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'0450,V Q+ t-Pc4IA T ) --t el.! "'o'f j P l ' a .,1_4,a-IS 4Q/ Il l'21 EFTA00176111 12/11/2007 11:37 FAX la 002/099 KIRKLAND & ELLIS LLP WO. WM I I IMkIuI OM. MN Konnulh W. Slam to Coll WMOr ChrOdy. (213) 6111)-U4-10 leilautektrklond.com V lajtAOSIMILF: (30a.530-6444 I lonorable R. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Re: Jeffrey Epstein INair Alex: 777 South Finumon Sunni tun Attuuluu, et-tidying, 900'7 (213) 080-8400 www.lorNItuul.com December I I. 2007 HICSul Wu: (213) 600.8500 As we discussed during our telephone conversations un both Friday and Monday (yesterday). we arc submitting two separate letters that address our broad areas of deep concern in this matter: Finn, the cluster of limdamemal policy issues surrounding the use and implementation of 2255. n richly policy-luden but uncharted area of federal law: and second. our profound concerns as to the background and conduct of the investigation. Consistent with our conversations, we submit these letters with the assurance and understanding that our doing so in no manner constitutes a breach of the Non-Prosecution Agreement or unwinds that Agreement. We arc grateful for your courtesy in agreeing to receive and consider these submissions, and then to meet to discuss them. As you undertake your study and reflection. kindly allow me to make this pivotal point: In the combined 250 years experience ofJeffrey's defense team, we have together and individually concluded that this case is not only extraordinary and unprecedented. it is deeply and uniquely troubling. The constellation of issues. large and small. renders Jeffrey's matter entirely sal genesis. We say this not lightly. Indeed, as you will glean from our two letters. we arc gravely concerned Mat in addition to its odd conceptualization and genesis, the matter in its day-to-day implementation has been handled in a manner that raises deeply troubling questions with respect to both federal policy and individual judgment in a system that is, at its best assiduously devoted to the rule of law. The latest episodes involving 2255 notification to the alleged victims put illustratively in bold relief our concerns that the ends of justice. time and aµain, are not being served. Fly way of illustration, hut it is only one among a cascading list or grave concerns, we now understand that the Assistant United States Attorney whose conduct has troubled us from day one has quite recently reached out to the attorney fur Tatum and Chicago Hong Kong Now York San Francisco Washington, D.C. EFTA00176112 12/11/2007 11:37 FAX 1b003/033 KIRKLAND 8. ELLIS LLP Honorable R. Alexander Acosta December I I. 2007 Page 2 provided oral notification of the victim notification letter. This notification, as we have stated time and again. is profoundly unfair. But quite apart from our substantive concerns. which are abiding and which had prompted our appeal to the Assistant Attorney General in the first instance, we had thought that the notification process had been held in abeyance until completion °four ongoing discussions with respect to that process. That appears not to be so. This latest in a baleful line of prosecutorial actions si.th irony. We respectfully cull your attention to the transcript of the interview with and guide you as the duly confirmed Executive Branch official charged wit Imo mg judgments consistent with our constitutional order to the telling fact that Ms. Miler did not in any manner view herself as a victim. Quite to the contrary. She is not alone. We draw attention to this episode as but a recent indication of the deepening need for your thoughtful and independent review. And for your agreeing to pmvide that review. our defense team is very grateful. Respectfully Submitted. • .• -**11 • Kenneth W. Starr EFTA00176113 12/1 1/2007 11:3? FAX la 004/099 KIRKLAND & ELLIS LLP Jay P I nIknwilz. P.G. 0 Call Writer Diforily lalkowitz VIA FACSIMILE (305) 530-6444 Honorable R. Alexander Acosta United States Attorney United Slates Attorney's Office Southern District of Florida 99 NE 4th Street Miami. Fl. 33132 Dear Alex: AND MIOLIAILP rAKINIVAIPr. Ckigroop Cloths 153 Eusl 53(6 Strout Now Yolk, Nov Yolk 10022.4611 www.kirklantcom December I I. 2007 Re: .141frey 441.4000 appreciate the opportunity you have provided to review some of the issues and concerns of Mr. Epstein's defense learn. Importantly. I appreciate your agreement that this submission would neither be understood by you as constituting a breach of the Non-Prosecution Agreement ("Agreement-) nor result in any unwinding of the Agreement by your Office. Implicit in this agreement is the understanding that I can share with you our concerns and request a review on the basis for these concerns. while at the same time assure any client that this submission will not in any respect result in limn& or lamina, repercussions or attempts by any member of the prosecution or investigative team to involve themselves io Mr. Epstein's detriment in any matter related to the Agreement. particularly in the state prosecution. This letter is intended to support our assertion to you that the manner in which both the investigation of allegations against Mr. Epstein and the resolution thereof were highly irregular and warrant a full review. We appreciate your willingness to consider the evidence. We respectfully request that you review Judge Stern's letter to Alan Dershowitz. faxed to you on December 7. 2007. in connection with the concerns we set forth in this submission. I. FEDF.RAL INVESTIGATORS RELIED UPON TAINTED EVIDENCE. We have serious concerns that the summaries of the evidence that have been presented to you have been materially inaccurate. As you may know. the principal witnesses in this case were first interviewed by Detective Recarey of the Palm Reach Police Department (the "PRPIT) and other state law enlbrcement officers. These interviews (the "witness statement() were olden tape-recorded thus providing a verbatim and detailed record of the recollections of the witnesses au a point in time prior to any federal involvement. Unfortunately. the police report authored by Detective Katy and certain affidavits executed by him contained both material misstatements Chicago Hong Kong I muffin LOU Atlaulr,r Munich Son Francisco Washington. n.C. EFTA00176114 12/11/2007 11:37 FAX i 005/099 KIRKLAND & ELLIS LLP It. Alexander Acosta December II. 2007 Page 2 regarding the specifics of what he was told by his witnesses and also contained omissions of critical and often exculpatory infonnation that was recorded verbatim during the taped interview sessions. The federal investigation involved interviews with many of the satne wimesscs. We are aware that at least one federal interview ) was recorded. We understand that Detective Recarcy provided his police report and certain affidavits to the federal authorities but did not provide the actual witness statements of the taped interviews to your Office or to the FBI. nese witness statements constitute the hest evidence available (they are verbatim and earlier in time to the federal interviews), and they contain statements that are highly exculpatory to Mr. Rpstein. Because understanding the compromised nature of the "evidence" against Mr. Epstein is key to a proper view of this ease, we summarize it in detail below. A. The Witness Statements Establish That Mr. Epstein Old Not Target Masseuses Under IS. Indeed. the witness statements demonstrate that the opposite is true. First. the evidence shows that the many of the masseuses wet...at:en or over. including inhaling Sjoberg,. Julie Brabon, Vencro. M. and Christine I=. at the time they visited Mr. ISpstein's home. Also, there is substantial evidence. found in the sworn statements of the women themselves, which indicate that, to the extent others were in fact under the nee of eighteen, many affirmatively lied about her age. As m IM herself told the PKPD: -Ilaley IRobson] told the to say I Was I S because said .. . if you're not then he [Epsteinl won't wally let you in his house. So I said I was IX". Detective Recerey. however. largely ignored these critical admissions in his Police Report and Probable Cause Allidavit. Q: At any time, did he speak to you and does he know how old you arc? Did 1w know how old you were? A: .. .As a mater of thet. In told me to say I was IX because said tell him you're 18 because if you're nut, then he won't really let you in his house. So I said I was IS. As I was giving him a massage. he's like, how old arc you? And then I was like IR. But 1 kind of said it really fast because l didn't want to nuke it sound like I was lying or anything. (Swum Statement of 3/18/(15). • Jennifer Q: Did he usk you your age? A: Yeah, I told him I was IS. (Sworn Statement of 10/05/05). EFTA00176115 12/11/2007 11:38 FAX l 008/099 It. Alexander Acosta December 11. 2007 Page 3 • KIRKLAND & ELLIS LLP Q: Did he know your age? A: I don't think -- I think he did. Downstairs was like oh. well if they ask you how old are you just say you're IR but he never asked me how old I wax. I thought you had to be 18 to give a massage (inaudible). (Sworn Statement of 12/13/05) • SIVINdy VCISISCO: A: We were supposed to say we were 18. Q: Who told you that, to say that? A: . (Sworn Statement of 11/8/05). Italey A: I told him I was 18. (Sworn Statement of 10/3/05). • Robson concerning Serina Figueroa: Well with Serina [Figueroa, I don't know how old she is because she lied about her age. She lied to me when I first met her. When I was IA she told me she was IS. (Inaudible.) Well she told her purse at my house and she told me to make sure that I didn't look in her purse. When I went thmugh her purse I found her state license that said she was 16 so she lied to me about her age. (Sworn Statement of ICl/03/05/i Q: Now. how old were you when you lint started going there? A: Eighteen. I'm 19 now this last March." (Sworn Statement of 10/12/05). Q: And all this occurred when you were 18 though? In addition to giving a sworn staletneol ai the PRPD station. conversations with Deleviive Recurvy trwmportrd to and from die minion were also recorded. lids excerpt is taken fromtlw recording of (raveling from the siathm. EFTA00176116 12/11/2007 11:38 FAX l 007/099 KIRKLAND 8. ELLIS LLP R. Alexander Acosta December 11.2007 Page 4 A: I ih-huh. 1 had been IS for like S months. nine months already. My birthday is in June so I had been 18 tbr a while. (Sworn Statement of 2/3/OS). • Angela Thomas: 0: Okay. How old are you now? You're - A: I'm 20 Q: You're 20. So a couple months ago you would have been what. I')'? A: t Ih-huh. Q: Alright. So July. August you would have been 19. 