EFTA00179175¶
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
IN RE GRAND JURY SUBPOENA ()¶
DUCES TECUM ISSUED TO ()¶
WILLIAM RILEY ()¶
FILED UNDER SEAL¶
FGJ 07-103 (WPB)¶
OLY-63 & OLY-64¶
M. B.D. No. ___¶
SURREPLY OF JEFFREY EPSTEIN TO UNITED STATES’ SURREPLY TO REPLIES FILED BY WITNESS WILLIAM RILEY AND INTERVENOR JEFFREY EPSTEIN RE: MOTION TO QUASH GRAND JURY SUBPOENAS¶
I.¶
In its Surreply, the government, for the first time, after the parties have filed numerous pleadings directed to the enforceability of the challenged subpoena, announced that it was in fact seeking only physical possession of the computers at issue and that it thereafter intended to obtain a search warrant to search the contents of the computers. This Court should not permit the government to substitute a secret ex parte process for the adversarial litigation process between the parties which has been ongoing. Instead of leaving the government free to rummage at will through the contents of the computers based upon the ex parte issuance of a search warrant, the Court should require the government to particularize the subpoena to identify the documents which it is seeking. The government’s doing so would enable movants to provide it with the documents falling within the particularized categories so identified, in the same manner as one responding to a particularized document subpoena would do. The process should be no different because the documents are contained within a computer than it is with respect to hard copy documents in the hands of the subpoenaed party.¶
Black, Srebnick, Kornspan & Stumpf¶
20I S. Biscayne Boulevard, Suite I300 • Miami, Florida 33131 • Phone: [blank] • Fax: [blank] • www.RoyBlack.com¶
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Contrary to the suggestion of the government, see United States’ Surreply at 2, the overbreadth and particularity protections embodied in the Fourth Amendment reasonableness command with respect to subpoenas do not recognize an exception which permits the government to utilize an unlimited, overbroad, and unparticularized grand jury subpoena to obtain custody of a container which it wishes thereafter to search pursuant to a warrant. The particularity and overbreadth arguments which have been advanced by Epstein cannot be mooted by the government’s now contending that the purpose of the subpoena is only the seizure of the computers and not their search. The commands of the Fourth Amendment and Rule 17 remain the same: the subpoenaed items must be relevant to the grand jury’s investigation, and the items sought must be particularized in the subpoena. Just as the government could not simply serve a subpoena on a business directing that it produce all its file cabinets to the grand jury, neither can it use a grand jury subpoena to compel a citizen to turn over the entire contents of his computers to the grand jury. As has been stressed in prior pleadings directed to this issue, computers contain vast realms of personal documents, information, and data which are simply none of the government’s business and should not be exposed to its inspection absent a particularized description of the categories of documents and other information which the government believes relevant to the grand jury’s investigation.¹¶
The court in In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F.Supp. 11 (S.D.N.Y. 1994), was confronted with a similar issue in the context of a grand jury subpoena for the production of all hard drives of computers supplied by X Corporation to certain officers and employees, as well as all computer-accessible data, including all floppy disks, created by the specified officers or employees or their assistants. The Court, drawing upon the¶
$$^1\text{See Motion of Jeffrey Epstein to Intervene and to Quash Grand Jury Subpoenas and Incorporated Memorandum of Law at 19-26.}$$¶
2¶
Black, Srebnick, Kornspan & Stumpf¶
201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131 • Phone: [blank] • Fax: [blank] • www.RoyBlack.com¶
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Second Circuit’s narrowing of a subpoena demanding the production of the entire contents of three file cabinets to exclude categories of documents with no conceivable relevance to any legitimate object of investigation in In re Horowitz, 482 F.2d 72, 79-80 (2d Cir. 1973),² concluded that the subpoena should be interpreted as seeking categories of documents, not categories of computers, and that it was the former category – the documents sought by the government – which was required to be particularly described. 