EFTA01659845

12/17/2001 17: 15 FAX l002/110 KIRKLAND & ELLIS LLP Ann krinsactu Ma INK AMOK 717 Sonsh Figueroa Shoot Los Arthoint. Disliktiosa 90017 Knnnelh W Sian To call Wide, Directly VIA FACSIMII I Honorable R. Alexander Acosta United States Attorney UUnited Stales Attorney's Office Southern District of Florida 99 NE 4th Street Miami. F1. 33132 Re: Jelfrcv &sack Dear Alex: now liattlasitt.Coon December 17. .'.1N17 hl Thank you for meeting with us on Friday, December 14. 2007. The meeting demonstrated significant agreement on broad issues or policy. We all agree on the centrality of the principle of horizontal equality. namely that Mr. Epstein should be treated no differently • - neither more nor less favorably — than a less prominent or less wealthy defendant accused of similar conduct. We also all agree that no person should he allowed to plead guilty in a statute that does not precisely apply to his conduct. We agree as well that the goal of these extensive ne-gotitnions is to reach a just. equitable. proportional and truth id result. In this letter. we seek to implement these agreed-upon principles. I lowcvcr. we arc deeply concerned that, at this late juncture. we remain unenlightened as to a coherent theory of federal criminal law that would pass serious muster. Especially in view of (i) the unprecedentedly expansive interpretation of III U.S.C. § 2423(b) and. relate-thy. (ii) tlx: unprecedented employment of IS U.S.C. § 2255. we have only recently come to understand that adorns your list of would-be victims. The theory of her inclusion reining enshrouded in mystery. In any event. she is manifestly not a victim. for masons we shall elucidate. So too. we have respectfully requested illtunination as to the factual predicate for the applicability of Florida Statute § 796.03. which now appears deeply problematic. We arc met time and again substantively with silence. but when the veil of ignorance is only slightly lilted. the actual. truthful facts as weighed in a fair and reasonable balance arc found fatally wanting. This is fundamentally unlhir and pmthundly wrong. We are eager to resolve these issues with your Mice expeditiously. To that end. we respcsalidly reaffirm our request for a prompt. independent. expedited review of Ilse evidence. aicaga Flonri Kong London Munich New Yost Sun Fameisco Washington. o.a EFTA01659845 12/11/200( 11 15 FAX as 003/110 KIRKLAND li. ELLIS LLP I Itmorahlt: R. Alexander Acosta December 17, 2007 Page 2 which includes but k not limited to Ms. testimony: the witness transcripts: the tainted Detective Kecarey reports: and our prior submissions. In light of the concerns we raised and the evidence we discussed al the December 14 meeting, we am firmly persuaded that this provides the only avenue for Mr. Epstein to be afibrded the bedrock value of horizontal equality. We now elaborate on the three pivotal issues last discussed at last Friday's (December I4) meeting. 1. The Conduct b Not a Reekterahle Offense Under Florida la Under the Agreement. Mr. Epstein is to plead guilty to an indictment charging one count of Florida Statute § 796.07. solicitation of prostitution. and to one count of Florida Statute * 796.03. procuring n minor for prostitution. Given the commercial nature of the conduct generally associated with § 796.03. a defendant convicted under this statute must register as a sexual offender under Florida's Sex Offender Registration and Notification Act (the "Florida's Sex Act"). However. Mr. Epstein's alleged conduct does not meet the requirements of § 796.03, or for that matter. any of the other Florida statutes that require registration. A. Honda Statute § 796.03 is Inapplicable It should be noted that at the time § 796.03 was negotiated between the panics. Ms. Villafana maintained (and continued to maintain as late as last week). that a § 796.03 charge involved the solicitation of a minor, not the procurement of a minor. During those negotiations. we repeatedly asked Ms. Villafana to confirm that she possessed the requisite evidence to make out a registerable charge. to which she unwaveringly replied that she did in fact possess this evidence. Although she has refused to disclose such evidence despite our repeated requests. we continued to proceed in good faith. We were then informed by lama I3etohlavek that solicitation of a minor is not a registemble offense. and we promptly made that known to Ms. Villafana. With the evidence at hand, it is clear that § 796.03 is a procurement statute dial has no application to Mr. Epstein whatsoever. l Under § 796.03. "(al person who procures for prostitution. or causes to be prostituted. any person who is under the age of is years commits a felony of the second degree . . .". Conviction under this statute requires an offender to register as a sexual offentkr (whereas a defendant convicted of soliciting a prostitute under § 796.07 does not). Recognizing this It is obvious from the lint plea proposal we received From Ms. Villafana. that she has always seen solicitation of a minor as tx: appropriate charge under the facts Ilhis is also the Slate's recommended charge). What is now apparent is that she thought that solicitation of a minor MIS both a felony and a registerable charge under Florida law. It is not. Rather than foree-lii another charge that matches the sentence Ms. Vitiation desires. your ()Met should implement the slate charge that it has maintained is the most appropriate for dir olletzeti comfort .,.- colicilatio n ofa minor. EFTA01659846 12/17/2007 17. 16 FAX It 004/110 KIRKLAND & ELLIS LL(' I l000rahle R. Alexander Acosta I )ecemher 17. 