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called upon to interpret the Constitution. 
Even in the case of In re Dean, 527 F.3d 391 (5th Cir. 2008), upon which the plaintiffs rely, 
the district court, after remand from the Fifth Circuit, denied the motion of the victims to invalidate 
the defendant's plea agreement as a remedy for the claimed violation of the Crime Victims' Rights 
Act. The court found that "[t]he purpose of the conferral right is not to give the victims a right to 
approve or disapprove a proposed plea in advance or to participate in plea negotiations." In re Dean 
on remand as United States'. BP Products North America, Mc., 610 F. Supp. 2d 655, 727 (S.D. 
Tex. 2009). Instead, "[t]he purpose of the reasonable right to confer is for victims to provide 
information to the government, obtain information from the government, and to form and express 
their views to the government and court." Id. The district court concluded that the violations alleged 
by the victims did not provide a basis for rejecting the plei. agreement. Id. at 726-27; see In re Acker, 
596 F.3d 370, 373 (6th Cir. 2010) (denying mandamus where petitioners sought to vacate plea 
agreement which made no provision for restitution in deference to pending civil litigation); United 
States'. Aguirre-Gonzalez, 597 F.3d 46 (1st Cir. 2010) (relying on the "strong interest in the finality 
of criminal sentences" to reject mandamus under the Act where a defendant had pleaded guilty and 
had been sentenced more than two years earlier); see also United States'. 13edonie, 413 F.3d 1126, 
1129-30 (10th Cir. 2005) (district court had no authority under mandatory restitution act to reopen 
restitution proceedings after sentencing). 
More recently in the case of In re Peterson, No. 2:10-CV-298, 2010 WL 5108692 (N.D. Ind. 
Dec. 8, 2010), the district court denied relief under the Crime Victims' Rights Act before any charges 
were filed. The court recognized that the Act "guarantees crime victims a range of substantive and 
participatory rights," but that "[w]hether charges might be filed and proceedings initiated in the 
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future is a matter of prosecutorial discretion, and the [Act] expressly provides that [n]othing in this 
chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any office 
under his direction.'" Id. at *2 (quoting 18 U.S.C. § 3771(d)(6)). 
For these reasons, the Court should deny the motion of Jane Doe 1 and Jane Doe 2 to 
discover and use the plea negotiation letters as evidence. 
PART II 
MR. EPSTEIN'S PLEA NEGOTIATIONS ARE PRIVILEGED 
AND NOT DISCOVERABLE UNDER RULE 501 
Jane Doc 1 and Jane Doe 2 are also not entitled to discovery or use of the plea negotiations 
because plea negotiations enjoy an evidentiary privilege, as recognized by the Supreme Court in 
United States I Mezzanaito, 513 U.S. 196 (1995). Additionally, because plea negotiations are 
"rooted in the imperative need for confidence and trust," and because their confidentiality serves 
significant public and private ends, they are properly subject to a common law privilege under 
Federal Rule of Evidence 501. That Rule provides, in relevant part: 
Except as otherwise required by the Constitution of the United States or provided by 
Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory 
authority, the privilege of a witness, person, government, State, or political 
subdivision thereof shall be governed by the principles of the common law as they 
may be interpreted by the courts of the United States in the light of reason and 
experience. 
FED. R. EvID. 501. This Court "has the power to recognize new privileges, consistent with Rule 501 
of the Federal Rules of Evidence, in cases arising under federal law." In Re Air Crash Near Cali, 
Colombia, 959 F. Supp. 1529, 1533 (S.D. FL. Feb. 7, 1997). 
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A. 
"REASON AND EXPERIENCE" ARE THE TOUCHSTONES 
FOR ACCEPTING A COMMON LAW PRIVILEGE FOR PLEA NEGOTIATIONS 
Jaffe4. Redmond, 518 U.S. 1 (1996), is perhaps the leading case addressing Rule 501 and 
the common-law principles underlying the recognition of testimonial privileges. The case involved 
a police officer and the extensive counseling she received after a traumatic incident in which she shot 
and killed a man. She was sued by the man's estate, which demanded discovery of the notes taken 
by the clinical social worker who provided therapy. Id. at 5-6. The officer and the therapist objected 
and asserted that their sessions were privileged, but the district court disagreed. 
The Seventh Circuit reversed and concluded that "reason and experience," which are "the 
touchstone for acceptance of a privilege under Federal Rule of Evidence 501," compelled recognition 
of a privilege between patient and psychotherapist. Id. "Reason tells us that psychotherapists and 
patients share a unique relationship, in which the ability to communicate freely without fear of public 
disclosure is the key to successful treatment." Id. The Seventh Circuit also observed that even 
though a number of older federal decisions had previously rejected the privilege, things had changed 
in the intervening years and the "need and demand for counseling" had "skyrocketed during the past 
several years." Id. 
