013.pdf

Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 1 of 29
JANE DOE II,
V.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-CIV- 80469 - MARRA/JOHNSON
Plaintiff,
JEFFREY EPSTEIN,
Defendant.
--------------'/
DEFENDANT EPSTEIN'S MOTION TO DISMISS PLAINTIFF'S
COMPLAINT, AND SUPPORTING MEMORANDUM OF LAW
Defendant, Jeffrey Epstein, (hereinafter "Epstein"), by and through his
undersigned attorneys, moves to dismiss Plaintiff's Complaint for failure to state a cause
of action, and for more definite statement. Rule 12(b)(6), (e), Fed.R.Civ.P. (2008);
Local Gen. Rule 7.1 (S.D. Fla. 2008). In support of dismissal, Defendant states:
At the outset, Defendant gives notice to the Court that issues pertaining to 18
U.S.C. §2255 in this motion to dismiss are also raised in the case of C.M.A. v. Jeffrey
Epstein, Case No. 08-CV-80811-MARRA/JOHNSON, in Defendant's Motion to Dismiss
directed to Plaintiff C.M.A.'s Amended Complaint, Plaintiff C.M.A.'s Response, and
Defendant's reply to C.M.A.'s response (which has yet to be filed).
In this action, Plaintiff's Complaint attempts to allege a cause of action pursuant
to 18 U.S.C. §2255 - Civil Remedies for Personal Injuries. Significantly, Plaintiff
previously a filed lawsuit on July 10, 2008, based on the same facts as alleged herein in
the Fifteenth Judicial Circuit In and For Palm Beach County, State of Florida, Case No.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 2 of 29
Jane Doe II v. Epstein, et al.
Page 2
50 2008CA020614 MBAF, Jane Doe II v. Jeffrey Epstein, and Sarah Kellen, (hereinafter
"state action"). In attempting to allege a claim under 18 U.S.C. §2255, Plaintiff
improperly relies on the §2255, as amended, effective July 27, 2006. As discussed
more fully below herein, the statute in effect during the time of the alleged conduct
applies.
Dismissal is required on several grounds: (1) Plaintiff previously filed a state action
approximately 1 0 months ago against the same defendant involving the same alleged
facts; (2) Plaintiff improperly relies on 18 U.S.C. §2255, as amended, effective July 27,
2006, rather than the version of the statute in effect during the time of the alleged
conduct; (3) Plaintiff improperly asserts that the presumptive damages minimum under
§2255 is subject to multiplication on a per violation basis; (4) Plaintiff has failed to allege
a cause of action under 18 U.S.C. §2255 as she has failed to sufficiently allege facts
constituting a predicate act; (5) Plaintiff has failed to state a cause of action of
conspiracy to violate §2255.
Supporting Memorandum of Law
I. Court is required to dismiss Plaintiff's action as there is already pending
a previously filed state action arising from the same factual allegations.
Exceptional circumstances merit the dismissal of this action as Plaintiff first filed
a lawsuit on July 10, 2008, in the in the Fifteenth Judicial Circuit In and For Palm Beach
County, State of Florida, Case No. 50 2008CA020614 MBAF, Jane Doe II v. Jeffrey
Epstein, and Sarah Kellen, based on the same factual allegations that she asserts in the
instant case. Attached here to as Exhibit A is Plaintiff's First Amended Complaint filed
in the state action. A comparison of the complaint allegations of fact in the state and
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 3 of 29
Jane Doe II v. Epstein, et al.
Page 3
federal actions reveals that they are almost identical. Based on the same allegations, in
the state action, Plaintiff attempts to assert claims based on state law for Sexual Battery
(Count I) and Civil Conspiracy (Count II); in this action, Plaintiff is attempting to assert a
cause of action pursuant to 18 U.S.C. §2255, which applicable version provides -
PART I--CRIMES
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
§ 2255. Civil remedy for personal injuries
(a) Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal
injury as a result of such violation may sue in any appropriate United States District
Court and shall recover the actual damages such minor sustains and the cost of the
suit, including a reasonable attorney's fee. Any minor as described in the preceding
sentence shall be deemed to have sustained damages of no less than $50,000 in
value.
{b) Any action commenced under this section shall be barred unless the complaint is
filed within six years after the right of action first accrues or in the case of a person
under a legal disability, not later than three years after the disability.
CREDIT(S)
(Added Pub.L. 99-500, Title I, § 101(b) [Title VII, § 703(a)], Oct. 18, 1986, 100 Stat.
1783-75, and amended Pub.L. 99-591, Title I,§ 101(b) [Title VII,§ 703(a)], Oct. 30,
1986, 100 Stat. 3341-75; Pub.L. 105-314, Title VI,§ 605, Oct. 30, 1998, 112 Stat.
2984.)
(Emphasis added).
Plaintiff is likely to argue that the jurisdiction of the federal court over §2255 claims
is exclusive. However, unlike other Congressional enactments, there is no language in
the statute which expressly states that jurisdiction of such cause of action lies
exclusively with the federal courts. Furthermore, there is a presumption of concurrent
jurisdiction of state courts. See generally, Yellow Freight System, Inc. v. Donnelly, 494
U.S. 820,823, 110 S.Ct. 1566, 1568-69 (1990). "Under our 'system of dual sovereignty,
we have consistently held that state courts have inherent authority, and are thus
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 4 of 29
Jane Doe II v. Epstein, et al.
Page 4
presumptively competent to adjudicate claims arising under the laws of the United
States."' Id, and cases cited therein. Significantly, in order to give federal courts
exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its
powers under the Supremacy Clause, affirmatively divest state courts of their
presumptively concurrent jurisdiction. ]Q.
§2255, unlike other federal statutes, does not unequivocally state that the
jurisdiction of the federal court is exclusive or that it takes away the presumptive
jurisdiction of the state courts. See e.g., 28 U.S.C. §1338(a)(" ... Such jurisdiction shall
be exclusive of the courts of the states in patent, plant variety protection and copyright
cases.") As phrased, the statute uses the term "may" which under a plain meaning
analysis is permissive as opposed to mandatory. The omission of any such exclusive
jurisdictional provision is strong evidence of Congress' intent. Yellow Freight, supra.