2007 Page 3 distinction. the legislature drew a bright line between procuring a minor for prostitution on the one hand, and solicitation for prostitution on the other. Indeed. procurement under F 796.03 is clearly not the same as solicitation under § 796.07. as the Ibmwr requires that the defendant procure the minor to engage in a sex act with a third party, not tlx: defendant himself. 'Ibis clear demarcation is well settled law in Florida. In Register v. Susie. for instance. the cowl reversed a conviction of 796.03 ftw a defendant who offered a 12-year-old girl money to have sex with hint. Tlx: court further explained that to expand the meaning of the statute would be disingenuous to the intent of the legislature: We lied nothing in either maim° that would support the Stnle's argument that offering money while soliciting someone to have sex with the offeror w•as intended to have the same criminal consequences as inducing a victim to engage in sexual activity with a Mint party to the financial benefit of the pimp. A person who offers money to a minor to have sex with him commits a crime. The Florida Legit-lawn: has designated such an act of solicitation as a less severe crime than exploiting a minor to engage in sexual activity with a third party, to the procurer's financial advantage. This distinction is a matter within the exclusive prerogative of the legislative hraneh. Register.715 So.2d 274.278 (Flu. Ist DCA 1998). (emphasis added)' Similarly, in Kobe/ r. Susie. the defendant's conviction under 796.03 was reversed because tlx: court determined that the defendant's actions did not constitute procurement. In Kobe/. the defendant approached a ten-year old boy and his friend on the street. arranged to meet them in an alley. and offered the boys money fur oral sex. The defendant was arrested and charged with two counts of procurement of a minor for prostitution. in violation of ii 796.03 and two counts of attempted indecent assault. The appellate court determined that the defendant's conduct did not constitute the crime of procurement and held that 796.1)3 did not apply because the defendant had not attempted to hire a minor to have sex with a third party. The court recognized that both acts arc punishable crimes, but made a clear delineation between them: phi the context of pnntitution. the word "procure" must be given its specialized meaning, which is "in obtain as a prostitute fur another.- connoting a commercial motive. Although the solicitation or a minor for sex and the procurement of a minor lilt prostitution arc horn evil deeds, the use of a minor fir the "commercial entemrisc" of prostitution is a greater evil. This long-wtikx1 body formate matutory and decisional law has not, to our knowledge. heel' eriiiciced or otherwise drawn into question lw Florida's duly-cleirnal. policy-sensitive Govertmrs including Governor Jch Bush and the incumbent Governor. EFTA01659847 12/17/2007 17. 16 FAX 1®005/110 KIRKLAND & ELLIS LLP Ilonorable It. Alexander Acosta Deeember 17.2007 Page 4 Kobel. 745 So. 2d 979.982 (Flu. 4th DCA 1999).' (emphasis added) Other Florida decisions have echoed the reasoning and analysis of Kand and Regime,. See Pray v Stale. 761 So.2d 474 (Fla 3d DCA 2000) (reversing a conviction of § 793.03 for a defendant who paid a prostitute for sexual acts she engaged in with the defendant because the coon Ibund no evidence of commercial exploitation). Ilene. Mr. Epstein did not procure any minor for a third party under the meaning of § 793.03. Given the well settled legal precedent. it is clear that § 796.03. the operative statute requiring registration under the Agreement. does not lit the conduct alleged and therefore required registration should he removed from the Agreement. B. The Conduct Does Not Require Registration Under Florida Law Other statutes 11w which registration is required also present circumstances that in no way lit Mr. Epstein's alleged conduct. It is clear based on these statutes that the legislature intended for registration to apply to only the most heinous cases of crimes against children. Sec Florida Statute § 943.0435(1):0(1). Specifically, sexual offenders are persons who have been convicted of committing. attempting. soliciting or conspiring to commit the following kinds of crimes: kidnapping of a child: false imprisonment of a child under the age of 13: luring or enticing a child under 12 into a structure; sexual battery; procuring child prostitution: lewd and lascivious battery. molestation, or conduce lewd and lascivious offenses committed in the presence of an elderly person. battery. and molestation: promoting a sexual performance by a child: showing obscene material to u minor: possessing child computer pornography; transmitting child pornography; buying or selling a minor with knowledge the minor will he portrayed as engaging or appearing to engage in sex acts. Sec xenerally. Florida Statute § 943.0435(10X1). Not only does Mr. Epstein's conduct not fall within any of the delineated statutes. hut his alleged acts are not comparable in terms of severity or harm. The vast majority of the women perlbrming massages were over the age of It with respect to the women alleged to he minors at the time of tlx: purported conduct. the vast majority of those women were 16 or 17; that is no evidence of battery; there is no child pornography: and there is no evidence of kidnapping. imprisonment. luring. or proettring.4 In many instances, these women called Mr. Epstein to solicit work as a masseuse. and in each instance these women were paid fir their services. 