EFTA01099943

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE NO.: 08-CIV-80232-MARRA-JOHNSON 
JANE DOE NO. 3, 
Plaintiff, 
v. 
JEFFREY EPSTEIN, 
Defendant. 
DEFENDANT EPSTEIN'S MOTION FOR SUMMARY JUDGMENT, 
INCLUDING SUPPORTING MEMORANDUM OF LAW 
Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and though his undersigned 
counsel, seeks summary judgment determining that under the undisputed material facts, 
(1) the version of 18 U.S.C. §2255, effective 1999 to Jul. 26, 2006, the period of time 
during which EPSTEIN's alleged conduct occurred, applies to Plaintiff JANE DOE NO. 
3's claim brought pursuant to §2255 in Count III of the Second Amended Complaint 
[D.E. 50]; (2) Plaintiff has failed to and cannot establish a predicate act — under 18 U.S.C. 
§2422 as plead in her complaint, in order to state a cause of action pursuant to 18 U.S.C. 
§2255 (2005); and (3) the version of 18 U.S.C. § 2255 in effect when the predicate acts 
allegedly were committed allow only "minors" to file suit. Rule 56, Fed.R.Civ.P. (2010); 
Local Oen. Rules 7.1, and 7.5 (S.D. Fla. 2010). 
In support of his motion, Defendant 
states: 
Introduction 
Defendant, without waiving any affirmative defense or grounds which may entitle 
him to summary judgment in this action or in any other actions brought by other plaintiffs 
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in multiple civil actions asserting §2255 and other claims against EPSTEIN, seeks 
summary judgment regarding the proper application of 18 U.S.C. §2255. Based on the 
undisputed material facts and applicable law relevant to the summary judgment sought, 
Defendant is entitled as a matter of law to the entry of summary judgment determining 
that (1) the version of 18 U.S.C. §2255, effective 1999 to Jul. 26, 2006, the period of time 
during which EPSTEIN's alleged conduct occurred, applies to Plaintiff's claim brought 
pursuant to §2255; (2) Plaintiff has not and cannot establish the requisite elements to state 
a claim under 18 U.S.C. §2255, which she attempts to assert in Count III of her Second 
Amended Complaint [D.E. 50). In particular, the undisputed material facts show that 
Plaintiff has failed to and cannot establish a predicate act —under 18 U.S.C. §2422 as 
plead in her complaint, in order to state a cause of action pursuant to 18 U.S.C. §2255 
(2004); and (3) the version of 18 U.S.C. § 2255 in effect when the predicate acts 
allegedly were committed allow only "minors" to file suit. The pleadings and the 
discovery materials on file show that there is no genuine issue as to any material fact 
establishing that EPSTEIN is entitled as a matter of law to the summary judgments 
sought. 
Statement of Material Facts in Support of Summary Judgment, Loc.Gen.Rule 73 
Statement of the Case 
1. Plaintiff JANE DOE NO. 3's Second Amended Complaint [D.E. 50), dated 
February 27, 2009, attempts to assert three causes of action. Count I and Count II, 
respectively, attempt to allege state law claims under Florida law for "Sexual Assault and 
Battery," and "Intentional Infliction of Emotional Distress." Count III, which is the 
subject of this motion, is entitled "Coercion and Enticement to Sexual Activity in 
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Violation of 18 U.S.C. §2422," and attempts to assert a claim pursuant to 18 U.S.C. 
§2255. (Plaintiff JANE DOE NO. 3 shall be referred to as "JD3" or "Jane" or "Jane 
Doe." Plaintiff's Second Amended Complaint shall be referred to as "2d Am Comp," 
and is attached hereto as Exhibit A.). 
2. According to the allegations - "In or about 2004-2005, Jane Doe, then 
approximately 16 years old, fell into Epstein's trap and became one of his victims." [2d 
Am Comp, ¶8]. She had one encounter with Epstein; (after the one encounter she 
brought other girls to Epstein's Palm Beach home as specified below). (2d Am Comp. 
¶14). Plaintiff further alleges that 
Ms. i 
recru 
J e Doe to give Epstein a massage for 
monetary compensation. Ms. 
brought Jane to Epstein's mansion in 
Palm Beach. Jane was led up the flight of stairs to the room with the massage 
table. She was alone in the room when Epstein arrived wearing a towel to 
cover his private parts. He laid down on the massage table, and sexually 
assaulted Jane Doe during the massage. 
In addition, Jeffrey Epstein 
masturbated during the massage. [2d Am Comp, ¶12]. 
... Jane was paid $200 by Epstein. (2d Am Comp, ¶13). 
3. Material to this motion, in attempting to assert a claim in Count III pursuant to 18 
U.S.C. §2255, Plaintiff alleges in material part that — 
29. Epstein used a facility or means of interstate commerce to knowingly 
persuade, induce or entice Jane Doe, when she was under the age of 
18 years, to engage in prostitution or sexual activity for which any 
person can be charged with a criminal offense. 
