FILED
2009 JUL 15 AM 16: 25

# IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA

CASE NO. 4D09-2554

JEFFREY EPSTEIN,
Petitioner,

vs.

STATE OF FLORIDA, PALM BEACH NEWSPAPERS, INC.,
[REDACTED], and [REDACTED]
Respondents.

Clark PLEASE FILE
Judge Jeffrey Cobbett Date: 7/14/09
F : 1/2

Pending in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida,
Case Nos. 2006 CF 9454AMB, 2008 CF 9381AMB

PALM BEACH NEWSPAPERS, INC. d/b/a THE PALM BEACH POST'S
RESPONSE TO EMERGENCY PETITION FOR WRIT OF CERTIORARI

THOMAS, LoCICERO & BRALOW PL
Deanna K. Shullman

James B. Lake

101 N.E. 3rd Avenue, Suite 1500

Ft. Lauderdale, Florida 33301

## TABLE OF CONTENTS

| TABLE OF AUTHORITIES ii                                                                                                                                                                               |
|-|
| INTRODUCTION...                                                                                                                                                                                       |
| JURISDICTION.. 2                                                                                                                                                                                      |
| NATURE OF THE RELIEF SOUGHT. 2                                                                                                                                                                        |
| STATEMENT OF THE CASE AND FACTS. 3<br /><br />COPY                                                                                                                                                    |
| SUMMARY OF THE ARGUMENT 7                                                                                                                                                                             |
| ARGUMENT 8                                                                                                                                                                                            |
| I. STANDARD OF REVIEW.. 8                                                                                                                                                                             |
| II. THE TRIAL COURT CORRECTLY UNSEALI THE NPA. 8                                                                                                                                                      |
| A. The NPA was not Properly Sealed in the irst Instance.. 8<br />1. Closure of the Non-Prosecution Agreement Improperly Occurred<br />without a Motion, Notice, ERHED Hearing, or a Proper Order.. 11 |
| 2. Closure of the Addendum Improperly Occurred without any Procedures to<br />Protect the Right of Access at all. 12                                                                                  |
| B. No Basis Exists for Current Closure of the Non-prosecution Agreement or<br />Its Addendum. 13                                                                                                      |
| 1. Petitioner Cannot Identify a Rule 2.420(c)(9) Interest that Warrants<br />Closure. 16                                                                                                              |
| 2. The Federal Court's Decisions in Case No. 08-80736 (S.D. Fla. 2008) Did<br />Not Preclude the Lower Court's Orders Unsealing the NPA.. 19                                                          |
| 3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's                                                                                                                            |
| Orders Unsealing the NPA 21                                                                                                                                                                           |
| CONCLUSION. 25                                                                                                                                                                                        |
| CERTIFICATE OF SERVICE 26                                                                                                                                                                             |

i

## TABLE OF AUTHORITIES

## Federal Cases

<table><tr><th>Federal Cases</th><th></th></tr><tr><td>Craig v. Harney,</td><td></td></tr><tr><td>331 U.S. 367 (1947)..</td><td>8</td></tr><tr><td>Doe v. Hammond,</td><td></td></tr><tr><td>502 F. Supp. 2d 94 (D.D.C. 2007).</td><td>24</td></tr><tr><td>In re Grand Jury Investigation of Ven-Fuel,</td><td></td></tr><tr><td>441 F. Supp. 1299 (M.D. Fla. 1977).</td><td>23, 24</td></tr><tr><td>Lockhead Martin Corp. v. Boeing Co.,</td><td></td></tr><tr><td>393 F. Supp. 2d 1276 (M.D. Fla. 2005)</td><td>.23</td></tr><tr><td>Oregonian Publishing Co. v. United States District Court,</td><td></td></tr><tr><td>920 F.2d 1462 (9th Cir. 1990).</td><td>9</td></tr><tr><td>U.S. v. Rosen,</td><td></td></tr><tr><td>471 F. Supp. 2d 651 (E.D. Va. 2007).</td><td>.23</td></tr><tr><td>United States v. Kooistra,</td><td></td></tr><tr><td>COPY

796 F.3d 1390 (11th Cir. 1986)</td><td>9</td></tr><tr><td>State Cases

TIFIED</td><td></td></tr><tr><td>Anderson v. E.T.,</td><td></td></tr><tr><td>862 So. 2d 839 (Fla. 4th DCA 2003).</td><td>.8.</td></tr><tr><td>Barron v. Florida Freedom Newspapers, Inc.,</td><td></td></tr><tr><td>531 So. 2d 113 (Fla. 1988).</td><td>.10</td></tr><tr><td>Combs v. State,</td><td></td></tr><tr><td>436 So. 2d 93 (Fla. 1983)</td><td>8</td></tr><tr><td>Doe v. Museum of Science and History of Jacksonville, Inc.,</td><td></td></tr><tr><td>Case No. 92-32567, 1994 WL 741009 (Fla. 7th Jud. Cir. June 8, 1994).
Fla. Sugar Cane League, Inc. v. Fla. Dept. of Envtl. Reg.,</td><td>.17</td></tr><tr><td>Case No. 91-2108 (Fla. 2d Jud. Cir. Sept. 20, 1991).</td><td>.22</td></tr><tr><td>Hous. Auth. of the City of Daytona Beach v. Gomillion,</td><td></td></tr><tr><td>639 So. 2d 117 (Fla. 5th DCA 1994)</td><td>.21</td></tr><tr><td>In re Amendments to Florida Rule of Judicial Administration 2.420</td><td></td></tr><tr><td>954 So. 2d 16 (Fla. 2007)</td><td></td></tr><tr><td>Sarasota Herald Tribune, Div. of the New York Times Co. v. Holtzendorf,</td><td></td></tr><tr><td>507 So. 2d 667(Fla. 2d DCA 1987)</td><td>.9</td></tr><tr><td>Sarasota Herald Tribune v. State,</td><td>02</td></tr><tr><td>924 So. 2d 8 (Fla. 2d DCA 2006)</td><td></td></tr><tr><td>Sentinel Communications Co. v. Watson,</td><td></td></tr><tr><td>615 So. 2d 768 (Fla. 5th DCA 1993).</td><td>9</td></tr><tr><td>Wallace v. Guzman,</td><td></td></tr><tr><td>687 So. 2d 1351 (Fla. 3d DCA 1997)</td><td>.21</td></tr></table>