846 F.Supp. at 13. The Court held that, because there were ways in which the government could have narrowed the subpoena to relevant documents, such as documents containing certain key words, the subpoena at issue unnecessarily demanded documents irrelevant to the grand jury inquiry and was, therefore, unreasonably broad under Rule 17. Because the government opposed modification of the subpoena, the Court quashed the subpoena in its entirety, without prejudice to the grand jury’s ability to issue a properly narrowed subpoena. Id. at 13-14. See also In re Amato, 2005 WL 1429743 at 11-12 (D.Me. June 17, 2005)(granting motion to quash with respect to paragraph of subpoena requesting production of all computers and computer related equipment: “Inasmuch as Category 10 … in essence requests the turnover of all computers (and related objects) of both corporations with no express safeguard against a subsequent rummaging through, and seizure of,¶
2 In Horowitz, the government initially served a grand jury subpoena on the target’s accountant, requiring the production of seven categories of documents. Learning from the accountant’s grand jury testimony that the target had had three file cabinets of documents removed from his corporate offices and stored at another location, the government issued another grand jury subpoena to the accountant requiring the production of the three file cabinets. The accountant turned the file cabinets over to the United States Attorney’s office subject to the agreement that the cabinets would remain unopened until the litigation of a motion to quash. The accountant inventoried the contents of the file cabinets and then moved to quash the subpoena, as later did the targets. Id. at 74-75. On appeal, the Second Circuit noted that the alleged fraud began in 1966, but the file cabinets contained documents dating back to 1951, and therefore limited the enforcement of the subpoena to documents beginning in 1966, with the proviso that earlier-dated documents would be producible if the government made a showing of relevance. The Court also left it open to the targets to demonstrate that a particular category of documents could have no conceivable relevance to any legitimate investigative object. Id. at 79-80.¶
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Black, Srebnick, Kornspan & Stumpf¶
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irrelevant as well as relevant data, it cannot withstand Fourth Amendment reasonableness scrutiny”).¶
In the context of the seizure for off-site review of intermingled computerized evidence pursuant to a search warrant, the Ninth Circuit recently stated:¶
In the case of a lawful and reasonable seizure of intermingled computer records for offsite review, … our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof.¶
United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 938 (9th Cir. 2006)(emphasis added). Thus, even in the Comprehensive Drug Testing case, in which the government gained possession of the computer data through seizure pursuant to a warrant rather than through a grand jury subpoena, the Court did not hesitate to condemn a governmental fishing expedition through the acquired computer data. Here, where the process was initiated by subpoena, it is only appropriate and proper that the party whose privacy interests are at stake should be able to respond to a determinate, particularized subpoena rather than to an open-ended, limitless subpoena such as the one presently at issue in this case. Movants should not be required to turn over the entire computers to the government for its unfettered rummaging but instead only the particularized relevant documents called for in a properly tailored subpoena.¶
Another peril of the warrant alternative would be the myriad new issues requiring resolution: at issue would be not simply whether there was probable cause for the search of the computers, see United States’ Surreply at 2, but also the Fourth Amendment’s particularity and overbreadth protections. It does not suffice that, should Epstein be indicted, he would have the opportunity to challenge the probable cause for the search on a motion to suppress. No motion to suppress can ever¶
4¶
Black, Srebnick, Kornspan & Stumpf¶
20I S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131 • Phone: [blank] • Fax: [blank] • www.RoyBlack.com¶
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cure an unwarranted intrusion on personal privacy which lays bare before the government a citizen’s private life for its unguided scrutiny and permits government agents to read private materials to which they never should have had access in the first place. The Court must act now to prevent such wholesale intrusion from taking place.¶
The government’s overbroad and unparticularized subpoena should be quashed. The government should not be permitted to substitute secret proceedings for participatory ones or review of the computers’ contents by F.B.I. agents for the more orderly process triggered by a valid subpoena.¶
