Case: 13-12923 - Date Filed: 07/02/2013 - US Court of Appeals - 11th Circuit - Jane Doe 1 and 2 vs. USA - Roy Black Et Al. As Intervenors-Appellants
Case: 13-12923 - Date Filed: 07/02/2013 - US Court of Appeals - 11th Circuit - Jane Doe 1 and 2 vs. USA - Roy Black Et Al. As Intervenors-Appellants
Case: 13-12923 - Date Filed: 07/02/2013 - US Court of Appeals - 11th Circuit - Jane Doe 1 and 2 vs. USA - Roy Black Et Al. As Intervenors-Appellants
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No. 13-12923
IN THE
Paul G. Cassell
S. J. Quinney College of Law at
the University of Utah
332 S. 1400 E., Room 101
Salt Lake City, UT 84112
(801) 585-5202
cassellp@law.utah.edu
Attorneys for Plaintiffs-Appellees Jane Doe No.1 and Jane Doe No. 2
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TABLE OF CONTENTS
II.
B.
CONCLUSION ............................................................................................................................. 20
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TABLE OF AUTHORITIES
Cases
Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) .......................................22
Florida Wildlife Federation, Inc. v. South Florida Water Management Dist., 647
F.3d 1296, 1302 (11th Cir. 2011) .........................................................................21
Holt-Orsted v. City of Dickson, 641 F.3d 230, 236-40 (6th Cir. 2011) ...... 14, 15, 19
In re Sealed Case, ---F.3d---, 2013 WL 2120157, at *5 (D.C. Cir. 2013) ....... 13, 17
Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235,
1265 (11th Cir. 2008) ..........................................................................................21
Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009) ........................ passim
Natl Super Spuds, Inc. v. N.Y. Mercantile Exch., 591 F.2d 174, 178 (2d Cir.1979)
..............................................................................................................................13
Perlman v. United States, 247 U.S. 7 (1918)................................................... passim
United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1207 (10th Cir. 2013) . 17,
19
Wilson v. OBrien, 621 F.3d 641, 643 (7th Cir. 2010) ............................................14
Statutes
Fla. Stat. 796.07 and 796.03 .................................................................................4
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Other Authorities
18 U.S.C 3731 ..........................................................................................................18
28 U.S.C. 1291 ............................................................................................... 10, 12
28 U.S.C. 1292(b) .................................................................................................10
Crime Victims Rights Act (CVRA), 18 U.S.C. 3771........................................1, 5
Grand Jury Proceedings, 142 F.3d 1416, 1419 (11th Cir. 1998)............................15
In re Federal Grand Jury Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488 (11th
Cir. 1992) ..............................................................................................................16
In re Grand Jury Proceedings in the Matter of Fine, 641 F.2d 199 (11th Cir. 1981)
..............................................................................................................................16
In re Grand Jury Proceedings, 528 F.2d 983 (11th Cir. 1976) ...............................16
In re Grand Jury Proceedings, 832 F.2d 554 (11th Cir. 1987) ...............................16
In re Grand Jury Subpoenas, 142 F.3d 1416 (11th Cir. 1998)................................16
Rules
Fed. R. Crim. P. 11(f).................................................................................................9
Fed. R. Evid. 410 .................................................................................................9, 15
Local Rule 26.1(g). ..................................................................................................19
iii
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The District Court handling the case (Marra, J.) has found that ruling on the
victims petition requires an appropriate factual record.
He accordingly has
ordered the U.S. Attorneys Office to provide to the victims certain correspondence
between the Office and Epsteins lawyers regarding the plea bargain. Epstein and
his attorneys (hereinafter collectively referred to as Epstein) intervened to
challenge the release of that correspondence, and the district court rejected their
arguments against release.
Epstein has now filed this interlocutory appeal, seeking reversal of the
District Courts discovery order providing the correspondence to the victims. This
Court should dismiss Epsteins interlocutory appeal because jurisdiction does not
exist to hear the appeal challenging the discovery ruling at this time. Under the
Supreme Courts recent decision in Mohawk Industries, Inc. v. Carpenter, 130 S.
