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4. /) 1/ , u6.441S54., oj 7t At A 3505-019 Page I of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003273 EFTA00157655 KIRKLAND & ELLIS LLP ANO APIIL1AttO l'ARTROSHIPS To al June 19, 2008 Principal Associate Deputy Attorney General Office of the Deputy Attorney General Dear Mr. Roth: Facsimile: O. Fis .MM I again want to thank you for this opportunity to explain why we believe that a federal prosecution of Jeffrey Epstein is unwarranted. I appreciate your having informed us that you already have our May 19 and May 27 communications to the Deputy Attorney General, as well as our prior written submissions to CEOS and to the Southern District of Florida. In light of the significant volume of our prior submissions and to facilitate your review, we have drafted four supplemental submissions that will provide a roadmap for your investigation of this matter. Given the bulk of these documents and their appended supporting attachments, you will receive this packet by messenger tomorrow. A brief description of each of the four submissions follows. First, I have included a succinct summary of the facts, law and policy issues at hand. This document sets forth a basic overview of the issues and summarizes our principal contentions as to why federal prosecution of this matter is neither appropriate nor warranted. The three other submissions include: a summary of the irregularities and misconduct that occurred during the federal investigation; a letter from former CEOS attorney Stephanie Thacker that responds to CEOS's assessment of its limited review of Mr. E stein's case; and a point-by- point rebuttal to First Assistant United States Attorney recent letter which we believe contains factual inaccuracies typical of our correspondence from the United States Attorney's Office in Miami (the "USAO"). Also, for your reference, the package you receive tomorrow will contain a binder including all documentation to which we refer in our submissions. Finally, we will be providing a detailed checklist of each submission or substantive communication to the USAO. Our intention is that you have copies of each such document to enhance your review. If there arc any that you have not received from the USAO or CEOS, please advise and we will fedex them to you without delay. Chicago Hong Kong London Munich Now York San Francisco Washington,. 3505-019 Page 2 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003274 EFTA00157656 KIRKLAND & ELLIS LLP June 19, 2008 Page 2 As you are likely aware, the Department's prior review of this matter was incomplete and, by its own admission, not "dc novo." See Tab 38, May 15, 2008 Letter from Without considering the Non Prosecution Agreement that left this matter to be resolved in the State or any of the misconduct, CEOS reviewers, tasked with reviewing some of their own previously expressed opinions, assessed only whether the United States Attorney would "abuse [his] discretion" if he pursued this case. While we appreciate CEOS's willingness to examine these limited issues, its conclusion that a prosecution would not be an "abuse of discretion" rings particularly hollow in light of CEOS's admirably candid concessions that we have raised "compelling" objections and that a prosecution on these facts would require "novel" applications of federal law. Indeed, even a brief review of CEOS's own mission statement reveals how inapposite a federal prosecution is to the facts in this case. Importantly, we note that the CEOS review was conducted prior to the Supreme Court's very recent decisions in Santos and Cuellar, which we believe—illuminating as they do the Court's interpretive methodology when it comes to federal criminal law—powerfully demonstrate the substantive vulnerability of the USAO's unprecedented employment of three federal laws. That Office's interpretation would never pass muster under the Supreme Court's recent pronouncements and should not be countenanced. That is all the more true under the circumstances where the duly appointed U.S. Attorney opined that, in effect, the "unitary" Executive Branch was driving this prosecution. We now know that is not so. What I respectfully request, and what I hope you will provide, is a truly "de novo" review—that is, an independent assessment of whether federal prosecution of Mr. Epstein is both nertcruy and warranted in view of the legal and evidentiary hurdles that have been identified, the existence of a State felony plea and sentence that have been advocated by the State Attorney for Palm Beach County, and the many issues of prosecutorial misconduct and overzealousness that have permeated the investigation. i also request that you provide us with the opportunity during your review to meet with you in person to answer any questions you may have and to elucidate some of the issues in our submission. We believe that an independent review will confirm our strong belief that federal prosecutors would be required to stretch the plain meaning of each clement of the enumerated statutes, and then to combine these distorted elements in a tenuous chain, in order to convict Mr. Epstein. Indeed, just this week and after two years of federal involvement in this matter), Assistant United States Attorney re-initiated the federal grand jury investigation—in direct contravention of the parties' Non Prosecution Agreement— another subpoena seekin evidence in this ' 19, Subpoena to In the subpoena, directs to appear on July 1, 2008 to give testimony and produce documents to EGJ 07-103 West Palm Beach. The attachment to the subpoena seeks documents such as photographs, emails, telephone billing information, and contact information that relate to Mr. Epstein as well as specific other people who received protection from federal 3505-019 Page 3 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003275 EFTA00157657 KIRKLAND & ELLIS LLP un J a 19, 2008 Page 3 prosecution as a result of Mr. Epstein's having entered into the September 24, 2007 Non Prosecution Agreement with the USAO. Notably, the Non Prosecution Agreement contains the following agreed condition: Further, upon execution of this agreement and a plea agreement with the State Attorney's Office, the federal Grand Jury investigation will be suspended and all pending federal Grand Jury subpoenas will be held in abeyance unless and until the defendant violates any term of this agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to quash certain grand jury subpoenas. See Tab 2], September 24, 2007 Non Prosecution A ement. It alsoguarantees that persons identified in the Grand Jury subpoena such as , and Leslie Groff and others will not be prosecuted. The new Grand Jury subpoena clearly violates the Non- Prosecution Agreement. Although Mr. Epstein has exercised his rights to appeal to the Department of Justice with the full consent and knowledge of the USAO, he has not breached the Agreement. The re-commencing of the Grand Jury is in violation of the Agreement. But further, the new investigation, which features a wide-ranging, fishing-expedition type to search in New York does nothing to satisfy the very essential elements of federal statutes that are lacking despite the intensity of an over two-year investigation in the Palm Beach area. Absent evidence of Internet luring, inducements while using the phone, travel for the purpose, fraud or coercion, the subject of the New York investigation is as lacking in the essential basis for converting a state case into a federal case as is the remainder of the Florida investigation. The reaching out to New York to fill the void emanating from the failures of the Florida investigation compellingly demonstrates the misuse of federal resources in an overzealous, over- personalized, selective and extraordi attempt to expand federal law to where it is has never gone. This last-ditch attempt by na reinforces our belief that the L'SAO does not have facts that, without distortion, would justify a prosecution of Mr. Epstein. In view of the prosecution's often-verbalized desire to punish Mr. Epstein, we believe that the prosecution summary suffers from critical inaccuracies and aggregates the expected testimony of witnesses so as to reach a conclusion of guilt. Our contention is reinforced by the fact that key prosecution witnesses have provided evidence and testimony that directly undermines the prosecution's misleading and inaccurate summary of its case. Indeed, we now have received statements from three of the principal accuser (through a state criminal deposition through a federal FBI- sworn and transcribed interview), and (through a defense—generated sworn transcribed interview). Each of these witnesses categorically denies each essential element that the prosecution will have to prove in order to convert this quintessential state-law case into a federal matter. 3505-019 Page 4 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003276 EFTA00157658 KIRKLAND & ELLIS LLP June 19, 2008 Page 4 It thus is especially troubling that the USAO has not provided us with the transcript of federal interview, nor the substance of the interviews with or M. nor any information generated by interviews with any of the approximately 40 alleged witnesses that the prosecution claims it has identified. Because the information provided by these women goes directly to the question of Mr. Epstein's guilt or innocence, it is classic Brady information. We understand that the U.S. Attorney might not want to disclose impeachment information about their witnesses prior to a charge or during plea negotiations. But we firmly believe that whcn the Government possesses information that goes directly to a target's factual guilt or innocence, the target should be informed about such heartland exculpatory evidence. Most importantly, aside from whether the Department believes Brady obligates disclosure to a target of a federal investigation prior to the target's formal accusation, no such limit should apply to a Department review. Accordingly, we request that you go beneath the face of any summary provided to you by the USAO and instead review the actual witness transcripts and FBI 302s, which arc essential for you to be able to make a truly independent assessment of the strength and wisdom of any federal prosecution. After careful consideration of the record, and as much as it pains me to say this, I simply do not believe federal prosecutors would have been involved at all in this matter if not for Mr. Epstein's personal wealth and publicly-reported ties to former President Bill Clinton. A simple Internet search on Mr. Epstein reveals myriad articles and news stories about the former President's personal relationship with Mr. Epstein, including multi-page stories in New York Magazine and Vanity Fair. Mr. Epstein, in fact, only came to the public's attention a few years ago when he and the former President traveled for a week to Africa (using Mr. Epstein's airplane)—a trip that received a great deal of press coverage. I cannot imagine that the USAO ever would have contemplated a prosecution in this case if Mr. Epstein lacked this type of notoriety. That belief has been reinforced by the significant prosecutorial impropriety and misconduct throughout the course of this matter. While we describe the majority of these irregularities in another submission, two instances arc particularly troubling. First, the USAO authorized the public disclosure of specific details of the open investigation to the New York Times—including descriptions of the prosecution's then of the case and specific terms of a plea negotiation between the parties. Second, attempted to enrich friends and close acquaintances by bringing thcm business in connection with this matter. Specifically, she attempted to appoint a close personal friend of her live-in boyfriend to serve as an attorney- representative for the women involved in this case. It also bears mentioning that actions taken b present an appearance of impropriety that gives us cause for concern. former law partner is currently pursuing a handful of $50-million lawsuits against Mr. Epstein by some of the masseuses. 