3 11w KOiPei case expressly OVC3111A1311 the bh District opinion in al(on)e when: a conviction under 7O(.03 for a defendant who offered a minor money to engage in sex with the defendant himself was ultimo:41. See Aktitior r Shut, 71 l So. 2d 1200 (Fla. 4th DCA WOE). It should he gulled !hay in the history of Florida law, there has never been a statutory rapt charge where llte exchange or money was involved. EFTA01659848 12/17/200? 17:18 FAX I/008/110 KIRKLAND & ELLIS LLI1 Honorable K. Alexander Acosia Dm:ember 17. 2007 Page 5 C. The State Attorney's Office Does Nut Relieve the Conduct is Itegisterable It should not he surprising then that no registerable statute - federal or state — applatn4 to cover tlx: Conduct in this case. This is because registration. as a matter of law and policy, has always been limited to extremely dangerous sexual deviants who pose higher than ordinary risks of recidivism. Applying a registerable crime to solicitation-type conduct or the kind at issue here would bring into question the very constitutionality of registration. It would also dilute its impact and compromise the credibility of those who are responsible liar vouching for the dangerousness of defendants required to register for life— her the State Attorney's Olliee.5 Indeed, the State Attorney's Office has long maintained that Mr. Epstein's alleged conduct does not give rise to a registerable offense in Florida. The State believes that holm arrest is a more than appropriate sentence. However, contrary to your policy of horizontal equality. your Office rejected the State's view of the case and eflimively dictated a harsher sentence to the State and specifically stated that house arrest would amount to "mansion arrest" for Mr. Epstein. Treating Mr. Epstein differently fmm any other similarly charged individual simply because of his wealth directly contravenes the policy of horizontal equality. Given that Mr. Epstein's conduct does not lit the requitement for registration nor does his lite or circumstances fit the neat 11w registration, we propose that Mr. Epstein's charge he modified to reflect this. IL The Conduct is Not a ti 2422 Offense A. A Review of the Applicability of § 2422 is Alsu Necessary We appreciate your concern about whether the Florida statute to which Mr. Epstein is required to plead under the Agreement actually fits the facts of the case. We believe. however. that you should he even mote concerned about whether the federal statutes lit the facts. The concern over the federal statutes should be greater for several compelling reasons of constitutionality. statutory construction. ethics and principle. First. We believe. and understand you to share our belief. that it is improper to require a defendant to accept a plea to questionably applicable statutes. In the same vein. it is far more improper to indict. nr threaten to indict. a defendant under an equally questionable statute. There Your Office's nitrated refenmces to the State Attorney's Oflice as "a joke" ore without merit. Barry Krischer. (he Palm that. County Slaw ALIstrney. tub screed in office for 12 years. Lana Belohlavele. the lead prosecutor in this matter, has over a decade urcxperience prosecuting sex-related crime' and was a founding member al' the Child Abuse. Protocol. EFTA01659849 tzttuzuur III:11 In Ifi QUI/ I IU KIRKLAND & ELLIS LLP I lonorable It. Alexander Acosta December 17. 2007 Page 6 is a long tradition of accepting pleas that allow for some flexibility as to the crime charged. since pleas represent a mutual agreement and mutual waiver by the parties. Although certain elements cannot, in law, be waived, courts have treated this issue inure flexibly in tlx: context of plea agreements. There is no such flexibility in the context of an indictment ur threatened indictment. Second. [Wend statutes are, as a matter of constitutional law. required to he even clearer and less subject to common law expansion than state statutes. As far hack as 1812. the Supreme Court has held that there could he no common law crimes tinder federal law. Sec United Slates r. Ihtdcon. 7 Crunch 32. 43 (1812) (•yO)ur Courts no doubt possess powers not immediately derived from statute: but all exercise of criminal jurisdiction in common law cases we am Of opinion is not within their implied powers."). The states have never been subject to this limitation on the federal government. Indeed. at the time of the Founding there were same cotnnnin law crimes, and state courts had broad authority subject to consideration of lair warning — to apply common law principles to the construe • of state criminal statutes. Federal courts have never had such authority: Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals. it is reasonable that a fair warning should be given to the world in language that the common world will understand 01 what the law intends to do if a certain line is passed. To make tlx: wanting fair, so far as possible the line should he clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture at' vehicles moving on land. the statute should not he extended to aircraft. simply because it may sksan to us that a similar policy applies, or upon the speculation that. if the legislatme had thought of it, very likely broader words would have been used... Milk& r. U.S.. 283 U.S. 25. 