U.S. 677, 681 n.6 (1958)). 
Several of the "facts" contained in Petitioners' submission contain allegations related to 
matters occurring before the grand jury. Pursuant to Fed. R. Crim. P. 6(e), the Government cannot 
confirm or deny the accuracy of those allegations. 
B. 
Due Process and the ABA Rule for Prosecutors 
As noted above, one of the reasons behind 6(e) is to protect the reputations of persons who 
are under investigation but not indicted. This is a corollary to what the Court of Appeals found to 
be a due process protection afforded by the Fifth Amendment of the United States Constitution — 
namely, "that the liberty and property concepts of the Fifth Amendment protect an individual from 
being publicly and officially accused of having committed a serious crime, particularly where the 
accusations gain wide notoriety." See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) (citation 
7 
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e' 
r 
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omitted)! In Smith, the petitioner filed a motion seeking to have his name stricken from the factual 
proffers of two criminal defendants. Smith had not been criminally charged or convicted. The Court 
of Appeals agreed with Smith, castigating the Government 
no legitimate governmental interest is served by an official public smear of an 
individual when that individual has not been provided a forum in which to vindicate 
his rights... . 
[W]e completely fail to perceive how the interests of criminal justice were advanced 
at the time of the plea hearings by such an attack on the Petitioner's character. The 
presumption of innocence, to which every criminal defendant is entitled, was 
forgotten by the Assistant United States Attorney in drafting and reading aloud in 
open court the factual resumes which implicated the Petitioner in criminal conduct 
without affording him a forum for vindication. 
Id. at 1106, 1107. The Court of Appeals ordered the District Court Clerk's Office to "completely 
and permanently obliterate and strike from the records of the pleas of guilty . . . any and all 
identifying reference to or name of Mr. Smith, the Petitioner, so that such references may not be used 
as a public record to impugn the reputation of Petitioner." Id. at 1107. The Court further ordered 
that all of the pleadings in the case be sealed. Id. 
Courts have interpreted Smith to apply not only to references to unindicted co-conspirators 
in indictments and factual proffers, but also to motion papers. See, e.g.. United States'. Anderson, 
55 F. Supp. 2d 1163, 1168 (D. Kan. 1999) ("After carefully reviewing the government's moving 
papers on the conflict of interest issue, the court can find no reason why the government might have 
'forgotten' the presumption of innocence in such a public pleading .. .') (citing Smith, 656 F.2d at 
1107); United States, Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010) (Fifth Amendment 
rights of organization were violated when its name was listed among 246 unindicted coconspirators 
'This opinion of the Fifth Circuit was made binding precedent in the Eleventh Circuit 
pursuant to Bonner'. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane). 
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in pm-trial brief). 
The Model Rules further advise prosecutors not to engage in comments that "have a 
substantial likelihood of heightening public condemnation of the accused." (ABA Model Rule 3.8.) 
In Petitioners' "Statement of Undisputed Material Facts," they included allegations related 
to crimes for which Epstein and several other individuals were neither charged nor convicted. 
Pursuant to Smith and its progeny, and as previously explained to Petitioners' counsel, the 
Government denies all such allegations, including but not limited to the allegations contained in 
paragraphs 1, 2, 4, 5, 10, 11, 17, 37, 52, and 53.s
IR 
THERE IS NO LEGAL OBLIGATION THAT THE UNITED STATES 
ADMIT OR DENY THE PETITIONERS' "FACTS," MANY OF WHICH ARE 
FALSE. 
Although docketed as a Civil Case, the CVRA does not provide for a civil cause of action. 
See, e.g., 18 U.S.C. § 3771(dX6). Rather, the CVRA creates rights for victims in federal criminal 
cases where criminal charges have already been filed. 18 U.S.C. § 3771(bXI) ("In any court 
proceeding involving an offense against a crime victim, the court shall ensure that the crime victim 
is afforded the rights described in subsection (a)."); see also Fed. R. Crim. P. 60 (incorporating 
CVRA into Federal Rules of Criminal Procedure). Thus, there is no obligation in this case, as there 
might be in a case governed by the Federal Rules of Civil Procedure where sovereign immunity was 
waived, that requires the United States to make any evidentiary disclosures. 