ii

## Other Authorities

| Fla. Const. Art. I, § 23.   | 18   |
|-|-|
| Fla. Const. Art. I, § 24..  |      |
| Fla. R. App. P. 9.100(d)    | 8228 |
| Fla. R. Jud. Admin. 2.420   | 18   |

The image contains the text "NOT A CERTIFIED COPY".

iii

## INTRODUCTION

This appeal concerns attempts to thwart public scrutiny of how government responded to the prostitution of children in Palm Beach County. In the order at issue below, the trial court correctly unsealed a non-prosecution agreement and its addendum. A predecessor judge found that the agreement significantly induced induced Petitioner to accept a plea agreement that allowed him to serve 18 mon in jail for luring children to his Palm Beach mansion for "massages" or sexual activity. At the time that the non-prosecution agreement and its addendum (collectively "the NPA") were accepted for filing, no basis for closure asserted or found. Thus, the NPA was not properly sealed, and the prior sure order was properly vacated. Moreover, no basis currently exists for clo and the pending petition -- like OFACERNNER CON Petitioner's filings below - contain more than unsubstantiated assertions that confidentiality is required. Thus, continued closure is not warranted. Certainly unsealing the documents was not such a clear departure from the essential requirements of law as to warrant certiorari relief. Consequently, the pending petit must be denied.

In addition, this Court should exercise its inherent authority under Rule 9.410 of the Florida Rules of Appellate Procedure to sanction Petitioner for his frivolous and bad faith attempts to cloak the resolution of the criminal charges

1

against him in secrecy by awarding to Respondent, Palm Beach Newspapers, Inc. d/b/a The Palm Beach Post ("the Post") its attorneys' fees and costs in responding to this petition.

## JURISDICTION

The Post adopts Respondent_ statement concerning jurisdiction. Insofar as this Court finds jurisdiction, the Post requests that this Court expedite its consideration of this matter, so as to remedy the denial to date of public's and press's constitutional and common law rights of access. Art. I, § 24, Fla. Const.; Fla. R. App. P. 9.100(d); Sarasota-Herald Tribune v. State, 924 So. 2d 8, 11 (Fla. 2d DCA 2006) (rule 9.100(d) permits “expedited" review of orders excluding the press).

NOT A CHTIME COM NATURE OF RELIEF SOUGHT The Post asks this Court deny the pending petition and to let stand the circuit court's Orders dated June 25, 2009 and June 26, 2009, which unsealed the NPA, and directed the Clerk of Court in and for the Fifteenth Judicial Circuit of Florida to relea these records to the public.'

1 Petitioner has sought review of the June 26, 2009 Order by motion rather than by petition for writ of certiorari. Though the June 26 Order does address the matter of Petitioner's request for stay, the order also directs the Clerk of Courts to release the records, review of which should have been sought by certiorari.

2

# STATEMENT OFTHE CASE AND FACTS

This proceeding concerns the public's constitutional and common law rights of access to records crucial to the disposition of criminal charges against Petitioner Jeffrey Epstein. Specifically, Petitioner seeks review of two orders unsealing a non-prosecution agreement and its addendum (collectively the "NPA"), which are records of the trial court below. State v. Epstein, Case Nos. 06 CF9454AMB, 08 CF9381AMB.

Petitioner was investigated by the State of Florida for felony solicitation of children for prostitution. (A-7 at p. 3, 1. 15 – p. 4, 1. 4; A-8.) The victims allege Epstein brought and paid teenage girls to come his home for sex and/or KCERNNÉD CO "massages." (A-11 at ¶ 6 and n. 1.) Epstei minor victims are numerous (A-7 at p. 20, 11. 13-18) and the case drew att tion of the highest-ranking law enforcement officials in Palm Beach County. Frustrated during the course of the investigation, Police Chief Michael Reiter even penned a letter to State Attorney Barry Krischer, calling his office's handling of the investigation "highly unusual” and suggesting that he disqualify himself from the case if the state would not act (A-11 at ¶ 6; A- NOT 18 at p. 36, ll. 7-14².) A federal investigation of Epstein's conduct as it relates to soliciting children for prostitution ensued.

2 References to "A-" are to Petitioner's Appendix.

3

Then abruptly, in June 2008, Epstein pleaded guilty in the trial court below to felony solicitation of minors for prostitution, was designated a Sexual Offender pursuant to Florida law, and was sentenced to 18-months jail and community control. (A-8.) Before accepting the terms of his state plea, Epstein entered into a non-prosecution agreement with federal prosecutors. (A-7 at p. 38, II. 9-18.) The non-prosecution agreement and its addendum were filed under seal in the lower

court on July 2, 2008 and August 25, 2008, respectively.³ According to Epstein's lawyers (and presumably NPA itself), taking the state plea was a condition of the NPA. (A-7 at p. 11. 13-18.) The NPA is invalidated if Epstein fails to fulfill the obligati of the state plea deal (A-7 at p. 38, 11. 22 - 25.) In accepting the state plea QFA CERNNED CORY trial court viewed the NPA a "significant inducement in accepting plea and recognized that the NPA influenced the defendant to make the state plea. (A-7 at p. 39, ll. 19-21; p. 40, 11. In considering the plea at the hearing, the court requested a sealed copy of the non-prose tion agreement and asked whether Petitioner had signed it. (A-7 at

10-13.)