The Supreme Court accepted certiorari to resolve a conflict among the Circuits, and affirmed 
the finding of a privilege. The Court's analysis was grounded "in the light of reason and 
experience," which showed that a therapist's ability to help a patient "is completely dependent" upon 
the patient's "willingness and ability to talk freely." Id. at 10, quoting Advisory Committee's Notes 
to Proposed Rules, 56 F.R.D. 183, 242 (1972). The Court found that the psychotherapist-patient 
privilege is "rooted in the imperative need for confidence and trust" and that "the mere possibility 
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of disclosure may impede the development of the confidential relationship necessary for successful 
treatment." Id. at 10. 
FollowingJaffee, three important sets of decisions have recognized privileges under Rule 501 
to protect information that is exchanged in an environment that encourages candid disclosures, and 
that depends on this open exchange of information to promote significant private and public 
interests. They arc: 
the decision of Judge Marcus, before he was appointed to the Eleventh Circuit, 
denying discovery and recognizing a privilege for airline pilots who report incidents 
and violations, In Re Air Crash Near Cali, Colombia, 959 F. Supp. 1529 (S.D. Fla. 
1997); 
the decision of Judge Vinson, now the Chief Judge in the Northern District of 
Florida, denying discovery and recognizing a privilege for a corporation that reports 
contamination and other environmental hazards and violations to the Florida 
Department of Environmental Regulation, Reichhold Chemicals, Inc.. Textron, Inc., 
157 F.R.D. 522 (N.D. Fla. 1994); and 
a number of district court decisions denying discovery and recognizing a mediation 
privilege where litigants can "rely on the confidential treatment of everything that 
transpires during mediation . . . ." Lake Utopia Paper Ltd.l. Connelly Containers, 
Inc., 608 F.2d 928 (2d Cir.1979); Folb I. Motion Picture Ind. Pension & Health 
Plans, 16 F. Supp. 2d 1164, 1173 (C.D.Ca. 1998); Sheldon 
Pennsylvania 
Turnpike Comm 'n, 104 F. Supp. 2d 511, (W.D. Pa. 2000); Microsoft Corporation'. 
Suncrest Enterprise, 2006 WL 929257 (N.D. Cal. Jan. 6, 2006). 
1. 
Judge Marcus and The Common Law Privilege Of Pilots Reporting Incidents 
And Violations, In Re Air Crash Near Cali, Colombia, 959 F. Supp. 1529 (S.D. 
Fla. 1997) 
In re Air Crash Near Cali, Colombia involved the crash of an American Airlines plane as 
it arrived in Cali just before Christmas, 1995. The crash killed 159 passengers and crew members. 
One hundred and thirty lawsuits were consolidated befort Judge Marcus, and a steering committee 
was created to represent the plaintiffs. 959 F. Supp. at 1530. 
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During discovery, American Airlines refused to produce a number of responsive documents, 
asserting that they were privileged because they were prepared pursuant to the American Airlines 
Safety Action Partnership Program, known as the ASAP program. The program was an initiative 
by the FAA, the Allied Pilots Association, and American Airlines. It was a "voluntary pilot 
self-reporting program designed to encourage pilots to report incidents and violations." Id. at 1531. 
The objectives of the ASAP program were "to identify and to reduce or eliminate possible flight 
safety concerns, as well as to minimize deviations from Federal Aviation Regulations." Id. 
Judge Marcus agreed that American Airlines had made "a compelling argument for 
recognition of a limited common law privilege for the ASAP materials." Id. at 1533. Relying on 
Jaffee, Judge Marcus found that he had the ability "to recognize new privileges, consistent with Rule 
501 of the Federal Rules of Evidence, in cases arising under federal law." Id. He addressed the 
following four factors: 
First, the "private interests" involved — "in other words, whether dissemination of the 
information will chill the `frank and complete disclosure of facts' shared in an `atmosphere of 
confidence and trust." Id. at 1533. Judge Marcus found that American Airlines, the pilots, and the 
FAA had an interest in air safety and in encouraging the flow of safety information. The FAA, as 
the regulatory body, also had an interest in being made aware of violations. Id. at 1534. 
Second, Judge Marcus considered the "public interests" furthered by the proposed privilege 
and found that there was a compelling public interest in improving the safety of commercial flights. 
Third, the "likely evidentiary benefit that would result from the denial of the privilege." Id. 
Judge Marcus did not find a benefit from denying the privilege. On the contrary, he agreed that 
violations would be "kept secret if the pilots believed that their reports might be used in litigation 
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or otherwise disseminated to the public." Id. Judge Marcus also agreed that failure to recognize the 
privilege would "reduce the willingness of pilots to report incidents" and would "seriously damage 
and probably terminate a uniquely successful safety program ... [which] relies on an assumption of 
strict confidentiality." Id. at 1534. He concluded that "without a privilege, pilots might be hesitant 
to come forward with candid information about in-flight occurrences, and airlines would be 
reluctant, if not altogether unwilling, to investigate and document the kind of incidental violations 
and general flight safety concerns whose disclosure is safeguarded by the ASAP program." Id. 