The fact that the statute is completely silent on the role of the state courts in such a
cause of action still does not overcome the presumption of concurrent jurisdiction. ld. 1
Because concurrent jurisdiction exists over this federal claim, the six factor analysis
as discussed in American Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882, 884
(11th Cir. 1990), applies in determining whether the exceptional circumstances exist
requiring dismissal of the federal action in favor of the first filed action. As explained in
by the Eleventh Circuit in American Bankers Ins. Co., because EPSTEIN is seeking
dismissal of this action in deference to a pending state court action, "it is governed by
1 See 45 U.S.C. §56, pertaining to liability for injuries to railroad employees, as an example of a
federal statute which expressly states that "jurisdiction of the courts of the United States under
this chapter shall be concurrent with that of the courts of the several states."
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 5 of 29
Jane Doe II v. Epstein, et al.
Page 5
the principles articulated in Colorado River Water Conserv. Dist. v. United States, 424
U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Moses H. Cone Memorial Hosp. v.
Mercury Constr., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)."
The six factors considered are (1) whether one of the courts has assumed
jurisdiction over property; (2) the inconvenience of the federal forum; (3) the potential for
piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether
state or federal law will be applied; and (6) the adequacy of the state court to protect the
parties' rights. "The test for determining when exceptional circumstances exist,
therefore, involves the careful balancing of six factors. The weight to be given any one
factor may vary greatly depending on the case; however, the balance is "heavily
weighted" in favor of the federal court exercising jurisdiction. Id. at 16, 103 S.Ct. at 937."
American Bankers Ins. Co. of Florida v. First State Ins. Co., 891 F.2d 882, 884 (11th
Cir. 1990). The list of factors is neither exhaustive, nor is it a mechanical checklist. See
AM.JUR. FED. COURTS, § 1114.
In the instant case, the third, fourth, fifth, and sixth factors are implicated.
Clearly, more than a "potential" for piecemeal litigation exists if Plaintiff were allowed to
proceed in two separate forums alleging the identical facts against the identical parties.
Discovery and rulings thereon would involve the same set of facts, yet could result in
inconsistent and varying rulings thereon. Should the cases proceed separately to trial,
factual findings and judgments rendered in one could be inconsistent with the other.
Appeals would proceed separately and in a piecemeal fashion. The piecemeal effect
would be both excessive and deleterious if these cases were to proceed in parallel
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 6 of 29
Jane Doe II v. Epstein, et al.
Page 6
fashion. The state court obtained jurisdiction over the action first as Plaintiff chose to
first file in state court. See Exhibit A hereto. Defendant has already filed his answer
and affirmative defenses and discovery is ongoing in the state action. As to the fifth
factor, state law will be applied to Plaintiff's attempted state law claims for sexual battery
and conspiracy, while federal substantive law will apply to the 18 U.S.C. §2255 claim.
Finally, the state court is perfectly capable and able to protect the rights of the parties.
In fact, there are currently before the 15th Judicial Circuit Court, Palm Beach County,
Florida, additional cases against EPSTEIN based on similar allegations of sexual
exploitation and abuse. In the Jane Doe II state action, an Order was entered
reassigning the state action to a Division in which other Jane Doe cases against
EPSTEIN had been filed. See "Clerk's Notice Of Reassignment," dated April 10, 2009,
and attached hereto as Exhibit B. The state court is well aware of the underlying
factual allegations which are identical in both cases and which form the basis of the
state and federal' claims which Plaintiff is attempting to pursue.
Accordingly, in balancing these factors, Defendant is entitled to dismissal of the
federal court action. Plaintiff should not be allowed to pursue parallel actions in state
and federal court based o the identical underlying factual allegations. Her claims should
be brought in one forum - state court - so that Defendant is not forced to defend himself
in two separate forums.
II. 18 U.S.C. §2255 in effect prior to the 2006 amendments applies to this action.
A. The statute in effect during the time the alleged conduct occurred is 18 U.S.C.
§2255 (2005) - the version in effect prior to the 2006 amendment, eff. Jul. 27, 2006,
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 7 of 29
Jane Doe 11 v. Epstein, et al.
Page 7
(quoted above). See endnote 1 hereto, Complaint ,111, 13.1 It is an axiom of law that
"retroactivity is not favored in the law." Bowen, 488 U.S., at 208, 109 S.Ct., at 471
(1988). As eloquently stated in Landgraf v. USI Film Products, 114 S.Ct. 1483, 1497,
511 U.S. 244, 265-66 (1994):
. . . the presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.
Elementary considerations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted.FN,s For that reason, the "principle that the
legal effect of conduct should ordinarily be assessed under the law that existed when
the conduct took place has timeless and universal appeal." Kaiser, 494 U.S., at 855,
110 S.Ct., at 1586 (SCALIA, J., concurring). In a free, dynamic society, creativity in
both commercial and artistic endeavors is fostered by a rule of law that gives people
confidence about the legal consequences of their actions.
FN18. See General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105,
1112, 117 L.Ed.2d 328 (1992) ("Retroactive legislation presents problems of
unfairness that are more serious than those posed by prospective legislation,
because it can deprive citizens of legitimate expectations and upset settled
transactions"); [Further citations omitted].
It is therefore not surprising that the antiretroactivity principle finds expression in
several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits
retroactive application of penal legislation_FN19 Article I,§ 10, cl. 1, prohibits States from
passing another type of retroactive legislation, laws "impairing the Obligation of
Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other
government actors) from depriving private persons of vested property rights except for
a "public use" and upon payment of "just compensation." The prohibitions on "Bills of
Attainder'' in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons
and meting out summary punishment for past conduct. See, e.g., United States v.
Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 1719-1722, 14 L.Ed.2d 484 (1965). The
Due Process Clause also protects the interests in fair notice and repose that may be
compromised by retroactive legislation; a justification sufficient to validate a statute's
prospective application under the Clause "may not suffice" to warrant its retroactive
application. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17, 96 S.Ct. 2882, 2893,
49 L.Ed.2d 752 (1976).
FN19. Article I contains two Ex Post Facto Clauses, one directed to Congress (§ 9,
cl. 3), the other to the States (§ 10, cl. 1 ). We have construed the Clauses as
applicable only to penal legislation. See Calder v. Bull, 3 Dall. 386, 390-391, 1 L. Ed.