20. On the verge of 20? A: Uh-huh. (Sworn Statement of 1 I/4/05) We believe that other witnesses have similarly told the HD that Mr. Epstein attempted to monitor the ages of the masseuses who cunt to his home. We thriller believe than these transcripts would show that the federal interest in prosecuting Mr. Epstein fur paradigmatic stale offenses was far less compelling than the inaccurate police reports suggest. D. Detective Recarev Made Crucial Misstatements in the Police Report and Probable Cause Affidavits. We have reviewed the sworn and recorded witness statements of many of the individuals who were interviewed (conducted in person or by telephone) as well as a number of the controlled calls cited in the Police Report. 'lime Idler time, we found statements in the Police Report attributed to statements made in the sworn recordings that either simply were not said. or in some instances, are flatly contradicted. by the witness who purportedly made the statement. Tn fact. they often stand in stark contrast to representations made by Detective Reearey in both the official Police Report and in affidavits signed by him under oath . We highlight the most significant ones identified to date: • LTA Did Nol Report that Epstein 'fold Her to Lie About her Age The Probable Cause Affidavit indicates that during her sworn stall "Dail advised that during her frequent visits Epstein asked fur her real age. stated she was sixteen [and that Epstein advised her not to tell anyone her real age.- Arrest Probable Cause Affidavit al I I. That statement appears nowhere in hall's sworn statement. EFTA00176117 12/11/2007 11:38 FAX a 008/099 R. Alexander Acosta December I 1. 2007 Page 5 .m.••••• 2 I Intl was interviewed by Detective Itecarey twice, once by telephone, and once in Nrson. The portions of the Police Roan at which we refer speci0cally cite the inperson interview of l kill as the source for the inronnation reported. We have reviewed the recording of that interview and base doe comparison on that review. We have never heard a recording (tribe telephone interview. KIRKLAND & ELLIS LLP • Hall Did Nat State that Epstein Phutographed Her I laving Sex Detective Recarey also reports Hall as claiming that "Epstein would photograph Marcinkova and her naked and having sex and proudly tf the photographs within the home." Id. at 12. Again, this statement is not in swam statement. To the contrary, the transcript reflects that hall stated: "I was just like. it was me standing in front of a big white marble bathtub ... in the guest bathroom in his master suite. And It wasn't like was you know spreading my legs or anything for the camera, I was like. I was standing up. I think I Wits standing up and I just like. it was me kind of looking over my shoulder kinds smiling. and that was that." Sworn Statement of 10/11/05 at 35. 2 • Pentek Said Epstein Did Nat Touch I ler Inappropriately Detective Recarey recounts that rayth Penick advised that "Epstein grabbed her bullocks and pulled her close to him." Probable Cause Affidavit at 6. See also. Police Report (10/07/05) at 30 (same). Pentek never made this slulethent, to rael. when Detective Recarey asked. "He did not touch you inappropriately!" Penick responded. "No." Sworn Statement of 10/04/05 at I I. • MOB Esposito Was Nut Sixteen When 8110 First When to Epstein's Home. Detective Reality states: also stated she was sixteen years old when she first went to Epstein's house". Incident Report al 52. However. affirmatively states that she was seventeen when she first went to Epstein's home: "Q: Okay. How old were you when you first went there? A: Seventeen. Q: Seventeen. A: And I was 17 the last time I went them too. 1 turned 18 this past June". Sworn Statement of 11/14/05. • Shasdy Velaseo Told Detective Keeney that Epstein Did Nut Take out Sex Toys. The Pmbable Cause Affidavit indicates that Shandy Velasco stated, "Epstein would use a massager/vibrator, which she described as white in color and a large head. Epstein would nib the vibrator/massager on her vaginal area as he would masturbate." Probable Cause Affidavit at 14: see also Police Report (1 I/10/05) at 49 ("Epstein would use a massager/vibrator, which she described as white in color with a large head, on herr). This statement appears nowhere in the transcript of Velascols sworn EFTA00176118 12/11/2007 11:39 FAX 009/099 ICIRKLAND & ELLIS LLP It. Alexander Acosta December I I. 2007 Page 6 statement. In Nei when Detective Recarey asked whether Mr. Epstein had "ever take(n1 out any toys," Vclascn responded. "No." Sworn Statement of 11/08/05 ut I7. • Did Not Recall Mr. Epstein Masturbating Detective Recarey recounts that "advised she was sure (Mr. Epstein] was masturbating based on his hand movements going up and down on his penis area." Probable Cause Affidavit at B. See also Police Report (10/07/05) at 35 (same). Detective Recarey's account is in direct contradiction to Laduke's true statement, speci tient ly: Q: Okay did he ever take off — did he ever touch himself? A: don't think so. Q: No. Did he ever masturbate himself in front of you? A: I don't remember him doing that. Ile might have hut I really don't remember. (Sworn Statement of I (/05/05 at 7). • Juan Alessi Staled that OthiOne Girl Looked Young Police Report at 57: "Alessi slated that towards the end of his employment. the masseuses were younger and younger". However, he said no such thing: Q: Did they seem young to you? A. No. sir. Mostly no. We saw one or two young ones in the last year. Before that. it was all adults . I remcmhcr one girl was young. We never asked how old she was. It was not in my job . . . But I imagine she was 16, IT'. (Sworn Statement of 11/21/05) C. Detective Recarey Made Material Omissions in the Police Report. In addition to the misstatements in the Police Report and Probable Cause Affidavit as to the evidentiary record, there were also material omissions. both of facts known to the PBPD and also of filets not known to the PBPD, though known by the State Attorney. In the latter instance. the lack of knowledge was the result or the PLIPD's relbsal to receive the exculpatory evidence. in fuel. they refused to attend a meeting called by the State Attorney specifically to provide the relevant evidence. Thus, the Police Report and Probable Cause Affidavit only affix a skewed view of the facts material to this matter. Examples follow. 1. The Video Surveillance Equipment Located in Mr. Epstein's Office and Garage. Both the Police Report (at 43) and the Probable Cause Affidavit (at I make EFTA00176119 12/11/2007 11:39 FAX 0010/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 l'age 7 particular mention of the "discovery" of video surveillance equipment (or "covert cameras" as they are called) in Epstein's garage and library/office. Inclusion of this inthrination insinuates a link between the equipment and the events al issue: in the Probable Cause Affidavit Detective Recarcy states, "on the first floor of the !Epstein' residence I [Detective Reetueyl found two covert cameras hidden within clocks. Onc was located in the garage and the other located in the library area on a shellbehind Epstein's desk . ' • computer's hard drive was reviewed which showed several images of I laley and other witnesses that have been interviewed. All of these images appeared to come from the camera positioned behind Epstein's desk". See Probable Cause Affidavit at IR. Clearly omitted from both the Police Report and the Probable Cause Affidavit is the fact that the PIM and specifically Detective Rocarey. knew about the cameras since they were installed in 2003. with the help of the PAPA, to address the theft of cash from Epstein's home. This fact is detailed in a Palm Reach Police Report prepared in October 2003 detailing the thefts, the installation of video equipment, the video recording capturing Juan Alessi (Mr. Epstein's then house manager) "red handed-. and the incriminating statements made by Alessi when he was confronted at the lime. See Alessi Police Report at 5. 8. The contemporaneous police report confirms the fact that the video footage was turned over to Detective Rectircy himself. 2. Polygraph examination atuasprt. On May 2. 2006. Mr. Epstein submitted to a polygraph examination by M Slattery. a highly respected polygraph examiner who is regularly used by the State Attorney. The examination was done at a time when we were told that the sole focus of the investigation was the conduct with Gonralez. Mr. Epstein was asked (a) whether he had "se tad contact with n: (11) i anyway threatenledl : (c) whether Inc was told by • ••• "that she was IR years old"; an ( ) whether he "believed i was IR years old". As set lbrth in the Report of the examination, the term "sexual contact" was given an extremely broad meaning in order to capture any inappropriate conduct that could have occurred:I The results of the examination confirmed thati.to such conduct occurred: (ii) Mr. Epstein never threatened : (iii) told Mr. Epstein she was IR years old: and (iv) Mr. Epstein believed Gonzalez was IR years old. 4 the eetelehle included: -sexual intereolusc. oral sex acts (penis in muds ur Ohne!' on vagina). linger penetration ore he vagina. linger penetration of the anus. touching or its: vagina for sexual gratification purposes, touching orate penis for sexual gratiliCalion purposes. masturbation by or to another. touching or nthhing, of the breasts. or any other physical contact involving sexual thoughts multur desires with another person-. EFTA00176120 12/11/2007 11:39 FAX 0011/099 KIRKLAND & ELLIS LLP K. Alexander Acosta December 11. 2007 Page 8 3. Broken "Sex Top" in Mr. Epstein's Trash. The Police Report details the police finding in Mr. Epstein's trash what is described as broken pieces of a "sex toy" and that this "discovery" purportedly corroborated witness statements. Omitted from both the Police Report and the Probable Cause Affidavit is the find that during the course Of executing the search warrant in Epstein's home, the police discovered the other piece of that key "sex toy" and realized it was in litct only the broken handle of a salad server. Though "sex toys" play a prominent role in the Police Report and Probable Cause Affidavit. the Police Report was never amended to rellect the discovery of this new and highly relevant evidence. 