EFTA00800253

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1. Doe v. United States. 2019 U.S. Dist. LEXIS 27215 
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DAVID SCHOEN 
EFTA00800253

No Shepard's Signalm 
As of: February 24, 2019 4:55 AM Z. 
Doe v. United States 
United States District Court for the Southern District of Florida 
February 21, 2019, Decided; February 21, 2019, Entered on Docket 
CASE NO. 08-80736-CIV-MARRA 
Reporter 
2019 U.S. Dist. LEXIS 27215 
JANE DOE I AND JANE DOE 2, Petitioners, vs. UNITED 
STATES, Respondent. 
Core Terms 
notification, email, rights, notice, Attorney's, letters, confer, 
charges, girls, guilty plea, co-conspirators, non-prosecution, 
inform. summary judgment, crime victim, state court, 
negotiating, deferred, notify, terms, federal investigation, plea 
agreement, law law law, individuals, damages, sexual, sexual 
abuse, proceedings, indictment, sentencing 
Counsel: [ol] For Jane Doe, Petitioner: Bradley James 
Edwards, LEAD ATTORNEY, Edwards Pottinger LLC, Fort 
Lauderdale, FL; Jay C. Howell, PRO HAC VICE, Jay Howell 
& Associates PA, Jacksonville, FL; John Scarola, Searcy 
Denney Scarola Barnhart & Shipley, West Palm Beach, FL; 
Paul G. Cassell, PRO HAC VICE. 
For United States of America, Respondent: Ann Marie C. 
Villafana, LEAD ATTORNEY, United States Attorney's 
Office, West Palm Beach, FL; Dexter Lee, LEAD 
ATTORNEY, United States Attorney's Office, Miami, FL. 
For Roy Black, Intervenor. Jacqueline Perczek, Roy Eric 
Black, Black Srebnick Komspan & Stumpf, Miami, FL; Jay 
P. Lefkowitz, PRO HAC VICE, Kirkland & Ellis, LLP, New 
York, NY; Martin G. Weinberg, PRO HAC VICE, Martin G. 
Weinberg, P.C., Boston, MA. 
For Martin G. Weinberg, Jay Lefkowitz, Intervenors: 
Jacqueline Perczek, Black Srebnick Komspan & Stumpf, 
Miami, FL; Jay P. Lefkowitz, PRO HAC VICE, Kirkland & 
Ellis, LLP, New York, NY; Martin G. Weinberg, PRO HAC 
VICE, Martin G. Weinberg, P.C., Boston, MA. 
For Bruce Reinhart, Intervenor: Bruce Reinhart, Bruce E. 
Reinhart, P.A., West Palm Beach, FL. 
For Jeffrey Epstein, Intervenor: Jacqueline Perczek, Roy Eric 
Black, Black Srebnick Komspan & Stumpf, Miami, [ig] FL. 
For Alan M. Dershowitz, Intervenor: Kendall Brindley 
Coffey, LEAD ATTORNEY, Gabriel Groisman, Coffey 
Burlington, P.L., Miami, FL; Steven Russell Safra, Thomas E. 
Scott, Jr., Cole Scott & Kissane. Miami, FL. 
For The Palm Beach Post, Palm Beach Daily News, 
Intervenors: Rachel Elise Fugate, LEAD ATTORNEY, 
Shullman Fugate PLLC, Tampa, FL. 
Judges: KENNETH A. MARRA, United States District 
Judge. 
Opinion by: KENNETH A. MARRA 
Opinion 
OPINION AND ORDER 
This cause is before the Court upon Jane Doe 1 and Jane Doe 
2's Motion for Partial Summary, Judgment (DE 361); the 
United States's Cross-Motion for Summary Judgment (DE 
408); Jane Doe 1 and Jane Doe 2's Motion to Compel 
Answers (DE 348) and Jane Doe I and Jane Doe 2's Motion 
for Finding Waiver of Work Product and Similar Protections 
by Government and for Production of Documents (DE 414). 
The Motions are fully briefed and ripe for review. The Court 
has carefully considered the Motions and is otherwise fully 
advised in the premises. 
I. Background 
The facts, as culled from affidavits, exhibits, depositions, 
answers to interrogatories and reasonably inferred, for the 
purpose of these motions, are as follows: 
From between about 1999 and 2007, Jeffrey Epstein sexually 
abused more than [*3] 30 minor girls, including Petitioners 
Jane Doe I and Jane Doe 2 (hereinafter, "Petitioners"), at his 
mansion in Palm Beach, Florida, and elsewhere in the United 
States and overseas. (Government Resp. to Petitioner's 
Statement of Undisputed Material Facts (hereinafter, "DE 
407" at ¶ I.) Because Epstein and his co-conspirators 
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knowingly traveled in interstate and international commerce 
to sexually abuse Jane Doe I, Jane Doe 2 and others, they 
committed violations of not only Florida law, but also federal 
law. (DE 407 at I 2.) In addition to his own sexual abuse of 
the victims, Epstein directed other persons to abuse the girls 
sexually. (DE 407 at 13.) Epstein used paid employees to find 
and bring minor girls to him. Epstein worked in concert with 
others to obtain minors not only for his own sexual 
gratification, but also for the sexual gratification of others. 
(DE 407 at 18.) 
In 2005. the Town of Palm Beach Police Department 
("PBPD") received a complaint from the parents of a 14 year 
old girl about her sexual abuse by Jeffery Epstein. The PBPD 
ultimately identified approximately 20 girls between the ages 
of 14 and 17 who were sexually abused by Epstein. (DE 407 
all 4.) In 2006, at 1*4] the request of the PBPD, the Federal 
Bureau of Investigation ("FBI") opened an investigation into 
allegations that Epstein and his personal assistants used the 
facilities of interstate commerce to induce girls between the 
ages of 14 and 17 to engage in illegal sexual activities. (DE 
407 at 15.) The FBI ultimately determined that both Jane Doe 
1 and Jane Doe 2 were victims of sexual abuse by Epstein 
while they were minors. Jane Doe 1 provided information 
about her abuse and Jane Doe 2's abuse to the FBI on August 
7, 2007. (DE 407 at 16.) 
From January, of 2007 through September of 2007, 
discussions took place between the U.S. Attorney's Office for 
the Southern District of Florida ("the Office") and Jeffrey 
Epstein's attorneys. (DE 407 at 1 9.) On February I, 2007, 
Epstein's defense team sent a 24-page letter to the Office 
going over what they intended to present during a meeting at 
the Office the same day. (DE 407 at 1 10.) 
By March IS, 2007, the Office was sending letters to victims 
informing them of their rights pursuant to the Crime Victims' 
Riehts Act ("CVRA"). (DE 407 at I II.) By May of 2007, the 
Office had drafted an 82-page prosecution memorandum and 
a 53-page indictment outlining [*5] numerous federal sexual 
offenses committed by Epstein. (DE 407 at 1 12.) On or about 
June 7, 2007, FBI agents had delivered to Jane Doe I a 
standard CVRA victim notification letter.I The notification 
' On or about August 11. 2006. Jane Doe 2 received the same CVRA 
letter. (DE 407 at 1 7.) 
Initially. Jane Doe 2 was unwilling to provide any information to the 
FBI or the Office unless she was assured her statements would not be 
used against her. She also described Epstein as "an awesome man" 
and stated that she hoped "nothing happens to" him. (DE 415 at Ill 
14-15.) This was during the time period where Jane Doe 2 had 
obtained counsel paid for by Epstein. (Jane Doe 2 Decl. in 5-7.) 
letter promised that the Justice Department would make its 
"best efforts" to protect Jane Doe l's rights, including "the 
reasonable right to confer with the attorney for the United 
States in the case" and " to be reasonably heard at any public 
proceeding in the district court involving [a] . . . plea." The 
notification further stated that, "[all this time, your case is 
under investigation." (DE 407 at 1 13.) Jane Doe I relied on 
those representations and believed that the Government would 
protect those rights and keep her informed about the progress 
of her case. (DE 407 at I 14.) 
On July 6, 2007, Epstein's lawyers sent a 23-page letter 
lodging numerous arguments to persuade the Office that no 
federal crimes had been committed by him. (DE 407 at I 15.) 