3 The NPA and its addendum were filed under seal in this Court on July 1, 2009.

4 The Post and its lawyers have not seen the NPA, though it was reviewed, in camera,by the trial court (A-19).

p. 40, 11. 4-6.) Epstein's lawyer indicated it was signed and interjected that he

"would like to seal the copy." (A-7 at p. 40, 11. 7-9.) Representatives from the

U.S. Attorneys' Office were present at the hearing (A-7 at p. 39, 11. 22-23) but

stated no objection to filing the non-prosecution agreement in the state court file.

Thereupon, without any further consideration, the trial court requested a sealed

copy of the non-prosecution agreement. (A-7 at p. 40, ll. 9-10.) On July 2, 2008, non-prosecution agreement. (A-7 at p. 40, ll. 9-10.) On July

without any further proceedings on the issue, the court entered an Agreed Order further proceedings on the issue, the court entered CO an Agreed

Sealing Document in Court File, which allowed Epstein to file the non-prosecution Document in Court File, which allowed Epstein to file the

agreement that was attached to the Agreed Order und that was attached to the Agreed Order und seal. seal. (A-9.) By its terms, (A-9.) By
the closure order was limited to the non-prosec order was limited to the non-prosec FINELY agreement and did not include agreement and did

its addendum. The order makes no finding: The order makes no finding: respect to closure and never respect to closure and

expires. (A-9.) The addendum was led six weeks later, on August 25, 2008, (A-9.) The addendum was led six weeks later, on August 25,

without any further order of the Court with respect to closure. further order of the Court with respect to closure.

Since Epstein pleaded guilty to soliciting a minor for prostitution, he has QLACER Epstein pleaded guilty to soliciting a minor for prostitution,

been named in at 1 12 civil lawsuits that - like the charges in this case - allege in at 1 12 civil lawsuits that - like the charges in this

Epstein lured lured enage girls to his Palm Beach mansion for sex and/or "massages." enage girls to his Palm Beach mansion for sex and/or

(A-1)5 At least 11 cases are pending. In another lawsuit, one of the Epstein's

5 See also A-11 at~ 6 (citing Doe v. Epstein, Case No. 08-80069 (S.D. Fla. 2008); Doe No. 2 v. Epstein, Case No. 08-80119 (S.D. Fla. 2008); Doe No. 3. v. Epstein, Case No. 08-80232 (S.D. Fla. 2008); Doe No. 4. v. Epstein, Case No. 08- (Footnote continued on next page)

5

accusers has alleged that federal prosecutors failed to consult with her regarding the disposition of possible charges against Epstein. (A-1; A-18 at p. 22, 1. 20 - p.

23, 1. 15.)

Given the important public interest in this matter, on June 1, 2009, the Post

moved to intervene below for the purpose of obtaining access to the NPA. The

Court granted the Post's motion to intervene on June 10, 2009 (Supp.A.-1 at 1.) to intervene on June 10, 2009 (Supp.A.-1

The trial court granted the Post's petition for access on June 25, 2009 (A-16, A-18) petition for access on June COF 25, 2009 (A-16,

and on June 26, 2009 denied Epstein's motion for stay and irected the clerk to Epstein's motion for stay and irected the

release the records at noon on Thursday, July 2, 2009. A-17, A-19.) Epstein's Thursday, July 2, 2009. A-17, A-19.)

emergency petition for writ of certiorari regardi the June 25, 2009 order and his certiorari regardi the June 25, 2009 order
ERRED
emergency motion to review the June 26 the June 26 order followed. order followed.

80380 (S.D. Fla. 2008); Doe No. 5 v. Epstein, Case No. 08-80381 (S.D. Fla. 2008); C.M.A. v. Epstein, Case No. 08-80811 (S.D. Fla. 2008); Doe v. Epstein, Case No. 08-80893 (S.D. Fla. 2008); Doe No. 7 v. Epstein, Case No. 08-80993 (S.D. Fla. 2008); Doe No. 6 v. Epstein, Case No. 08-80994 (S.D. Fla. 2008); Doe II v. Epstein, Case No. 09-80469 (S.D. Fla. 2009); Doe No. 101 v. Epstein, Case No. 09-80591 (S.D. Fla. 2009); Doe No. 102 v. Epstein, Case No. 09-80656 (S.D. Fla. 2009); Doe No. 8 v. Epstein, Case No. 09-80802 (S.D. Fla. 2009)).

6 See also (A-11 at ¶ 6) (citing In re: Jane Doe, Case No. 08-80736 (S.D. Fla. 2008)).

7 References to "Supp.A." correspond to the supplemental appendix filed by the Post simultaneous with this brief.

6

SUMMARY OF THE ARGUMENT

Petitioner's initial filing of the NP A under seal was achieved without any regard for the public's constitutional, statutory and common law rights of access. Florida law flatly prohibits the standardless permanent closure that was achieved in this case. The public has a right to know what transpires in its courtrooms generally and in particular has an interest in understanding how the resolution of this highly unusual prosecution occurred.

Moreover, no present basis for closure exists. Petitioner has not shown - and cannot show - that continued closure is proper. Instead, he has made conclusory assertions and relied on red herrings in attempting to keep the public from understanding how government responded to his solicitation of children to NOT A CERTIFIED COPY perform sex acts. The trial court, having reviewed the records in camera, saw through Petitioner's flimsy arguments. The trial court did not depart from the essential requirements of law in ordering the records unsealed.