3505-019 Page 5 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003277 EFTA00157659 KIRKLAND & ELLIS LLP June 19, 2008 Page 5 Finally, as you know, Mr. Epstein and the USAO entered into an agreement that deferred prosecution to the State. In this regard I sim I note that the manner in which this agreement was negotiated contrasts sharply with current representation that "IV he SDF1, indicated a willin ne fer to the State the length of incarceration . . . " See Tab 1 a 1 2008 Letter from p. 2. This statement is simply not true. Contrary to assertion, federal prosecutors refused to accept what the State believed to be appropriate as to Mr. Epstein's sentence and instead, insisted that Mr. Epstein be required serve a two-year term of imprisonment (which they later decreased to 18 months plus one year of house arrest). Federal prosecutors have not only involved themselves in what is quintessentially a state matter, but their actions have caused a critical appearance of impropriety that raises doubt as to their motivation for investigating and prosecuting Mr. Epstein in the first place. At bottom, we appreciate your willingness to review this matter with a fresh—and independent—set of eyes. To facilitate your review, I once again request the opportunity to make an oral presentation to supplement our written submissions, and we will promptly respond to any inquiries you may have. Y sine ly, cc: Deputy Attorney General 3505-019 Page 6 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003278 EFTA00157660 LAW OFFICES ALLEN GUTHRIN: MCHUGH & THOMAS, PLLC GEORGE 43.GUIRRE ROSERT e. PALEN RFJXCCA A. SETTS R. IERRAKE ROCOERS CANSO IS THOMAS ONES S. ARNO° DAVOS HARDY Mt SCOTT WCKLINE PANELS I. CANINO PAMELA C. CON PINUP .S STEPKOIETTHACKER DREAMT J. ANN TERESA K. INOWSON DEBRA C PINCE 040ST OPI:ALANOlD CHRISTOPHER PENCE PETER O. rADEARY e. MoVEY CS COUNSEL DOWSE MOIJCH June 19, 2008 Mr. Senior Associate Deputy Attorney General Office of the Deputy Attorney General United States Department of Justice Dear Mr. Roth: TELEPHONE FACSRA.MIMI WRITER'S DIRECT ORR 1 write to offer my reaction to the May 15, 2008 correspondence from the United States Department of Justice Child Exploitation and Obscenity Section ("CEOS") regarding the federal investigation of Jeffrey Epstein by the United States Attorney's Office for the Southern District of Florida ("USAO").' I will refrain from recounting Mr. Epstein's arguments in detail here, but, rather, will highlight salient points responsive to the CEOS letter. In particular, I write from a background well familiar with child exploitation cases and victim/witness issues. As the CEOS letter points out (CEOS letter at p. 3), I was a member of CEOS. In fact, I served as a federal prosecutor for twelve years; five years as an Assistant United States Attorney for the Southern District of West Virginia, and seven years at CEOS. I began working as a trial attorney for CEOS in 1999, and was promoted to Deputy Chief for Litigation in 2002, and ultimately to Principal Deputy Chief for the Section in 2004. As those who have worked with me know, I have a history of working diligently on behalf of victims of crime. While at the United States Attorney's Office for the Southern District of West Virginia, I was a part of the prosecution team that prosecuted the first case in the country under the federal Violence Against Women Act. United States v. Bailey, 112 F.3d 758 (4th Cir.), cert denied, 522 U.S. 896 (1997). The case went to trial and the defendant was sentenced to life in prison. I also spearheaded the domestic violence and federal criminal child support prosecution efforts for that office, prosecuting some of the first cases in the country under the federal Child Support Recovery 1 Citations to the May IS, 2008 correspondence will be referenced herein as "CEOS letter at p. ." 3505-019 Page 7 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003279 EFTA00157661 ALLEN GUTKRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 2 Act. Later, while at the Department of Justice, I co-authored the Department's Federal Child Support Prosecution Handbook. My work at CEOS permitted me to continue my efforts on behalf of vulnerable victims of crime. While there, for example, I was part of the prosecution team in United States v. Dwight York, 428 F.3d 1325 (I I th Cir. 2005), cert denied, 548 U.S. 908 (2006). York was the leader of a pseudo religious organization, and systematically molested countless children, some as young as six years old. The case went to trial and York was sentenced to 135 years in prison. As part of that trial team, I was awarded the Attorney General's Award for Distinguished Service. Additionally, at CEOS I was one of the architects of the Innocence Lost Initiative, a nationwide initiative designed to combat child prostitution. For this, I was awarded an Assistant Attorney General's Award for Outstanding Victim/Witness Service. Likewise, I was awarded a subsequent Assistant Attorney General's Award for Special Initiative in connection with a nationwide sex tourism prosecution initiative I helped to develop. I say all this not for any boastful purpose, but, rather, to make clear that I am fully cognizant of victim issues, and that 1 am no pushover in terms of prosecution standards. I am also very well aware of the good work of CEOS, and the outstanding credentials of those who toil in that office. With all due respect to CEOS, however (and recognizing that their review of this case was quite limited), given the facts and circumstances of this investigation, a federal prosecution of Mr. Epstein simply should not be countenanced. In my view, such prosecution would be counter to the important mandate of the Department of Justice as emblazoned on its seal, "Qui Pro DominaJustitia Sequitur," referring to the Attorney General "who prosecutes on behalf of justice." As you well know, it is fundamental to that mandate that, as the representative of the people of the United States, the duty of a federal prosecutor is not simply to seek conviction as at any cost, but, rather, to seek justice. Berger v. United States, 295 U.S. 78, 88 (1935). ("The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.") While it is true that Berger was decided at the post-trial, as opposed to the pre-indictment, stage of the case, the bedrock principle contained in the above quote should transcend the entire investigation and prosecution process. Indeed, it is arguably most imperative at the investigation stage, at which point law enforcement is dealing with a presumptively innocent citizen. In summary, we understand the allegations against Mr. Epstein to be that Mr. Epstein paid individuals to find friends and acquaintances, certain of whom were under the age of IS, to provide topless massages to him at his Palm Beach home in exchange for money. Mr. Epstein's assistants allegedly scheduled these massages for him over the telephone at the direction of Mr. Epstein, allegedly including some scheduling calls to underage women. However, the evidence contradicts these allegations. First, Mr. Epstein did not ask that the masseuses be under the age of 18. To the contrary, he specifically asked that they be 18 or older. As one witness commented, "Maid tell 3505-019 Page 8 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003280 EFTA00157662 ALLEN GUTHRIE MaHIGH & THOMAS, PLLC Mr. June I9, 2008 Page 3 them you're 18 because if you're not, he won't let you in his house." at 38-39. Second, Mr. Epstein himself did not schedule such appointments. Third, Mr. Epstein would not know who would be providing a massage at any particular time. Fourth, and importantly, Mr. Epstein's assistants were not directed to contact underage women, and were not aware of the true ages of the women they contacted. In fact, more often than not, the masseuses themselves, or the individuals who introduced the masseuses, made the initial contact. As a result, Mr. Epstein and his assistants were routinely unaware of the identities of many of these young women before they arrived. The allegations further include the assertion that Mr. Epstein engaged in unlawful sexual conduct with certain underage women who arrived at his house to provide a massage. At times, during these massages, Mr. Epstein masturbated, engaged in some sexual touching, and a small number of alleged acts of penetration. However, most of the women who perfonned massages on Mr. Epstein were over the age of 18. Many of the young women have sworn under oath that they, in fact, told Mr. Epstein that they were 18 or older, and that they did so because they knew that if they were not 18 years old, they would not be allowed into Mr. Epstein's home. In fact, Mr. Epstein has passed a polygra h examination to this effect relative to the government's primary, and youngest, alleged victim, Indeed, many of the women also worked at local massage parlors, which presumably had a requirement that the masseuse have reached the age of majority. To the extent there are allegations that Mr. Epstein should have been alerted to certain underage women based on conversations he allegedly had with them, those conversations would have taken place in person and at his home, thereby precluding any prior scheduling with knowledge of their true ages. As explained below, any factual allegations of repeat massages with such persons would lack necessary elements required for a federal nexus to such conduct. All of the alleged activity occurred in Mr. Epstein's home in Palm Beach, Florida. Manyof the massages allegedly involved conduct which, even if engaged in, is not proscribed by federal law, either because the masseuses were of age, or because conduct with underage masseuses only involved topless massages, massages in undergarments or naked massages. To the extent prohibited sexual activity occurred, any inducement, enticement, and/or persuasion used would have taken place during a face-to-face encounter—thus eliminating the possibility for the commission of a federal crime, which requires the existence of a communication through a facility of interstate commerce in which the defendant persuades or entices the minor to engage in illegal sexual activity. Furthermore, any prohibited sexual activity that did occur based on the facts on the record is best left to the state to address because the facts of this case do not fall comfortably within the federal domain. This is a case about purely local activity, involving local actors, and affecting local interests and thus, should be handled by local authorities. Nonetheless, the USAO has indicated its intent to prosecute Mr. Epstein for purported violations of 18 U.S.C. §§ 2422, 2423, and 1591. However, as set forth in detail in prior submissions, the facts of this case fall squarely outside the heartland of those statutes — in fact, in law, and in congressional intent. As their plain 3505-019 Page 9 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003281 EFTA00157663 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 4 text and history indicate, these statutes were designed to address problems that are truly national and international in scope: human trafficking in § 1591; telephone or Internet sexual predation in § 2422; and sex tourism in § 2423. Unlike the alleged conduct at issue here, those problems unquestionably present multi jurisdictional obstacles that States and localities cannot confront effectively on their own. Mr. Epstcin's conduct was purely local in nature, and the State of Florida and Palm Beach County are effectively prosecuting and punishing that conduct. Although CEOS asserts, "that a prosecution of Mr. Epstein might not look precisely like the cases that came before it is not diapositive" (CEOS letter at p. 4), the fact is this case does not look awaking like those cases. The facts here do not carry any of the hallmarks that typify an appropriate federal prosecution for child exploitation as reflected in all such prior federal prosecutions. Specifically, the facts here do not can' the hallmarks for a sex trafficking or child prostitution prosecution. Mr. Epstein did not target minors. In fact, the evidence indicates just the opposite. There was no travel in interstate commerce for the purpose of engaging in illicit sexual activity. There was no prohibited use of a facility of interstate commerce. There was no commercial for profit sexual enterprise. There was no force. There was no violence. There was no use of drugs or alcohol. There was no child pornography. 