4. Failure to Consider Evcidpatory or Impeaching Evidence. Other exculpatory and impeaching evidence known by the PBPD was omitted from the Police Report and Probable Cause Affidavit hy. in our view, manipulating the date the investigation was allegedly closed. According to the Police Report (at 85). Detective Recurey "explained Ito MA Relnhlavek) that the PBPD had concluded its CUM in December of 2005". That assertion, which is false. conveniently resulted in the omission °fall information adduced subsequent to that date. Thus, though the Police Report in fact contains information obtained Mier December 2005. the POP!) purported to justify its refusal to consider, or even to include, in the Police Report, the Probable Cause Affidavit or what it released to the public, all the exculpatory and evidence impeaching the witnesses submitted on behalf of Mr. Epstein. most of which was provided Idler December 2005. That evidence is listed below. 5. Unreported Criminal Histories and Mental /tenth Problems of the Witnesses Itidied on in the Police Report and Probable Cause Affidavit. Evidence obtained concerning the wimesses relied upon to support the Probable Cause Affidavit casts significant doubt on whether these witnesses are sufficiently credible to support a finding at' probable cause, let alone to sustain what would he the prosecution's burden of proof at a trial.4 Though such evidence was submitted to the MD. none of it was included in the Police Report or the Probable Cause Affidavit. • Juan Alessi: While the Police Report (at 57) and the Probable Cause Affidavit (at 21) contain assertions by Alessi, which allegedly support bringing a criminal charge. the evidence revealing Alessi's evident mental instability; prior criminal conduct against Epstein: and bias towards Epstein is notably omitted. As detailed above, in 2003, Alessi was filmed taking money from Epstein's home. After being caught on videotape unlawfully entering Epstein's home and stealing cash from a briefcase, While we have never intended to and do not here seek lu gratuitously cue aspersions on any or the whin:saw. in previously asking the Stale and now asking you to evaluate the strength of this case. we have been constrained to point out the fact that the alleged victims chose to present themselves to the world through MySpace profiles with self selected monikers such us "Pimp Juice" and " Flicking or with nude photos. EFTA00176121 12/11/2007 11:40 FAX 012/090 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page9 Alessi admitted to the PON) that he entered the house unlawlially on numerous occasions, stealing cash and attempting to steal lipstein's licensed handgun to commit suicide. Although this information was known by Detective Recurey at the time the Police Report and Probable Cause Affidavit were prepared. and is clearly material to any determination of credibility. it was omitted. was the source or the vast majority or the serious allegations made a mast Epst-. While the Police Report and Probable Cause Affidavit rely on numerous assertions, there are two significant pmblems with that reliance. First there is no mention or certain critical admissions made by Hall during her interview, as well as on her MySpace wehpage (discovered by defense investigators and turned over to the State Attorney). Second. all but omitted limn the Police Report is any reference to the facts known about her by the PBPD. specifically, that at the lime I tall was making these assertions die had been arrested hp the PAPA and was heing prosecuted for possession of maryuana and drug paraphernalia. We take each in mm. • Admits Voluntary Sexual Coughed With Epstein. Refuses to ise ose the &position of the Monies She Earned, and Lies About Being "Given" a Car by E midi): Detective Recarcy failed to include in the Police Report admission that on one occasion she engaged in sexual conduct wit Epstein's girlfriend us her hirthda "gilt" to Epstein. Nor does Detective Recurey include the fact that flatly refused to discuss with him the disposition of the thousands o dollars she said she was given by Epstein. or that she falsely claimed that she did not use drugs. despite her My-Space entries in which she exclaims "I can't wait to buy some weedmunn. Detective Recarey was aware the car had been rented. not purchased. and only it was only leased on a monthly basis for two months. While familial claim that she was given a car appears in the Police Report, it is never corrected. • Was Arrested for Possession qf Marijuana and Drug trap reran :a. As noted. on September I I. 2005, I tall was arrested for possession of marijuana and drug paraphernalia. In response to this arrest "came forward' (as the Probable Cause Affidavit implies at claiming she had knowledge of "sexual activity taking place" nt Epstein's residence and misconduct by Epstein. (this "coming forward- as no where in the Police Report) Thus, it becomes clear that assertions of misconduct by Epstein were motivated by a desire to avoid the repercussions or her own criminal conduct. which should have been taken into account when assessing her credibility as a witness. EFTA00176122 12/11/2007 11:40 FAX la 013/099 R. Alexander Acosta December 11. 2007 Page 10 KIRKLAND & ELLIS LLP • ■ Steals From a Secret Store. An investigation by private investigators wor •e ! • lefense revealed that in lute 2005 ((all was employed at a Secret store in s Florida. Three days after her liana case was terminated. I rail was caught by a store manager a attempted to leave the store with merchandise in her purse, the security tag still attached. Seeing the manager, Hall claimed "someone is (tying to set me up". Following an internal investigation. which disclosed additional thells from both the store and a customer, she was fired. In a recorded interview. I loll admitted to stealing and asserted that her reason for doing so was that "she was not getting paid enough". This information and supporting documentation was presented to the PBPD. but was never included in the Police Report or Probable Cause Affidavit. • flail Lies on MySpace About Secret tore Term:nation. Also uncovered • '• ise investigators is dissembling version of the Secret debacle on cr "MySpace" webpage. Them Hall gmouneed that she ". . tbrgot to let everyone know quit my job at M. They said they suspected me of 'causing losses to their company' which by the way is bullshit. I was 'by the book' on EVERY]] IING!!! . . . I got so fed up in that office that I handed the toss Prevention lady back my keys and walked out". This intommtion and supporting documentation was provided by the defense to the PBPD, but was not included in the Police Report or Probable Cause Affidavit. • Lies on I Secret Jab Application. Additional tuition on MySpace webpage casts further in doubt on her credibility. For mpl she to having engaged in a fraudulent scheme to get hired by Secret, explaining. "Oh, it wa so funny I used [my boyfriend' as one of my relCrenees for my Secret job and the lady called me back and told me thin William Tucker gave me such an outstanding reference that she did not need to call anyone else hack... . he got me the job! Just like that . .. I lied and said he was the old stock manager at flolister she bought it. . ." 'Ibis infiumation and supporting documentation was provided by the defense to the PRPD, but was not included in the Police Report or Probable Cause Affidavit. • Alexandra ■ ltoastc About Her Marijuana Use. Also on her MySpace webpage can be found I lall's admissions of purciwi g and using marijuana and marijuana paraphernalia. Specifically, states she "can't wait to buy some weed!!! . . . 1 can't wait!!! . .. (Hold on: EFTA00176123 12/11/2007 11:40 FAX e l 0 1 4 / 0 8 9 KIRKLAND & ELLIS I_LP R. Alexander Acosta December I I, 2007 Page 11 let me say that again) I can't wait to buy some weed!!!. . . I also want to get a vaporizer so I can smoke in my room because apparently there cigarette and labeled it gl at heaven looks like to me". This vi are 'mires' everywhere", also posted a photograph of a marijuana information and supporting documentation was provided by the defense to the MOD, was not included in the Police Report or Probable Cause Affidavit (although there is both a fleeting reference in ..7 the Police Report to ))all's use of marijuana with her boyfriend (at 47) and in the Probable Cause Affidavit to I lull's marijuana arrest (at 10- 1 I )). • MI While the Police Re ri and Probable Cause Affidavit contain numerous assertions intended to negate taped admission that she clear) told lipstein she was IR, omitted from t lese moments is reference to MySpace webpage. presented to the State Attorney's Office, where . in no comet: ion to this case, she allirtnialvely represented to the world that she was 18. thereby corroborating her lie to Epstein. Also omitted is any reference to her long history of run-ins with law entbreement. Among those arc multiple runaway complaints by her parents and her assignment to a special high school for drug abusers. • Gonzakc's AlySpare Webpage Slates She Drinks, Uses Drugs, Gets haa Trouble, Has Denten Someone Up, Shoplifts. Has Lost her Virginity, Earns $250,000 and Higher, and Contains Naked and Provocative Photographs. The first image seen on MySpaee webpage, the photo chose to represent ler. Is I at ola naked woman provocatively. mg on the beach. The illuminating webpage also contains assertions that of all her body pans. she - love(s1 her ass". sic no s to excess. uses drugs, "gets into trouble", has beaten someone up. has shoplifted -lots", "already lost" her virginity, and earns "S250,000 and higher". As with the other impeaching information. this material. vital to determining credibility, was provided by the defense to the PRPD but was never included in the Police Report or Probable Cause Affidavit. Home. has a history of running away/turning up missing GonzalersPS Record — Drags, Alcohol, R lug Away Front • from her pamnts various homes; of using drugs and alcohol; and of associating with individuals of questionable judgment. For example, a Palm Beach County Sheriffs Office Report details how only two days after she returned to Florida to live with her lather, on March 31, 2006. police were called to the home in response to her father's report that she and her twin sister were missing. 