By August 3, 2007, the Government had rejected Epstein's 
various arguments against federal charges and sent a letter to 
Epstein's counsel stating, "[vle would reiterate that the 
agreement to Section 2255 la civil restitution provision] 
liability applies I*6] to all of the minor girls identified during 
the federal investigation, not just the 12 that form the basis of 
an initial planned charging instrument." (DE 407 at 1 17.) On 
September 10, 2007, multiple drafts of a non-prosecution 
agreement ("NPA") had been exchanged between Epstein's 
counsel and the Office. (DE 407 at 1 18.) 
On September 12, 2007, while attempting to create alternative 
charges against Epstein, the Office expressed concern about 
"the effect of taking the position that Mr. Epstein's house is in 
the special maritime and territorial jurisdiction of the United 
States" because the Government had "no evidence of any 
assaults occurring either on Mr. Epstein's plane or offshore 
from his residence." (DE 407 at 1 19.) On September 13, 
2007, the line prosecutor emailed Epstein's counsel indicating 
an effort to come up with a solution to the aforementioned 
concern and she stated that she had been "spending some 
quality time with Title 18 looking for misdemeanors." The 
line prosecutor further indicated, "I know that someone 
mentioned there being activity on an airplane. I just want to 
make sure that there is a factual basis for the plea that the 
agents can confirm." Epstein's counsel [*I] responded, 
"lallready thinking about the same statutes." (DE 407 at 120.) 
On September 14. 2007, after having spoken on the telephone 
about the subject matter of the September 13 emails, Epstein's 
counsel and the line prosecutor exchanged emails including a 
proposed plea agreement for Epstein to plead guilty to 
Assistant United States Attorney ("AUSA") A. Marie Villafaila 
("line prosecutor" "Villafatia") testified that both Jane Doe I and 
Jane Doe 2 received letters describing their rights under the CVRA. 
Although Jane Doe I and 2 were given Ms. Villafana's and the FBI 
agent's name and phone number, neither contacted either of them. 
(Villafaila Decl. 15, DE 403-19.) 
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assaulting one of his coconspirators. (DE 407 at 1 2L) On 
September 15, 2007, the line prosecutor sent an email to the 
Epstein defense team raising concerns about a resolution that 
would not involve one of Epstein's minor victims and stating: 
I have gotten some negative reaction to the assault 
charge with [a co-conspirator] as the victim, since she is 
considered one of the main perpetrators of the offenses 
that we planned to charge in the indictment. Can you talk 
to Mr. Epstein about a young woman named [Jane Doe]? 
We have hearsay evidence that she traveled on Mr. 
Epstein's airplane when she was under 18, in around the 
2000 or 2001 time frame. 
(DE 407 at 1 22.) 
On September 16, 2007, the line prosecutor corresponded 
with Epstein's counsel about having Epstein plead guilty to 
obstruction of justice for pressuring one of his co-conspirators 
not to turn over evidence or complying [•8] with a 
previously-served grand jury subpoena. (DE 407 at 1 23.) The 
Office also stated. "On an 'avoid the press' note, I believe that 
Mr. Epstein's airplane was in Miami on the day of the [co-
conspirator] telephone call. If he was in Miami-Dade County 
at the time, then I can file the charge in the District Court in 
Miami, which will hopefully cut the press coverage 
significantly." They also discussed having Epstein plead 
guilty to a second charge of assaulting a different co-
conspirator. (DE 407 at I 24.) 
On September 16, 2007, the line prosecutor wrote to Epstein's 
counsel indicating that the Office did not like the factual basis 
for the proposed charges as the Office was "not investigating 
Mr. Epstein [for] abusing his girlfriend." (DE 407 at 1 25.) 
The correspondence further stated: 
Andy [i.e., AUSA Andrew Laurie] recommended that 
some of the timing issues be addressed only in the state 
agreement, so that it isn't obvious to the judge that we 
are trying to create federal jurisdiction for prison 
purposes. 
I will include our standard language regarding resolving 
all criminal liability and I will mention 'co-conspirators,' 
but I would prefer not to highlight for the judge all of the 
other [•9] crimes and all of the other persons that we 
could charge. Also, we do not have the power to bind 
Immigration . . . there is no plan to try to proceed on any 
immigration charges against either Ms. [co-conspirator] 
or Ms. [coconspirator] 
(Ex. 7, DE 361-7.) 
In the same email, the line prosecutor wrote to defense 
counsel about a meeting outside the U.S. Attorney's Office: 
"Maybe we can set a time to meet. If you want to meet 'off 
campus' somewhere, that is fine." (DE 407 at ¶ 27.) On about 
September 16, 2007, Epstein's counsel provided a proposed 
NPA to the Government that extended immunity from federal 
prosecution not only to Epstein, but also to certain co-
conspirators. (DE 407 at 1 28.) 
On September 17, 2007, the line prosecutor wrote to defense 
counsel Jay Lefkowitz: "Please send [a document] to my 
home e-mail address — [redacted] and give me a call on my 
cell [redacted] so I can be ready for some discussions 
tomorrow." (DE 407 at 1 29.) On September 17, 2007, 
Lefkowitz responded: "[D]o you have another obstruction 
proffer I can review that you have drafted? Also, if we go that 
route, would you intend to make the deferred prosecution 
agreement public?" (DE 407 at 30.) 
On September 18. [•10) 2007, the Office responded: "A non-
prosecution agreement would not be made public or filed with 
the Court, but it would remain part of our case file. It 
probably would be subject to a FOIA request, but it is not 
something that we would distribute without compulsory 
process." (DE 407 at I 31.) On September 20, 2007, the U.S. 
Attorney's Office wrote: "On the issue about 18 USC 2255 
we seem to be miles apart. Your most recent version not only 
had me binding the girls to a trust fund administered by the 
state court, but also promising that they will give up their 
2255 rights.... In the context of a non-prosecution agreement, 
the office may be more willing to be specific about not 
pursuing charges against others." (DE 407 at 132.) 
On September 21, 2007, Palm Beach County State Attorney 
Barry Krischer wrote the line prosecutor about the proposed 
agreement and added: "Glad we could get this worked out for 
reasons I won't put in writing. After this is resolved I would 
love to buy you a cup at Starbucks and have a conversation." 
(DE 407 at I 33.) On September 21, 2007. the line prosecutor 
emailed Epstein's counsel stating, "I think that the attached 
addresses 
the 
concerns 
about 
having 
an 
unlimited 
number [•11] of claimed victims, without me trying to bind 
girls whom I do not represent." (DE 407 at 1 34.) On 
September 23, 2007, the U.S. Attorney's Office sent an email 
to Lefkowitz stating: "It is factually accurate that the list we 
are going to give you are persons we have identified as 
victims. If we did not think they were victims, they would 
have no right to bring suit." (DE 407 at 1 35.) 
On September 24, 2007, the line prosecutor sent an e-mail to 
a prospective representative for the Epstein victims, entitled 
"Conflict Check." The email confirmed the girls' status as 
victims, stating: "Please keep this confidential because these 
are minor victims. This is a preliminary list." Later on 
September 24, 2007, the line prosecutor sent an email to 
Lefkowitz stating: "I have compiled a list of 34 confirmed 
minors." (DE 407 at ¶ 36.) As correspondence continued on 
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September 24, 2007, and the NPA was being executed, 
Lefkowitz sent an email to the line prosecutor stating: "Marie 
— Please do whatever you can to keep this [Le., the NPA]
from becoming public." (DE 407 at l 37.) 
On September 24, 2007, Epstein and the Office formally 
reached an agreement whereby the United States would defer 
federal prosecution [•12] in favor of prosecution by the State 
of Florida. Epstein and the Office accordingly entered into a 
NPA reflecting such an agreement. (DE 407 at 1 38.) The 
NPA provided that "the United States, in consultation with 
and subject to the good faith approval of Epstein's counsel. 
shall select an attorney representative for [the victims], who 
shall be paid for by Epstein." The MIA also provided that if 
any of the victims elected to bring suit under 18 U..S.C. 
2255, they must agree to waive any other claim for damages. 
As part of the NPA, Epstein would not contest the jurisdiction 
of the United States District Court and waived his right to 
contest liability and damages. (NPA, DE 361.62.) 
Among other provisions, the NPA expanded immunity to any 
"potential coconspirator" of Epstein's: "In consideration of 
Epstein's agreement to plead guilty and to provide 
compensation in the manner described above, if Epstein 
successfully fulfills all of the terms and conditions of this 
agreement, the United States also agrees that it will not 
institute any criminal charges against any potential co-
conspirators of Epstein, including but not limited to Sarah 
Kellen, Adrian Ross, Lesley Groff, or Nadia Marcinkova." 