18 U.S.C. § 1591 is clearly designed to combat organized rings of individuals who engage in the business of human trafficking, involving both a commercial and coercive component. As President Bush has noted: generally speaking, trafficking in persons refers to actions, often including the use of force, fraud or coercion, to compel someone into a situation in which he or she will be exploited for sexual purposes, which could include prostitution or pornography, or for labor without compensation, which could include forced or bonded labor . . . trafficking in persons is often linked to organized crime, and the profits from trafficking enterprises help fund other illegal activities. The growth of vast transnational criminal networks supported in part by trafficking in persons fosters official corruption and threatens the rule of law.2 This in no way describes the case here. Yet the USAO has been unwavering in its single minded focus to stretch the limits of these federal statutes beyond their intended use, and beyond precedent, in order to prosecute Mr. Epstein. As the CEOS letter acknowledges, the legal theories the USAO intends to attempt to pursue against Mr. Epstein are "novel," having never before been sanctioned by federal law. They should not be sanctioned now. As the Supreme Court recently pronounced, when a statutory term in a criminal statute could support both a narrow or broad application of the federal criminal law, "the tie must go to the defendant." United States v. Santos, 553 U.S. and Cuellar v. United States 553 U.S (June 2, 2008), Slip Op. at 6. 2 February 25, 2003 Trafficking in Persons National Security Presidential Directive. 3505-019 Page 10 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003282 EFTA00157664 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 5 A full and fair review of the facts here is critical to this analysis. Yet, it is clear that CEOS did not conduct such a review. In his recent letter to Jay Leflcowitz, First Assistant United States Attorney ("FAUSA") confirmed our understanding that the USAO was to have "facilitated" an "independent de novo review of the investigation" by the Department. (May 19, 2008 letter at p. 5). Yet, the CEOS review was not complete, and by its own terms not de now. As CEOS itself noted, "our review of this case is limited both factually and legally. We have not looked at the entire universe of facts in this case. It is not the role of the Criminal Division to conduct a complete factual inquiry from scratch." (CEOS letter at p. 1). Indeed, entire subject areas relevant to the inquiry were not considered at all by CEOS. In essence, CEOS was only in a position to make the most cursory possible review, an "abuse of discretion" review, without considering the facts at the necessary level of detail, and without taking into account the many and varied issues of misconduct we have raised in this case. As the CEOS letter indicates, "we did not review the facts, circumstances, or terms included in the plea offer nor any allegations that individuals involved in the investigation engaged in misconduct." (CEOS letter at p. 2). All of this begs the question — if it is not CEOS' role to "conduct a complete factual inquiry," and CEOS did not consider any of the allegations of misconduct here, which at the very least have created a strong appearance of impropriety, and, at worst evidence an intent and effort to unfairly prejudice Mr. Epstein to the financial benefit of the friends and colleagues of the prosecution team in the USAO, then where and when can justice ever hope to be served in this case? This is a prosecution burden that cannot, and should not, be brushed aside. We contend the limited nature of the CEOS review deeply affected its conclusions. For example, CEOS most likely did not review original documents, such as transcripts, and instead relied on the summaries of federal prosecutors and FBI agents, against whom we have raised serious concerns regarding misconduct. If the summary memos from the USAO are as flawed as other USAO communications have been, and which we have been able to show are misleading and inaccurate, the CEOS abuse of discretion review is likely flawed as well. Moreover, although the USAO expected, and personally promised to us, an independent review, FAUSA letter also makes clear that our pivotal legal challenge to the use of 18 U.S.C. § 2422(b) had already "been previously raised and thoroughly considered and rejected by .. . CEOS prior to" the recent CEOS review. (May 19, 2008 letter at p. 5). The fact that CEOS had to evaluate its own decision with respect to some of the allegations against Mr. Epstein prevents its subsequent review and opinion from being truly independent. Following this most recent CEOS review "limited both factually and legally," and with no citation to any case law relative to the statutes in question, CEOS concludes merely, "federal prosecution in this case would not be improper or inappropriate (CEOS letter at p. 5);" in essence, that the United States Attorney could bring this case in the exercise of his federal discretion should he so choose ("we conclude that U.S. Attorney Acosta could properly use his discretion to authorize prosecution in this case."). (CEOS letter at p. 2). However, CEOS drew the conclusion that the 3505-019 Page 1I of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003283 EFTA00157665 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 6 federal prosecution of Mr. Epstein would not be "improper or inappropriate" absent any review at all of the misconduct here, and absent a full review of the facts and law. The facts, the law, and the alleged misconduct are each necessarily inextricably intertwined with the question of whether or not this is a viable federal prosecution. These imposed limits flawed the review from the outset. In any event, CEOS concedes that the defense team makes "many compelling arguments." (CEO$ letter at p. 5). In the end, then, one is left with the impression that the CEOS review and opinion, although concluding that the USAO could push forward at its own discretion, is a much qualified one. The federal prosecution of Mr. Epstein has been a moving target from the inception. Each time the allegations, the witnesses or the applicable law is subject to a searching inquiry, we have found that the allegations have been misrepresented, the law does not apply to the actual facts here, and the USAO prosecution thcory falls apart. Yet, in the face of the voluminous evidence we have submitted in this regard, while acknowledging that the theories are "novel," and that our arguments against federal prosecution are "compelling," CEOS concluded, "Mr. Acosta could rightfully conclude that this federal issue is best resolved by a jury" and that "the USAO has a good faith basis to fully develop the facts on this issue and brief the law to permit a court to decide whether the law appropriately reaches such conduct." With all due respect, and recognizing that CEOS may be — and apparently was — limited in its authority, it should not be the prerogative of the prosecution arm of the United States government to simply roll the dice, and let the court system just sort it out when dealing with the life and liberty of a United States citizen. The Department of justice should not be so cavalier when labeling someone as a child molester. While it may be within the discretion of the USAO to do so, it is not in accord with the principles of justice. Indeed, as noted, just a few weeks ago, the Supreme Court underscored this point in Santos and Cuellar. The Court made clear that prosecutorial discretion does not provide the USAO cart blanche to expand criminal statutes as they seek to do here with complete disregard for congressional intent. The Court rejected speculation as a basis of determining the scope of a criminal statute; "probability is not a guide which a court, in construing a penal statute, can safely take." Slip op. at 7, quoting United States v. WiltberKer, 5 Wheat. 76,105 (1820). "We interpret ambiguous criminal statutes in favor of defendants, not prosecutors." Slip op. at 12. Based on my experience, I believe that the facts here do not warrant a federal child exploitation prosecution. At its core, this case is quintessentially a state concern as opposed to implicating any federal interest. Indeed, the Florida State Attorney's Office ("SAO"), led by the chief of the Scx Crimes Division, thoroughly investigated this matter, and presented it to the grand jury. The facts, as opposed to the deeply flawed press reports, were carefully assessed by experienced State prosecutors who aggressively enforce State criminal laws. Following an extensive 15-month State investigation, Mr. Epstein was indicted by a State grand jury on a single felony count of solicitation of prostitution. During the investigation, the State prosecutor exhaustively reviewed the evidence, met face- to-face with many of the alleged victims, considered their credibility — or lack thereof — and 3505-019 Page 12 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003284 EFTA00157666 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 7 considered the extent of exculpatory evidence, including a psychosexual evaluation of Mr. Epstein and a polygraph examination demonstrating that Mr. E stein genuinely believed at the time of the alleged conduct that the State's key witness ) was over the age of IS. Then, after months of negotiations, the State reached what it believed was an appropriate resolution of the case. Importantly, this resolution was consistent with that of cases involving other defendants who had engaged in similar conduct. Implementation of the State resolution of the case was held in abeyance, however, due to the unexpected commencement of the successive federal criminal investigation. While it is true, as CEOS points out, (CEOS letter at p. 3) that many criminal prosecutions turn on issues of credibility of witnesses, to which many members of the defense team can attest (having had decades of federal criminal litigation experience among us), this does not serve to divest the prosecutor of his/her duty to make a searching inquiry of the facts before using the power of prosecution, and the weight of the United States government, to level serious accusations. CEOS likewise acknowledges as much, "the prosecutors are in the best position to assess the witnesses' credibility." (CEOS letter at p. 3). Since the CEOS letter also singles me out as someone who should be familiar with witness issues, I feel compelled to note that, of course, lam well aware that it is not uncommon for witnesses to give conflicting statements. I am also fully aware that the credibility of key government witnesses may be strongly impacted by the $50 million incentive provided via the civil lawsuits at play, and encouraged by the overnment here. 3 I have also read many of the conflicts between witness testimony and own rendition of that testimony in his reports and/or search warrant affidavit. apparently formed a view early on as to the purported criminality of Mr. Epstein's conduct regardless of the mountain of evidence to the contrary. For a prosecutor that has had an opportunity to review the full facts, and to meet with the witnesses, however, "conflicting statements" cross the line to a "lack of credibility" that simply can not sustain a prosecution. That is where an appropriate application of prosecutorial discretion must be brought to bear. Again, CEOS was not itself in the position to exercise such discretion. By its own admission, CEOS did not make a full review of the witness statements here, and CEOS certainly did not sit down across the table and speak to these witnesses. We understand that was apparently not its perceived role. But, CEOS should recognize that at least one prosecutor in this case — the Chief of the SAO Sex Crimes Division has done so. Lana Belohlavek not only met with and interviewed these witnesses during the course of the 15-month state investigation prior to any federal involvement, but she again sat across the table from many of them in connection with recent civil 3 It is important to note here that this investi ation was launched not u n the complaint of an alle ed victim, but, rather, upon the complaint of father and her stepmother, More Hardly pillars of credibility. Yet, the USAO did not supply this information to the defense. Even more telling is the fact that filed a lawsuit purportedly on behalf of his daughter without her authority or knowledge. 