Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-80736-Civ-Marra/Johnson

JANE DOE #1 and JANE DOE #2

v.

UNITED STATES
__________________________/

JANE DOE 1 AND JANE DOE 2’S STATEMENT NOTING DEATH PURSUANT TO
RULE 25 OF THE FEDERAL RULES OF CIVIL PROCEDURE

COME NOW Jane Doe 1 and Jane Doe 2 (also referred to as “the victims”), by and through

undersigned counsel, to provide this statement noting Jeffrey Epstein’s death, pursuant to Rule 25

of the Federal Rules of Civil Procedure.

Under Rule 25, parties to an action are entitled to file a “statement noting death.”

Accordingly, the victims file this statement noting intervenor Jeffrey Epstein’s death. Because his

death also moots several matters currently pending before the Court, victims’ counsel also believe

they are duty-bound to briefly and rapidly alert the Court to these implications of Epstein’s death.

Neither the Federal Rules of Civil Procedure nor this Court’s local rules provide procedures for

alerting the Court to issues that have become moot. Accordingly, victims’ counsel proceed by

way this Statement Noting Death. If the Court believes that a motion for leave to make a filing

regarding mootness is required, the victims would respectfully request leave to file such a motion.

In light of Epstein recent passing, all his objections to the victims’ proposed remedies have

become moot. And most of the Government’s objections – which were likewise predicated on

protecting Epstein’s interests – have also become moot. No other persons have sought to intervene

1
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 2 of 7

to raise objections. Accordingly, the Court should grant the victims all of their proposed remedies

– including invaliding the provisions in the non-prosecution agreement that precludes prosecution

of Epstein’s co-conspirators.

FACTUAL BACKGROUND

On August 10, 2018, according to numerous sources whose authenticity cannot be

reasonably questioned, Jeffrey Epstein died. See, e.g., Statement from Attorney General William

P. Barr on the Death of Jeffrey Epstein (Aug. 10, 2018), available at

https://www.justice.gov/opa/pr/statement-attorney-general-william-p-barr-death-jeffrey-epstein.

DISCUSSION

I. ALL OF EPSTEIN’S OBJECTIONS TO THE VICTIMS’ PROPOSED REMEDIES

ARE NOW MOOT.

In light of Epstein’s death, all Epstein’s objection to the victims’ proposed remedies (DE

463) are now moot. See United States v. Romano, 755 F.2d 1401, 1402 (11th Cir. 1985) (“When

a defendant dies pending direct appeal of his criminal conviction, the Court will dismiss the appeal

as moot with respect to that defendant and remand the case to the district court to vacate the

judgment and dismiss the indictment.”).

In addition, the Court lacks jurisdiction to determine any objections that Epstein raised. As

is well-settled, “The Article III judicial power exists only to redress or otherwise to protect against

injury to the complaining party, even though the court’s judgment may benefit others collaterally.”

Warth v. Seldin, 422 U.S. 490, 499 1975). With respect to Epstein’s complaints, since the

complaining party is now deceased, this Court lacks jurisdiction to address his arguments.

2
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 3 of 7

II. THE GOVERNMENT NOW LACKS STANDING TO RAISE MANY OF ITS

OBJECTIONS TO THE VICTIMS’ PROPOSED REMEDIES, INCLUDING THE
PARTIAL RESCISSION REMEDY.

Many of the Government’s objections to the victims’ proposed remedies (DE 462) were

predicated on protecting Epstein’s interests. Because his interests in this criminal case do not

survive his death, the Government’s corresponding objections have become moot. The

Government lack standing to raise them and the Court lacks jurisdiction to address them.

With regard to the rescission remedies, at this point the issue before the Court pertains not

to whether to rescind the NPA’s provisions blocking Epstein’s prosecution (a moot point) but

whether to rescind the NPA’s provisions blocking the prosecution of Epstein’s co-conspirators. 1

The only objections that the Government raised to rescinding the NPA’s provisions were, first,

unfairness to Epstein and, second, the possibility that Epstein might seek to recapture various

financial payments made to some victims under the NPA. Neither objection retains any viability

in the wake of Epstein’s death.

With regard to the first objection, as noted above, issues pertaining to fairness to Epstein

are no longer before the Court – they have both become moot and moved outside this Court’s case-

and-controversy jurisdiction. For example, Government raises various arguments about the

contractual consideration that Epstein provided for the (illegal) non-prosecution agreement. DE

462 at 18-19. But the Government lacks “standing” to raise any issue about what consideration

Epstein may (or may not) have provided for his agreement. The Government plainly suffers no

injury if this Court rescinds the NPA’s co-conspirator immunity provisions, thereby giving the

1
As their first proposed remedy, the victims sought rescission not only of the NPA’s
provision barring the prosecution of Epstein, but also rescission of the provision barring
prosecution of his named and unnamed conspirators. See DE 458 at 4.

3
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 4 of 7

Government greater power to prosecute criminals – e.g., the power to prosecute Epstein’s co-

conspirators for sex offenses in the Southern District of Florida. Indeed, the Government did not

discuss co-conspirators at all in its submission. Thus, in light of Epstein’s death, the Court must

grant the victims (among other things) the rescission remedy that they seek regarding co-

conspirators, because the Court lacks any cognizable objections to this remedy.

