749 F.3d 999 (11th Cir. 2014), 13-12923, Doe v. United States

Docket Nº:13-12923
Citation:749 F.3d 999
Opinion Judge:PRYOR, Circuit Judge:
Party Name:JANE DOE NO. 1, JANE DOE NO. 2, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA, Defendant, ROY BLACK, MARTIN G. WEINBERG, JEFFREY EPSTEIN, Intervenors-Appellants
Attorney:For Jane Doe, Plaintiff - Appellee: Paul Cassell, University of Utah College of Law, Salt Lake Cty, UT; Bradley James Edwards, Farmer Jaffe Weissing Edwards Fistos & Lehman, PL, Fort Lauderdale, FL; Jay C. Howell, J. Howell & Associates, Jacksonville, FL. For Roy Black, Intervenor - Appellant: Ma...
Judge Panel:Before PRYOR and MARTIN, Circuit Judges, and HONEYWELL,[*] District Judge.
Case Date:April 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 999

749 F.3d 999 (11th Cir. 2014)

JANE DOE NO. 1, JANE DOE NO. 2, Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, Defendant,

ROY BLACK, MARTIN G. WEINBERG, JEFFREY EPSTEIN, Intervenors-Appellants

No. 13-12923

United States Court of Appeals, Eleventh Circuit

April 18, 2014

Page 1000

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:08-cv-80736-KAM.

For Jane Doe, Plaintiff - Appellee: Paul Cassell, University of Utah College of Law, Salt Lake Cty, UT; Bradley James Edwards, Farmer Jaffe Weissing Edwards Fistos & Lehman, PL, Fort Lauderdale, FL; Jay C. Howell, J. Howell & Associates, Jacksonville, FL.

For Roy Black, Intervenor - Appellant: Martin G. Weinberg, Martin G. Weinberg, PC, Boston, MA; Jay P. Lefkowitz, Kirkland & Ellis, LLP, New York, NY; Jacqueline L. Perczek, Black Srebnick Kornspan & Stumpf, PA, Miami, FL.

Roy Black, Intervenor - Appellant, Pro se, Miami, FL.

For Martin G. Weinberg, Intervenor - Appellant: Jay P. Lefkowitz, Kirkland & Ellis, LLP, New York, NY; Jacqueline L. Perczek, Black Srebnick Kornspan & Stumpf, PA, Miami, FL.

Martin G. Weinberg, Intervenor - Appellant, Pro se, Boston, MA.

For Jeffrey Epstein, Intervenor - Appellant: Roy Black, Jacqueline L. Perczek, Black Srebnick Kornspan & Stumpf, PA, Miami, FL.

For United States of America, Defendant - Appellee: Wifredo A. Ferrer, Dexter Lee, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL; Ann Marie C. Villafana, U.S. Attorney's Office, West Palm Beach, FL.

Before PRYOR and MARTIN, Circuit Judges, and HONEYWELL,[*] District Judge.

OPINION

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PRYOR, Circuit Judge:

This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in a proceeding ancillary to a criminal investigation to claim a privilege that would prevent the disclosure of their plea negotiations; and, if so, whether a privilege bars crime victims from discovering plea negotiations. The United States investigated Jeffrey Epstein's sexual abuse of minors, but failed to confer with the victims before entering a non-prosecution agreement with Epstein. Two victims filed suit against the United States to enforce their rights under the Crime Victims' Rights Act, 18 U.S.C. § 3771, and sought to discover the correspondence between Epstein's attorneys and the United States regarding the non-prosecution agreement. Epstein and his attorneys then intervened to object to that discovery as privileged. The district court overruled their objection and ordered the United States to disclose the correspondence to the victims. After the intervenors filed this appeal, the victims

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moved to dismiss it for lack of jurisdiction. Because we conclude that we have jurisdiction to decide this appeal and that the plea negotiations are not privileged from discovery, we affirm.