30. On June 30, 2008, Epstein entered a plea of guilty to violations of 
Florida §§796.07 and 796.03, in the 15th Judicial Circuit in and for 
Palm Beach County (Case Nos. ...), for conduct involving the same 
plan or scheme as alleged herein. 
31. As to Plaintiff Jane Doe, Epstein could have been charged with 
criminal violations of Florida Statute §796.07(2Xincluding subsections 
(c), (d), (e), (f), (g), and (h) thereof), and other criminal offenses 
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including violations of Florida Statutes §§798.02 and 800.04 (including 
subsections (5), (6) and (7) thereof). 
32. Epstein's acts and conduct are in violation of 18 U.S.C. §2422. 
33. As a result of Epstein's violation of 18 U.S.C. §2422, Plaintiff has 
suffered personal injury, including mental, psychological and 
emotional damages. 
4. In the "WHEREFORE" clause of Count III, Plaintiff "demands judgment against 
Jeffery Epstein for all damages available under 18 U.S.C. §2255(a), 
." See 2d Am 
Comp, Count III, Exhibit A hereto. 
5. In trying to assert a violation of the federal criminal statute 18 U.S.C. 2422 as the 
requisite predicate act for a claim pursuant to 18 U.S.C. §2255(a)', Plaintiff generally 
tracks the language of subsection (b) of 18 U.S.C. 2422 (eff. Apr. 30, 2003), which states 
in relevant part —
(b) Whoever, using the mail or any facility or means of interstate or foreign 
commerce, or within the special maritime and territorial jurisdiction of the United 
States knowingly persuades, induces, entices, or coerces any individual who has 
not attained the age of 18 years, to engage in prostitution or any sexual activity for 
which any person can be charged with a criminal offense, or attempts to do so, shall 
be fined under this title and imprisoned not less than 5 years and not more than 30 
years. 
See endnote 2 for complete text of statute. 
(See endnote 1 hereto for full text of 18 U.S.C. §2255, the version that applied in 2004, 
and the amended version effective July 27, 2006.) 
6. Epstein never, using a facility or means of interstate commerce, knowingly 
persuaded, induced or enticed 5133, when she was under the age of 18 years, to engage in 
prostitution or sexual activity for which any person can be charged with a criminal 
offense, or attempted to do so. (Deposition Testimony of JD3, taken February 19 2010. 
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See pages referenced below herein). A copy of the referenced deposition pages is 
attached hereto as Exhibit B. See endoote 2 for full text of 18 U.S.C. §2422.2
7. 31)3 testified that she first learned of Epstein ("Jeffrey') through Jane Doe No. 4, 
(another Plaintiff in a lawsuit against Epstein), and 
and through other girls, 
Jane Doe No. 7 and J.S. (J1)3 Deposition, pp. 84-90). According to J133, while at the 
home of Jane Doe No. 4, 
told her "You can make quick money, 200 bucks 
just to give a guy a massage." 
said his name and that he live in Palm Beach. (11)3 
Deposition, p. 90, lines 12-24). 3133 and Jane Doe 4 "were good friends" at the time. (Id, 
p. 104). JD3 learned at some point "through word of mouth" that Jane Doe 4 had been to 
Epstein's house because they "all hung out together." (Id, p. 92-93). 
8. Jane Doe 4 told her "you give him a massage." (Id, p. 95, Lines 8-9). 
said 
the same — you give a''/: hour massage for $200. (P. 96, p. 217). 
telephone JD3 
twice and asked if she wanted to give Epstein a massage for $200. JD3 thought about it 
and eventually J133 agreed to do so and 
"set it up." (Id, p. 218-20). 
9. J1)4 and JD7, who had been to Epstein's home and who are both represented by 
the same law firm as JD3, J1)2, JD5 and 31)6 in other actions against Epstein before this 
Court, were friends of J133 and led 31)3 to believe it was no big deal to go to Epstein's 
home and that nothing inappropriate had ever occurred. (JD3 Deposition, pp. 143-145). 
Now that they seek millions in damages, Plaintiffs' version of the facts has changed 
substantially. 
10. JD3 never spoke with Epstein by phone, and never received or sent a text or e-
mail or computer/electronic communication from Epstein. (JD3 Deposition, p. 222). 
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There is no deposition testimony or allegations that JD3 ever traveled anywhere by any 
means with Epstein. 
11. JD3 went to Epstein's Palm Beach home a total of four times. (JD3 deposition, p. 
19, lines 19-21). 
Although JD3 only gave Epstein the "massage" the one time, 
afterwards she brought back other girls and got paid for it, even picking up the girls in her 
own car. (JD3 Deposition, p. 175, lines 8-25, p. 176, lines 1-14; p. 259-62, p. 266). 