648 (1798) (opinion of Chase, J.).
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 8 of 29
Jane Doe II v. Epstein, et al.
Page 8
These provisions demonstrate that retroactive statutes raise particular concerns.
The Legislature's unmatched powers allow it to sweep away settled expectations
suddenly and without individualized consideration. Its responsivity to political pressures
poses a risk that it may be tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals. As Justice Marshall observed in his
opinion for **1498 the Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67
L.Ed.2d 17 (1981), the Ex Post Facto Clause not only ensures that individuals have
"fair warning" about the effect of criminal statutes, but also "restricts governmental
power by restraining arbitrary and potentially vindictive legislation." Id., at 28-29, 101
S.Ct., at 963-964 (citations omitted). FN20
FN20. See Richmond v. J. A. Croson Co., 488 U.S. 469, 513-514, 109 S.Ct. 706,
732, 102 L.Ed.2d 854 (1989) ("Legislatures are primarily policymaking bodies that
promulgate rules to govern future conduct. The constitutional prohibitions against
the enactment of ex post facto laws and bills of attainder reflect a valid concern
about the use of the political process to punish or characterize past conduct of
private citizens. It is the judicial system, rather than the legislative process, that is
best equipped to identify past wrongdoers and to fashion remedies that will create
the conditions that presumably would have existed had no wrong been committed")
(STEVENS, J., concurring in part and concurring in judgment); James v. United
States, 366 U.S. 213, 247, n. 3, 81 S.Ct. 1052, 1052, n. 3, 6 L.Ed.2d 246 (1961)
(retroactive punitive measures may reflect "a purpose not to prevent dangerous
conduct generally but to impose by legislation a penalty against specific persons or
classes of persons").
As discussed more fully below herein, these well entrenched constitutional
protections and presumptions against retroactive application of legislation establish that
18 U.S.C. §2255 (2005) in effect at the time of the alleged conduct applies to the instant
action, and not the amended version as claimed by Plaintiff.
B. Not only is there no clear express intent stating that the statute is to apply
retroactively, but applying the current version of the statute, as amended in 2006, would
be in clear violation of the Ex Post Facto Clause of the United States Constitution as it
would be applied to events occurring before its enactment and would increase the
penalty or punishment for the alleged crime. U.S. Const. Art. 1, §9, cl. 3, §10, cl. 1.
U.S. v. Seigel, 153 F.3d 1256 (11 th Cir. 1998); U.S. v. Edwards, 162 F.3d 87 (3d Cir.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 9 of 29
Jane Doe II v. Epstein, et al.
Page 9
1998); and generally, Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 1798 WL 587
(Calder) (1798).
The United States Constitution provides that "[n]o Bill of Attainder or ex post
facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3. A law
violates the Ex Post Facto Clause if it" 'appli[es] to events occurring before its
enactment ... [and] disadvantage[s] the offender affected by it' by altering the
definition of criminal conduct or increasing the punishment for the crime." Lynce
v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (quoting Weaver
v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)).
U.S. v. Siegel,153 F.3d 1256, 1259 (11 th Cir. 1998).
In improperly attempting to multiply the presumptive minimum actual damages
amount, Plaintiff's Complaint alleges a time period "from about June, 2003 until on or
about February, 2005." See endnote 1. In paragraph 14 of her Complaint, Plaintiff
references the 2006 amended version of §2255 which raised the presumptive actual
damages amount from $50,000 to $150,000; Plaintiff also improperly claims that she is
entitled to "$150,000 for each violation, for a total range of damages between $1.5
million dollars to $4.5 million dollars, jointly and severally, .... " '1114.
§2255 is contained in Title 18 of the United States Codes - "Crimes and Criminal
Procedure, Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of
Children." 18 U.S.C. §2255 (2005), is entitled Civil remedy for personal injuries, and
imposes a presumptive minimum of damages in the amount of $50,000, should Plaintiff
prove any violation of the specified criminal statutes and that she suffered personal
injury with actual damages sustained. Thus, the effect of the 2006 amendments,
effective July 27, 2006, would be to triple the amount of the statutory minimum
previously in effect during the time of the alleged acts. If one were to take Plaintiff's
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 10 of 29
Jane Doe II v. Epstein, et al.
Page 10
position, and multiply the increased damages amount on a per violation/incident basis,
the result would be an increase in damages by 30 to 90 times more! Clearly, the result
is punitive in nature.
No case has yet decided the specific issue before this Court - whether application
of the 2006 version of §2255, which increased the statutorily presumed minimum
damages from $50,000 to $150,000, regardless of the actual amount of damages
sustained, is prohibited from application under the Ex Post Fact Clause to the specified
criminal acts occurring prior to the statutes effective date of July 27, 2006. The statute,
as amended in 2006, contains no language stating that the application is to be
retroactive. Thus, there is no manifest intent that the statute is to apply retroactively,
and, accordingly, the statute in effect during the time of the alleged conduct is to apply.
Landgraf v. USI Film Products, supra, at 1493, ("A statement that a statute will become
effective on a certain date does not even arguably suggest that it has any application to
conduct that occurred at an earlier date.").
This statute was enacted as part of the Federal Criminal Statutes targeting sexual
predators and sex crimes against children. H.R 3494, "Child Protection and Sexual
Predator Punishment Act of 1998;" House Report No. 105-557, 11, 1998 U.S.C.A.N.
678, 679 (1998). Quoting from the "Background and Need For Legislation" portion of
the House Report No. 105-557, 11-16, H.R 3494, of which 18 U.S.C. §2255 is included,
is described as "the most comprehensive package of new crimes and increased
penalties ever developed in response to crimes against children, particularly assaults
facilitated by computers." Further showing that §2255 was enacted as a criminal
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 11 of 29
Jane Doe II v. Epstein, et al.
