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in state court several weeks ago. So that's another 
basis for distinguishing Dean. 
THE COURT: All right. So is there any 
point in conferring with these victims? 
MR. LEE: Your Honor, I will always confer, 
6 
sit down with Jane Doe 1 and 2, with the two agents 
7 
and Ms. 
We'll be happy to sit down with 
8 
them. 
9 
THE COURT: But it wouldn't make any 
10 
difference in terms of the outcome. Would maybe 
11 
give them the benefit of your explanation of why you 
12 
did what you did and why you came to the conclusion 
13 
you did, but it is not going to change your decision 
14 
in any way. 
15 
MR. LEE: If it is going to change, it would 
16 
have to be done at a level higher than mine, Your 
17 
Honor. 
18 
THE COURT: What was-- I didn't understand 
19 
your statement earlier that Mr. Epstein wanted some 
20 
kind of review of higher authority within the 
21 
Department in terms of whether or not the federal 
22 
government was going to insist on preserving any 
23 
civil claims. 
24 
MR. LEE: Your Honor, of the agreement was 
25 
consumated by the parties in December of 2007. Mr. 
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Epstein's attorneys wanted a further review of the 
2 
agreement higher up within the Department of Justice 
3 
and they exercised their ability to do that. 
4 
THE COURT: Meaning? Again, I'm trying to 
5 
understand. He wasn't happy with the agreement that 
6 
he had signed? 
7 
MR. LEE: Basically, yes. And was trying to 
8 
maintain that the agreement should be set aside or 
9 
more favorable terms. 
10 
THE COURT: Now, in terms of -- You don't 
11 
dispute that Jane Doe 1 and 2-- First of all, do you 
12 
have an objection to Jane Doe 2 being added as a 
13 
petitioner in this case? 
14 
MR. LEE: No, I don't. 
15 
THE COURT: I'll grant that request. 
16 
You don't dispute that they're victims 
17 
within the meaning of the Act. 
18 
MR. LEE: It depends to which -- There is one 
19 
Jane Doe-- Well, there is one individual who is one 
20 
of Mr. Edwards' clients who we do not believe to 
21 
been a victim. If these are SN and CW, then we have 
22 
no objection and I can discuss-- If I may have a 
23 
moment, Your Honor. 
24 
Your Honor, thank you. I have been 
25 
corrected. We have no objection. 
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THE COURT: Okay. 
2 
MR. LEE: We agree they're victims. 
3 
THE COURT: Now, what is your position, 
4 
then, regarding the right of a victim of a crime 
5 
that is potentially subject to federal prosecution 
6 
to be, to have input with the prosecutor, your 
7 
office, before a resolution or decision not to 
8 
prosecute is made? Do you say that there is no 
9 
right to confer under those circumstances because 
10 
there is no "case pending" so any decision not to 
11 
prosecute, there is no right to confer but that 
12 
right to confer only is triggered once there is an 
13 
indictment or an information filed? 
14 
MR. LEE: That is correct, Your Honor. The 
15 
Attorney General guidelines which were published in 
16 
May of 2005 provide that the rights in 3771(a)(1 
17 
through 8) accrue when a charge is filed in federal 
AC) 
18 
court. Now, that my change after the Dean -4 
19 
decision. It is under consideration. But that's 
20 
the government's position. 
21 
THE COURT: All right. And so -- Are you 
22 
saying all of the rights--
23 
MR. LEE: Your Honor, some of the rights 
24 
clearly will only pertain after a charge has been 
25 
filed. The one that pertains to notice of public 
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hearing, public proceedings, though, can't apply 
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until there are public proceedings to be had. 
3 
Of course, these guidelines are a floor and 
4 
not a ceiling. They're to be applied with common 
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9 
10 
going to do something bad to me and try to take care 
11 
of me before I can testify in the grand jury, this 
12 
person would not be turned away because a charge 
13 
hasn't been filed yet. Those guidelines would be 
14 
applied with common sense. 
15 
But specifically insofar as a (a)(5), which 
16 
is the right to consult with the attorney for the 
17 
government in the case, that would not accrue until 
18 
there is aca
And, in our view, a case doesn't 
19 
come into being until charges are filed. 
20 
THE COURT: And are there any reported 
21 
decisions that you are aware of where any court has 
22 
found a right to confer before charges are filed? 
23 
MR. LEE: I'm not aware of any, Your Honor. 
24 
THE COURT: All right. Thank you. 