3505-019 Page 13 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003285 EFTA00157667 ALLEN GUTHRIE McHucti & THOMAS, PLLC Mr. June 19, 2008 Page 8 0 depositions in this matter. Ms. Helohlavek, and the SAO, is likewise well familiar with the breadth of the federal investigation, and has integrated that knowledge into the current enhanced state sentencing recommendation. The SAO remains firm in the position that the proposed state resolution is a sound one, and that there was no child exploitation here. Notably, however, not once during the pendency of the federal investigation has the USA° ever reached out to its state prosecutive counterpart that initiated this investigation in the first place to discuss the issues or to thoroughly ferret out the facts or the witness credibility issues. In the eight lines the CEOS letter accords to the topic of witness credibility CEOS asserts, "there are multiple mutually-corroborating witnesses," (CEOS letter at p. 3). However, the CEOS letter does not highlight a single one. In contrast, we have put forth numerous "mutually corroborating" witness statements. Far from supporting a federal prosecution, these statements instead corroborate that I) the alleged victims lied to Mr. Epstein about their age; 2) there was no use of a facility of interstate commerce by Mr. Epstein; 3) there was no inducement or coercion; 4) there was no commercial enterprise; and 5) there was no illicit sexual conduct. Indeed, Mr. Epstein took several steps to ensure that no minors entered his home most notably, by affirmatively asking the women whether they were actually 18. age., . At 38-39. That fact — which many of the potential witnesses have confirmed in sworn interviews — strongly indicates that Mr. Epstein specifically intended to preclude an ne under 18 from giving him a massage. That fact is confirmed by, among other things, testimony that "he likes the girls that are between the ages of like 18 and 20 . . . ." Tr. at 12. In fact, the evidence bears out that the majority of the women who came to Mr. Epstein's residence to provide a massage were over 18. Many of the young women who were aged 16 and 17 visited Mr. Epstein's residence only once or twice, and the evidence strong] shows that the lied to Mr. Epstein about their age. Two of these individuals, and , were 14 and 15 at the time the met Mr. Epstein. Given that each has brought a civil lawsuit against Mr. Epstein, with and her family seeking from Mr. Epstein, their testimony against Mr. Epstein is per se suspect. But, despite their obvious incentive to harm Mr. Epstein their testimony actually confirms his innocence. for instance, has testified that , who introduced her to Mr. Epstein, expressly told her to lie to Mr. Epstein about her age. Q: And told you that if you weren't 18 Epstein wouldn't let you into his house, right? A: That's — yes, yes. . (deposition) at 32. Q: You didn't want Mr. Epstein to know that you were lying about your age, right? 3505-019 Page 14 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003286 EFTA00157668 ALLEN GUTHRIE McHum & THOMAS, PLLC Mr. June 19, 2008 Page 9 A: Correct. Q: You didn't want Mr. Epstein to know that you were not 18 yet, right? A: Correct. (deposition) at 36. In fact, told Mr. Epstein that she was 18 years old, and confirmed this fact with Palm Beach Police. Id. at 36. Beyond that, "swore on her mother's grave" that she and Mr. Epstein did not engage in sex of any kind. . (deposition) at 24. Shc further repeatedly explained that prior to the time she went to Mr. Epstcin's house (she went there only once), nobody ever tried to coerce her to en e in sexual activity with Mr. Epstein. Not over the telephone, not over the Internet, not at all. . (deposition) at 31.32. These arc not facts upon which a federal case can stand. age was also unknown to Mr stein when she went to his home. who was introduced to Mr. Epstein by , testified in her federal sworn interview that . told her to lie to Epstein. s$ce Tr. at 8 ("she just said make sure you're 18 because Jeffrey doesn't want underage girls") (emphasis added). testimony strongly suggests that M. lied to Mr. Epstein about her own age as well. also self represented that she worked at a local massage parlor that presumably required a minimum age. The conduct of is likewise illustrative of "mutuall y corroborating" testimon whi the fact that this is not an appropriate federal case. In the same way that was referred to Mr. r stein and brought to his home without having been introduced or acquainted in any manner, Ill. was referred by someone else, , who also told her to lie to Mr. Epstein about her age, which she did. MI Tr. at pp. 8-9). CEOS seeks to buttress the USAO prosecution by asserting "it is possible to satisfy that element [proof of specific intent as to the age of the alleged victims] with proof that the defendant was deliberately ignorant of facts which would suggest that the person was a minor." (CEOS letter at p. 2). Such assertion is counter to the law and to the facts. Reliance on a deliberate ignorance standard as to any of the three statutes in issue requires the factual predicate of an intent not to learn of an incriminating fact. This is the antithesis of the factual context of this case where there is repeated proof that the minors believed that they had to lie because Mr. Epstein had an actual practice of attempting to verify age, and would not let them in his house if they were under the age of 18. See United States v. Kennard, 472 F.3d 851, 857-858 (1 3'Cir. 2006), quoting, United States v Puche, 350 F.3d t 137, 1149 (11th Cir. 2003) (An instruction on deliberate ignorance is appropriate only if it is shown [among other things] ... that the defendant purposely contrived to avoid learning 3505-019 Page 15 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003287 EFTA00157669 ALLEN GUTHRIE MdtlucH & THOMAS, PLLC Mr. June 19, 2008 Page 10 of all of the facts in order to have a defense in the event of a subsequent prosecution."). Thus, the facts preclude reliance on the concept of deliberate ignorance as a substitute for proof. The fact that the search warrant affidavit in this case is rife with mis-statements and omissions regarding the key element of age is critical. However, CEOS concludes with no apparent supporting analysis, "despite the numerous factual errors you describe, the U.S. Attorney's Office could still plausibly argue that the mistakes - whether inadvertent or intentional - were not material to the determination ... ." (CEOS letter at p. 3). Although, as CEOS notes, there are "numerous" such misrepresentations, through affirmative statement or intentional omission, a focus on but one of those mis resentations highlights that such misrepresentations were, in fact, material. The fact is that grossly misrepresented Mr. Epstein's intent as it related to the age of the women he permitted entry to his residence. In the search warrant affidavit, affirmed that claimed: (Mr. E stein told her the younger the better. And, stated she once tried to bring a 23 year old female and Epstein stated that the female was too old. What no doubt intentionally, omitted was I furtherexplanation, which rendered Mr. Epstein's comments innocuous: A: Let me put it this way, he — I tried to bring him a woman who was 23 and he didn't really like it. Q: He didn't go for it? A: It's not that he didn't go for it. It's just that he didn't care for it. And he likes the girls that are between the ages of 18 and 20. Statement at 12) (emphasis added). Had that critical information, information that turns allegedly illegal conduct into more innocent conduct, been included, it would have seriously undermined the probable cause for the search warrant. Similarly, and equally problematic, did not include the many statements demonstrating that, when asked by Mr. Epstein, the women affirmatively misrepresented their ages as bem 18, and/or that Mr. E stein was not aware of their true ages. Indeed, although did note that told Mr. Epstein that she was 18, he omitted from the affidavit the key point as to why she lied: 3505-019 Page 16 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003288 EFTA00157670 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page II said tell him you're 18 because if you're not, he won't let you in his house. So I said I was IS. As I was giving him a massage, he was like how old are you. And then I was like 18. But I kind of said it really fast because I didn't want to make it sound like I was lying or anything. . at 38-39. Thus, consistent with the guidance provided in Franks v. Delaware, 438 U.S. 154 (1978), the search warrant affidavit in this case reveals knowing and reckless falsehoods and omitted material information. This is precisely the type the United States Supreme Court sought to guard against. The age of the alleged victims, and of Mr. Epstein's intent in that regard, is an clement of the crimes that must be proven in order to sustain a conviction. In particular, § 2422(b) requires that the defendant specifically intended to target a minor. ke,ligh, United States v. Murrell, 368 F.3d 1286 (11th Cir. 2004) ("[T]o prove an attempt the government must first prove that [defendant], using the Internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex.") (Emphasis added). Section 2422(b) expressly requires that the crime be committed "knowingly," and that requisite mental element applies as to each element of the crime. United Slates v, XCitement Video, Inc., 513 U.S. 64, 68.69 (1994); United States v. Meek, 366 F.3d 705, 718 (9lh Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (111h Cir. 2002); United States v. J3ailey 228 F.3d 637, 638-639 (6'h Cir. 2000). How, then, could the USAO "plausibly argue" that a misrepresentation about an element of the crime could be viewed as "not material"? If the elements of the alleged crime are not met, there is no probable cause to sustain the search warrant in the first instance. If the elements are not met, there is no federal crime. That is material. Moreover, it is clear from the plaint text of the statute that the statutorily proscribed act pursuant to 18 U.S.C. §2422(b) is the actual use of a facility of interstate commerce to persuade, entice, induce, or coerce. "The underlying criminal conduct Congress expressly proscribed in passing §2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g., with himself or a third party) without then committing any sex act himself, he would nevertheless violate §2422(b)." United $tateAys_Murrgl1, 368 F.3d 1283, 1286 (11th Cir. 2004). See also, United States v. Bailey, 228 F.3d 637, 639 (6`11 Cir. 2000) ("Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves."). Thus, if there has been sexual misconduct (which we deny) without the requisite persuasion, there is no violation of this federal law. The investigation and testimony in this case makes clear that Mr. Epstein did not use any facility of interstate commerce to commit any act forbidden by 18 U.S.C. § 2422(b)—to persuade, ind is coerce--nor did he direct any of his assistants to do so. Indeed, by way of example, was clear on this point at her deposition during which she repeatedly testified that nobody—not Mr. Epstein or any of his assistants—ever used th phone in any way to try to persuade her to engage in sexual activity with Mr. Epstein. . (deposition) at 31.32. Nonetheless, even assuming, arguendo, that persuasion to engage in sexual conduct occurred over 3505-019 Page 17 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003289 EFTA00157671 ALLEN GUTHRIE McHucif & THOMAS, PLLC Mr. June 19, 2008 Page 12 the telephone (which we deny), it is black letter law that the mens rea must coincide with the actus reus. Thus, the government must prove that Mr. Epstein has the specific intent to target a known minor to engage in prohibited sexual activity as the time of the call. We have seen zero evidence of this. To the extent Mr. Epstein later may have persuaded a particular individual to engage in unlawful sexual activity during a massage, such persuasion occurred face to face, and can not work retroactively to render the earlier phone call an offense under the statute. As to the purported violation of 18 U.S.C. § 2423 for allegedly traveling in interstate commerce for the purpose of engaging in illicit sexual activity, CEOS does not deny that Mr. Epstein was returning to one of his residences when he traveled to Florida.