7

## ARGUMENT

I.  STANDARD OF REVIEW.

The standard of review for a petition for writ of certiorari is whether the trial court departed from the essential requirements of law. See Combs v. State, 436 So. 2d 93, 95 (Fla. 1983); Anderson v. E.T., 862 So. 2d 839, 840 (Fla. 4th DCA 2003).

II. THE TRIAL COURT CORRECTLY UNSEALED THE The NPA was neither properly sealed in the first instance nor is properly sealed at present. The trial court did not depart from the essential requirements of law in unsealing the records. TA CENTIER COPY The NPA was not Properly Sealed in the First Instance. The NPA - a significant inducement to Petitioner's acceptance of the plea – was accepted for filing under seal without any deference to the public's right of access to court records. Such standardless closure cannot withstand scrutiny.

A.

Florida has traditionally served as a model for open government and courts. It is well-settled Florida that "[a] trial is a public event [and] [w]hat transpires in the court room is public property.” Miami Herald Publ'g Co. v. Lewis, 426 So. 2d 1, 7 (Fla. 1982) (quoting Craig v. Harney, 331 U.S. 367, 376 (1947)). When considering a request to seal judicial records, this Court's "analysis must begin

8

with the proposition that all civil and criminal court proceedings are public events, records of court proceedings are public records and there is a strong presumption in favor of public access to such matters." Sentinel Communications Co. v. Watson, 615 So. 2d 768, 770 (Fla. 5th DCA 1993). Indeed, the people of this State added Article I, Section 24 to the Declaration of Rights in the Florida Constitution to make clear that the right of access to the records of all three branches I, Section 24 to the Declaration of Rights in the Florida Constitution to clear that the right of access to the records of all three branches is of constitutional magnitude. All citizens possess the right to or copy" such records. COPY government is of constitutional magnitude. All citizens possess the right to "inspect or copy" such records.

Plea agreements and related documents typical are public record. See Oregonian Publishing Co. v. United States Dis Court, 920 F.2d 1462, 1465 (9th Cir. 1990) ("plea agreements have pically been open to the public"); United States v. Kooistra, 796 F.3d 1390, 0-91 (11th Cir. 1986) (documents relating to Plea agreements and related documents typical are public record. See Publishing Co. v. United States Dis Court, 920 F.2d 1462, 1465 Cir. 1990) ("plea agreements have NOLA CERNNED pically been open to the public"); v. Kooistra, 796 F.3d 1390, 0-91 (11th Cir. 1986) (documents change of plea I sentencing could be sealed only upon finding interest that justified denial of public access). Florida law likewise a strong public right of access to documents a court considers in ith sentencing. See Sarasota Herald Tribune, Div. of the New Co. v. Holtzendorf, 507 So. 2d 667, 668 (Fla. 2d DCA 1987) (“While a defendant's change of plea I sentencing could be sealed only upon finding of a compelling interest that justified denial of public access). Florida law likewise recognizes a strong public right of access to documents a court considers in connection ith sentencing. See Sarasota Herald Tribune, Div. of the New York Times Co. v. Holtzendorf, 507 So. 2d 667, 668 (Fla. 2d DCA 1987) (“While a judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible proceeding or document, it is within the public domain unless otherwise

9

privileged.").

Under Florida law, closure of judicial records is warranted only under very limited circumstances. In particular, the party seeking closure must demonstrate that:

1. restricting public access is necessary to prevent a serious and imminent threat to the administration of justice;

2.

3.

no alternatives, other than a change of venue, would protect the defendant's right to a fair trial; and closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1,6 1982). This test, as well as the standard announced in Barron v. Florida reedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), was essentially codific QLA CERMINED COR former Rule of Judicial Administration 2.051, now 2.420, ich was applicable in both criminal and civil cases. Sarasota-Herald Tribun 924 So. 2d at 11.

In April 2007, the Florida Supreme Court adopted emergency amendments to Rule 2.420 in ponse to Florida media reports of hidden cases and secret dockets, a process that has come to be known as "super-sealing.” In re Amendments to Florida Rule of Judicial Administration 2.420, 954 So. 2d 16 (Fla. 2007). In adopting the interim rule, the Florida Supreme Court confirmed its commitment to safeguarding the public's constitutional right of access to court

10

records, which the Court held "must remain inviolate.” Id. at 17. By its terms,

Rule 2.420 does not apply to criminal cases; however, later this year the Supreme

Court will consider amendments to the rule that essentially seek to apply the

standards applicable in civil cases to criminal ones. See In re Amendments to

Florida Rule of Judicial Administration 2.420, Case No. 07-2050 (Fla. 2007). In Rule of Judicial Administration 2.420, Case No. 07-2050 (Fla. 2007).

the circuit below, however, the new Rule 2.420 procedures have been below, however, the new Rule 2.420 procedures have been
COPY
since September 29, 2008. (Supp.A.-2.) In addition, the sealing September 29, 2008. (Supp.A.-2.) In addition, the sealing

violated principles of Florida law established long before principles amendments to Rule

2.420. Consequently, the unsealing of these docume Consequently,

The The non-prosecution agreemer was sealed pursuant to an agreed order non-prosecution order

dated July 2, 2008 (A-9.) At the time, Fifteenth Judicial Circuit Administrative 2, Administrative

Order 2.032 applied to requests for closure of court records in the lower court. 2.032 applied to requests for closure of court records in the lower court.

(Supp.A.-3.) The order requires a motion, notice, and a hearing, none of which The order requires a motion, notice, and a hearing, none of which
JOTA
occurred in thi case. (Id. at ¶¶ 1 - 3.) The order further provides that closure is in thi case. (Id. at ¶¶ 1 - 3.) The order further provides that closure

proper only upon showing that the factors set forth in Lewis have been met (Id. at ¶ only upon showing that the factors set forth in Lewis have been met (Id.