Petitioners next rely on Local Rule 88.10(O), which governs discovery in criminal cases. 
First, no standing discovery order has been entered because no criminal proceedings are pending. 
aft should be noted that Petitioners preface many of these allegations with afalse imprimatur 
of FBI findings. Compare, for example, paragraph 5 with the pages cited in support thereof. 
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Second, victims are not "parties" to criminal proceedings. See, e.g., In re Amy Unknown, 
F.3d 
2011 WL 988882 at •2 (5th Cir. Mar. 22, 2011). ("Crime victims have not been recognized 
as pasties, and the Federal Rules of Criminal Procedure do not allow them to intervene as pasties to 
a prosecution.); United States'. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) 
("Notwithstanding the rights reflected in the restitution statutes, crime victims are not parties to a 
criminal sentencing proceeding.). Third, many of Petitioners' asserted "facts" are not facts at all, but 
instead arc inferences, legal conclusions, or innuendos. And, most importantly, many arc plainly 
false. 
As stated above, the United States does not believe that any of these issues arc material to 
the resolution of the Emergency Petition or Jane Does #1 and #2's Motion for Finding of Violation 
of the CVRA [DE1 and DE48]. Nonetheless, to correct misstatements in the record, the United 
States points out the following examples of areas where Petitioners have included "undisputed facts" 
that arc known to them to be in dispute. 
Prior to Epstein's state court plea, Jane Doe #2 was represented by counsel for Epstein, was 
adverse to any investigation of Epstein, and contacted other potential victim-witnesses and advised 
them not to speak to investigators. When interviewed by the FBI and the U.S. Attorney's Office, 
Jane Doe #2 denied any sexual abuse by Epstein and said that Epstein was an "awesome man" and 
that she would marry hint Jane Doe #2 further expressed a belief to the government that Epstein 
should not be prosecuted. 
Jane Doe #2 not only made the government's investigative efforts more difficult, she also 
made the victim notification process more difficult. A great deal of the complaints made by the 
Petitioners come from the delay between the time that Epstein signed the NPA on September 24, 
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• 
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2007, and when he actually entered his guilty plea on June 30, 2008. (See DE 48 at V 25, 32, et 
seq.) As set forth in their "Statement of Undisputed Facts," this was the period when Epstein 
"sought higher level review within the Department of Justice." (Id. at 1 32.) As is known to 
Petitioners, but as they neglected to mention in their "Statement of Undisputed Material Facts," one 
of the unfounded allegations made against AUSA Villafafia by Epstein's counsel during the "higher 
level review" was that she "wrongfully" tried to include Jane Doe #2 among the list of Epstein's 
victims. Ironically, these same attempts to protect lane Doe #2's rights are now being used by Jane 
Doe #2 to allege violations of the CVRA. 
Petitioners also allege that the letters sent to Jane Doe #1 and Jane Doe #2 during the period 
when Epstein was pursuing Justice Department review, which stated that their cases were still under 
investigation, were false. Yet Petitioners know that the investigation was ongoing because, as stated 
in their own "Statement of Undisputed Material Facts," on "January 31,2008, Jane Doe #1 met with 
FBI Agents and AUSA's from the U.S. Attorney's Office." (DE48 at 17.) And another individual 
represented by Petitioners' counsel was interviewed on May 28, 2008. These and other interviews 
were conducted so that, if Epstein did not follow through with the NPA, the Office would be ready 
to address that situation as appropriate. Thus, the investigation was, in fact, continuing. 