Finally, Judge Marcus warned that absent a privilege, "the prospect of ASAP reports being used by 
adverse parties in the course of litigation undoubtedly will affect the content, timeliness and candor 
of the reports submitted by its pilots." Id. 
Fourth, whether the privilege had been recognized by the states. Id. The Court was not aware 
of any state or federal court that had recognized the privilege claimed by American Airlines, but that 
did not dissuade him from finding that a privilege existed. 
With these considerations in mind, Judge Marcus ruled that "[t]here is a genuine risk of a 
meaningful and irreparable chill from the compelled disclosure of ASAP materials in connection 
with the pending litigation." Id. at 1534. Likewise in Mr. Epstein's case, there is a genuine risk of 
a meaningful and irreparable chill from the compelled disclosure of plea negotiations in connection 
with the pending litigation. 
Significant private interests support a plea negotiations privilege. It cannot be denied that 
defendants, prosecutors, the court system, victims, and law enforcement agencies all have a 
legitimate interest that criminal cases or investigations resolve by pleas. Plea negotiations benefit 
defendants by limiting their exposure to jail or other punishment; they benefit all the parties in the 
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system by avoiding the many expenses associated with jury trials; they benefit the court by keeping 
the flow of its dockets and making judges available to handle matters that are proceeding to trial or 
that arc contested; and they benefit prosecutors and law enforcement not only by freeing their time 
so that they can focus on contested matters, but also by allowing them to debrief defendants and 
gather information about criminal activity. 
The public interests in criminal cases resolving by way of plea negotiations also cannot be 
denied. The public has an interest in the finality of plea negotiations, in ensuring that the courts, 
prosecutors, and law enforcement agencies are available to dedicate their time to contested matters, 
and in information that may be provided by defendants that will help curb criminal activity in their 
communities. The public, as well as private victims and government entities, all have an interest in 
restitution. 
There are significant evidentiary consequences if the Court denies a privilege to plea 
negotiations. As with air safety violations that would be "kept secret if pilots believed their reports 
might be used in litigation," defendants and people under criminal investigation would not engage 
in plea negotiations and waive their Fifth Amendment rights if they believed that statements made 
during those negotiations could be used against them later in litigation with third parties. Candid 
discussions simply cannot take place if defendants fear that statements made during negotiations can 
be divulged to third parties in other proceedings and used to harm them, send them to prison, or 
invalidate their bargains years after they have served prison sentences and suffered all the 
consequences of their deals. Just as the work-product privilege is created, in part, to encourage 
lawyers to keep notes without fear of disclosure, a privilege for plea communications is necessary 
to encourage lawyers to communicate, in writing, without fear that their proposals, submissions, 
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arguments, analysis of the facts, or legal arguments will become the grist of later civil litigation to 
the potential detriment to the client. 
Few if any lawyers would engage in candid and open discussions with a prosecutor if their 
statements could later be used against their clients. The ethical and constitutional obligations we 
now have to initiate and engage in plea negotiations would be terribly at odds with any rule that 
made those negotiations public and admissible in evidence to be used as ammunition to harm our 
clients. 
2. 
Chief Judge Vinson and the Common Law Privilege Of Reporting 
Environmental Hazards and Violations, Reichhold Chemicals, Inc. 
Textron, 
Inc., 157 F.R.D. 522 (NJ). Fla. 1994) 
Reichhold Chemicals involved a Consent Order between Reichhold and the Florida 
Department of Environmental Regulation. The Order obligated Reichhold "to investigate and 
remediate the contamination of groundwater on and under, and storm water runoff from, an industrial 
plant site it owns in Pensacola, Florida." 157 F.R.D. 523-24. 
Reichhold brought an action against former owners of the plant site, to recover some of the 
cost of remediating the land. The defendants sought reports that Reichhold had prepared describing 
possible environmental violations. Reichhold asserted that these documents were protected by "the 
privilege of self-critical analysis." Id. at 524. This privilege, "also known as the self-evaluative 
privilege," had been adopted in other jurisdictions, but at the time, it presented an issue of first 
impression to Chief Judge Vinson. Ile ruled in favor of Reichhold and found that the privilege 
allows individuals and companies to candidly assess their compliance with legal requirements 
without creating evidence to be later used against them by their adversaries: 
The self-critical analysis privilege has been recognized as a qualified privilege which 
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protects from discovery certain critical self-appraisals. It allows individuals or 
businesses to candidly assess their compliance with regulatory and legal requirements 
without creating evidence that may be used against them by their opponents in future 
litigation. The rationale for the doctrine is that such critical self-evaluation fosters the 
compelling public interest in observance of the law. 
