EFTA00180653¶
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT¶
JEFFREY EPSTEIN,¶
Petitioner,¶
CASE NO.¶
PALM BEACH¶
LT. CASE NO. 2008 CF 009381A¶
v.¶
STATE OF FLORIDA,¶
Respondent.¶
EMERGENCY PETITION FOR WRIT OF CERTIORARI¶
Petitioner, JEFFREY EPSTEIN, seeks a writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.100(c)(1), to review an order compelling disclosure of a confidential federal non-prosecution agreement and addendum, pursuant to motions to unseal, filed by non-parties, E.W., B.B. and Palm Beach Newspapers d/b/a The Palm Beach Post (“the Post”). $^1$ The confidential federal non-prosecution agreement and addendum between the United States Attorney’s Office and Mr. Epstein were filed under seal in state court at the express directive of the judge who heard Mr. Epstein’s guilty plea—“I want a sealed copy of that filed in this case”—and not by¶
1 Petitioner, Jeffrey Epstein is referred to by proper name. Non-party interveners, E.W., B.B. and The Post are referred to as E.W., B.B. and The Post. All emphasis is supplied unless indicated otherwise. The following symbol is used: A – Petitioner’s appendix.¶
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motion of any party (A-7:40). Federal Court Judge Marra has twice denied public access to these documents.¶
Mr. Epstein seeks certiorari review on an emergency basis. $ ^{2} $ The court stayed disclosure until noon on Thursday, July 2, 2009. Once the documents are produced, there will be no adequate remedy.¶
I. JURISDICTION¶
Mr. Epstein seeks to invoke the certiorari jurisdiction of this Court pursuant to Florida Rules of Appellate Procedure 9.030(b)(2)(A) and 9.100. Certiorari review is appropriate where, as here, an order unsealing a court record departs from the essential requirements of law and causes material injury that cannot be remedied on appeal after final judgment. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995).¶
This Court should exercise its certiorari jurisdiction to quash the order unsealing the non-prosecution agreement and addendum. Production of these documents will cause irreparable harm (“cat out of the bag”) to Mr. Epstein. The order departs from the essential requirements of law because¶
$ ^{2} $ Mr. Epstein has contemporaneously filed an emergency motion to review denial of stay.¶
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the court failed to recognize principles of supremacy and comity and failed to apply the correct law as to sealing these records.¶
Alternatively, Mr. Epstein appeals the order under Florida Rule of Appellate Procedure 9.140(b)(1)(D) as an order entered after a finding of guilt in a criminal case. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought …”).¶
II. STATEMENT OF FACTS¶
In 2006, a Florida state grand jury indicted Jeffrey Epstein for felony solicitation of prostitution. He was also charged by information with procuring persons under 18 for prostitution. The United States Attorney’s Office for the Southern District of Florida began a federal grand jury investigation into allegations arising out of the same conduct.¶
In September 2007, the United States Attorney’s Office and Mr. Epstein executed a non-prosecution agreement (A-7:38). $ ^{3} $ The nonprosecution agreement contains an express confidentiality provision (A-¶
$ ^{3} $ The non-prosecution agreement and addendum are separately filed with a motion to seal.¶
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7:38). The United States Attorney’s Office agreed to defer the federal criminal action on the condition that Mr. Epstein comply with many obligations, beginning with his pleading guilty to certain state charges in the Florida criminal action (A-7:38). A breach of any condition violates the non-prosecution agreement and criminal charges will resume (A-7:39-40).¶
On June 30, 2008, Mr. Epstein pled guilty to felony solicitation of prostitution and procuring a minor under 18 for prostitution in the Florida criminal action (A-7; A-8). Judge Deborah Dale Pucillo, sitting for the Fifteenth Judicial Circuit, accepted the plea (A-7).¶
During the plea conference, Judge Pucillo asked Mr. Epstein whether any promises had been made to him besides the terms of the state plea (A-7:37-38). Mr. Epstein’s attorney advised the court of the “confidential [nonprosecution agreement with the United States Attorney’s Office] that the parties have agreed to.” (A-7:38). He informed the court that Mr. Epstein’s failure to comply with the terms of the state plea would violate the nonprosecution agreement (A-7:39-40).¶
Judge Pucillo then instructed Mr. Epstein’s attorney that she wanted¶
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“a sealed copy of that filed in this case.” (A-7:40). When Mr. Epstein’s attorney tried to comply, and file the non-prosecution agreement with the court, the clerk advised him an order was necessary. On July 2, 2008, the court entered an “Agreed Order Sealing Document in Court File” (A-9). An addendum to the non-prosecution agreement was filed under seal on August 25, 2008.¶