Page 11
penalty or punishment, "Title II - Punishing Sexual Predators," Sec. 206, from House
Report No. 105-557, 5-6, specifically includes reference to the remedy created under
§2255 as an additional means of punishing sexual predators, along with other penalties
and punishments. Senatorial Comments in amending §2255 in 2006 confirm that the
creation of the presumptive minimum damage amount is meant as an additional penalty
against those who sexually exploit or abuse children. 2006 WL 2034118, 152 Cong.
Rec. S8012-02. Senator Kerry refers to the statutorily imposed damage amount as
"penalties." Id.
The cases of U.S. v. Siegel, supra (11 th Cir. 1998), and U.S. v. Edwards, supra
(3d Cir. 1998), also support Defendant's position that application of the current version
of 18 U.S.C. §2255 would be in clear violation of the Ex Post Facto Clause. In Siegel,
the Eleventh Circuit found that the Ex Post Facto Clause barred application of the
Mandatory Victim Restitution Act of 1996 (MVRA) to the defendant whose criminal
conduct occurred before the effective date of the statute, 18 U.S.C. §3664(f)(1 )(A), even
though the guilty plea and sentencing proceeding occurred after the effective date of the
statute. On July 19, 1996, the defendant Siegel pleaded guilty to various charges under
18 U.S.C. §371 and §1956(a)(1)(A), (conspiracy to commit mail and wire fraud, bank
fraud, and laundering of money instruments; and money laundering). He was
sentenced on March 7, 1997. As part of his sentence, Siegel was ordered to pay
$1,207,000.00 in restitution under the MVRA which became effective on April 24, 1996.
Pub.L. No. 104-132, 110 Stat. 1214, 1229-1236. The 1996 amendments to MVRA
required that the district court must order restitution in the full amount of the victim's loss
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 12 of 29
Jane Doe II v. Epstein, et al.
Page 12
without consideration of the defendant's ability to pay. Prior to the enactment of the
MVRA and under the former 18 U.S.C. §3664(a) of the Victim and Witness Protection
Act of 1982 (VWPA), Pub.I. No. 97-291, 96 Stat. 1248, the court was required to
consider, among other factors, the defendant's ability to pay in determining the amount
of restitution.
When the MVRA was enacted in 1996, Congress stated that the amendments to
the VWPA "shall, to the extent constitutionally permissible, be effective for sentencing
proceedings in cases in which the defendant is convicted on or after the date of
enactment of this Act [Apr. 24, 1996]." Siegel, supra at 1258. The alleged crimes
occurred between February, 1988 to May, 1990. The Court agreed with the defendant's
position that 1996 MVRA "should not be applied in reviewing the validity of the court's
restitution order because to do so would violate the Ex Post Facto Clause of the United
States Constitution. See U.S. Const. art I, §9, cl. 3."
The Ex Post Facto analysis made by the Eleventh Circuit in Siegel is applicable
to this action. In resolving the issue in favor of the defendant, the Court first considered
whether a restitution order is a punishment. Id, at 1259. In determining that restitution
was a punishment, the Court noted that §3663A(a)(1) of Title 18 expressly describes
restitution as a "penalty." In addition, the Court also noted that "[a]lthough not in the
context of an ex post facto determination, ... restitution is a 'criminal penalty meant to
have strong deterrent and rehabilitative effect.' United States v. Twitty, 107 F.3d 1482,
1493 n. 12 (11th Cir.1997)." Second, the Court considered "whether the imposition of
restitution under the MVRA is an increased penalty as prohibited by the Ex Post Facto
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 13 of 29
Jane Doe II v. Epstein, et al.
Page 13
Clause." Id, at 1259. In determining that the application of the 1996 MVRA would
indeed run afoul of the Constitution's Ex Post Facto Clause, the Court agreed with the
majority of the Circuits that restitution under the 1996 MVRA was an increased penalty.2
"The effect of the MVRA can be detrimental to a defendant. Previously, after
considering the defendant's financial condition, the court had the discretion to order
restitution in an amount less than the loss sustained by the victim. Under the MVRA,
however, the court must order restitution to each victim in the full amount." kL at 1260.
See also U.S. v. Edwards, 162 F.2d 87 (3rd Circuit 1998).
In the instant case, in answering the first question, it is clear that that imposition of
a minimum amount of damages, regardless of the amount of actual damages suffered
by a minor victim, is meant to be a penalty or punishment. See statutory text and
House Bill Reports, cited above herein, consistently referring to the presumptive
minimum damages amount under §2255 as "punishment" or "penalties." According to
the Ex Post Facto doctrine, although §2255 is labeled a "civil remedy," such label is not
dispositive; "if the effect of the statute is to impose punishment that is criminal in nature,
the ex post facto clause is implicated." See generally, Roman Catholic Bishop of
Oakland v. Superior Court, 28 Cal.Rptr.3d 355, at 360, citing Kansas v. Hendricks, 521
U.S. 346, 360-61 (1997). The effect of applying the 2006 version of §2255 would be to
triple the amount of the presumptive minimum damages to a minor who proves the
2 The Eleventh Circuit, in holding that "the MVRA cannot be applied to a person whose criminal
conduct occurred prior to April 24, 1996," was "persuaded by the majority of districts on this
issue." "Restitution is a criminal penalty carrying with it characteristics of criminal punishment."
Siegel, supra at 1260. The Eleventh Circuit is in agreement with the Second, Third, Eighth,
Ninth, and D.C. Circuits. See U.S. v. Futrell, 209 F.3d 1286, 1289-90 (11 th Cir. 2000).
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 14 of 29
Jane Doe II v. Epstein, et al.
Page 14
elements of her §2255 claim, or to increase to it 30 to 90 times more if one were to
agree with Plaintiff's position. The fact that a plaintiff proceeding under §2255 has to
prove a violation of a criminal statute and suffer personal injury to recover damages
thereunder, further supports that the imposition of a minimum amount, regardless of a
victim's actual damages sustained, is meant and was enacted as additional punishment
or penalty for violation of criminal sexual exploitation and abuse of minors.