Id. at 524. Judge Vinson agreed with Reichhold that the privilege was necessary to protect an 
organization or individual from the Hobson's choice of either undertaking an aggressive investigation 
and correcting dangerous conditions, "thereby creating a self-incriminating record that may be 
evidence of liability," or "deliberately avoiding making a record on the subject (and possibly leaving 
the public exposed to danger) in order to lessen the risk of civil liability." Id. 
In recognizing the privilege, Judge Vinson relied on Bredicel. Doctor's Hospital, Inc., 50 
F. R.D. 249 (D.D.C.1970), the first case to find a common law self-evaluation privilege. There, the 
hospital held staff meetings where the professional staff evaluated the treatment provided to patients. 
In a medical malpractice action, the estate of Bredice sought the minutes of the hospital's staff 
meetings where Bredice's treatment or death were discussed. The court denied the discovery, noting 
that "review of the effectiveness and results of treatments were valuable in improving the quality of 
health care available to the general public," and that "physicians would be unwilling to candidly 
critique the actions of their colleagues if such evaluations were subject to discovery and use as 
evidence in a subsequent malpractice action." Id. at 525. 
3. 
The Common Law Mediation Privilege 
As is true in the case of plea negotiations, it seems self-evident that no system of mediation 
can function if parties fear that statements made and documents submitted in furtherance of 
mediation create a trail of incrimination that can later be used against them. "[C]ounsel, of necessity, 
[would] feel constrained to conduct themselves in a cautious, tight-lipped, noncommittal manner 
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more suitable to poker players in a high-stakes game than adversaries attempting to arrive at a just 
solution of a civil dispute." Lake Utopia Paper Ltd.'. Connelly Containers, Inc., 608 F.2d 928 (2d 
Cir.1979). 
Lake Utopia involved the Second Circuit's Civil Appeals Management Plan, which called 
for parties to engage in a conference before oral argument, to hopefully settle their dispute. The 
Circuit adopted this mediation program to encourage the parties to settle, and to expedite the 
processing of civil appeals. Id. at 929. 
Counsel for the parties in Lake Utopia met pursuant to the program in an attempt to settle. 
The appellee later disclosed to the Court certain admissions made during the conference which 
showed that the appeal was frivolous. Rather than embrace this information, the Court chastised the 
appellee for disclosing it, holding that the purpose of the conference program was to encourage the 
parties to settle, and that the program would not function if statements made during the conference 
were later used against the parties. "It is essential to the proper functioning of the Civil Appeals 
Management Plan that all matters discussed at these conferences remain confidential. The guarantee 
of confidentiality permits and encourages counsel to discuss matters in an uninhibited fashion often 
leading to settlement . . . ." Id. at 930. 
Ten years later, in Folb'. Motion Picture Ind. Pension & Health Plans, 16 F. Supp. 2d 1164, 
(C.D.Ca. 1998), the district court in California became the first federal court to adopt the mediation 
privilege as federal common law under Rule 501. Relying on Lake Utopia Paper as well as a 
number of other decisions addressing the confidentiality of settlement negotiations, Folb held that 
"the need for confidentiality and trust between participants in a mediation proceeding is sufficiently 
imperative to necessitate the creation of some form of privilege." Id. at 1175. The court emphasized 
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that the mediation privilege is particularly important because federal courts rely on mediation to 
manage their dockets: "This conclusion takes on added significance when considered in conjunction 
with the fact that many federal district courts rely on the success of ADR proceedings to minimize 
the size of their dockets." Id. 
More recently in SheldoneiPennsylvania Turnpike Comm 'n, 104 F. Supp. 2d 511, (W.D. 
Pa. 2000), the court relied on Jaffee and on Judge Marcus' decision in In re Air Crash Near Cali, 
Colombia to hold that all mediation documents and mediation communications are privileged and 
not subject to discovery. Mediation "afford[s] to litigants an opportunity to articulate their 
position[s] and to hear, first hand, both their opponent's version of the matters in dispute and a 
neutral assessment of the relative strengths of the opposing positioni." Id. at 513. Without a 
mediation privilege, "parties and their counsel would be reluctant to lay their cards on the table so 
that a neutral assessment of the relative strengths and weaknesses of their opposing positions could 
be made." Id. This, of course, assumes that parties "would even agree to participate in the mediation 
process absent confidentiality." Id. Confidentiality is therefore"cssential to the mediation process," 
and it is "beyond doubt that the mediation privilege is rooted in the imperative need for confidence 
and trust." Id. at 514. 
