EFTA00184084¶
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT¶
CASE NO: 4D09-2554¶
L.T. No. 2008 CF 9381¶
JEFFREY EPSTEIN,¶
Petitioner,¶
STATE OF FLORIDA,¶
THE PALM BEACH POST,¶
Respondents.¶
‘S SEALED REQUEST TO DISMISS THE PETITION FOR LACK OF JURISDICTION¶
Respondent,¶
, would show the Court as follows¶
- This Court lacks jurisdiction to hear this petition.
The order under review is a non-final order for which no appeal is provided by Rule 9.130. A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances. The order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.¶
Allstate Ins. Co. . Langston, 655 So.2d 91, 94 (Fla. 1995); Barad & Co. .¶
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McGuire, 670 So.2d 153 (Fla. $ 4^{\mathrm{th}} $ DCA 1996); see, Menke Broward School Bd, 916 So.2d 8 (Fla. $ 4^{\mathrm{th}} $ DCA 2005).¶
The requirement of irreparable harm is jurisdictional. Allstate; Barad & Co. A petitioner’s failure to demonstrate the satisfaction of this jurisdictional element should result in dismissal of a petition for writ of certiorari. Barad & Co.¶
As shown below, petitioner fails to meet this jurisdictional threshold.¶
- Disclosure of the NPA will not cause petitioner irreparable harm.
a. There is nothing in the NPA that is confidential and disclosure will not cause petitioner irreparable harm (“there’s no cat in the bag”).¶
Petitioner does not cite a single term, provision, sentence or word in the NPA $ ^{1} $ that is confidential. There are no “confidentiality provisions” in the NPA, contrary to petitioner’s misleading assertions (i.e., petition at page 10). There is not a single detail about this sex offender’s plea deal with the U.S. Attorney or the state attorney that should be hidden from the public.¶
A page-by-page review of the NPA demonstrates this. The first page discusses that local law enforcement have conducted investigations of¶
1 The undersigned attorneys were given a copy of the NPA through the federal proceedings before Judge Marra (see its response to the petition filed herewith), but, inexplicably, undersigned was not provided a copy of the Addendum. We have never seen it and do not know its contents.¶
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petitioner; that he was charged by indictment with solicitation of prostitution; that the U.S. Attorney and FBI have conducted their own investigation of his crimes against the United States from 2001-2007 including crimes for inducing minor females to engage in prostitution; conspiring to use interstate commerce to engage in illicit sexual conduct; using interstate commerce to induce minor females to engage in prostitution; traveling in interstate commerce to engage in illicit sexual conduct with minor females; recruiting minors to engage in a commercial sexual act.¶
The second page provides that petitioner wishes to resolve globally his state and federal charges; that the interests of the state, the United States and petitioner would be served by so doing; that prosecution by the U.S. Attorney shall be deferred in favor of prosecution by the state provided petitioner abides by the agreement; that should petitioner violate any conditions of the agreement he may be prosecuted for any offense; that if petitioner fulfills the terms of the agreement, the U.S. Attorney will not prosecute him for any offense.¶
The third page discusses that he will plead guilty to state charges of solicitation of prostitution and solicitation of minors to engage in prostitution and be registered as a sex offender; he will agree to a county jail sentence of 18 months for the two charges followed by 12 months¶
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community control; the state judge must approve the sentence; the agreement does not preclude petitioner and the state attorney from agreeing to recommend additional charges or additional terms of probation or incarceration; petitioner waives his rights; petitioner shall provide the U.S. Attorney with copies of his agreements with the state attorney.¶
Page four provides that the United States shall provide petitioner with a list of victims; the United States shall select an attorney to represent the victims; if any victims files suit based on federal claims petitioner will not contest them; he is not admitting liability by signing this agreement; that he will use his best efforts to plead guilty by a certain date.¶
Page five provides that he will not be treated differently than any other offender as to county jail gain time; that the parties anticipate this agreement will not be made part of any public record but if there is a Freedom of information Act Request or compulsory process on the United States for this agreement, the U.S. will give petitioner notice before disclosing the agreement; that the U.S. Attorney cannot guarantee what the state attorney does; that the United States will not prosecute potential co-conspirators; that ongoing grand jury proceedings will be halted.¶