27 (1931) (Justice There could he no federal common law crimes because criminal law has traditionally been the province of the states. except in instances of over-arching federal interests, of which none are implicated in the matter at hand. Third. This issue is especially; compelling in the context of a federal statute that purports to make a federal crime out of conduct that has traditionally been the province of the states. as sex with minors and solicitation of sex for money have always been." Before a federal statute can he construed to cover such conduct, its language must be "unmistakably clear", because Congress cannot he presumed to have intended to disrupt the delicate balance between federal and state jurisdiction over crimes that have been traditionally prosecuted by the slates. In cases raising potential Petite inues, the federal statute must unambiguously cover the conduct at issue. As we have nude ckar throughout this investigation. the alleged conduct does nol implicate mvr•arching federal interests because the conduct was purely hwul in nature, the conduct is covered by stale law. and there are no indicia of force, coercion, violence, drugs, luring or trafficking. EFTA01659850 12/17/2007 17 17 FAX 0000/110 KIRKLAND & ELLIS LLP I lonorable It. Alexander Acosta December 17. 2007 Page 7 Fourth. The federal statutes at issue in this case are far more draconian than the state statutes. Tlx: federal statutes carry far higher minimum mandatory sentences and higher guidelines. The courts have always required greater clarity, predictability and certainty in the application of harsh statutes than less harsh ones. Fifth. It would raise protbtmd issues of federal criminal enlintement fix your Office deliberately to apply a more permissive statute to its own work than to a state statute. It would he unconscionable not to apply at least as rigorous a standard of certainty and clarity to your Office's indictment than to a state statute. even one that is pail of a deal made by your Unice. It would he unseemly in the extreme fur your Office to apply a more permissive standard to its own work than to a state statute. We believe strongly that a dispassionate and fair review of the facts will reveal that even if the same standards were to he applied to the applicability Iv/ non of the state and federal statutes, the conclusion could not in good conscience be reached that the Florida statute is inapplicable, while at the same time concluding that the federal statutes arc applicable. The daunting standards that must be applied to federal statutes include the folluning: • The Rule of Lenity: 'the Supreme Court has long held that criminal statutes that are subject to differing interpretations should be construed in the defendant's favor. See I'usquunlino v. us 544 U.S. 349. 383 (2005) ("We have long held that, when confronted with 'two rational readings of a criminal statute, one harsher titan the other. we are to choose the harsher only when Congress has spoken in clear and definite language."') (citing United States v. McNally. 41O U.S. 350. 359-360 (1987): United Slake V. Unkerfal CIT. Credit Corp.. 344 218. 221-222 09529 Funhamore, the rule of lenity also applies to Florida state criminal law. See Register r. Slate. 715 So.2d 274, 278 (Fla. 1st 1)C.4 1998) rib the extent that penal statutory language is indefinite or 'is susceptible of differing constructions.' due pn'ccss requires a strict construction of the language in the defendant's favor under the rule of lenity") (riling F. Stat. 775.021( I ) (1995): Perkins it State, 576 So.2d 1310. 1312 (Fla. 1991): Logan it State, 666 So.2d 260. 261 (Fla. 4th ocA 1996)). • Plain Meaning: Commonly accepted prineiplas of statutory law require that statutes he given their plain and unambiguous meaning. wont: exists. Sec !ligroin v. New York Trust Ca. 292 U.S. 455. 469 (1934) ("Under the recognized macs of construction we should give the words of the statute their ordinary and common meaning") (citations omitted). • ('laritv and Predict:11)04v: "When choice has to be made between two readings of what conduct Congress has made a crime. it is appropriate. belbre we choose the harsher alternative, to require that Congress should have spoken in language that is clear and EFTA01659851 Le/I f/400f If lb PAA KIRKLAND & ELLIS LLP Ilonomblc It. Alexander Acosta December 17.2007 Page R definite". See United Slain v. Baty 404 U.S. 336. 34748 (1971) (citations and footnote omitted). It is fundamentally unliair to apply to conduct criminal statues that cannot he understood clearly. Furthermore. given that one primary purpose of criminal law is to announce that one will be punished for the crimes they commit. the statutes condemning them to a sentence should clearly and predictably express the conduct that is prohibited. The fact that even members of our own defense team. including Proks.sor Alan Dershowitz. with 45 years of experience in reading, teaching and litigating criminal statutes. could not determine that any of the federal statutes would be applicable to Mr. Epstein's conduct, a lay person cannot be expected to make that determination. As confirmed by Judge Stem's conclusions regarding the application of F 2422(b), as well as the other relevant federal statutes, the conduct at issue is clearly not within the predictable scope of 2422. See Judge Stern's 1.etter ("In stun. whatever sexual contact occurred, occurred face to face. without the use of an instrumentality of interstate commerce to persuade or induce it. and thereliare. was not an act proscribed by the statute. Accordingly Mr. Epstein committed no crime within the scope of 2422(h)."). • No Creative ApplIcations at the Law: Furthermore. criminal statutes should nut lend themselves to creative interpretations. "[Cjriminal prosecution. as distinguished from civil lawsuits. is nut