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EFTA00020212

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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| UNITED   | STATES   | OF   | AMERICA,   | New York, N.Y.   |
|-|-|-|-|-|
|          | v.       |      |            | 19 Cr. 490(RMB)  |

JEFFREY EPSTEIN,

Defendant.

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Conference

July 31, 2019
11:05 a.m.

Before:

HON. RICHARD M. BERMAN,

District Judge

## APPEARANCES

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: 

Assistant United States Attorneys

MARTIN G. WEINBERG
Attorney for Defendant

STEPTOE & JOHNSON, LLP
Attorneys for Defendant
BY: MICHAEL C. MILLER

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300

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THE COURT: So, today's conference was scheduled at the end of the July 18 court conference hearing on that date. I thought that we would devote at least the -- well, probably most of today's proceeding to talking about the schedule in this case, and I asked the lawyers to get together and see if they could come up with a mutually agreeable schedule, which would include trial date, motion practice, discovery, etc.

Does anybody want to let me know how you made out? MS. §§§: Yes, your Honor.

We have conferred with defense counsel and talked about a proposed schedule for this case. So we are prepared to propose to the court today a schedule for discovery, for discovery-related motions, for pretrial motions, and we are also prepared to talk about setting a possible trial date.

THE COURT: Okay. What have you got in mind? MS. III: So, with respect to discovery, we would propose a discovery deadline of October 31 to complete discovery, with one exception. There are materials from devices seized from the defendant's residence in New York, and the F.B.I. is beginning the process of reviewing that data.

In discussing that with defense counsel, we have begun to discuss a process for a privilege-review protocol. It's possible that process may take longer than October 31. But aside from that universe of documents, we would propose setting a schedule of October 31 as a deadline for discovery.

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For discovery-related motions, we would propose that the defense file any motions that they are aware of relating to discovery, to include motions relating to the nonprosecution agreement, by September 13 --

THE COURT: By when?

MS. September 13, your Honor.

-- that the government be permitted to respond by October 4; with any reply due on October 11, as necessary.

Of course we understand that if the defense comes to have additional motions related to discovery based on the ongoing discovery process that we will confer and propose an additional briefing schedule beyond that, as necessary. But with respect to motions that the defense is already aware of, including the NPA, that is the schedule that we would propose at this time.

Regarding pretrial motions, your Honor, we would propose that the defense file their motions by January 10, that the government be permitted to respond by February 10, and that any replies be due on or before February 24.

THE COURT: Got it.

MS. ill: And finally, your Honor, we are prepared to discuss a trial date in this case. The government is asking the court to set a trial date in this matter. We would propose that the court schedule this matter for trial in June of next year, and we estimate that the trial would take approximately

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four to six weeks, and so that trial date would carry into July. And I understand that the defense has some comments about that proposal, but that's the government's proposal with respect to a trial date.

THE COURT: Okay. Let me hear from the defense.

Do I understand it correctly that, with the exception of the trial date, those dates are agreeable? MR. WEINBERG: Those dates are agreeable, your Honor. THE COURT: Counsel, whatever you wish to add, that would be fine.

MR. WEINBERG: We would ask the court to set a preliminary trial date immediately after Labor Day. I say preliminary because we want time to assess Mr. Epstein's

THE COURT: This year? MR. WEINBERG: Yes. THE COURT: This Labor Day. Okay. MR. WEINBERG: We want time to assess Mr. Epstein's ability to . .

(Counsel confer) MR. WEINBERG: I'm sorry. I am being told that your Honor was inquiring as to the year. Let me --

THE COURT: Yes. I thought you wanted a speedy trial, and so --

MR. WEINBERG: Not with a four- to six-week trial with discovery coming in October, Judge. I apologize for being

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imprecise. Labor Day 2020 or immediately thereafter. And I make that recommendation we haven't received the discovery yet. Understandably, it is coming, and I'm not in any way contesting that there has been a delay, but we haven't had an 5 opportunity to start reviewing what the government has predicted to be over a million pages of discovery with Mr. Epstein and to assess Mr. Epstein's ability to exercise his constitutional right, while at MCC, in assisting counsel prepare for a very difficult case that addresses events that it is alleged occurred 14 to 17 years ago.

THE COURT: Okay.

MR. WEINBERG: So, we need time to receive a million pages of discovery and to prepare to defend a four- to six-week trial, when a lot of the immediate attention is going to be on the very unique and complex constitutional issues connected to the nonprosecution agreement, our contention that the government's allegations are inextricably intertwined and constitutionally barred by the NPA. There are double jeopardy issues both connected to the conspiracy count, which looks to be an overlap with one of the charges that was expressly within the immunity provisions in the NPA. We are going to be spending a lot of time, and that's why I agreed with the government that we should make early discovery motions on the NPA-related issues, on double-jeopardy-related issues, so that we could not only facially brief the motion to dismiss, but

SOUTHERN DISTRICT REPORTERS, P.C.
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have the discovery, the subfacial discovery, if you will, so that we could make a comprehensive briefing along the lines of the schedule for motions.

THE COURT: That's what I was going to suggest, if there is a time period when you could put it all together, as it were, and there is a lot of flexibility. So I will leave these dates, you know, for now.