Accordingly, this Court is required to apply the statute in effect at the time of the
alleged criminal acts. Not only is there no language in the 2006 statute stating that it is
to apply retroactively, but further, such application of the 2006 version of 18 U.S.C.
§2255 to acts that occurred prior to its effective date would have a detrimental and
punitive effect on Defendant by tripling (or increasing by 30 or 90 times under Plaintiff's
interpretation) the presumptive minimum of damages available to a plaintiff, regardless
of the actual damages suffered.
C. As discussed above, 18 U.S.C. §2255 was enacted as part of the criminal
statutory scheme to punish and penalize those who sexually exploit and abuse minors,
and thus, the Ex Post Fact Clause prohibits a retroactive application of the 2006
amended version. Even under the analysis provided by the United States Supreme
Court in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994), pertaining
to civil statutes, not only is there no express intent by Congress to apply the new statute
to past conduct, but also, the clear effect of retroactive application of the statute would
be to increase the potential liability for past conduct from a minimum of $50,000 to
$150,000, and thus in violation of the constitutional prohibitions against such
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 15 of 29
Jane Doe II v. Epstein, et al.
Page 15
application. As noted, 18 U.S.C. §2255 is entitled "Civil remedy for personal injuries."
Notwithstanding this label, the statute was enacted as part of the criminal statutory
scheme to punish those who sexually exploit and abuse minors. Regardless of the
actual damages suffered or proven by a minor, as long as a minor proves violation of a
specified statutory criminal act under §2255 and personal injury, the defendant is held
liable for the statutory imposed minimum.
As explained by the Landgraf court, supra at 280, and at 1505,3
When a case implicates a federal statute enacted after the events in suit, the court's
first task is to determine whether Congress has expressly prescribed the statute's
proper reach. If Congress has done so, of course, there is no need to resort to judicial
default rules. When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive effect, i.e.,
whether it would impair rights a party possessed when he acted, increase a party's
liability for past conduct, or impose new duties with respect to transactions already
completed. If the statute would operate retroactively, our traditional presumption
teaches that it does not govern absent clear congressional intent favoring such a
result.
Here, there is no clear expression of intent regarding the 2006 Act's application to
conduct occurring well before its enactment. Clearly, however, as discussed in part B
herein, the presumptive minimum amount of damages of $150,000 was enacted as an
punishment or penalty upon those who sexually exploit and abuse minors. See
discussion of House Bill Reports and Congressional background above herein. The
amount triples the previous amount for which a defendant might be found liable,
regardless of the amount of actual damages a plaintiff has suffered and proven. The new
3 In Landgraf, the United States Supreme Court affirmed the judgment of the Court of Appeals
and refused to apply new provisions of the Civil Rights Act of 1991 to conduct occurring before
the effective date of the Act. The Court determined that statutory text in question, §102, was
subject to the presumption against statutory retroactivity.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 16 of 29
Jane Doe II v. Epstein, et al.
Page 16
statute imposes a substantial increase in the monetary liability for past conduct. (As
discussed below, Plaintiff also proposes that the minimum damage amount is to apply
on a per violation basis; the absurdity of such position is further magnified when one
considers that the presumptive damages amount was tripled to $150,000).
As stated in Landgraf, "the extent of a party's liability, in the civil context as well as
the criminal, is an important legal consequence that cannot be ignored." Courts have
consistently refused to apply a statute which substantially increases a party's liability to
conduct occurring before the statute's enactment. Landgraf, supra at 284-85. Even if
plaintiff were to argue that retroactive application of the new statute "would vindicate its
purpose more fully," even that consideration is not enough to rebut the presumption
against retroactivity. Id, at 285-86. "The presumption against statutory retroactivity is
founded upon sound considerations of general policy and practice, and accords with
long held and widely shared expectations about the usual operation of legislation." Id.
Accordingly, this Court is required to apply the statute in effect at the time of the
alleged conduct. 18 U.S.C. §2255 (2005).
Ill. Standard - Motion To Dismiss, More Definite Statement, Pleading, & Motion to Strike
As established by the Supreme Court in Bell Atlantic Corp. V. Twombly, 127
S.Ct. 1955 (2007), a motion to dismiss should be granted if the plaintiff does not plead
"enough facts to state a claim to relief that is plausib\e on its face." Id, at 1974.
Although the complaint need not provide detailed factual allegations, the basis for relief
in the complaint must state "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Id, at 1965. Further, "(f]actual
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 17 of 29
Jane Doe II v. Epstein, et al.
Page 17
allegations must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id.
On a motion to dismiss, the well pleaded allegations of plaintiff's complaint are taken as
true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County
Sch. Dist.. 446 F.3d 1153. 1156 (11th Cir.2006).
In discussing Twombly, the Eleventh Circuit in Watts v. Fla. International Univ.,
495 F.3d 1289, 1295 (11 th Cir. 2007), noted - "The Supreme Court's most recent
formulation of the pleading specificity standard is that 'stating such a claim requires a
complaint with enough factual matter (taken as true) to suggest' the required element."
In order to sufficiently allege the claim, the complaint is required to identify "facts that
are suggestive enough to render [the element] plausible." Watts, 495 F.3d at 1296
(quoting Twombly, 127 S.Ct. at 1965).
Pursuant to Rule 12(e), a party may move for more definite statement of a
pleading to which a responsive pleading is allowed where the pleading "is so vague or
ambiguous that the party cannot reasonably frame a response." The motion is required
to point out the defects and the desired details. Id. As to the general rules and form of
pleading, Rules 8 and 10, a claim for relief must contain "a short plain statement of the
claim showing that the pleader is entitled to relief;" Rule 8(a)(3); and may contain
alternative claims within a count or as many separate claims. Rule 10(d)(2) and (3).
A. 18 U.S.C. §2255(a) does not allow the Plaintiff to multiple the presumptive
minimum damages amount on a per incident or per violation basis.
In attempting to allege a §2255 claim, Plaintiff alleges that she is entitled to a
multiplication of the presumptive minimum damages amount based on the number of
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 18 of 29
Jane Doe II v. Epstein, et al.