25 
MR. LEE: Thank you, Your Honor. 
sense. If somebody-- If charges of assault were 
being investigated and somebody would come in and 
say the perpetrator whom you're investigating is 
getting ready to indict has been threatening me, 
following me, and I need help because he or she is 
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THE COURT: Counsel? 
2 
MR. EDWARDS: I would just like to address 
3 
that Dean decision. They're asking you that you 
4 
just simply ignore it because the decision clearly 
5 
was a decision made because as it is a direct result 
6 
of a plea deal being worked out prior to the victims 
7 
being able to speak. 
8 
THE COURT: But there was a pending case, 
9 
though, correct? 
10 
MR. EDWARDS: As I understand the decision--
11 
THE COURT: As I understand the plea deal, it 
12 
was negotiated prior to charges being filed. Then 
13 
there was a filed case and then the court had the 
14 
ability to accept the plea or not. And at that 
15 
point, you would have the ability to entertain or 
16 
assert an objection because you weren't consulted 
17 
about the plea. 
18 
So there was a proceeding or case in which 
19 
you can assert a right to confer. How do you do 
20 
that before a case is filed? How do you enforce the 
21 
government or force the government to consult about 
22 
not filing a case? Every case they have to consult 
23 
with the victim before they decide not to prosecute? 
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MR. EDWARDS: No, there are limitations. I 
25 
think in my reply I refer to the case of U.S. I. 
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Rubin where they discussed that very scenario 
stating there at least has to be criminal charges 
contemplate by the government before these rights 
kick in. The rights under (d)(3) and (a)(5), the 
right to confer and the Dean case clearly states 
clearly rights under the CBRA apply before 
prosecution is under way. Logically, this includes 
the CBRA establishments of a victim's reasonable 
right to confer with the attorney for the 
government. And, that's read in the plain reading 
of the statutes as well. 
This first case in interpreting it, I think 
it's pretty clear the distinction they're making 
between BP and this case. Is it a distinction 
withoug a real difference in that the court is 
saying you have this right before the case is filed 
which is exactly what we are saying. And the result 
in that case was they filed the case, later let him 
plea out to some sweet deal. And in this case, what 
we have is they avoid that by deciding not to file. 
Either way, you deprive the victim of their right 
before making that decision. 
And the main problem that the court had in 
Dean, as it states, the victims do have rights when 
there is an impact and the eventual sent is 
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substantially less. Whereas here, their input is 
2 
received after the parties have reached a tentative 
3 
deal. Well, the government just stated the deal was 
4 
reached back in October of 2007. However, attached 
5 
to their response is a letter to my client 
6 
petitioner, dated January 10, 2008, after the time 
7 
then counsel just put on the record that the deal 
8 
was already finalized and it starts, the opening 
9 
paragraph talks about whether they wanted the 
10 
victims to have the right to confer. It says, this 
11 
case is currently under investigation. This is 
12 
January 2008. This case has been a lengthy process 
13 
and we request your continued patience while we 
14 
conduct a thorough investigation. Sounds like the 
15 
exact opposite of, we want you to come in and confer 
16 
and let us know what you really feel about this. 
17 
That is our biggest problem with what has 
18 
happened here, is that she just wasn't given a voice 
19 
and if somebody would have heard her, we believe 
20 
there would have been a different outcome. To go 
21 
back into a room right now and talk, after there has 
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already been a plea negotiated without Your Honor 
23 
ordering that in this case the plea deal needs to be 
24 
vacated, it is illegal and give her her rights. 
25 
THE COURT: Well, would you agree or not 
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that Mr. Epstein plead guilty to the state charges 
2 
probably at least, in part, in reliance upon the 
3 
fact that he had an agreement with the federal 
4 
government they weren't going to prosecute? Would 
5 
you concede that or would would present evidence to 
6 
that effect? 
7 
MR. EDWARDS: Of course we would. Yes, of 
8 
course. Sure. 
9 
THE COURT: So you agree that Mr. Epstein is 
10 
now sitting in the Palm Beach County Jail a 
11 
convicted felon serving 18 months of imprisonment, 
12 
at least in material part, because he relied upon 
13 
the government's non-prosecution agreement? 
14 
MR. EDWARDS: Yes. I agree that he is sitting 
15 
there because he is guilty and maybe he took the 
16 
plea rather than going to trial and being found 
17 
guilty later in part because of this non-prosecution 
18 
agreement that was worked out behind the other 
19 
victims' backs. I would agree with that. 
20 
THE COURT: So he accepted the State's deal 
21 
in part because he knew he had an agreement from the 
22 
federal government that they weren't going to 
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prosecute. 