'Ile Police Report describes her as "under the influence of a narcotic as 'she' could barely stand up. EFTA00176124 12/11/2007 11:01 FAX el015/099 KIRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page I 2 filed eyes wen: blood [heti pupils were diluted [sic'". It flintier documents that and her sister had stayed out all night returned home by a -• nig dealer. This event coincided with having been found at an "inappropriate locution" by Georgia police in response to a call about Gonzalez's disappearance. Although this information. material to determining credibility. was provided by the defense and known to the PBPD. it was never included in the Police Report or Probable Cause Affidavit. • Daniel While the Po rt nd Probable Cause vit rely on statements of father. Daniel . his federal hank fraud conviction. which defense investigators discovered and turned over t t PBPD during the course of the investigation, was omitted. . served 21 months in federal prison for his offense. • Erika : While the Police I 'rod m able Cause Affidavit rely on statements stepmother. omitted is Erika state conviction ler identity fraud. This information. uncovered by defense investigators, was also turned over to the PBPD during the course of the investigation. O. In Licht Of The Compromised Nature Of The Evidence, A Fulsome Review Should Re Conducted These tainted and inaccurate reports compromised the federal investigation.' As you may know, the PBPD took the unprecedented and highly unethical step of releasing these reports to the media as well. These reports spread across the Internet, and were undoubtedly read by the other individuals who were later interviewed by the FBI for giving Mr. Epstein massages. As we have shown, these reports contain multiple fabrications, omissions. and outright misstatements of rod. Moreover, the evidence and the allegations were undeniably misrepresented to the 1:14I. with no inclusion or the evidence exposing the deficiencies or the "proof' and the exculpatory evidence upon which the State relied. Furthermore, it should be noted that many of these same individuals were also interviewed by the FBI after their state interviews but prior to Mr. Epstein's counsel providing the government with the transcripts or the recorded interviews. The Although we twee liven informed that the FBI identified and then interviewed additiontil potential witnesses, many Of their diseoveries are believed to have emanated from message pads containing amino information that were seinal from Mr Lipsiein's home pursuant ton state search wnrrani that was deeply and constitutionally flawed by Keen ey's misontements and omissions as well as other facial deficiencies. EFTA00176125 12/11/2007 11:41 FAX lill018/089 KIRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page 13 transcripts and tapes, which %vt hope to share with you in person, will likely present a very different view of those interviews taken afterwards. Therefore. in the Interest of truth. we ask you to review the transcripts. compare them to the FBI reports upon which the indictment was predicated. and then determine whether the FBI summaries and the prosecution memorandum upon which the charging decisions were made overstate Mr. lipstein's federal culpability. Concomitant to these requests. we would ask that you determine whether the investigative team ever provided these trustworthy tapes and transcripts to those in your Mee who were being asked to authorize the prosecution so that they could themselves assess the reliability of the FBI interview reports against a verbatim record of tlx: same witness's prior statements. We believe that this request is lair and would not be unduly burdensome. II. THE IMPROPER INVOLVEMENT AND CONDUCT OF FEDERAL AUTHORITIES. As established above. the State's charting decision. of one count of the solicitation of prostitution. was hardly irrational or irregular. Indeed. Lana Beloblavelt. a Florida sex prosecutor for 13 years, concluded that the women in question were prostitutes and that •there arc no victims here." There was no evidence of violence. Ante. drugs. alcohol, coercion ur an abuse of a position of authority. Each and every one of the alleged "victims" knew what to expect when they arrived at Mr. F.patein's house and each was paid for her services. In fact, Mr. Epstein's message book establishes that many of these women routinely scheduled massage sessions with Mr. F.pstein themselves. without any prompting. Ms. Belohlavck also noted that many of these individuals worked either us exotic dancers or in one of the many massage parlors dotted across West Palm Beach. Ms. Delohlavek also specifically stated that Alex I lall could not be trusted and was "only interested in money." She further found that it was inappropriate for Mr. Epstein UP register as a sex offender because she did not believe that he constituted a threat to young girls and because registration had not been required in similar or even more serious eases. Ms. Belohtavak thought. and still believes, that the appropriate punishment is a term of probation. Yet. the government has devoted an extraordinary amount of its time and =mimes to prosecute Mr. Epstein for conduct the State believes amounts to a "sex for money" case. While we are loathe to single-out for criticism the conduct of any particular professional, we cannel escape the conclusion that the cumulative effect of the conduct of Assistant United States Attorney Marie Villafana led your Office to take positions during the investigation and negotiation of this matter that has led to unprecedented federal overreaching. In fact. Judge Herbert Stern's states " . The federal authorities inappropriately involved themselves in the investigation by the slate authorities and employed highly irregular and coercive tactics to override the judgment of state law enforcement authorities as to the appropriate disposition of their case against your client." See. Judge Stern's letter faxed to you on December 7. 2007. EFTA00176126 12/11/2007 11:42 FAX W017/099 KIRKLAND & ELLIS LLP R. Alexander Aeoslu December I I, 2007 Page 14 A. The Petite Policy Should Have Precluded Federal involvement. As you know, prior to negotiating the terms of the Agreement. we requested that the government consider the Petite Policy and the problems associated with conducting a dual and successive prosecution. We stressed to your Office, on u number of occasions, that we had reached a final negotiated resolution with the Stale and were only being forced to postpone the execution of that agreement for the sake of the federal investigation. We made submissions and met with your Office to present analyses of the fact that federal prosecution in this matter was in direct conflict with the requirements of the Perin. Policy. It was our contention, and remains our contention, that federal prosecutors had never intervened in a matter such as this one. And because there was no deficiency in the state criminal process that would otherwise require federal intervention, the express term of the l'cille Policy precluded federal prosecution regardless q'the outcome oPhe mate case. Since the :Mc investigation was thorough and in no way inadequate and the concerns implicated by tlx: matter all involved local issues and areas of traditionally local concern. we urged your Office to contemplate whether a federal prOSCCUtiall Was appropriate. However, on August 3. 2007. Matthew Menchel rejected a proposed state plea which included that Mr. Epstein serve two years of supervised custody followed by two years of incarceration in a suite prison, with the option of eliminating incarceration upon successful completion of the term of supervised custody. among other terms. Mr. Menchel stated that "the federal interest will not he vindicated in the absence of a Iwo year term in state prison." See August 3.2007 letter. Such an articulation of the federal interest, we believe. misunderstands the Petite Policy on two grounds. First, the Office's position that the federal interest would not be vindicated in the absence of a jail term for Mr. Epstein. runs contrary to Section 9-2.03ID of the United States Attorney's Manual, because this section requires the federal prosecutor to focus exclusively on the quality or process of the prior prosecution, not the sentencing outcome. Second, the slate plea agreement offered was not "manifestly inadequate" under U.S.A.M. & 9- 2.03ID. indeed, the only real difference between the state and federal plea proposals was whether Mr. Epstein served his sentence in jail or community quarantine. We formerly believal that our Petite Policy concerns were being addressed or, at least. preserved, hut we learned that only after reaching a final compromise with your Mee as to the terms of the Agreement, and at the very last minute, that language regarding the Petite Policy was removed from the final version. The two following references to the Petite Policy had been included in the draft prosecution Agreements up until September 24. 2007, the day the Agreement was executed. at which point they were eliminated by your Office: IT APPEARING, idler an invizligation of the offenses and Epstcin's background, thin the interest or the United Stales pursuant to the Petite policy will be served by the Following procedure ... Epstein understands that the United Stales Attorney has no authority to require the Slate Attorney's Orrice to abide by any terms of this agreement. lipstein understands that it is his EFTA00176127 12/11/2007 11:42 FAX la019/099 KIRKLAND & ELLIS LLP ft. Alexander Acosta December 11.2007 Page 15 obligation w undertake discussion with the Stow Attorney's Office to unsure compliance with these procedures. which compliance will he necessary to satisfy the United Snit& pursuant to the Petite policy. We reiterate that this ease was at heart a local matter that was being fully addressed by the state criminal justice system. The state process resulted in an appropriate resolution of this mailer and would have vindicated any conceivable federal interest. Thus, there was no substantial federal interest that justified a falend prosecution. 11 has recently come to our attention that that tlx: CEOS chief statements may be relevant to this mutter. While we welcome the opportunity to consider these statements. our extensive research had found only one federal action that was remotely similar to the federal investigation fix the prosecution of this matter. and that ease has since been distinguished as well. B. Mg. Villafana Prompted An Unduly Invasive linvestiantion Of Mr. Epstein. Ms. investigation of Mr. Epstein raises serious questions. Despite the. IS that she was made aware of the inaccuracies in the PBPD's Probable Cause Affidavit, she chose to include the affidavit in a document filed with the court knowing that the public could access it. Them Ms. Villafana issued letters requesting documents whose subject matter have no relation to the allegations against Mr. Epstein. Notably, after we objected to these overly broad and intrusive requests. Deputy Chief Andrew Laurie denied knowledge of Ms. Villalima's actions and Mr. Laurie commendably sought to significantly narrow the list of documents requested. In a subsequent court filing. Ms. Villafana referred to our agreement to remove these items from her demand list as evidence of Mr. Epstein's "non-cooperation". 