Page 18
incidents. See endnote 1, Complaint, ,i,i13-14. Under the plain meaning of the
statutory text, §2255 does not allow for a multiplication of the presumptive "actual
damages" by the number of incidents or violations alleged. No where in the statutory
text is there any reference to the "civil remedy" afforded against a defendant by this
statute as being on a "per violation" or "per incident" basis. 18 U.S.C. 2255(a) creates a
"civil remedy" for "a minor who is a victim of a violation of section 2241(c), 2242, 2243,
2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers
personal injury as a result of such violation .... " The presumptive minimum damages
amount speaks in terms of "actual damages." See 18 U.S.C. §2255 (2005), quoted
above in part I; Smith v. Husband, 428 F.Supp.2d 432 (E.D. Va. 2006); Smith v.
Husband, 376 F.Supp.2d 603 (E.D. Va. 2006); Doe v. Liberatore, 478 F.Supp.2d 742,
754 (M.D. Pa. 2007); and the recent cases in front of this court on Defendant's Motions
to Dismiss and For More Definite Statement - Doe No. 2 v. Epstein, 2009 WL 383332
(S.D. Fla. Feb. 12, 2009); Doe No. 3 v. Epstein, 2009 WL 383330 (S.D. Fla. Feb. 12,
2009); Doe No. 4 v. Epstein, 2009 WL 383286 (S.D. Fla. Feb. 12, 2009); and Doe No. 5
v. Epstein, 2009 WL 383383 (S.D. Fla. Feb. 12, 2009).
There is no reported case supporting Plaintiff's tortured and nonsensical
interpretation of §2255. In all of these cases (cited above), each of the Plaintiffs brought
a single count or cause of action attempting to allege numerous violations of the
"predicate acts" specifically identified in §2255; in none of the cases did the Court award
the presumptive amount of damages based on a per incident or per violation basis. "18
U.S.C. §2255 gives victims of sexual conduct who are minors a private right of action."
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 19 of 29
Jane Doe II v. Epstein, et al.
Page 19
Martinez v. White, 492 F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18
U.S.C.A. §2255 "merely provides a cause of action for damages in 'any appropriate
United States District Court."' Id, at 1189. In Tilton v. Playboy Entertainment Group,
Inc., 554 F.3d 1371 (11 th Cir. Jan. 15, 2009), the District Court granted plaintiff "the
minimum 'actual damages' prescribed by §2255(a)," wherein plaintiff alleged that
defendants had violated three of the statutory predicate acts; there was no multiplying of
the award.
It is well settled that in interpreting a statute, the court's inquiry begins with the
plain and unambiguous language of the statutory text. CBS, Inc. v. Prime Time 24
Venture, 245 F.3d 1217 (11 th Cir. 2001); U.S. v. Castroneves, 2009 WL 528251, *3
(S.D. Fla. 2009), citing Reeves v. Astrue, 526 F.3d 732, 734 (11 th Cir. 2008); and Smith
v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry
beg ins with the text."). "The Court must first look to the plain meaning of the words, and
scrutinize the statute's 'language, structure, and purpose."' Id. In addition, in construing
a statute, a court is to presume that the legislature said what it means and means what
it said, and not add language or give some absurd or strained interpretation. As stated
in CBS, Inc., supra at 1228 - "Those who ask courts to give effect to perceived
legislative intent by interpreting statutory language contrary to its plain and
unambiguous meaning are in effect asking courts to alter that language, and '[c]ourts
have no authority to alter statutory language .... We cannot add to the terms of [the]
provision what Congress left out.' Merritt, 120 F.3d at 1187." See also Dodd v. U.S.,
125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 20 of 29
Jane Doe II v. Epstein, et al.
Page 20
As quoted above, Title 18 of the U.S.C. is entitled "Crimes and Criminal
Procedure." §2255 is contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and
Other Abuse of Children." 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal
injuries. Reading the entire statute in context, no where is there any language
indicating that presumptive minimum damages amount is to be multiplied on a "per
violation" or "per incident basis." Under the statutory rules of construction, had the
legislature intended to include a multiplier with respect to the damages amount, the
statute would have included such language. Had Congress wanted to create such a
remedy as Plaintiff attempts to bring, it could have easily included language of "such
damages shall be multiplied on a per violation" or "per incident" basis in subsection (a).
By its own terms, the statute provides for the recovery of "actual damages the
minor sustains and the cost of the suit, including attorney's fees." The next sentence
expressly states - "Any minor as described in the preceding sentence shall be deemed
to have sustained damages of no less than $50,000 in value." (Even the 2006
amended version provides - "Any person as described in the preceding sentence shall
be deemed to have sustained damages of no less than $150,000 in value.") There is
absolutely no language that allows for a plaintiff to multiply the specified or presumptive
damages recoverable on a "per violation" or "per incident" basis. The Plaintiff's position
on §2255 puts a strained interpretation with an absurd result
In Martinez v. White, supra, the defendants sought to dismiss plaintiffs' 18 U.S.C.
§2255 action based on forum non conveniens. The Northern District of California Court,
relying on the rules of statutory construction, rejected plaintiffs' argument that Congress
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 21 of 29
Jane Doe II v. Epstein, et al.
Page 21
had intended to abrogate the forum non conveniens doctrine in a §2255 action; the
District Court noted that the statute does not contain a mandatory venue provision. Had
Congress wanted to get rid of the forum non-conveniens doctrine, it would have said so
in the statute. Also, in Smith v. Husband, 428 F.Supp. 432; and 376 F.Supp.2d 603, the
plaintiff invoked "the accompanying civil remedy for these criminal violations, stating that
she has sustained and continues to sustain physical and mental damages, humiliation,
and embarrassment as a result of Defendant's criminal acts." In other words, she
brought a single cause of action, based on allegations of multiple violations of the §2255
predicate acts. Furthermore, the court refused to add a venue interpretation that simply
was not written into the statutory text. See other §2255 cases cited herein.
