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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 08-CV-80811-MARRA/JOHNSON¶
Plaintiff,¶
V.¶
JEFFREY EPSTEIN and¶
Defendants,¶
DEFENDANT EPSTEIN’S REPLY TO PLAINTIFF’S MEMORANDUM IN RESPONSE TO DEFENDANT, JEFFREY EPSTEIN’S, MOTION TO DISMISS FIRST AMEDNED COMPLAINT FOR FAIURE TO STATE A CAUSE OF ACTION, AND MOTION FOR MORE DEFINITE STATEMENT; MOTION TO STRIKE, AND SUPPORTING MEMORANDUM OF LAW, (dated April 13, 2009)¶
Defendant, JEFFREY EPSTEIN, (“EPSTEIN”), by and through his undersigned counsel, files his reply to Plaintiff’s Memorandum in Response to Defendant, JEFFREY EPSTEIN’s, Motion to Dismiss First Amended Complaint For Failure to State A Cause of Action; And Motion for More Definite Statement; Motion to Strike, And Supporting Memorandum of Law, dated April 13, 2009, (hereinafter “Plaintiff’s response”). In reply to Plaintiff’s response and further supporting Defendant’s motion to dismiss Count I through XXXI of Plaintiff’s First Amended Complaint for failure to state a cause of action, and for more definite statement, or to strike, [DE 47], dated April 12, 2009, (hereinafter “Defendant’s motion”), Defendant states:¶
I. The 2003 version of 18 U.S.C. §2255 applies to this action.¶
A.¶
The statute in affect during the time the alleged acts occurred is the applicable version of 18 U.S.C. §2255; in this action – the 2003 version (quoted at p. 7,¶
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These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for **1498 the Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Ex Post Facto Clause not only ensures that individuals have “fair warning” about the effect of criminal statutes, but also “restricts governmental power by restraining arbitrary and potentially vindictive legislation.” Id., at 28-29, 101 S.Ct., at 963-964 (citations omitted). FN20¶
FN20. See Richmond v. J. A. Croson Co., 488 U.S. 469, 513-514, 109 S.Ct. 706, 732, 102 L.Ed.2d 854 (1989) (“Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct. The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens. It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed”) (STEVENS, J., concurring in part and concurring in judgment); James v. United States, 366 U.S. 213, 247, n. 3, 81 S.Ct. 1052, 1052, n. 3, 6 L.Ed.2d 246 (1961) (retroactive punitive measures may reflect “a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons”).¶
As discussed more fully below herein, these well entrenched constitutional protections and presumptions against retroactive application of legislation establish that the version of 18 U.S.C. §2255 (2003) in effect at the time of the alleged conduct applies to the instant action, and not the amended version as claimed by Plaintiff.¶
B.¶
Not only is there no clear express intent stating that the statute is to apply retroactively, but applying the current version of the statute, as amended in 2006, would be in clear violation of the Ex Post Facto Clause of the United States Constitution as it would be applied to events occurring before its enactment and would increase the¶
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2006 amended version of §2255 without any legal discussion supporting a retroactive application. (See p. 3 of Plaintiff’s response).¶
§2255 is contained in Title 18 of the United States Codes - “Crimes and Criminal Procedure, Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children.” 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal injuries, and imposes a presumptive minimum of damages in the amount of $50,000.00, should Plaintiff prove a violation of the specified criminal statutes, and suffer personal injury with actual damages. Thus, the effect of the 2006 amendments, effective July 27, 2006, would be to triple the amount of the statutory minimum previously in effect during the time of the alleged acts. (Taking Plaintiff’s position that the presumptive minimum is meant to be multiplied per violation – the damages would be 4.5 million. The express language of the statute has no multiplier.)¶
No case has yet decided the specific issue before this Court – whether application of the 2006 version of §2255, which increased the statutorily presumed minimum damages from $50,000 to $150,000, regardless of the actual amount of damages suffered and proven, is prohibited from application under the Ex Post Fact Clause to the specified criminal acts occurring prior to the statutes effective date of July 27, 2006. The statute, as amended in 2006, contains no language stating that the application is to be retroactive. Thus, there is no manifest intent that the statute is to apply retroactively, and, accordingly, the statute in effect during the time of the alleged conduct is to apply. Landgraf v. USI Film Products, supra, at 1493, (“A statement that a statute will become¶