'Ibis was only the beginning. Ms. Villafana also subpoenaed an agent of Roy Black (without Ibliowing the guidelines provided in the United States Attorney's Manual that require prior notification to Washington necessary to seek a lawyer's records). We once more requested Mr. Laurie to intervene. Despite these efTorts. Ms. Villafana followed up with a subpoena fur Mr. Epstein's confidential medical records served directly on his chiropractor (with no notice to Mr. Epstein). Ms. Villeins also made the unusual request of asking the State Attorney's °Mee for some of the grand jury materials. She threatened to subpoena the State when she was infmmed that it was a violation of Florida law to rehatse this information. After compiling this "evidence". Ms. Villafana stated she would he initiating an investigation into purported violations of IR U.S.C. §1591 (again without the required prior I)W notification). Ms. Villadima then broadened the scope of the investigation without any foundation for doing so by adding charges of money laundering and violations of a money transmitting business to the investigation. Mr. F.pstein's counsel explained that there could be no basis for these charges since Mr. Epstein did not commit any prerequisite act for a money laundering charge and has never even been engaged in a money transmitting business. Ms. Villalana responded that Mr. Epstein could be charged under these statutes because he funded EFTA00176128 12/11/2007 11:42 FAX lib 019/099 KIRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page 16 illegal activities. To suggest that Mr. Epstein could violate these statutes simply by spending his legally earned money on prostitutes is manifestly. an erroneous interpretation of the law. 1U our relief. tiller briefing Matthew Menchel at a meeting regarding the spurious application of these statutes, we were told to ignore the laundry list and that defense counsels' Mcus should he turned to 18 U.S.C. §2422(h). Once Mr. Epstein's counsel submitted and presented the reasons why a federal case would require stretching the relevant federal statutes beyond recognition, and that federal involvement in this matter should he precluded based on federalism concerns, the /Wire Policy, and general principles of prosecutorial discretion. the parties commenced discussions of a possible pica agreement. Around this time, we received an ellutil from Ms. Villafana suggesting that she wanted to discuss the possibility of a concurrent federal and state resolution. We were immediately 'Mimed by your Office that Ms. Villafana did not have the authority to make any such pica proposals and would not he involved in any further negotiations of a plea. Despite this commitment. Ms. Villarreal was the principle negotiator of the Agreement. At our meeting on September 7. she made reference to an allegation against Mr. Epstein involving a 12 year old individual. This allegation is without merit and without foimel ...raion. Though your last lever suggests there was "no contact" between individuals in your Office and the press. we were previously told by Mr. Lottrie that the FBI was receiving "inthrmation" specifically from Connolly, u Vanity Fair reporter, and not vice versa. C. 'Ws. Villafana Included I Inthir Terms in the Aercement. Ms. Villafana took positions in negotiating this matter that stray from both stated policy and established law. First, Ms. Villafana insisted that as part of the federal plea agreement. the Stale Attorney's Office. without being shown new evidence, should be convinced to charge Mr. Emcin with violations or law and recommend a sentence that are significantly harsher than what the State deemed appropriate. In fact, the State Attorney viewed this matter as a straightforward prostitution case and believed that a term of probation was - and is - the appropriate sentence. At Ms. Villatima's insistence, however. Mr. Epstein was forced to undertake the highly unusual and unprecedented action of directing his defense team to contract the State prosecutors themselves and ask for an upward departure in both his Indictment and sentence. There was no effort by the state and federal prosecutors to coordinate the prosecutions. a practice which is against the tenets of the Futile Policy. In our view, it is unprecedented to micro-manage each and every term of Mr. Epstein's State plea. including the exact state charges to which Mr. Epstein plead guilty; the lime-frame within which Mr. Lipstein must enter that state plea and surrender to slate officials; and the amount of time he must spend in county jail. This is particularly true where the State EFTA00176129 12/11/2007 11:43 FAX 020/098 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page 17 Attorney's Office has a different view of the case and there has been no coordination with stale authorities./' In addition. Ms. Villafana required that Mr. P.psteln's sentence include a registerahle offense. As you know, requiring sexual offender registration will have a significant impact both immediately and forever alter. This harsh term, which is said to be suggested by ihe FBI. was added despite the fact that the State believed that Mr. Epstein's conduct did not warrant any such registration. As you' know. state officials have special expertise in deciding which offenders pose a threat to their community. Moreover. this demand places the state pmseeutore credibility al issue and diminishes the force of sexual registration when It is applied to offenders who state prosecutors do not believe are dangerous or require registration. Ms. Villafana's decision not to permit the State Attorney to determine a matter uniquely within its province was unwarranted. What is more. when negotiating the settlement portion of the Agreement. Ms. Villafana insisted that a civil settlement provision be included in the Agreement namely, the inclusion of IS U.S.G. § 2255. u negotiating terns which is unprecedented in nature.? While we were reluctant and cautious about a plea agreement in which a criminal defendant gives up certain rights to contest liability for a civil settlement. Ms. Villalana's ultimatums required that we acquiesce to these unprecedented terms. For instance, when plea discussion stalled as a result of Ms. Villafann's demands, Mr. Epstein's counsel received a letter from her stating as it "now appears you will not settle." At this point. Ms. Villafana expressed her intention to re-launch the government's previously set aside money laundering investigation. She also issued a nuth of subpoenas and sent target letters to Mr. Epstein's employees. adding new federal charges including obstruction or justice. She then personally called Mr. lipmein's largest and most valued business client without any basis to inlimn him of the investigation. In an attempt to prevent further persecution and intimidation tactics. we proposed that Mr. Epstein establish a restitution fund specifically for the settlement of the identified individuals' civil claims and that an impartial. independent representative be appointed to administer that fund. There was nn dollar amount limit discussed for the fund, hut the idea was still rejected. We then pointed out that the state charges to which Mr. Epstein was to plead guilty carried with it a mute restitution provision that would allow "victims" to recover damages. Ms. Villafana. however, rejected this idea and suggested requiring a guardian ad Mem. implying that When asked whether Department or Justice polices regarding coordination with state authorities had been Followed, Mx. Illatbna gave no response other than stating. "il is none of your concern." 7 In thin. Stephanie Thacker. a former deputy to Drew Osterbolom has muted that she knew urno other case like this being prosecuted by ('L'OS. With that in mind. we welcome the opportunity to review the extensive research that CIEOS has done, as indicated by your Office. EFTA00176130 12/11/2007 11:43 FAX e021/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 18 the alleged "victims" in question were currently minors and needed special representation. We later teamed that the government's list of individuals included a woman as old as twenty-four. which flies in the face of prior representations (it should be noted that any person who is currently twenty four years old or older could not have been a "victim" under 18 U.S.C. § 2253. even if the conduct occurred in 2001). At Ms. Villarana's insistence, the parties ultimately agreed to the appointment of an attnmey representative. hut Ms. Villafann then took the position that Mr. Epstein should pay for the representative's fees. which effectiwly meant that Mr. Epstein must pay to sue hlmsell.8 Mx. Marano also proposed wholly irrelevant charges such as making obscene phone calls and violations of child privacy laws. When Mr. Laurie learned of these proposed charges he asked Mr. Epstein's defense team to ignore them as they would "embarrass the Office." IL Ms. Villafana Continually And Purposefully Misinterpreted The Crilieni Terms of the Agreement. Since the execution of the Agreement, Ms. Villulana has repeatedly misconstrued the terms contained therein. As you know. several facets of this matter have been highly contested by the parties. We sometimes have obtained two competing views as to your willingness to compromise on specific issues that we have mimed with your Office. In particular, them arc times when we have received verbal agreement from you or your staff (and sometimes from Ms. Villafana herself) on a particular issue. only to subsequently receive a contradictory interpretation from Ms. Villains that negates our prior common understanding. tier misinterpretations appear to he attempts to effectively change the spirit and the meaning of the Non-Prosecution Agreement. We onto several examples ofsignilicant misinterpretations. First. despite the filet that we received several commitments from your Office that it would monitor Mr. Epstein's state sentencing but not interfere with it in any way. Ms. Villafana sought to do just that. Ms. Villafana's decision to utilize a civil remedy statute in the place of a restitution fund for the alleged victims eliminates the notification requirement under the Justice for All Act of 2004. a federal law that requires federal authorities to notify victims us to any available restitution, not of any potential civil remedies, to which they are entitled. Despite this fuel Ms. Villafana proposed a Victims Notification letter to he sent to the alleged (Wend victims. Ms. Villafana has gone even further. alleging that the "victims" may make written statements or testily against Mr. Epstein at the sentencing. We lind no basis in law or the Agreement that pmvides the identified individuals with either a right to appear at Mr. Epstein's plea and sentence or to submit a written statement to be flied by the State Attorney. Here. Mr. This anangenuna does not put these alleged "victims" in the same position as they %mild have been had Mr. Epstein been convicted at trial .