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United States v. Epstein (S.D.N.Y. 2019)

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tagscase, southern-district-of-new-york, sex-trafficking, indictment, 2019

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CaseUnited States v. Jeffrey Epstein1
CourtU.S. District Court for the Southern District of New York1
Docket19 Cr. 490 (RMB); 1:19-cr-00490-RMB12
ChargesCount One, conspiracy to commit sex trafficking of minors, 18 U.S.C. § 371; Count Two, sex trafficking of minors, 18 U.S.C. §§ 1591(a), (b)(2) and 21
Indictment returnedJuly 2, 2019, under seal; unsealed July 8, 201913
ArrestJuly 6, 2019, Teterboro Airport, New Jersey45
JudgesRichard M. Berman, District Judge; Henry Pitman, Magistrate Judge23
For the governmentGeoffrey S. Berman, U.S. Attorney; AUSAs Maurene Comey, Alison Moe and Alex Rossmiller14
For the defendantMartin G. Weinberg; Reid Weingarten and Michael Miller, Steptoe & Johnson; Marc Fernich678
DetentionBail denied and defendant remanded, July 18, 2019; appeal to the Second Circuit, No. 19-2221, withdrawn by stipulation, so ordered August 21, 201929
Defendant’s deathAugust 10, 2019, at the Metropolitan Correctional Center, New York10
DispositionIndictment dismissed on the government’s nolle prosequi under the rule of abatement; order entered August 29, 2019, after a public hearing on August 271112

United States v. Jeffrey Epstein, 19 Cr. 490 (RMB), was a federal criminal prosecution in the Southern District of New York. A grand jury returned a sealed two-count indictment on July 2, 2019 charging Epstein with sex trafficking of minors and with conspiracy to commit that offence between at least 2002 and at least 2005 at his residences in Manhattan and Palm Beach.1 Epstein was arrested at Teterboro Airport on July 6, 2019 as he arrived from abroad by private jet, and the indictment was unsealed on July 8.453 Judge Richard M. Berman denied bail and ordered him remanded on July 18, 2019.2 Epstein died at the Metropolitan Correctional Center on August 10, 2019 before any trial or judgment; the New York City Office of the Chief Medical Examiner determined that the cause of death was hanging and the manner of death suicide.1013 The government moved to dismiss the indictment under the rule of abatement, the court heard victims and counsel at a public hearing on August 27, and the order of dismissal was entered on August 29, 2019.1481112 Epstein was never tried, and in the detention order Judge Berman recorded that he was “innocent of the Federal charges alleged against him now and until such time, if it comes, that a jury or the Court finds … that he is guilty.”2

The indictment

The indictment charged two counts. Count One alleged that “[f]rom at least in or about 2002, up to and including in or about 2005, in the Southern District of New York and elsewhere,” Epstein and others known and unknown conspired to commit sex trafficking of minors in violation of 18 U.S.C. § 1591(a) and (b), the conspiracy count being brought under 18 U.S.C. § 371.15 Count Two charged the substantive offence over the same period, alleging that Epstein “recruited, enticed, harbored, transported, provided, and obtained numerous individuals who were less than 18 years old … and who were then caused to engage in at least one commercial sex act in Manhattan, New York.”16

The factual allegations described a pattern at two properties, a “multi-story private residence on the Upper East Side of Manhattan” (9 East 71st Street) and an estate in Palm Beach, Florida.17 The grand jury alleged that Epstein paid minor girls hundreds of dollars in cash for encounters described as massages, that “[t]he victims described herein were as young as 14 years old at the time they were abused,” and that he paid certain victims to recruit other girls, paying both the recruiter and the new victim.1819 The indictment designated three complainants as Minor Victim-1, Minor Victim-2 and Minor Victim-3, and three of Epstein’s staff as Employee-1, Employee-2 and Employee-3; the overt acts pleaded in support of Count One included telephone calls placed by Employee-1 and Employee-2 from within the Southern District of New York to schedule encounters.20

Count Two carried a forfeiture allegation seeking, among other property, “[t]he lot or parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments and easements, located at 9 East 71st Street, New York, New York, with block number 1386 and lot number 10, owned by Maple, Inc.”21 The indictment was signed by the grand jury foreperson and by United States Attorney Geoffrey S. Berman.22 It was returned under seal on July 2 and unsealed on July 8, 2019 by an order of Magistrate Judge Henry Pitman made on the application of AUSA Alex Rossmiller.3

