UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. UNITED STATES' SEALED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION The United States hereby requests that this Court enter an order dismissing these proceedings and the Petition for Enforcement of Crime Victim's Rights Act, 18 U.S.C. Section 3771 (DE I, the "Petition"), through which Petitioners Jane Doe #1 and Jane Doe #2 have advanced claims pursuant to the Crime Victims' Rights Act ("CVRA"), for lack of subject matter jurisdiction.' This Court lacks subject matter jurisdiction over the Petition because I See, e.g., Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004) ("Challenges to subject-matter jurisdiction can of course be raised at any time prior to final judgment.”); United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (recognizing that "a party may raise jurisdiction at any time during the pendency of the proceedings"): Harrell & Sumner Contracting Co. v. Peabody Petersen Co.. 546 F.2d 1227, 1229 (5th Cir. 1977) ("11.11nder Rule 12(hX3), Fed.R.Civ.P., the defense of lack of subject matter jurisdiction may be raised at any time by motion of a party or otherwise."); see also Fed. R. Civ. P. 12(h)(3). In the present motion, the United States seeks dismissal of Petitioners' claims based on both a legal and factual challenge to the Court's subject matter jurisdiction. This Court may properly consider and weigh evidence beyond Petitioners' allegations when evaluating such a challenge to the Court's subject matter jurisdiction: Factual attacks (on a Court's subject matter jurisdiction] . . . -challenge subject matter jurisdiction in fact, irrespective of the pleadings." In resolving a factual attack. the district court "may consider extrinsic evidence such as testimony and affidavits." Since such a motion implicates the fundamental question of a trial 1 EFTA00205154 Petitioners lack Article 111 standing and because the claims raised by Petitioners in these proceedings are not constitutionally ripe. I. The Claims Raised in the Petition Must Be Dismissed for Lack of Subject Matter Jurisdiction Because the Petitioners Lack Standing to Bring Those Claims. These proceedings pursuant to the CVRA must be dismissed for lack of subject matter jurisdiction because Petitioners lack standing to pursue the remedies that they are seeking for alleged CVRA violations. As the Supreme Court has explained, to satisfy Article s standing requirements, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000); see also. e.g., Young Apartments, Inc. v. Town ofJupiter, 529 F.3d 1027, 1038 (1 I th Cir. 2008) (quoting Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994) (en banc)). Moreover, "a plaintiff must demonstrate standing separately for each form of relief sought.- Friends of the Earth. 528 U.S. at 185. Here, the record incontrovertibly demonstrates that Petitioners cannot satisfy the third prong of the standing test, and the Petition and these proceedings must accordingly be dismissed for lack of subject matter jurisdiction.2 E.g., Florida Wildlife Federation, Inc. v. South Florida court's jurisdiction, a "trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case" without presuming the truthfulness of the plaintiffs allegations. Makro Capital of America. Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (citations omitted); see also. e.g., McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999) ("[W]e determine whether this lawsuit survives the government's factual attack [on subject matter jurisdiction] by looking to matters outside the pleadings, and we do not accord any presumptive truthfulness to the allegations in the complaint.”): Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (1 I th Cir. 1999). 2 Although Petitioners also fail to satisfy the first and second prongs of the standing test, 2 EFTA00205155 Water Management Dist, 647 F.3d 12%, 1302 (11th Cir. 2011) ("If at any point in the litigation the plaintiff ceases to meet all three requirements for constitutional standing, the case no longer presents a live case or controversy, and the federal court must dismiss the case for lack of subject matter jurisdiction;'); Phoenix of Broward, Inc. v. McDonald's Corp., 489 F.3d 1156, 1161 (11th Cir. 2007) ("[T]he issue of constitutional standing is jurisdictional . . . ."); National Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003) ("[B]ecause the constitutional standing doctrine stems directly from Article 11I's 'case or controversy' requirement. this issue implicates our subject matter jurisdiction, and accordingly must be addressed as a threshold matter regardless of whether it is raised by the parties.") (citation omitted). In these proceedings, the only identified legal relief that Petitioners have sought pursuant to the CVRA is the setting aside of the Non-Prosecution Agreement that was entered into between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of Florida ("USAO-SDFL-). See, e.g., DE 99 at 6 (recognizing that the relief Petitioners seek "is to invalidate the non-prosecution agreement"). But even assuming arguendo that