12. JD3's date of birth is March 5, 1988. (JD3 Deposition, p. 5). The original 
Complaint [D.E. 1] in this matter was filed on March 5, 2008. JD3 turned 18 on March 
5, 2006. Thus, JD3 was 20 years old at the time this suit was filed. 
Summary Judgment Standard 
Summary judgment is proper under Rule 56(c)(2), Fed.R.Civ.P, when there is no 
genuine issue as to any material fact and the movant is entitled to judgment as a matter of 
law. Celotex v. Catrett, 477 U.S. 317, 106 S.Q. 2548, 2552, 91 L.Ed.2d 265 (1986). 
Pursuant to Rule 56(b), "a party against whom relief is sought may move, with or without 
supporting affidavits, for summary judgment on all or part of the claim." 
As stated by the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 
106 S.Ct. 2548, 2552 (1986) 
summary judgment is proper "if the pleadings, depositions, answers to 
interrogatories, and admissions on file, together with the affidavits, if any, show 
that there is no genuine issue as to any material fact and that the moving party 
is entitled to a judgment as a matter of law." In our view, the plain language of 
Rule 56(c) mandates the entry of summary judgment, after adequate time for 
discovery and upon motion, against a party who fails to make a showing 
sufficient to establish the existence of an element essential to that party's case, 
and on which that party will bear the burden of proof at trial. In such a 
situation, there can be "no genuine issue as to any material fact," since a 
complete failure of proof concerning an essential element of the nonmoving 
party's case necessarily renders all other facts immaterial. The moving party is 
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"entitled to a judgment as a matter of law" because the nonmoving party has 
failed to make a sufficient showing on an essential element of her case with 
respect to which she has the burden of proof. 
Discussion of Law as Applied to Undisputed Material Facts Showing 
that EPSTEIN Is Entitled to Summary Judgment as a Matter of Law. 
I. The version of 18 U.S.C. $2255 in effect at the time the purported conduct took 
place applies to the Plaintiff's $2255 claim against EPSTEIN, not the version as 
amended and effective July 27, 2006. 
The applicable version of 18 U.S.C. §2255 provides — 
PART I--CRIMES 
CHAPTER 110-SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN 
§ 2255. Civil remedy for personal injuries 
(a) Any minor wbo is a victim of a violation of section 2241(c), 2242, 2243, 2251, 
2251k 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers 
personal injury as a result of such violation may sue in any appropriate United 
States District Court and shall recover the actual damages such minor sustains and 
the cost of the suit, including a reasonable attorneys fee. Any minor as described in 
the preceding sentence shall be deemed to have sustained damages of no less than 
$50,000 in value. 
(See endnote 1 for complete statutory text, pre and post amendment.) 
By its own terms, 18 U S C. 2255(a) creates a cause of action for "a minor who is 
a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 
2421, 2422, or 2423 of this title and who suffers personal injury as a result of such 
violation ... ." See generally, Smith v. Husband, 428 F.Supp.2d 432 (E.D. Va. 2006); 
Smith v. Husband, 376 F.Supp.2d 603 (ED. Va. 2006); Doe v. Liberatore, 478 F.Supp.2d 
742, 754 (M.D. Pa. 2007). The referenced statutes are all federal criminal statues 
contained in Title 18 of the United States Code. Thus, in order to sustain a cause of 
action under §2255, a plaintiff is required to prove all the elements of one of the statutory 
enumerated criminal predicate acts. See Gray v. Darby, 2009 WL 805435 (E.D. Pa. Mar. 
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25, 2005), requiring evidence to establish predicate act tinder 18 U.S.C. §2255 to state 
cause of action. 
L A. The statute in effect during the time the alleged conduct occurred applies to 
each of the Plaintiffs claim brought pursuant to 18 U.S.C. §2255 — not the amended 
version which became effective on July 27, 2006. See endnote 1 for complete statutory 
text in effect prior to July 27, 2006 and as amended. 
Plaintiff in her complaint asserts that the alleged conduct by EPSTEIN occurred 
prior to the amended version of §2255 taking effect 
Based on JD3's deposition 
testimony, she had one encounter with Epstein (and three other visits to his house at 
which she brought other girls but did not have any encounter with Epstein) in or about 
2004-2005. 
Thus, it is undisputed Epstein's conduct occurred prior to §2255's 
amendment, effective July 27, 2006. 
Under applicable law, the statute in effect at the time of the alleged conduct 
applies. See U.S. v. Scheidt, Slip Copy, 2010 WI. 144837, fn. 1 (E.D.CaI. Jan. 11, 2010); 
U.S. v. Renga, 2009 WI. 2579103, fn. 1 (E.D. Cal. Aug. 19, 2009); U.S. v. Ferenci, 2009 
WL 2579102, fn. 1 (ED. Cal. Aug. 19, 2009); U.S. v. Monk, 2009 WI. 2567831, fn. 1 
(E.D. Cal. Aug. 18, 2009); U.S. v. Zane 2009 WL 2567832, fn., (E.D. Cal. Aug. 18 
2009). In each of these cases, the referenced footnote states — 
Prior to July 27, 2006, the last sentence in Section §2255(a) read "Any 
person as described in the preceding sentence shall be deemed to have 
sustained damages of no less than $50,000 in value." Under the civil statute, 
the minimum restitution amount for any violation of Section 2252 (the 
predicate act at issue) is S150,000 for violations occurring after July 27, 2006 
and $50,000 for violations occurring prior to $50,000. 
