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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
Case No. 08-80736-Civ-Marra/Johnson¶
JANE DOES #1 AND #2,¶
Petitioners,¶
UNITED STATES OF AMERICA,¶
Respondent.¶
| UNITED STATES’ RESPONSE TO PETITIONERS’ MOTION |
| TO USE CORRESPONDENCE TO PROVE VIOLATIONS OF THE CRIME VICTIMS’ RIGHTS ACT AND TO HAVE THEIR UNREDACTED PLEADINGS UNSEALED [DE51] |
The United States of America, by and through the undersigned, hereby files this Response in partial opposition to Petitioners’ Motion to Use Correspondence to Prove Violations of the Crime Victims’ Rights Act and to Have Their Unredacted Pleadings Unsealed (DE51). As explained in the United States’ Response to Petitioners’ Motion for Finding of Violations of the Crime Victims Rights Act (DE48), and Petitioners’ Motion to Have Their Facts Accepted (DE49), it is the position of the United States that this case presents a straightforward legal issue and no additional facts or evidence are necessary for the resolution of the matter. The United States also was not a party to the action wherein Petitioners were ordered to obtain court approval prior to using the correspondence as evidence.$^1$ Accordingly, the United States takes no position as to that portion of Petitioners’¶
1The Government does note, however, that Petitioners have filed the Non-Prosecution Agreement (“NPA”) in the public portion of the Court file. (DE48, Ex. E.) That document is the subject of a Protective Order in the instant suit. (See DE26.) Petitioners have previously moved to¶
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Motion, although it notes that merely attaching the correspondence to a motion without authenticating it does not make it admissible evidence.¶
With regard to Petitioners’ Motion to Unseal, when Petitioners’ originally conferred with the government, the undersigned stated that there was no objection to the motion to unseal. However, a copy of what Petitioners intended to file was not provided. Also, upon undertaking some research in preparation for a response to DE49, it was determined that the Government could not, in accordance with our legal obligations, agree to unsealing the documents referenced herein. Accordingly, for the reasons set forth herein, the United States opposes, in part, Petitioners’ Motion to Unseal. Instead, the United States has filed herewith, under seal, a redacted version of DE48 and the relevant portions of Exhibit A, and asks the Court to unseal only redacted versions, if the Court decides to grant Petitioners’ Motion to Unseal.¶
CERTAIN PORTIONS OF PETITIONERS’ PLEADINGS RUN AFOUL OF FED. R. CRIM. P. 6(e) AND/OR CONSTITUTIONAL MANDATES.¶
Several of the “facts” that Petitioners include in their Statement of Undisputed Facts allege that Jeffrey Epstein (“Epstein”) and others have committed crimes for which they were never charged or convicted. Others refer to matters that were occurring before the grand jury. The documents contained in Exhibit A to their pleading contain similar materials. The Federal Rules of Criminal Procedure and constitutional mandates dictate that these should be kept sealed.¶
A. Federal Rule of Criminal Procedure 6(e)¶
Rule 6(e) states that “an attorney for the government” “must not disclose a matter occurring¶
unseal the NPA in this action, (see DE28,) which the Court has denied. (DE36.) Although the Government acknowledges that the NPA is a matter of public record in other courts, it is not a public record here. As discussed below, its disclosure, which includes names of uncharged persons, implicates Due Process.¶
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before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). Furthermore, court hearings and court records and orders must be sealed “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Crim. P. 6(e)(5) & (6).¶
Courts have construed “a matter occurring before the grand jury” to include “events which have already occurred before the grand jury, such as a witness’s testimony, [and] matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an indictment.” $ ^{2} $ In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980).¶
While Petitioners were merely asking the Government to agree with their assertions of “fact” based upon materials Petitioners had received from counsel for Epstein, rather than asking the Government to make affirmative disclosures of grand jury material, “Rule 6(e) does not create a type¶
$ ^{2} $It is worth noting that, within the same case, a court can take differing positions on this. Compare:¶
[T]he disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e). A discussion of actions taken by government attorneys or officials, e.g., a recommendation by the Justice Department attorneys to department officials that an indictment be sought against an individual does not reveal any information about matters occurring before the grand jury. Nor does a statement of opinion as to an individual’s potential criminal liability violate the dictates of Rule 6(e).¶
With:¶