(DE 407 at 193] 1 40.) The NPA also provided that: "The 
parties anticipate that this agreement will not be made part of 
any public record. If the United States receives a Freedom of 
Information Act request or any compulsory process 
commanding the disclosure of the agreement, it will provide 
notice to Epstein before making that disclosure." (DE 407 at 1 
41.) 
From the time the FBI began investigating Epstein until 
September 24, 2007—when the NPA was concluded—the 
Office never conferred with the victims about a NPA or told 
the victims that such an agreement was under consideration. 
(Marie Villafafia Decl. 1 7, DE 361.64; DE 407 at 1 43.) 
Many, if not all, other similarly-situated victims received 
standard CVR4 victim notification letters substantively 
identical to those sent to Jane Doe 1 and Jane Doe 2. (DE 407 
at 1 44.) The Office did not consult or confer with any of the 
victims about the NPA before it was signed. (DE 407 at 'H 
45.46.) 
Epstein's counsel was aware that the Office was deliberately 
keeping the NPA secret from the victims and, indeed, had 
sought assurances to that effect. (DE 407 at 1 48.) After the 
NPA was signed, Epstein's counsel and the Office began 
negotiations about whether the victims [•14] would be told 
about the NPA. (DE 407 at 'll 49.) It was a deviation from the 
Government's standard practice to negotiate with defense 
counsel about the extent of crime victim notifications. (DE 
407 at ¶ 50.) 
On September 24, 2007, the Office sent an email to 
Lefkowitz: 
Thank you, Jay. I have forwarded your message only to 
[United States Attorney] Alex [Acosta], Andy, and 
Roland. I don't anticipate it going any further than that. 
When I receive the originals, I will sign and return one 
copy to you. The other will be placed in the case file, 
which will be kept confidential since it also contains 
identifying information about the girls. 
When we reach an agreement about the attorney 
representative for the girls, we can discuss what I can tell 
him and the girls about the agreement. I know that Andy 
promised Chief Reiter an update when a resolution was 
achieved.... Rolando is calling, but Rolando knows not to 
tell Chief Reiter about the money issue, just about what 
crimes Mr. Epstein is pleading guilty to and the amount 
of time that has been agreed to. Rolando also is telling 
Chief Reiter not to disclose the outcome to anyone. 
(DE 407 at 1 52.) 
On September 25, 2007, the line prosecutor sent an [•15] e-
mail to Lefkowitz stating: "And can we have a conference call 
to discuss what I may disclose to . . . the girls regarding the 
agreement." (DE 407 at ¶ 53.) Also on September 25, 2007, 
the line prosecutor sent an email to Lefkowitz which stated in 
part: "They [Ted Babbitt, Stuart Grossman, Chris Searcy, 
[L]ake Lytal] are all very good personal injury lawyers, but I 
have concerns about whether there would be an inherent 
tension because they may feel that THEY might make more 
money (and get a lot more press coverage) if they proceed 
outside the Terms of the plea agreement. (Sony — I just have 
a bias against plaintiffs' attorneys.) One nice thing about Bert 
is that he is in Miami where there has been almost no 
coverage of this case." (DE 407 at ¶ 54.) 
On September 26, 2007, the line prosecutor sent an e-mail to 
Lefkowitz in which she stated: "Hi Jay — Can you give me a 
call at 561-1xxx-xxxxl this morning? I am meeting with the 
agents and want to give them their marching orders regarding 
what they can tell the girls." (DE 407 at 1 55.) On September 
27, 2007, the attorney representative for the victims emailed 
the Office and asked whether he could get a copy of the 
indictment or plea agreement r 161 to find out "exactly what 
Epstein concedes to in the civil case." (Sept. 27, 2007 email, 
DE 362-2.) Upon inquiry from the Office, Lefkowitz 
responded by stating that the attorney representative 
"certainly II should not get a copy of any indictment." (DE 
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2019 U.S. Dist. LEXIS 27215, •16 
407 at 1 57.) That same day, the line prosecutor informed 
Epstein's counsel of concerns raised by the attorney 
representative for the girls. Specifically, "Mlle concern is, if 
all 40 girls decide they want to sue, they don't want to be in a 
situation where Mr. Epstein says this is getting too expensive, 
we won't pay anymore attorneys' fees." (DE 407 at 1 58.) 
Also on that same day, the line prosecutor sent an email to 
state prosecutors Lanna Belohlavek and Barry Krischer: "Can 
you let me know when Mr. Epstein is going to enter his guilty 
plea and what judge that will be in front of? I know the agents 
and I would really like to be there, 'incognito."' (DE 407 at 1 
59.) 
On October 3, 2007, the Office sent a proposed letter that 
would have gone to a special master for selecting an attorney 
representative for the victims under the NPA's compensation 
procedure. The letter described the facts of the Epstein case as 
follows: "Mr. Epstein, through [*17] his assistants, would 
recruit underage females to travel to his home in Palm Beach 
to engage in lewd conduct in exchange for money. Based 
upon the investigation, the United States has identified 40 
young women who can be characterized as victims pursuant 
to 18 U.S.C. S 2255. Some of those women went to Mr. 
Epstein's home only once, some went there as many as 100 
times or more. Some of the women's conduct was limited to 
performing a topless or nude massage while Mr. Epstein 
masturbated himself. For other women. the conduct escalated 
to full sexual intercourse." (DE 407 at 1 60.) 
On October 10, 2007, Lefkowitz sent a letter to U.S. Attorney 
Alex Acosta stating, in pertinent part: "Neither federal agents 
nor anyone from your Office should contact the identified 
individuals to inform them of the resolution of the case, 
including appointment of the attorney representative and the 
settlement process. Not only would that violate the 
confidentiality of the agreement, but Mr. Epstein also will 
have no control over what is communicated to the identified 
individuals at this most critical stage. We believe it is 
essential that we participate in crafting mutually acceptable 
communication to the identified individuals." [*18] The letter 
further proposed that the attorney representative for the 
victims be instructed that "Mlle details regarding the United 
States's investigation of this matter and its resolution with Mr. 
Epstein is confidential. You may not make public statements 
regarding this matter." (DE 407 at 1 61.) 
U.S. Attorney Acosta then met with Lefkowitz for breakfast 
and Lefkowitz followed up with a letter stating, "I also want 
to thank you for the commitment you made to me during our 
October 12 meeting in which you . . . assured me that your 
Office would not . . . contact any of the identified individuals, 
potential witnesses, or potential civil claimants and their 
respective counsel in this matter." (DE 407 at 163.) 
On October 24, 2007, AUSA Jeff Sloman sent a letter to Jay 
Lefkowitz, proposing an addendum to the NPA clarifying the 
procedures for the third-party representative for the victims 
under the NPA's compensation provisions. (DE 407 at 1 64.) 
On October 25, 2007, AUSA Sloman sent a letter to Retired 
Judge Davis about selecting an attorney to represent the 
victims under the NPA's compensation procedure. (DE 407 at 
165.) 
On about October 26 or 27, 2007, Special Agents E. Nesbitt 
Kuyrkendall [*19] and Jason Richards met in person with 
Jane Doe I. They explained that Epstein would plead guilty to 
state charges, he would be required to register as a sex 
offender for life, and he had made certain concessions related 
to the payment of damages. (DE 407 at 1 70.) According to 
Jane Doe I, the Agents did not explain that the NPA had 
already been signed. (Jane Doe 1 Decl. 1 5, DE 361.26.) Jane 
Doe 1's understanding was that the federal investigation 
would continue. (Jane Doe 1 Decl. 1 6.) In contrast, Special 
Agent Kuyrkendall stated that the meeting with Jane Doe I 
was to advise her of the main terms of the NPA? (Kuykendall 
Decl. 1 8, DE 403.18.) After the meeting, Special Agent 
Kuyrkendall became concerned about what would happen if 
Epstein breached the NPA, and thought that if the victims 
were aware of the NPA, the provision about monetary 
damages could be grounds for impeachment of the victims 
and herself. (Kuykendall Decl. 1 9.) According to Special 
Agent Kuyrkendall, the investigation of Epstein continued 
through 2008. (Kuykendall Dec1.1 II.) 