Petitioners' rights under the CVRA were violated when Epstein and the USAO-SDFL entered into the Non- Prosecution Agreement, constitutional due process guarantees do not allow either the Non- Prosecution Agreement — which by its terms induced Epstein to. inter alia, plead guilty to state criminal charges and serve an 18-month sentence of state incarceration3 — or the governmental this Court need not reach or address those issues because an analysis of the third prong of the standing test incontrovertibly establishes the Petitioners' lack of standing. Nonetheless. the circumstances which demonstrate Petitioners' lack of a concrete injury traceable to government conduct are explored infra in Section 11 of this memorandum. which addresses how Petitioners' claims and these proceedings lack constitutional ripeness. 3 See also July 11, 2008 Hr'g Tr. at 20-21 (Petitioners' acknowledgement that Epstein's reliance on promises in Non-Prosecution Agreement led to his guilty plea to state charges and his 3 EFTA00205156 obligations undertaken therein to be set aside.' See, e.g., Santobello v. New York, 404 U.S. 257, 262 (1971) ("(W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."); United Slates v. Harvey, 869 F.2d 1439, 1443 (11th Cir. 1989) ("Due process requires the government to adhere to the terms of any plea bargain or immunity agreement it makes."). Indeed, even if this Court were somehow to set aside the Non- Prosecution Agreement on the authority of the CVRA, and even if after consultation with Petitioners the United States determined that it would be proper and desirable to institute a criminal prosecution in the Southern District of Florida against Epstein on the criminal charges contemplated in the Non-Prosecution Agreement, the United States would still be constitutionally required to adhere to the negotiated terms of the Non-Prosecution Agreement. See, e.g., Santobello, 404 U.S. at 262; Harvey, 869 F.2d at 1443. Due process considerations further bar this Court from setting aside a non-prosecution agreement that grants contractual rights to a contracting party (Epstein) who has not been made a party to the proceedings before the Court. See, e.g., School Din. of City of Pontiac v. Secretary of U.S. Dept qf Educ., 584 F.3d 253. 303 (6th Cir. 2009) ("It is hornbook law that all parties to a contract are necessary in an action challenging its validity Dawavendewa v. Salt River Project Agr. Imp. & Power Din., 276 F.3d 1150, 1157 (9th Cir. 2002) ("[A] party to a contract is necessary. and if not susceptible to joinder, indispensable to litigation seeking to decimate that subsequent I8-month state incarceration). To the extent that the Petitioners' requested invalidation of the Non-Prosecution Agreement would implicitly reject and nullify the correctness of both the state court's acceptance of Epstein's guilty plea and the resulting judgment of conviction -which were induced in pan by the Non-Prosecution Agreement - such judicial action might raise additional questions about this Court's jurisdiction under the Rooker/Feldman doctrine. See. e.g., Casale v. Tillman. 558 F.3d 1258. 1260-61 (11th Cir. 2009); Powell v. Powell. 80 F.3d 464. 466-68 (11th Cir. 1996). 4 EFTA00205157 contract."); Lomayaktewa v. Hathaway. 520 F.2d 1324, 1325 (9th Cir. 1975) ("No procedural principle is more deeply imbedded in the common law than that, in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable."); see also National Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940) ("It is elementary that it is not within the power of any tribunal to make a binding adjudication of the rights in personam of panics not brought before it by due process of law.-).5 Additionally, a "favorable ruling" from this Court will not provide Petitioners with anything for the alleged CVRA violations that is not already available to them. For the due process reasons already discussed above, the United States must legally abide by the terms of the Non-Prosecution Agreement even if this Court should somehow set the agreement aside for Petitioners to consult further with the government attorney handling the case. The present proceedings under the CVRA must accordingly be dismissed for lack of standing because Petitioners simply have no injury that is likely to be redressed by a favorable ruling in these proceedings. See. e.g.. Scott v. Taylor, 470 F.3d 1014, 1018 (11th Cir. 2006) (holding that there was no standing where it was speculative that remedy that Plaintiff sought 5 Significantly, it is Epstein's contractual rights under the non-prosecution agreement that Petitioners seek to void through these proceedings. 