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Doe v. United States

United States District Court, S.D. Florida

September 16, 2019

JANE DOE 1 AND JANE DOE 2, Petitioners,
v.
UNITED STATES of AMERICA, Respondent.

          OPINION AND ORDER [1]

          KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE

         This cause is before the Court upon Jane Doe 1 and Jane Doe 2's Submissions on Proposed Remedies (DE 458); the Government's Response to Petitioners' Submission on Proposed Remedies (DE 462); Limited Intervenor Jeffery Epstein's Brief in Opposition to Proposed Remedies (DE 463); Jane Doe 1 and Jane Doe 2's Reply to the Government in Support of their Submission on Proposed Remedies (DE 464); Jane Doe 1 and Jane Doe 2's Reply to Intervenor Epstein's Brief in Opposition to Proposed Remedies (DE 466); Jane Doe 1 and Jane Doe 2's Statement Noting Death Pursuant to Rule 25 of the Federal Rules of Civil Procedure (DE 475); Response to Rule 25 Notice, and Suggestion of Mootness (DE 476) and Jane Doe 1 and Jane Doe 2's Motion to Strike Response to Rule 25 Notice (DE 477).

         On February 21, 2019, the Court entered its Order (DE 435) finding that the Government violated the Crime Victims' Rights Act (“CVRA”), 18 U.S.C. §3771, when it failed to confer with Petitioners prior to entering into a non-prosecution agreement (“NPA”) with Jeffrey Epstein (“Mr. Epstein”). The Court permitted the parties to brief and present additional evidence relative to the issue of what remedies, if any, should be imposed by the Court as a result. The briefing was extensive and the Court has carefully reviewed all of the arguments. No additional evidence was presented by any of the parties. Furthermore, during the time the matter was under advisement, Mr. Epstein died, which resulted in additional briefing. The Court will simply provide an abbreviated summary of the parties' arguments, given that the briefs are available on the public docket.

         Petitioners initially requested the following remedies: (1) rescind the provisions in the NPA between the U.S. Attorneys Office in the Southern District of Florida and Mr. Epstein that barred his prosecution and the prosecution of his named and unnamed alleged co-conspirators; (2) declare that the United States Constitution would permit such a prosecution; (3) enjoin the U.S. Attorney's Office to forthwith make its best efforts to protect the CVRA rights of Jane Doe 1 and Jane Doe 2 and other Epstein victims; (4) enjoin the U.S. Attorney's Office to forthwith confer with Jane Doe 1 and Jane Doe 2 and other Epstein victims to provide them with accurate and timely notice of future case events; (5) order a meeting for the victims with members of the current U.S. Attorney's Office and the former U.S. Attorney's Office, including former U.S. Attorney Alexander Acosta; (6) conduct a court hearing for victims, requiring the attendance of Mr. Acosta;[2] (7) provide various information to the victims including information in the Government's possession about why it did not prosecute Epstein's crimes, grand jury material, information from the Federal Bureau of Investigation (“FBI”), sealed material submitted by the Government to the Court and material filed by the Government in DE 414 and DE 348; (8) require the Justice Department to conduct a course of training for employees in the U.S. Attorney's Office in the Southern District of Florida about the CVRA and (9) order the Government to pay monetary sanctions, restitution, attorney's fees and costs.

         The Government asserts that these remedies are not authorized by the CVRA. The Government, however, states that it should have communicated more effectively with Petitioners and proposes the following remedies: (1) the Department of Justice will designate a representative to meet with Petitioners and other victims to discuss the decision to resolve the Epstein case; (2) the Government will participate in a public court proceeding in which Petitioners can make a victim impact statement and (3) all criminal prosecutors in the United States Attorney's Office for the Southern District of Florida will undergo additional training on the CVRA, victim rights and victim assistance issues.

         Prior to his death, Mr. Epstein addressed the rescission remedies proposed by Petitioners, asserting that they were unauthorized by the CVRA, precluded by contract law, the doctrines of judicial and equitable estoppel, substantive due process, separation of powers and ripeness. Mr. Epstein also opposed the Government's proposed remedy of a proceeding in which “unadjudicated victims” “make impact statements about a person who has not been convicted of, or facing sentencing for, a federal crime, ” (DE 463 at 61.)