EFTA00175359¶
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Mandatory Victim Restitution Act of 1996 (MVRA) to the defendant whose criminal conduct occurred before the effective date of the statute, 18 U.S.C. §3664(f)(1)(A), even though the guilty plea and sentencing proceeding occurred after the effective date of the statute. On July 19, 1996, the defendant Siegel pleaded guilty to various charges under 18 U.S.C. §371 and §1956(a)(1)(A), (conspiracy to commit mail and wire fraud, bank fraud, and laundering of money instruments; and money laundering). He was sentenced on March 7, 1997. As part of his sentence, Siegel was ordered to pay $1,207,000.00 in restitution under the MVRA which became effective on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214, 1229-1236. The 1996 amendments to MVRA required that the district court must order restitution in the full amount of the victim’s loss without consideration of the defendant’s ability to pay. Prior to the enactment of the MVRA and under the former 18 U.S.C. §3664(a) of the Victim and Witness Protection Act of 1982 (VWPA), Pub.I. No. 97-291, 96 Stat. 1248, the court was required to consider, among other factors, the defendant’s ability to pay in determining the amount of restitution.¶
When the MVRA was enacted in 1996, Congress stated that the amendments to the VWPA “shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act [Apr. 24, 1996].” Siegel, supra at 1258. The alleged crimes occurred between February, 1988 to May, 1990. The Court agreed with the defendant’s position that 1996 MVRA “should not be applied in reviewing the validity of the court’s¶
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In the instant case, in answering the first question, it is clear that that imposition of a minimum amount of damages, regardless of the amount of actual damages suffered and proven by a minor victim, is meant to be a penalty or punishment. See statutory text and House Bill Reports, cited above herein, consistently referring to the presumptive minimum damages amount under §2255 as “punishment” or “penalties.” According to the Ex Post Facto doctrine, although §2255 is labeled a “civil remedy,” such label is not dispositive; “if the effect of the statute is to impose punishment that is criminal in nature, the ex post facto clause is implicated.” See generally, Roman Catholic Bishop of Oakland v. Superior Court, 28 Cal.Rptr.3d 355, at 360, citing Kansas v. Hendricks, 521 U.S. 346, 360-61 (1997). The effect of applying the 2006 version of §2255 would be to triple the amount of the presumptive minimum damages to a minor who proves the elements of her §2255 claim. (Under Plaintiff’s attempted approach – the presumptive minimum would potentially increase from 1.5 million to 4.5 million ($50,000 X 30; $150,000 X 30). The fact that a plaintiff proceeding under §2255 has to prove a violation of a criminal statute to recover damages thereunder, further supports that the imposition of a minimum amount, regardless of the amount of a victim’s actual damages sustained, is meant and was enacted as additional punishment or penalty for violation of criminal sexual exploitation and abuse of minors.¶
Accordingly, this Court is required to apply the statute in effect at the time of the alleged criminal acts. Not only is there no language in the 2006 statute stating that it is to apply retroactively, but further, such application of the 2006 version of 18 U.S.C. §2255 to acts that occurred prior to its effective date would have a detrimental and¶
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When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.¶
Here, there is no clear expression of intent regarding the 2006 Act’s application to conduct occurring well before its enactment. Clearly, however, as discussed in part B herein, the presumptive minimum amount of damages of $150,000 was enacted as a punishment or penalty upon those who sexually exploit and abuse minors. See discussion of House Bill Reports and Congressional background above herein. The amount triples the previous amount for which a defendant might be found liable, regardless of the amount of actual damages sustained and proven. The new statute imposes a substantial increase in the monetary liability for past conduct. (As discussed below, Plaintiff also proposes that the minimum damage amount is to apply on a per violation basis; the absurdity of such position is further magnified when one considers that the presumptive damages amount was tripled to $150,000).¶
As stated in Landgraf, “the extent of a party’s liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored.” Courts have consistently refused to apply a statute which substantially increases a party’s liability to conduct occurring before the statute’s enactment. Landgraf, supra at 284-85. Even if¶