° CEOS explicitly stated it "fully understand[s] our argument" (CEOS letter at p.2) that Mr. Epstein should not be charged under § 2423(b) because the dominant purpose for his traveling to Palm Beach was not to engage in illegal sexual activity, but to simply return to one of his residences. Rather, this is apparently another "compelling" point of law which may be left to "a court to decide whether the law properly reaches such conduct." (CEOS letter at p. 2).5 Notably, implicit in this concession by CEOS is that the law has never before been so applied, that is, there is no precedent for a court to extend the statute as the USAO seeks to do here. In fact, the United States Supreme Court prohibited the criminalization of travel under identical circumstances over a half century ago. Sce, Mortenson v. United Stalo, 322 U.S. 369,374 (1944) (intention to engage in proscribed conduct must "exist before the conclusion of the interstate journey and must be the dominate motive of such interstate movement." (Emphasis added.) Beyond an absence of proof regarding the travel element in connection with 18 U.S.C. §2423, the requisite age requirement for a violation of that statute is important. 18 U.S.C. §2423, by reference to Chapter 109A (18 U.S.C. §2423(f)(1)), specifically defines a minor for purposes of that statute as an individual who has not attained the age of 16. If an alleged victim is 16 years of age or older, a violation of this statute pursuant to 2423(0(1) can only occur if it can be proven that force, threat or drugs were involved. See, 18 U.S.C. §§ 2241 et seq. There are no such allegations here. As a result, in order to find a violation under 18 U.S.C. § 2423, the United States would have to prove that Mr. Epstein engaged in one of the sexual acts defined at 18 U.S.C. § 2246(2) with an individual under the age of 16, and that he formed the intent and dominant purpose to do soprior to the time he made a return trip to Florida. Again, there is no such evidence here. has specifically testified that I) she never engaged in sexual activity with Mr. Epstein; 2) she never even met or talked to Mr. Epstein prior to her arrival at his house; and 3) she lied about her age not only to Mr. Epstein, but, in fact, to the world on her MySpace page when she said that she was 18 years old. It is, then, also worth noting in this regard that 18 U.S.C. §§2243(c) provides an affirmative defense if proven by a preponderance of the evidence if Mr. Epstein reasonably believed that was 4 In addition to his residence there, Mr. Epstein also has several businesses, and personal matters and contacts to which he attends in Florida. For example, beginning in 2002, Mr. Epstein visited his mother nearly every weekend in Palm Beach until she passed away in April, 2004. 5 As previously set forth herein, and as more fully explained in other submissions related to this case, the recent Supreme Court decisions in &mos and gkellgi make this attempted stretch of the law improper. 3505-019 Page 18 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003290 EFTA00157672 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 13 had attained the requisite legal age. Finally, although 18 U.S.C. §2423(0(2) also defines "illicit sexual conduct" as any commercial sex act with a person under the age of IS, 18 U.S.C. §2423(g) also provides a specific affirmative defense as to that age element if proven by a preponderance of the evidence that Mr. Epstein reasonably believed that the young women had attained the requisite legal age. As we have demonstrated, time and again the women involved lied to Mr. Epstein as to their true age, representing that they were, in fact, over the age of 18. Many of them also represented that they worked at local massage parlors, which presumably would have imposed a legal age requirement. Lastly, in contrast to 18 U.S.C. §1591, Mr. Epstein's conduct did not involve trafficking of women or children in the sex industry, and was not part of any phenomenon that, in the aggregate, had an economic impact on interstate or foreign commerce. Additionally, Mr. Epstein did not benefit financially from the alleged conduct. Therefore, as the SAO determined, and still believes, Mr. Epstein was a customer, a "John" for whom prosecutions are best left to the State to address. Indeed, there is no reported precedent extending federal law to a local "John" who does not violate the child exploitation statutes. Indeed, CEOS does not point to a single case where federal prosecutors have used § 1591 in a case involving facts like these. Instead, every § 1591 prosecution has involved national or international sex trafficking and/or for-profit prostitution rings, involving the knowing use of minors and/or forcible coercion, or forcible rape, physical abuse or intimidation. These arc the elements required by the statute, and they are not met here. Although CEOS could, perhaps, point to United Slat% v. Evans, 476 F.3d 1176 (11°' Cir. 2007) as a case that, standing alone, involved wholly intrastate conduct, the facts of that case are far different in key respects than this one. The Evans case involved both the commercial and coercive components that Congress, and administration policy statements intended in 18 U.S.C. § 1591 prosecutions. Evans, and his co-conspirators (Madison and Yeasty) were not "Johns." They operated a for profit prostitution ring marked by control of, and extreme violence toward, the victims, who they knew were underage. Indeed, Evans forced one such victim, age 14 years old, to continue to work even after she had been hospitalized with AIDS. As part of their business, Evans and his co-conspirators provided the victims with cell phones, hotels, and condoms, and the victims were forced to give all of their money from this prostitution ring to Evans and his co-conspirators. None of this type of activity comes close to the facts regarding Mr. Epstein. Finally, but significantly, the prostitution ring in Evans was not, in fact, entirely intrastate as the companion cast of one of the Evans co-defendants makes clear. See, United States v. Madison, 477 F.3d 1312, 1313-1314 (11th Cir. 2007) (Jane Doe 42 stated that she traveled to Atlanta, Georgia with Madison to work as a prostitute). Thus, courts, including the Eleventh Circuit in Evans, have underscored the point that § 1591 simply is not intended to cover the kind of alleged conduct at issue here. "Section 1591 does not criminalize all acts of prostitution (a vice traditionally governed by state regulation). Rather, its reach is limited to sex trafficking that involves children or is accomplished by force, fraud, or coercion." United States v. Evans 476 F.3d at 1179 n. 1. Sec aho United States v, Sims, 171 Fed. 3505-019 Page 19 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003291 EFTA00157673 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. June 19, 2008 Page 14 Appx. 849, 2006 WL 14581 at *3 (11t Cir. 2006) (to establish Sims's guilt on the sex trafficking of a minor count, the government had to show that Sims benefited financially from Owen's sexual activity and that Sims knew that (a) force or cocrcion would be used to cause Owens to engage in a criminal sex act or (b) that Owens was under the age of 18.) (emphasis added). Again, none of these factors is present in this case. The Eleventh Circuit's interpretation of the statute makes perfect sense: were § 1591 not limited in this fashion, it would threaten to criminalize a host of localized behavior that has nothing to do with human trafficking, and, thus, is of no valid federal interest. In sum, to accord discretion to the USAO, albeit without benefit of the requested full de novo review, to exercise authority to pursue a prosecution which involves a "novel" application of three federal statutes in the face of numerous "compelling arguments" is not warranted, as it is not supported by the facts, the law, or justice. Echoing the admonition of the Supreme Court in the Berger decision, the Comment to Rule 3.8 of the Rules of Professional Conduct (Special Responsibilities of a Prosecutor), says it best "A prosecutor has the responsibility of a minister of justicc and not simply that of an advocate. This responsibility carries with it specific obligations to see that a defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." This is a responsibility that can not be taken for granted. The government bears the burden of assuring that it possesses sufficient evidence to prove each element of a crime with respect to some specific victim before publicly branding Mr. Epstein a child molester. In this case, however, the USAO has not mct its burden for any victim for any of the crimes alleged. It is not enough to simply gloss over the required proof, and rely on the jury or the court to just sort it all out in the end. The stakes arc too high. As a result, the USAO should not be permitted to pursue an unfounded federal criminal case against Mr. Epstein under the guise of prosecutorial discretion. Such prosecution in this case necessarily would appear to be selective to Mr. Epstein. To be clear, our request that Mr. Epstein should not be prosecuted federally would not permit him to go completely unpunished, but, rather, would simply place him in the same prosecution position as others similarly situated. Therefore, we continue to believe that after a complete, de novo, and independent review, the only appropriate conclusion will be that this case is best left to the state to resolve. „5:Feiz sz_ Very trul yours, STEPHANIE D. THACKER SDT/kdt Enclosures 3505-019 Page 20 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003292 EFTA00157674 KIRKLAND & ELLIS LLP Response to Letter by FAUSA Dated May 19, 2008 In a Ma 19 2008 letter to Jay Lefkowitz (See Tab 1), SDFL First Assistant U.S. Attorney provided what purported to be a summary of the events that have occurred during the investigation of Mr. Epstein. letter is fraught with inconsistencies, false and misleading characterizations and outright falsehoods. The comparison below between the false assertions in letter and what actually transpired is only the tip of the iceberg. We respectfully submit that letter alone demonstrates the degree to which the record of facts have been distorted and these distortions have permeated this unprecedented investigation. 