24 
MR. EDWARDS: I presume. I speculate that is 
25 
true. 
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THE COURT: So you want me now, then, to set 
2 
aside the government's agreement with him because 
3 
there was no conferring, yet he has already accepted 
4 
a plea agreement and is sitting in custody, in part, 
5 
in reliance on that agreement. I mean, I can undo 
6 
the agreement in your theory, but how do I-- Mr. 
7 
Epstein, in a sense, would then be adversely 
8 
affected by my actions when he acted in reliance 
9 
upon the agreement. How does that work? 
10 
MR. EDWARDS: Certainly, we're only asking 
11 
you to vacate the agreement. I understand and your 
12 
point is well taken. And I believe that at that 
13 
point in time his rights may kick in and say, wait, 
14 
I was relying on this other deal so I wouldn't be 
15 
prosecuted for these hundreds of other girls that I 
16 
molested; that I plead guilty over here to the one 
17 
girl that I will admit to molesting. So maybe I can 
18 
get to withdraw my plea. But the last thing he wants 
19 
to do because if he ends up going to trial, I'll be 
20 
in prison for the rest of his life like any other 
21 
person who ever did this crime would be. He could 
22 
have that argument, I guess, but still wouldn't 
23 
really work well for him. 
24 
THE COURT: All right. So you still think I 
25 
should set aside the agreement, require the 
I._ 
I. 
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government to confer? 
2 
MR. EDWARDS: Work out a plea negotiation 
3 
commensorate with the crimes that he committed and 
4 
that are favorable after they confer with the 
5 
victims. And it is within their discretion. Of 
6 
course, they can decide on their own that, hey, I 
7 
think that the agreement was fair after they have 
8 
talked with the victims. That could happen. I 
9 
don't know if a reasonable person that would do 
10 
that, but it could happen. 
11 
THE COURT: Apparently, you are not 
12 
suggesting that that these person are not 
13 
reasonable. 
14 
MR. EDWARDS: I'm suggesting they haven't 
15 
conferred with the victims and that if they took 
16 
into consideration what these two in the courtroom 
17 
have to say, I don't think that we'd be in this same 
18 
position right now. 
19 
THE COURT: They have never spoken to your 
20 
client about what happened to them? 
21 
MR. EDWARDS: They have spoken to them about 
22 
what happened. Maybe not about what the girls 
23 
wanted to happen as a result of this case, which is 
24 
part of conferring to decide that these girls wanted 
25 
money on their own, which is basically what this--
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this non-prosecution agreement entails that has 
2 
language that he'll agree to liability in a civil 
3 
case. That's not what these girls-- They want 
4 
justice. They want him in prison now more than 
5 
ever. The reason they stated they kept this 
6 
agreement from the girls and they basically conceded 
7 
we didn't tell the girls about this agreement, well, 
8 
the reason is because they would have objected and 
9 
they wouldn't have been able to sign off on this and 
10 
the victims would have had a voice, and we'd still 
11 
been going through litigation. The exact problem 
12 
they tried to prevent, at least in their terms which 
13 
was the impeachment of these girls at a later trial, 
14 
is still available to anybody once the civil suits 
15 
are filed anyway. 
16 
They have three arguments. One, we didn't 
17 
have to talk to them. Two, we did talk to them sort 
16 
of. And if you don't buy that, the reason we didn't 
19 
talk to them, we were trying to prevent them from 
20 
being impeached later. None of them trump the 
21 
victims' rights to confer prior to plea 
22 
negotiations. That's why, Your Honor, we would ask 
23 
this Court to enter an order vacating that previous 
24 
plea agreement as illegal, ask them to confer with 
25 
the victims once again or for the first time and 
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work out a negotiated plea to that accord. 
THE COURT: Well, all you can ask them to do 
is confer. I can't ask them to do anything beyond 
that. I mean, it is up to them to negotiate. 
MR. EDWARDS: I wouldn't quarrel with that. 
THE COURT: Now, having learned today, I 
guess, that the agreement was signed when, in 
October? 
MR. EDWARDS: October 2007, I heard. 
THE COURT: About eight or nine months ago, 
is there any need to rush to a decision in this 
matter? The decision has already been made. You 
filed this, I think, on the presumption that the 
agreement was about to take place and you wanted to 
be able to confer beforehand and you weren't sure 
what was going on. 
MR. EDWARDS: Precisely, Your Honor. And I'm 
holding the letters that are exhibits that they were 
writing to my client 
her how lengthy of a 
and be patient. So, 
during the year of 2008 telling 
process this was going to be 
right, I was completely in the 
dark about when this agreement was signed. 