With respect to the trial date, I could accommodate either June or September of 2020. The issue is not so much as, from my point of view, when you are all ready, but what part of the calendar I block out. So is it realistic to block out time in June?

MR. WEINBERG: I think it is -- I don't want to have the court block out a six-week time and then come to the court in March and say we need a continuance and risk a September date.

THE COURT: Got it. Okay. So a September date, you are saying, sounds like it certainly is realistic.

MR. WEINBERG: Thirteen months sounds like the amount of time that we would ordinarily need to prepare a case of this magnitude and scope.

THE COURT: All right. That is fine for me. Just while we are taking care of details, a speedy trial issue or application? Why don't we extend it to September of 2020?

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MR. WEINBERG: This case certainly meets all of the statutory criteria for complexity and we would agree to that extension, Judge.

MS. Your Honor, may I briefly be heard with

respect to the trial date?

THE COURT: Oh, sure. You know, it does sound like it is kind of premature, but I'm happy to hear you. It is often the defense that is ahead of the government, or not often, but equally, but here it is the other way around. So if the defense is not ready, it would be my practice to defer to the defense, but I don't know that it is fixed in stone either way. But, sure, I am happy to hear you.

MS. ill: Your Honor, by way of background, we had initially proposed to the defense a May trial date. We think that there is a public interest in bringing this case to trial as swiftly as manageable. We understand, given their concerns in wanting to have more time, we proposed a date in June as a compromise position. We understand if the defense has indicated that they need additional time. We are sensitive to those concerns. But we do have a concern about the notion of setting a September trial date and that that trial would be preliminary or as a placeholder. Thirteen months is a considerable amount of time for a case of this nature to go to trial; and, again, given the time period of the charged conduct and the length of time that's passed, we do think that there is

SOUTHERN DISTRICT REPORTERS, P.C.
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a public interest in scheduling a fixed trial date in this case. Of course we understand if issues arise in the interim, we will address that as it occurs, but we do think it makes sense at this juncture to set a firm trial date. We don't think that any delay in this case is in the public interest.

THE COURT: Counsel.

MR. WEINBERG: We think that the delay in bringing this charge, your Honor, the natural corollary of that is to make it more difficult, not easier, for us to defend Mr. Epstein. For instance, there are certain sealed files for potential witnesses that we would have to go to other courts to seek to unseal. There is an NPA to litigate. This case is not your ordinary 1591 case. A case of four to six weeks is not the ordinary amount of time the government takes to prosecute, whether it is old or new cases. We need 13 months. I'm trying to make a principled argument, Judge, that that would be a schedule that we would try our best to meet, conditioned on our ability to work with Mr. Epstein under the current conditions.

Thank you, sir.

THE COURT: Okay.

So, we are going to monitor the case from now until then anyway, so I think everybody will be in a better position to know what is realistic with respect to a trial date. I will exclude time from today through, let's say, June 8, but that, of course, is without prejudice to hearing from the defense and

SOUTHERN DISTRICT REPORTERS, P.C.
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the government as to actually where things stand. Long before then we will know. So we will have a conference, or several, between now and then. Let's see where everybody is as the months go by, and then we will know when we can effectively hold the trial.

So I am going to find, under 18 United States Code 3161, that the request for adjournment, joined in by both sides, is appropriate and warrants exclusion of the adjourned time from Speedy Trial calculations. I further find that the exclusion is designed to prevent any possible miscarriage of justice, to facilitate these proceedings, including extensive pretrial preparation, and to guarantee effective representation of and preparation by counsel for both sides, and thus the need for exclusion and the ends of justice outweigh the interests of the public and the defendant in a speedy trial pursuant to 18 United States Code E. 3161(h)(7)(A) and (B). So that exclusion goes to June 8, 2020 preliminarily.

Counsel, is it your thought that these motions would be on submission or did you want to have oral argument with respect to any aspect of them?

MR. WEINBERG: We would seek oral argument, your

Honor.

THE COURT: So let's set October 28, 2019 for oral argument, and I am tentatively reserving some time on my calendar, as I said before, on June 8, 2020, but I will have

SOUTHERN DISTRICT REPORTERS, P.C.
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much better feel for where things are long before that and certainly I would say on October 28 we would have a much clearer picture of how things stand.

So there you have it. Did you have -- go ahead. MS. §§§: Just to clarify, your Honor, what time would the court like the parties to appear on October 28? THE COURT: 10 a.m.

MS. §§§: Thank you, your Honor. THE COURT: And the June 8 date is 9 a.m. Okay? MR. WEINBERG: Would your Honor want to schedule an argument on the substantive motions that will be fully briefed before the court on February 24?

THE COURT: Yup.

So let's schedule that oral argument for March 12, 2020, at 10 a.m.

Great. So anything anybody else has to talk about? MR. WEINBERG: Not from the defense, your Honor.

MS. Not from the government, your Honor. Thank

you.

THE COURT: Okay. MR. WEINBERG: Thank you very much, sir. THE COURT: Nice to see you all.

oOo

SOUTHERN DISTRICT REPORTERS, P.C.
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