4) and that "[t]he reasons supporting sealing the file must be stated with specificity

in the order sealing the court record" (Id. at ¶ 5), neither of which occurred in this

of Florida law established long before amendments to

the unsealing of these docume was was proper. proper.

1. 1. Closure of the Non-Prosecution Agreement Improperly Closure of the Non-Prosecution Agreement Improperly
Occurred Occurred without a Motion, Notice, Hearing, or a Proper without a Motion, Notice, Hearing, or a Proper
Order. Order. CERTIFIED

agreemer was sealed pursuant to an agreed

2008 (A-9.) At the time, Fifteenth Judicial Circuit

11

case.

Contrary to Petitioner's assertion (Petition at 13) neither this rule, nor the

common law of Florida, nor the Florida constitution contemplates sua sponte

closure of court records upon simple request of the Court or any party. Nor was

the closure, in fact, sua sponte, as Epstein himself requested closure (A-7 at p. 40, closure, in fact, sua sponte, as Epstein himself requested closure (A-7 at p.

11. 7-9.) and admittedly filed the NPA in the court file under seal and admittedly filed the NPA in the court file under seal purs purs an an
CORY
agreed order (A-18 at p. 11, 11. 22-23). The agreed order (A-9) tains none of order (A-18 at p. 11, 11. 22-23). The agreed order (A-9) tains none

the findings required by Lewis or paragraph 5 of the Administrative Order. The findings required by Lewis or paragraph 5 of the Administrative Order.

closure order is invalid and was properly vacated, order is invalid and was properly vacated,

2. Closure of the Addendum Improperly Occurred without any 2.

CERNED
With respect to the sealing of the addendum to the non-prosecution With respect to the sealing of the addendum to the non-prosecution

agreement, no procedures were no procedures were place place at all. The original non-prosecution at all. The original non-prosecution

agreement was attached to the July 2, 2008 agreed order, which allowed to be filed was attached to the July 2, 2008 agreed order, which allowed to be

under seal the "attached document” only. (A-9.) It appears from the record that seal the "attached document” only. (A-9.) It appears from the record

the addendum addendum NOTA hich was not attached to the July 2, 2008 order but was filed six hich was not attached to the July 2, 2008 order but was filed

weeks later was simply filed and accepted under seal without any order allowing later was simply filed and accepted under seal without any order

for closure. Closure of the addendum was thus improper on that basis as well. The closure. Closure of the addendum was thus improper on that basis as well.

trial court properly unsealed these documents.

Closure of the Addendum Improperly Occurred without
Procedures to protect the Right of Access at all. Procedures to protect the Right of Access at all.

12

## B. No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum.

After the Post intervened, at a June 10, 2009 hearing on the issue of closure, the trial court asked Epstein's counsel about the Post's motion (A-11) specifically.

Epstein's counsel replied:

Y

If the Post's position is the public has a right to acc - access this then there is a procedure in place and ultimately the Court has to conduct a hearing and do a balancing test where you look at whether there is some compelling government interest and that's going to require an evidentiary hearing. So I have no great objection to filing the Request for Closure and then having a hearing in front

(Supp.A.-1 at p. 3, 1. 22 — p. 4, 1. 5.) Importantly, etitioner's counsel did not at p. 3, 1. 22 — p. 4, 1. 5.) Importantly,

assert that he had complied with these requi ments, but that he would. The Court he had complied with these requi ments,

reset the hearing for June 25, 2009. hearing for June CERTI 25, 2009.

Petitioner Petitioner filed a Motion Make Court Records Confidential (A-13) on filed a Motion Make Court

2009. In it, Epstein cited four reasons the

June 11, 2009. In it, Epstein cited four reasons the NPA should remain under seal:

1. to prevent a serious and imminent threat to the administration of justice³; 2. to a serious and imminent threat to the
LOLA
protect a compelling government interest; 3. to avoid substantial injury to innocent compelling government interest; 3. to

8 This assertion apparently has been abandoned by Petitioner, because his petition asserts that he has asserted three bases for confidentiality, and does not include this basis. Accordingly, it will not be addressed, except to make note of the fact that Epstein has not at any point in this proceeding identified a threat to the administration of justice, much less a serious and imminent threat.

13

third parties; and 4. to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in these specific type of proceedings sought to be closed. (A-13 at ¶5.) The motion failed to explain how these interests were implicated, failed to address alternatives to closure, and failed to explain how closure would protect the interests. (A-13.)

The lower court heard argument on June 25, 2009. The United States

Attorneys' Office was provided notice of the hearing, but chose not to appear. (A-

18 at p. 7, 11. 10-14.) In fact, the U.S. Attorney's Office has taken no position on

this matter throughout the lower court proceedings I specifically informed

counsel for [ ] that it had no position (A-18 11. 10-14.) At that hearing,

the Court found that the proper procedures initially seal the records were not
NOTA CERNIED COR
followed and then heard argument Epstein's counsel on his June 11, 2009

motion (A-13). Epstein's cou sel consented to that procedure. (A-18 at p. 9, II. 16

-18.) The Judge held that neither the State, nor the U.S. Government, nor Epstein

had shown why the NPA ought to remain confidential and ordered the records

9 It is important to note that the State Attorney's Office appeared at the hearing for the limited purpose of objecting to the release of minor victim's names, which turned out to be a non-issue because the Court, having reviewed the documents in camera, determined that no victim's names were included in the documents (A-19 at p. 21, 11. 14-19.) The federal government, as mentioned above, took no position (Footnote continued on next page)

14

The trial court did not depart from the essential requirements of law in unsealing the NPA. Administrative Order of the Fifteenth Judicial Circuit 2.303 applies to Petitioner's June 11, 2009 request to seal the records in this case. (Supp.A.-2.) That administrative order - consistent with Lewis and its progeny - applies Rule 2.420's standards to requests for closure of records in criminal proceedings in the Fifteenth Judicial Circuit. Any order authorizing closure must contain findings that one of the interests set forth in Rule of Judicial Administration 2.420(c)(9)(A) is met and that closure is no broader than necessary to protect that interest. (Supp.A.-2 at ¶ 4.); see also 426 So. 2d at 3. Motions seeking closure must include a “signed rtification by the party making the request that the motion is being made NOT A CERNMEU CORY good faith and is supported by a sound factual and legal basis." (Supp.A.- [ 1.) Epstein's initial oral request for closure failed to comply with t requirements of then-applicable law, and he has never presented a sound factual or legal basis for present closure. Consequently, unsealing the documents was fully consistent with the essential requirements of law.

and did not appear at any of the hearings on this matter. Nor has either agency appealed the lower court's decision.