No real distinction exists between the need to keep mediation confidential and the need to 
keep plea negotiations confidential. Both processes, and the goals they serve, are essentially 
identical. Both processes aim at encouraging settlement and compromise. Both processes depend 
on parties speaking candidly about the strengths and weaknesses of their positions. And in both 
processes, it would be manifestly unfair to require that parties attempt to settle their disputes in this 
fashion, only to later allow third parties to use their words as a weapon against them. 
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B. 
THE COURT SHOULD RECOGNIZE A PLEA NEGOTIATIONS PRIVILEGE 
The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his 
or her situation in order to explore the possibility of disposing of the case through a consensual 
arrangement." United States'. Heiman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived 
from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must 
be free to negotiate without fear that his statements will later be used against him." Id. at 796. The 
legislative history, too, "shows that the purpose of Fed.R.Ev. 410 and Fed.R.Crim.P. 11(eX6) is to 
permit the unrestrained candor which produces effective plea discussions between the . . . 
government and the ... defendant." Committee on Rules of Practice And Procedure of The Judicial 
Conference of The United States, Standing Committee On Rules of Practice And Procedure, 77 
F.R.D. 507 (February 1978) (emphasis added).' 
For these reasons, criminal defense lawyers negotiate with prosecutors in an environment of 
confidentiality, fostered by the protections of Rules 410 and I I. These rules encourage a process 
of searching and honest disclosures, and parties expect that their negotiations, and the information 
they exchange, will be protected from future use by an adversary. And because criminal defense 
lawyers are required, by ethical and constitutional considerations, to engage in plea negotiations to 
discharge their duty to represent the client's best interest, they do so with the well-founded 
expectation that communications made during those negotiations will not later be used to harm the 
client. 
Rule 11(f) was formerly Rule 11(e)(6), which read almost identical to Rule 410. 
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1. 
The Court Should Recognize A Plea Negotiations Privilege Because Plea 
Negotiations Are Critical To The Criminal Justice System 
The Supreme Court has recognized that "Rules 410 and 11(eX6) 'creat[e], in effect, a 
privilege of the defendant...."' Mezzanatto, 513 U.S. at 204.This privilege encourages disposition 
of criminal cases by plea agreement, which is essential to the administration of justice: 
The disposition of criminal charges by agreement between the prosecutor and the 
accused, sometimes loosely called "plea bargaining," is an essential component of 
the administration of justice. Properly administered, it is to be encouraged. If every 
criminal charge were subjected to a full-scale trial, the states and the federal 
government would need to multiply by many times the number of judges and court 
facilities. 
Santobellot New York, 404 U.S. 257, 260 (1971). "[T]he.fact is that the guilty plea and the often 
concomitant plea bargain are important components of this country's criminal justice system. 
Properly administered, they can benefit all concerned," Blackledget Allison, 431 U.S. 63, 71 
(1977). 
Those sentiments are just as true today. The Bureau of Justice Statistics of the Department 
of Justice reports that in 2005, 96.1% of federal criminal cases were resolved by way of a plea 
bargain. www.oip.usdoi.uov/bistoub/html/fisst/2005/fis05st.htm 
That today's justice system 
depends on plea negotiations is a monumental understatement. 
2. 
The Court Should Recognize A Plea Negotiations Privilege Because Plea 
Negotiations Are Critical To The Effective Representation of Counsel 
Whether to negotiate a plea or contest a criminal charge "is ordinarily the most important 
single decision in any criminal case." Borial Keane, 99 F.3d 492 (2d Cir. 1996). In the age of the 
Sentencing Guidelines, with the draconian sentences called for in federal criminal cases, minimum 
mandatorics, and the abolition of parole, engaging in meaningful and effective plea negotiations is 
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perhaps one of the most important roles of a criminal defense attorney. Today, the lawyer's "ability 
to persuade the judge or the jury is .. . far less important than his ability to persuade the prosecutor" 
during plea negotiations. United States'. Fernandez, 2000 WL 534449 (S.D.N.Y. May 3, 2000) 
at *1. 
Counsel's failure to discharge his duties during plea negotiations is malpractice: "Mt is 
malpractice for a lawyer to fail to give his client timely advice concerning" pleas. Id. It also 
constitutes ineffective assistance of counsel, and violates the Constitution. Thus, counsel has a duty 
to advise clients fully on whether a particular plea is desirable, since "[e]ffective assistance of 
counsel includes counsel's informed opinion as to what pleas should be entered." United Stalest 
Pillar, 416 F. Supp. 887, 889 (S.D.N.Y. 1976); Borial. Keane, 99 F.3d 492, 497 (2d Cir. 1996), 
citing ABA Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992). 
