EPSTEIN
page 3 / 3016 . OCR, unverified
Further, the USAO was present at the Plea hearing whereby the NPA was made part of the
record. Thus, there is no question that a parallel criminal matter exists in that the SAO's case
remains open and the NPA lives along side it, which places EPSTEIN under great scrutiny by the
USAO. The NPA actually places an affirmative duty upon EPSTEIN to undertake discussions
with the SAO to ensure compliance with the NPA. That check and balance, therefore, remains in
the hands of the SAO, which has a parallel criminal proceeding. Here, the threat of prosecution
is real, substantial, and present should the USAO determine that EPSTEIN somehow violated the
NPA. As discussed below, because the NPA fails to define what constitutes a breach, the USAO
has apparently taken it upon itself to determine whether a breach has occurred and whether to
seek criminal prosecution. In fact, the USAO has already attempted to claim violations of the
NPA due to, among other things, EPSTEIN defending the civil actions against him. Clearly, it is
NOT simply EPSTEIN's choice as to whether he violates the NPA — that discretion apparently
lies with the USAO. For this reason alone, a stay is required until the NPA expires.
The difference between this Motion and the prior motion to stay in is due to the ripeness
of the issues discussed herein.
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H.
THE NPA
By its terms, the NPA took effect on June 30, 2008 and expires by those same terms in
late 2010 so long as EPSTEIN complies with the terms and conditions — violations of which
remain undefined. The NPA, which remains under seal, outlines various obligations on the part
of EPSTEIN including, but not limited to, pleading guilty to the Indictment and Information
before the 15th Judicial Circuit, recommendations for his sentencing before the 15'h Judicial
Circuit, waiver of challenges to the Information filed by the SAO, waiver of right to appeal his
conviction, agreement not be afforded benefits for gain time, and the agreement to not prosecute
others listed thereon so long as EPSTEIN does not breach and fulfills the requirements of the
NPA.
What the NPA does not outline or define is what constitutes a breach or what act or
omission constitutes a breach thereof
Therefore, the USAO apparently believes it has the
discretion to make that unwritten and undefined determination, which places an unreasonable
burden upon EPSTEIN in defending the civil claims in that he has no idea what the USAO will
define as a breach in the event he does not assert his 5th Amendment Rights. As an example, the
USAO has already claimed that EPSTEIN violated the NPA by:
1.
investigating the Plaintiffs (by and though his attorneys) whom brought civil suits
against him for purposes of defending those civil actions;
2.
contesting damages in this action and in the other civil actions;
3.
making statements to the press about this Plaintiff or other Plaintiffs by and
though his attorneys; and
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office.
4.
using the word "jail" instead of "imprisonment" in the plea agreement with SA's
See Exhibit "B" Goldberger Affidavit - EPSTEIN's criminal counsel.
These allegations are silly, unfounded and alleged violations which are not defined as
violations under the NPA but arrived at by the USAO. Thus, EPSTEIN is left with "Morton's
Fork" in his side - the undesirable choice of taking the 5th Amendment and having a judgment
(summary or otherwise) entered against him in the civil action or the undesirable choice of
subjecting himself to discovery in the civil action before the NPA expires and, thus, face the
possibility of criminal prosecution by the USAO based upon some illusory breach deemed by the
USAO by way of information obtained through civil discovery proceedings. This is inherently
unfair, the danger is clear, and the playing field is not level in light of the NPA language or lack
thereof.
As a result, the threat of criminal prosecution against EPSTEIN by the USAO continues
presently and through late 2010.
HI.
Justice Requires The Entry of A Stay Because Defendant Is Being
Forced To Choose Between Waiving His 5th Amendment Privilege Or Risk
Losing This Civil Case And Forfeiting Other Constitutional Guarantees Of
Due Process And Effective Assistance Of Counsel
Once the NPA expires, EPSTEIN fully intends to testify to all relevant and non-
objectionable inquiries made to him in discovery be it a deposition, in interrogatories or in
production requests. (Emphasis Added) However, the current circumstances are such that by
testifying or responding to discovery, EPSTEIN will be required to waive his constitutional
privileges, thereby subjecting himself to criminal prosecution and scrutiny by the USAO as a
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Case 9:08-cv-80119-KAM