For an example of a statute wherein the legislature included the language "for
each violation" in assessing a "civil penalty," see 18 U.S.C. §216, entitled "Penalties and
injunctions," of Chapter 11 - "Bribery, Graft, and Conflict of Interests," also contained in
Title 18 - "Crimes and Criminal Procedure." Subsection (b) of §216 gives the United
States Attorney General the power to bring a "civil action ... against any person who
engages in conduct constituting an offense under" specified sections of the bribery,
graft, and conflicts of interest statutes. The statute further provides in relevant part that
"upon proof of such conduct by a preponderance of the evidence, such person shall be
subject to a civil penalty of not more than $50,000 for each violation or the amount of
compensation which the person received or offered for the prohibited conduct, which
ever amount is greater." As noted, 18 U.S.C. §2255 does not include such language.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 22 of 29
Jane Doe II v. Epstein, et al.
Page 22
Accordingly, Plaintiff has failed to allege a cause of action under §2255, as the
statute does not allow for the multiplication of the presumptive damages amount on a
per incident or per violation basis. Plaintiff Complaint is required to be dismissed.
B. Also requiring dismissal Plaintiff has failed to sufficiently allege any
requisite §2255 predicate act.
Also requiring dismissal of Plaintiff's purported §2255 claim is Plaintiff's failure to
sufficiently allege any violation of a requisite predicate act as specifically identified in
subsection (a). Relevant to Plaintiff's complaint, 18 U.S.C. 2255(a) creates a cause of
action for "a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal
injury as a result of such violation .... " See cases cited above herein. The referenced
statutes are criminal statues all contained in Title 18. In paragraph 13 and 15, Plaintiff
makes reference by citation only to "18 U.S.C. §2422(b)." See endnote 2 for the
complete statutory text. 2 See also this Court's recent orders on motions to dismiss in
other actions filed against EPSTEIN by "Jane Does," Case Nos: 08-CV-80119-
MARRA/JOHNSON; 08-CV-80232-MARRA-JOHNSON; and 08-CV-80380-MARRA JOHNSON; requiring sufficient allegations of predicate acts.
A reading of §2422(b) shows that no where in Plaintiff Complaint are there any
allegations setting forth the requisite elements of the cited predicate act. See Smith v.
Husband, 376 F.Supp.2d, and 428 Supp.2d, supra; and Gray v. Darby, 2009 WL
805435 (E.D. Pa. Mar. 25, 2005), requiring allegations/evidence to establish predicate
act under 18 U.S.C. §2255 to state cause of action. There are no allegations what so
ever regarding EPSTEIN "using the mail or any facility or means of interstate or foreign
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 23 of 29
Jane Doe II v. Epstein, et al.
Page 23
commerce, or within the special maritime and territorial jurisdiction of the United States
knowingly persuades, induces, entices, or coerces any individual who has not attained
the age of 18 years, to engage in prostitution or any sexual activity for which any person
can be charged with a criminal offense, or attempts to do so, .... "
Plaintiff appears to be relying solely on an "agreement with the United States
Attorney's Office to not contest liability for claims brought exclusively pursuant to 18
U.S.C. §2255, in exchange for avoiding federal prosecution under 18 U.S.C. §2422(b)."
Complaint, 1115. As noted above herein, Plaintiff already has additional claims against
EPSTEIN pending in state court. See Exhibit A hereto. Even taking Plaintiff's allegation
in paragraph 15 as true, Plaintiff is not proceeding exclusively under §2255.
Accordingly, under the standard of pleading as established in Twombly, supra, Plaintiff
has failed to sufficiently allege the requisite elements of a §2255 claim, thus requiring
dismissal for failure to state a cause of action.
C. In the alternative, pursuant to constitutional law principles of statutory
interpretation, 18 U.S.C. §2255 is required to be interpreted as creating a
single "civil remedy" or cause of action on behalf of a minor plaintiff
against a defendant. The "civil remedy" afforded is not on a "per violation"
or "per incident" basis.
As set forth above, it is Defendant's position that the text of 18 U.S.C. §2255
does not allow a Plaintiff to pursue the damages afforded under the statute on a "per
violation" or "per incident" basis. In the alternative, if one were to assume that the
language of §2255 were vague or ambiguous, under the constitutional based
protections of due process, judicial restraint, and the rule of lenity applied in construing
a statute, Defendant's position as to the meaning of the statute would prevail over
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 24 of 29
Jane Doe II v. Epstein, et al.
Page 24
Plaintiff's view. See United States v. Santos, 128 S.Ct. 2020, 2025 (2008). As
summarized by the United States Supreme Court in Santos, supra, at 2025:
... The rule of lenity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them. See United States v. Gradwell,
243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917); McBoyle v. United
States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v.
Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This
venerable rule not only vindicates the fundamental principle that no citizen
should be held accountable for a violation of a statute whose commands are
uncertain, or subjected to punishment that is not clearly prescribed. It also
places the weight of inertia upon the party that can best induce Congress to
speak more clearly and keeps courts from making criminal law in Congress's
stead ....
In Santos, the Court was faced with the interpretation of the term "proceeds" in
the federal money laundering statute, 18 U.S.C. §1956. "The federal money-laundering
statute prohibits a number of activities involving criminal 'proceeds."' Id, at 2023. Noting
that the term "proceeds" was not defined in the statute, the Supreme Court stated the
well settled principle that "when a term is undefined, we give it its ordinary meaning." Id,
at 2024. Under the ordinary meaning principle, the government's position was that
proceeds meant "receipts," while the defendant's position was that proceeds meant
"profits." The Supreme Court recognized that under either of the proffered "ordinary
meanings," the provisions of the federal money-laundering statute were still coherent,
not redundant, and the statute was not rendered "utterly absurd." Under such a
situation, citing to a long line of cases and the established rule of lenity, "the tie must go
to the defendant." Id, at 2025. See portion of Court's opinion quoted above. "Because
the 'profits' definition of 'proceeds' is always more defendant friendly that the 'receipts'
definition, the rule of lenity dictates that it should be adopted." Id.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 25 of 29
Jane Doe II v. Epstein, et al.
Page 25
Plaintiff's position would subject Defendant EPSTEIN to a punishment that is not
clearly prescribed - an unwritten multiplier of the "actual damages" or the presumptive
minimum damages. The rule of lenity requires that Defendant's interpretation of the
remedy afforded under §2255 be adopted. As noted above, Plaintiff's interpretation
would allow Plaintiff to multiply her recovery without any regard to what the actual
damages are.
