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1. Petitioner Cannot Identify a Rule 2.420(c)(9) Interest that
Warrants Closure.
Though Epstein's belated written motion identified four interests set forth in
Rule 2.420(cX9) that purportedly warrant closure, he failed to explain — either in
his motion or at the hearing — how any of them applied. Instead, Petitioner
asserted closure was proper because these broad interests would be served by
closure, principles of comity require closure, and because the records contain
information protected from disclosure by Federal Rule of Criminal Procedure 6.
Even though Petitioner now attempts to craft his arguments around the interests set
forth in Rule 2.420(cX9), the trial court cannot be said to have departed from the
essential requirements of the law in holding that Epstein's burden had not been
met.
Epstein's petition asserts that closure is necessary to protect a compelling
government interest because, he claims, the U.S. Attorneys' Office — who has been
notified of these proceedings and has taken no position whatsoever — has a
compelling interest in having the confidentiality provision of its contract with Mr.
Epstein honored. See Petition at 15. Assuming such a provision exists (the Post
has not seen the document), Petitioner is in no position to assert a compelling
interest on the government's behalf, given its decision to take no position on the
matter. If such an interest exists, the U.S. government is the party to assert it, and
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it has specifically failed to do so. The trial court did not depart from the essential
requirements of law in holding that Petitioner failed to demonstrate a compelling
interest in closure.
Epstein next asserts that closure is warranted to protect the interest of
"innocent third parties" and identifies those third parties as Mr. Epstein's co-
conspirators. (Petition at 15). Again, Mr. Epstein lacks standing to assert the
interests of third parties. Doe v. Museum of Science and History of Jacksonville,
Inc. Case No. 92-32567, 1994 WL 741009 (Fla. 7th Jud. Cir. June 8, 1994)
(plaintiff lacks standing to assert privacy interest of third party, minor victims of
sexual assault by defendant's former employee, who had been convicted) (copy
attached at Supp.A.-4). In addition, even if the third parties Mr. Epstein identifies
—his purported co-conspirators — were before the Court, they would have no
privacy interest in matters pertaining to their criminal conduct. Post-Newsweek
Stations. Florida. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (Does, whose names
were implicated in criminal prostitution scheme, had no right to privacy by virtue
of their participation in a crime and thus their names could not be redacted from
records provided to the public). Thus, the trial judge did not depart from the
essential requirements of law in finding insufficient third-party interests to justify
closure.
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The third interest Epstein seeks to invoke is his own right to privacy. See
Petition at 15. While Epstein actually does have standing to assert his own right to
privacy, Florida law is clear that closure is only proper to protect a "substantial
injury to a party by disclosure of matters protected by a common law or privacy
right not generally inherent in the specific type ofp roceeding sought to be closed."
Fla. R. Jud. Admin. 2.420(cX9)(AXvi) (emphasis added). Epstein argues
disclosure of a plea agreement is not generally inherent in a state court plea hearing
See Petition at 16. That argument is absurd. Of course Epstein's plea agreement is
generally inherent in his criminal prosecution. It is the very reason that
prosecution ended, and as the lower court recognized in accepting the plea, it was a
"significant inducement" to Petitioner to take the state's deal. (A-7 at p. 39,11. 19-
21.; p. 40,11. 10-13.)
Moreover, Florida's constitutional right to privacy is expressly subordinate
to the rights of Floridians to access the records of their government. To wit,
Article 1, § 23, which sets forth the right to privacy, further provides: "[t]his
section shall not be construed to limit the public's right of access to public records
and meetings as provided by law." Fla. Const. Art. I, § 23. As the Florida
Supreme Court has recognized, the privacy amendment has not been construed to
protect names and addresses contained in public records. Post Newsweek, 612 So.
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2d at 552. The trial court, having reviewed the NPA in camera, certainly had an
opportunity to assess whether a privacy interest not inherent in his criminal
prosecution for felony solicitation of children for prostitution is implicated by the
NPA. It cannot in good faith be argued that the trial court departed from the
essential requirements of law in determining that no such privacy interest was
implicated.
2. The Federal Court's Decisions in Case No. 08-80736
(S.D. Fla. 2008) Did Not Preclude the Lower Court's
Orders Unsealing the NPA.10
Nor did the trial court's rejection of Petitioner's comity argument depart
from the essential requirements of law. In the Southern District of Florida, one of
the minor victims of Epstein filed a Petition for Enforcement of Crime Victim's
Rights Acts (A-I)." The victim also asked the federal court to allow her to share
the NPA with third parties (A-3). Judge Marra denied the motion, finding — as the
U.S. Government had argued (A-4) — that the NPA was not a record of the federal
court. (A-6) ("First, as respondent points out, the Agreement was not filed in this
10 The Post adopts and incorporates E.W.'s arguments and analysis on this issue
in addition to the arguments it sets forth herein.