The Petitioners also know that the terms of the NPA were disclosed to Jane Doe #1 shortly 
after the NPA was signed. Jane Doe #1 avers that she believed that Epstein agreed to pay damages 
to her, but agreed that he would still be federally prosecuted for criminal charges based on crimes 
allegedly committed against her. Petitioners aver that it is a "fact" that this was a "quite reasonable 
understanding." (DE48 at 12.) The Government denies that this is what Jane Doe #1 was told (see 
DE14), although there could have been an honest misunderstanding. The Government denies, 
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Entered on FLSD Docket 04/07/2011 Page 12 of 15 
however, that it was "quite reasonable" to believe that a criminal defendant would agree to pay 
damages to Jane Doe #1 as part of his resolution of a criminal case involving another victim while 
still agreeing that he could be criminally charged for acts involving Jane Doe #1. 
Furthermore, Petitioners know well that one of the reasons why the terms of the NPA were 
not disclosed to additional victims when Epstein began appealing to the Justice Department was 
because of concerns that, if Epstein did not follow through with the NPA and federal criminal 
charges were thereafter filed against him, Epstein's counsel would argue at trial that the victims had 
been told, by the prosecution team, that they would receive money if they claimed that they had been 
victimized by Epstein. l'his was not a frivolous concern; such allegations actually were raised by 
Epstein's counsel in depositions of some of the identified victims that were filed before this Court. 
Petitioners also suggest that efforts were made to move proceedings to Miami to keep these 
Petitioners from learning of court proceedings. Yet, it is undisputed that Petitioners were notified, 
through counsel, of the only public court proceeding — Epstein's state court plea and sentencing — 
and were specifically invited to attend. The Petitioners also know that some of the victims in the 
ease were terrified that their family members might learn of their connection to the investigation and 
that other victims had privacy concerns that were very different than those of Petitioners. Having 
the proceedings outside the glare of the victims' hometown press would have allowed those other 
victims to participate while maintaining some semblance of privacy. 
Petitioners also reiterate baseless allegations made against AUSA Villafalia regarding the 
choice of the attorney-representative for the victims, despite knowing that: (1) the issue of the 
attorney-representative arose after the NPA was already negotiated; (2) the Justice Department 
investigated these allegations and found them to be meritless; and (3) the U.S. Attorney's Office 
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Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 13 of 15 
elected to use a Special Master (retired U.S. District Court Judge Edward Davis) to make the final 
selection. 
The Petitioners also know that the AUSA, the agents, and the FBI's victim-witness 
coordinator obtained counseling services for some of the identified victims. And Petitioners are well 
aware that the AUSA even provided notifications of Epstein's work release status. 
Paragraph 17 of Petitioners' filing also misstates a provision of the NPA. Petitioners stated 
that Iltjo obtain an attorney paid for by Epstein, the victim would have to agree to proceed 
exclusively under 18 U.S.C. § 2255 (i.e., under a law that provided presumed damages of $150,000 
against Epstein[.]" Section 2255 actually provides minimum presumed damages of $150,000, not 
a "cap" of $150,000. 
There are a number of additional inferences and legal conclusions interspersed in the 
"Statement of Undisputed Material Facts," which the Government denies. For example, contrary 
to Petitioners' contentions, the Government denies that notifying the victims about the NPA would 
have violated the NPA (DE48 at 10, ¶ 18); and that the U.S. Attorney's Office wanted the NPA to 
be kept confidential to avoid public criticism or to avoid victims from convincing "the judge 
reviewing the agreement not to accept it" (DE48 at 11, 1 19). The Government denies these and all 
other unsupported innuendos advanced by Petitioners. 
CONCLUSION 
For the reasons set forth herein and in the United States' Response to Jane Does #1 and #2's 
Motion for Finding of Violations of the Crime Victims Rights Act and Request for a Hearing on 
Appropriate Remedies, the Petitioners' "Statement of Undisputed Facts" is completely irrelevant to 
the Court's determination of the merits of this case. As both of the parties agreed shortly after the 
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Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 14 of 15 
filing of the Emergency Petition, the Court had all of the relevant facts back in August 2008 and the 
matter was ready to be decided. 
Petitioners cannot demand that the Government agree to their allegations, innuendos, and 
legal conclusions, especially when many of them would run afoul of Rule 6(e) and the Fifth 
Amendment and others are clearly false. Accordingly, Petitioners' Motion to Have Their Facts 
Accepted should be denied. 