15

## 1. Petitioner Cannot Identify a Rule 2.420(c)(9) Interest that Warrants Closure.

Though Epstein's belated written motion identified four interests set forth in

Rule 2.420(c)(9) that purportedly warrant closure, he failed to explain - either in

his motion or at the hearing - how any of them applied. Instead, Petitioner

asserted closure was proper because these broad interests would be served by

closure, principles of comity require closure, and because the records contain require closure, and because the records

information protected from disclosure by Federal Rule of Criminal Procedure 6. disclosure by Federal Rule of CO Criminal

around the interests set

government interest because, he claims, the U.S. Attorneys' Office - who has been

Even though Petitioner now attempts to craft his argume attempts to craft his argume around the

forth in Rule 2.420(c)(9), the trial court cannot be to have departed from the the trial court cannot be to have departed

essential requirements of the law in holding the law in holding Epstein's burden had not been Epstein's burden had
CERTIFIED
met.

Epstein's petition asserts that closure is necessary to protect a compelling asserts that closure is necessary to protect a

he claims, the U.S. Attorneys' Office -

notified of these proceedings and has taken no position whatsoever – has a

compelling intere in having the confidentiality provision of its contract with Mr.

Epstein honored. See Petition at 15. Assuming such a provision exists (the Post

has not seen the document), Petitioner is in no position to assert a compelling

interest on the government's behalf, given its decision to take no position on the

matter. If such an interest exists, the U.S. government is the party to assert it, and

16

it has specifically failed to do so. The trial court did not depart from the essential requirements of law in holding that Petitioner failed to demonstrate a compelling interest in closure.

Epstein next asserts that closure is warranted to protect the interest of “innocent third parties" and identifies those third parties as Mr. Epstein's co- conspirators. (Petition at 15). Again, Mr. Epstein lacks standing to assert the interests of third parties. Doe v. Museum of Science and History Jacksonville, Inc., Case No. 92-32567, 1994 WL 741009 (Fla. 7th Jud. June 8, 1994) (plaintiff lacks standing to assert privacy interest of party, minor victims of sexual assault by defendant's former employee who had been convicted) (copy attached at Supp.A.-4). In addition, even third parties Mr. Epstein identifies OLACERNED CON - his purported co-conspirators before the Court, they would have no privacy interest in matters pertaining to their criminal conduct. Post-Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (Does, whose names were implicated in criminal prostitution scheme, had no right to privacy by virtue of their partic ation in a crime and thus their names could not be redacted from records provided to the public). Thus, the trial judge did not depart from the essential requirements of law in finding insufficient third-party interests to justify closure.

17

The third interest Epstein seeks to invoke is his own right to privacy. See Petition at 15. While Epstein actually does have standing to assert his own right to privacy, Florida law is clear that closure is only proper to protect a "substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi) (emphasis added). Epstein argues disclosure of a plea agreement is not generally inherent in a state court plea hearing See Petition at 16. That argument is absurd. Of course Epstein's plea agreement is generally inherent in his criminal prosecution. It is very reason that not generally inherent in the specific type of proceeding sought to be R. Jud. Admin. 2.420(c)(9)(A)(vi) (emphasis added). Epstein argues of a plea agreement is not generally inherent in a state court plea Petition at 16. That argument is absurd. Of course Epstein's plea inherent in his criminal prosecution. It is very reason that ended, and as the lower court reco I in accepting the plea, it CERNDY inducement" to Petitioner to the state's deal. (A-7 at p. 39, 11. prosecution ended, and as the lower court reco I in accepting the plea, it was a "significant inducement" to Petitioner to the state's deal. (A-7 at p. 39, 11. 19- 21.; p. 40, 11. 10-13.) 40, 11. 10-13.)

Moreover, Florida's con titutional right to privacy is expressly subordinate to the rights of Floridians to access the records of their government. To wit, Article I, § 23, which sets forth the right to privacy, further provides: “[t]his JOLA Moreover, Florida's con titutional right to privacy is expressly rights of Floridians to access the records of their government. To wit, I, § 23, which sets forth the right to privacy, further provides: “[t]his shall be construed to limit the public's right of access to public meetings as provided by law." Fla. Const. Art. I, § 23. As the Florida section shall be construed to limit the public's right of access to public records and meetings as provided by law." Fla. Const. Art. I, § 23. As the Florida Supreme Court has recognized, the privacy amendment has not been construed to protect names and addresses contained in public records. Post Newsweek, 612 So.

18

2d at 552. The trial court, having reviewed the NPA in camera, certainly had an opportunity to assess whether a privacy interest not inherent in his criminal prosecution for felony solicitation of children for prostitution is implicated by the NPA. It cannot in good faith be argued that the trial court departed from the essential requirements of law in determining that no such privacy interest was requirements implicated. 2. The Federal Court's Decisions in Case No. 08-80736 2.