Even with the typo (the extra 150,000") at the end of the quoted sentence, it is 
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clear that the Court applied the statute in effect at the time of the alleged criminal conduct 
constituting one of the statutorily enumerated predicate acts, which is consistent with 
applicable law discussed more fully below herein. 
It is an axiom of law that "retroactivity is not favored in the law." Bowen, 488 
U.S., at 208, 109 S.Ct., at 471 (1988). As eloquently stated in Landgraf v. USI Film 
Products, 114 S.Ct. 1483, 1497, 511 U.S. 244, 265-66 (1994): 
... the presumption against retroactive legislation is deeply rooted in our 
jurisprudence, and embodies a legal doctrine centuries older than our Republic. 
Elementary considerations of fairness dictate that individuals should have an 
opportunity to know what the law is and to conform their conduct accordingly; settled 
expectations should not be lightly disrupted.nlis For that reason, the "principle that the 
legal effect of conduct should ordinarily be assessed under the law that existed 
when the conduct took place has timeless and universal appeal." Kaiser, 494 U.S., 
at 855, 110 S.Ct., at 1586 (SCALIA, J., concurring). In a free, dynamic society, 
creativity in both commercial and artistic endeavors is fostered by a rule of law that 
gives people confidence about the legal consequences of their actions. 
FNI 8. See General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 
1112, 117 L.Ed.2d 328 (1992) ("Retroactive legislation presents problems of 
unfairness that are more serious than those posed by prospective legislation, because 
it can deprive citizens of legitimate expectations and upset settled transactions"); 
[Further citations omitted]. 
It is therefore not surprising that the antiretroactivity principle finds expression 
in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits 
retroactive application of penal legislation FN19 Article I, § 10, cl. 1, prohibits States 
from passing another type of retroactive legislation, laws "impairing the Obligation of 
Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other 
government actors) from depriving private persons of vested property rights except for 
a "public use" and upon payment of "just compensation." The prohibitions on "Bills of 
Attainder in Art. 1, §§ 9-10, prohibit legislatures from singling out disfavored persons 
and meting out summary punishment for past conduct. See, e.g., United States v. 
Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 1719-1722, 14 L.Ed.2d 484 (1965). The 
Due Process Clause also protects the interests in fair notice and repose that may be 
compromised by retroactive legislation; a justification sufficient to validate a statute's 
prospective application under the Clause "may not suffice" to warrant its retroactive 
application. User, v. Turner Elkhorn Mining Co., 428 U.S. I, 17, 96 5.0. 2882, 2893, 
49 L.F.d.2d 752 (1976). 
FN19. Article I contains two Ex Post Facto Clauses, one directed to Congress (§ 9, 
cl. 3), the other to the States (§ 10, cl. 1). We have construed the Clauses as 
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applicable only to penal legislation. See Calder v. Bull, 3 Dail. 386, 390-391, 1 
Ltd. 648 (1798) (opinion of Chase, J.). 
These provisions demonstrate that retroactive statutes raise particular concerns. The 
Legislature's unmatched powers allow it to sweep away settled expectations suddenly 
and without individualized consideration. Its responsivity to political pressures poses a 
risk that it may be tempted to use retroactive legislation as a means of retribution 
against unpopular groups or individuals. As Justice Marshall observed in his opinion for 
*9498 the Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 
(1981), the Ex Post Facto Clause not only ensures that Individuals have "fair 
warning" about the effect of criminal statutes, but also "restricts governmental 
power by restraining arbitrary and potentially vindictive legislation." Id, at 28-29, 
101 S.Ct., at 963-964 (citations omitted). 1142°
FN20. See Richmond v. J. A. Cresson Co., 488 U.S. 469, 513-514, 109 S.Ct. 706, 
732, 102 L.Ed.2d 854 (1989) ("Legislatures are primarily policymaking bodies that 
promulgate rules to govern future conduct. The constitutional prohibitions against 
the enactment of ex post facto laws and bills of attainder reflect a valid concern 
about the use of the political process to punish or characterize past conduct of 
private citizens. It is the judicial system, rather than the legislative process, that is 
best equipped to identify past wrongdoers and to fashion remedies that will create 
the conditions that presumably would have existed had no wrong been committed") 
(STEVENS, J., concurring in part and concurring in judgment); James v. United 
States, 366 U.S. 213, 247, n. 3, 81 S.Ct. 1052, 1052, n. 3, 6 L.Ed.2d 246 (1961) 
(retroactive punitive measures may reflect "a purpose not to prevent dangerous 
conduct generally but to impose by legislation a penalty against specific persons or 
classes of persons"). 