Respectfully submitted, 
WIFREDO A. FERRER 
UNITED STATES ATTORNEY 
By: 
s/ Dexter A. Lee 
DEXTER A. LEE 
Assistant U.S. Attorney 
Fla. Bar No. 0936693 
99 N.E. 4' Street 
Miami, Florida 33132 
(305) 961-9320 
Fax: (305) 530-7139 
E-mail: dexter. lee(ratusdoi•nov 
Attorney for Respondent 
CERTIFICATE OF SERVICE 
I HEREBY CERTIFY that on April 7, 2011, I electronically filed the foregoing document 
with the Clerk of the Court using CM/ECF. 
s/ Dexter A. Lee 
DEXTER A. LEE 
Assistant U.S. Attorney 
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SERVICE LIST 
Jane Does 1 and 2 
United States, 
Case No. 08-80736-CIV-MARRA/JOHNSON 
United States District Court, Southern District of Florida 
Bradley J. Edwards, Esq., 
Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 
425 North Andrews Avenue, Suite 2 
Fort Lauderdale, Florida 33301 
(954) 524-2820 
Fax: (954) 524-2822 
E-mail: bradtkpathtoiustice.com 
Paul G. Cassell 
S.J. Quinney College of Law at the 
University of Utah 
332 S. 1400 E. 
Salt Lake City, Utah 84112 
(801) 585-5202 
Fax: (801) 585-6833 
E-mail: casselrQlaw.utah.edu 
Attorneys for Jane Doe # 1 and Jane Doe # 2 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
Case No. 08-80136-Civ-Mant/Johnson 
JANE DOE #1 and JANE DOE #2 
I 
UNITED STATES 
JANE DOE #1 AND JANE DOE #2'S MOTION FOR ORDER DIRECTING THE U.S. 
ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE 
COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and 
through undersigned counsel, to move for an order from this Court directing the U.S. Attorney's 
Office not to suppress material evidence relevant to this case. The Court should enter an order, 
as it would in other criminal or civil cases, requiring the Government to make appropriate 
production of such evidence to the victims. 
BACKGROUND 
In discussions with the U.S. Attorney's Office about this case, counsel for Jane Doe #1 
and Jane Doe #2 inquired about whether the Office would voluntarily provide to the victims 
information in its possession that was material and favorable to the victims' case. Victims' 
counsel pointed out that, if they were criminal defense attorneys representing criminals, the 
Office would promptly turn over all information in its possession that was helpful to these 
criminals under Brady. Maryland, 373 U.S. 83 (1963), and related decisions. Victims' counsel 
asked the Office to extend to the victims the same assistance that it would provide to criminal 
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C. nee ..... 
• 
y••••••••••••••••,••••••••, ••• 
• 
Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 2 of 15 
defendants — i.e., to voluntarily provide to the victims information in its possession that was 
favorable to the victims' CVRA case. 
In response, victims' counsel were informed by the Office that it could - and would --
withhold from the victims such information, apparently on the theory that the CVRA does not 
apply to these case or on the theory victims lack due process rights under the CVRA. The 
victims accordingly have been forced to file this motion, seeking an order from the Court 
directing the U.S. Attorney's Office to produce to the victims favorable information. 
The victims are entitled to such information for four separate reasons. First, the U.S. 
Attorney's Office is statutorily-obligated to use it "best efforts to see that crime victims are . . . 
accorded[] the rights described in [the CVRA]." 18 U.S.C. § 3771(cX1) (emphasis added). The 
Office flouts this best efforts obligation when it deliberately withholds favorable information 
from the victims. 
Second, just as criminal defendants are entitled to receive favorable information in the 
Government's possession under due process rights, see, e.g., Brady. Maryland, 373 U.S. 83 
(1963), victims are entitled to receive favorable information under their CVRA "right to be 
treated with faimess," 18 U.S.C. § 3771(aX8) — a right that clearly includes due process 
considerations. The U.S. Attorney's Office is not treating the victims with fairness if it 
withholds the very information that might enable them to prove their case. 