1. "INDEPENDENT" AND "DE NOVO" REVIEW. Letter: • "[Me obliged your request for an independent de novo review of the investigation and facilitated such review at the highest levels of the Department of Justice. " Tab 1, May 19, 2008 Letter from p. 5, 1 3. The Truth: • CEOS' review, concluded in May 2008, was neither independent nor de novo. o CEOS' review was not "independent:" • who conducted the review on behalf of CEOS, had already reviewed the prosecution memo on this matter eight months earlier. During a meeting with defense counsel at the United States Attorney's Office in Miami (the "USAO") in September of 2007, he opined that he so believed in the prosecution that he "would try the case myself" • Indeed, Mr. acknowledges that Mr. opined on this matter, stating: had previously This particular attack on this statute [18 U.S.C. § 2242(b)] had been previously raised and thoroughly considered and rejected by . . . CEOS prior to the execution of the [Deferred Prosecution] Agreement [in September 2007]. Id., p. 5 (emphasis added). • The statute Mr. referred to (§ 2422(b)is the Epstein investigation. Thus, according to Mr. , Mr. was tasked with reviewing his own prior decision regarding applying the key statute under which the SDFL proposed prosecuting Mr. Epstein. 3505-019 Page 21 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003293 EFTA00157675 KIRKLAND & ELLIS LLP • The defense immediately raised concerns regarding the non-independence of the review when told that it would be Mr. tasked with providing the review, but was told that when Mr. rendered his prior opinion, "he was not really up to speed on the facts" o CEOS' review was not de novo: • B letter dated May 15, 2008 (four days before letter), Mr. advised Mr. Lefkowitz that CEOS reviewed the matter only for abuse of discretion: ITJhe question we sought to answer was whether U.S. Attorney Acosta would abuse his discretion if he authorized prosecution in this case. See Tab 38, May 15, 2008 Letter from p. 1 (emphasis added). See also, id., p. 2 ("Mr. Acosta would not be abusing his discretion if he decided to pursue such a course of action."); and p. 5 ("Mr. Acosta would not be abusing his prosecutorial discretion should he authorized federal prosecution of Mr. Epstein:). • For the factual record of its "abuse of discretion" review, CEOS relied on the very same prosecution memo that it had already reviewed in rendering its prior opinion, stating: As you know, our review of this case is limited, both factually and legally. We have not looked at the entire universe of facts in this case. See Id., p. 1 (emphasis added). • Nor did CEOS review any facts related to the irregular provisions in the Deferred Prosecution Agreement or the numerous complaints of prosecutorial misconduct, both of which are inextricably intertwined with the impropriety of the investigation. Id. at 1. 2. NOTIFICATION OF WITNESSES. Letter: • Mr. dismissed the totality of the defense's objections to the inappropriate notification the SDFL proposed to send to its witnesses, stating merely that: "(Y]ou objected to victims['] being notified of time and place of Epstein's state[-]court sentencing hearing." 2 3505-019 Page 22 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003294 EFTA00157676 KIRKLAND & ELLIS LLP See Tab 1, May 19, 2008 Letter from , p. 4, U I. The Truth: • The defense engaged in days of negotiation and made 14 sevaratc substantive objections to the unprecedented notification letter that Mr. threatened to send to an undisclosed list of "victims." The eventual transmission of this highly misleading letter was only halted by an appeal to AAG Among those substantive objections (which related to far more than the "time and place" of the state's sentencing hearing) were: o Sending the letter would contravene the government's commitment to take no position regarding potential claims of goveniiiivitncsses. See Tab 39, November 28, 2008 Email from J. Lelkowitz tom . o The letter cited to an inapplicable statute (the Justice for All Act of 2004) as its justification for being sent. Id. AUSA Acosta later conceded that the citation to this statute as a justification was wholly incorrect. o The letter wrongly advised all recipients that Mr. Epstein would be required to register as "a sexual predator for the remainder of this life." o The letter amounted to an invitation to civil litigation against Mr. Epstein, advising recipients that they had the right to seek civil damages from Mr. Epstein, and in an underlined instruction, stated that if they chose an attorney other than the one chosen by the government thcy would be required to pay his fees, but if they chose the government's choice, Mr. Epstein would be required to pay the fees. 3. MISCHARACTERIZATION OF OUR ARGUMENTS. Letter: • letter misleadingly characterizes our substantive defense of the government's investigation as, "the investigation merely produced evidence of relatively innocuous sexual conduct with some minors who, unbeknownst to Mr. Epstein, misrepresented their ages." See Tab 1, May 19, 2008 Letter from p. 2. The Truth: • We never made such a claim. To the contrary, we argued that sworn statements we have taken of the alleged victims demonstrate that law enforcement has presented versions of their testimony that are necessarily sensationalized and fictionalized. We presented 3 3505-019 Page 23 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003295 EFTA00157677 KIRKLAND & ELLIS LLP evidence that Mr. Epstein routinely and daily receives massages from adults. Only a small percentage of the masseuses turned out to be minors. The majority of those minors interviewed by law enforcement admitted to lying directly to Epstein about their ages (not "unbeknownst to Epstein"), and inventing further false details to substantiate their lies. Indeed, the civil attorney for several of these women admitted at his recent press conference that they lied to Mr. Epstein about their ages. Numerous witnesses testified that Mr. Epstein asked that all masseuses be over the age of 18. Further, the evidence is undisputed that Mr. Epstein's assistants scheduled the massages and Mr. Epstein did not know which masseuses his assistants had scheduled on a particular day, until the massage took place. We admitted that there was sexual conduct, and argued----not that it was "innocuous" as Mr. alleges—but that it was mostly Mr. Epstein's own self- pleasuring, which did not satisfy the requisite federal element of criminal sexual conduct (which is in turn, defined by state law). These are important distinctions and show that Mr. has misrepresented the record about the most basic part of our defense. 4. DEMANDS AN UNREALISTIC DEADLINE TO COMPLY WITH AN AGREEMENT HE UNILATERALLY MODIFIES. Letter: • "Unless [Mr. Epstein] complies with all of the terms and conditions of the [Deferred Prosecution] Agreement, as modified by the United States Attorney's December 19, 2007 letter to Ms. Sanchez by close of business on Monday, June 2, 2008, the SDFL will elect to terminate the Agreement." Id., p.1 The Truth: • The Deferred Prosecution Agreement was never modified by U.S. Attorney Acosta's December 19, 2007 letter. Oddly, Mr. acknowledges this on page 4 of his May 19 letter, where he writes that Mr. Acosta "proposed" this modification and that "[Mr. Lefkowitzj rejected these proposals." Thus, Mr. is threatening to terminate the Deferred Prosecutionaniement, unless Mr. Epstein complies with a unilateral modification that Mr. concedes was never agreed to by defense counsel. • Orchestrating the information, plea and sentencing requirements of the Deferred Prosecution Agreement within the extremely limited two-week tirneframe imposed by June 2, 2008 deadline would have been difficult enough. • More importantly, as explained below, the SDFL has refused to provide the defense with information it requires to enable Mr. Epstein to comply with the additional plea and sentencing requirements of the Deferred Prosecution Agreement (let alone, by the June 2 deadline arbitrarily imposed by Mr. o The Deferred Prosecution Agreement requires Mr. Epstein to plead guilty to and be sentenced for an additional offense which requires that he be registeriiiiii sex offender. In different places in his May 19, 2008 letter, Mr. 4 3505-019 Page 24 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003296 EFTA00157678 KIRKLAND & ELLIS LLP describes the additional chargc to which Mr. Epstein is required to plead guilty under the Deferred Prosecution Agreement as "procurement of minors to engage in prostitution" or "solicitation of minors to engage in prostitution." The former is an offense for which Mr. Epstein would be required to register, but one for which the state has no evidence to charge Mr. Epstein and the SDFL refuses or is unable to provide evidence that it claims it has. The latter requires no registration, but it is the offense which, over and over again, insisted upon including in the Deferred Prosecution Agreement, and is one which the State believes is appropriate. The inconsistency between the description of the offense required by the SDFL, the elements of an offense that can be justified on the facts of this case and the SDFL's requirement that the offense be a registrable one has created substantial confusion. o As a result of this confusion, in December 2007, both the defense and the state requested that the SDFL provide the factual allegations to enable Mr. Epstein and the State to create a truthful factual recitation of a registrable offense required by the Deferred Prosecution Agreement, but, to date, the SDFL has failed to do so without any explanation. • Mr. refuses to provide the requested factual allegations, which the State cannot furnish, and now demands a two week deadline to comply. Thus Mr. has unreasonably imposed a deadline with which he himself has made it impossible for Mr. Epstein to comply. 5. WAIVER OF APPEAL TO ASSISTANT ATTORNEY GENERAL Letter: • "[T]he SDFL provided you with 30 da to appeal the decision to the Assistant Attorney General of the United States ' and "you chose to forego an appeal to AAG Id., p. 2. The Truth: • Mr. Acosta tolled an August 17 deadline, acknowledging that there were "serious issues" about the case that needed to be discussed, and scheduled a meetin with the defense for September 7, 2007. At the September 7, 2007 meeting, with in attendance, the government dismissed the defense's objections and set a September 21, 2007 deadline to finalize a non-prosecution agreement or the defense would face an already-drafted 53-page indictment, purportedly identifying 40 minors, with a guideline range of 188 months. • Facing threatened draconian indictment, without the claimed offer of the right to raise objections in an appeal to AAG =, the defense chose to negotiate an 5 3505-019 Page 25 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003297 EFTA00157679 KIRKLAND & ELLIS LLP Agreement to Defer Prosecution to the State, an agreement without precedent and fraught with substantial practical and legal hurdles to its implementation. 6. THE SDFL DID NOT DEFER TO THE STATE. Letter: • "[T]he SDFL indicated a willingness to defer to the State the length of incarceration." Id., p. 2. The Truth: • The SDFL neither deferred to the State, nor even discussed with the State, the Mt.ri ein's incarceration. In a letter to the defense, Criminal Division Chief, rejected the sentence contemplated by the State's plea agreement, writing that "thc federal interest will not be vindicated in the absence of ili ovzear term of state imprisonment." See Tab 40, August 3, 2007 Email from B. Of course, this position is contrary to Section 9-203ID of the U.S. Attorney's Manual (indicating that the "result" of a state prosecution is 'presume d ' to have vindicated the federal interest). It is understandable, therefore, that Mr. might want to retreat from it now. Indeed, the final Deferred Prosecution Agrcement (DPA) restricts the state-court judge from exercising any of his rightful discretion and to specifically prohibit the judge from offering probation, community control or any other alternative in lieu of incarceration. DPA, 1 2(a). 7. SUGGESTION OF ADDITIONAL STATE PLEA Mr. 