— in W. they an much better nit EFTA00176131 12/11/2007 11:44 FAX Z022/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I.2007 Page 19 Epstein is pleading guilty to. and being sentenced Its, state offenses, not the federal offenses under which the government has unilaterally recognized these identified individuals as "victims". The notion that individuals whose names arc not even known to the charging prosecutor in a state action should somehow be allowed to speak at a proceeding is unjustifiable. Furthermore. only after obtaining the executed Agreement did Ms. Villafana begin insisting that the selected mpresentative's duties go beyond settlement and include litigating claims for individuals. In Ms. Villalima's Victims Notification letter, she states that Mr. I'odhurst and Mr. Josefsberg. the selected attorney representatives, may -represent- the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by Ms. Villafisna. which is patently incorrect. Yet, neglecting the spirit of the negotiations; neglecting the tem% of the Agreement; and neglecting commonly-held principles of ethics with respect to conflicts, Ms. Villaftmu continues to improperly emphasize that the chosen attorney representative should be able to litigate the claims of individuals. In a similar fashion. Ms. Villafana has overstated the scope of Mr. Epstein's waiver of liability pursuant to the Agreement. Ms. Vihlalbna began asserting that Mr. Epstein has waived liability even when claims with the identified individuals are not settled just after the execution of the Agreement. Ocspite the fact that at that time. we obtained an agreement from you that Mr. Epstein's waiver would not stretch past settlement. Ms. Villafana continues to espouse this erroneous interpretation. E. Ms. Villafana ad The Settlement Process. We are concerned that Ms. Villalima has repeatedly attempted to manipulate the process under which Mr. Epstein has agreed to settle civil claims. First. she inappropriately attempted to nominate ilumben "Herr Ocariz for attorney representative, despite the fact that Mr. Ocariz has a longstanding relationship with Ms. Villafana. Mr. Ocariz turns out to be a very good personal friend and law school classmate of Ms. Villathna's boyfriend, a fact she assiduously kept hidden from counsel. We also learned from Ms. Villafana that she shared with Ocariz the summary of charges the government was considering against Mr. Epstein. Even oiler your Office conceded that it was inappmpriate for its attorneys to select the attorney representative. Ms. Villafana continued to lobby for Mr. Ocariz's appointment. On October 19. 2007, retired Judge Edward B. who was appointed by the parties to select the attorney representative. informed Mr. Epstein' that he received a telephone call from Mr. Ocariz directly requesting that Judge appoint him as the attorney representative in this matter. Furthermore. federal interference continues to plague the integrity of the implementation of the Agreement. We recently learned that despite the fact that them was no communication between state and federal authorities as to the investigation of Mr. Epstein. the FBI visited the State Attorney's Office two weeks ago to request that Mr. Epstein he disqualifitx1 to participate in work release even though the Agreement mandates that Mr. Epstein he treated as any other inmate. EFTA00176132 12/11/2007 11:44 FAX W1023/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 Page 20 III. CONCLUSION In sum, we request that you review the evidence supporting the prosecution of Mr. Epstein. Such n review would serve to address similar concerns as those raised in Neuro, Maryland. which mandate the disclosure of evidence material to guilt or innocence even oiler the execution of an Agreement to enter a plea of guilty. Sec 373 1).8. 83 (1963). Wc believe that the 'prosecution team" was informed by its witnesses (including persons other than and Snigc (inmates who are discussed at length above) that Mr. Epstein's practice was o s e - won e t it than 18 rather than targeting those under I8. We would expect, for instance, that a key witness whose interview with the FBI was recordal would have provided such exonerating inforntation as well us many others. We would also expect the review to uncover clear evidence that demonstrates that Mr. Epstein did not travel to Florida for the purpose of having illegal underage sex nor that he induced underage women by using the Internet or the phones. Furthermore, we ask you to consider whether there is reliable evidence tan just that Mr. Epstein had sexual contact with witnesses who were in fuel underage but whether the allegations arc based on trustworthy (and corroborated) evidence that (0 Mr. Epstein knew that the lianille(s) in question was under 18 at the time of the sexual contact. (ii) Mr. Epstein traveled to his home in Palm Beach for the purpose of having such sexual contact to the extent the allegation charges a violation of IX I et 2423(h) and (e) Mt Epstein induced such sexual contact by using an instrumentality of interstate commerce to the extent the allegations charge a violation of IS U.S.C. § 2422(b) (there is no evidence of interne) solicitation which is the norm upon which Xxlerul jurisdiction is usually modeled under this statute). We believe that the information we provide to you in this submission will be informative and spark a motivation to gain more information with respect to the investigation of this matter. Again, we are not seeking to unwind the Agreement: we are only seeking for you to exercise your discretion in directing that an impartial and respected member of your Office test the evidence upon which the droll federal indictment was based against the "best evidence." including the transcripts of the tape recorded pre-federal involvement interviews. Finally. I would like to reiterate our appreciation for the opponunity you have provided to review same of our issues and concerns. 1 look forward to speaking with you shortly. Sincerely. t y/11 Lotto% i EFTA00176133 12/11/2007 11:44 FAX O024/089 KIRKLAND & ELLIS LLP Juy P. Lelhowitz. P.0 fe Call Writer Directly: VIA FAC:SIN411,14: (3051 530-W4 I lonorable B. Alexander Acosta United Slates Attorney United Slates Attorney's Office Southern District of Florida 99 NI:: 4th Street Miami, FL 33132 Dear Alex. *Nu AIIILUir,0 rAltINtitmirt CilinfOUP Conlin 153 Coot Gant faroot NOW York. NOw York 10022.4611 www.kiikkrnd.com December I I. 2007 Re: Mfrey Epstein f thank you for the opportunity to express my concerns with the Section 2255 component of the Non-Prosecution Agreement (the "Agreements. I provide this submission as a good faith effort to communicate all of our concerns on this matter. I respectfully request that you consider the issues I discuss below in conjunction with the ethics opinion of Mr. Joe D. Whitley shut 1 faxed to your Office on December 7. Beckerman( of Negotiations I believe it is important 11w you to he aware of tlx: full scope and substance of our communications with your Office with respect to first, the negotiations regarding the inclusion of the Section 2255 component and stand. the process of implementation of its (eons. Contrary to your Offices view. we do not raise our concerns about the Section 2255 component of the Agreement at the "eleventh hour." Since the very firm negotiation or the Non-Prosecution Agreement between the USAO and Mr. Epstein, we have verbalked our objections to the inclusion of and specific language relating to Section 2255. Also, when negotiating the settlement portion or the fedend plea agreement. we immediately sought an alternative to the 2255 language. in NO. for the sake of expediting any monetary settlements that were to be made and to allow for a quick resolution of the matter, we repeatedly ollimel that Mr. Epstein establish a restitution fund specifically for the settlement of the identified individuals' civil claims and that an impartial, independent representative be appointed to administer that fund. This option. however, was rejected by your Office. Notably, while in our December 4 later to ine, you indicate that the reason for the rejection of a Fund was because it would place an upper limit on Chicago Hang K(Ing Lgldun Los Angeles Multldl Son Francisco Washinglon,O.C. EFTA00176134 12/11/2007 11:45 FAX W/1025/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December II. 2007 Page 2 the victims recovery, we placed no such limit on the amount that the alleged victims could recover. Our objections regarding the Section 2255 component of the Agreement began as early as August 2 when. after receiving the LISAO's proposed Non-Prosecution Agreement, we suggested that the 2255 component of the Agreement could be satisfied by the creation of tt restitution fund: . ..Mr. Epstein is prepared to fully fund die identified group of victims which ure the focus of the Office — thai is, Ike 12 individuals noted al the meeting on July 31, 2007. This would allow the victims to he able tit promptly pin this behind them and go fanards with their lives. I rgiven the opportunity to opine ns lei the appropriateness of Mr. Epstein's proposal, in my extensive experience in these types or eases, die victims prefer a quick resolution with compensatinn for damages and will always supped any disposition UM eliminates the need For trial. See letter from Lily Ann Sanchez to Chief Matthew Menchel dated August 2. 2007.1 For the duration of the negotiations. we then continued to encourage the use of a restitution fund in place of civil liability under Section 2255. For example. in our draft plea agreement sent to your Office on September 16. 