EPSTEIN
page 2 / 3766 . OCR, unverified
into the Non-Prosecution Agreement."
Mot. to Dismiss at 3.
Indeed, the basis of the
government's motion is that, even assuming that the CVRA was violated as Petitioners claim,
Petitioners lack standing to seek redress for those violations, and that these proceedings must
accordingly be dismissed for lack of subject matter jurisdiction.
Under these circumstances, this Court is obligated to address and resolve the question of
whether it has subject matter jurisdiction before proceeding any further with this matter. E.g.,
University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)
(holding that "the district court should have resolved the issue of subject matter jurisdiction
before reaching the merits of any other issue" and that "the district court erred in failing to first
address its power to act"); id. at 410 ("Simply put, once a federal court determines that it is
without subject matter jurisdiction, the court is powerless to continue."); Taylor v. Appleton, 30
F.3d 1365, 1366 (11th Cir. 1994) ("[A] court must first determine whether it has proper subject
matter jurisdiction before addressing the substantive issues."); see also, e.g., Ex parte McCardle,
U.S. 506, 514 (1868) ("Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and dismissing the
cause.").
require notice, see, e.g., 18 U.S.C. § 3771(a)(2), (b)(1); cf. 18 U.S.C. § 3771(a)(2)(A), (C)
(curtailing notice rights and obligations even for federal proceedings when they involve a state
crime); United States v. Guevara-Toloso, 2005 WL 1210982, *2 (E.D.N.Y. 2005) (recognizing
that the CVRA does not require notice of public court proceedings based on violations of state
criminal law), and, in any event, AUSA Villafafia provided Petitioners with pre-hearing notice of
those state proceeding — in which Epstein pled guilty to state criminal charges — upon the
government's learning that the state plea hearing had been scheduled, DE 14 at 9111; DE 48 at
¶41.
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B.
Petitioners Lack Standing to Seek Rescission of the
Non-Prosecution Agreement Between the USAO-SDFL and Epstein
In an effort to establish standing and circumvent the requirements of Santobello v. New
York, 404 U.S. 257, 262 (1971), and its progeny, Petitioners argue that the Non-Prosecution
Agreement between the USAO-SDFL and Epstein is an illegal contract that is void and cannot
be enforced by the courts. Petitioners, however, do not actually contend that any term or
promise in the Non-Prosecution Agreement is illegal or prohibited by law — and they certainly
cite no law establishing that any provision of the agreement is illegal. Indeed, Petitioners have
acknowledged, and this Court has also recognized, that the USAO-SDFL and Epstein can legally
enter into an agreement containing the terms and promises in the Non-Prosecution Agreement.
See, e.g., DE 15 (July 11, 2008 Hr'g Tr.) at 22 (setting forth Petitioners' agreement that "it is
within [the government's] discretion" to "decide on [its] own that ... the agreement was fair
after [the government] ha[s] talked with the victims"); see also id. at 6-7 (Court's recognition
that government "can agree to prosecute or it can agree to going forward with the agreement it
had already reached and after consulting [Petitioners] and in taking into consideration
[Petitioners'] views, decide to go forward anyway"); DE 99 at 4 (citing 18 U.S.C. § 3771(d)(6)
and recognizing that CVRA does not constrict prosecutorial discretion regarding charging and
handling of criminal matters).
Because the Non-Prosecution Agreement in this matter does not contain terms or
promises prohibited by law (and is therefore not an illegal agreement), it is legally distinct from
the "illegal agreements" in the cases cited by Petitioners. See DE 127 at 8-11; DE 48 at 37-39.
The plea agreements in the cases relied upon by Petitioners contained (or were challenged as
containing) unlawful terms or promises that, to be performed, would have required the respective
courts to impose legally prohibited sentences; such unlawful terms/promises, unlike the lawful
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terms in the Non-Prosecution Agreement, could not be enforced. See State v. Garcia, 582
N.W.2d 879, 881-83 (Minn. 1998) (plea agreement promised a sentence that did not contain a
statutorily-required 10-year conditional release term and would have required court imposition of
an unlawful sentence); State v. Wall, 348 N.C. 671, 676, 502 S.E.2d 585, 588 (1998) (holding
that court could not impose a concurrent sentence that was prohibited by law despite fact that
defense and prosecution understood plea agreement to promise such a concurrent sentence); Ex