These well entrenched constitutional protections and presumptions against 
retroactive application of legislation establish that 18 U.S.C. §2255 in effect at the time 
of the alleged conduct applies to the instant action, and not the amended version. See 
endnote 1 hereto. 
La, Not only is there no clear express intent stating that the statute is to apply 
retroactively, but applying the current version of the statute, as amended in 2006, would 
be in clear violation of the Ex Post Facto Clause of the United States Constitution as it 
would be applied to events occurring before its enactment and would increase the penalty 
or punishment for the alleged crime. U.S. Const. Art. 1, §9, cl. 3, §10, cl. 1. U.S. v. 
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Seigel, 153 F.3d 1256 (11a" Cir. 1998); U.S. v. Edwards, 162 F.3d 87 (3d Cir. 1998); and 
generally, Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 1798 WL 587 (Calder) (1798). 
The United States Constitution provides that "[n]o Bill of Attainder or ex 
post facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3. A law 
violates the Ex Post Facto Clause if it " `appli[es] to events occurring before its 
enactment ... [and] disadvantage[s] the offender affected by it' by altering the 
definition of criminal conduct or increasing the punishment for the crime." 
Lvnce v. Mathis. 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (quoting 
Weaver v. Graham. 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). 
U.S. v. Siege1,153 F.3d 1256, 1259 (11th Cir. 1998). 
§2255 is contained in Title 18 of the United States Codes - "Crimes and Criminal 
Procedure, Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children." 
18 U.S.C. §2255 (2005), is entitled Civil remedy for personal injuries, and imposes a 
presumptive minimum of damages in the amount of $50,000, should Plaintiff prove any 
violation of the specified criminal statutes and that she suffered personal injury with 
actual damages sustained. Thus, the effect of the 2006 amendments, effective July 27, 
2006, would be to triple the amount of the statutory minimum previously in effect during 
the time of the alleged acts. 
The statute, as amended in 2006, contains no language stating that the application 
is to be retroactive. Thus, there is no manifest intent that the statute is to apply 
retroactively, and, accordingly, the statute in effect during the time of the alleged conduct 
is to apply. Landgraf v. USI Film Products, supra, at 1493, ("A statement that a statute 
will become effective on a certain date does not even arguably suggest that it has any 
application to conduct that occurred at an earlier date."). See fn. 1 herein. 
This statute was enacted as part of the Federal Criminal Statutes targeting sexual 
predators and sex crimes against children. H.R. 3494, "Child Protection and Sexual 
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Predator Punishment Act of 1998;" House Report No. 105-557, 11, 1998 U.S.C.A.N. 
678, 679 (1998). Quoting from the "Background and Need For Legislation" portion of 
the House Report No. 105-557, 11-16, H.R. 3494, of which 18 U.S.C. §2255 is included, 
is described as "the most comprehensive package of new crimes and increased penalties 
ever developed in response to crimes against children, particularly assaults facilitated by 
computers." 
Further showing that §2255 was enacted as a criminal penalty or 
punishment, "Title II - Punishing Sexual Predators," Sec. 206, from House Report No. 
105-557, 5-6, specifically includes reference to the remedy created under §2255 as an 
additional means of punishing sexual predators, along with other penalties and 
punishments. Senatorial Comments in amending §2255 in 2006 confirm that the creation 
of the presumptive minimum damage amount is meant as an additional penalty against 
those who sexually exploit or abuse children. 2006 WL 2034118, 152 Cong. Rec. S8012-
02. Senator Kerry refers to the statutorily imposed damage amount as "penalties." Id. 
The cases of U,S. v. Siegel, supra (11th Cir. 1998), and U.S.
ds, supra (3d 
Cir. 1998), also support Defendant's position that application of the current version of 18 
U.S.C. §2255 would be in clear violation of the Ex Post Facto Clause. In Siegel, the 
Eleventh Circuit found that the Ex Post Facto Clause barred application of the Mandatory 
Victim Restitution Act of 1996 (MVRA) to the defendant whose criminal conduct 
occurred before the effective date of the statute, 18 U.S.C. §3664(0(1 XA), even though 
the guilty plea and sentencing proceeding occurred after the effective date of the statute. 
On July 19, 1996, the defendant Siegel pleaded guilty to various charges under 18 U.S.C. 
§371 and §1956(aX1)(A), (conspiracy to commit mail and wire fraud, bank fraud, and 
laundering of money instruments; and money laundering). He was sentenced on March 
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7, 1997. As part of his sentence, Siegel was ordered to pay $1,207,000.00 in restitution 
under the MVRA which became effective on April 24, 1996. Pub.L. No. 104-132, 110 
Stat. 1214, 1229-1236. The 1996 amendments to MVRA required that the district court 
must order restitution in the full amount of the victim's loss without consideration of the 
defendant's ability to pay. Prior to the enactment of the MVRA and under the former 18 
U.S.C. §3664(a) of the Victim and Witness Protection Act of 1982 (VWPA), Pub.l. No. 