On July 7, 2008, Jane Doe 1 and Jane Doe 2 filed an independent action in federal court to compel production of the non-prosecution agreement (A-1). Mr. Epstein was not a party to the proceeding, but the United States Attorney’s Office opposed disclosure (A-2). On August 16, 2008, Judge Marra of the Southern District ordered the United States Attorney’s Office to produce the non-prosecution agreement to the Does’ attorneys and to any other victims and their counsel, provided they not disclose the terms to anyone else (A-2). As a result of this order, all victims, including those with civil suits against Mr. Epstein, have access to the non-prosecution agreement and addendum. They just cannot share it with others.¶
In September 2008, Jane Doe 1 and Jane Doe 2 filed motions in the federal criminal action to unseal the non-prosecution agreement (A-3). The¶
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United States Attorney’s Office opposed disclosure noting its confidentiality provision, the movant’s right to access the agreement, and Judge Marra’s protective order to which the movants voiced no objection (A-4). On February 12, 2009, $ ^{4} $ Judge Marra denied the motion, finding in pertinent part:¶
Petitioners’ mere desire to discuss the Agreement with third parties is insufficient, in and of itself, to warrant the granting of such relief. If and when Petitioners have a specific tangible need to be relieved of the restrictions, they should file an appropriate motion. If a specific tangible need arises in a civil case Petitioners or other alleged victims are pursuing against Epstein, relief should be sought in that case, with notice to the United States, the other party to the Agreement.¶
Rather than seeking relief from Judge Marra in federal court, nonparty E.W., a victim of Mr. Epstein, filed a motion in the state criminal action on May 12, 2009, seeking to intervene and unseal the non-prosecution agreement and addendum pursuant to Florida Rule of Judicial Administration 2.420(d)(5) (A-10). E.W. alleged that the proper procedures had not been followed in sealing the documents (A-10). E.W. claimed these documents are relevant to her civil action against Mr. Epstein and that she,¶
4 The order is mistakenly dated February 12, 2008 (A-6).¶
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as a member of the public, has a right to have them unsealed; and that continued sealing violates public policy (A-10).¶
On June 1, 2009, Palm Beach Newspapers d/b/a The Palm Beach Post (“The Post”) also moved in the state criminal action to intervene and access the agreement and addendum (A-11). The Post alleged the procedures for sealing had not been followed and that “good cause exists for unsealing the documents because of their public significance.” (A-11:3).¶
Fifteenth Judicial Circuit Judge Jeffrey Colbath heard E.W.’s and The Post’s motions in the state criminal action on June 10, 2009 (A-13). The court granted both motions to intervene, but deferred ruling on the motions to unseal pending a later hearing (A-13).¶
The next day, Mr. Epstein filed a Motion to Make Court Records Confidential (A-13). Mr. Epstein alleged that the documents should remain confidential to prevent a serious imminent threat to the fair, impartial, and orderly administration of justice; to protect a compelling government interest; to avoid substantial injury to innocent third parties; and to avoid substantial injury to a party by disclosure of matters protected by a common¶
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law and privacy right, not generally inherent in the specific type of proceeding sought to be closed (A-13).¶
Also on June 11, non-party B.B. filed motions to intervene and for an order unsealing the records, alleging grounds similar to non-parties E.W. and The Palm Beach Post (A-12).¶
Judge Colbath heard E.W.’s, The Post’s, and B.B.’s motions to unseal, and Mr. Epstein’s motion for confidentiality, on June 25, 2009 (A-16). The court granted E.W.’s, The Post’s, and B.B.’s motions and denied Mr. Eptsein’s (A-16:2). The court concluded:¶
At the time the state court took these matters under seal, the proper procedure for sealing such documents had not been followed … [and that] [n]either the State of Florida nor the U.S. Government nor Mr. Epstein have [sic] presented sufficient evidence to warrant the sealing of documents currently held by the court.¶
(A-16:2; A-18:43). The court ruled that “[t]his Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra’s previous Orders.” (A-16:3). Subsequent to this oral ruling, Mr. Epstein provided the court with a Motion for Stay (A-14). The court stayed disclosure until it could hear Mr. Epstein’s motion to stay, scheduled for the¶
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next day (A-16:3).¶
The court heard Mr. Epstein’s stay motion on June 26, 2009 (A-19). Mr. Epstein alleged that he will be irreparably harmed by disclosure of the non-prosecution agreement and addendum (A-14). No harm will be done if the documents remain under seal pending review by this Court (A-14). The court denied the motion, but stayed disclosure until noon on Thursday, July 2, 2009, so Mr. Epstein could seek review of the denial in this Court (A-17). Mr. Epstein has filed an emergency motion to review denial of stay in this Court, contemporaneously with this motion.¶