The government told the court that § 1591 as it stood during the charged period carried a maximum of 40 years’ imprisonment, and that the two counts together exposed Epstein to “up to 45 years of incarceration.”23

Epstein was arrested on July 6, 2019 at Teterboro Airport in New Jersey.5 The government’s detention memorandum, submitted to Magistrate Judge Pitman on July 8, said he “was arrested at Teterboro Airport arriving on just such a private international flight after having spent approximately three weeks abroad,” and that “between January 1, 2018, and the present, U.S. Customs and Border Patrol has logged approximately more than 20 flights in which Epstein was traveling to or from a foreign country.”24

The same memorandum reported the results of a search of the Manhattan residence carried out under judicially authorised warrants on the night of July 6–7. The government wrote that officers found evidence consistent with victims’ recollections of the inside of the house and “at least hundreds—and perhaps thousands—of sexually suggestive photographs of fully- or partially-nude females,” some appearing to be of underage girls, and that some of the photographs were in a locked safe together with compact discs bearing hand-written labels “including the following: ‘Young [Name] + [Name],’ ‘Misc nudes 1,’ and ‘Girl pics nude.’”25 The bracketed substitutions are the government’s own.

Bail litigation

The government sought detention on two independent grounds, risk of flight and danger to the community, relying on the statutory presumption that applies to a charge under § 1591 involving a minor victim.423 It described Epstein as having “no known immediate family,” six residences and access to private aircraft.24 It also cited his New York sex-offender registration “under classification level three … defined as presenting a ‘high’ risk of committing another sex crime and harm to the community.”26

Epstein moved for pretrial release on July 11, 2019 through Reid Weingarten of Steptoe & Johnson, proposing a fourteen-point package: home detention in the Manhattan residence with electronic monitoring, an agreement not to seek a new passport, his one active U.S. passport having been surrendered, consent to extradition, a personal recognizance bond secured by a mortgage on that residence, “valued at roughly $77 million,” two co-sureties, the grounding of his aircraft, daily reporting to Pretrial Services and one or more trustees living in the residence to report any violation.27 The motion argued that the charges rested on “conduct the relitigation of which is barred by a prior federal nonprosecution agreement,” that Epstein “has never once attempted to flee the United States,” and that “[t]here are no allegations in the indictment that Mr. Epstein trafficked anybody for commercial profit; that he forced, coerced, defrauded, or enslaved anybody.”28 Marc Fernich supplemented the application on July 16, telling the court that Epstein’s brother Mark, “a U.S. resident,” stood prepared to co-sign and secure a release bond, and proffered as security the full amount of what counsel called Mark’s “own net worth,” which counsel represented as exceeding $100 million.29

Opposing release before Judge Berman on July 12, the government30 said the proposed package “contemplates the defendant pledging as the principal security a property that has already been identified by the Government as subject to forfeiture upon the defendant’s conviction, and which therefore is of no value as collateral,” and reported that Epstein was “worth, according to records relating to the defendant recently obtained by the Government from a financial institution (‘Institution-1’), more than $500 million” and “already earns at least $10,000,000 per year.”3132 It also told the court that “[m]ultiple victims and/or their counsel have asked the Government to seek detention,” invoking their right under the Crime Victims’ Rights Act to be “reasonably protected from the accused.”33

After a bail hearing on July 15, at which two victims addressed the court, Judge Berman issued a thirty-three page Decision & Order on July 18, 2019.234 He found on clear and convincing evidence that Epstein posed “a danger to other persons and to the community,” and separately, on a preponderance of the evidence, that he was a flight risk.3536 The order recorded that the U.S. Pretrial Services Department had recommended continued remand, that Epstein was “a registered Level III sex offender in New York and a registered sex offender in Florida (Level I) and the Virgin Islands (Level I),” and that he had “relatively limited family ties to the United States in the sense that he is single with no children and his parents are deceased,” while noting his brother’s offer to act as guarantor.3738 It also recorded that a search of the New York house had recovered an expired Austrian passport bearing Epstein’s photograph in another name and listing a residence in Saudi Arabia. An earlier defence submission said Epstein had acquired the passport in the 1980s, when hijackings were prevalent, for personal protection in connection with Middle East travel; a later submission, dated July 18, 2019, said instead that Epstein had been given the passport by a friend and had never used it to travel internationally.39 The order concluded: “Based upon the forgoing, the Government’s motion for remand (detention) is granted and the Defense motion for pretrial release is denied.”40