Counsel also has a constitutional obligation to seek out information from the government, 
especially information that the government intends to use against the client. Failure to do so 
constitutes ineffective assistance of counsel. Rompillal. Beard, 545 U.S. 374 (2005). "The notion 
that defense counsel must obtain information that the state has and will use against the defendant is 
not simply a matter of common sense, .. . it is the duty of the lawyer .. . ." Rotnpillal. Beard, 545 
U.S. 374, 386 (2005), citing 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp).2
The constitution also requires that criminal defense lawyers conduct "a prompt investigation 
of the circumstances of the case," and this includes making every effort to secure information 
directly from the prosecutors: 
The Supreme Court has "long . . referred [to these ABA Standards] as 'guides in 
determining what is reasonable.' Rompillal. Beard, 545 U.S. 374, 387 (2005). 
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It is the duty of the lawyer to conduct a prompt investigation of the circumstances of 
the case. The investigation should always include efforts to secure information in the 
possession of the prosecution and law enforcement authorities. The duty to 
investigate exists regardless of the accused's admissions or statements to the lawyer 
of facts constituting guilt or the accused's stated desire to plead guilty. 
Rompillat Beard, 545 U.S. 374, 386 (2005), citing I ABA Standards for Criminal Justice 4-4.1 (2d 
ed. 1982 Supp). 
The lawyer's duty to investigate and obtain information from the prosecutor goes hand-in-
hand with the lawyer's additional duty to "make suitable inquiry" to determine whether valid 
defenses exist. Jones' Cunningham, 313 F.2d 347 (4th Cir.1963) ("Of course, it is not for a lawyer 
to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to 
determine whether valid ones exist"). 
And regardless of whether valid defenses exist, counsel has a duty to initiate plea 
negotiations if he is to discharge his duty to faithfully represent the client's interests. Hawkmant 
Panatt, 661 F.2d 1161, 1171 (8th Cir. 1981) (counsel's "failure to initiate plea negotiations 
concerning the duplicitous felony counts constituted ineffective assistance of counsel which 
prejudiced Hawkman"). 
3. 
The Court Should Recognize A Plea Negotiations Privilege To Avoid A 
Meaningful And Irreparable Chill In Plea Negotiations 
Reason and experience tell us that the system we have in place of sentencing laws, ethical 
rules, federal court dockets, and constitutional considerations, will not function if plea negotiations 
are not privileged. After all, "it is immediately apparent that no defendant or his counsel [would] 
pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in evidence 
as proof of guilt." Herman, 544 F.2d at 797. Plea negotiations are "rooted in the imperative need 
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for confidence and trust," Jaffee, 518 U.S. at 10, and maintaining their confidentiality advances 
significant public and private ends. Discovery and use of plea negotiations will cause "a meaningful 
and irreparable chill" to the "frank and complete disclosures" that result in negotiated resolution of 
criminal matters. In re Air Crash Near Cali, Colombia, 957 F.2d at 1533. 
For these reasons, plea negotiations are properly subject to a common law privilege under 
Federal Rule of Evidence 501. The Court should hold that the plea negotiation letters and emails 
between Mr. Epstein's lawyers and the government are privileged and not subject to discovery or 
evidentiary use by the plaintiffs. 
We certify that on September 2, 2011, the foregoing document was filed electronically with 
the Clerk of the Court using the CM/ECF system. 
Respectfully submitted, 
BLACK, SREBNICK, KORNSPAN 
& STUMPF, P.A. 
201 South Biscayne Boulevard 
Suite 1300 
Miami, Florida 33131 
Office: (305) 371-6421 
Fax: (305) 358-2006 
By  
/S/
ROY BLACK, ESQ. 
Florida Bar No. 126088 
JACKIE PERCZEK, ESQ. 
Florida Bar No. 0042201 
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Page I of 55 
Westlaw 
Page I 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
United States Court of Appeals, 
Second Circuit. 
UNITED STATES 
America, Appellee, 
Donald FELL, Defendant-Appellant. 
Docket No. 06-2882-cr. 
Argued: June 27, 2007. 
Decided: June 27, 2008. 
Background: Defendant was convicted in 
the United States District Court for the Dis-
trict of Vermont, William K. Sessions III, 
Chief Judge, of murder in course of car-
jacking and kidnapping, and he was sen-
tenced to death. Defendant appealed. 
Holdings: The Court of Appeals, B.D. 