- of law in determining that no such privacy interest was

COPY
The Federal Court's Decisions in Case No. 08-80736
(S.D. (S.D. Fla. 2008) Did Not Preclude the Lower Court's Fla. 2008) Did Not Preclude the Lower Court's
Orders Unsealing the NPA.¹º Orders Unsealing the NPA.¹º

Nor did the trial court's rejection of Petitioner did the trial court's rejection of Petitioner omity argument depart omity argument depart

from the essential requirements of law. In the So hern District of Florida, one of essential requirements of law. In the So hern District of Florida, one

the minor victims of Epstein filed a Petitio victims of Epstein CERINED filed a Petitio for for Enforcement of Crime Victim's Enforcement of Crime Victim's

Rights Acts (A-1)." The victim also sked the federal court to allow her to share (A-1)." The victim also sked the federal court to allow her to

the NPA with third parties (A-3). Judge Marra denied the motion, finding – as the with third parties (A-3). Judge Marra denied the motion, finding –

U.S. Government had argued (A-4) - that the NPA was not a record of the federal had argued (A-4) - that the NPA was not a record of the

court. (A-6) ("First, as respondent points out, the Agreement was not filed in this DIA ("First, as respondent points out, the Agreement was not filed in

10 The Post adopts and incorporates Post adopts and incorporates arguments and analysis on this issue arguments and analysis on this
in addition to the arguments it sets forth herein.

11 The Post notes that A-3 through A-5 were not part of the record below. If the Court is inclined to consider these federal court pleadings, then in fairness it must consider those related pleadings which are attached hereto as Supp.A.-5 through Supp.A.-7 of the Post's Supplemental Appendix.

19

case, under seal or otherwise."). The federal court also declined to provide any relief from restrictions on the parties' use and dissemination of the discovery document without prejudice. (A-6 at p.2.)

Petitioner argues that the Post should be required to seek relief in Judge Marra's court. He mischaracterizes the nature of the proceedings there. There is no document to unseal in Judge Marra's court. The NPA is not a recor court, and thus any effort by the Post to obtain access to the NP/ there would be futile, and any order requiring it be unsealed by the lower court herein does not conflict with any decision of the federal court. (A-1

In fact, when Judge Marra has been ask seal records of his court that quote the NPA, he has refused to do so, OT Å GLENNED CON has required such records to be filed in the public court file (Supp.A.-5 through Supp.A.-7)¹² Thus, though the NPA is not a record of the federal court, the federal court has rejected attempts to file portions of it under seal. As a result, portions of the NPA appear in the public court file in

12 Page 4 of Supp.A.-5 and paragraph 5 of Supp.A.-6, both publicly on file in the federal court, quote from the NPA. In addition, Epstein's own lawyers quoted extensively from the NPA in seeking to stay one of the civil suits against him. (A- 11 at ¶6; A-18, p. 35, 1. 18 – p. 36, 1. 1 (incorporating by reference Supp.A.-5 through Supp.A-6 and Supp.A.-7 (C.M.A. v. Epstein, Case No. 08-cv-80811 (S.D. Fla. 2008) at Dkt. 33 pp. 2-5)).)

20

the federal civil litigation against Epstein. (Supp.A-5 at p. 4; Supp.A.-6 at, 5; Supp.A.-7 at pp. 2-5.) The proverbial cat is already out of the bag.

Notwithstanding, the NPA is a record of this lower court. The lower court did not enter an order conflicting with Judge Marra's rulings (A-16 at p. 3 – expressly noting lack of conflict with Judge Marra's orders) and did not depart from the essential requirements of law in unsealing the NPA.

3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's Orders Unsealing the NPA

Finally, unsealing the NPA did not conflict with federal law. Records available under state law are sealed by federal law when federal law absolutely conflicts with state law and require confidentiality of the records. The Supremacy Clause of the United States Constitution, Art. VI, U.S. Const., comes into play only when federal law cle requires the records to be closed, and the state is clearly subject to its provisions. E.g., Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997) (exemptions to federal Freedom of Information Act do not apply state agencies); Hous. Auth. of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) (Federal Privacy Act does not exempt from disclosure records of housing authority which are open for inspection

13 The Post adopts and incorporates - arguments and analysis on this issue in addition to the arguments it sets forth herein.

21

under Florida Public Records Act); Fla. Sugar Cane League, Inc. v. Fla. Dept. of

Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept. 20, 1991), per curiam

affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992 (documents received by state

agency in course of settlement negotiations to resolve federal lawsuit and

confidential settlement agreement with U.S. Department of Justice open to settlement agreement with U.S. Department of Justice open to

inspection because federal law did not clearly require confidentiality) (Supp.A.-8.) because federal law did not clearly require confidentiality)
CORY
Federal law imposes no such preemption of the Florida constituti law imposes no such preemption of the Florida constituti and and common common

law in this case. this case.

In particular, Federal Rule of Criminal Proced In particular, Federal Rule of Criminal Proced 6(e) does not restrict 6(e) does not restrict

access to the NPA. Federal Rule 6(e) restrains to the NPA. Federal Rule 6(e) restrains djurors, djurors, court reporters, court reporters,

government attorneys, interpreters and the attorneys, interpreters CERNHED and the from from disclosing matters occurring disclosing matters occurring

before the grand jury. Petitioner the grand jury. Petitioner pparently the former target of the grand jury - pparently the former target of the grand

is none of these persons. His: ions in filing the NPA under seal do not implicate of these persons. His: ions in filing the NPA under seal do not

Rule 6(e) no matter what information the NPA contains. The lower court's actions 6(e) no matter what information the NPA contains. The lower court's

in unsealing the NPA likewise do not implicate Rule 6, because the lower court the NPA likewise do not implicate Rule 6, because the lower court
NOLA
also is not res not res ined ined by Rule 6(e). by Rule 6(e).