Epstein appealed the detention order to the Court of Appeals for the Second Circuit, docket 19-2221. After his death the parties filed a stipulation withdrawing the appeal under Rule 42 of the Federal Rules of Appellate Procedure, and the Second Circuit so ordered it on August 21, 2019.9

Custody and death

Epstein was held at the Metropolitan Correctional Center in Manhattan. A later indictment of two correctional officers records that he was assigned to the Special Housing Unit on July 10, 2019 “due to, among other things, risk factors for suicidality and safety concerns relating to housing him with the MCC’s general population”; that on July 23, 2019 officers responding to an emergency call “found Epstein on the floor of his cell with a strip of bedsheet around his neck”; that he was then placed on suicide watch for about twenty-four hours and on psychological observation until July 30; and that on his return to the Special Housing Unit the psychological staff directed that he have a cellmate.41

MCC Warden Lamine N’Diaye wrote to Chief Judge Colleen McMahon and to Judge Berman on August 10, 2019 that Epstein had been found unresponsive in his cell in the Special Housing Unit at around 6:30 a.m. and pronounced dead at New York Presbyterian-Lower Manhattan Hospital at around 7:37 a.m., that an autopsy was pending, that the FBI was investigating and that the Attorney General had asked the Department’s Office of the Inspector General to look into the matter as well.10 Judge Berman replied on August 12 asking whether those investigations would take in the July 23 incident, adding that “[t]o my knowledge, it has never been definitively explained what the BOP concluded about that incident.”42 N’Diaye answered the same day that an internal investigation into the July 23 incident had been completed but that he could not disclose anything about it because the FBI and Inspector General investigations would cover it as well.43

In its August 19, 2019 letter to the court the government recorded that “[o]n August 16, 2019, and after conducting an autopsy, the Office of the Chief Medical Examiner of the City of New York issued a statement identifying the cause of death as hanging, and the manner of death as suicide.”13 That determination was publicly disputed. A USA TODAY article by Kevin Johnson and Kristine Phillips, a copy of which is held in an FBI records production, reported that Michael Baden, a former New York City medical examiner retained by Epstein’s brother, said in a television interview that “[t]here were findings that are unusual for suicide by hanging and more consistent with ligature homicidal strangulation,” and that Chief Medical Examiner Barbara Sampson said in response that “[o]ur investigation concluded that the cause of Mr. Epstein’s death was hanging and the manner of death was suicide … There is no reason for a second medical investigation by our office.”44 The copy in the release carries no publication date. See the death of Jeffrey Epstein.

Dismissal

On August 19, 2019 the United States Attorney’s Office filed a letter asking the court to approve an attached proposed order of nolle prosequi.13 The proposed order recited that Epstein had died “while the above-captioned case was pending, and therefore before a final judgment was issued,” so that “the Indictment must be dismissed under the rule of abatement,” citing United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998). It was recommended by AUSAs Alison Moe, Alex Rossmiller and Maurene Comey and directed, “with leave of the Court,” by U.S. Attorney Geoffrey S. Berman; the block for the court’s signature was left blank.14

The court did not enter the order on the papers. On August 21 Judge Berman ordered a public hearing, writing that “where, as here, a defendant has died before any judgment has been entered against him, the public may still have an informational interest in the process by which the prosecutor seeks dismissal of an indictment,” and directing that counsel for the government and for the deceased defendant “will be heard” and that “[c]ounsel for the victims and the victims will also be heard, if they wish to be.”45 The hearing was moved to Courtroom 110 at 40 Foley Square the day before it sat.46

At the hearing on August 27, 2019 the court explained that it had proceeded under Rule 57(b) of the Federal Rules of Criminal Procedure and had notified the victims that they would be heard “before any final action on the motion,” and that the leave-of-court proviso in Rule 48(a) is “clearly directed toward an independent judicial assessment of the public interest in dismissing the indictment.”47 The government told the court that dismissal “in no way prohibits or inhibits the government’s ongoing investigation into other potential coconspirators, nor does it prevent the bringing of a new case in the future or the prosecution of new defendants,”48 and that investigations into civil forfeiture and related matters “have been ongoing, remain ongoing, and will continue following dismissal of the indictment here.”49 Victims and their counsel then addressed the court; the Justice Department’s Office of Professional Responsibility later recorded that “more than a dozen of Epstein’s victims—including victims of the conduct in Florida that was addressed through the NPA—spoke about the impact of Epstein’s crimes.”12 The court thanked those who had spoken and adjourned without ruling from the bench.50