Parker, Jr., Circuit Judge, held that: 
(1) prospective juror who strongly opposed 
death penalty and was unprepared to con-
clude that defendant deserved death simply 
because murder was premeditated and sim-
ultaneously claimed that she could impose 
death penalty as part of her responsibilities 
as juror in spite of her expressed reluctance 
to do so had views that might have sub-
stantially impaired her duties as juror; 
(2) prospective juror whose voir dire re-
sponses were not consistent or clear on 
whether he understood that death penalty 
could be imposed for murder resulting 
from reckless disregard for human life and 
whether he would be able to apply it under 
such circumstances could be excluded for 
cause; 
(3) prospective juror who provided incon-
sistent and generally negative responses 
when asked whether she would consider 
imposing death penalty for single murder 
could be excluded for cause; 
(4) district court's decision to exclude opin-
ions of prosecutors set forth in draft plea 
agreement with defendant was within its 
traditional authority to exclude evidence of 
questionable relevance; 
(5) defendant had not been prejudiced by 
exclusion of draft plea agreement; 
(6) prosecutor's arguments were reasonable 
responses to defendant's use of stipulation; 
(7) defendant's Fifth Amendment right to 
fair sentencing hearing had not been preju-
diced by prosecutor's allegedly plainly er-
roneous closing comments; and 
(8) evidence of defendant's satanic beliefs 
was not admissible to show motive in pen-
alty phase for lack of relevance. 
Affirmed. 
West Headnotes 
[1] Criminal Law 110 €=,1152.2(2) 
110 Criminal Law 
110XXIV Review 
110XXIV(N) Discretion of Lower 
Court 
110k1152 Conduct of Trial in 
General 
110k1152.2 Jury 
110k1152.2(2) k. Selection 
and Impaneling. Most Cited Cases 
(Formerly 110k1152(2)) 
Challenges to a juror's excusel are re-
viewed for abuse of discretion, inquiring 
whether the trial court's findings are fairly 
supported by the record. 
[2] Criminal Law 110 C=1153.1 
110 Criminal Law 
110XXIV Review 
110XXIV(N) Discretion of Lower 
Court 
110k1153 Reception and Admiss-
ibility of Evidence 
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Page 3 of 55 
Page 3 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
C=1788(3) 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)4 Determination and 
Disposition 
350H1c1788 Review of Death 
Sentence 
350Hk1788(3) k. Presenta-
tion and Reservation in Lower Court of 
Grounds of Review. Most Cited Cases 
Provision of Federal Death Penalty Act 
(FDPA) under which appellate court shall 
remand a case if it finds that death sentence 
was imposed under influence of passion, 
prejudice, or any other arbitrary factor does 
not create exception to rule under which 
unpreserved objections to jury instructions 
may be reviewed only for plain error. 18 
U.S.C.A. § 3595(c)(2). 
191 Jury 230 e=108 
230 Jury 
230V Competency of Jurors, Chal-
lenges and Objections 
230k104 
Personal 
Opinions 
and 
Conscientious Scruples 
230k108 
k. 
Punishment 
Pre-
scribed for Offense. Most Cited Cases 
Not all prospective jurors who oppose 
the death penalty are subject to removal for 
cause in capital cases; instead, those who 
firmly believe that the death penalty is un-
just may nevertheless serve as jurors in 
capital cases so long as they state clearly 
that they are willing to temporarily set 
aside their own beliefs in deference to the 
rule of law. 
1101 Jury 230 €=.108 
230 Jury_ 
230V Competency of Jurors, Chal-
lenges, and Objections 
230k104 
Personal 
Opinions 
Conscientious Scruples 
230k108 
k. 
Punishment 
scribed for Offense. Most Cited Cases 
and 
Pre-
A juror's views on capital punishment 
prevent or substantially impair the per-
formance of his duties as a juror in accord-
ance with his instructions and his oath, 
subjecting the juror to exclusion for cause, 
when those views create an obstacle to a 
prospective juror's impartial consideration 
of the law and the facts. 
MI Criminal Law 110 €=1166.17 
110 Criminal Law 
110XXIV Review 
110XXIV(Q) Harmless and Revers-
ible Error 
110k1166.5 Conduct of Trial in 
General 
110k1166.17 
k. 
Sustaining 
Challenges to Jurors. Most Cited Cases 
Erroneously excluding a prospective 
juror based on her view on the death pen-
alty is reversible error. 
(121 Jury 230 €=)108 
230 Jury 
230V Competency of Jurors, Chal-
lenges and Objections 
230k104 
Personal 
Opinions 
and 
Conscientious Scruples 
230k108 
k. 
Punishment 
Pre-
scribed for Offense. Most Cited Cases 
To survive review of a challenge to a 
district court's exclusion of a prospective 
juror based on her view on the death pen-
alty, voir dire need not establish juror parti-
ality with unmistakable clarity? rather, it 
must be sufficient to permit a trial judge to 
form a definite impression that a prospect-
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Page 5 of 55 
Page 5 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
fondant with murder resulting from reck-
less disregard for human life. 18 U.S.C.A. 
§§ 2119(2, 3), 3591(a)(2)(D). 
[181 Jury 230 €128 
230 Jury 
230'V Competency of Jurors, Chal-
lenges, and Objections 
230k124 Challenges for Cause 
230k128 k. Order of Challenges. 