III. NATURE OF RELIEF SOUGHT¶
Mr. Epstein seeks to quash the June 25, 2009 order granting nonparties’ motions to unseal the confidential non-prosecution agreement and addendum between Mr. Epstein and the United States Attorney’s Office.¶
IV. ARGUMENT¶
The trial court departed from the essential requirements of law in granting the motions to unseal the confidential federal non-prosecution agreement and addendum between the United States Attorney’s Office and¶
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Mr. Epstein. These documents are subject to confidentiality provisions, which the federal court recognized and enforced when it permitted disclosure to the attorneys for Jane Doe 1 and Jane Doe 2, and to any other victims and their counsel, provided they not disclose the terms to anyone else. Disclosure violates a condition of the agreement, thereby vitiating the agreement between Mr. Epstein and the United States Attorney. Disclosure also violates Judge Marra’s two orders in the federal district court, denying disclosure to the parties. Judge Colbath paid lip service to this principle in stating that his “Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra’s previous Orders.” (A-16:3). But there is no way disclosure does not inherently violate Judge Marra’s orders.¶
The principle of supremacy required that the state court defer to the federal court on this issue. U.S. Const. Art. I § 8. These documents reference federal grand jury proceedings, which are protected under Federal Rule of Criminal Procedure 6(e)(2)—an attorney for the government “must not disclose a matter occurring before the grand jury.” As a consequence of the confidentiality provisions of the non-prosecution agreement, information that disclosed the existence and the subject matter of a federal grand jury¶
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proceeding which itself is protected by Federal Rule of Criminal Procedure 6(e) remains non-public, thus effectuating the privacy concerns addressed by the United States Supreme Court in Douglas and other cases. See e.g. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228-30 (1979). Under Rule 6(e), only a federal court can, absent findings, order the unsealing of federal grand jury proceedings. See Fed. R. Crim. P. 6(e)(3)(F), (G). Judge Colbath did not address this principle. Nor did Judge Colbath address the principle of comity, which required that the state court defer to the federal court, which has twice denied disclosure to third parties, on this issue.¶
The court erred in concluding that the non-prosecution and agreement were not properly sealed. The non-parties filed their motions to unseal pursuant to Florida Rule of Judicial Administration 2.420(d) (A-10, A-11, A-12). They alleged that Judge Pucillo failed to properly seal the documents under the procedure set forth in that rule (Id.). By its terms, however, the procedures for sealing in Rule 2.420(d) (titled, “Request to Make Circuit and County Court Records in Non-Criminal Cases Confidential”) do not apply to criminal cases. See Fla. R. Jud. Admin. 2.420, 2007 Court Commentary (“New subdivision (d) applies to motions that seek to make court records in¶
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non-criminal cases confidential in accordance with subdivision (c)(9).”); see also In re Amendments to Fla. R. Jud. Admin. 2.420—Sealing of Court Records & Dockets, 954 So. 2d 16, 17 & 23 (Fla. 2007) (declining to adopt specific procedure regarding the sealing of court records in criminal cases and referring the matter to rules committees for further study). Under the version of rule 2.420 in effect when the documents were sealed, there is no procedure for criminal proceedings.¶
Even under the prior version of rule 2.420, Judge Pucillo was not required to give prior notice of her intent to seal documents during the plea hearing. Committee Notes on the 1995 amendments discussing a prior version of Rule 2.420(c)(9)(D), make clear that advance notice is not always required:¶
Unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), the closure of court records has not required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding.¶
The local administrative rule the non-parties cite, 15th Judicial Circuit¶
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Administrative Order 2.303, is not applicable either. This Administrative Order addresses the procedures for sealing criminal and non-criminal court records, but was not adopted until September 29, 2008—months after Judge Pucillo sua sponte ordered the non-prosecution agreement and its addendum filed and sealed. The Administrative Order in effect when Judge Pucillo sealed these documents was 2.032-10/06. As explained above, the procedures designated therein would not apply since Judge Pucillo filed and sealed the documents sua sponte, not by motion. To the extent that the Administrative Order conflicts with the version of rule 2.420 then in effect, the rule prevails. Judge Pucillo was not required to follow Administrative Order 2.032 when she sealed the documents in June 2008.¶