Moreover, the information contained in the NPA does not constitute Moreover, the information contained in the NPA does not constitute

"matters occurring before the grand jury" within the meaning of Rule 6. The

secrecy rule is limited to such matters for the purpose of "preventing targets of an

22 22 22

investigation from fleeing or tampering with witnesses or grand jurors,

encouraging witnesses to appear voluntarily and speak fully and frankly, avoiding

damage to the reputation of subjects or targets of the investigation who are not

indicted, and encouraging grand jurors to investigate suspected crimes without

inhibition and engage in unrestricted deliberations.” Lockhead Martin Corp. v. and engage in unrestricted deliberations.” Lockhead Martin Corp. v.

Boeing Co., 393 F. Supp. 2d 1276, 1279 (M.D. Fla. 2005). The rule 393 F. Supp. 2d 1276, 1279 (M.D. Fla. 2005). The rule to to
CORY
"prevent disclosure of the way in which information was presente disclosure of the way in which information was presente the the grand grand

jury, the specific questions and inquiries of the grand jury,

1302-03 (M.D. Fla. 1977). In other

would reveal secret inner workings of the

parallel grand jury proceeding does not violate Rule 6. Id. Statements by a

specific questions and inquiries of the grand jury, è deliberations and è deliberations and

vote of the grand jury, the targets upon which the gra jury's suspicion focuses, grand jury, the targets upon which the gra jury's suspicion focuses,

and specific details of what took place before rand jury.” In re Grand Jury details of what took place before rand jury.” In re Grand Jury

Investigation of Ven-Fuel, 441 F. Supp. of Ven-Fuel, 441 F. Supp. 1302-03 (M.D. Fla. 1977). In

words, Rule 6 is implicated if disclo 6 is implicated if disclo would reveal secret inner workings of
ONCERNED
grand jury. U.S. v. Rosen, 471 Supp. 2d 651, 654 (E.D. Va. 2007). U.S. v. Rosen, 471 Supp. 2d 651, 654 (E.D. Va. 2007).

Disclosure of details of a government investigation that is independent of a of details of a government investigation that is independent of

jury proceeding does not violate Rule 6. Id. Statements by a

prosecutor's fice about its own investigation, therefore, are not covered by the fice about its own investigation, therefore, are not covered by the

secrecy rule. Id. at 655. Likewise, the mere mention of other targets of an

investigation does not implicate the grand jury secrecy rule. E.g., In re Interested

Party, 530 F. Supp. 2d 136,140-42 (D.D.C. 2008) (government not prohibited by

23

Rule 6 from disclosing plea agreement and other materials); Doe v. Hammond, 502

F. Supp. 2d 94, 99-101(D.D.C. 2007) (same). Moreover, "when the fact or

document is sought for itself, independently, rather than because it was stated

before or displayed to the grand jury, there is no bar of secrecy.” In re Grand Jury

Investigation of Ven-Fuel, 441 F. Supp. at 1304. Here, the Post seeks to review

the NPA for its own intrinsic value, and not for the purpose of discerning what for its own intrinsic value, and not for the purpose of discerning
COR,
transpired before the grand jury now more than a year ago. It is clearly well within before the grand jury now more than a year ago. It is clearly well

the public's right and interest to review the NPA, given the circumstances right and interest to review the NPA, given the circumstances

surrounding the investigation and prosecution of] the investigation and prosecution of] as well as the civil as well as the

claims by women who say Epstein sought to women who say Epstein sought to them them his child prostitutes. his child prostitutes.

These facts clearly constitute a proper clearly constitute CERNNED a proper unsealing these improperly sealed unsealing these improperly

documents.

Finally, and even assuming for a moment that the NPA contains grand jury and even assuming for a moment that the NPA contains grand

information - which the Post doubts - when the grand jury's work has concluded, - which the Post doubts - when the grand jury's work has

and the accused apprehended, the veil of secrecy no longer is necessary and safely OLA apprehended, the veil of secrecy no longer is necessary and

may be lifted. re re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1303. Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at

Here, Petitioner has been convicted, and nothing in the record suggests the grand

jury's work is ongoing. Consequently, no basis exists for finding that the trial

court departed from the essential requirements of law.

24

## CONCLUSION

The trial court was correct in unsealing the non-prosecution agreement and its addendum. These materials were not properly sealed in the first instance. Moreover, Epstein has not and cannot provide any basis for closure at this juncture. The trial court did not depart from the essential requirements of law in unsealing the NPA. Its order should be affirmed, and the Post should be awarded its fees and costs and such other further relief as this Court deems proper.

Respectfully submitted,

THOMAS LOCI ERO & BRALOW, PL

B. hake

Florida Bar No.: 0514462
NOT A CERKE COM
Florida Bar No.: 0023477
101 N.E. Third Avenue, Suite 1500
Fort Lauderdale, FL 33301
Telephone: (813) 984-3060
Facsimile: (813) 984-3070

Attorneys for The Palm Beach Post

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## CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Bu Esq., State Attorney's Office West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL, 3401; Robert D. Critton, Esq., Burman, Critton, Luttier & Coleman, 515) Flagler Drive, Suite 400, West Palm Beach, FL 33401; Jane Kreusler- NOT A CERNIED CONY Esq., 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5 Spencer T. Kuvin, Esq., Leopold-Kuvin, P.A., 2925 PGA Boulevard, 200, Palm Beach Gardens, FL 33410; and Bradley J. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 10th day of July, 2

Attorney: <signature>

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## CERTIFICATE OF TYPE, SIZE AND STYLE

Counsel for Petitioners certifies that this Petition is typed in 14 point

(proportionately spaced) Times New Roman.
B.
Attorney

NOT A CERTIFIED COPY

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documents/doj-6ed1d8817dee3952.pdf
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