Any other result would violate the CVRA, which promises crime victims a right to be

“treated with fairness.” 18 U.S.C. § 3771(a)(8). It would be unfair to the victims if Epstein not

only managed to cheat justice through his death, but also left behind some kind of legal issue

preventing the victims from obtaining the rescission remedy to which they are plainly entitled.

In addition, the Government raised the specter that partial rescission of the NPA might

subject some victims to the possibility that Epstein would seek to recoup financial payments he

made to them under the NPA. DE 462 at 15-18. The victims have already responded to the

Government’s mistaken concerns on their own merits. See, e.g., DE 464 at 16-19. But in light of

Epstein’s death, any theoretical possibility that he could recover financial payments has

evaporated. Epstein made his payments personally through the non-prosecution agreement – a

non-prosecution agreement that was ancillary to a criminal prosecution. See DE 290 at 2

(Government describes this case as involving “ancillary criminal proceedings”). Because the NPA

arises from a criminal case, only Epstein personally would have standing to make any arguments

about the NPA’s financial aspects, as criminal cases are personal to an individual.

No substitution of any party is possible for Epstein. The NPA does not provide for any

substitution of parties. Nor does federal law. Wright & Miller, 7C FEDERAL PRAC. & PROC. § 1954

(3d ed.) (“Nor does federal law generally provide for substitution of parties.”). And Epstein’s

only status in this case was as an intervenor on remedy issues – a status that has now disappeared

4
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 5 of 7

with his death. DE 246 at 1 (granting Epstein personally a right to intervene). Accordingly, any

issue of Epstein attempting to withdraw financial payments has now likewise disappeared.

To be sure, in theory, with regard to rescission, a potential co-conspirator of Epstein’s

might have had standing to seek to intervene in this case at some earlier time. 2 But as this Court

is well aware, this case has spanned more than eleven years, and no one has sought intervention as

a third-party beneficiary of Epstein’s NPA. Indeed, neither Epstein’s brief nor the Government

brief even discussed the co-conspirator immunity provisions – much less, raised any arguments on

behalf of any co-conspirators. Accordingly, the Court currently has before it no arguments from

any co-conspirators objecting to granting the victims their requested rescission remedy or even

pertaining to this issue. In view of this posture, the Court should immediately grant the victims’

currently unopposed remedy of rescinding the NPA’s provisions barring prosecution of Epstein’s

coconspirators – as this Court lacks any currently cognizable objection to it.

III. THE NEED FOR THE COURT TO GRANT THE VICTIMS’ OTHER PROPOSED
REMEDIES HAS ONLY INCREASED DUE TO EPSTEIN’S DEATH.

Because of Epstein’s death, the need for many of the victims’ other proposed remedies has

only increased – particularly the remedies concerning information for victims and holding a public

hearing. Because Epstein is now dead, there will never be a criminal trial to hold him accountable,

either in the Southern District of Florida, the Southern District of New York, or elsewhere.

Accordingly, the victims (and the public) will never witness his public trial where the facts

connected to sexual abuse will be fully aired. This means that the informational remedies that the

victims have sought regarding the case assume enhanced importance and should be granted by the

2
In noting this theoretical possibility, the victims do not concede that standing would have
in fact existed.

5
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 6 of 7

Court. And it also means that the public hearing – to which both the Government and the victims

have agreed (see DE 464 at 43-46) – should also be held promptly, to give the victims at least

some kind of day in court. The only objection the Court received to the hearing was from Epstein,

and his death moots that objection.

CONCLUSION

Under Federal Rule 25(a)(2), the Court should take note of intervenor Jeffrey Epstein’s

death. And for all the reasons the victims previously advanced – and advance in this notice – the

Court should also expeditiously grant the victims all the remedies and other forms of relief that

they seek, including rescission of the NPA’s immunity provisions for Epstein’s co-conspirators.

DATED: August 12, 2019

Respectfully Submitted,

/s/ Bradley J. Edwards

Bradley J. Edwards
Edwards Pottinger LP
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
Telephone (800) 400-1098
E-Mail: brad@epllc.com

Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the
University of Utah *
383 S. University St.
Salt Lake City, UT 84112
Telephone: (801) 585-5202
E-Mail: cassellp@law.utah.edu

Attorneys for Jane Does 1 and 2

*
This daytime business address is provided for identification and correspondence purposes
only and is not intended to imply institutional endorsement by the University of Utah.

6
Case 9:08-cv-80736-KAM Document 475 Entered on FLSD Docket 08/12/2019 Page 7 of 7

CERTIFICATE OF SERVICE
I certify that the foregoing document was served on August 12, 2019, on counsel of record

using the Court’s CM/ECF system:

Jill E. Steinberg
Nathan P. Kitchens
U.S. Attorneys’ Office for the Northern District of Georgia
600 U.S. Courthouse
75 Ted Turner Drive, S.W.
Atlanta, GA 30303
(404) 581-6000
Jill.Steinberg@uisdoj.gov
Nathan.Kitchens@usdoj.gov

Attorneys for the Government

Roy Eric Black

Jacqueline Perczek
Black Srebnick Kornspan & Stumpf
201 S Biscayne Boulevard
Suite 1300
Miami, FL 33131
305-371-6421
Fax: 358-2006
Email: pleading@royblack.com

Attorneys for Jeffrey Epstein

/s/ Bradley J. Edwards