's Letter: • The parties considered: "as suggested by [the defense], a plea to state charges encompassing Epstein's conduct." See Tab I, May 19, 2008 Letter from , p.2, 2. The Truth: • It was the government, and not the defense that suggested a plea to state charges to resolve the federal investigation. proposed declining prosecution in favor of the state. Although Mr. Epstein and the State Attorney's Office had already reached a plea agreement, in August 2007, Mr. and AUSA warned that they intended to prosecute Epstein federally unless his counsel (i.e., not the Attorney's Office) sought more stringent conditions to the State's proposed plea agreement. These stringaitc,onditions included, among other things, the two-year prison term demanded by Mr. (discussed above) and a charge requiring him to register as a sex offender. 6 3505-019 Page 26 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003298 EFTA00157680 KIRKLAND & ELLIS LLP 8. ALL IDENTIFIED VICTIMS BE PUT IN SAME POSITION AS IF EPSTEIN HAD BEEN TRIED. Letter: • "The Agreement provides for a method of compensation for the victims such that they would be placed in the same position as if Epstein had been convicted of one of the enumerated offenses set forth in Title 18, United States Code Section, 2255." Id. The Truth: • Mr. continues to mischaracterize the highly irregular provisions of the Deferred Prosecution Agreement. The SDFL did not merely attempt to preserve the compensation rights of those it identified as victims; it attempted to create compensation rights for those it identified, without imposing on them the burden of proving that they were in fact victims under § 2255. o In the Deferred Prosecution Agreement, the SDFL required Mr. Epstein to waive the right to contest liability under 18 U.S.C. § 2255 as to a list of individuals that the SDFL would not disclose to Mr. Epstein until after he was sentenced and to pay for an attorney to secure compensation under § 2255 for those undisclosed individuals, or if they decided to sue Mr. Epstein. o § 2255 ordinarily provides individuals with a right to recover minimum guaranteed damages of $150,000, without having to prove actual damages, only if: (1) they were victims of an enumerated federal offense, including offenses under 18 U.S.C. §§ 2422 and 2423, (2) they were minors at the time of the offense, and most importantly (3) they were personally injured as a result of the offense. o The defense has confirmed examples of women who testified that they were not victims of Mr. Epstein and suffered no personal injury. These women were, nevertheless, on the list of "victims" identified by the government.. In fact, when confronted with the testimony of a women who denied both being a victim and incurring personal injury, actually acknowledged such testimon To .usti inclusion of that woman on the government's list, however, El then challenged her own witness's credibility. • For this reason, it is false to state that these "identified" individuals are in the same position that they would have been had Epstein been convicted at trial. Had there been a trial, Mr. Epstein would have had a right to confront thcsc individuals through cross- examination. Any individual that did not establish that she was a minor victim of conduct that satisfied each clement of an enumerated statute under § 2255,or that she suffered personal injury, would not qualify for any treatment under § 2255. However, under the Deferred Prosecution Agreement, as an "identified individual" on the government's list, 7 3505-019 Page 27 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003299 EFTA00157681 KIRKLAND & ELLIS LLP this same individual would nevertheless be entitled to engage an attorney paid for by Mr. Epstein to recover $150,000 of damages from Mr. Epstein under § 2255 without ever alleging any injury. In fact, the defense was told that the only question Mr. Epstein would be permitted to ask before paying the girls is " have you ever met Epstein.". Thus, the Deferred Prosecution Agreement places identified individuals in a far better position than they would be in if Mr. Epstein were convicted at trial. 9. ASSIGNMENT OF RIGHT TO SELECT LEGAL REPRESENTATIVE. Letter: • "Prior to any issues arising concerning the implementation of the 2255 provision, the SDFL unilaterally agreed to assign its responsibility to select the attorney representative for the alleged victims to an independent third-party." See Tab 1, May 19, 2008 Letter from p. 4, f.3. The Truth: • That such an assignment was the SDFL's "unilaterar' decision is false. Before the SDFL decided to assi selection of the "attorney representative" to an independent third party, AUSA had already proposed an "attorney representative." She had proposed local products-liability lawyer, Humberto Ocariz and claimed he had been recommended by a "good friend in the Appellate Division." account was misleading, as it omitted that this "good friend" was ha live-in boyfriend, and that Mr. Ocariz was his former law-school roommate. When we discovered this independently, we objected. Only then did the SDFL propose assigning the selection process to an independent special master and agree to amend the Deferred Prosecution Agreement. Thus, while it may be true that the SDFL assigned its selection responsibility to avoid the appearance of favoritism, it did not do it "unilaterally," but, rather, only after Epstein uncovered the Office's misleading disclosure and apparent conflict-of-interest. 10. TIMETABLE FOR MOVING FORWARD. Letter: • "On February 25, 2008, I sent you an e-mail setting forth a timetable for moving forward in the event that CEOS disagreed with your position. That time is now." Id., p. 6. The Truth: • Mr. provides only part of the history of this case in order to justify his improper actions. He had stated he would close the investigation if CEOS told him to. However, CEOS at our very first contact said that under no circumstances did they sec that as their 8 3505-019 Page 28 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003300 EFTA00157682 KIRKLAND & ELLIS LLP role. They said they would only advise on an abuse of discretion standard. Making the outcome a foregone conclusion. Furthermore, in response to the February 25 e-mail, which attempted to establish a schedule to limit the entire review process (the defense has repeatedly suggested that the misconduct was intertwined with the investigation and would therefore seek higher review), Mr. Lefkowitz e-mailed Mr. Acosta directly. On February 29, 2008, Mr. responded to Mr. Lefkowitz's e-mail to Mr. Acosta, stating that Mr. was acting out of frustration, but "[p]lease be assured that it has not, and never has been, this Office's intent to interfere or restrict the "review process" for either Mr. Epstein or CEOS. I leave it to you and CEOS to figure out how best to proceed and will await the results of that process." As stated above, CEOS determined that it would not review many of the defense's objections and as to the remainder of those objections, its review would be limited (contrary to Mr. Acosta's assurances), which left the need, supplemented by the defense's subsequent request for a more thorough review of critical issues by others at the Department of Justice. re-imposition of the (albeit modestly extended) timetable was an obvious attempt, in violation of his February 29 agreement, to thwart the request made by the defense to the Deputy Attorney general, to complete the review process that Mr. Acosta had promised. 11. "DELAY." Letter: • In a section entitled "Delay," Mr. states that "the SDFL again agreed to accommodate Epstein's request to appear in state court for plea and sentencing on January 4, 2008." Id., p. 3. The Truth: • Curiously, Mr. fails to mention correspondence from the U.S. Attorney stating that delay of that date would be "inevitable" as the defense has raised "serious questions" about the propriety of the prosecution. Strikingly, in that same section, Mr. claims that "the Agreement did not contemplate a staggered 'plea and sentencing,"' despite quoting, three sentences earlier, from the Agreement's staggered requirement that Epstein plead and be sentenced by October 26, and "begin serving his sentence not later than January 4, 2008." • • • We are, like most attorneys seeking Department review, without access to the USAO prosecution summaries or other submissions to the Department. Given the substantial issues that have been raised in this and other submissions, we request that you conduct a de novo review that goes beneath the face of any conclusions being advocated by the USAO; instead, we seek a review that is based on the transcripts of witness testimony themselves so that the reviewer can 9 3505-019 Page 29 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003 30 1 EFTA00157683 KIRKLAND & ELLIS LLP make an independent decision not adversely affected by conclusions that over and over have proven, witness by witness, allegation by allegation, to be inaccurate and unwarranted and not an appropriate basis for the exercise of federal prosecutorial authority. 10 3505-019 Page 30 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003302 EFTA00157684 KIRKLAND & ELLIS LLP SUMMARY OF MISCONDUCT ISSUES IN THE MATTER OF JEFFREY E. EPSTEIN The manner in which federal prosecutors have pursued the allegations against Mr. Epstein is highly irregular and warrants full review by the Department. While we repeatedly have raised our concerns regarding misconduct with the United States Attorney's Office in Miami (the "USAO"), not only has it has remained unwilling to address these issues, but Mr. Epstein's defense counsel has been instructed to limit its contact to the very prosecutors who arc the subject of this misconduct complaint. For your review, this document summarizes the USAO's conduct in this case. Background 1. In March 2005, the Palm Beach Police Department opened a criminal investigation of Palm Beach resident, Jeffrey E. Epstein. The press has widely reported that Mr. Epstein is a close friend of former President Bill Clinton. 2. In July 2006, after an intensive probe, including interviews of dozens of witnesses, returns of numerous document subpoenas, multiple trash pulls and the execution of a search warrant on his residence, Mr. Epstein was indicted by a Florida Grand Jury on one count of felony solicitation of prostitution. 3. In a publicly released letter, Palm Beach Police Chief Michael Reiter criticized the Grand Jury's decision and the State Attorney's handling of the case. Shortly after the Grand Jury's indictment, the Chief took the unprecedented ste of releasin his Department's raw police reports of the investigation (including unedited written reports of witness statements and witness identification information), that were later proven to be highly inaccurate transcriptions of witnesses' actual statements. The Chief also publicly asked federal authorities to prosecute the case. Becomes Involved in Mr. Epstein's Case at the Earliest Stage 4. In early November of 2006, Ep their initial contact with the newly assigned line federal prosecutor, Although it is extremely unusual for a First Assistant United States Attorney to participate in such a communication, FAUSA was present on that very first phone call. 5. On November 16, 2006, despite that the fact that the investigation exclusively concerned illegal sexual conduct during massage sessions, issued irrelevant official document requests seeking Mr. Epstein's 2004 and 2005 personal income-tax returns, and later subpoenaed his medical records. See Tab 16, November 16, 2006 Letter from It a Becomes Personally Involved in a Dispute Over Another State Sex Case 6. In March 2007, FAU reported to local police an attempted trespass by a year-old male. Mr. claimed that the individual had attempted to enter home without invitation to make contact with his 16-year-old daughter, but he spotted the young man before the perpetrator had an opportunity to enter the house. The 3505-019 Page 31 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003303 EFTA00157685 KIRKLAND & ELLIS LLP same individual had previously fled the home of another neighbor after entering that house uninvited, when, looking for the bedroom of their 17-year-old daughter, he mistakenly entered the bedroom of their 14-year-old daughter, touched her on the leg and startled her awake. State of Florida v. Johnathan Jeffrey Ziruinilcoff, Case No. F078646 (June 28, 2007). 