Ct. 599 (2009), it is clear that someone (like Epstein) who is litigating in a case
cannot take an immediate, interlocutory appeal of an alleged privilege issue, but
must instead wait to the conclusion of the case to (if necessary) seek appellate
review. In light of Mohawks clear holding on this point, Epsteins effort to rely on
Perlman v. United States, 247 U.S. 7 (1918), to seek interlocutory review is
unavailing.
Epstein has also failed to provide any evidentiary support for the conclusion
that he will be injured if the correspondence is released to the victims.
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For both of these reasons, the Court should accordingly dismiss Epsteins
appeal for lack of jurisdiction.
FACTUAL BACKGROUND
In the district court, the victims have alleged the following facts, which the
district court properly assumed to be true in ruling on Epsteins pre-trial motion.1
The Epstein Investigation and the Non-Prosecution Agreement
In 2006, the Federal Bureau of Investigation opened an investigation into
allegations that Epstein had been sexually abusing underage girls over the
proceeding five years. The United States Attorney's Office for the Southern
District of Florida accepted the case for prosecution, and in June, 2007 and
August, 2007, the FBI issued victim notification letters to the petitioners, Jane
Doe No. 1 and Jane Doe No.2.
Extensive plea discussions then ensued between the U.S. Attorneys Office
and Epstein, a politically-connected billionaire represented by a battery of highpowered attorneys. On September 24, 2007, the U.S. Attorneys Office entered
into a non-prosecution agreement with Epstein, in which it agreed not to file
any federal charges against Epstein in exchange for Epstein pleading guilty
All of the following facts are taken from the District Courts recent decision,
denying the Governments Motion to Dismiss, District Court Docket Entry (DE)
189, and related orders.
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to two minor state offenses. 2 The Office entered into this Agreement without
first conferring with victims, and without alerting them to the existence of the
agreement, either before or promptly after the fact facts that the Government
apparently concedes. The U.S. Attorneys Office then kept the victims in the
dark about the agreement for roughly nine months, making no mention of the
NPA in intervening correspondence and verbal communications between the
victims, the FBI, and the local United States Attorney's Office. The postagreement deception includes a May 30, 2008, letter from the U.S. Attorneys
Office to a recognized victim advising that the case is currently under
investigation and that it can be a lengthy process and we request your
continued patience while we conduct a thorough investigation. In addition, the
U.S. Attorneys Office sent a letter to the victims counsel in June, 2008, asking
them to submit a letter expressing the victims views on why federal charges
should be filed against Epstein without disclosing that the U.S. Attorneys
Office had already entered into the NPA blocking the filing of such charges.
On June 27, 2008, the Assistant United States Attorney assigned to the
Epstein case contacted victims counsel to advise that Epstein was scheduled to
plead guilty to certain state court charges on June 30, 2008, again without
mentioning that the anticipated plea in the state court was the result of the pre2
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On July 11, 2008, the District Court held a hearing on the initial petition.
During the course of that hearing, the Court allowed Jane Doe No. 2 to be added
as an additional victim. The Government acknowledged at that time that both
Jane Doe No. 1 and Jane Doe No. 2 met the CVRAs definition of crime
victims.
Over the following months, the victims attempted (unsuccessfully) to
negotiate an agreed statement of facts with the Government. They also pursued
collateral civil claims against Epstein, during which they also learned facts
relevant to their CVRA suit.
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DE 93.
Subsequently,
Epstein and his attorneys filed a motion for a protective order, asking the Court to
bar release of the correspondence. DE 160. At no point, however, did Epstein or
his attorneys provide any affidavits or other factual information establishing that
the correspondence was confidential.
While these intervention motions were pending, on September 26, 2011, the
District Court entered its order partially granting the victims motion for a
finding of violations of the CVRA, recognizing that the CVRA can apply before
formal charges are filed against an accused. DE 99. The court, however, denied
the victims motion to have their facts accepted, instead deferring ruling on the
merits of the victims claims pending development of a full factual record.