II.¶
The government’s act-of-production privilege argument, United States’ Surreply at 2-3, is facially inconsistent with its contention that it intends, once it has the computers in its custody, to seek a warrant to search their contents. Obtaining such a warrant would require the government to demonstrate probable cause to believe that evidence of the alleged offenses under investigation would be found on the computers, evidence which the government seeks for the purpose of using it against Mr. Epstein if it exists. Production of the computers would constitute a testimonial communication that they were in fact the computers which were removed from Mr. Epstein’s home, a necessary step in the authentication of any contents found therein which the government might seek to use against Mr. Epstein. It is not the subpoenaed item itself which must be potentially incriminating, but the act of producing that item. See United States v. Ponds, 454 F.3d 313 (D.C.Cir. 2006); see also Reply of Jeffrey Epstein to United States’ Response to His Motion to Intervene and to Quash Grand Jury Subpoenas and Cross-Motion to Compel (“Epstein Reply”) at 5-8.¶
3 The government’s effort at reductio ad absurdum is not well-taken. See United States’ Surreply at 2 n.2. If the subpoenaed party’s act of producing his mother’s coffee cake recipe were potentially incriminating, then the act of production would constitute a compelled testimonial communication as to which the subpoenaed party would have the right to assert a Fifth Amendment act-of-production privilege.¶
Black, Srebnick, Kornspan & Stumpf¶
201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131 • Phone:¶
- Fax:*
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Epstein should not be required to make unprotected assertions that anything in the computers is incriminating as a precondition to asserting the act-of-production privilege. See Ohio v. Reiner, 532 U.S. 17, 21 (2001) (“[W]e have emphasized that one of the Fifth Amendment’s basic functions … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances” (emphasis in original)); Hoffman v. United States, 341 U.S. 479, 486 (1951) (“The privilege … not only extends to answers that would themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime”).¶
III.¶
As to the Riley Kiraly billing records, see United States’ Surreply at 4, if the subpoena is to be enforced, Riley Kiraly will produce them in redacted form, with material encompassed within the work product privilege deleted. See Epstein Reply at 10-11. The work product privilege belongs jointly to Epstein, and he has rightly asserted that privilege. There can, therefore, be no question of waiver here. Clearly, the government wants more from the billing records than simply the numbers; it has issued an all-encompassing demand, leading to Mr. Epstein’s contention that the request is overbroad.¶
Lastly, the government complains that Mr. Riley did not appear to testify even though no motion to quash his testimony had been filed. See United States’ Surreply at 1-2. Had such a motion been filed, the government would no doubt have argued that it should be denied as an impermissible blanket assertion of privilege. Mr. Riley will assert the attorney-client and/or work product privilege as necessary on a question-by-question basis during his grand jury appearance.¶
Black, Srebnick, Kornspan & Stumpf¶
20I S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131 • Phone: [blank] • Fax: [blank] • www.RoyBlack.com¶
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CONCLUSION¶
The government began this process as an adversarial one – one which afforded Mr. Epstein both notice and an opportunity to be heard. It should not now be permitted to unilaterally convert that process to a secret ex parte search warrant application process and to thereby completely extinguish Mr. Epstein’s ability to protect his legitimate his privacy interests. Mr. Epstein is entitled to be involved in this process before – not after – his interests are irreparably injured.¶
Respectfully submitted,¶
BLACK, SREBNICK, KORNSPAN & STUMPF, PA.¶
201 South Biscayne Boulevard, Suite 1300¶
Miami, Florida 33131¶
Ph.: — Fax:¶
ROY BLACK, ESQ.¶
Florida Bar No.:¶
Counsel for Jeffrey Epstein¶
CERTIFICATE OF SERVICE¶
I HEREBY CERTIFY that on September 12, 2007, a true and correct copy of the forging motion was furnished by facsimile , and U.S. mail to:¶
Esq., U.S. Attorney’s Office, 500 South Australian Avenue, Suite 400, West Palm Beach, FL 33401.¶
Counsel for Jeffrey Epstein¶
Black, Srebnick, Kornspan & Stumpf¶
201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131 • Phone: [blank] • Fax: [blank] • www.RoyBlack.com¶