Third, the U.S. Attorney's Office has obligations under the civil discovery rules to 
voluntarily provide information to the victims. See Fed. R Civ. P. 26(a)(1) (initial disclosures in 
civil cases). The victims' action has been opened as a civil case, and the U.S. Attorney's Office 
has previously argued that it should be treated as a civil case. Proceeding on this basis, the 
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XVIS#0.0),""'""," 
Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 3 of 15 
ordinary civil discovery rules apply and the U.S. Attorney's Office should disclose relevant 
documents "without awaiting a disciivery request." Fed. R. Civ. P. 26(aXI)(A). 
Finally, a decision by the U.S. Attorney's Office to withhold information relevant to this 
case has serious ethical ramifications. The attorneys have a duty of candor to the Court. It is not 
immediately clear how the U.S. Attorney's Office can satisfy those obligations while concealing 
information that might enable the victims to prove their case. 
For all these reasons, the Court should enter an order directing the U.S. Attorney's Office 
to produce to the victims all information in its possession favorable to the victims. A proposed 
order to that effect is attached to this pleading, largely tracking the standard discovery order that 
this Court routinely enters in criminal cases. 
DISCUSSION 
I. 
THE GOVERNMENT VIOLATES ITS "BEST EFFORTS" OBLIGATIONS IF IT 
WITHOLDS EVIDENCE FAVORABLE TO THE VICTIMS. 
The U.S. Attorney's Office is obliged to produce favorable information to the victims 
because of the CVRA's requirement that prosecutor use their "best efforts" to protect crime 
victims' rights. The CVRA directs that "[o]fficers and employees of the Department of Justice 
and other departments and agencies of the United States engaged in the detection, investigation, 
or prosecution of crime shall make their best efforts to see that crime victims are notified of, and 
accorded, the rights described in [the CVRA]." 18 U.S.C. § 3771(cX1) (emphasis added). It is 
hard to understand how the Government can argue with a straight face that it is using its "best 
efforts" to protect victims' rights while simultaneously withholding readily-identifiable 
documents from the victims that might allow them to protect those very rights. If a best efforts 
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obligation means anything, it must mean that the U.S. Attorney's Office cannot suppress 
favorable information. 
This understanding of the best efforts obligation is confirmed by the plain meaning of the 
phrase "best efforts." That phrase is generally understood as requiring "[djiligent attempts to 
carry out an obligation." BLACK'S LAW DICTIONARY 169 (8i6 ed. 2004). See generally E. Allen 
Farnsworth, CM Trying to Keep One's Promises: The Duo, of Best Efforts in Contract Law, 46 U. 
Pin. L. REV. 1, 8 (1984). 
As a result, "[Nest efforts are measured by the measures that a 
reasonable person in the same circumstances and of the same nature as the acting party would 
take." BLACK'S LAW DICTIONARY 169 (8i° ed. 2004). A reasonable prosecutor who is obligated 
to work to "accord" crime victims their rights, 18 U.S.C. § 3771(c)(1), would not simultaneously 
deny victims access to the very evidence that could help them protect their rights. Put another 
way, an obligation to use "best efforts" is usually understood "in the natural sense of the words 
as requiring that the party puts its muscles to work to perform with full energy and fairness the 
relevant express promises and reasonable implications therefrom." Stabile'. Stabile, 774 N.E.2d 
673, 676 (Mass. App. Ct 2002). Here, far from putting its full energies towards protecting 
victims' their rights, the U.S. Attorney's Office is devoting its energies to blocking those rights. 
The cases construing "best efforts" language have routinely recognized that this language can 
create affirmative obligations to act. See, e.g., Hughes Communications Galaxy, The.
 United 
States, 26 Cl. Ct. 123, 135 (1992) ("A best efforts clause . . . can also affirmatively obligate."). 
Here, the action that is affirmatively required by the U.S. Attorney's Office is to produce readily-
identifiable information that will assist the victims. 