5 EFTA00205158 would redress claimed injury). IL The Claims Raised in the Petition Are Not Constitutionally Ripe, and These Proceedings Must Thus Be Dismissed for Lack of Subject Matter Jurisdiction. This Court must also dismiss these proceedings for lack of subject matter jurisdiction because the Petitioners' claims are not constitutionally ripe. Ripeness. like standing. "originate[s] from the Constitution's Article 111 requirement that the jurisdiction of the federal courts be limited to actual cases and controversies." Elend v. Basham, 471 F.3d 1199, 1204-05 (11th Cir. 2006). "'The ripeness doctrine keeps federal courts from deciding cases prematurely,' Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227 (11th Cir. 2006). and 'protects [them) from engaging in speculation or wasting their resources through the review of potential or abstract disputes,' Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997)." United States v. Rivera, 613 F.3d 1046, 1050 (11th Cir. 2010): see also Pittman v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) ("'The ripeness doctrine prevents] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . .'") (quoting Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1315 (11th Cir. 2000) (citations and quotations omitted))). Under the ripeness doctrine, a court must therefore determine "'whether there is sufficient injury to meet Article Ill's requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking by the court." In re Jacks, 642 F.3d 1323, 1332 (1 1 th Cir. 2011) (quoting Cheffer v Reno, 55 F.3d I517. 1524 (11 th Cir. 1995)). When evaluating whether a claim is ripe. a court considers: "(I) the fitness of the issues for judicial decision, and (2) the hardship to the panics of withholding court consideration.- ' (quoting Cheffer, 55 F.3d at 1524 (citing Abbott Labs. v. Gardner, 387 U.S. 136. 149 (1967))); 6 EFTA00205159 see also, e.g., Association For Children for Enforcement of Support, Inc. v. Conger. 899 F.2d 1164, 1165 (11th Cir. 1990). Under the doctrine. "[a] claim is not ripe when it is based on speculative possibilities." In re Jacks. 642 F.3d 1323, 1332 (I I th Cir. 2011), such as if the claim "'rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all," Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1404 (11th Cir. 1998) (quoting Texas v. United States, 523U.S. 296, 300 (1998)). Indeed, "[t]he ripeness doctrine is designed to prevent federal courts from engaging in such speculation and prematurely and perhaps unnecessarily reaching constitutional issues." Pittman, 267 F.3d at 1280. In these proceedings, the Petitioners have sought to set aside the Non-Prosecution Agreement between Epstein and the USAO-SDFL so that Petitioners can "confer with the attorney for the Government" about the possible filing of federal criminal charges against Epstein and the potential disposition of any such charges. See, e.g., July 11, 2008 Hr'g Tr. at 6-7 (seeking an "[o]rder that the [non-prosecution] agreement that was negotiated is invalid" so that Petitioners can exercise the right to confer with the government); id. at 19-20, 24; 18 U.S.C. § 3771(aX5); see also DE I at 215 (claiming that Petitioner was "denied her rights" under the CVRA because she "received no consultation with the attorney for the government regarding the possible disposition of the charges"). At least one attorney for the government (Assistant United States Attorney from the USAO-SDFL) had spoken to Petitioners about the offenses committed against them by Epstein prior to the signing of the Non-Prosecution Agreement. see. e.g.. July 11. 2008 Hr'g Tr. at 22 (acknowledging that prosecutors spoke to Petitioners "about what happened" to them); DE 7 EFTA00205160 48 at 6 1 8: see also DE 99 at 3, and government attorneys have on multiple occasions offered to confer with Petitioners, see, e.g., July 11. 2008 Hr'g Tr. at 13 ("1 will always confer. sit down with Jane Doe 1 and 2, with the two agents and We'll be happy to sit down with them."). Indeed, on December 10, 2010. the United States Attorney for the Southern District of Florida, accompanied by supervisory and line prosecutors from the USAO-SDFL, personally conferred with Petitioners' counsel and with Petitioner Jane Doe #1 and entertained discussion about Petitioners' desires to see Epstein criminally prosecuted on federal charges.? The United States Attorney and prosecutors in the USAO-SDFL have also corresponded with Petitioners' counsel on multiple occasions about Petitioners' desires to have Epstein criminally prosecuted on federal charges! ' The United States Attorney also offered to confer with Jane Doe #2, but Jane Doe #2 declined the invitation and did not attend the meeting that was scheduled with the United States Attorney. 8 Since that time. the USAO-SDFL has been recused by the Department of Justice from prospective responsibility for any criminal investigation or potential prosecution relating to Epstein's alleged sexual activities with minor females. The Department of Justice has reassigned responsibility for the investigation and potential prosecution of such criminal matters in the Southern District of Florida to the United States Attorney's Office for the Middle District of Florida for consideration of any prosecutorial action that may be authorized and appropriate. 8 EFTA00205161 9 EFTA00205162 TO EFTA00205163 EFTA00205164 For these reasons, Petitioners' claims in these proceedings should be dismissed for lack of subject matter jurisdiction. See. e.g.. In re Jacks, 642 F.3d 1323, 1332 (11th Cir. 2011) (holding that claims that are "based on events that may take place in the future- are to be "dismissed for lack of jurisdiction-) (citing Greenbriar, Ltd v. City al-Alabaster. 