         Petitioners provided the Court with a reply memoranda addressing both the Government's arguments (DE 464), as well as those of Mr. Epstein. (DE 466). On August 12, 2019, Petitioners filed a statement, noting Mr. Epstein's death. As part of that notice, Petitioners argue that Mr. Epstein's death rendered all of his objections to Petitioners' proposed remedies moot. (DE 475 at 1.) Moreover, Petitioners contend that most of the Government's objections which were “predicated on protecting Epstein's interests” are also moot. (Id.) Based on this theory, Petitioners urge the Court to grant all of Petitioners' proposed remedies, including invaliding the provisions in the NPA that precluded prosecution of Epstein's alleged co-conspirators. (Id.)

         Mr. Epstein's attorneys responded that his death rendered Petitioners' request for rescission of the NPA moot. Petitioners have asked the Court to strike this response since Mr. Epstein is dead, and therefore he should no longer have a voice in this proceeding.

         Remedies against Jeffrey Epstein and the Alleged Co-Conspirators

         Jane Doe 1 and Jane Doe 2 seek an order finding the provisions in the NPA barring the prosecution of Epstein's alleged co-conspirators null and void, to the extent they prevent their prosecution for federal crimes committed in the Southern District of Florida against Jane Doe 1 or 2 (or any other victim of a federal sex crime offense committed by Epstein's alleged co-conspirators within the Southern District of Florida).

         Article III of the U.S. Constitution grants the judiciary the authority to adjudicate cases and controversies. “In our system of government, courts have ‘no business' deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). “[A]n ‘actual controversy' must exist not only ‘at the time the complaint is filed,' but through ‘all stages' of the litigation.” Id. at 90-91; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (“To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed'”) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)); Gagliardi v. TJCV Land Tr., 889 F.3d 728, 733 (11th Cir. 2018) (a justiciable case or controversy must be present “at all stages of review.”)

         Here, there is no longer an Article III controversy permitting the Court to address the appropriateness of the remedy of rescission. As a result of Mr. Epstein's death, there can be no criminal prosecution against him and the Court cannot consider granting this relief to the victims. Id. at 733. (“Mootness demands that there be something about the case that remains alive, present, real, and immediate so that a federal court can provide redress in some palpable way.”); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (“If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,' at any point during litigation, the action can no longer proceed and must be dismissed as moot.”)

         Likewise, the Court is without jurisdiction to grant Petitioners' request for rescission of the NPA provisions with respect to Mr. Epstein's alleged co-conspirators. That request invites the Court to render an advisory opinion. “Strict application of the ripeness doctrine prevents federal courts from rendering impermissible advisory opinions and wasting resources through review of potential or abstract disputes.” National Advert. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005). “While the constitutional aspect of [the ripeness] inquiry focuses on whether the Article III requirements of an actual “case or controversy” are met, the prudential aspect asks whether it is appropriate for this case to be litigated in a federal court by these parties at this time.” Id.

         By requesting rescission of the NPA with respect to the alleged co-conspirators, Petitioners seek a ruling affecting the rights of non-parties to this case. If the Court granted such relief, and a criminal prosecution was to be instituted against the alleged co-conspirators, they would be free to assert the benefits, if any, which inured to them under the NPA as a bar to any prosecution. The question of the validity of the non-prosecution provisions of the NPA as they relate to the alleged co-conspirators will have to be litigated with their participation if any prosecution against them is ever brought. Any decision by this Court on that question is meaningless without their participation in this proceeding. Steans v. Combined Ins. Co. of Am., 148 F.3d 1266, 1270 (11th Cir. 1998) (“a judgment in personam is not binding on a party who is not designated as a party.”) Mr. Epstein chose to intervene in this case relative to the question of an appropriate remedy, and thus he would have been bound by any ruling issued by the Court. The alleged co-conspirators did not intervene, nor were they obligated to do so. See Martin v. Wilks, 490 U.S. 755, 763 (1989) (“a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined.”), superseded by statute in not relevant part as stated in, Landgraf v. USI Film Products, 511 U.S. 244 (1994). Moreover, no party to this proceeding sought to join them to this case. Since the alleged co-conspirators are not parties to this case, any ruling this Court makes that purports to affect their rights under the NPA would merely be advisory and is thus beyond this Court's jurisdiction to issue.[3]

         Request for Injunction

         Petitioners request that the Court issue an injunction requiring the U.S. Attorney's Office in the Southern District in Florida to make its “best efforts” to protect the CVRA rights of Mr. Epstein's victims, to confer with Jane Doe 1 and Jane Doe 2 and other Epstein victims who ...


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