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It is also important to recognize that the victims here are not seeking to force some kind 
of burdensome wild goose chase on the U.S. Attorney's Office. In their letter to the U.S. 
Attorney requesting relevant evidence, the victims offered to provide a list of specific items they 
were seeking: "To avoid burdening your Office, we would be happy to provide a specific list of 
the information that we believe is material to the victims' CVRA case — a limited amount of 
information that could be swiftly located by your Office." Letter from Bradley J. Edwards & 
Paul G. Cassell to Wifiedo A. Ferrer, Mar. I, 2011. The victims have, for example, requested 
that the U.S. Attorney's Office provide to them unredacted copies of correspondence between 
the U.S. Attorney's Office and Jeffrey Epstein. Through civil discovery from Epstein, the 
victims have obtained half of that correspondence — the words written by the U.S. Attorney's 
Office — but arc lacking the other half — the words written in reply by Epstein's counsel. This 
correspondence specifically discusses crime victims' rights, so it is obviously quite material to 
the victims' case. The U.S. Attorney's Office could obviously provide this information without 
much difficulty. But instead, the Office has refused to provide to the victims any of the 
correspondence — or, indeed, any other similar information that might assist the victims. 
For all these reasons, the Court should find that the Department's "best efforts" 
obligations require it to produce to the victims information favorable to the victims' case. 
II. 
THE VICTIMS HAVE A DUE PROCESS RIGHT TO ACCESS TO FAVORABLE 
EVIDENCE UNDER THEIR CVRA "RIGHT TO BE TREATED WITH 
FAIRNESS." 
The victims are also entitled to receive favorable evidence in the Government's 
possession for the same reason that criminal defendants receive such information: fundamental 
considerations of fairness require that the Government not deliberately withhold relevant 
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Entered on FLSD Docket 03121/2011 Page 6 of 15 
information contrary to its position in court. For criminal defendants, this principle traces back 
to the landmark decision of Brady I. Maryland, 373 U.S. 83, 87 (1963), in which the Court 
explained the production of exculpatory evidence is a principle designed for 
avoidance of an unfair trial to the accused. Society wins not only when the guilty 
are convicted but when criminal trials are fair, our system of the administration of 
justice suffers when any accused is treated unfairly. An inscription on the walls of 
the Department of Justice states the proposition candidly for the federal domain: 
"The United States wins its point whenever justice is done its citizens in the 
courts." A prosecutor that withholds evidence on demand of an accused which, if 
made available would tend to exculpate him or reduce the penalty helps shape a 
trial that bears heavily on the defendant. That casts the prosecutor in the role of an 
architect of a proceeding that does not comport with standards of justice ... . 
Id. at 87-88. Of course, precisely the same points can be made here about production of 
evidence to crime victims. The Justice Department will "win its point if justice is done" to crime 
victims in this case — but justice can be done only if these proceedings are fair, in the sense that 
all relevant infonnation is provided to the court. To have this case move forward with the 
prosecutors withholding material information is to truly cast them "in the role of an architect of a 
proceeding that does not comport with standards of justice." 
To be sure, the victims in this case do not rely on a federal constitutional right to due 
process. But they have a parallel statutory right under the CVRA, which promises victims of 
crime that they will be "treated with fairness." 18 U.S.C. § 3771(a)(8). The clear intent of 
Congress in passing this provision was to provide a substantive "due process" right to crime 
victims. As one of the CVRA's co-sponsors (Senator Kyl) explained, "The broad rights 
articulated in this section [§ 3771(a)(8)] are meant to be rights themselves and arc not intended to 
just be aspirational. One of these rights is the right to be treated with fairness. Of course, 
fairness includes the notion of due process. Too often victims of crime experience a secondary 
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Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 7 of 15 
victimization at the hands of the criminal justice system. This provision is intended to direct 
Government agencies and employees, whether they are in executive or judiciary branches, to 
treat victims of crime with the respect they deserve." 150 CONG. REc. S4269 (Apr. 22, 2004) 
(emphasis added). 
Because the CVRA extends a "due process" right to crime victims like Jane Doe #1 and 
Jane Doe #2, victims have a right to fair access to evidence to prove their case. 