THE COURT: In view of the fact that this 
agreement has already been consumated, and you want 
me to set it aside, as opposed to something that's 
I 
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about to occur, would you agree that-- and I have 
2 
done this very quickly because of the petition and 
3 
your allegation that something was about to happen. 
4 
I'm not blaming you. 
5 
MR. EDWARDS: I was mistaken. 
6 
THE COURT: I'm not blaming you for doing 
7 
that. In view of what you know now, is there any 
8 
need to treat this as an emergency that has to be 
9 
decided by tomorrow? 
10 
MR. EDWARDS: I can't think of any reason in 
11 
light of what we just heard. 
12 
THE COURT: Mr. Lee, do you have anything 
13 
else you wanted to add? Does either side think I 
14 
need to take evidence about anything? 
If I do, 
15 
since this is not an emergency anymore, I can 
16 
probably find a more convenient time to do that. I 
17 
don't have the time today to take evidence. But if 
18 
you do believe that I should take evidence on this 
19 
issue. 
20 
MR. EDWARDS: It may be best if I conferred 
21 
with the U.S. Attorney's Office on that and we can 
22 
make a decision whether it is necessary or whether 
23 
Your Honor deemed it was necessary for you to make a 
24 
decision. 
25 
THE COURT: I want to know what your 
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respective positions are because it may be something 
2 
in terms of having a complete record, and this is 
3 
going to be an issue that's it going to go to the 
4 
Eleventh Circuit, may be better to have a complete 
5 
record as to what your position is and the 
6 
government's is as to what actions were taken. And 
7 
I don't know if I have enough information, based on 
8 
Ms. 
affidavit or I need additional 
9 
information. And because it is not an emergency, I 
10 
don't have to do something quickly, we can play it 
11 
be ear and make this into a more complete record for 
12 
the court of appeals. 
13 
MR. EDWARDS: If there is a time where it is 
14 
necessary to take evidence, Your Honor is correct in 
15 
stating that it is not an emergency and it doesn't 
16 
need to happen today. And, I will confer with the 
17 
government on this and if evidence needs to be 
18 
taken, it be taken at a later date. It doesn't seem 
19 
like there will be any prejudice to any party. 
20 
THE COURT: Mr. Lee, do you have any 
21 
thoughts? You want to consult with Mr. Edwards? 
22 
MR. LEE: There may be a couple of factual 
23 
matters that I need to chat with petitioner's 
24 
counsel on. If we can reach agreement on those as 
25 
to what was communicated to CW and what time, if 
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they don't dispute that, then we don't think it will 
2 
be necessary to have an evidentiary hearing. But if 
3 
we can agree, fine or maybe we can't. We'll talk 
4 
about it. 
5 
THE COURT: All right. So why don't you let 
6 
me know if you think an evidentiary hearing is 
7 
necessary. If there are additional stipulations you 
8 
want to enter into or supplement what has already 
9 
been presented, you can do that. 
10 
Now, the other issue I want to take up, 
11 
though, is the government filed its response to the 
12 
petition under seal. And so I want to know why. 
13 
What is in there that at this point needs to be 
14 
under seal? Is there anything in there that's 
15 
confidential, privileged, anything that's different 
16 
from what you hve said here in open court that 
17 
requires that to be sealed? 
18 
MR. LEE: Well, Your Honor, on our motion to 
19 
seal was based on two reasons. One that dealt with 
20 
individuals or minors at the time that the offense 
21 
occurred. So we were attempting to protect the 
22 
privacy of those individuals. And also it dealt 
23 
with negotiations with Mr. Epstein which were in the 
24 
nature of plea negotiations, which we treat as 
25 
confidential. Normally, they're not aired out in 
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open court. So those were our two reasons. 
2 
THE COURT: All right. But I guess the 
3 
letters you attached only related to Mr. Edwards' 
4 
client. 
5 
MR. LEE: Three of them, yes, Your Honor. 
6 
THE COURT: Are you prepared, Mr. Edwards, 
7 
to waive any issues regarding the release of those 
8 
documents that relate to your clients? 
9 
MR. EDWARDS: Judge, I think it would be 
10 
appropriate to redact the names of the clients as 
11 
they have done. 
12 
THE COURT: I don't think the names are in 
13 
there. 
14 
MR. EDWARDS: I think they're redacted. 
15 
They're blacked out. I have no problem with 
16 
releasing those documents. I'm not sure that's part 
17 
of the deal. But if it is--
18 
MR. LEE: It is. 