Most Cited Cases 
A juror's voir dire responses that are 
ambiguous or reveal considerable confu-
sion may demonstrate that the performance 
of his duties as a juror in accordance with 
his instructions and his oath may be sub-
stantially impaired, subjecting the juror to 
exclusion for cause. 
1191 Jury 230 0=408 
230 Jury 
230V Competency of Jurors, Chal-
lenges and Objections 
230k104 
Personal 
Opinions and 
Conscientious Scruples 
230k108 
k. 
Punishment 
Pre-
scribed for Offense. Most Cited Cases 
Prospective juror who provided incon-
sistent and generally negative responses 
when asked whether she would consider 
imposing death penalty for single murder 
could be excluded for cause in death pen-
alty case charging defendant with murder 
in course of =jacking and kidnapping. 18 
U.S.C.A. §§ 2119(2, 3), 3591. 
[20) Sentencing and Punishment 3500 
4:=1652 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(C) Factors Affecting Im-
position in General 
350Hk1652 k. Aggravating Cir-
cumstances in General. Most Cited Cases 
Sentencing and Punishment 350H €=) 
1667 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(D) Factors Related to Of-
fense 
350HIc1666 Nature or Degree of 
Offense 
350Hk1667 
k. 
In General. 
Most Cited Cases 
Sentencing and Punishment 350H e= 
1670 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(D) Factors Related to Of-
fense 
350Hk1670 k. Intent of Offender. 
Most Cited Cases 
Under the Federal Death Penalty Act 
(FDPA), a defendant is eligible for the 
death penalty if the jury finds the charged 
homicide, a statutory intent element or 
threshold mental culpability factor, and at 
least one of the statuto 
aggravating 
factors. 18 U.S.C.A. §§ 3591(a
ry )(2), 3592(c). 
1211 Sentencing and Punishment 350H 
e=1757 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)2 Evidence 
350Hk1755 Admissibility 
350Hk1757 k. Evidence in 
Mitigation in General. Most Cited Cases 
District court's decision to exclude 
opinions of prosecutors set forth in draft 
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Page 7 of 55 
Page 7 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
guilty to prove acceptance of responsibility 
as mitigating factor, that capital murder de-
fendant offered to plead guilty in exchange 
for minimum penalty authorized for his 
conduct only when faced with overwhelm-
ing evidence of his guilt and that govern-
ment proceeded to trial that defendant 
could have avoided by pleading uncondi-
tionally when offer was not accepted, were 
reasonable responses to defendant's use of 
stipulation, where jury repeatedly had been 
told that arguments were not evidence. 
[26] Criminal Law 110 C=1171.1(2.1) 
110 Criminal Law 
110XXIV Review 
110XXIV(Q) Harmless and Revers-
ible Error 
110k1171 Arguments and Con-
duct of Counsel 
110k1171.1 In General 
110k1171.1(2) 
Statements 
as to Facts, Comments, and 
uments 
110k1171.1(2.1) 
k. 
In 
General. Most Cited Cases 
In order to prevail on a claim of prosec-
utorial misconduct, a defendant must 
demonstrate that the prosecutor's remarks 
were improper and that the remarks, taken 
in the context of the entire trial resulted in 
substantial prejudice. 
[27] Constitutional Law 92 C=4745 
92 Constitutional Law 
92XXVII Due Process 
92XXVII® Criminal Law 
923OCWI(H)6 Judgment and Sen-
92k4741 Capital Punishment; 
Death Penalty 
92k4745 
k. 
Proceedings. 
Most Cited Cases 
tence 
Sentencing and Punishment 350H C
1780(2) 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)3 Hearing 
350Hk1780 Conduct of Hear-
ing 
350Hk1780(2) 
k. 
Argu-
ments and Conduct of Counsel. Most Cited 
Cases 
Capital 
murder 
defendants 
Fifth 
Amendment right to fair sentencing hear-
ing had not been prejudiced by prosecutor's 
allegedly plainly erroneous closing com-
ments, allegedly suggesting that relevance 
of his mitigating evidence depended on its 
connection with his crimes of conviction, 
where jury had been given thorough in-
structions, prosecutor's comments formed 
very brief part of his summation and were 
not repeated during his rebuttal, and great 
amount of time and attention had been de-
voted to defendant's early life experiences 
by both parties. U.S.C.A. Const.Amend. 5. 
[28] Sentencing and Punishment 35011 
C=.1757 
350H Sentencing and Punishment 
350HVIII The Death Penalty 
350HVIII(G) Proceedings 
350HVIII(G)2 Evidence 
350Hk1755 Admissibility 
350Hk1757 k. Evidence in 
Mitigation in General. Most Cited Cases 
Before imposing the death penalty, a 
jury must be able to consider and give ef-
fect to a defendants mitigating evidence. 
18 U.S.C.A. §§ 3592(a)(8), 3593(c). 
[29] Sentencing and Punishment 350H 
C=1757 
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