EPSTEIN
page 9 / 28 . OCR, unverified
defendant] at trial will not [necessarily] assure the safety of the community." United States v.
Rodriguez, 950 F.2d 85, 89 (2d Cir. 1991).
The Bail Reform Act sets forth the following four factors to be considered in the
release/remand analysis: (1) the nature and circumstances of the crime(s) charged; (2) the weight
of the evidence against the person; (3) the history and characteristics of the defendant, including
the person's character and financial resources; and ( 4) the seriousness of the danger posed by the
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defendant's release. 18 U.S.C. § 3142(g). "The weight afforded to each factor under section
3142(g) is within the 'special province' of the district court." United States v. Paulino, 335 F.
Supp. 3d 600,610 (S.D.N.Y. 2018) (quoting United States v. Shakur, 817 F.2d 189, 196 (2d Cir.
1987)).
"The rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at the [ release/remand] hearing." 18 U.S.C. §
3142(£)(2) (emphasis added). For example, the Government is entitled to present evidence
supporting remand by way of proffer, among other means. 18 U.S.C. § 3142(£)(2); see also
United States v. Lafontaine, 210 F.3d 125,131 (2d Cir. 2000) ("bail hearings are typically
informal affairs, not substitutes for trial or even for discovery"). 18 U.S.C. § 3 l 42(f)(2)(B)
expressly states that the Federal Rules of Evidence do not apply at bail hearings; thus, courts
often base detention decisions on hearsay evidence. United States v. Abuhamra, 389 F.3d 309,
21 n. 7 (2d Cir. 2004) "District courts [ are afforded] wide discretion regarding the scope of such
hearings .... " United States v. Bartok, 472 F. App'x 25, 27 (2d Cir. 2012).
E. The Presumption of Remand in 18 U.S.C. § 1591 Cases
A 18 U.S.C. § 1591 case involving sexual victimization of a minor is unusual in that it
includes a presumption in favor of pretrial detention, reflecting the significant harm caused by
such a crime. 18 U.S.C. § 3142(e)(3)(E). The presumption is that no condition or combination of
conditions will reasonably assure against flight or danger to the community. United States v.
English, 629 F.3d 311, 319 (2d Cir. 2011 )(quoting 18 U.S.C. § 3142(e)(3)(E)). Mr. Epstein may
rebut the presumption by "coming forward with evidence that he does not pose a danger to the
community or a risk of flight." United States v. Mercedes, 254 F.3d 433,436 (2d Cir. 2001). The
Government retains the "ultimate burden of persuasion" that Mr. Epstein presents a danger to the
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community (by clear and convincing evidence) and that Mr. Epstein presents a risk of flight (by
a preponderance of the evidence). Id. Even ifrebuttal evidence is presented, "the presumption
favoring detention does not disappear entirely." Id. at 436. "[It] remains a factor to be considered
among those weighed by the district court." Id.
F. Mr. Epstein Poses a Danger To Others And To the Community
The Court begins with "dangerousness" because that concept is at the heart of this case. It
finds that the Government has shown by clear and convincing evidence that Mr. Epstein
threatens the safety of another person and of the community, as follows on pages 10-21:
•
Victims Have Advised The Court That They Would Fear For Their Safety If Mr.
Epstein Were Released
Victims have "specifically conveyed" to the Government that any form ofrelease of the
Defendant, including home detention with full-time private guards, could "result in [their]
harassment and abuse." Dkt. 11 at 4. At the bail hearing on July 15, 2019, two victims movingly
testified about their past sexual encounters with Mr. Epstein when they were minors aged 14 and
16, respectively. 7/15/19 Tr. at 72; see also S. REP. 108-191 ("CVRA Legislative History"), at
(In enacting the CVRA, Congress stated that "[V]ictims deserve the right to be heard at
specific points in the criminal justice process," including bail hearings. "Giving victims a voice
not only improves the quality of the process but can also be expected to often provide important
benefits to victims."). Ms. Annie Farmer was introduced by her counsel, David Boies, and stated
that she was 16 years old when she "had the misfortune of meeting Jeffrey Epstein [in] New
York." 7/15/19 Tr. at 72. Ms. Farmer said that Mr. Epstein "flew [her] to New Mexico" and was
"inappropriate" with her. Id. She was reluctant to go into details about her experience with Mr.
Epstein. Id. at 73. Ms. Farmer opposes Mr. Epstein's pretrial release because she believes other
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Epstein victims would "continu[e] to be victimized" and that Mr. Epstein's wealth and privilege