the effective date of the Act. The Court determined that statutory text in question, §102, was subject to the presumption against statutory retroactivity.¶
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count complaint, including a single cause of action pursuant to 18 U.S.C. §2255 (Count I), along with 11 other counts based on state law ranging from negligence to intentional and negligent infliction of emotional distress. The defendants moved to dismiss Count I because “plaintiffs have not pled sufficient facts to satisfy one of the predicate felonies mentioned in the statute.”¶
In describing the remedy created under 18 U.S.C. §2255(a), the Eastern District of Pennsylvania stated that the statute “authorizes a civil remedy for personal injuries suffered by a minor victim of certain federal felonies, …” Id, at 4. In other words, a minor, who is a victim of any of the specified predicate criminal acts, may bring a §2255 claim “to recover the actual damages such minor sustains,” regardless if a plaintiff proves one or multiple violations. As long as a plaintiff proves any violation of a specified criminal act and that he or she suffered personal injury, he or she is entitled to the presumptive minimum of damages imposed by the applicable statute - $50,000 in the instant case, even if the amount of actual damages proven is less. Again, the statute says nothing about the presumptive damages amount being for each violation or incident alleged.¶
In her response, (pp. 3-9), Plaintiff at one point states that the express language allows for “a separate cause of action for each separate incident,” but then goes on to rely on statutory interpretation principles applied when the language is vague or ambiguous. See p. 4 of response where Plaintiff states – “A review of the wording of 18 U.S.C. §2255 demonstrates no ambiguity.” Plaintiff then references a portion of the legislative history and background on “Masha’s Law.” Plaintiff can cite to no case law¶
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Plaintiff’s reliance on In re Hawaiian Airlines, Inc. (Konop v. Hawaiin Airlines, Inc.), 355 B.R. 225 (D. Hi. 2006), is misplaced. Unlike the Stored Communications Act, 18 U.S.C. §2707(c), endnote¹, at issue in the Hawaiian Airlines case, the presumptive minimum is tied to the minor or person proving that she or he has suffered personal injury, along with actual damages sustained, as a result of any violation. To even bring a cause of action under §2255, a “minor/person” must prove a violation of enumerated criminal statute and “suffer personal injury as a result of such violation.” Only then “shall” such minor “recover the actual damages such minor sustains … . Any minor/person as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000/$150,000 in value.” The statute at issue in Hawaiian Airlines does not address personal injury type damages. Significantly, the court found that the Stored Communications Act does not even require that the plaintiff prove actual damages or profits made by the violator to recover the statutory cap. Recovery under §2255, unlike the Stored Communications Act, is limited to a minor/person “who suffers personal injury” and mandates a recover of “actual damages,” no matter how little is actually proven, of the statutory minimum.¶
Hawaiian Airlines actually supports Defendant’s position. The Court discussed and distinguished the Privacy Act, relying on Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204 (2004), which contained similar language to the Stored Communications Act, but concluded that $1,000 minimum damage award under the Privacy Act was not subject to multiplication on a per violation basis because it was limited to a plaintiff who proves actual damages. See endnote 2 for relevant text of Privacy Act. In Doe v. Chao, the¶
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applying the rule of lenity, the Court sided with the Defendants’ interpretation of the Lacey Act which makes illegal the possession of snook caught in specified jurisdictions. The snook had been caught in Nicaraguan waters. The defendants filed a motion to dismiss asserting the statute did not encompass snook caught in foreign waters. The United States disagreed. Both sides presented reasonable interpretations regarding the reach of the statute. In dismissing the indictment, the Court determined that the rule of lenity required it to accept defendants’ interpretation.¶
III. Also requiring dismissal Plaintiff has failed to sufficiently allege the requisite §2255 predicate acts. (Plaintiff’s Response, p. 10)¶