Assuming compliance with procedures for confidentiality was required, Mr. Epstein met them. At all times, the rules of judicial administration provided that court records “shall be confidential” if a court has determined that confidentiality is required. Fla. R. Jud. Admin. 2.420(c)(9). Rule 2.420(c)(9) provides:¶
(c) Exemptions. The following records of the judicial branch shall be confidential:¶
(9) Any court record determined to be confidential in case decision or court rule on the grounds that¶
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(A) confidentiality is required to¶
(i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;¶
(ii) protect trade secrets;¶
(iii) protect a compelling governmental interest;¶
(iv) obtain evidence to determine legal issues in a case;¶
(v) avoid substantial injury to innocent third parties;¶
(vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed;¶
(vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law;¶
(B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and¶
(C) no less restrictive measures are available to protect the interests set forth in subdivision (A).¶
Fla. R. Jud. Admin. 2.420(c)(9). Thus, courts are required to seal court records upon a finding that closure is need to “prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice,” to “avoid substantial injury to innocent third parties” or to “avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding¶
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sought to be closed.” Fla. R. Jud. Admin. 2.420(c)(9)(i), (v), (vi).¶
Mr. Epstein’s Motion to Make Court Records Confidential satisfied these requirements; thus, the court erred in denying it. Mr. Epstein alleged three separate grounds for confidentiality. He first argued that confidentiality is necessary to protect a compelling government interest. He satisfied this prong since the United States Attorney’s Office has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. Judge Marra already balanced that interest against arguments for disclosure and struck a balance by requiring disclosure to plaintiffs and their lawyers, but not to third parties. Secondly, Mr. Epstein contended that maintaining confidentiality will avoid injury to innocent third parties, i.e., the other persons the United States Attorney’s Office agreed not to prosecute who will be harmed if the documents are unsealed. Thirdly, Mr. Epstein demonstrated that confidentiality is necessary to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Disclosure of these documents is not generally inherent in a state court plea hearing and will violate Mr. Epstein’s common law right to confidentiality.¶
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There is no prejudice to non-parties/interveners E.W., B.B. and The Post, if disclosure is stayed pending the outcome of Mr. Epstein’s emergency petition for certiorari. Mr. Epstein, on the other hand, will suffer irreparable harm once the documents are produced—a fact the trial court recognized (A-19:16).¶
CONCLUSION¶
This Court should grant certiorari and quash the June 25, 2009 order granting non-parties’ motions to unseal the confidential non-prosecution agreement and addendum between Mr. Epstein and the United States Attorney’s Office.¶
CERTIFICATION OF EXISTENCE OF EMERGENCY¶
Undersigned counsel certifies that the subject of this petition constitutes an emergency. The trial court’s order at noon on July 2, 2009, provides that the confidential federal non-prosecution agreement and addendum will be disclosed. Once these documents are disclosed, irreparable harm will result.¶
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I HEREBY CERTIFY that a copy of the foregoing has been sent by¶
E-Mail and Federal Express this 30£L day of June, 2009, to:¶
U. S. Attorney’s Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401¶
WILLIAM J. BERGER¶
ROTHSTEIN ROSENFELDT ADLER¶
401 East Las Olas Boulevard, Suite 1650¶
Fort Lauderdale, FL 33394¶
Counsel for E.W.¶
JUDITH STEVENSON ARCO¶
State Attorney’s Office-West Palm Beach¶
401 North Dixie Highway¶
West Palm Beach, FL 33401¶
SPENCER T. KUVIN¶
LEOPOLD-KUVIN, P.A.¶
2925 PGA Boulevard, Suite 200¶
Palm Beach Gardens, FL 33410¶
Counsel for B.B.¶
DEANNA K. SHULLMAN¶
400 North Ashley Drive, Suite 1100¶
P. O. Box 2602 (33601)¶
Tampa, FL 33602¶
Counsel for The Palm Beach Post¶
HONORABLE JEFFREY COLBATH¶
Palm Beach County Courthouse¶
205 North Dixie Highway¶
Room 11F¶
West Palm Beach, FL 33401¶
ROBERT D. CRITTON¶
BURMAN, CRITTON, LUTTIER & COLEMAN¶
515 N. Flagler Drive, Suite 400¶
West Palm Beach, FL 33401¶
and¶
JACK A. GOLDBERGER¶
ATTERBURY, GOLDBERGER & WEISS, P.A.¶
250 Australian Avenue South, Suite 1400¶
West Palm Beach, FL 33401¶
and¶
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JANE KREUSLER-WALSH and¶
BARBARA J. COMPIANI of¶
KREUSLER-WALSH, COMPIANI & VARGAS, P.A.¶
501 South Flagler Drive, Suite 503¶
West Palm Beach, FL 33401-5913¶
Counsel for Petitioner¶
By: Jane Fremler¶
JANE KREUSLER-WALSH¶
Florida Bar No. 272371¶
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