Based on the Governments agreement that it was empowered to do so, the court
also authorized the victims to conduct limited discovery in the form of requests
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for production of documents and requests for admissions directed to the U.S.
Attorney's Office, with leave for either party to request additional discovery
as appropriate. DE 99 at 11. The victims therefore requested discovery from
the Government, including correspondence between the Government and
Epsteins attorney regarding the non-prosecution agreement.
On November 8, 2011, the day on which the Government was due to
produce discovery, it instead moved to dismiss the entire CVRA proceeding for
alleged lack of subject matter jurisdiction (DE 119), and successfully sought a stay
of discovery pending resolution of that motion (DE 121, 123).
In its motion to
dismiss, the government contended that the victims lacked standing to seek
redress for the violations of the CVRA. The victims filed a response. DE 127.
On March 29, 2012, the district court turned to the motions to intervene,
granting both Epsteins motion to intervene (DE 159) and his attorneys motion to
intervene (DE 158). The Court emphasized, however, that the question of the
merits of the objections raised remained to be determined.
After additional pleadings and motions, on June 18, 2013, the district court
denied Epsteins efforts to bar release of the plea bargain correspondence. DE 188.
The district court began by noting that the same arguments that Epstein was raising
to bar disclosure of the correspondence had previously been rejected in one of the
victims parallel federal civil lawsuits. The District Court then rejected Epsteins
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argument that the correspondence was protected under Fed. R. Evid. 410, because
that Rule by its on terms does not apply in situations where a defendant later pleads
guilty. The District Court next rejected Epsteins argument that it should invent a
new plea negotiations privilege that would apply to the correspondence,
explaining that Congress has already addressed the competing policy interests
raised by plea discussion evidence with the passage of the plea-statement rules
found at Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410, which generally prohibits
admission at trial of a defendants statements made during plea discussions,
without carving out any special privilege relating to plea discussion materials.
Considering the Congressional forbearance on this issue and the presumptively
public nature of plea agreements in this District , this court declines the
intervenors invitation to expand Rule 410 by crafting a federal common law
privilege for plea discussions. DE 188 at 7-8.
The next day, the District Court entered a detailed written opinion denying
the Governments motion to dismiss. DE 189. After carefully reviewing the
CVRAs remedial provisions, the Court explained that the CVRA is properly
interpreted to authorize the rescission or re-opening of a prosecutorial agreement
including a non-prosecution agreement reached in violation of the prosecutors
conferral obligations under the statute. DE 189 at 7. In light of this conclusion,
the District Court explained that it was then obligated to decide whether, as crime
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victims, petitioners have asserted valid reasons why the court should vacate or reopen the non-prosecution agreement reached between Epstein and the [U.S.
Attorneys Office]. Whether the evidentiary proofs will entitle them to that relief
is a question properly reserved for determination upon a fully developed
evidentiary record. DE 189 at 11-12. The Court then entered on order lifting its
previous stay of discovery, and ordering the Government to begin to produce the
requested discovery. DE 190.
On June 27, 2013, Epstein and his attorneys filed a notice of appeal from the
District Courts denial of efforts of block release of the plea bargain
correspondence. DEs 194-96. Epstein also filed for a stay pending appeal (DE
193), and the victims filed a response in opposition to that request (DE 198).
ARGUMENT
I.
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Not only is the exception narrow, but it has also been regarded as Delphic by
no less an authority than Judge Friendly. See In re Sealed Case, ---F.3d---, 2013
WL 2120157, at *5 (D.C. Cir. 2013) (refusing to read Perlman expansively, citing
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Natl Super Spuds, Inc. v. N.Y. Mercantile Exch., 591 F.2d 174, 178 (2d Cir.1979)
(Friendly, J.)).
5
This Court has not discussed Perlman recently.