In addition to Jane Doe 1, FBI agents only talked to two other 
victims out of the 34 identified victims about the "general 
terms" of the [*20] NPA, including the provision providing a 
federal civil remedy to the victims. (DE 407 at 1 76.) After 
these meetings with three victims, Epstein's defense team 
complained. (DE 407 at 177.) 
On about November 27, 2007, AUSA Sloman sent an e-mail 
to Lefkowitz, (with a copy to U.S. Attorney Acosta) stating 
that the Office had a statutory obligation to notify the victims 
about Epstein's plea to state charges that was part of the NPA: 
The United States has a statutory obligation (Justice for 
All Act of 2004) to notify the victims of the anticipated 
upcoming events and their rights associated with the 
agreement entered into by the United States and Mr. 
2 Special Agent Kuyrkendal also stated that on August 7. 2007. Jane 
Doe 1 never asked to confer with anyone from the government about 
charging decisions or any resolution of the matter. (Kuykendall Decl. 
1 7-) 
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Epstein in a timely fashion. Tomorrow will make one 
full week since you were formally notified of the 
selection. I must insist that the vetting process come to 
an end. Therefore, unless you provide me with a good 
faith objection to Judge Davis's selection [as special 
master for selecting legal counsel for victims pursuing 
claims against Epstein] by COB tomorrow, November 
28, 2007, I will authorize the notification of the victims. 
Should you give me 
the go•head on [victim 
representative] . . . selection by COB tomorrow, I will 
simultaneously [*21] send you a draft of the letter. I 
intend to notify the victims by letter after COB 
Thursday, November 29th. 
(DE 407 at 179.) 
On November 28, 2007, the Government sent an email to 
Lefkowitz attaching a letter dated November 29, 2007 (the 
apparent date upon which it was intended to be mailed) and 
explained that "I am writing to inform you that the federal 
investigation of Jeffrey Epstein has been completed, and Mr. 
Epstein and the U.S. Attorney's Office have reached an 
agreement containing the following terms." The proposed 
letter then spelled out a number of the provisions in the NPA 
including that because Epstein's plea of guilty to state charges 
was "part of the resolution of the federal investigation," the 
victims were "entitled to be present and to make a statement 
under oath at the state sentencing." (DE 407 at 1 80.) 
On November 29, 2007, Lefkowitz sent a letter to U.S. 
Attorney Acosta objecting to the proposed victim notification 
letter, stating that it is inappropriate for any letter to be sent to 
the victims before Epstein entered his plea or had been 
sentenced. Lefkowitz also told the Government that the 
victims should not be invited to the state sentencing, that they 
should [*22] not be encouraged to contact law enforcement 
officials, and that encouraging the attorney representative to 
do anything other than get paid by Epstein to settle the cases 
was to encourage an ethical conflict. (DE 407 at 1 82.) 
On about November 30, 2007, U.S. Attorney Acosta sent a 
letter to one of Epstein's defense attorneys, Kenneth Starr, 
stating: "I am directing our prosecutors not to issue victim 
notification letters until this Friday at 5 p.m., to provide you 
with time to review these options with your client." The letter 
also explained that the line prosecutor had informed U.S. 
Attorney Acosta "that the victims were not told of the 
availability of Section 2255 relief during the investigation 
phase of this matters' despite the fact that the "[r]ule of law ... 
now requires this District to consider the victims' rights under 
this statute in negotiating this Agreement." (DE 407 at 1 83.) 
On December 5, 2007, Starr sent a letter to U.S. Attorney 
Acosta (with copy to AUSA Sloman) asking about issuance 
of victim notification letters and stating: "While we believe 
that it is wholly inappropriate for your Office to send this 
letter under any circumstances, it is certainly inappropriate to 
issue this letter [*23] without affording us the right to review 
it." (DE 407 at 1 85.) 
On about December 6, 2007, AUSA Sloman sent a letter to 
Lefkowitz stating in part: 
[Elach of the listed individuals are persons whom the 
Office identified as victims. Mhe Office is prepared to 
indict Mr. Epstein based upon Mr. Epstein's 'interactions' 
with these individuals. This conclusion is based upon a 
thorough and proper investigation - one in which none of 
the victims was informed of any right to receive damages 
of any amount prior to the investigation of her claim. 
[The Office can say, without hesitation, that the 
evidence demonstrates that each person on the list was a 
victim of Mr. Epstein's criminal behavior. 
Finally, let me address your objections to the draft 
Victim Notification Letter. You write that you don't 
understand the basis for the Office's belief that it is 
appropriate to notify the victims. Pursuant to the 'Justice 
for All Act of 2004,' crime victims are entitled to: 'The 
right to reasonable, accurate, and timely notice of any 
public court proceeding ... involving the crime' and the 
'right not to be excluded from any such public court 
proceeding....' 18 U.S.C. S 377lial(2) & al. Section 
3771 
also 
commands 
that 
'employees 
of 
the 
Department r24] of Justice . . . engaged in the 
detection, investigation, or prosecution of crime shall 
make their best efforts to see that crime victims are 
notified of, and accorded, the rights described in 
subsection (al.' 18 U.S.C. 
377116111.... 
With respect to notification of the other information that 
we propose to disclose, the statute requires that we 
provide a victim with the earliest possible notice of: the 
status of the investigation, the filing of charges against a 
suspected offender, and the acceptance of a plea. 42 
U.S.C. 106071O131. Just as in 18 U.S.C. 3771, these 
sections are not limited to proceedings in a federal 
district court. Our Non-Prosecution Agreement resolves 
the federal investigation by allowing Mr. Epstein to 
plead to a state offense. The victims identified through 
the federal investigation should be appropriately 
informed, and our Non-Prosecution Agreement does not 
require the U.S. Attorney's Office to forego its legal 
obligations. [T]he Office believes that it has proof 
beyond a reasonable doubt that each listed individual 
was a victim of Mr. Epstein's criminal conduct while the 
victim was a minor. The law requires us to treat all 
victims "with fairness and with respect for the victim's 
dignity and privacy." 18 U.S.C. 3771(aHla 
DAVID SCHOEN 
EFTA00800259

Page 7 of 13 
2019 U.S. Dist. LEXIS 27215, *24 
The letter included a footnote 1.25] slating: "Unlike the 
State's investigation, the federal investigation shows criminal 
conduct by Mr. Epstein at least as early as 2001, so all of the 
victims were minors at the time of the offense." (DE 407 at 1 
83.) 
On December 7, 2007, defense attorney Lilly Ann Sanchez 
sent a letter to AUSA Sloman, requesting "that the Office 
hold off on sending any victim notification letters." No letters 
were sent in December of 2007. (DE 407 at I 88.) On 
December 13, 2007, the line prosecutor sent a letter to 
Lefkowitz stating that "You raised objections to any victim 
notification, and no further notifications were done." (DE 407 
at I 89.) On December 19, 2007, U.S. Attorney Acosta sent a 
letter to Lilly Ann Sanchez stating, "I understand that the 
defense objects to the victims being given notice of time and 
place of Mr. Epstein's state court sentencing hearing. We 
intend to provide victims with notice of the federal resolution, 
as required by law. We will defer to the discretion of the State 
Attorney regarding whether he wishes to provide victims with 
notices of the state proceedings. (DE 407 at 990.) 
In January of 2008, any requirement that Epstein carry out his 
obligations under the NPA was 1.26] delayed while he 
sought higher level review within the Justice Department. 
(DE 407 at 1 92.) On January 10, 2008, Jane Doe 1 and Jane 
Doe 2 were sent victim notification letters from the FBI 
advising them 
that "[t]his case is currently under 
investigation. This can be a lengthy process and we request 
your continued patience while we conduct a thorough 
investigation." (DE 407 at 1 93.) The January 10, 2008 
notification letters did not disclose that the Jane Doe 1 and 
Jane Doe 2 case in the Southern District of Florida was the 
subject of the NPA entered into by Epstein and the Office, or 
that there had been any potentially binding resolution. (DE 
407 at 1 94.) Other victims received the same letters as sent to 
Jane Doe I and Jane Doe 2. (DE 407 at I 95.) 