97-291, 96 Stat. 1248, the court was required to consider, among other factors, the 
defendant's ability to pay in determining the amount of restitution. 
When the MVRA was enacted in 1996, Congress stated that the amendments to the 
VWPA "shall, to the extent constitutionally permissible, be effective for sentencing 
proceedings in cases in which the defendant is convicted on or after the date of enactment 
of this Act [Apr. 24, 1996]." Siegel, supra at 1258. The alleged crimes occurred between 
February, 1988 to May, 1990. The Court agreed with the defendant's position that 1996 
MVRA "should not be applied in reviewing the validity of the court's restitution order 
because to do so would violate the Ex Post Facto Clause of the United States 
Constitution. See U.S. Coast. art I, §9, cl. 3." 
The Ex Post Facto analysis made by the Eleventh Circuit in Siegel is applicable to 
this action. In resolving the issue in favor of the defendant, the Court first considered 
whether a restitution order is a punishment. AI  at 1259. In determining that restitution 
was a punishment, the Court noted that §3663A(aX1) of Title 18 expressly describes 
restitution as a "penalty." In addition, the Court also noted that "[a]lthough not in the 
context of an ex post facto determination, ... restitution is a `criminal penalty meant to 
have strong deterrent and rehabilitative effect.' United States v. Twiny 107 F.3d 1482, 
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1493 n. 12 (11th Cir.1997)." Second, the Court considered "whether the imposition of 
restitution under the MVRA is an increased penalty as prohibited by the Ex Post Facto 
Clause." 14, at 1259. In determining that the application of the 19% MVRA would 
indeed nm afoul of the Constitution's Ex Post Facto Clause, the Court agreed with the 
majority of the Circuits that restitution under the 1996 MVRA was an increased penalty.' 
"The effect of the MVRA can be detrimental to a defendant. Previously, after considering 
the defendant's financial condition, the court had the discretion to order restitution in an 
amount less than the loss sustained by the victim. Under the MVRA, however, the court 
must order restitution to each victim in the full amount." 14, at 1260. See also U.S. v. 
?Awards, 162 F.2d 87 (3rd Circuit 1998). 
In the instant cases, in answering the first question, it is clear that that imposition 
of a minimum amount of damages, regardless of the amount of actual damages suffered 
by a minor victim, is meant to be a penalty or punishment. See statutory text and House 
Bill Reports, cited above herein, consistently referring to the presumptive minimum 
damages amount under §2255 as "punishment" or "penalties." According to the Ex Post 
Facto doctrine, although §2255 is labeled a "civil remedy," such label is not dispositive; 
"if the effect of the statute is to impose punishment that is criminal in nature, the ex post 
facto clause is implicated." See generally, Roman Catholic Bishop of Oakland v. 
Superior Court, 28 Cal.Rptr.3d 355, at 360, citing Kansas v. Hendricks, 521 U.S. 346, 
360-61 (1997). The effect of applying the 2006 version of §2255 would be to triple the 
' The Eleventh Circuit, in holding that "the MVRA cannot be applied to a person whose criminal 
conduct occurred prior to April 24, 1996," was "persuaded by the majority of districts on this 
issue." "Restitution is a criminal penalty carrying with it characteristics of criminal punishment." 
Siegel, supra at 1260. The Eleventh Circuit is in agreement with the Second, Third, Eighth, 
Ninth, and D.C. Circuits. See U,S. v. Futrell, 209 F.3d 1286, 1289-90 (11th Cir. 2000). 
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amount of the presumptive minimum damages to a minor who proves the elements of her 
§2255 claim. The fact that a plaintiff proceeding under §2255 has to prove a violation of 
a criminal statute and suffer personal injury to recover damages thereunder, further 
supports that the imposition of a minimum amount, regardless of a victim's actual 
damages sustained, is meant and was enacted as additional punishment or penalty for 
violation of criminal sexual exploitation and abuse of minors. 
Accordingly, this Court is required to apply the statute in effect at the time of the 
alleged criminal acts. Not only is there no language in the 2006 statute stating that it is to 
apply retroactively, but further, such application of the 2006 version of 18 U.S.C. §2255 
to acts that occurred prior to its effective date would have a detrimental and punitive 
effect on Defendant by tripling the presumptive minimum of damages available to a 
plaintiff, regardless of the actual damages suffered .2
I. C. As discussed above, 18 U.S.C. §2255 was enacted as part of the criminal 
statutory scheme to punish and penalize those who sexually exploit and abuse minors, 
and thus, the Ex Post Fact Clause prohibits a retroactive application of the 2006 amended 
version. Even if one were to argue that the statute is "civil" and the damages thereunder 
are "civil" in nature, under the analysis provided by the United Stales Supreme Court in 
Landgraf v. USI Film Product% 511 U.S. 244, 114 S.Ct. 1483 (1994), pertaining to civil 
statutes, not only is there no express intent by Congress to apply the new statute to past 
2 In other filed civil actions attempting to assert §2255 claims against EPSTEIN, some 
plaintiffs also propose that the minimum damage amount is to apply on a per violation basis; the 
absurdity of such position is further magnified when one considers that the presumptive damages 
amount was tripled to $150,000 by the 2006 amendment. Based on some plaintiffs' position, that 
amount would be multiplied even further based on the number of violations (along with injury) 
that she could prove. Clearly, the result is an unconstitutional increase in either a penalty or civil 
liability. 