The order of nolle prosequi was entered on August 29, 2019 as docket entry 52. Judge Berman signed the previously blank block and added by hand: “The Court incorporates by reference the transcript of the hearing held on 8 /27 /19 in its entirety and underscores the significance of the Crime Victims’ Rights Act, 18 U.S.C. § 3771.”1112

Ghislaine Maxwell was charged in the same district by a sealed indictment filed on June 29, 2020, 20 Cr. 330 (S.D.N.Y.).51

2008 non-prosecution agreement; Doe v. United States (CVRA litigation); Palm Beach Police Department investigation; Death of Jeffrey Epstein; 9 East 71st Street; Southern District of New York; Ghislaine Maxwell; Mark Epstein; Epstein investigations overview.

Footnotes

  1. Indictment, Document 2, United States v. Jeffrey Epstein, 19 Cr. 490 (S.D.N.Y.), filed July 2, 2019, 14 pp. https://epstein-data.com/DOJ-OGR-00000258 ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  2. Decision & Order Remanding Defendant, Document 32, July 18, 2019, 33 pp.; quoted passage at p. 1 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  3. Unsealing Order, Document 3, signed by Magistrate Judge Henry Pitman, filed July 8, 2019. https://epstein-data.com/DOJ-OGR-00000272 ↩ ↩2 ↩3 ↩4

  4. Memorandum in support of detention, USAO-SDNY letter to Magistrate Judge Pitman, July 8, 2019, filed as Document 11-1 on July 12, 2019, 10 pp. https://epstein-data.com/DOJ-OGR-00000343 ↩ ↩2 ↩3 ↩4

  5. Indictment, Document 1, United States v. Noel and Thomas, 19 Cr. 830 (S.D.N.Y.), filed November 19, 2019, p. 6 of 20 (“On July 6, 2019, inmate Jeffrey Epstein was arrested and detained at the MCC on sex trafficking charges.”). https://epstein-data.com/DOJ-OGR-00021908 ↩ ↩2 ↩3

  6. Motion for pretrial release, Document 6, Steptoe & Johnson letter to Judge Berman, July 11, 2019, 16 pp. https://epstein-data.com/DOJ-OGR-00000274 ↩

  7. Letter of Marc Fernich supplementing the bail application, Document 22, July 16, 2019, 9 pp. https://epstein-data.com/DOJ-OGR-00000431 ↩

  8. Transcript of proceeding, August 27, 2019, United States v. Epstein, 19 Cr. 490 (RMB), 86 pp.; appearances at p. 1 of 86. https://epstein-data.com/EFTA00019994 ↩ ↩2

  9. Order, United States v. Epstein, No. 19-2221 (2d Cir. Aug. 21, 2019), mandate issued August 21, 2019 and filed in the district court as Document 49. https://epstein-data.com/DOJ-OGR-00000631 ↩ ↩2

  10. Letter of Warden Lamine N’Diaye to Chief Judge Colleen McMahon and Judge Richard M. Berman, August 10, 2019, Document 44, pp. 1–2 of 2. https://epstein-data.com/DOJ-OGR-00000623 ↩ ↩2 ↩3

  11. Order of nolle prosequi, Document 52, filed August 29, 2019, p. 2 of 2, signed by Judge Richard M. Berman. https://epstein-data.com/DOJ-OGR-00000637 ↩ ↩2 ↩3

  12. Excerpts of the Department of Justice Office of Professional Responsibility Report, captioned “Investigation into the U.S. Attorney’s Office for the Southern District of Florida’s Resolution of Its 2006–2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation,” reproduced as Appendix F to the petition for a writ of certiorari in Maxwell v. United States, p. 132 of 159 (appendix p. 102a). https://epstein-data.com/DOJ-OGR-00000034 ↩ ↩2 ↩3 ↩4

  13. USAO-SDNY letter to Judge Berman transmitting the proposed order of nolle prosequi, Document 47, August 19, 2019, signed by AUSAs Alison Moe, Alex Rossmiller and Maurene Comey. https://epstein-data.com/DOJ-OGR-00000627 ↩ ↩2 ↩3