According to the declaration of Jane Doe I, she believed that 
criminal prosecution of Epstein was important and she wanted 
to be consulted by prosecutors before any resolution. Based 
on the letters received, she believed the Government would 
contact her before reaching any final resolution. (Jane Doe I 
Decl. 1 9.) On January 31, 2008, Jane Doe I met with FBI 
Agents and an AUSA from the U.S. Attorney's Office. She 
provided additional details [x'27] of Epstein's sexual abuse of 
her. The AUSA did not disclose to Jane Doe I at this meeting 
that they had already negotiated a NPA with Epstein. (DE 407 
at 1 97.) According to the declaration of Jane Doe 2, while 
she recognizes she did not initially help the investigation, she 
later tried to cooperate with the investigation but was never 
given an opportunity to cooperate with the investigation.;
(Jane Doe 2 Dec1.1 I 13-14, DE 361-27.) 
On March 19, 2008, the line prosecutor sent a lengthy email 
to a prospective pro bono attorney for one of Epstein's victims 
who had been subpoenaed to appear at a deposition. The 
email listed the attorneys representing Epstein, the targets of 
the investigation, and recounted in detail the investigation that 
had been conducted to that point. The email did not reveal the 
fact that Epstein had signed the NPA in September 2007. (DE 
407 at 1 98.) 
On May 30, 2008, Jane Doe 5, who was recognized as an 
Epstein victim by the Office, received a letter from the FBI 
advising her that "[t]his case is currently under investigation. 
This can be a lengthy process and we request your continued 
patience while we conduct a thorough investigation." (DE 407 
at 1 99.) The May [•28] 30, 2008 victim letter to Jane Doe 5 
also acknowledged the victims' rights under the CVRA . (DE 
407 at I 100.) 
In mid-June of 2008, Mr. Bradley Edwards, the attorney for 
Petitioners, contacted the line prosecutor to inform her that he 
represented Jane Doe 1 and, later, Jane Doe 2. Edwards asked 
to meet to provide information about the federal crimes 
committed by Epstein against these victims. The line 
prosecutor and Edwards discussed the possibility of federal 
charges being filed in the future. Edwards was led to believe 
federal charges could still be filed, with no mention 
whatsoever of the existence of the NPA or any other possible 
resolution to the case (DE 407 at I 101.) 
At the end of the call, the line prosecutor asked Edwards to 
send any information that he wanted considered by the Office 
in determining whether to file federal charges. The line 
prosecutor did not inform Edwards about the NPA. (DE 407 
at I 102.) On June 19, 2008, Edwards sent an email to the line 
prosecutor requesting to meet and discuss plans. (DE 407 at I 
103.) 
1The Government believed that a negotiated resolution was in the 
best interest of the Office and the victims as a whole based on 
information obtained from the victims and the agents assigned to the 
case. (Villafaila Decl. 1 19.) The Government also believed that 
Epstein was trying to set aside the NPA and therefore the 
Government needed to be prepared for a prosecution. (Villafaila 
Decl. 1 34.) Petitioners object to this evidence, claiming the 
Government previously claimed work product and similar 
protections over internal materials. Given that the Court is ruling in 
favor of Petitioners on the present motions, the Court need not 
address this issue. To the extent it might have an impact on future 
rulings. Petitioners may reassert this argument if and when 
appropriate. 
DAVID SCHOEN 
EFTA00800260

Page 8 of 13 
2019 U.S. Dist. LEXIS 27215, *28 
On June 23, 2008, the line prosecutor sent an email to 
Lefkowitz stating that the Deputy Attorney General had 
completed his review of the Epstein matter [*29] and 
"determined that federal prosecution of Mr. Epstein's case 
[vials appropriate. Accordingly, Mr. Epstein ha[d] until the 
close of business on Monday, June 30, 2008, to comply with 
the terms and conditions of the agreement between the United 
States and Mr. Epstein." (DE 407 at ¶ 105.) 
On or about June 27, 2008, the Office called Edwards to 
provide notice to his clients regarding the entry of Epstein's 
guilty plea in state court. (DE 407 at 1 107.) According to 
Edwards. the line prosecutor only told him that Epstein was 
pleading guilty to state solicitation of prosecution. He was not 
told that the state plea was related to the federal investigation 
or that the state plea would resolve the federal crimes. 
Edwards claims he was not told his clients could address the 
state court. (Edwards Decl. '] 117-18, DE 416-1.) In contrast, 
the line prosecutor claims she told Edwards that his clients 
could address the state court. (Villafaila Decl. 1 38. DE 403-
19.) 
On or before June 30, 2008, the Office prepared a draft victim 
notification to be sent to the victims. The notification was 
designed to inform the victims of the provisions of the 
deferral of federal prosecution in favor of state charges. [*30] 
The notification letter began by describing Epstein's guilty 
plea in the past tense: "On June 30, 2008, Jeffrey Epstein ... 
entered a plea of guilty to violations of Florida statutes 
forbidding the solicitation of minors to engage in prostitution 
and felony solicitation of prostitution." Later, a substantively 
identical letter was prepared for Epstein's and his counsel's 
review. (DE407 at 1 110.) 
On June 30, 2008, the Office sent an e-mail to Epstein's 
counsel: "The FBI has received several calls regarding the 
Non-Prosecution Agreement. I do not know whether the tide 
of the document was disclosed when the Agreement was filed 
under seal, but the FBI and our office are declining comment 
if asked." (DE 407 at 1 II I.) That same day, Epstein pled 
guilty to state law solicitation of prostitution charges. (DE 407 
at 1 112.) Immediately following the June 30, 2008 hearing, 
the line prosecutor told one of the victims' attorneys that 
Epstein had "pled guilty today in state court." (DE 407 at 1 
113.) Also after the plea, the line prosecutor emailed the 
assistant state attorney a copy of the NPA to be filed under 
seal. (July 1, 2008 email, DE 362-38.) 
On June 30, 2008, based on what she had been [*31] told by 
the Government, Jane Doe 1 thought that the Office was still 
investigating and pursuing her case. She did not receive notice 
that Epstein's state guilty plea affected her rights in any way. 
If she had been told that the state plea had some connection to 
blocking the prosecution of her case, she would have attended 
and tried to object to the judge to prevent that plea from going 
forward. (Jane Doe I Decl. 1 13.) According to the line 
prosecutor, Edwards did not tell her that Jane Doe 1 wanted to 
meet with her before a resolution was reached. (Villafarta 
Dec1.1 37, DE403-19.) 
On July 3, 2008, as specifically directed by the Office. 
Edwards sent a letter to the Office communicating the wishes 
of Jane Doe I. Jane Doe 2, and Jane Doe 5 that federal 
charges be filed against Epstein: "We urge the Attorney 
General and our United States Attorney to consider the 
fundamental import of the vigorous enforcement of our 
Federal laws. We urge you to move forward with the 
traditional 
indictments 
and 
criminal 
prosecution 
commensurate with the crimes Mr. Epstein has committed, 
and we further urge you to take the steps necessary to protect 
our children from this very dangerous sexual predator." I*321 
(DE 407 at 'I 118.) 
On July 7, 2008, the line prosecutor corresponded with 
Epstein's counsel seeking his signed agreement concerning a 
notification letter to the victims before beginning the 
distribution of that letter. (DE 407 at 1 120.) That same day, 
Jane Doe I filed an emergency petition for enforcement of her 
rights under the CVRA. (DE 407 at 1 126.) On July 9, 2008, 
Edwards saw the first reference to the NPA when the 
Government filed its responsive pleading to Jane Doe's 
emergency petition. (Edwards Decl. 1 21.) 
On July 8, 2008, the line prosecutor sent a letter to Epstein's 
counsel stating that victims would be informed about the civil 
compensation provision of the NPA the next day: 
In accordance with the terms of the Non-Prosecution 
Agreement, on June 30, 2008, the United States 
Attorney's Office provided you with a list of thirty-one 
individuals "whom it was prepared to name in an 
Indictment as victims of an enumerated offense by Mr. 
Epstein." . . In deference to your vacation, we allowed 
you a week to provide us with any objections or 
requested modifications of the list and/or the Notification 
language. Yesterday, I contacted you via telephone and 
e-mail, but received no response. [*33] Accordingly, the 
United States hereby notifies you that it will distribute 
the victim notifications tomorrow, July 9, 2008, to each 
of the thirty-two identified victims, either directly or via 
their counsel. 
(DE 407 all 127.) 