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case. Indeed, Epstein has announced that he will seek to intervene further in this
case should any effort be made by the victims to seek a remedy that would harm
him. See, e.g., DE 108 at 13 n.3 (claiming that Epstein has an interest in the
non-prosecution agreement and that his interests would later become ripe if the
District Court were to consider invalidating that agreement). Of course, this point
only underscores the fact that harm to Epstein may never occur, as it is uncertain at
this point in the litigation whether the district court will determine to invalidate the
agreement. Avoiding unnecessary appellate court review of an issue that may
never become ripe is one of the usual benefits of deferring appeal until litigation
concludes. Mohawk, 130 S. Ct. at 605 . As a result of his current posture in this
case, Epstein can (if allowed to intervene later) appeal any adverse privilege ruling
that ends up harming him at the conclusion of this case. Accordingly, under
Mohawk, this Court lacks jurisdiction to hear any interlocutory appeal from
Epstein now.
B.
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The first hurdle that Epstein cannot clear is the fact that the Perlman
doctrine applies to claims of privilege, not other ancillary discovery or evidentiary
claims. See, e.g., In re Grand Jury Proceedings, 142 F.3d 1416, 1419 (11th Cir.
1998) (applying Perlman in context of attorney-client privilege claim). Epstein is
not seeking to take an interlocutory appeal of what is truly a privilege issue.
Instead, he first purports to appeal an issue regarding the applicability of Rule 410
of the Federal Rules of Evidence, which makes some plea discussions not
admissible in certain situations. See Fed. R. Evid. 410 (In a civil or criminal
case, evidence of the following is not admissible . . . .). Thus, Rule 410 does not
purport to protect certain plea discussions from disclosure; it only protects against
their introduction into evidence. By taking appeal of an issue regarding the rules
governing the admissibility of evidence, Epstein obviously falls outside the
parameters of the Perlman doctrine. See, e.g., United States v. Copar Pumice Co.,
Inc., 714 F.3d 1197, 1207 (10th Cir. 2013) (discussing how Perlman doctrine
applies only to situations where a third party has a justiciable interest in
preventing a third party's disclosure of documents).
Epstein also purports to appeal an issue of whether the District Court erred
in failing to invent a brand new privilege for communications in the course of plea
negotiations. But here again, such a speculative claim falls outside the reach of the
Perlman doctrine. Perlman applies to someone who holds a privilege, not someone
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who is arguing for a new privilege. See In re Sealed Case, ---F.3d---, 2013 WL
2120157 at *5 (D.C. Cir. 2013) (Typically, Perlman permits a privilege-holder to
appeal a disclosure order directed at a disinterested third party . . . .) (emphasis
added)). We are aware of no case (and Epstein cited none below) in which an
interlocutory appeal was allowed under Perlman by a party who wants to create a
new privilege, rather than defend an existing one.
In sum, Epstein seeks to take an interlocutory appeal of an evidentiary issue
and a privilege-creation issue, neither of which fall within the narrow Perlman
doctrine.
2.
A case brought by crime victims to enforce their rights under the CVRA is
not subject to the Perlman doctrine. Perlman applies in situations involving grand
jury subpoenas. For example, the five cases from this Circuit discussing Perlman
appeals over the last fifty years have all involved grand jury subpoenas. In re
Grand Jury Subpoenas, 142 F.3d 1416 (11th Cir. 1998); In re Federal Grand Jury
Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488 (11th Cir. 1992); In re Grand Jury
Proceedings, 832 F.2d 554 (11th Cir. 1987); In re Grand Jury Proceedings in the
Matter of Fine, 641 F.2d 199 (11th Cir. 1981); In re Grand Jury Proceedings, 528
F.2d 983 (11th Cir. 1976). This Circuit is not unusual in this regard. As the Tenth
Circuit explained a few weeks ago: We are aware of no case . . . that extends
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Yet another reason Epstein cannot take an interlocutory appeal is that this is
not a situation where a disinterested third party has the correspondence in question.
Instead, the correspondence is held by a party to this action: the Government.
It is generally agreed that the Perlman rule applies only when the privilege
holder is powerless to avert the mischief of a district courts discovery order
because the materials in question are held by a disinterested third party. HoltOrsted v. City of Dickson, 641 F.3d 230, 239 (6th Cir. 2011) (internal quotations
omitted) (emphasis added). That is not the case here. The Government is not a
disinterested third party to this lawsuit: To the contrary, it is a party which is
actively litigating in opposition to the victims claims. Accordingly, should any
improper use be made of correspondence between it and Epstein, then the
Government will no doubt point that out to the district court or seek further
appellate review at the end of this case.
