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B. Due Process¶
As noted above, one of the reasons behind 6(e) is to protect the reputations of persons who are under investigation but not indicted. This is a corollary to what the Court of Appeals found to be a due process protection afforded by the Fifth Amendment of the United States Constitution – namely, “that the liberty and property concepts of the Fifth Amendment protect an individual from being publicly and officially accused of having committed a serious crime, particularly where the accusations gain wide notoriety.” See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) (citation omitted). In Smith, the petitioner filed a motion seeking to have his name stricken from the factual proffers of two criminal defendants. Smith had not been criminally charged or convicted. The Court of Appeals agreed with Smith, castigating the Government:¶
no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights… .¶
[W]e completely fail to perceive how the interests of criminal justice were advanced at the time of the plea hearings by such an attack on the Petitioner’s character. The presumption of innocence, to which every criminal defendant is entitled, was forgotten by the Assistant United States Attorney in drafting and reading aloud in open court the factual resumes which implicated the Petitioner in criminal conduct without affording him a forum for vindication.¶
Id. at 1106, 1107. The Court of Appeals ordered the District Court Clerk’s Office to “completely and permanently obliterate and strike from the records of the pleas of guilty … any and all identifying reference to or name of Mr. Smith, the Petitioner, so that such references may not be used as a public record to impugn the reputation of Petitioner.” Id. at 1107. The Court further ordered that all of the pleadings in the case be sealed. Id.¶
³This opinion of the Fifth Circuit was made binding precedent in the Eleventh Circuit pursuant to Bonner City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).¶
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Courts have interpreted Smith to apply not only to references to unindicted co-conspirators in indictments and factual proffers, but also to motion papers. See, e.g., United States . Anderson, 55 F. Supp. 2d 1163, 1168 (D. Kan. 1999) (“After carefully reviewing the government’s moving papers on the conflict of interest issue, the court can find no reason why the government might have ‘forgotten’ the presumption of innocence in such a public pleading …”) (citing Smith, 656 F.2d at 1107); United States . Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010) (Fifth Amendment rights of organization were violated when its name was listed among 246 unindicted coconspirators in pre-trial brief).¶
Petitioners’ “Statement of Undisputed Material Facts,” and Exhibit A to DE48 contain allegations related to uncharged crimes against not only Epstein but several other individuals. In keeping with the First Amendment’s limited right of access, the United States does not oppose the motion to unseal in full, rather, pursuant to Smith and its progeny, the relevant allegations should be redacted. See, e.g., Smith, 656 F.2d at 1107 (ordering Clerk’s Office to “completely and permanently obliterate and strike from the records … any and all identifying reference to or name of Mr. Smith” and sealing all other related records); United States Anderson, 55 F. Supp. 2d 1163, 1170 (D. Kan. 1999) (ordering Clerk’s Office to “completely and permanently strike” all references to petitioners); Steinger, 626 F. Supp. 2d at 1237 (concluding that documents must be kept fully sealed because “redactions would be so heavy as to make the released versions incomprehensible and unintelligible”).¶
Filed herewith, under seal in accordance with Rule 6(e), is a proposed redacted copy of DE48 and the relevant pages of Exhibit A. With respect to DE48 itself, the Government has only redacted¶
4The NPA also contains such references.¶
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language that in some way suggests that the Government (including the FBI) is the source of the allegation. However, the Government reiterates, as it has stated in its opposition to “Petitioners’ Motion to Have Their Statement of Undisputed Material Facts Accepted” that it denies all of the allegations contained in Petitioners’ Statement that aver violations of law by Epstein or others that have not resulted in a conviction, including but not limited to paragraphs 1, 2, 4, 5, 10, 11, 17, 37, 52, and 53. With respect to Exhibit A, out of 359 pages, the United States only seeks to redact 40 full pages, and seeks to redact individual words or sentences on an additional 20 pages.¶
The United States further respectfully requests that the Court allow it to redact the personal telephone number and email address of its personnel, that appears on eighteen pages in Exhibit A to DE48. The information serves no evidentiary purpose.¶
The United States has conferred with counsel for Petitioners on these matters. Petitioners have no objection to the redaction of the personal telephone number and email address of government personnel and to the redaction of individual statutory references in Exhibit A. Petitioners object to redactions of DE48 and to further redactions of Exhibit A. For ease of reference by the Court, the redactions that are agreed to are marked in blue; those that are in dispute are marked in red. Redactions that appear in plain black are pre-existing (i.e., they are redactions done either by Petitioners or by Epstein’s counsel).¶
CONCLUSION¶
For the foregoing reasons, the United States respectfully requests that the Court deny, in part, Petitioners’ Motion to Unseal its Motion for Finding of Violations of Crime Victim’s Rights Act and Request for Hearing on Appropriate Remedies [DE48] and Exhibit A thereto and, instead, that the Court unseal only a redacted version of those pleadings, that is, the redacted documents filed¶
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herewith.¶
Respectfully submitted,¶
WIFREDO A. FERRER¶
UNITED STATES ATTORNEY¶
By:¶
| s/ Dexter A. Lee |
| DEXTER A. LEE |
| Assistant U.S. Attorney |
| Fla. Bar No. 0936693 |
| 99 N.E. 4th Street |
| Miami, Florida 33132 |
| (305) 961-9320 |
| Fax: (305) 530-7139 |
| E-mail: dexter.lee@usdoj.gov |
Attorney for Respondent¶
CERTIFICATE OF SERVICE¶
I HEREBY CERTIFY that on April 7, 2011, I electronically filed the foregoing document¶
with the Clerk of the Court using CM/ECF.¶
| s/Dexter A. Lee |
| DEXTER A. LEE |
| Assistant U.S. Attorney |
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SERVICE LIST¶
Jane Does 1 and 2 United States,¶
Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida¶
Bradley J. Edwards, Esq.,¶
Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.¶
425 North Andrews Avenue, Suite 2¶
Fort Lauderdale, Florida 33301¶
(954) 524-2820¶
Fax: (954) 524-2822¶
E-mail: brad@pathtojustice.com¶
| Paul G. Cassell |
| S.J. Quinney College of Law at the University of Utah |
| 332 S. 1400 E. |
| Salt Lake City, Utah 84112(801)585-5202 |
| Fax:(801)585-6833 |
| E-mail: casselp@law.utah.edu |
Attorneys for Jane Doe # 1 and Jane Doe # 2¶
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