Court Records
Case 9:08-cv-80119-KAM Document 148-1 Entered on FLSD Docket 06/09/2009 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRA
JANE DOE NO. 2
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
DEFENDANT EPSTEIN'S FIRST AMENDED ANSWER & AFFIRMATIVE
DEFENSES TO PLAINTIFF'S SECOND AMENDED COMPLAINT
Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN"), by and through his
undersigned attorneys, files his First Amended Answer to Plaintiff's Second Amended
Complaint [DE 56] and states:
1. Without knowledge and deny.
2. As to the allegations in paragraphs 2, Defendant asserts his Fifth Amendment
privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d
1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth
Amendment's Self-Incrimination Clause applies to the states through the Due Process
Clause of the Fourteenth Amendment - "[lit would be incongruous to have different
standards determine the validity of a claim of privilege based on the same feared
prosecution, depending on whether the claim was asserted in state or federal court."); 5
Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-
Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a
specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. -
EXHIBIT r
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Jane Doe No. 2 v. Epstein
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.. a civil defendant who raises an affirmative defense is not precluded from asserting
the privilege [against self-incrimination], because affirmative defenses do not constitute
the kind of voluntary application for affirmative relief" which would prevent a plaintiff
bringing a claim seeking affirmative relief from asserting the privilege.
3. As to the allegations in paragraph 3, deny.
4. As to the allegations in paragraph 4, deny.
5. As to the allegations in paragraph 5, without knowledge and deny.
6. As to the allegations in paragraphs 6, Defendant asserts his Fifth Amendment
privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d
1099 (Fla. 4th DCA 1983); Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth
Amendment's Self-Incrimination Clause applies to the states through the Due Process
Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different
standards determine the validity of a claim of privilege based on the same feared
prosecution, depending on whether the claim was asserted in state or federal court."); 5
Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-
Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a
specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. -
"... a civil defendant who raises an affirmative defense is not precluded from asserting
the privilege [against self-incrimination], because affirmative defenses do not constitute
the kind of voluntary application for affirmative relief' which would prevent a plaintiff
bringing a claim seeking affirmative relief from asserting the privilege.
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7. As to the allegations in paragraphs 7 through 14 of Plaintiffs Second Amended
Complaint, Defendant exercises his Fifth Amendment Privilege against self-
incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA
1983); Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-
Incrimination Clause applies to the states through the Due Process Clause of the
Fourteenth Amendment - "[i]t would be incongruous to have different standards
determine the validity of a claim of privilege based on the same feared prosecution,
depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. &
Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination
("...court must treat the defendant's claim of privilege as equivalent to a specific
denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. — "... a civil
defendant who raises an affirmative defense is not precluded from asserting the
privilege [against self-incrimination], because affirmative defenses do not constitute the
kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing
a claim seeking affirmative relief from asserting the privilege.
8. In response to the allegations of paragraph 15, Defendant realleges and adopts
his responses to paragraphs 1 through 14 of the Second Amended Complaint set forth
in paragraphs 1 through 6 above herein.
9. Defendant asserts the Fifth Amendment Privilege against self-incrimination to
the allegations set forth in paragraphs 16 through 21 of the Second Amended
Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983);
Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination
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Clause applies to the states through the Due Process Clause of the Fourteenth
Amendment - "[i]t would be incongruous to have different standards determine the
validity of a claim of privilege based on the same feared prosecution, depending on
whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d
§1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must
treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24
Fla.Jur.2d Evidence §592. Defendants in civil actions. — "... a civil defendant who raises
an affirmative defense is not precluded from asserting the privilege [against self-
incrimination], because affirmative defenses do not constitute the kind of voluntary
application for affirmative relief" which would prevent a plaintiff bringing a claim seeking
affirmative relief from asserting the privilege.
10. In response to the allegations of paragraph 22, Defendant realleges and adopts
his responses to paragraphs 1 through 14 of the Second Amended Complaint set forth
in paragraphs 1 through 6 above herein.
11. Defendant asserts the Fifth Amendment Privilege against self-incrimination to
the allegations set forth in paragraphs 23 through 27 of the Second Amended
Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983);
Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination
Clause applies to the states through the Due Process Clause of the Fourteenth
Amendment - "[i]t would be incongruous to have different standards determine the
validity of a claim of privilege based on the same feared prosecution, depending on
whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d
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§1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must
treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24
Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises
an affirmative defense is not precluded from asserting the privilege [against self-
incrimination], because affirmative defenses do not constitute the kind of voluntary
application for affirmative relief' which would prevent a plaintiff bringing a claim seeking
affirmative relief from asserting the privilege.
12. In response to the allegations of paragraph 28, Defendant realleges and adopts
his responses to paragraphs 1 through 14 of the Second Amended Complaint set forth
in paragraphs 1 through 6 above herein.
13. Defendant asserts the Fifth Amendment Privilege against self-incrimination to
the allegations set forth in paragraphs 29 through 34 of the Second Amended
Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983);
Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination
Clause applies to the states through the Due Process Clause of the Fourteenth
Amendment - "[l]t would be incongruous to have different standards determine the
validity of a claim of privilege based on the same feared prosecution, depending on
whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d
§1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must
treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24
Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises
an affirmative defense is not precluded from asserting the privilege [against self-
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incrimination], because affirmative defenses do not constitute the kind of voluntary
application for affirmative relief" which would prevent a plaintiff bringing a claim seeking
affirmative relief from asserting the privilege.
WHEREFORE, Defendant requests that this Court deny the relief sought by Plaintiff.