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conduct, but also, the clear effect of retroactive application of the statute would be to 
increase the potential liability for past conduct from a minimum of $50,000 to $150,000, 
and thus in violation of the constitutional prohibitions against such application. As noted, 
18 U.S.C. §2255 is entitled "Civil remedy for personal injuries." Notwithstanding this 
label, the statute was enacted as part of the criminal statutory scheme to punish those who 
sexually exploit and abuse minors. Regardless of the actual damages suffered or proven 
by a minor, as long as a minor proves violation of a specified statutory criminal act under 
§2255 and personal injury, the defendant is held liable for the statutory imposed 
minimum. 
Although there does not exist any definitive ruling of whether the damages 
awarded under §2255 are meant as criminal punishment or a civil damages award, 
Defendant is still entitled to a determination as a matter of law that the statute in effect at 
the time of the alleged criminal conduct applies. 
As explained by the Landgraf court, supra at 280, and at 1505,3
When a case implicates a federal statute enacted after the events in suit, the 
court's rust task is to determine whether Congress has expressly prescribed the 
statute's proper reach. If Congress has done so, of course, there is no need to 
resort to judicial default rules. When, however, the statute contains no such 
express command, the court must determine whether the new statute would have 
retroactive effect, te., whether it would impair rights a party possessed when he 
acted, increase a party's liability for past conduct, or impose new duties with 
respect to transactions already completed. If the statute would operate 
retroactively, our traditional presumption teaches that it does not govern absent 
clear congressional intent favoring such a result. 
3 In I..andgra& the United States Supreme Court affirmed the judgment of the Court of Appeals 
and refused to apply new provisions of the Civil Rights Act of 1991 to conduct occurring before 
the effective date of the Act. The Court determined that statutory text in question, §102, was 
subject to the presumption against statutory retroactivity. 
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Here, there is no clear expression of intent regarding the 2006 Act's application to 
conduct occurring well before its enactment. Clearly, however, as discussed in part B 
herein, the presumptive minimum amount of damages of $150,000 was enacted as a 
punishment or penalty upon those who sexually exploit and abuse minors. See discussion 
of House Bill Reports and Congressional background above herein. The amount triples 
the previous amount for which a defendant might be found liable, regardless of the 
amount of actual damages a plaintiff has suffered and proven. The new statute imposes a 
substantial increase in the monetary liability for past conduct. 
As stated in Landnraf, "the extent of a party's liability, in the civil context as well as 
the criminal, is an important legal consequence that cannot be ignored." Courts have 
consistently refused to apply a statute which substantially increases a party's liability to 
conduct occurring before the statute's enactment. Landeraf, supra at 284-85. Even if 
plaintiff were to argue that retroactive application of the new statute "would vindicate its 
purpose more fishy," even that consideration is not enough to rebut the presumption 
against retroactivity. Id, at 285-86. "The presumption against statutory retroactivity is 
founded upon sound considerations of general policy and practice, and accords with long 
held and widely shared expectations about the usual operation of legislation." Id. 
Accordingly, as a matter of law, this Court is required to apply the version of 18 
U.S.C. §2255 (2004-05) in effect at the time of the alleged conduct by EPSTEIN directed 
to Plaintiff. 
IL Defendant is entitled to summary judgment on Count In. as under the 
undisputed material facts, Plaintiff has failed to and can not show a violation of 
a requisite predicate act to sustain a claim pursuant to 18 U.S.C. 82255. 
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As matter of law, Defendant is entitled to the entry of a summary judgment in his 
favor on Count III - entitled "Coercion and Enticement to Sexual Activity in Violation of 
18 U.S.C. §2422." In reality, Count HI is an attempt to bring a claim pursuant to 18 
U.S.C. §2255(a), which creates a civil remedy for violations of certain federal criminal 
statutes as discussed herein. The undisputed material facts and applicable law show that 
Plaintiff does not and cannot establish the elements required to prove her §2255 claim. 