Also requiring dismissal of Plaintiff’s purported §2255 claim(s) is Plaintiff’s failure to sufficiently allege any violation of a requisite predicate act as specifically identified in subsection (a) of the statute. Plaintiff in her response, p. 10, agrees that she has failed to sufficiently allege the predicate act(s) required by §2255. Defendant has no objection to Plaintiff attempting to amend, but Plaintiff should be required to plead a single cause of action under §2255 (2003), without seeking to multiply the presumptive minimum damages.¶
IV. 18 U.S.C. §2255 does not allow for the recovery of punitive damages.¶
Thus, Plaintiff’s request for punitive damages under §2255 is required to be dismissed or stricken. (Plaintiff’s Response, Part III, p. 11-18).¶
Plaintiff’s reliance on Tachiona v. Mugabe, 216 F.Supp.2d 262 (S.D.N.Y. 2002), is misplaced as the federal statute at issue, the Torture Victim Protection Act (TVPA), is clearly distinguishable. (Plaintiff’s response, p. 11). See endnote 3 for relevant text. $ ^{3} $ Unlike §2255 which expressly provides that a successful plaintiff “shall recover the actual damages such minor/person sustains,” the TVPA simply states that an individual¶
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sustained” and imposes a minimum damages amount should plaintiff prove the elements of her claim.¶
Plaintiff’s reference, at p. 13 of her response, to the fact that the legislature eliminated a proposed three-fold damages provision in favor of the “actual damages” language also supports Defendant’s position. Remember, this statute was enacted as part of the criminal statutory scheme to punish those who sexually abuse and exploit children. In addition to facing the payment of “actual damages” to a minor/person who suffered personal injury as a result of predicate act violation, such an individual also faces criminal prosecution and the additional accompanying penalties of spending many years in jail. Despite Plaintiff’s attempted reliance on the legislative discussions and history prior to the passage of §2255, the ultimate decision is reflected in the language of the statute itself which allows for the recovery of “actual damages,” and does not include punitive damages. Accordingly, Plaintiff’s claim for punitive damages under 18 U.S.C. §2255 is required to be dismissed/stricken.¶
VI. Count XXXI – “Sexual Battery” is required to be dismissed for failure to state a cause of action. In the alternative, Plaintiff should be required to more definitely state whether she is attempting to allege a claim under Florida common or statutory law, or some federal law, and further allege the required elements and factual allegations. (Response, Part IV, pp. 15-16)¶
In her response, at p. 16, Plaintiff claims that “Count XXXI – Sexual Battery” is brought pursuant to Florida common law. Defendant stands on his original motion. If Plaintiff is proceeding under Florida common law, then she should more definitely state such cause of action pleading the requisite elements of a common law sexual battery¶
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By: ___¶
ROBERT D. CRITTON, JR., ESQ.¶
Florida Bar No./ 224162¶
MICHAEL J. PIKE, ESQ.¶
Florida Bar #617296¶
BURMAN, CRITTON, LUTTIER & COLEMAN¶
515 N. Flagler Drive, Suite 400¶
West Palm Beach, FL 33401¶
Phone¶
Fax¶
(Counsel for Defendant Jeffrey Epstein)¶
1 See 18 U.S.C. §2707(1), of the Stored Communications Act for provision at issue.¶
Title 18. Crimes and Criminal Procedure¶
Chapter 121. Stored Wire and Electronic Communications and Transactional Records Access¶
§ 2707. Civil action¶
(a) Cause of action.—Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.¶
(b) Relief.—In a civil action under this section, appropriate relief includes---¶
(1) such preliminary and other equitable or declaratory relief as may be appropriate;¶
(2) damages under subsection (c); and¶
(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.¶
(c) Damages.—The court may assess as damages in a civil action under this¶
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functions of the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.¶
$ ^{2} $ See §552a(g)(4), in bold, for relevant section of statute.¶
Title 5. Government Organization and Employees Part I. The Agencies Generally Chapter 5. Administrative Procedure Subchapter II. Administrative Procedure¶
$$\Rightarrow \§ 552a. Records maintained on individuals$$¶
(g)(1) Civil remedies.—Whenever any agency¶
(A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;¶
(B) refuses to comply with an individual request under subsection (d)(1) of this section;¶
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or¶
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,¶
the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.¶
(2) (A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual’s record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.¶
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(Emphasis added).¶