2007. we included the following paragraph: Epstein agrees to fund a Trust set up in concert with the Government and under the supervision of the I51k Judicial Circuit in and for Palm peach County. Epstein mutes dun a Trustee will be appointed by the Circuit Conn and that funds lion the Trust will be availuble to be disbursed tit the Trustee's discretion to on agreed list of persons who seek reimbursement and make it good thith showing to the Trustee that they suffered injury us n result of the conduct of Epstein. Epstein waives his right to contest liability ur damages up to an amount agreed to by the ponies for nny settlements entered into by the Trustee. epaein's waiver is not to be construed as an admission of civil or criminal liability in regards to any of those who seek compensation from the Trust. See dmft proposal sent from Jay Lelkowitz to Andrew Laurie dated September 15, 2007. In response, Ms. Villafamt demanded that the Agreement contain language considering the inclusion of a guardian ad !item in the proceedings. despite the fact that. we ure now led to believe that all but one of the women in question are in fact not minors. Interestingly. Mx. Villafana not only raises the same concerns that now have become issues with respect to the implementation of the Section 2255 component, she also believes that the creation of a trust be in the victims' hest interests. Flamm writes: I It was not until alter receipt of this letter that Mr. Menchel Indicated to its that the scope of liability would =compass nut just the 12 individuals named in the Indictment, but "all of the minor girls identified during the federal investigation." See Mtnichel email to Stinchez dated August 3, 2007. EFTA00176135 12/11/2007 11:45 FAX 0026/099 KIRKLAND S. ELLIS LLP R. Alexander Acosta December 11, 2007 Page 3 As I mentioned over the telephone. I cannot hied the girls to the Trust Agreement. and I don't think it is appropriate that a state court would administer a urea that seeks to pay for federal civil claims. We both wont Plinth! onsertandvas tattooer endow liligatas from enoatigiorwortl. I know that year client wants to keep these motets !onside el pstMe mart filings, but I just don't have the power to do what you ask. Hen is my retanntnendation. During the period between Mr. Epstein's plea and sentencing. I make a motion for appointment or the GuarrIlan Ad Litem. The three of us sit clown and discuss things, and trili.fartiuter ar much as I can Rating the girls' unbowed of this procedure because. as I mentIona I think It to probably in their best WOWS. In terms of plea agreement language. let me suggest the following: Thu United Slates agrees to make a minion seeking the appointment of a Guardian ad titan to mpresent the identified victims, Following the appointment of such Guardian., the parties agree to work together in good faith to develop a Trust Agreement, object to the Court's approval. that would provide fin any damages owed to the identified victims minimal to I R U.S.C. Section 2255. Then include the lust two sentences of your paragraph S. See email from Villafana to I ,elkowitz dated September 16. 2007 (emphasis added). I however. notably, in the draft agreement that follows. Ms. Villafana keeps the same objectionable language and only adds a portion of what was suggested in her communication to us: Epstein agsvcs that, if any of Ow victims idcmifiel in the Mend investigation tile suit pursuant to IS U.S.C. 5 2235. Epstein will not contest the jurisdiction of the U.S. District Coun for the Southern District of Florida over his person and/or tlw subject matter, and Epstein will not contest that the identified victims me persons who. while minors. were victims of violations Wilde IR, United Slates Code. Sections(s) 2422 nndlor 2423. The United States shall provide Epstein's anorne” with a list of the identified victims. which will not exceed fury. alter Epstein has signed this agreement and hats been sentenced. The I hiked States shall make a motion with the United Stales District Conn for the Southern District of Florida fur the appointment of a guardian ad them for the identified victims and Epswin's counsel may contact the identified victims through that Col/MCI. See droll non-prosecution agreement c-mailed from Villafana to Lelkowitz dated September 17. 2007. The inclusion of a guardian ad Mem, however. only served to complicate matters. We continued to reiterate our objections to the inclusion of § 2255 in the Agreement repeatedly. as evidenced in an email from Ms. Villafana to myself on September 23, 2005 where she writes: "we have been over paragraph 6 I the then relevant 2255 paragraph] an infinite number of times." During negotiations. it was decided that an attorney representative be appointed in rho place of a guardian ad litem -- not for the sake of litigating claims. but based on the belief that a guardian ad litem would not be appropriate lbr adults that are capable of making their own decisions. Ilowever. the IJSAO included into the Agreement that we pay Ibr the attorney representative -- when originally Ms. Villafana stated that the representative could he paid for by us or the federal court See c-mail from Villafana to Lelkowitz dated September 23. 2007. EFTA00176136 12/11/2007 11:45 FAX lit 027/089 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page 4 The final agreement was very similar to what was proposed by Ms. Villotbna in her initial draft agreement on July 31. 2007: The United Stoles shall provide l3poein's anomey's with u list of individuals whom ii fins identified as victims, as defined in IR U.S.C. § 2255. alter Epstein has signed this agreement and has been sentenced. Upon the execution of this agreement. the United States. in consultation with and subject to the good faith approval of Epstein's counsel. shall select an attorney representative for these persons. who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through the. representative. If any of the individuals referred in in paragraph (7), caper, elects to 614: suit PIIMUld to IS U.S.C. 2255. Epstein will not contest lac jurisdiction or the United Suites District Court Mr the Southern District or Florida over this person andmr the subject matter, and Epstein waives his right to cattiest liability and also waives his right to contest damages top to an amount as agreed to between the identified individunt and Epstein. so long as the identified individual elects to proceed exclusively under I S U.S.C. § 2255. and agrees to waive any other claim for damages. whether pursuant to slate. federal, or common law. Notwithstanding this waiver. as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit arc not to he construed as an admission of any criminal or civil liability. See limit plea agreement. The Agreement requires Mr. Epstein to waive jurisdiction and liability under IR U.S.C. p2255 For the settlement ol' any monetary claims that might be made by alleged victims identified by the USAO (the "identified individuals"). Mr. Epstein is precluded from contesting liability as to civil lawsuits seeking monetary compensation for damages for those identified individuals who elect to settle the civil claims for the statutory minimum of either $50.000 (the amount set by Congress as of the date of the occurrences) or $150.000 (the amount currently set by statute) or some other agreed upon damage amount. Mr. Lipstein must pay for the services of the selected attorney representative as long as they arc limited to settling the claims of the identified individuals. 'Mc implementation of the terms of the Agreement was just as contentious as was the drafting and negotiation this portion of the Agreement. The first major obstacle was a direct result of Ms. Villafanu's improper attempt to appoint. Mr. Bert Ocariz, a close, person friend of her boyfriend's for the role of attorney representative. We objected in the strongest terms to such an appointment due to our serious concerns regarding the lack of independence of this and the appearance of impropriety caused by this choice. As n result. the USA° drafted an addendum to the Agreement. This addendum provides for the use of an independent third party to select the attorney representative and also specifies that Mr. IlpsWin is not obligated to pay the cost of litigation against him. Upon the decision that we would appoint an independent party to choose the attorney representative, we were engaged in consistent and constant dialogue with your stuff as to the precise language that would he transmitted to the independent party to explain his or role. EFTA00176137 12/11/2007 11:48 FAX 028/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 rage 5 At each juncture, the inclusion of a civil remedy in the Agreement has resulted in unending debates and disagreements with respect to the appropriate manner in which to implement the terms of the Section 2255 component. The main issues that have arisen since the drafting and execution of the final agreement include the process for the selection of an attorney representative: the scope of Mr. Epstein's waiver of liability and jurisdiction: the role of the attorney representative; the language contained in various drafts of the letter to the independent third party; the correct amount of minimum damages pursuant to Section 2255; the extent and substance of communications between the witnesses and alleged victims and the LISAO and the FBI. particularly with respect to the settlement process; the language contained in the letters proposed to be sent to the alleged victims; and the extent of continued federal involvement in the state procedures of Mr. Epstein's state plea and sentence. Notably, neither Section 2255. nor any other civil remedy statute, has been used as a pre- requisite to criminal plea agreement and it is clear that the use of these terms creates unanticipated issues. Furthermore, the waiver of rights of which the USA° insisted is also not a traditional aspect of criminal resolutions. While we were reluctant and cautious about a Non- Prosecution Agreement in which a criminal defendant gives up certain rights to contest liability for a civil settlement, we did not believe there was room for contention given the USAO's, and specifically. Ms. Villafana's ultimatums that required that we acquiesce to these unprecedented terms. Concerns Reeardinst Section 2255 Mr Epstein unconditionally re-asserts his intention to fidfill and not seek to withdraw from or unwind the Agreement previously entered. Ile raises important issues