  14. Proposed order of nolle prosequi, Document 47-1, filed August 19, 2019, pp. 1–2 of 2; the “SO ORDERED” block on p. 2 is unsigned and undated in this copy. https://epstein-data.com/DOJ-OGR-00000628 ↩ ↩2

  15. Indictment, “Statutory Allegations,” p. 8 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  16. Indictment, Count Two, pp. 11–12 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  17. Indictment, p. 3 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  18. Indictment, p. 2 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  19. Indictment, p. 5 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  20. Indictment, “Overt Acts,” pp. 9–11 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  21. Indictment, forfeiture allegations, p. 12 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  22. Indictment, signature page, p. 13 of 14. https://epstein-data.com/DOJ-OGR-00000258 ↩

  23. Detention memorandum, p. 5 of 10 and n.3. https://epstein-data.com/DOJ-OGR-00000343 ↩ ↩2

  24. Detention memorandum, p. 7 of 10. https://epstein-data.com/DOJ-OGR-00000343 ↩ ↩2

  25. Detention memorandum, p. 9 of 10. https://epstein-data.com/DOJ-OGR-00000343 ↩

  26. Detention memorandum, p. 8 of 10. https://epstein-data.com/DOJ-OGR-00000343 ↩

  27. Motion for pretrial release, proposed conditions 1–14, pp. 3–4 of 16. https://epstein-data.com/DOJ-OGR-00000274 ↩

  28. Motion for pretrial release, pp. 1–2 of 16. https://epstein-data.com/DOJ-OGR-00000274 ↩

  29. Fernich letter, p. 5 of 9. https://epstein-data.com/DOJ-OGR-00000431 ↩

  30. USAO-SDNY letter to Judge Berman opposing pretrial release, Document 11, July 12, 2019, 14 pp. https://epstein-data.com/DOJ-OGR-00000329 ↩

  31. Government’s opposition, p. 2 of 14. https://epstein-data.com/DOJ-OGR-00000329 ↩

  32. Government’s opposition, pp. 4–5 of 14. https://epstein-data.com/DOJ-OGR-00000329 ↩

  33. Government’s opposition, p. 4 of 14. https://epstein-data.com/DOJ-OGR-00000329 ↩

  34. Decision & Order, p. 10 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  35. Decision & Order, p. 21 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  36. Decision & Order, p. 22 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  37. Decision & Order, pp. 13–14 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  38. Decision & Order, pp. 23–24 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  39. Decision & Order, pp. 24–25 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  40. Decision & Order, “Conclusion & Order,” p. 33 of 33. https://epstein-data.com/DOJ-OGR-00000472 ↩

  41. United States v. Noel and Thomas indictment, pp. 6–7 of 20. https://epstein-data.com/DOJ-OGR-00021908 ↩

  42. Letter of Judge Richard M. Berman to Warden Lamine N’Diaye, August 12, 2019, Document 45. https://epstein-data.com/DOJ-OGR-00000625 ↩

  43. Letter of Warden Lamine N’Diaye to Judge Richard M. Berman, August 12, 2019, Document 46. https://epstein-data.com/DOJ-OGR-00000626 ↩

  44. Kevin Johnson and Kristine Phillips, “Private pathologist questions whether Jeffrey Epstein died by suicide; medical examiner stands by conclusion,” USA TODAY; copy held at p. 13 of 14 of an FBI records production transmitted January 22, 2020. https://epstein-data.com/EFTA01683964 ↩

  45. Order scheduling the hearing, Document 48, August 21, 2019. https://epstein-data.com/DOJ-OGR-00000630 ↩

  46. Order, Document 50, August 26, 2019, moving the August 27 hearing to Courtroom 110, Thurgood Marshall United States Courthouse, 40 Foley Square. https://epstein-data.com/DOJ-OGR-00000632 ↩

  47. Transcript, August 27, 2019, pp. 5–6 of 86. https://epstein-data.com/EFTA00019994 ↩

  48. Transcript, August 27, 2019, p. 10 of 86. https://epstein-data.com/EFTA00019994 ↩

  49. Transcript, August 27, 2019, p. 11 of 86. https://epstein-data.com/EFTA00019994 ↩

  50. Transcript, August 27, 2019, pp. 85–86 of 86. https://epstein-data.com/EFTA00019994 ↩

  51. Sealed Indictment, Document 1, United States v. Ghislaine Maxwell, 20 Cr. 330 (S.D.N.Y.), filed June 29, 2020, p. 1 of 18. https://epstein-data.com/EFTA01659394 ↩

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