I. BACKGROUND

In 2006, the Federal Bureau of Investigation began investigating allegations that Jeffrey Epstein had sexually abused several minor girls. The United States Attorney's Office for the Southern District of Florida accepted Epstein's case for prosecution, and the Federal Bureau of Investigation issued victim notification letters to two minors, Jane Doe No. 1 and Jane Doe No. 2, in June and August 2007. Extensive plea negotiations ensued between the United States and Epstein. On September 24, 2007, the United States entered into a non-prosecution agreement with Epstein in which the United States agreed not to file any federal charges against Epstein in exchange for his offer to plead guilty to the Florida offenses of solicitation of prostitution and procurement of minors to engage in prostitution. Fla. Stat. § § 796.07, 796.03.

Not only did the United States neglect to confer with the victims before it entered into the agreement with Epstein, it also failed to notify them of its existence for at least nine months. The United States sent post-agreement letters to the victims reporting that the " case is currently under investigation" and explaining that " [t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation." And in June 2008, the United States asked the victims to explain why federal charges should be brought against Epstein without mentioning the agreement to them.

On June 27, 2008, the United States informed the victims that Epstein planned to plead guilty to the Florida charges three days later, on June 30, 2008. But the United States failed to disclose that Epstein's pleas to those state charges arose from his federal non-prosecution agreement and that the pleas would bar a federal prosecution. The victims did not attend the state court proceedings.

On July 7, 2008, Jane Doe No. 1 filed a petition alleging that she was a victim of federal crimes committed by Esptein involving sex trafficking of children by fraud and enticing a minor to commit prostitution and that the United States had wrongfully excluded her from plea negotiations and violated the Crime Victims' Rights Act. 18 U.S.C. § 3771. She alleged that the United States violated her right to confer with federal prosecutors, her right to be treated with fairness, her right to receive timely notice of relevant court proceedings, and her right to receive information about restitution. The United States answered that it used its " best efforts" to comply with the rights afforded to victims under the Act, but that the Act did not apply to pre-indictment negotiations with potential federal defendants. After Jane Doe No. 2 joined the initial petition, the district court found that both women qualified as " crime victims" under the Act. 18 U.S.C. § 3771(e). Among other relief, the victims sought rescission of the non-prosecution agreement.

The victims' petition remained dormant for years while they pursued a federal civil suit against Epstein and reached a settlement agreement with him. As a basis for relief against Epstein in the civil suit, the victims relied on Epstein's waiver of his right to contest liability in the non-prosecution agreement. Over Epstein's objection, the district court in that civil suit ordered the United States to produce the documents given to Epstein's attorneys during his plea negotiations. The victims received correspondence written by the

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United States, but they never received any correspondence written by Epstein's attorneys during the plea negotiations with the United States.

In 2011, the victims renewed the prosecution of their petition against the United States. The victims moved to use correspondence between the United States and Esptein's attorneys during the plea negotiations to prove violations of their rights under the Act. And the victims later moved the district court to compel the United States to produce all requested discovery about the plea negotiations.

Epstein and his criminal defense attorneys, Roy Black and Martin Weinberg, moved to intervene for the limited purpose of challenging the disclosure and use of the correspondence they wrote during plea negotiations. After the district court granted their permissive intervention, Fed.R.Civ.P. 24(b), the intervenors moved for protective orders. The intervenors argued that the work-product privilege protects their correspondence; that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations; and that their correspondence contained confidential grand jury material. They also urged the district court to recognize a common-law privilege for plea negotiations. The United States responded that the court should consider the correspondence privileged, but that it would disclose the correspondence if the court ordered it to do so.

Epstein later filed two other motions to intervene in a limited capacity--one to challenge the disclosure of grand jury materials and another to challenge any remedy that would violate constitutional and contractual rights under the non-prosecution agreement. The attorney-intervenors did not join either of these motions. The district court has not yet ruled on Epstein's motion to intervene to prevent disclosure of grand jury materials, but the district court has " allowed [him] to intervene with regard to any remedy issue concerning the non-prosecution agreement."

The district court then issued two...

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