881 F.2d 1570. 1574 n.7 (11th Cir. 1989) ("IRlipeness goes to whether the district court had subject matter 12 EFTA00205165 jurisdiction to hear the case.")); Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir. 1994) ("The question of ripeness `goes to whether the district court had subject matter jurisdiction.'") (quoting Greenbriar, 881 F.2d at 1573); see also Jacksonville Property Rights Ass 'n, Inc. v. City of Jacksonville, 635 F.3d 1266, 1276 (11th Cir. 2011) (concluding that when plaintiffs ask a court "to issue a declaration on an issue that might never impact their substantive rights." they are "asking thief court either to issue an impermissible advisory opinion, or to decide a case that is not yet ripe for decision"), reh 'g & reh'g en bane denied. Case No. 09-15629, Fed. App's (11th Cir. Jun. 29, 2011) (Table). Conclusion For the reasons set forth above, the United States respectfully requests that this Court enter an order dismissing the Petitioners' claims and these proceedings for lack of subject matter jurisdiction. 13 EFTA00205166 Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: Assistant United States Attorney Miami Florida 33132 Assistant wed States Attorney Miami, Florida 33132 ssistant United States Attorne West Palm Beach. FL 33401 Attorneys for Respondent 14 EFTA00205167 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing United States' Sealed Motion to Dismiss for Lack of Subject Matter Jurisdiction was served via United States Mail this 7th day of November, 2011, upon Counsel for Petitioners Jane Doe #1 and Jane Doe #2, accompanied by a copy of the November 7, 2011 Sealed Order Granting Government's Motion for Limited Disclosure of Grand Jury Mauer. Pursuant to the Order regarding the disclosure of Grand Jury Information, a copy was not served upon the proposed intervenors. Assistant United Stat Attorney 15 EFTA00205168 SERVICE LIST Jane Does 1 and 2 v. United Slates. Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Brad Edwards. Esq.. The Law Offices of Brad Edwards & Associates. LLC Hollywood, Florida 33020 Paul G. Cassell Quinney College of Law at the Universit of Utah Salt Lake City, Utah 84112 Attorneys for Jane Doe N 1 and Jane Doe # 2 16 EFTA00205169 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA IN RE: GRAND JURY PROCEEDINGS FEDERAL GRAND JURY 0S-02(WPB) AND FEDERAL GRAND JURY 07-I03(WPB) Sealed Order Granting Government's Motion for Limited Disclosure of Grand Jury Matter UNDER SEAL EFTA00205170 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA IN RE: GRAND JURY PROCEEDINGS FEDERAL GRAND JURY 05-02(WPB) AND FEDERAL GRAND JURY 07-103(WPB) Sealed Order Granting Government's Motion for Limited Disclosure of Grand Jut-v Matter This cause comes before the Court on the Government's Sealed Er Parte Motion for Limited Disclosure of Grand Jury Matter Pursuant to Fed. R. Crim. P. 6(e)(3)(E)(i). After careful consideration of the grounds raised in said motions, and the Court being otherwise advised in the premises, IT IS HEREBY ORDERED that the Government's Motion for Limited Disclosure of Grand Jury Matter Pursuant to Fed. R. Crim. P. 6(e)(3)(E)(i) is GRANTED. The Government is authorized to disclose in Jane Doe No. I and Jane Doe No. 2 v. United States, Case No. 08- 80736-Civ-Marra (S.D. Fla.), that evidence gathered in the federal investigation of Jeffrey Epstein's conduct has revealed that a number of districts outside the Southern District of Florida (including the Southern District of New York and the District of New Jersey) share jurisdiction and venue with the Southern District of Florida over potential federal criminal charges based on the alleged sexual acts committed by Epstein against both the Petitioners in Case No. 08-80736- Civ-Marra, thereby making Epstein subject to potential prosecution for such acts in those Districts. IT IS FURTHER ORDERED that disclosure pursuant to Fed. R. Crim. P. 6(e)(3XEXi) shall be conditioned on the following: EFTA00205171 (1) the disclosure of the aforementioned grand jury information shall be limited to filings made under seal in Case No. 08-80736-Civ-Marra; (2) the service of filings containing the aforementioned grand jury information shall be limited to counsel for Petitioners Jane Doe No. 1 and Jane Doe No. 2 and for the government in Case No. 08-80736-Civ-Marra, and shall be accompanied by a copy of this Order; and (3) further dissemination by any person or entity receiving disclosure of the grand jury information authorized to be disclosed by this Order shall be limited to the individual Petitioners in Case No. 08-80736-Civ-Marra, and any dissemination of such grand jury information shall be accompanied by a copy of this Order. DONE AND ORDERED in Chambers at West Palm Florida, this 7 day of November, 2011. D M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE 2 r * • - • I i N.. at ..-- , ....i '.-- ...-, .-, - -...... EFTA00205172