11 The Post notes that A-3 through A-5 were not part of the record below. If the
Court is inclined to consider these federal court pleadings, then in fairness it must
consider those related pleadings which are attached hereto as Supp.A.-5 through
Supp.A.-7 of the Post's Supplemental Appendix.
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case, under seal or otherwise."). The federal court also declined to provide any
relief from restrictions on the parties' use and dissemination of the discovery
document without prejudice. (A-6 at p.2.)
Petitioner argues that the Post should be required to seek relief in Judge
Marra's court. He mischaracterizes the nature of the proceedings there. There is
no document to unseal in Judge Marra's court. The NPA is not a record of that
court, and thus any effort by the Post to obtain access to the NPA there would be
futile, and any order requiring it be unsealed by the lower court herein does not
conflict with any decision of the federal court. (A-16 at p.3.)
In fact, when Judge Marra has been asked to seal records of his court that
quote the NPA, he has refused to do so, and has required such records to be filed in
the public court file (Supp.A.-5 through Supp.A.-7)12 Thus, though the NPA is not
a record of the federal court, the federal court has rejected attempts to file portions
of it under seal. As a result, portions of the NPA appear in the public court file in
12 Page 4 of Supp.A.-5 and paragraph 5 of Supp.A.-6, both publicly on file in the
federal court, quote from the NPA. In addition, Epstein's own lawyers quoted
extensively from the NPA in seeking to stay one of the civil suits against him. (A-
11 at 116; A-18, p. 35,1. 18 — p. 36,1. 1 (incorporating by reference Supp.A.-5
through Supp.A-6 and Supp.A.-7 (C.M.A. v. Epstein, Case No. 08-cv-80811 (S.D.
Fla. 2008) at Dkt. 33 pp. 2-5)).)
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the federal civil litigation against Epstein. (Supp.A-5 at p. 4; Supp.A.-6 at ¶ 5;
Supp.A.-7 at pp. 2-5.) The proverbial cat is already out of the bag.
Notwithstanding, the NPA is a record of this lower court. The lower court
did not enter an order conflicting with Judge Marra's rulings (A-16 at p. 3 —
expressly noting lack of conflict with Judge Marra's orders) and did not depart
from the essential requirements of law in unsealing the NPA.
3. Federal Rule of Criminal Procedure 6 Did Not Preclude
the Lower Court's Orders Unsealing the NPA.13
Finally, unsealing the NPA did not conflict with federal law. Records
available under state law are sealed by federal law only when federal law
absolutely conflicts with state law and requires confidentiality of the records. The
Supremacy Clause of the United States Constitution, Art. VI, U.S. Const., comes
into play only when federal law clearly requires the records to be closed, and the
state is clearly subject to its provisions. E.Q., Wallace v. Guzman, 687 So. 2d
1351, 1353 (Fla. 3d DCA 1997) (exemptions to federal Freedom of Information
Act do not apply to state agencies); Nous. Auth. of the City of Daytona Beach v
Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) (Federal Privacy Act does not
exempt from disclosure records of housing authority which are open for inspection
The Post adopts and incorporates E.W.'s arguments and analysis on this issue
13
in addition to the arguments it sets forth herein.
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under Florida Public Records Act); Ha. Sugar Cane League, Inc. v. Fla. Dept. of
Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept. 20, 1991), per curiam
affirmed 606 So. 2d 1267 (Fla. 1st DCA 1992 (documents received by state
agency in course of settlement negotiations to resolve federal lawsuit and
confidential settlement agreement with U.S. Department of Justice open to
inspection because federal law did not clearly require confidentiality) (Supp.A.-8.)
Federal law imposes no such preemption of the Florida constitution and common
law in this case.
In particular, Federal Rule of Criminal Procedure 6(e) does not restrict
access to the NPA. Federal Rule 6(e) restrains grand jurors, court reporters,
government attorneys, interpreters and the like from disclosing matters occurring
before the grand jury. Petitioner — apparently the former target of the grand jury —
is none of these persons. His actions in filing the NPA under seal do not implicate
Rule 6(e) no matter what information the NPA contains. The lower court's actions
in unsealing the NPA likewise do not implicate Rule 6, because the lower court
also is not restrained by Rule 6(e).