The very 
foundation of the Brady obligation is such a notion of due process: "[T]he suppression by the 
prosecution of evidence favorable to an accused . . . violates due process where the evidence is 
material either to guilt or to punishment." Brady' Maryland, 373 U.S. 83, 87 (1963). It would 
similarly violate due process — and thus not treat victims with "fairness" — for the prosecution to 
suppress evidence favorable to a crime victim where the evidence is material either to proving a 
CVRA violation or to the remedy for a violation. 
The Brady principles are well understood, and the Government does not have difficulty in 
providing favorable information to criminal defendants. For example, it is our understanding 
that such discovery was provided by the government to Jeffrey Epstein during the course of 
negotiations that led to the non-prosecution agreement in this case. 
If the Government's 
obligations to see "that justice is done," Brady, 373 U.S. at 87, requires it to produce helpful 
information to a sex offender, surely principles of fairness require the same kind of production to 
the sex offender's victims when they are properly pursuing a contested case against the 
Government before this Court. 
The familiar Brady principles are so commonplace that this Court routinely enters a 
"Standing Discovery Order" in criminal cases directing the Government to provide favorable 
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Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 8 of 15 
evidence to the defendant. The Order typically provides: "The government shall reveal to the 
dcfendant(s) and permit inspection and copying of all information and material known to the 
government which may be favorable to the defendant on the issues of guilty or punishment 
within the scope of Brady'. Maryland, 373 U.S. 83 (1963), and United States. Agars, 427 U.S. 
97 (1976)." See, eg., Standing Discovery Order, United States. Enriquex, No. 1:10-CR-20488-
MGC (July 9, 2010) (doc. #115). These Standing Discovery Orders follow from identical 
language in the local rule on these issues. See Local Rule 88.10. 
Interesting, the Standing Discovery Order— and associated local rule 88.10(O) — contains 
a broad, commonsense provision which the Government has plainly violated in this case. The 
Order provides: "The parties shall make every possible effort in good faith to stipulate to all facts 
or points of law the truth or existence of which is not contested and the early resolution of which 
will expedite the trial." For more than two-and-a-half years, the victims have been trying to get 
the Government to stipulate to undisputed facts, precisely as the Court's rules envision. ' The 
Government, however, has refused to do so. 
It is a simple matter to tailor the Standing Discovery Order from a situation involving a 
criminal defendant's need for information to the current situation of a crime victim's need for 
information. A proposed order to that effect is attached to this pleading, largely tracking the 
language of the Standing Discovery Order. The Court should enter that order. The Court has its 
own obligations to ensure that victims' rights are protected. The CVRA directs that "[i]n any 
court proceeding involving an offense against a crime victim, the court shall ensure that the 
crime victim is afforded the rights [described in the CVRA]" — rights that include a right to "be 
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treated with fairness?' See 18 U.S.C. § 3771(b)(I), (a)(8). The Court should ensure fair 
treatment for the victims by directing the Government to produce relevant evidence. 
ILL 
THE VICTIMS ARE ENTITLED TO DISCLOSURE UNDER THE FEDERAL 
RULES OF CIVIL PROCEDURE. 
The victims are further entitled to receive information favorable to them under the rules 
civil procedure. The victims' petition seeking to set aside the non-prosecution agreement has 
been opened as a civil case — as reflected in the case number the matter has borne for the last 
two-and-a-half years: 9:08-CV-80736-Marra/Johnson. 
Indeed, the Government has seized on 
this point to deny the victims rights that they would otherwise enjoy in a criminal case. For 
example, on October 27, 2010, the U.S. Attorney's Office advised Jane Doc #1 and Jane Doe #2 
that the Office was taking the position that they did not enjoy a right "to confer" with the Office 
under the CVRA, 18 U.S.C. § 3771(aX5), in this enforcement action because the action was 
"civil" litigation rather than criminal litigation. See Doc. #41 at 1-2. 