supposed to he based on novel theories. Before anyone can he criminally prosecuted, both the alleged criminal conduct and the penally must be spelled out unambiguously in a plainly worded criminal statute understandable to the average citizen . . .there is no room for creativity by prosecutors who arc understandahly eager to send messages to miscreants who arc themselves using creativity in circumventing anachronistic criminal statutes." See Alan M. Dershowitz. Making lip The Law. N.Y. Times 33. Aug. 16, I 996. • Do Not Apply Creative Applications fur the First Time in a Close Case: This matter is undoubtedly one of first impression. to stretch the federal statutes beyond recognition to fit the conduct without any precedent can have dangerous and unforeseen consequences. • Clear Lyrist:Oh.: Intent to Preempt State Law: Well-established law also respects the sovereignty of states with respect to asserting criminal law. *Tillie historic police powers of the Stales larch nut to be superseded by the Federal Act unless that was the clear and manifest purpose of Cameo:Ks." See Rice v Santa Fe Elevator Corp.. 331 V.S. 218. 230 (1947). • Narrowly Tailored Statutes Should Apply: If there arc two statutes - one that narrowly and precisely his the facts, and another that is hroad and general the narrow statute should apply. Sec Rothanower r. TIOIChe ROSS Cc CIL 426 t I.S. 148 (1976) (-It is a basic principle of statutory construction that a statute dealing with a narrow, precise. EFTA01659852 12/17/2007 17 18 FAX VI010/110 KIRKLAND & ELLIS LLI' I knorable It. Alexander Acosta December 17, 2007 Page 9 and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. Where there is no clear intention otherwise. a specific statute will not he controlled or nullified by a general one. regardless of the priority of enactment.") (quotations omitted). This is especially true if the narrow statute is a state statute and the more general statute is a federal statute. especially in an area traditionally prosecuted by the states. Sec United Stales v. Evans. 476 F.3d 1176 (11th Cir. 2007) ("prostitution I isl a vice traditionally governed by state regulation"). We believe with great conviction that the above demonstrates that Congress needs to speak clearly when a federal criminal statute reaches quintessentially state sexual conduct and suhjects an accused citizen to potential consequences of gravely serious federal guidelines mad in some cast's minimum mandatory) sentencing. We have repeatedly represented to you and others in the hierarchy of your Office that we believe that the tilos of Mr. Eiwtcin's conduct simply do not conform to the legal requirements for prosecution under § 2422(b) or any conspiracy brought under § ill to violate § 2422(b). In fact. the chasm between Mr. Epstein's conduct and § 2122(b) mirrors the gulf between his conduct and Florida Statute § 796.03. B. § 2422 Plainly Does Not Apply to These Facts We have been informs, that § 2242(h) served as the pivotal kderal statute which was the foundation of either conspiracy (under IS U.S.C. § 371) or the substantive charges. At the December 14 meeting. Ms. Villafana provided insight the Government's theory of prosecution, stating that sexual contact with an underage female and an out-of-state phone call were sufficient to support a § 2242(b) charge. This is quite wrong as a matter of law. There was manifestly no inducement so as to make out a § 2242(b) charge, and sexual contact with an underage female, without more, is incontestably and quintessentially a state offense.? Our previously expresso( but profoundly substantial concerns regarding the lailure of the known tads to conform to or support a federal c • • br violating § 2422(h) were reinforced, first, by our review of the sworn testimony of Ms. : second, by letters from your Office advising us that the list of - victims" of Mr. Epstein's federal violations had been reviewed and narrowed hut that Ms. remained on that list: and third, by Ms. Villafana's stated theory of liability under § 2422(b) at the December 14 meeting. Although Ms. Villafana alleges, that pursuant to the Agreement. Ms. Is a "victim" of federal crimes, her testimony unmistakably reveals that not only did Ms. suffer no injury (let alone damages). but she would probably never mount such a claim. Indeed. Ms. On July 6, 2M17, we previously sent to your (Met a submission nqtartling the inapplicability of .1 241200 We Nave uuachcd the July 6 submission to this later. EFTA01659853 IC/ I I/ZUV I If lb PAX stitui IV KIRKLAND & ELLIS LLP I lonorahle It. Alexander AeOtall December 1 7, 7.007 ragc I0 testimony establishes that the conduct was consensual: that she lied to Mr. Epstein about her age: that she instructed others to lie to Mr. Epstein about their ages: that there was ix' sexual contact at any time: and that there was no inducement over the telephone or any other form at' communication. Excerpts of Ms. testimony establishing each of these pivotal points arc set forth below: • Consent 0: Okay. When did you meet him and who introduced you to Jeffrey? A: My girlfriend. (r) introduced me to Jelirey.