As confirmed by Plaintiff in her deposition testimony, the one encounter which is 
alleged as the basis for her Count III §2255 claim (and the visits to Epstein's home in 
which she brought other girls) took place sometime during 2004-05. As testified to by 
JD3, she heard about being able to get $200 for giving a massage to a man in Palm Beach 
through conversations with friends. (See Statement of Facts above, 112, 6, 7, 8, 9, and 
10). 3O3 testified that the only phone calls were between her and Sarah and that the only 
thing mentioned was the giving of a massage for $200. There was no discussion of the 
performance sexual activity or sexual conduct. There was absolutely no communications 
by phone, intemet, texting or other electronic means between Epstein and JD3. JD3 
never traveled anywhere with Epstein. She drove herself and other girls to Epstein's 
Palm Beach home. (Id). 
The applicable version of 18 U.S.C. §2255 provides - 
PART I-CRIMES 
CHAPTER 110-SEXUAL EXPLOITATION AND OTHER ABUSE OF 
CHILDREN 
§ 2255. Civil remedy for personal injuries 
(a) Any minor who is a victim of a violation of section 2241(e), 2242, 
2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and 
who suffers personal injury as a result of such violation may sue in any 
appropriate United States District Court and shall recover the actual damages 
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such minor sustains and the cost of the suit, including a reasonable attorney's 
fee. Any minor as described in the preceding sentence shall be deemed to 
have sustained damages of no less than S50,000 in value. 
(See endnote 1 for complete statutory text.) 
By its own terms, 18 U.S.C. 2255(a) creates a cause of action for "a minor who is 
a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 
2421, 2422, or 2423 of this title and who suffers personal injury as a result of such 
violation ... ." See generally, Gray v. Darby, 2009 WL 805435, 6 (E.D.Pa.,2009X"§2255 
establishes a civil remedy for personal injuries suffered as a result of the violation of 
specific sections of the Code [U.S.C. Title 18]. Under this section, any minor who is the 
victim of any of those sections may sue in federal court to recover 'the actual damages 
such minor sustains and the cost of the suit, including a reasonable attorney's fee.'"); 
Smith v. Husband, 428 F.Supp.2d 432 (ED. Va. 2006); Smith v. Husband, 376 
F.Supp.2d 603 (E.D. Va. 2006); Doe v. Liberatore, 478 F.Supp.2d 742, 754 (M.D. Pa. 
2007). The referenced statutes are all federal criminal statues contained in Title 18 of the 
United States Code. In her complaint, Plaintiff partially tracks the language of 18 U.S.C. 
§2422(b) and cites generally to §2422 in an attempt to assert a claim under 18 U.S.C. 
§2255. (2d Am Com, 129, 32-33). None of the State of Florida criminal statutes 
referenced by Plaintiff are a requisite predicate act required to prove a claim under 18 
U.S.C. §2255. (See 130-31 of 2d Am Comp.). 
Thus, in order to sustain a cause of action under §2255, Plaintiff is required to prove 
all the elements of one of the statutory enumerated predicate acts. See Gray v. Darby, 
2009 WL 805435 (E.D. Pa. Mar. 25, 2005), requiring evidence to establish predicate act 
under 18 U.S.C. §2255 to state cause of action. As noted above, Plaintiff is relying on 
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§2422 of Title 18, and tracks the language of subsection (b) of that statute. There is no 
evidence whatsoever of EPSTEIN "using the mail or any facility or means of interstate 
or foreign commerce, or within the special maritime and territorial Jurisdiction of the 
United States knowingly persuades, induces, entices, or coerces any individual who has 
not attained the age of 18 years, to engage in prostitution or any sexual activity for which 
any person can be charged with a criminal offense, or attempts to do so, ... ." 
In order to show a violation of 18 U.S.C. §2422(b), four elements must be proven: 
(1) use of a facility of interstate commerce; (2) to knowingly persuade, induce, entice, or 
coerce; (3) any individual who is younger than 18; (4) to engage in any sexual activity for 
which any person can be charged with a criminal offense, or attempting to do so. U.S. v. 
Thomas 410 F.3d 1235, 1245 (10th Cir. 2005); U.S. v. Munro, 394 F.3d 865, 869 (10th
Cir. 2005); U.S. v, Kave, 451 F.Supp.2d 775, 782-83 (ED. Va. 2006). The undisputed 
material facts show that EPSTEIN and JD3 never communicated at any time on any 
subject via the telephone, intemet, texting, e-mails, or other form of electronic 
communication. JD3 testified that she found out about getting $200 for a massage from 
other girls. The only thing discussed with 
and JD3 over the phone was 
the giving of a massage for $200. No other type of activity or conduct was discussed. 
There was no communication by any means in which sexual activity or illicit sexual 
conduct was brought up with Epstein. There is no testimony or complaint allegations that 
JD3 travelled anywhere with EPSTEIN by car or otherwise. 
Thus, there was no (1) use of a facility of interstate commerce; (2) to knowingly 
persuade, induce, entice, or coerce; (3) any individual who is younger than 18; (4) to 
engage in any sexual activity for which any person can be charged with a criminal 
EFTA01099962