Moreover, the information contained in the NPA does not constitute
"matters occurring before the grand jury" within the meaning of Rule 6. The
secrecy rule is limited to such matters for the purpose of "preventing targets of an
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investigation from fleeing or tampering with witnesses or grand jurors,
encouraging witnesses to appear voluntarily and speak fully and frankly, avoiding
damage to the reputation of subjects or targets of the investigation who are not
indicted, and encouraging grand jurors to investigate suspected crimes without
inhibition and engage in unrestricted deliberations." Locichead Martin Corp. v.
Boeing Co., 393 F. Supp. 2d 1276, 1279 (M.D. Fla. 2005). The rule aims to
"prevent disclosure of the way in which information was presented to the grand
jury, the specific questions and inquiries of the grand jury, the deliberations and
vote of the grand jury, the targets upon which the grand jury's suspicion focuses,
and specific details of what took place before the grand jury." In re Grand Jury
Investigation of yen-Fuel, 441 F. Supp. 1299, 1302-03 (M.D. Fla. 1977). In other
words, Rule 6 is implicated if disclosure would reveal secret inner workings of the
grand jury. U.S. v. Rosen, 471 F. Supp. 2d 651, 654 (E.D. Va. 2007).
Disclosure of details of a government investigation that is independent of a
parallel grand jury proceeding does not violate Rule 6. Id. Statements by a
prosecutor's office about its own investigation, therefore, are not covered by the
secrecy rule. Id. at 655. Likewise, the mere mention of other targets of an
investigation does not implicate the grand jury secrecy rule. E.g., In re Interested
Party, 530 F. Supp. 2d 136,140-42 (D.D.C. 2008) (government not prohibited by
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Rule 6 from disclosing plea agreement and other materials); Doe v. Hammond, 502
F. Supp. 2d 94, 99-101(D.D.C. 2007) (same). Moreover, "when the fact or
document is sought for itself, independently, rather than because it was stated
before or displayed to the grand jury, there is no bar of secrecy." In re Grand Jury
Investigation of Ven-Fuel, 441 F. Supp. at 1304. Here, the Post seeks to review
the NPA for its own intrinsic value, and not for the purpose of discerning what
transpired before the grand jury now more than a year ago. It is clearly well within
the public's right and interest to review the NPA, given the circumstances
surrounding the investigation and prosecution of Petitioner as well as the civil
claims by women who say Epstein sought to make them his child prostitutes.
These facts clearly constitute a proper basis for unsealing these improperly sealed
documents.
Finally, and even assuming for a moment that the NPA contains grand jury
information — which the Post doubts — when the grand jury's work has concluded,
and the accused apprehended, the veil of secrecy no longer is necessary and safely
may be lifted. In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1303.
Here, Petitioner has been convicted, and nothing in the record suggests the grand
jury's work is ongoing. Consequently, no basis exists for finding that the trial
court departed from the essential requirements of law.
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CONCLUSION
The trial court was correct in unsealing the non-prosecution agreement and
its addendum. These materials were not properly sealed in the first instance.
Moreover, Epstein has not and cannot provide any basis for closure at this juncture.
The trial court did not depart from the essential requirements of law in unsealing
the NPA. Its order should be affirmed, and the Post should be awarded its fees and
costs and such other further relief as this Court deems proper.
Respectfully submitted,
THOMAS, oCICERO &,z BR2AVLO , PL
D na K. Shullman
lorida Bar No.: 0514462
James B. Lake
Florida Bar No.: 0023477
101 N.E. Third Avenue, Suite 1500
Fort Lauderdale, FL 33301
Telephone
Facsimile:
Attorneys for The Palm Beach Post
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County
Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; R.
Alexander Acosta, United States Attorney's Office - Southern District, 500 S.
Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Burns, Esq.,
State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm
Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250
S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401; Robert D. Critton,
Esq., Burman, Critton, Luttier & Coleman, 515 N. Flagler Drive, Suite 400, West
Palm Beach, FL 33401; Jane Kreusler-Walsh, Esq., 501 S. Flagler Drive, Suite
503, West Palm Beach, FL 33401-5913; Spencer T. Kuvin, Esq., Leopold-Kuvin,
P.A., 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410; and
Bradley J. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt
Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 10th
day of July, 2009.
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CERTIFICATE OF TYPE, SIZE AND STYLE
Counsel for Petitioners certifies that this Petition is typed in 14 point
(proportionately spaced) Times New Roman.
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