$ Sworn Statement al - 9: Now you said that old you that he likes massages. Did she elaborate on what types of massages. A: She raid sometimes he likes topless massa t you don't have to do anything you don't want to do. lie just likes massages. (M Swum Statement at 7) A: I said. I told Jeffrey. I heard you like massages topless. And he's like, yeah. he said. but you don't have to do anvthinu that you dun't feel comfortable with. And I said okay. but I willingly took it off. Sworn Statement at 10) • Lied About tier Age A- So I asked her. 1 said well. what about my age? And she said well, just make sure that hint that you're 18. And I had a fake II) at (he time and we went there. Sworn Statement at (') Allbough tn: an: ona hears mcmioning 11141 history of drug abuse. VIO • * ir • • a on the gays:rum:Id is list of alkgcd -victims". it ha' a criminal record MN' other damaginr. credibility issues. including, a ever. a proslauli tttt . EFTA01659854 17/17/2007 17. 19 FAX W012/110 KIRKLAND & ELLIS LLP I lonomble It. Alexander Acosta December 17. 2007 Page II A: . . . I had a Ihke ID anyways, saying that I was IS. And she just said make sure you're IS because Jeffrey doesn't want any underage girls. (Miller Sworn Statement at 8) A: . . . of course. he thought I was ( Sworn Statement at 13) In.tructed Others to lie About Their Ages A: . . . I bring a lot. like maybe -- I don't know. maybe 30. maybe 30 [girls to Epstein]. It was all about the money to me at that time. ( Sworn Statement al 28) A:. . . I would tell my girlfriends just like -approached rue. Make sure you tell him you're DC. Well. these girls that I brought, I know that they were IS or I9 or 20. And the girls that I didn't know and I don't know if they were lying or nut. I would say make sure that you tell him you're IR. Sworn Statement at 22) Nu Sexual Contact A• So I willingly the first lime took off my top when I gave him a massage and nothing more than that. It was just a hack massage and neck massage and I was out of there. ( Sworn Statement at 9) 9: Did he at any point kiss you touch you, show any kind of affection towards you? A: Never. never. I Swam Statement at 211 A: lie didn't wantnse to touch him and he didn't touch me at all. I SWOT Statement at 17) • A A A * A: I would wear panties. Willingly one lime because we were making jukes and everything and willingly one time I had. yes. I was totally nude. but I was tine with it. EFTA01659855 IZ/II/200( rata FAX 14013/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 12 Q: Okay. A: Totally fine with it. Q: And how did that massage gu? A: Actually. it was a foot massage and he was sitting on the couch. We didn't even have the massage table out and I gave him a foot rub and I was nude. t Sworn Statement at 20-21) 0: Ile never pulled you closer to him in a sexual way? A: I wish. No. no. never, ever, ever. no. never. Jeffrey is an awesome man, no. Sworn Statement at 21) 0: Okay. And with the other girls, was it the same as what you did or different? A: Yeah, yeah. I mean. well. I was more willingly to do more. you know. Like I said, I went nude for him one time. liar the other girls. they practically were topless and that's all that they were willing to do. Some girls didn't want to go topless and Jeffrey didn't mind. ( Sworn Statement at 23) • No Inducement A: . . . Jeffrey. he was a very awesome guy and I ji giving him my number so I could I didn't want anymore. I would rather go to him on my own. ( n't know. I ended up or Rrian to drive me Sworn Statement at 15) A: No. I gave Jeffrey my number. And I said. you know, any lime you want me to give you a massage again. I'll more than welcome to. (=Sworn Statement at K) A: Me and Jeffrey hardly ever talked on the phone. Ile was always busy. It was mostly Sara. We'd talk when I would get there, you know. So it was like he do you want to come in? Yes. cool, you know. Come there, no. cool, bye. Sworn Statement at 32-33) EFTA01659856 12/1(/294.11 1f: 113 FAX 014/ 1111 IIntuitable R. Alexander Acosta December 17. 2007 Page LI KIRKLAND & ELLIS LLP Q: We have ••I don't know. We have some messa acs I guess that some girls' names that would call Jeffrey and leave a [message' . . . ( Sworn Statement at 25) A: Every girl that I brought to Jeffrey. they said they were line with it. And like, for instance, a lot of girls begged me to bring them back. Ttivantm to come c or t e money. And as far as I know, we all had fun there. Sworn Statement at 45) In sum, Ms. testimony clearly shows that she is not a victim. in fact. Ms. never wanted to cooperate with the investigation she refused to cooperate with the Hi refused service of a subpoena. hired an attorney. and forced the government to give her immunity before she would speak to them. tt cannot he that she may now seek relief titan Mr. Epstein as a "victim" under *2253 without posit of injury or inducement. Furthermore. Ms. Villafana's assertion of documentary proof' of an interstate phone call by Ms. does nut establish tlx: nexus required for inducement under § 2422. When challenged at the December 14 meeting to justify theisent chasm between the demands of the federal criminal statute and the testimony of Ms. MS. Villallina offered only an y of-state toll record. While this document may be inconsistent with a small part of Ms. testimony as to the issue of the locus of phone calls. it utterly fails to demonstrate that COCCOMICIlt theory supports what at its essence is a kdemlivation of underage prostitution (sec Villafana letter to I Ailkowitz of December 13. 