Affirmative Defenses
1. As to all counts, Plaintiff actually consented to and was a willing participant in the
acts alleged, and therefore, her claims are barred, or her damages are required to be
reduced accordingly.
2. As to all counts alleged, Plaintiff actually consented to and participated in
conduct similar and/or identical to the acts alleged with other persons which were the
sole or contributing cause of Plaintiff's alleged damages.
3. As to all counts, Plaintiff impliedly consented to the acts alleged by not objecting,
and therefore, her claims are barred, or her damages are required to be reduced
accordingly.
4. As to all counts, Defendant reasonably believed or was told that the Plaintiff had
attained the age of 18 years old at the time of the alleged acts.
5. As to all counts, Plaintiffs claims are barred as she said she was 18 years or
older at the time.
6. As to all counts, Plaintiffs alleged damages were caused in whole or part by
events and/or circumstances completely unrelated to the incident(s) alleged in the
complaint.
7. Plaintiffs claims are barred by the applicable statute of limitations.
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8. As to Plaintiff's claims for punitive damages in Count I — "Sexual Assault &
Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are
subject to the limitations as set forth in §768.72, et seq., Florida Statutes.
9. As to Plaintiffs claims for punitive damages in Count I — "Sexual Assault &
Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are
subject to the constitutional limitations and guideposts as set forth in BMW of North
America v. Gore 116 S.Ct 1589 (1996)• Philip Morris USA v. 127 S.Ct. 1057
(2007); State Farm v. 123 S.Ct 1513 (2003) v. Liqqet Group, Inc., 945
So.2d 1246 (Fla. 2006). The Due Process Clause of the Fourteenth Amendment of the
United States Constitution and Florida's Constitution, Art. I, §§2 and 9, prohibit the
imposition of grossly excessive or arbitrary punishments
10.As to Plaintiffs claims for punitive damages in Count I — "Sexual Assault &
Battery," and Count II — "Intentional Infliction of Emotional Distress," the determination of
whether or not Defendant is liable for punitive damages is required to be bifurcated from
a determination of the amount to be imposed.
11. Plaintiff has failed to state a cause of action for sexual assault and/or battery
under Count I.
12.As to Count III, Plaintiff has failed to plead a cause of action as she does not and
can not show a violation of a predicate act under 18 U.S.C. §2255 (2005).
13.As to Count III, the version of 18 U.S.C. §2255 in effect at the time of the alleged
conduct applies, and, thus, the presumptive minimum damages amount should Plaintiff
prove the elements of such claim is $50,000, and not subject to any multiplier.
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14.As to Count III, application of the amended version of 18 U.S.C. §2255, effective
July 27, 2006, would be in violation of the legal axiom against retroactive application of
an amended statute, and also in violation of such constitutional principles, including but
not limited to, the "Ex Post Facto" Clause, U.S. Const. Article I, §9, cl. 3, §10, cl. 1, and
procedural and substantive due process, U.S. Const. 14th Amend., 5m Amend. The
statute in effect during the time of the alleged conduct applies.
15.As to Count Ill, application of the amended version of 18 U.S.C. §2255, effective
July 27, 2006, is prohibited pursuant to the vagueness doctrine and the Rule of Lenity.
A criminal statute is required to give " 'fair warning ... in language that the common
world will understand, of what the law intends to do if a certain line is passed. To make
the warning fair, so far as possible the line should be clear.' " United States v. Lanier,
520 U.S. 259, 265, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting McBovle v. United
States 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931)) (omission in original). The
"three related manifestations of the fair warning requirement" are: (1) the vagueness
doctrine bars enforcement of 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; (2) the canon of strict construction of criminal
statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal
statute as to apply it only to conduct clearly covered; (3) due process bars courts from
applying a novel construction of a criminal statute to conduct that neither the statute nor
any prior judicial decision has fairly disclosed to be within its scope.
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16. The applicable version of 18 U.S.C. §2255 creates a cause of action on behalf of
a "minor." Plaintiff had attained the age of majority at the time of filing this action, and
accordingly, her cause of action is barred.
17. Because Plaintiff has no claim under 18 U.S.C. §2255, this Court is without
subject matter jurisdiction as to all claims asserted.
18.Application of the 18 U.S.C. §2255, as amended, effective July 27, 2006, is in
violation of the constitutional principles of due process, the "Ex Post Facto" clause, and
the Rule of Lenity, in that in amending the term "minor" to "person" as to those who may
bring a cause of action impermissibly and unconstitutionally broadened the scope of
persons able to bring a §2255 claim.
19. 18 U.S.C. §2255 violates the Equal Protection Clause of the 14th Amendment
under the U.S. Constitution, and thus Plaintiff's claim thereunder is barred.
20. 18 U.S.C. §2255 violates the constitutional guarantees of procedural and
substantive due process. Procedural due process guarantees that a person will not be
deprived of life, liberty or property without notice and opportunity to be heard.
Substantive due process protects fundamental rights. Accordingly, Plaintiffs cause of
action thereunder is barred.
WHEREFORE Defendant requests that this Court deny the relief sought by Plaintiff.
Robert D. Critton, Jr.
Attorney for Defendant Epstein
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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 by CM/ECF on this day of , 2009:
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 33160
[Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
[Email Redacted]
Counsel for Plaintiff Jane Doe #2
Jack Alan Goldberger
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
[Phone Redacted]
Fax: [Phone Redacted]
jaaesq bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
Respectfully submitted,
By:
ROBERT D. CRITTON, JR., ESQ.
Florida Bar No. 224162
rcrit bciclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike bciclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Co-Counsel for Defendant Jeffrey Epstein)
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