In addition, under the Due Process Clause's basic principle of fair warning -
... a criminal statute must give fair warning of the conduct that it makes a
crime .... As was said in United States v. Harriss, 347 U.S. 612, 617, 74
S.Ct. 808, 812, 98 L.Ed. 989,
'The constitutional requirement of definiteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.'
Thus we have struck down a [state] criminal statute under the Due Process
Clause where it was not 'sufficiently explicit to inform those who are subject
to it what conduct on their part will render them liable to its penalties.'
Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70
L.Ed. 322. We have recognized in such cases that 'a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law,' ibid., and that
'No one may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as to what the
State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59
S.Ct. 618, 619, 83 L.Ed. 888.
Thus, applying these well-entrenched constitutional principles of statutory
interpretation and application, Plaintiff's cause of action attempting to multiply the
presumptive amount of damages is required to be dismissed for failure to state a cause
of action.
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 26 of 29
Jane Doe II v. Epstein, et al.
Page 26
D. Plaintiff's action is also required to be dismissed for failure to state a cause of action
sounding in conspiracy under §2255.
Finally, Plaintiff's entire action is subject to dismissal to the extent that she is
attempting to allege a conspiracy to violate §2255 for the same reasons she has failed
to state a cause of action against EPSTEIN individually as discussed above herein.
See Complaint,i,i9, 10, 11, 13, and 14.
Conclusion
Plaintiff improperly relies on the 18 U.S.C. §2255, as amended, eff, July 27,
2006, in her attempt to plead a cause of action. The statue in effect during the time of
the alleged conduct applies. Plaintiff has also improperly sought to multiply the
presumptive minimum damages amount imposed on a per incident or per violation
basis. Not only is there nothing in the statute which would allow for such interpretation,
but such interpretation is in violation of well established constitutional principles. Finally,
Plaintiff has failed to state a cause of action under §2255 either individually against
EPSTEIN or as a conspiracy. There are absolutely no underlying factual allegations
setting forth the elements of the predicate act relied upon.
WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiff's
entire action.
By:::-::-:::=-:::--cr::!-.=:::-:-:--:::::--:=-::
ROBERT D. RITTON, JR., ESQ.
Florida Bar o. 224162
rcrit@bclclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.com
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 27 of 29
Jane Doe II v. Epstein, et al.
Page 27
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record identified on the following service list in the
manner specified via transmission of Notices of Electronic Filing generated by CM/ECF
on this~day of~· 2009:
Isidro M. Garcia, Esq.
Garcia Law Firm, P.A.
224 Datura Street, Suite 900
West Palm Beach, FL 33401
561-832-7732
561-832-7137 F
isidrogarcia@bellsouth.net
Counsel for Plaintiff
ENDNOTES:
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
561-659-8300
561-835-8691 Fax
jagesq@bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
By:---:---:-1--'"-""':---:-----::-::--::
ROBERT D. ITTON, JR., ESQ.
Florida Bar . 224162
rcrit@bclcla .com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561-842-2820
Fax: 561-515-3148
(Co-counsel for Defendant Jeffrey Epstein)
1 In paragraph 11 of her Complaint, Jane Doe II alleges that - "From about June, 2003
until about February, 2005, Defendants, EPSTEIN and KELLEN persuaded, induced, or
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 28 of 29
Jane Doe II v. Epstein, et al.
Page 28
enticed Plaintiff to come to Defendant EPSTEIN's home and provide Defendant
EPSTEIN with 'massages' .... "
In paragraph 13, Jane Doe II alleges - "In violation of §2422(b), Defendants
EPSTEIN and KELLEN knowingly persuaded, induced, or enticed the Plaintiff to engage
in acts of prostitution, when the Plainitff was undr the age of 18, approximately on or
about the following dates that Plaintiff can document based on payments received:
6/16/03, 7/2/03, 4/9/04, 6/7/04, 7/30/04, 8/30/04, 10/9/04, 10/12/04 and 11/9/04. In
addition, Plaintiff believes that there were as many as 10 to 20 other occasions during
this time frame that Defendant EPSTEIN solicited her and procured her to perform
prostitution services, all during the time that she was a minor."
In paragraph 14, Plaintiff alleges - "Plaintiff seeks damages for personal injury in
accordance with 18 U.S.C. §2255(a) for each of the acts of prostitution set forth above
which Defendants solicited her, $150,000 for each violation, for a total range of
damages between $1.5 million dollars and $4.5 million dollars, jointly and severally, and
a reasonable attorney's fees and costs, as permitted by the statute."
2
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND
RELATED CRIMES
§ 2422. Coercion and enticement
(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel
in interstate or foreign commerce, or in any Territory or Possession of the United States,
to engage in prostitution, or in any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned
not more than 20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce,
or within the special maritime and territorial jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any individual who has not attained the age of
18 years, to engage in prostitution or any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so, shall be fined under this title and
imprisoned not less than 5 years and not more than 30 years.
CREDIT(S)
(June 25, 1948, c. 645, 62 Stat. 812; Nov. 7, 1986, Pub.L. 99-628, § 5(b)(1), 100 Stat.
3511; Nov. 18, 1988, Pub.L. 100-690, Title VII,§ 7070, 102 Stat. 4405; Feb. 8, 1996,
Pub.L. 104-104, Title V, § 508,110 Stat. 137; Oct. 30, 1998, Pub.L. 105-314, Title I,§
Case 9:09-cv-80469-KAM Document 13 Entered on FLSD Docket 05/06/2009 Page 29 of 29
Jane Doe II v. Epstein, et al.
Page 29
102,112 Stat. 2975; Apr. 30, 2003, Pub.L. 108-21, Title I,§ 103(a)(2)(A), (B), (b)(2)(A),
117 Stat. 652, 653.)
Amendments
2006 Amendments. Subsec. (b). Pub.L. 109-248, § 203, struck out "not less than 5
years and not more than 30 years" and inserted "not less than 10 years or for life".