## (USAFLS)
From:Roy Black
Sent:Wednesday, February 11, 2015 8:50 AM
To:(USAFLS)
Subject:RE: Your phone call
Great. Speak to you then. -----Original Message----- From: . (USAFLS) [mailto] Sent: Wednesday, February 11, 2015 8:49 AM To: Roy Black Subject: Re: Your phone call Hi Roy. Thanks for your message. Dexter wants to participate in the call so it is helpful to have a roadmap of the discussion points. We will call your office at 2:00. If there is a better number to call, just shoot me an email. Talk to you soon. Assistant U.S. Attorney Southern District of Florida 500 S. Australian Ave, Ste 400 West Palm Beach, FL 33401 On Feb 10, 2015, at 7:35 PM, "Roy Black" • Marie I was not calling you about the correspondence so don't worry about that. I called you to discuss the plaintiff's replies filed as dockets 310 and 311. We think there are serious misstatements by them in these pleadings. So I just wanted to let you know what our suggested responses are. I have decided to summarize them here because it is easier than going through it on the phone and I assume you need to discuss this with dexter. JD 3 is willing to sign any affidavit put before her and it is hard to stomach. Whenever they have a problem they just have her file a new affidavit. I admit I am steamed and biased about this because of the trashing of alan's reputation. This makes me sick. I don't mind defending almost any accusation but gratuitously destroying a man like alan is going beyond any ethical boundaries. How about if I call you at 2 tomorrow? 1. The CVRA case is a Complaint about whether certain statutory rights were violated by the Govt. The Govt not JE is the defendant. Whether JD 3 or JD 4 are or are not victims is not the test of whether they are proper petitioners: they also must allege a basis for the allegations that their rights to consultation and notification were violated. JD 4 was not even known to the Govt: by definition how could she have been notified or consulted? JD 3 informed the Govt in 2007 that she did not want to be contacted or "bothered" again, DKT 304-1. The FBI case agent participated in the conversation. The FBI provided JD 3 with their contact information. She did not contact the FBI or USAO again seeking to assert her rights as a crime victim until 4 years later. Again, by definition, she rejected rights to consultation and notification in this conversation with the Government and in her subsequent decision to avoid any involvement with the FBI until she was again interviewed in 2011; 1 EFTA00188608 EFTA00188609 2. JD 3 was not a minor during the critical time periods. She was 23 when interviewed by the FBI in 2007. She was 25 when she received a specific notification in September of 2008 (Dkt 290-1) that the federal investigation of JE had concluded with a state plea and sentence (this was only 2 months after the sentence and the beginning of state incarceration). Rather than contesting the resolution that the USAO reached with JE in a timely manner, she exploited it by suing JE as Jane Doe 102 and reaching a favorable financial settlement by taking advantage of the attorney representative and the waiver of liability provisions of the NPA. By the time of her lawsuit in early 2009, the NPA had been unsealed, was in the possession of her counsel, was mentioned in her lawsuit, and yet she did nothing for 5 years (other than receiving a monetary settlement) to pursue her alleged grievances in court; 3. The Complaint by JD 3 (then Jane Doe 102 as stipulated to by her counsel in Dkt 311 at 4) made all of the same factual allegations as she makes in 2014 and, importantly, in par 32, states that following an investigation by the FBI and USAO JE pled guilty to state offenses. She had all the information available to her in early 2009 that she needed to contest the NPA and pleas of guilty if she so chose; 4. Judge Marra himself said "there is no logical reason to treat a 'non-prosecution agreement' which the government employs to dispose of contemplated federal charges any different from a 'plea agreement' employed to dispose of charged offenses in interpreting remedies available under the CVRA. Where the statute expressly contemplates that a 'plea' may be set aside if entered in violation of CVRA conferral rights, it necessary contemplates that a 'non-prosecution' agreement may be set aside if entered in violation of the government's conferral obligations", Dkt 189 at 9. In short, the law of the case dictates that the test for whether the Motion to Join is timely is the test that would apply to efforts to rescind a plea and sentence. 