On July 9, 2008, Epstein's counsel sent a letter to the line 
prosecutor raising concerns about the notifications, and 
suggesting modifications to the notification letter. Epstein's 
counsel also objected to the victim notification letters 
DAVID SCHOEN 
EFTA00800261

Page 9 of 13 
2019 U.S. Dist. LEXIS 27215, *33 
containing certain information about the NPA. (DE 407 at 1 
128.) The line prosecutor responded: "Without such an 
express Acknowledgment by Mr. Epstein that the notice 
contains the substance of that Agreement, I believe that the 
victims will have justification to petition for the entire 
agreement, which is contrary to the confidentiality clause that 
the parties have signed." (DE 407 at 1 129.) That same day, 
the U.S. Attorney's Office sent victim notification letters to 
Jane Doe I and Jane Doe 5, via their attorney, Edwards. and 
to other identified victims of Epstein. That notification 
contained a written explanation of some of the civil 
compensation provisions of the NPA. The notification did not 
provide the full terms of the NPA. [*34] 
On July 10, 2008, Epstein's counsel continued to protest 
victim notification as evidenced by an email to the line 
prosecutor stating, "we respectfully request a reasonable 
opportunity to review and comment on a draft of the modified 
notification letter you intend to mail before you send it." (DE 
407 at 1 131.) 
On August 10, 2008. Jane Doe 1 and Jane Doe 2 filed a 
motion seeking release of the NPA. (DE 407 at I 136.) On 
August 14, 2008, the line prosecutor emailed Epstein's 
counsel stating that the court has "ordered us to make the 
Agreement available to the plaintiffs." (DE 407 at I 141.) 
On August 18, 2008, Lefkowitz wrote the line prosecutor that 
Epstein objected to disclosure of the terms of the NPA, but 
that Epstein would "cooperate with the government to reach 
an agreement as to substance of the notification to be sent to 
the government's list of individuals. Based on the Agreement, 
the information contained in the notification should be limited 
to (1) the language provided in the Agreement dealing with 
civil restitution (paragraphs 7.10) and (2) the contact 
information of the selected attorney representative. We object 
to the inclusion of additional information about the 
investigation 1*351 of Mr. Epstein, the terms of the 
Agreement other than paragraphs 7-10 and the identity of 
other identified individuals." (DE 407 at 1 143.) On August 
21, 2008, the Government sent a letter to Epstein's counsel 
stating that. "[clopies of the victim notifications will continue 
to be provided to counsel for Mr. Epstein." 
Jane Doe 2 was not informed of the contents of the NPA until 
August 28, 2008. when the line prosecutor provided a copy to 
Edwards. (DE 407 at 1 146.) On September 2, 2008, the line 
prosecutor sent an email to Epstein's counsel stating, "I will 
start sending out the victim notifications today. In accordance 
with your request, I have changed the language regarding the 
victims' right to receive a copy of the Agreement." (DE 407 at 
1 147.) On September 2 and 3, 2008. the Office sent to Jane 
Doe I and other identified victims amended notification 
letters, stating "the United States has agreed to defer federal 
prosecution in favor of this state plea and sentence." (Sept. 3, 
2008 letter, DE 363.66; (DE 407 at 1 148.) 
On September 16, 2008, attorney Jeffrey Herman, who 
represented several Epstein victims, wrote to the line 
prosecutor 
to 
object 
to 
the 
restitution 
procedures 
established [*36] in the NPA after learning that another 
attorney, established through the NPA, would be making 
unsolicited contacts to the victims. Mr. Herman explained that 
the notification letters were "misleading" because they 
referred generally to a waiver of "any other claim for 
damages," without informing them that this waiver might 
include a valuable punitive damages claim against an alleged 
billionaire. (DE 407 at I 152.) On September 17, 2008, the 
line prosecutor sent an email to State Attorney Barry 
Krischer, explaining 
that 
the NPA 
"containIed1 
a 
confidentiality provision that requireled1 us to inform Mr. 
Epstein's counsel before making any disclosure." (DE 407 at I 
153.) 
Around this same time period, Jane Doe 1 and Jane Doe 2 
filed actions in Palm Beach County, seeking money damages 
from Epstein from sexually abusing them. (Petitioners' Resp. 
to Gov't's Statement of Undisputed Material Facts (hereinafter 
"DE 415") at 11 8.9.) Eventually, they received monetary 
settlements of their lawsuits. (DE 415 at 1 12.) 
In moving for summary judgment, the Petitioners make the 
following arguments in support of their contention that the 
Government violated their CVRA rights. The Government 
violated Petitioners' [*37] right to confer under the CVRA:
(I) when the Government was negotiating and signing the 
NPA; (2) when the Government sent letters telling Petitioners 
to be patient while the Government completed its 
investigation and (3) when the Government did not tell the 
victims that the state plea would extinguish the federal case. 
Petitioners also claim the Government violated their right to 
be treated with fairness under the CVRA by concealing the 
negotiations of the MM. Additionally, Petitioners contend the 
Government violated their rights to reasonable and accurate 
notice when it concealed that the NPA and the federal 
investigation were implicated in the state court proceeding. 
In moving for and responding to summary judgment, the 
Government contends that there is no right to notice or 
conferral about a WA; it was reasonable for the Government 
to send letters to victims while continuing to investigate the 
case because the Government could not assume that Epstein 
would plead guilty; and the line prosecutor contacted 
Petitioners' attorneys about the state court plea hearing. The 
Government also claims it did not violate the right to 
reasonable, accurate and timely notice because the CVRA 
DAVID SCHOEN 
EFTA00800262

Page 10 of 13 
2019 U.S. Dist. LEXIS 27215,1'37 
does [*38] not create any right to notice of state court 
proceedings and, in any event, the Government gave notice. 
The Government asserts it did not treat the victims unfairly 
and used its best efforts to comply with the CVRA, including 
complying with the Attorney General's guidelines for victim 
assistance. Furthermore, the Government 
argues 
that 
Petitioners are equitably estopped from challenging the NPA 
because they relied upon the NPA in their state court civil 
actions against Epstein. Lastly, the Government contends that 
Petitioners are judicially estopped from challenging the 
validity of the NPA because they have asserted mutually 
inconsistent positions; namely, that the NPA is invalid in 
federal court but was binding on Epstein in state court. 
H. Summary Judgment Standard 
The Court may grant summary judgment "if the movant 
shows that there is no genuine dispute as to any material fact 
and the movant is entitled to judgment as a matter of law." 
Fed. R. Civ. P. 56(a). The stringent burden of establishing the 
absence of a genuine issue of material fact lies with the 
moving party. Celoter Corp. v. Catrett. 477 U.S. 317. 323. 
106 S. Ct. 2548, 91 L Ed. 2d 265 (19861. The Court should 
not grant summary judgment unless it is clear that a trial is 
unnecessary, Anderson v. Liberty Lobby. Inc.. 477 U.S. 242. 
255. 106 S. Ct. 2505, 91 L Ed. 2d 202 (1986), and any doubts 
in this regard should [*39] be resolved against the moving 
party. Adickes v. S.H. Kress & Co.. 398 U.S. 144. 157. 90 S. 
Ct. 1598. 26 L Ed. 2d 142 (19701 
The movant "bears the initial responsibility of informing the 
district court of the basis for its motion, and identifying those 
portions of [the record] which it believes demonstrate the 
absence of a genuine issue of material fact." Celotex Corp.. 
477 U.S. at 323. To discharge this burden, the movant must 
point out to the Court that there is an absence of evidence to 
support the nonmoving party's case. Id. at 325. 
After the movant has met its burden under Rule 56(a), the 
burden of production shifts and the nonmoving party "must do 
more than simply show that there is some metaphysical doubt 
as to the material facts." Matsushita Electronic Industrial Co. 
v. Zenith Radio Corp.. 475 U.S. 574, 586, 106 S. Ct. 1348, 89 
L Ed. 2d 538 (1986). "A party asserting that a fact cannot be 
or is genuinely disputed must support the assertion by citing 
to particular parts of materials in the record . . or showing 
that the materials cited do not establish the absence or 
presence of a genuine dispute, or that an adverse party cannot 
produce admissible evidence to support the fact." Fed. R. Civ. 
P. 56(c)(1)(A) and al. 
Essentially, so long as the non-moving party has had an ample 
opportunity to conduct discovery, it must come forward with 
affirmative evidence to support its claim. Anderson. 477 U.S. 
at 257. "A mere 'scintilla' of evidence supporting the opposing 
party's position will [*40] not suffice; there must be enough 
of a showing that the jury could reasonably find for that 
party." Walker v. Darby. 911 F.2d 1573. 1577 (11th Cir. 