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Page six provides there is consideration for the NPA and a breach allows the United States to elect to terminate it; that petitioner waives certain rights.¶
Finally, page seven provides that petitioner has read the agreement and understands it.¶
Where is there a single confidential term, provision, sentence or word in the NPA the disclosure of which will cause petitioner irreparable harm? The answer is there is none.¶
Will it cause petitioner irreparable harm for the public to learn that he and the U.S. Attorney agreed he will be sentenced in state court to a mere 18 months county jail time (in his home county, not a prison, with all the usual gain time and work release benefits not available in the state prison system, so he serves about 60% of the sentence) plus 12 months non-sexual offender community control, for solicitation of a minor to engage in prostitution, a second degree felony punishable by up to 15 years in prison, and felony solicitation of prostitution, a third degree felony punishable by up to 5 years in prison?¶
Will it cause petitioner irreparable harm for the public to learn that if petitioner fulfills the terms of the agreement, the U.S. Attorney will not¶
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prosecute him for a single federal crime he committed against multiple minor female victims?¶
Will it cause petitioner irreparable harm for the public to learn the state attorney will only prosecute him for just two of his crimes involving only just two of his minor female victims and that he does not face any further state prosecution for all his other crimes against the many more minor female victims identified by the U.S. Attorney?¶
Will it cause petitioner irreparable harm for the public to know that the other participants in his criminal enterprise for procuring minor females to engage in prostitution, co-conspirators Lesley Groff and will not be prosecuted at all?¶
Will it cause petitioner irreparable harm for the public to learn that an attorney will be appointed to represent his other minor female victims in civil lawsuits; that, if they bring only a single specified federal cause of action, he will not contest, but not admit, liability, but if they bring other causes of action such as battery or intentional infliction of emotional distress, he can defend in any manner he choices?¶
Will it cause petitioner irreparable harm for the public to know that the U.S. Attorney and the state attorney have utterly compromised their roles¶
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as prosecutors and protectors of the public safety by entering into this sweetheart deal with petitioner?¶
As in the old Wendy’s commercial, “Where’s the beef?”¶
b. The parties to the NPA did not agree it would be confidential; in fact, the United States agreed the NPA would be publicly disclosed if a Freedom of Information Act Request or compulsory process were made to disclose it.¶
There is nothing in the record to support petitioner’s assertion that the parties agreed to confidentiality. Petitioner has not proven by any evidence extrinsic to the NPA that it was intended to be confidential.¶
The wording of the NPA, moreover, does not show it was intended by both parties to be confidential. The NPA on its face does not state anywhere that it is confidential. The word “confidential” does not appear in it. There is not a single term, provision, sentence or word in it where both parties affirmatively agree to keep it confidential. The term “confidential” essentially means that something is “meant to be kept secret.” Black’s law dictionary (8th ed. 2004). The NPA does not contain an expression of this intent. In fact, the parties to it expressly agree to the contrary: that the United States will disclose the NPA if a Freedom of Information Act Request or compulsory process is made to disclose it:¶
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The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure.¶
(NPA, paragraph 13(emphasis added.)¶
The first sentence of the above quote does no more than state an expectation by both sides that they do not anticipate the document being made part of a public record, i.e., not filed in federal court. At most it states merely an intent that neither side will take affirmative steps to make place it in a public record. But that is not a provision that the document is confidential or that it will be kept confidential. In the same paragraph, the United States agrees to disclose the NPA if a Freedom of Information Act Request or compulsory process for the document is made.¶