5. The proper test of the timing of the Motion to Join (or any later Complaint) is found within 18 USC 3771(d)(5) styled "Limitation of Relief" where a crime victim may make a motion to re-open a plea or sentence only if "the victim has asserted the right to be heard before or during the proceeding at issue ...". This provision is enacted to prevent delay and its concomitant prejudice to a defendant who is serving a sentence that the "victim" wishes to re-open or challenge. By delaying her attempt to re-open the NPA (which is not only analogous to a "plea and sentence" but expressly incorporates the imperative of JE pleading guilty in state court) JD 3 waived her right to contest the NPA; 6. JD 3 seeks to rescind the NPA (See Dkt 311 at 7). She therefore seeks to rescind the plea and state sentence. These were fully served during the very time she sought monetary benefits by delaying joining the ongoing CVRA case. Judge Marra found that the delay in proceeding on an expedited basis as to JD 1 and 2 was attributable to their prioritizing their monetary lawsuit, DKT 189 at 5 (finding that for 18 months the CVRA stalled as the petitioners pursued their collateral lawsuits against JE). These delays also contradicted a second statutory mandate - that district courts "decide any motion asserting a victim's rights forthwith" with a limit on continuances of 5 days and a short period to appeal adverse decisions, 18 USC 3771(d)(3). The entire statutory scheme is to avoid delay in part to vindicate claimed rights, in part to prevent a rescission or re-opening after the defendant has suffered the full prejudice of serving his sentence as JE has here. (See DKT 290 at 2-4) 7. The SOL is not the test for whether the Govt and JE has been prejudiced by delay. SOL are procedural which is why they can be extended after the date when the alleged offense occurred (if they were substantive, such an extension would constitute an ex post facto violation of a defendant's rights). If civil procedure is being used for purposes of broadening discovery (See Dkt 310 at 5), then the civil SOL should apply. The criminal SOL has nothing to do with the CVRA. Under the Petitioners theory, Jane Doe 3 could wait until she is 60 or 70 years old to bring the CVRA complaint (Dkt 311 at 9). 2 EFTA00188610 EFTA00188611 8. Jane Doe 3's residing in did not prevent her from joining the CVRA case. The case was widely reported in the media as was the NPA (DKT 290 at 7 fn 7 where Govt identifies an internet search that would have disclosed the CVRA as of July of 2008). She herself gave media interviews as early as 2011. She was not too frightened to go on the offensive with . She was never threatened. She could easily have asked to join the CVRA complaint as a "victim" living " but chose not to. (Dkt 311 at 11) 9. Jane Doe 3 claims she did not learn the specifics of the CVRA until 2014 (Dkt 311 at 11) but she knew about the NPA which was made public and discussed by the media and was the basis of her 2009 lawsuit, she knew by her receipt of a letter from the USAO dated 9-3-08 that JE had pled guilty and was sentenced and that the USAO had "agreed to defer federal prosecution in favor of this state plea and sentence", Dkt 290 at 4, Dkt 290-1, she knew as of 9-3-08 that there was ongoing litigation involving two other victims (Dkt 290-1, Dkt 311 at 12), and she was making herself publicly available by giving interviews to the and to Edwards and Scarola in 2011. She was an adult in 2008 (25) and 2011 (28). She has a responsibility to join the lawsuit prior to the completion of JE sentence. Principles of laches should estop this long delayed effort to rescind the very agreement that she benefited from via her earlier 2255 lawsuit. Sent: Tuesday, February 10, 2015 3:37 PM To: Roy Black Subject: Your phone call Hi Roy - I have been trying again to get an answer to your question from weeks ago about the correspondence before I called you back. I still do not have an answer. Why don't we set up a time tomorrow to talk, and hopefully I will have an answer by then. I am free any time before 4:30. Thanks. Assistant U.S. Attorney 500 S. Australian Ave, Suite 400 West Palm Beach, FL 33401 3 EFTA00188612