1990). If the evidence advanced by the nonmoving party "is 
merely colorable, or is not significantly probative, then 
summary judgment may be granted." Anderson. 477 U.S. 242. 
249-50. 106 S. Ct. 2505. 91 L Ed. 2d 202. 
III. Discussion 
The CVRA was designed to protect victims' rights and ensure 
their involvement in the criminal justice process. United 
States v. Moussaout 483 F.3d 220. 234 (4th Cir. 20071• 
Kenna v. U.S. Dist. Court. 435 F.3d 1011. 1016 (9th Cir. 
20061 ("The [CVRA,] was enacted to make crime victims full 
participants in the criminal justice system."). The statute 
enumerates the following ten rights: 
(1) The right to be reasonably protected from the 
accused. 
(2) The right to reasonable, accurate, and timely notice 
of any public court proceeding, or any parole proceeding, 
involving the crime or of any release or escape of the 
accused. 
(3) The right not to be excluded from any such public 
court proceeding, unless the court, after receiving clear 
and convincing evidence, determines that testimony by 
the victim would be materially altered if the victim heard 
other testimony at that proceeding. 
(4) The right to be reasonably heard at any public 
proceeding in the district court involving release, plea. 
sentencing, or any parole proceeding. 
(5) The reasonable right to confer [*41] with the 
attorney for the Government in the case. 
(6) The right to full and timely restitution as provided in 
law. 
(7) The right to proceedings free from unreasonable 
delay. 
(8) The right to be treated with fairness and with respect 
for the victim's dignity and privacy. 
(9) The right to be informed in a timely manner of any 
plea bargain or deferred prosecution agreement. 
(10) The right to be informed of the rights under this 
section and the services described in section 503(c) of 
the Victims' Rights and Restitution Act of 1990 (42 
U.S.C. 10607(c)) and provided contact information for 
the Office of the Victims' Rights Ombudsman of the 
Department of Justice. 
DAVID SCHOEN 
EFTA00800263

Page II of 13 
2019 U.S. Dist. LEXIS 27215, *41 
18 U.S.C. § 3771(a1. 
This Court previously held the following with respect to the 
CVRA: First, the rights under the CVRA attach before the 
Government brings formal charges against a defendant. Does 
v. United States. 817 F. Sapp. 2d 1337. 1341 (SD. Fla. 20111. 
Second, the CVRA authorizes the rescission or "reopening" of 
a prosecutorial agreement, including a non-prosecution 
agreement, reached in violation of a prosecutors conferral 
obligations under the statute. Doe v. United States. 950 F. 
Stipp. 2d 1262, 1267 (S.D. Fla. 2013). Third section 
3771(d1(5) of the CVRA authorizes the setting aside of pre-
charge prosecutorial agreements, despite the fact that the 
particular statutory enforcement provision expressly refers to 
the reopening of a plea [*421 or sentence. Id. at 1267. Fourth, 
the "reasonable right to confer . . . in the case" extends to the 
pm-charge state of criminal investigations and proceedings. 
Id. Fifth, the federal sex offense crimes involving minors 
allegedly committed by Epstein renders these Petitioners 
crime victims under the CVRA. Id. at 1269. Sixth, "questions 
pertaining to [the] equitable defense's] are properly left for 
resolution after development of a full evidentiary record." Id 
at 1269 n. 6. 
Here, it is undisputed that the Government entered into a NPA 
with Epstein without conferring with Petitioners during its 
negotiation and signing. Instead, the Government sent letters 
to the victims requesting their "patience" with the 
investigation even after the Government entered into the 
NPA. At a bare minimum, the CVRA required the 
Government to inform Petitioners that it intended to enter into 
an agreement not to prosecute Epstein. Although the binding 
effect of the NPA was contingent upon Epstein pleading 
guilty to the state charges, that contingency was out of the 
control of the Government. The Government's hands were 
permanently tied if Epstein fulfilled his obligations under the 
NPA. Thus, Petitioners and the other victims should have 
been 1*431 notified of the Government's intention to take that 
course of action before it bound itself under the NPA. Had the 
Petitioners been informed about the Government's intention to 
forego federal prosecution of Epstein in deference to him 
pleading guilty to state charges, Petitioners could hate 
conferred with the attorney for the Government and provided 
input. In re Dean, 527 F.34 391, 394 (5th Cir. 20081 (them 
are rights under the CVRA including the "reasonable right to 
confer with the attorney for the Government"). Hence, the 
Government would have been able to "ascertain the victims' 
views on the possible details of the [non-prosecution 
agreement]." Id. Indeed, it is this type of communication 
between prosecutors and victims that was intended by the 
passage of the CVRA. See United States v. Heaton. 458 F. 
Stipp. 2d 1271 (D. Utah 20061(government motion to dismiss 
charge of using facility of interstate commerce to entice 
minors to engage in unlawful sexual activity would not be 
granted until government consulted with victim). United 
States v. Mgrassia. No. CR-044)455ADSJO. 2005 U.S. Dist. 
LEXIS 27817. 2005 WL 2875220, at *17 n. 11 (ED.N.Y. Sept. 
7. 20051 (Senate debate supports the view that the 
contemplated mechanism for victims to obtain information on 
which to base their input was conferral with the prosecutor 
concerning any critical stage or disposition of the case). [*44] 
Particularly problematic was the Government's decision to 
conceal the existence of the NM and mislead the victims to 
believe that federal prosecution was still a possibility!' When 
the Government gives information to victims, it cannot be 
misleading. While the Government spent untold hours 
negotiating the terms and implications of the NPA with 
Epstein's attorneys, scant information was shared with 
victims. Instead, the victims were told to be "patient" while 
the investigation proceeded. 
The Government, however, interprets the CVRA as only 
obligating the prosecutor to answer inquiries by a crime 
victim and does not impose a duty on the prosecutor to give 
notice about case developments, other than what is required in 
section 3771(0(2). Such an interpretation is in direct 
contravention of the intent of the CVRA. See Ingrassia, 2005 
U..S. Dirt. LEXIS 27817. 2005 WL 2875220. at *17 n.11 
(Senate debate explaining the right to confer is "intended to 
be expansive" including the right of victim to confer 
"concerning any critical state of disposition of the case"). In 
any event, no meaningful conferral could take place as long as 
the Government chose to conceal the existence of the NPA 
from the victims.5
Nor does the Court agree with the Government that the 2015 
amendment [*45] to the CVRA. section 3771(0(91 which 
gave victims the "right to be informed in a timely manner of 
any plea bargain or deferred prosecution agreement" 
'Even if the Court accepted the Government's version of the facts 
relative to the Agent having told Jane Doe I the "main terms" of the 
NPA (which is left undefined), the victims were not told about it 
until after it was signed and the Government was bound. This 
precluded the Government from obtaining any input from the 
victims. 
s The Government devotes time to distinguishing between the words 
"confer and "notice" and suggesting that "confer" is more limited in 
scope than "notice." Nothing about the definition of confer, however. 
suggests it is limited to one party bearing the burden of 
communication. 
See 
Merriam-Webster 
Online 
Dictionary. 
hups://www.merriam-webster.com/ dictionary (last visited January 
7. 2019) ("to compare views or take counsel"): Blacks Law 
Dictionary (10th ed. 2014) ("to hold a conference, to consult with 
one another"). 
DAVID SCHOEN 
EFTA00800264

Page 12 of 13 
2019 U.S. Dist. LEXIS 27215,'45 
specifically excluded the right of victims to be informed of a 
non-prosecution agreement. Prior to this amendment, this 
Court held that the right to confer extended to the pm-charge 
state of criminal investigations and proceedings. Doe. 950 F. 
Stipp. 2d at 1267• see also 157 Cong. Rec. S7060-01, 157 
Cong. Rec. S7060-01, 57060 (CVRA co-sponsor Senator Jon 
Kyl's 2011 letter to the Attorney General, explaining that 
"Congress intended the CVRA to broadly protect crime 
victims throughout the criminal justice process-from the 
investigative phases to the final conclusion of a case.") 
The 2015 amendment did not serve to repeal or restrict the 
obligations of the Government to confer with victims in the 
early stages of a case. Instead, the 2015 amendment clarified 
that certain events, such as plea agreements or deferred 
prosecution agreements, must be conveyed to the crime 
victim. Put another way, the 2015 amendment codified what 
the courts had been interpreting the CVRA to require, such as 
entitlement to notice of a plea bargain. See In re Dean. 527 
F.3d at 394 ("the government should have fashioned a 
reasonable way to [*46] inform the victims of the likelihood 
of criminal charges and to ascertain the victims' views on the 
possible details of a plea bargain"); United States v. Oakum. 
