EFTA00206353 Subject: Call from Newsweek Hi . Received a voicemail from Newsweek (which now includes ) while I was at the doctor's office from Akin (sp?) And Sarnoff saying they wanted comment from me on a letter they received on the Epstein prosecution. My guess is it is either Cassell's letter or response thereto. They are going to print tomorrow. Monday, March 21, 2011 9:57 AM RE: Planned response to tomorrow's filing by Cassell At the conclusion of the emergency hearing in July 2008, the court asked the parties to meet and decide whether there were any disputed facts, so the court could schedule a hearing. We told Edwards the only relevant fact was whether any charges had been filed against Epstein in federal court, and it was not disputed the answer was “no.” Edwards disagreed and attempted to include other “facts” which he believed to be relevant to the resolution of the legal question of whether the government had a duty to consult with the victims under 18 U.S.C. 3771(a)(5). I don’t believe the filing of the motion you suggest will achieve the result of preemptively striking Cassell’s motion to enforce. The court will have to decide whether the resolution of any disputed facts is required, in order to resolve the legal issue. The government says no; the victims say yes. The court is not likely to resolve this question without looking at the factual issues the victims contend are relevant, and considering the arguments of each side as to why those issues are, or are not, relevant to the resolution of the dispute. If we file the motion you suggest, the victims will oppose it and argue the facts alleged in their motion to enforce are indeed relevant, and should be considered. We will argue the victims’ factual issues are not material and/or relevant, and the court should only consider that no federal charges were ever filed against Epstein. This is what is going to happen when the government responds to the victims’ motion to enforce. We have a number of arguments that victims are not entitled to full-blown discovery, as a party would be entitled to in a true civil action. It’s more than a little ironic that Cassell told us he had done these cases all over the country, and he had never had to file a complaint. Now he claims the Federal Rules of Civil Procedure, to say nothing of Brady and Giglio, also apply.
From:(USAFLS)
Sent:Sunday, March 20, 2011 2:40 PM
To:(USAFLS)
Cc:(USAFLS);(USAFLS)
Subject: Planned response to tomorrow's filing by Cassell
Hi – What would you think about this plan for a response to tomorrow’s filing by Cassell? Rather than wait our two weeks to file a response to his onslaught, we simply file something tomorrow (after Cassell’s is EFTA00206354 filed) or Tuesday that is entitled: Request for Ruling on Emergency Petition. We can state that the petition was fully-briefed back in 2008 and that, as you stated in DE17, the only relevant fact is that Epstein entered a guilty plea in state court. Their motion for summary judgment is an attempt to enlarge their “emergency petition” into a full fledged cause of action and 18 USC 3771(d)(6) specifically states that there is no separate cause of action for a violation, so they cannot file a Complaint. They also cannot reopen a plea or sentence under 3771(d)(5). You may have already seen this, but take a look at US v. Hunter, 548 F3d 1308 (10th Ciri 2008), where Cassell tried to override the limitation on victims’ rights to appeal sentences. Cassell represented the victims, and the 10th Circuit has a good discussion on how victims cannot override prosecutorial discretion, quoting from 18 USC 3771(d)(6). Cassell has, however, been successful in the 11th , in In re Stewart, 552 F.3d 1285 (11th Cir. 2008), where Cassell filed a writ of mandamus to have the Middle District of Florida recognize home purchasers as victims in a guilty plea to an Information by a bank executive. The executive was pleading guilty to money laundering where the underlying criminal activity involved charging fraudulent loan origination fees to the victims. With regard to the issue of discovery, I think that the language in 18 USC 3771(d)(6) that there cannot be a separate cause of action is helpful. That means that this is not truly a civil case – it should have been filed annexed to a civil case, where civil discovery rules would not apply. Since there is not criminal case, the Clerk’s Office filed it with a civil case number, but the Court has the discretion to decide that discovery is not appropriate. See Alphin v. United States, 809 F.2d 236 (4th Cir.), cert. denied 480 U.S. 935 (1987) (district court may suspend or limit application of civil rules in summary proceedings). Assistant U.S. Attorney Conchita Sarnoff is now calling DC – see emails below. Her first question (separate email) was based on her “understanding’ that the appellate Chief in DC had approved all actions in that case (that was not the case) She has not called me at all on this.