EPSTEIN
page 4 / 3016 . OCR, unverified
EFTA00067386
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Case 9:08-cv-80119-KAM
Document 65
Entered on FLSD Docket 03)25:2009
Page 5 of 15
Page 5
result of matters alleged in this civil action (and others before this Court and in the State of
Florida 15th Judicial Circuit Court, Palm Beach County).
The special circumstances of this action are such that a stay or continuance for a time
certain is NOT prejudicial and is required to be entered so that:
(1) EPSTEIN is not required to waive his Fifth Amendment right against self-
incrimination under the United States Constitution resulting in severe prejudice to EPSTEIN in
pending criminal matters; and
(2) EPSTEIN is not forced to choose between waiving his Fifth Amendment right against
self-incrimination or losing the civil case.
Here, in asserting his Fifth Amendment Privilege, the Plaintiff is afforded an opportunity
rarely given - that is, to put on only her evidence without any counterevidence from Defendant
resulting in a judgment of liability against EPSTEIN. This is inherently unfair and precisely the
special circumstances where "in the interests of justice" a stay is required. Ventura v. Broskv
2006 WL 3392207 (S.D. Fla. 2006), glikg,
r
United States v. Lot 5. Fox Grove 23 F.3d 359 (11th
Cir. 1994). In Ventura, a stay was entered where a Defendant was confronted with issue of
waiving his 5th Amendment Privilege or to loose a civil case by way of motion for summary
judgment. Id. Here, EPSTEIN is not requesting a mandatory stay. EPSTEIN only asks that this
court recognize that "special circumstances" exists in this matter and enter a stay in the "interests
of justice" and only for a specified period of time (i.e., after the NPA expires). See also
Securities and Exchange Commission 755 F.Supp. 1018, 1019 (S.D. Fla. 1990)(Defendant was
in precarious position while being subject to criminal investigation and reasoning that
compelling Defendant to speak by ordering an accounting of alleged illicit funds would directly
EFTA00067387
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Case 9:08-cv-80119-KAM
Document 65
Entered on FLSD Docket 03)25:2009
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impinge his right against self-incrimination). The court found it appropriate to grant the request
for stay. (Emphasis Added).
Citing to U.S. v. Lot 5. Fox Grove, supra, the Southern District Court, Florida, in
Ventura v. Brosky, 2006 WL 3392207 (S.D. Fla. 2006), stated —
The Eleventh Circuit has also created a test for these circumstances. stating that
where there exists a concurrent civil and criminal proceeding, a court must stay
a civil proceeding pending resolution of a related criminal prosecution when
"special circumstances" so require in the "interests of justice."
(Bold emphasis added). See also United States v. Kordel, 397 U.S. 1, 12 & n. 27, 90 S.Ct. 763,
769-70 & n.27 (1970). The Ventura Court went on to state that "situations where a defendant in
both criminal and civil proceedings must choose whether to waive his privilege against self-
incrimination or to lose the civil case in summary or default judgment proceedings have met this
test's burden and warrant a stay." Id. The Ventura court granted the stay. Here, the 15th Judicial
Circuit action lives along with the NPA.
In making a decision to enter such a stay, the court may consider the following factors:
(1)
the interests of the Plaintiffs in proceeding expeditiously with litigation, or any
aspect of it, and the potential prejudice of Plaintiff to the delay;
(2)
the burden which any particular aspect of the proceedings may impose on the
defendant;
(3)
the convenience of the court in the management of its cases, and the efficient use
of judicial resources;
(4)
the interests of persons not parties to the civil litigation; and
(5)
the interest of the public in the pending civil and criminal litigation.
See U.S. v. Pinnacle Quest International, 2008 WL 4274498 (N.D. Fla. 2008).
EFTA00067388
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Case 9:08-cv-80119-KAM
Document 65
Entered on FLSD Docket 03,'25:2009
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First, in applying the 'above factors, the Plaintiff in the instant matter will not be
prejudiced simply by claiming a delay in time. Second, the burden is far greater on EPSTEIN if
he is forced to waive his 5th Amendment Privilege or remain silent and have a judgment entered
against him or choose to testify and face criminal prosecution. Third, efficient use of judicial
resources would be rendered upon a stay by way of preventing an appeal if such a stay is not
entered. The Court has broad discretion to enter such a stay. Fourth, the interests of the
individuals outlined in the NPA will be served because EPSTEIN's fulfillment of NPA alleged
obligations is determinative upon whether the USAO prosecutes those individuals or whether the
claims will be dropped upon the expiration of the NPA. Finally, the interest of the public in the
pending civil and criminal cases will not be prejudiced as EPSTEIN is already serving his term
whereby a plea was entered in the 15 Judicial Circuit action.