Disclosures which expressly identify when an indictment would be presented to the grand jury, the nature of the crimes which would be charged, and the number of persons who would be charged run afoul of the secrecy requirements codified in Rule 6(e).¶
In re Grand Jury Investigation, 610 F.2d at 217, 218. In light of these conflicting directives, the government must err, if at all, on the side of treating all information related to grand jury proceedings as “matters occurring before the grand jury.”¶
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of secrecy which is waived once public disclosure occurs.” In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 505 (D.C. Cir. 1998) (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)).¶
“[E]ven if material concerning the grand jury investigation had been disclosed to the public, the Government attorney … had a duty to maintain grand jury secrecy. This attorney could neither confirm nor deny the information presented by the ‘external party.’” Senate of the Commonwealth of Puerto Rico United States Dep’t of Justice, 1992 WL 119127 at 3 (D.D.C. May 13, 1992) (citing Barry v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990) (“Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs. The Government is obligated to stand silent regardless of what is reported, accurate or not, by the press.”).¶
The reasons for Rule 6(e) are multiple:¶
In addition to preventing adverse pretrial publicity about a person who may be indicted and subsequently tried, secrecy protects the reputation of a person under investigation who is not indicted. The secrecy requirement also encourages reluctant witnesses to testify without fear of reprisals from those against whom testimony is given, prevents tampering with grand jury witnesses in an effort to alter their trial testimony, and permits the grand jury to deliberate free from the influence of publicity. Finally, secrecy prevents disclosures to persons who may be interested in the investigation if the facts are known or might attempt to escape if they have reason to believe certain indictments will issue.¶
United States v. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983) (citing United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6 (1958)).¶
Several of the “facts” contained in Petitioners’ submission contain allegations related to matters occurring before the grand jury. Pursuant to Fed. R. Crim. P. 6(e), the Government cannot confirm or deny the accuracy of those allegations. Likewise, portions of Exhibit A to Docket Entry 48 refer to matters occurring before the Grand Jury. Notwithstanding Petitioners’ citations to the First Amendment and the interest of the press and the public in this case, the First Amendment right¶
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of access is not absolute and sealing is appropriate in connection with grand jury proceedings. As explained by Judge Jordan in United States Steinger, 626 F. Supp. 2d 1231 (S.D. Fl. 2009):¶
“The proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,” Douglas Oil Co. Petrol Stops Northwest, 441 U.S. 211, 218 (1979), and this expectation of privacy is generally codified in Rule 6(e) of the Federal Rules of Criminal Procedure… .¶
There is a second reason why sealing is currently appropriate. As noted above, the Public Integrity Section has determined that six former or present public officials had no knowledge of, or involvement in, the alleged wrongdoing, and its probe continues against others who have yet to be indicted or cleared. The sealed documents and transcripts refer to many of those individuals by name. Disclosure of those names, and the matters being investigated, could have devastating consequences for those persons who have been cleared of any misconduct, as well as for those still under investigation. As William Shakespeare put it centuries ago, “the purest treasure mortal times afford is spotless reputation; that away, men are but guilded loam, or painted clay.” W. Shakespeare, RICHARD II, ACT 1, SCENE 1, lines 177-78 (1597). And if it is true that “at every word a reputation dies,” A. Pope, THE RAPE OF THE LOCK, CANTO III, line 16 (1712), then public access to the sealed documents and transcripts here could easily kill many reputations. This overriding interest is, I believe, of a higher value under [Press-Enterprise Co. Superior Court, 464 U.S. 501 (1984)] so as to warrant sealing, and provides good cause under the common-law access balancing test to preclude disclosure.¶
Steinger, 626 F. Supp. 2d at 1235-36 (brackets in original omitted). See also In re Petition of American Historical Ass’n, 62 F. Supp. 2d 1100, 1103 (S.D.N.Y. 1999) (“A cornerstone of the grand jury secrecy rule is the protection of the reputations and well-being of individuals who are subjects of grand jury proceedings, but are never indicted … [T]he rule of secrecy seeks to protect … unindicted individuals from the anxiety, embarrassment, and public castigation that may result from disclosure.”) (cited in Steinger).¶
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