Indeed, under Epsteins theory, the Government is apparently a co-holder of
the privilege in question. Epstein has asked this Court to invent a new privilege
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for plea negotiations (DE 193 at 10), which presumably would extend not just to
defense counsel but also to prosecutors.
disinterested in the asserted privilege, but in fact would possess the privilege if
Epsteins theory were to be recognized. 6 Perlman is inapplicable for this reason as
well.
II.
harmed if the plea bargain correspondence were to be provided to the victims. But
he never offered any facts surrounding the alleged confidentiality of the
correspondence, much less facts showing how he would be injured if the victims
reviewed that correspondence. He has accordingly failed to provide any evidence
of an injury that would warrant appellate jurisdiction. His appeal must
accordingly be dismissed for lack of subject matter jurisdiction. See, e.g., Florida
Wildlife Federation, Inc. v. South Florida Water Management Dist., 647 F.3d
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1296, 1302 (11th Cir. 2011) (court has jurisdiction to hear a suit only where
evidence establishes that a claimant has suffered an injury in fact that is . . .
concrete and particularized . . . .) (internal quotation omitted).
The ordinary procedure for establishing privilege is to provide not only a
privilege log, but more important an affidavit regarding the confidential nature of
the allegedly privileged materials.
availability of affidavits and the [applicable Privilege] Index, combined with the in
camera viewing, the district court had an adequate basis to determine the privileges
asserted . . . .). Here Epstein has failed to provide the required privilege log under
the Local Rules of the District Court. See Local Rule 26.1(g). But more broadly,
he has not provided any factual support (i.e., affidavits or similar evidence) from
which this Court could conclude that he will be injured by the release of the
correspondence.
Epsteins failure to provide such evidentiary materials is not merely a
procedural defect, but apparently a deliberate ploy to avoid placing in the record
the understanding of his attorneys and him about whether the prosecutors were
statutorily obligated to communicate with the victims. The victims have alleged
(with evidentiary support) that Epstein was well aware that the CVRA required
prosecutors to confer with victims and that he pressured the prosecutors into
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For Epstein to
contest this allegation, he would have to provide affidavits (from both his attorneys
and him) that he believed that the prosecutors would keep everything that they
discussed during plea bargaining secret from the victims. Such affidavits would be
in contradiction with the limited factual record that exists in this case at this point,
which is presumably why Epstein has not provided any factual record about the
confidentiality of the materials at issue.
But regardless of the reasons for Epsteins failure to build a factual record,
the simple fact at this point is that he has failed to create the necessary factual
support from which this Court could find that he will be injured if the
correspondence is provided to the victims. See Bogle v. McClure, 332 F.3d 1347,
1358 (11th Cir. 2003) (noting privilege holder not excused from meeting their
burden of proving the communication confidential and within the attorney-client
privilege). His appeal must accordingly be dismissed for lack of subject matter
jurisdiction.7
CONCLUSION
For all the foregoing reasons, the Court should dismiss Epstein's
interlocutory appeal for lack of jurisdiction.
7
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CERTIFICATE OF SERVICE
The foregoing document was served on July 2, 2013, on the following using
the Courts CM/ECF system:
Dexter Lee
A. Marie Villafaa
Assistant U.S. Attorneys
500 S. Australian Ave., Suite 400
West Palm Beach, FL 33401
(561) 820-8711
Fax: (561) 820-8777
E-mail: Dexter.Lee@usdoj.gov
E-mail: ann.marie.c.villafana@usdoj.gov
Attorneys for the Government
Roy Black, Esq.
Jackie Perczek, Esq.
Black, Srebnick, Kornspan & Stumpf, P.A.
201 South Biscayne Boulevard
Suite 1300
Miami, FL 33131
(305) 37106421
(305) 358-2006
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