19 
MR. EDWARDS: Okay. I'll waive. 
20 
THE COURT: You really don't have any 
21 
objection to those letters that were sent to them 
22 
being released to the public? 
23 
MR. EDWARDS: Of course not, Judge. 
24 
THE COURT: Then what is there about the 
25 
plea agreement or the negotiations that is in the 
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response that we really haven't already kind of--
MR. LEE: Your Honor, there was a 
confidentiality agreement in the deferral of 
prosecution to the State of Florida. So we were 
trying to maintain the confidentiality of the 
negotiations that occurred since we had discussions 
during those negotiations as one of the reasons why 
8 
we decided not to tell all of the individuals what 
9 
was going on. 
10 
THE COURT: But is that still necessary, 
11 
that confidentiality or is that kind of moot at this 
12 
point? 
13 
MR. LEE: Well, we would like it sealed. 
14 
Admittedly, what happened today in open court has 
15 
probably weakened our argument. I don't dispute 
16 
that. 
17 
THE COURT: In your opinion, anything in 
18 
particular, any paragraph in the response or in Ms. 
19 
affidavit that you think is particularly 
20 
troublesome that should remain under seal? 
21 
MR. LEE: May I have a moment, Your Honor? 
22 
THE COURT: Yes. 
23 
MR. LEE: Thank you. Your Honor, one aspect 
24 
of this in the notification letters that were 
25 
dispatched to individuals which were attached to Ms. 
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declaration, there is a citation to a 
clause in the agreement that was reached regarding 
the damages remedy under 18 USC 2255 that was 
subject to the constitutionality agreement, we 
believe that should still remain confidential. 
THE COURT: But hasn't the fact that this 
provision was part of the agreement again been 
8 
aired? Is there any secret to it anymore? 
9 
MR. LEE: The actual text of it has not been 
10 
aired. The existence of it has been heard but the 
11 
actual text has not and we believe it should still 
12 
remain confidential. 
13 
THE COURT: Okay. Any other argument on 
14 
that issue? 
15 
MR. LEE: No, Your Honor. Thank you. 
16 
THE COURT: Ms. 
wants to speak to 
17 
you. 
18 
MR. LEE: Your Honor, one item that I'd like 
19 
to bring to the Court's attention. We had advised 
20 
Mr. Epstein and his attorneys that if we were to 
21 
dislose some of the agreement, we would give them 
22 
advance notice and ability to lodge an objection. We 
23 
would like an opportunity to do that. 
24 
THE COURT: All right. But you're not 
25 
disclosing. It would be by my order that it would 
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be disclosed. 
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MR. LEE: Yes, Your Honor. And we just would 
3 
like to register that we believe it should remain 
4 
confidential. 
5 
THE COURT: All right. 
6 
MR. EDWARDS: Your Honor, I don't see any 
7 
authority for keeping that under seal. 
8 
THE COURT: I agree. The fact that there is 
9 
this preserved right on behalf of the victims to 
10 
pursue a civil action is already a matter of public 
11 
record; the exact text of the clause-- I don't see 
12 
that disclosing the text of the clause when the fact 
13 
that the clause exists is already a matter of public 
14 
record. It is not harmful in any way to Mr. Epstein 
15 
or the government and the letters to the victim that 
16 
the victim can disclose those letters, they're not 
17 
under any confidentiality obligation or restriction 
18 
and they're free to disclose it themselves if they 
19 
choose to. So I don't see that there is any real 
20 
public necessity to keep the response sealed in view 
21 
of what we discussed already on the record and the 
22 
victim's ability to disclose those provisions of 
23 
their own choosing, if they wish. So, in view of 
24 
the public policy that matters filed in court 
25 
proceedings should be open to the public and sealing 
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should only occur in circumstances that justife the 
2 
need to restrict public access, I'm going to deny 
3 
the motion to seal the response and allow that to be 
4 
viewed. 
5 
All right. So I'll let both of you confer 
6 
about whether there is a need for any additional 
7 
evidence to be presented. Let me know one way or 
8 
the other. If there is, we'll schedule a hearing. 
9 
If there isn't and you want to submit some 
10 
additional stipulated information, do that, and then 
11 
I'll take care of this in due course. 
12 
MR. EDWARDS: Thank you, Your Honor. 
13 
THE COURT: All right. 
14 
MR. LEE: Thank you, Your Honor. 
15 
MS. 
: Thank you, Your Honor. 
16 
THE COURT: You're welcome. 
17 
(Proceedings concluded.) 
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19 
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