If the U.S. Attorney's Office is correct that this matter is "civil" litigation, then the 
Federal Rules of Civil Procedure govern discovery. See Fed. R. Civ. P. 1 ("These rules govern 
the procedure in all civil actions and proceeding in the United States district courts . . . .").' 
Under those Rules, generous discovery is provided. Of particular relevance to this motion is the 
requirement under Fed. R. Civ. P. 26(aXI)(A) that parties are automatically required produce 
relevant information to a case without waiting for a discovery request. 
in light of the 
Government's position that this case is civil litigation, the victims have been making (and are 
Rule 1 note that there are certain limitations to application of the Civil Rules, found in 
Fed. R. Civ. P. 81. None of the limitations in Rule 81 (e.g., for bankruptcy and citizenship 
proceedings) apply in this case. 
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continuing to make) initial disclosures consistent with Rule 26(aXI)(A). But the U.S. Attorney's 
Office has recently informed the victims that they do not believe that this Rule applies to their 
case and that they will not be making any such disclosures. Accordingly, the victims seek an 
order from the Court requiring the ordinary kinds of document production that are made in civil 
cases. 
To order the Government to make such production, the Court need not engage in 
metaphysical ruminations about whether this CVRA enforcement action is ultimately a "civil" 
case or a "criminal" case. For purposes of this motion, it is enough to say that the Government 
has taken the position that it is a civil action and therefore the Government must at least carry 
through on the discovery obligations that attend civil cases. 
Moreover, Congress clearly allowed the filing of this action in this Court. See 18 U.S.C. 
§ 3771(dX3) (allowing assertion of CVRA rights "in the district court in which a defendant is 
being prosecuted or, if no prosecution is underway, in the district court in the district in which 
the crime occurred."). Congress did not specify whether such actions would be civil or criminal 
in nature. But Congress no doubt envisioned at least a minimum level of cooperation with 
victims by the Government Congress, in fact, mandated prosecutors to make their "best efforts" 
to afford victims their rights. In a case such as this one where there is a dispute about the factual 
events surrounding, it makes sense to read the CVRA has at least giving victims access to 
information that might prove their case rather than permitting the Government to suppress such 
evidence. The Court should accordingly require the Government to make the disclosures that it 
would ordinarily make in a civil case. The proposed order attached to this pleading includes a 
provision to that effect. 
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IV. 
ALLOWING THE GOVERNMENT TO WITHHOLD RELEVANT EVIDENCE 
WOULD RAISE SERIOUS ETHICAL ISSUES. 
On a final note, it is worth considering the ethical ramifications of the Government's 
stark position that it can withhold even relevant and material evidence from the victims in this 
case. Prosecutors, no less than other attorneys, have duties of candor to the Court that would not 
permit them to present evidence or testimony to the Court that is known to be false. Fla. Bar 
Rule 4-3.3(a)(4). Allowing the victims access to evidence favorable to their claim will insure 
compliance with this rule. Similarly, in an ex pane proceeding, a lawyer must inform the court 
of all material facts known to the lawyer that will enable the court to make an informed decision 
"whether or not the facts are adverse." Fla. Bar. Rule 4-3.3(d). If the U.S. Attorney's Office is 
correct that the victims are not entitled to access to favorable evidence, then the proceedings 
involving that evidence are essentially ex pane — requiring the Office to make disclosures to the 
Court with notice to the victims. 
An illustration of this problem comes from the sworn declaration filed by one of the 
AUSA's in this case in support of the Government's response to the victims' petition. This 
sworn affidavit recounts a provision in the non-prosecution agreement that would have placed 
victims of Bpstein's sexual abuse in "the same position as they would have been had Mr. Epstein 
been convicted at trial." Declaration of Marie Villafana, July 9, 2008 (doe. #14) at 3-4. 
The 
affidavit also goes on to say that "these provisions were discussed," id. at 4, apparently referring 
to this provision. Id. (noting that "as explained above" there was a remedy for crime victims). 
And the declaration notes that on July 9, 2008, the victims in this case (including Jane Doe #I) 
were notified about the existence of this provision. 
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