In fact, with all the hearings held in state court to the present on this issue, the United States, which was always noticed, has not once intervened in state court to request that the document remain sealed. A representative of the U.S. Attorney’s office has not even appeared at any of the hearings before the trial judge below on this issue. Moreover, at the plea colloquy, representatives of the United States were present and did not object to the¶
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terms of the agreement being discussed on the record or being placed in the state court file (see below) $ ^{2} $¶
Also, the text of the NPA quote above (par. 13) shows that petitioner’s arguments based on the supremacy clause and the doctrine of secrecy of grand jury proceedings are wholly without merit. Can these arguments have any conceivable validity if the U.S. Attorney agreed to publicly disclose the NPA if there were a Freedom of Information Act Request or compulsory service of process? There should be no serious consideration given to petitioner’s contention that the U.S. Attorney intended to look to petitioner to protect the rights of the United States under the supremacy clause or to protect the sanctity of the doctrine of federal grand jury secrecy. This is but another smoke-screen.¶
c. Petitioner himself and the state prosecutor already publicly disclosed the contents of the NPA (“the cat’s already out of the bag”).¶
At the plea colloquy (A-8), with representatives of the U.S. Attorney present, petitioner’s attorney and the prosecutor disclosed on the record, in public, the essential terms of the NPA. After the trial judge cautioned¶
2 It was noted on the record that representatives of the U.S. Attorney were present in court. A-8, page 39, lines 22-23.¶
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counsel that any sidebar conversation would be on the record, the following exchange occurred:¶
MR. GOLDBERGER [petitioner’s counsel]: The reason why I asked to come sidebar is there is a nonprosecution agreement with the United States Attorney’s office that triggers as a result of the plea agreement. In other words, they have signed off and said they will not prosecute Mr. Epstein in the Southern District of Florida for any offense upon his successful [sic] taking of this plea today. That is a confidential document that the parties have agreed to. I wanted to tell the court.¶
THE COURT: I understand, that would also be invalidated should he violate community control?¶
MR. GOLDBERGER: Absolutely. That nonprosecution agreement___¶
MS. [the state prosecutor]: They spell all that out.¶
THE COURT: Mr. Epstein needs to come closer.¶
Mr. Epstein, your attorney has told me that in addition to everything, we talked about another inducement, shall we say, to your taking this plea is that the U.S. Attorney for the Southern District of the State of Florida, federal prosecutor, has agreed to a nonprosecution agreement with you, meaning that if you successfully complete probation and do everything you’re supposed to, they have, have agreed not to prosecute you federally, did you understand that?¶
THE PETITIONER: Yes, ma’am.¶
(A-8, pages 38-39)(emphasis added).¶
We can see from the page-by-page review of the NPA (section 2a. above) that the other provisions of the NPA are incidental to the highlighted quotations. The substance of the NPA is the publicly disclosed provision that the U.S. Attorney will not prosecute petitioner for any federal offense¶
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upon his pleading guilty to the two state crimes and agreeing to the sentence discussed in the plea colloquy.¶
CONLUSION¶
For the reasons stated above, it is respectfully requested that the petition for certiorari be dismissed for lack of jurisdiction.¶
I HEREBY CERTIFY that a copy of the foregoing has been served by mail on the parties listed below this 13 day of July, 2009.¶
I HEREBY CERTIFY that the foregoing is submitted in Times New Roman 14-point font and complies with the font requirement of Rule 9.100.¶
ROTHSTEIN ROSENFELDT ADLER Attorneys for¶
401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301¶
Telephone Telecopier (954) 52748663¶
SERVICE LIST¶
Kreusler-Walsh, Compiani & Vargas, P.A.¶
501 South Flagler Drive, Suite 503¶
West Palm Beach, Fl 33401-5913¶
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Robert D. Critton¶
Burman, Critton, Luttier & Coleman¶
515 North Flagler Drive, Suite 400¶
West Palm Beach, Fl 33401¶
Jack A. Goldberger¶
Atterbury, Goldberger, & Weiss, P.A.¶
250 Australian Avenue South, Suite 1400¶
West Palm Beach, Fl 33401¶
U. S. Attorney’s Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401¶
Honorable Jeffrey Colbath¶
Palm Beach County Courthouse¶
205 North Dixie Highway¶
Room 11F¶
West Palm Beach. Fl 33401¶
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