2007 a1 pg 4, par I ). is compellingly so for several reasons: • Absent testimony. the evidence does not exclude the possibility that Mr. E ein neither caused nor knew of the call in question or the possibility that neither Ms. nor Mr. Epstein were even participants on the call: • Absent the testimony of one of the participants. the documented record of the fact of a call does not negate the possibility that the cull did not even involve discussion about scheduling a visit from Ms. to Mr. Epstein's house nor any other material subject matter. • Absent the testimony of one of the participants, there is no evidence of inducement. an essential element of the statute and an element that requires significantly more than scheduling a visit with someone who like Ms. was agreeable to come to Mr. Epstein's house prior to the call: EFTA01659857 12/1(/2001 11' 13 FAX 10 016/110 KIRKLAND & ELLIS LLP I Innorablc It. Alexander Acosta December 17.2007 l'age 14 • Absent evidence of the content of the call, a telephone record reflecting an out of state call is completely consistent with someone returning a call initiated by Ms. rather than Inducing— a sexual act; • A review of message logs seized from Epstein's residence during the state investigation (us well as a review of Ms. testimony) would reflect that it was common for there to he incoming calls by women of all ages asking to he called and seeking to visit Mr. Epstein: and • The alleged conduct is far outside the heartland of conduct that § 2422(h) was clearly designed 1w Congress to prevent Internet (or arguably. by extension. telephone) luring. Indeed. Ms. denies than she was ever induced to come to Mr. Epstein's Mouse. The me record cannot sustain a lederal prosecution without more. We know. from reviewing Ms. transcript. that there is no more. Even if there were telephone communications regarding the scheduling of massages. mere wheat:lam is not inducement. Inducement carries with it a much higher standard than solicitation" In entrapment cases liar instance. the Government has argued, and the courts have agreed, that inducement requires "conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party". v Daniel, 3 F.3d 775. 778 (4th Cir. 1993): VS. v. Skulls. 2007 wr. 4287666 at '3 Dec. 5. 2007). "Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement." because "filnducement entails some semblance of 'arm-twisting; pleading. or coercive tactics-. Marred v. Sane, 841 So.2d 600. 603 (Fla.App. 4th Dist. 2003) (finding no government inducement because "appellant had already demonstrated his predisposition to commit the offense"). Here. Mr. Epstein at the very worst is guilty or solicitation because he only provided women with an opportunity to commit the act of prostitution by arranging for appointments to he scheduled. Scheduling by telephone, by itself. does nut rise to the level of inducement because there is neither a "semblance of arm-twisting. pleading, or coercive tactics" nor an attempt In "implant a criminal design in the mind" of any party. Tlw designation of Ms. as a "victim" in the face of her own testimony is emblematic of the greater problem with the sweeping federal investigation of this matter. That she remains on a shortened list of § 2255-eligible "victims- in the face of sworn testimony reflecting no inducement, no injury is required for § 2255 recovery, and nu violation of the most applicable federal predicates. § 2422(6), should, we contend, trigger deep concern that those who This k panieularly true when them is link: to nu evidence that the defendant even mule the calls himself. EFTA01659858 1 Z/ 1 / I I I: ZU ralx IMUllS/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 15 were drafting and/or reviewing the federal indictment that was the catalyst for the Agra:mem were themselves misinformed about the scope and demands or proof required by § 2422(h). With underage sexual contact a muter of state criminal prohibition. the additional requisites of federal law unproven by more than a toll record, and the consequences flowing from the current Agreement as serious as the inevitability of unwarranted civil recoveries of an amount that could he $150.000 to requiring a state sentence of IS months in jail and a lifetime Or registration as the conditions lin Mr. Epstein to avoid a charge of violating § 2422(h) — a charge kw which we stmngly believe hint to he innocent — we believe the overall risk of a miscarriage of justice to compel a reconsideration of the federal charging decision that catalyzed the execution of the Agreement. This is particularly true in light of the unprecedented application of § 2422 in this manner. We have previously provided charts of every• reported precedent demonstrating that the reach of § 2422(h) being advanced by your Office in this matter is unprecedented. Attempts by CMS to match the facts of Mr. F.pstein's conduct with any prior ease — reported or otherwise -- generated a single distinguishable precedent that had no relationship to the facts under consideration in this matter."' Indeed. upon a careful review of the evidence, your Office will undoubtedly conclude that federal law is being taken where it has never gone before, and this is the last clear chance lin this District through your independent judgment on its own volition — to do the right thing. Therefore. we urge that you direct that a full and fair and complete examination of the most trustworthy evidence be ordered. Ill. Finality With wooed to b 2255 For several weeks. we have articulated our fimdamental — and growing —concerns with respect to the profound policy issues raised by your Office's invocation of § 2255. It is co m mon ground among us that Si 2255 has not been the subject or policy guidance front Main Justice. over the long life of this unusual statute. It is therefore undisputed that we are sailing in uncharted jurisprudential and policy waters. This should not be a matter entrusted to the judgment of those who have not run the separation-of-powers gauntlet of Presidential nomination and Senate continuation. As we discussed at our December 14 meeting. and you quite courteously listened. we believe that, aas implemented in this extraordinary situation. * 2255 abounds with basic issues founding in the Due Process Clause of the Fifth Amendment. In In (./.S. r. Vanillin, the defendant bought and distributed crack cocain.