No. CRIM. 3:08CR132. 2009 U.S. Dist. LEXIS 24401. 2009 
WL 790042. at *2 (ED. Va. Mar. 24. 2009) (the statutory 
language of the CVRA gives the victims' rights before the 
accepting of plea agreements). 
To the extent the Government relies upon the "interpretive 
canon, expressio unites est exchtsio alterius, 'expressing one 
item of [an] associated group or series excludes another left 
unmentioned"' the Court is not persuaded. Chevron U.S.A. 
Inc. v. Echazabal 536 U.S. 73, 80, 122 S. Ct. 2045, 153 L 
Ed. 2d 82 (2002) (quoting United States v. Vonn. 535 U.S. 55. 
65. 122 S. Ct. 1043. 152 L Ed. 2d 90 (2002)1. "The force of 
any negative implication . . . depends on context." Marx v. 
General Revenue Corn., 568 U.S. 371, 381, 133 S. Ct. 1166 
185 L Ed. 2d 242 (2013). "[T]he expressio unius canon does 
not apply unless it is fair to suppose that Congress considered 
the unnamed possibility and meant to say no to it, and that the 
canon can be overcome by contrary indications that adopting 
a particular rule or statute was probably not meant to signal 
any exclusion." Id. (internal citations and quotation marks 
omitted). 
The expansive context of the CVRA lends itself to only one 
interpretation; namely, that victims should be notified of 
significant events resulting in resolution of their case without 
a trial. See Kenna v. United States Dist. Court. 435 F.3d 
1011. 1016 (9th Cir. 2006) ("[t]he statute was enacted to 
make crime victims full participants [*47] in the criminal 
justice system"). Heaton, 458 F. Supp. 2d at 1273 (the right to 
confer is "not limited to particular proceedings" but is 
"expansive" and applies broadly to "any critical stage or 
disposition of the case"). Reading into the statute a negative 
implication that victims need not be informed of non-
prosecution agreements, and only informed of the more 
common events of plea bargains or deferred prosecution 
agreements, would be inconsistent with the goal of the 
CVRA.6 In the context of plea agreements, the CVRA 
provides victims with rights prior to the acceptance of plea 
agreements. See In re Dean. 527 F.3d at 394. United States v. 
Oakum, No. CRIM. 3:08CR132, 2009 U.S. Dist. LEX1S 
24401. 2009 WL 790042. at *2 (ED. Va. Mar. 24. 20091. 
Furthermore, victims obtain rights under the CVRA even 
before prosecution. Okunt 2009 U.S. Dist. LEX1S 24401 
2009 WL 790042. at *2 (citing In re Dean. 527 F.3d at 394). 
Based on this authority, the Court concludes that the CVRA 
must extend to conferral about non-prosecution agreements. 
Next, the Government claims it did not violate the right to 
confer when, in January of 2008, it sent letters to the victims 
counseling patience because, at that time, Epstein's attorneys 
were seeking review of the NPA at higher levels within the 
Department of Justice. As indicated previously, however, at 
this point, the Government had bound itself to the terms of the 
NPA unless [*48] Epstein failed to comply with its terms. It 
was a material omission for the Government to suggest to the 
victims that they have patience relative to an investigation 
about which it had already bound itself not to prosecute. 
While Epstein was within his rights to attempt to persuade 
higher authorities within the Department of Justice to overrule 
the prosecutorial decisions of the U. S. Attorney's Office in 
the Southern District of Florida, the CVRA was designed to 
give the victims the same opportunity to attempt to affect 
prosecutorial decisions before they became final. Instead, the 
Office engaged in lengthy negotiations with Epstein that 
included repeated assurances that the NPA would not be 
"made public or filed with the Court." (DE 407 at 'I 31.) 
Nor did the Justice Department guidelines create an 
exemption from the CRVA's statutory requirements. Although 
the Government points to guidelines that conflicted with the 
requirements of the CVRA (by restricting CVRA rights until 
after a formal indictment), the Court is not persuaded that the 
guidelines were the basis for the Government's decision to 
withhold information about the NPA from the victims. If that 
had been the case, the Government [*49] would not have sent 
6 A NPA entered into without notice has a more damaging impact on 
the victims than a plea agreement entered into without notice. When 
a plea agreement is entered into without notice, the victims will at 
least have an opportunity to provide input to a judge at sentencing. 
Once a NPA is entered into without notice, the matter is closed and 
the victims have no opportunity to be heard regarding any aspect of 
the case. 
DAVID SCHOEN 
EFTA00800265

Page 13 of 13 
2019 U.S. Dist. LEXIS 27215, *49 
the victim letters telling them that they had rights protected 
under the CVRA. Nor would they have told Epstein's 
attorneys that it had obligations to notify the victims. In any 
event, an agency's own "'interpretation of a statute cannot 
supersede the language chosen by Congress." Mohasco Corp. 
v. Silver. 447 U.S. 807. 825. 100 S. Ct. 2486. 65 L Ed. 2d 532 
(19801. 
Next, the Court rejects the Government's contention that Jane 
Doe 2 is not protected by the CVRA because she made 
statements favorable to Epstein early in the investigation? 
There is no dispute that Epstein sexually abused Jane Doe 2 
while she was a minor. Therefore, regardless of her comments 
to the prosecutor, she was a victim. See 18 U.S.C. S 3771(e1 
(the CVRA defines a victim as "a person directly and 
proximately harmed as a result of the commission of a Federal 
offense")• In re Stewart. 552 F.3d 1285. 1288 (11th Or. 
20081 ("to determine a crime victim, then, first, we identify 
the behavior constituting 'commission of a Federal offense.' 
Second, we identify the direct and proximate effects of that 
behavior on parties other than the United States. If the 
criminal behavior causes a party direct and proximate harmful 
effects, the party is a victim under the CVRA."). 
The Court need not resolve the factual questions surrounding 
what and when the victims [*50] were told about the state 
court proceeding and whether a state court proceeding is 
covered by the CVRA. Under the facts of this case, once the 
Government failed to advise the victims about its intention to 
enter into the NPA, a violation of the CVRA occurred. 
Nor does the Court need to consider the Government's 
estoppel arguments at this time. These arguments relate only 
to the remedy, and not the determination of whether there was 
a CVRA violation. Therefore, the Court will address this issue 
at the appropriate juncture. 
Lastly, the Court will address the Government's argument that 
its prosecutorial discretion permitted it to enter into the NPA. 
The Government correctly notes that the CVRA provides that 
"[niothing in this chapter shall be construed to impair the 
prosecutorial discretion of the Attorney General or any officer 
under his direction." 18 U.S.C.A. § 3774(11(61. The Court is 
not ruling that the decision not to prosecute was improper. 
The Court is simply ruling that, under the facts of this case, 
there was a violation of the victims rights under the CVRA. 
IV. Conclusion 
'In fact, the Office considered Jane Doe 2 a victim as early as 
August of 2006 when it sent her a CVRA letter. 
Accordingly, it is hereby ORDERED AND ADJUDGED as 
follows: 
I) Jane Doe 1 and Jane Doe 2's Motion for Partial 
Summary Judgment (DE 361) [*511 is GRANTED to 
the extent that Petitioners' right to conferral under the 
CVRA was violated. 
2) The United States's Cross-Motion for Summary 
Judgment (DE 408) is DENIED. 
3) Jane Doe I and Jane Doe 2's Motion to Compel 
Answers 
(DE 
348) 
is 
DENIED 
WITHOUT 
PREJUDICE. 
4) Jane Doe I and Jane Doe 2's Motion for Finding 
Waiver of Work Product and Similar Protections by 
Government and for Production of Documents (DE 414) 
is DENIED WITHOUT PREJUDICE. 
5) The parties should confer and inform the Court within 
15 days of the date of entry of this Order how they 
wish to proceed on determining the issue of what 
remedy, if any, should be applied in view of the 
violation. 
DONE AND ORDERED in Chambers at West Palm Beach, 
Palm Beach County, Florida, this 21 day of February, 2019. st 
/s/ Kenneth A. Marra 
KENNETH A. MARRA 
United States District Judge 
End of Document 
DAVID SCHOEN 
EFTA00800266