7. After a thorough review by the Miami State Attorney's Office, and sex-crimes prosecutor Laura Adams, the investi ation revealed that the defendant and both the neighbor's 17- year-old daughter and daughter were previously acquainted. The defendant was charged with simple trespass in connection with his unauthorized entry into the neighbor's house. Id. 8. FAUSA , however, demanded that the young man be registered as a sex offender and objected to any sentence short of incarceration. The Assistant State Attorney in charge of the sex-crimes unit reported conduct during the proceedings as "outrageous." Theiii ant's attorney described Mr. as being "out of control." Shortly after, Mr. began publicly deriding the elected State Attorney, his office and the state process for prosecuting sex offenses, as "a joke." Unauthorized Tactics in Disregard of the United States Attorney's Manual are Used 9. In June 2007, subpoenaed the investigating agent of Epstein's attorney, Roy Black, in a clear effort to invade the defense camp. The subpoena was specifically drafted to discover the investigator's contacts with all prospective witnesses, Mr. Epstein and his attorneys.' Not surprisingly, issued this subpoena without the requisite prior approval by the DOJ's Office of Enforcement Operations. See United States Attorneys' Manual, § 9-13.410. When confronted, she misleadingly responded that she had consulted with the Department of Justice and was not required to obtain 0E0 approval because her subpoena was not directed to "an office ph cif located an within attorney's office." See Tab 18, December 13 2007 Letter from. at 4 n.1. This answer clearly suggests that had intentionally misled the Department officials about the items that her subpoena sought.2 The subpoena sought, among other things: "All documents and information related to the nature of the relationship between [the investigator and/or his farm) and Mr. Jeffrey Epstein, including but not limited to ... records of the dates when services were performed . . . telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party oo Mr. Epstein's behalf) . See Tab 17, June 18, 2007 Subpoena to William Riley/ Riley Kiraly,1 3. 2 Indeed, we are aware of two other recent instances in which placed serious misrepresentations before a court. On July 31, 2007, in the grand-jury litigation arising out of this case, she filed the "Declaration of /Mt' attaching the state detective's affidavit in support of a search warrant for Epstein's house. See : hay Subpoenas Awes Tatum OLY-63 and OLY.64, No. Fat 07.103(WPB) (S.D. Fla. July 31, 2007). At the time she filed affidavit, she knew it contained numerous material misrepresentations, including gross misstatements of witness statements and other evidence. Second, we (Continued...) 2 3505-019 Page 32 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003304 EFTA00157686 KIRKLAND & ELLIS LLP Mr. Epstein is Required to Atrree to Civil Liability In Order to Avoid a Federal Indictment 10. (. 1111 31, 2007 during ne otiations over a possible federal plea agreement, FAUSA and demanded that Mr. Epstein agree to the imposition of civil liability under 18 U.S.C. § 2255 as a precondition to deferral of federal prosecution. To the best of our knowledge, the inclusion of such a term in a deferred prosecution agreement of this kind is absolutely unprecedented.3 Specifically, demanded that Mr. Epstein waive the right to contest civil liability to a list of individuals she said were "victims" of § 2255, whose names, however, she refused to disclose, and agree to pay damages of a minimum of $150,000 to each and every one of such undisclosed individuals, and hire an attorney to represent them if they decided to sue him. See Tab 20, July 31, 2007 Draft of Deferred Prosecution Agreement. and insisted that the identities of the individuals on the list not be disclosed to Mr. Epstein or his counsel until after Mr. Epstein was already sentenced in the state case (a) Over the next two months, Mr. refused to negotiate these terms. They ultimately became incorporated into the final deferred prosecution agreement. See Tab 21, September 24, 2007 Non-Prosecution Agreement, 11 7-11. (b) It was not until seven months later, in February 2008, that Epstein's lawyers were able to take their first official statement from one of the women FAUSA alleged were minor victims of federal offenses. (c) This statement, a deposition of the initial complainant in the state case, taken in the presence of her lawyer, proved that none of the necessary elements for any federal charge could be satisfied based on brief contact with Mr. Epstein. The witness also admitted lying to Mr. Epstein, testifying that she told him that she was an adult and wanted him to believe that she was an adult. See Tab 13, . (deposition), p. 35 ("Q. So you told Jeff that you were 18 years old, correct? A. Yes."), 37 ("Q. You wanted Mr. Epstein to believe that you really were 18, right? A. Correct."). (d) Shortly after this dc osition, the defense was able to obtain statements from other women on so called "list of § 2255 victims" and so far, all such statements also continue to demonstrate that Mr. repeated representations to the defense about the existence of federal jurisdiction were false. 3 understand that was recently reprimanded at a special hearing convened by a United States District Judge in the West Palm Beach Division of the Southern District of Florida, for making misrepresentations during a prior sentencing proceeding. In fact, S a former deputy to CEOS Chief other case like this being prosecuted by CEOS. 3 has stated that she knew of no 3505-019 Page 33 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003305 EFTA00157687 KIRKLAND & ELLIS LLI' 12. In August 2007, in a clear attempt to coerce a state settlement, threatened to broaden the investigation to include a money laundering violation (18 U.S.C. § 1956), though all the funds expended were simply Mr. Epstein's, and a violation for operating an unlicensed money-transmitting business (18 U.S.C. § 1960), thong Mr. never had such a business. See Tab 22, August 31, 2007 Letter from to (reciting, in a target letter to one of Epstein's employees, that the investigation concerns "suspected violations of federal law, including but not limited to, possible violations of Title 18, United States Code, Sections . • 1591, . . . 1956, 1960 . . .') (emphasis added). 13. On the very same day that the grand jury issued subpoenas to the records-custodian and em to of Epstein's businesses for all financial transactions from 2003 forward, ■ (who we were told was not authorized to act in this regard without supervisory approval) promised to close the money-laundering investigation "if the sex offense case is resolved." See Tab 23, August 16, 2007 Letter from I. to G. Lefcourt ("In other words, if the sex offense case is resolved, the Office would close its investigation into other areas as well. The matter has not been, and it does not appear that it will be, resolved so the money laundering investigation continues, and Request Number 6 [seeking records of every financial transaction conducted by Epstein and his six businesses from "January 1, 2003 to the present"] will not be withdrawn."). 14. Two weeks later, when Mr. Epstein continued to oppose federal prosecution during . . Mr. Epstcin's counsel sought a meeting with the United States Attorney, then classified all of Mr. Epstein's assistants as targets (sending a target ne ona letter to one of them and promising the attomcy of the other two that additional target letters would be served on them as well), dispatched FBI agents to the homes of two of his secretaries, and personally telephoned Mr. Epstein's largest business client to advise him of the nature of the investigation. See Tab 22, August 31, 2007 Letter from I. tots FAUSA Forces Mr. Epstein's Lawyers to Convince the State Prosecutors To Impose a More Severe Sentence Than They Believe Is Appropriate 15. Throughout the plea negotiations with the USAO, Mr. s and continually insisted that the only way they would agree not to bring a federal indictment was if Epstein's lawyers, not the state prosecutors as required under the Petite Policy, convinced the state prosecutors to impose a more severe punishment than the state believed was appropriate under the circumstances. 16. FAUSA version of the history with respect to the sentence he required Mr. Epstein's lawyers to seek from the State contradicts his later assertion, which is patently false—that "the SDFL indicated a willingness to defer to the State the length of incarceration" and "considered a plea to federal charges limited Epstein's sentencing exposure . . . " See Tab 1, May 19, 2008 Letter from . In fact, by a email dated August 3, 2007, Criminal Division Chief advised the defense that the federal government required a minimum term of two years of incarceration. See Tab 40, August 3, 2007 Email from I. Subsequently, 4 3505-019 Page 34 of 63 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00003306 EFTA00157688 KIRKLAND & ELLIS LLP emailed the defense stating that United States Attorney Acosta would accept no less than 18 months of incarceration, following by a one-year term of house arrest. Federal Prosecutors Misrepresented the Number of Alleged "Victims." 17. In September 2007, in order to add additional pressure on Mr. Epstein to execute a deferred prosecution agreement, claimed that there were "40" minors on the government's list of purported § 2255 victims. To compound that misleading characterization, she continued to insist that a guardian-ad-litem be appointed to represent these °fled "minors" in the proceedings. See Tab 24, September 19, 2007 Email from M. to J. Leflcowitz. 18. When challenged as to whether there was a genuine need for a guardian, given that III continued to refuse to disclose the names or any other information about her putative list o f "minors," she eventually conceded that only "1 is definitely under 18 still, and I think there is another minor." See Tab 25, September 23, 2007 Email from,. to J. Lefkowitz (emphasis added). 19. The next day, retreated from the number "40," stating that she had now "compiled a list of 34 confirmed minor victbns with no definition of how they would be considered as such.. There are six others, whose names we already have, who need to be interviewed by the FBI to confirm whether they were 17 or 18 at the time of their activity with Mr. Epstein." See Tab 26, September 24, 2007 Email from I. to J. (emphasis added). This statement indicated that, at least the "six others" (and, as it turns out, all those identified except two) had reached the age of majority, and, in fact, no guardian was necessary to represent their interests. Defense Counsel was Falsely Advised That the Non Prosecution Agreement Would Be Kept Confidential. 20. On September 24, Epstein and the USAO executed a Non Prosecution Agreement. 21. His attorneys asked to "please do whatever you can to keep this from limit public." See Tab 27, September 24, 2007 Email from J. Leficowitz to,. 22. -replied that she had "forwarded your message only to Alex [Acosta], [ , and I don't anticipate it going any further than that." Id. 23. stated that the agreement would be "placed in the case file, which will be kept confidential since it also contains identifying information about the girls." Id. The Prosecution Immediately Notifies Three Plaintiffs That Mr. Epstein Has Executed A Non Prosecution Aareernent 24. In direct violation of these representations, "shortly after the signing," the government notified "three victims"