- and cocaine to underage girls; adinilled 10 knowing that the girls were underage: arranged rot underage girls in have sex with tither members of the conspiracy in exchange kw the drugs; and he was in possession of illegal linzarms at the time of the alleged conduct. EFTA01659859 12/17/2001 If 20 FAX 10017/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17.2007 Page lb For these reasons. we deeply appreciate your contemplation of the appropriateness of the *2253 portion of the Agreement. As we discussed during the December 14 meeting, and as expressed in our December 11 letter. it is improper for Mr. Epstein to he required to pay recovery to individuals who do nothing but simply assert a claim under § 2255. Some of the individuals identified do not consider themselves victims, nor would they be considered victims tinder any meaning of the law, given the evidence. Furthermore. § 2255 allows for a civil remedy and there is no basis for the government to be involved with the recovery of damages based on civil claims of private individuals. While we appreciate your (Mice's objective to provide certain individuals with restitution in connection with this matter, we strongly urge you to consider an appropriate process by which such restitution can made. We respectfully reiterate that this process. should not include any further federal interference in any way with respect to the recovery of civil claims. IV. Conclusion We believe -- and know you share our belief that citizens should he treated alike regardless of wealth or status when it comes to criminal justice. We ask fur nothing more of your treatment of Mr. Epstein tlum that he he treated as would any other citizen of Palm Reach under similar circumstances, Mr. Epstein should nm be charged with offenses to which his conduct does not apply. in either the state or federal context. Equal treatment would require that Mr. Epstein's prosecution be carried out by the State Attorney's Office. Mr. Epstein's conduct does not appropriately lit within the heartland of federal law. Further. we respectfully submit that the lateral government should not sit as an -appellate eaten- and permit an unhappy state investigator (in this case one who we contend had little fidelity in (he law) to seek review of a decision made in good faith regarding the charging decisions fan elected state prosecutor. As we have expressed to you both at our meeting and in this letter. Florida law mandates that the procurement of a minor for the purposes of solicitation requires that the defendant procured the individual for activity with a third party. Mr. Epstein's alleged conduct does not lit this offense. The routine and practice of Florida stale authorities and courts is to distinguish between solicitation and procurement of minors, the former being a misdemeanor under state law, the latter a felony (and the commission of multiple misdemeanors does not create a felony). Eqwil treatment would mandate that Mr. Epstein be charged for solicitation and thus, not be required to register us a sexual offender. It is improper for the federal government to direct a citizen to seek an enhancement of charges that the state prosecutor has deemed appropriately tit the conduct and that prosecutors conclusions are consistent with practices regarding other citizens of his county tor similar offenses. We believe that you should authorize the State Attorney for Palm Beach County to decide -- based on all the evidence, which we agree you should provide him if you agree that he should make the charging decision -- whether to require EFTA01659860 11/Ii/ZOUI 11:21 FAX lea tl/110 KIRKLAND & ELLIS LLP Honorable It. Alexander Acosta December 17.2007 Page 17 a prosecution of Mr. Epstein for solicitation (which the evidence supports) or procurement (which the evidence does not support) and that federal involvement in this case should he narrowly tailored to serve only this goal." I Assay, we reaffirm our request for independent review of the evidence. Previously. we requested but you declined to provide the draft indictment. We understand that ac have no statutory right to a FBI 302 that inculpates Mr. Epstein (although we believe that Brady principles would encourage the disclosure of FBI 302 reports that exonerate him). We are concerned that there is information that could be rebutted if disclosed but instead, known only to the FBI and your Mee, it stands unchallenged. Fur that reason, we urge you or someone you trust to review the evidence on tut expedited basis. We will provide without delay all transcripts of state interviews that are not already in your possession. We will answer any questions the "reviewer" has. We seek such review not to delay the process. We will du everything that is requested to provide any information the reviewer seeks from our investigation. We believe that given the unique context of the current ease —. one without federal precedent — that such a process is consistent with the highest and most noble goals of the criminal justice system: to learn the truth. cc: Jeffrey II. Slornan. First Assistant U.S. Attorney r you (ink, wethes. it may sot/toil this letter to the Slate Attorney's ()trice, but the Slate Attorney's (Mice NIIMIld the'. make the sentencittA determination hexed on the etsitkitce. EFTA01659861