regarding the implementation of the 2255 provisions not to unwind the provisions or invalidate the Agreement but instead to cull attention to serious matters or policy and principles that you are requested to review. As you will see below our main policy-related concerns are (1) tlx: inclusion of Section 2255. a civil remedies statutes in a criminal plea agreement. (2) the blanket waiver of jurisdiction and liability as to certain unidentified individuals to whose claims the government has asserted they take no position, and (3) any communications between federal authorities, including your staff and the FIIL and witnesses and alleged victims and the nature of such communications. With respect to the interpretation of the terms of the Agreement, we do not agree: with your Office's interpretation of the expansive scope of Mr. Epstein's agreement to waive liability and jurisdiction. Nor do we agree with your Office's view of the expansive role of the attorney representative. Below. I describe first, the policy implications and the practical problems that these terms have created or will create. Second. I describe points of contention as to the interpretation of various terms of the Section 2255 component of the Agreement. EFTA00176138 12/11/2007 11:46 FAX l 029/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page 6 1. Policy Considerations The inclusion of Section 2255 in a criminal plea agreement is unprecedented and rakes significant policy-related concerns. Some of these issues can create and have created pmblems as to the ability of this component to (1) maintain the integrity and Independence of the USAD, (2) serve its purpose. namely to provide lair and actin-tmeline recovery to any victims in a prompt fashion, and (3) protect the rights of the defendant. While we appreciate your consideration of our concerns described below, we are also confident that your commitment to justice and integrity will cause you to consider any additional policy and ethical issues that tlx: Suction 2255 component raises. A. Government Involvement The inclusion of Section 2255. a purely civil remedy. raises the risk of excessive government interference in private, civil matters. As Mr. Whitley states in his opinion, " . . .unueccssary entanglement of the government in such eases and the use of federal resources could improperly influence such cases and create the appearance of impropriety." It is well established that the government should refrain from getting involved in lawsuits. I lowevur, to include Section 2255 in a federal agreement inherently exacerbates the risk of federal involvement in civil litigation and thus far, in practice, the inclusion of this statute, as opposed to the creation of a restitution fund, has resulted in continued Wend involvement in this matter. Federal criminal investigators and prosecutors should not be in the business of helping alleged victims of state crimes secure civil financial settlements us a condition precedent to entering non-prosecution or deferred prosecution agreements. This is especially true where the defendant is pleading to state crimes for which there exists a state statute allowing victims to recover damages. See Florida Statutes 796.09. The fact that Mute law accounts for the ability of victims to recover truly eliminates the need fora waiver of liability under a federal statute. Furthermore. the vehicle for the financial settlement under the Agreement requires restitution in a lump sum without requiring proof of actual injury or loss federal authorities should therefore be particularly sensitive to avoid causing a prejudiced and unfair result. Section 2255 is a civil statute implanted in the criminal code that in contrast to all other criminal restitution statutes fails to correlate payments to specific injuries or losses and instead presumes that victims under the statute have sustained damages of at least u minimum lump sum without regard to whether the complain:tins suffered actual medical, psychological or other Ihrms of individualized harm. We presume that it is Ihr this reason that Section 2255 has never before been employed in this manner in connection with a non-prosecution or deferred prosecution agreement. EFTA00176139 12/11/2007 11:47 FAX 1 030/09B KIRKLAND S. ELLIS LLP R. Alexander Acosta December 11.2007 Page 7 Mr. Epstein's blanket waiver ol' liability as to civil claims gives the appearance of impropriety. While your Office has, on several occasions. asserted that they take no position as to the claims of the individuals it identifies as "victims," the fact that they continue to promote the award of a civil settlement to these individuals is problematic. As you know, government contracts and plea agreement must not diminish or undermine the integrity of the criminal justice system. See (ISI McGovern. 822 F.2d 730, 743 (8th Cir. 087) ("A plea agreement, however, is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the awns to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea."). The requirement that Mr. Epstein blindly sacrifice his rights. UN a civil litigant. to contest allegations made against him seem to contradict the principles of justice and litimess that arc embedded in the tenets of the Ilnited Slates Attorney's Office. I also assert that on both a principled and practical level, the mere involvement of your Mice in the matter with respect to civil settlement is inappropriate. Even though we understood from you that federal involvement in this matter would cease slier the attorney representative was selected, your Office continues to assert their obligation to he in contact with the alleged victims in this matter. Had we agreed to a restitution fund for the victims instead of the civil remedies provision, we would not have objected to your Office's communications with then individuals. however. because the alleged victims have the ability to recover damages based on a civil claim pursuant to the Agreement, we are concerned with your Of ice's ongoing efforts to stay involved in this matter. Contact with federal authorities at this point can only invite the possibility for impermissible or partial communications. Mast recently, your Otlice sent us drafts of a letter that your Office proposed to send to the alleged victims (the "victim notification letter"). While the revised draft of this letter states that victims should contact the State Attorney's Office fur assistance with their rights, there is no phone number provided for the office and instead, the letter provides the telephone number and an invitation to contact Special Agent Nesbitt Kuyrkundall of the FBI. Indeed, the letter as currently drafted invites not only contact between your Office and the victims, it also asserts that federal witnesses may become participants in a state proceeding, thus federalizing the state plea and sentencing in the same manner as would the appearance and statements ol'a member of your Office or the Fill 2 We arc concerned with the fact that some of the victims were previously notified, as Mr. Jeffrey Shemin slates in his ktiur of December 6 letter. In your letter of December 4. you state that you would not issue the Victim Notification Low until Deeemher 7. Thus, it is mudding to learn that sonic victims were notified prior to that date. Please confirm when the victims were notified, who was notified, the method of communication ftw the notification, and die individual who notified them. EFTA00176140 12/11/2007 11:47 FAX e1031/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Pngc 8 The proposed victim notification letter asserts that the federal 'victims' have the right to appear at Mr. Epstein's plea and sentence or to submit a written statement to be filed by the State Attorney. However, as (freed to in the federal non-prosecution Agreement, Mr. Epstein will be pleading to Note charge and he will be sentenced pier the commission of slate axes. The 'victims' the government identifies relate only to the federal charges raw which Mr. Epstein was under investigation. Thc draft victim notification letter cites Florida Statutes § 960.001t lc) and 921.143(1) as the authority allowing the alleged victims to appear or give statements. however these provisions apply only to "the victim of the crime liar which the defendant is being sentenced . . . " Thus Florida law only affords victims of state crimes to appear or submit statements in criminal proceedings and the state charges for which Mr. Epstein will be sentenced are not coextensive with the ibderal investigation. Further. any questions at this point involving the charges against Mr. Epstein or the proper state procedures under which he will plead or be sentenced are appropriately made to the State Attorney's Office. Continued federal involvement in this matter has led to an impropriety that WM unanticipated us well. Ms. Villafana attempted to manipulate the terms of Mr. Epstein's settlement so that persons close to her would personally profit. Ms. Villatima inappropriately attempted to nominate Bert Ocariz for attorney representative. despite the fact that Mr. Ocariz turns out in be a very good personal friend of Ms. Villalima's boyfriend, a Pact she assiduously kept hidden from counsel. We requested alternate choices immediately. but were told that Mr. Ocariz had been informed of the charges the government would bring against Epstein and in response. he asks in an e-mail whether his fees would be capped. Needless to say. we were alarmed that Ms. 'Reyna would attempt to influence the settlement process on such improper grounds. And even alter the IJSAO conceded that it was inappropriate for its attorneys to select the attorney representative, Ms. Villafana continued to impro rly lobby for Mr. Oeariz's appointment. On October 19, 2007, retired Judge Edward B. who was appointed by the parties to select the attorney representative. informed Mr. Ells em s counsel that he received a telephone call from Mr. Oeariz directly requesting that Judge Davis appoint him as the attorney rim entative in this matter. Although it is unclear how Mr. Ocariz even knows that Judge has been chosen to administer the settlement process, it can only he understood as Ms. Vinalima's attempts to compromise the fairness of the settlement process. II. Integrity of the Process and the Legitimacy of the Claims The waiver of liability Mr. Epstein must make in relation to Section 2255 endangers the legitimacy of the claims made by the alleged victims. There is a heightened risk that the alleged victims will make false and exaggerated claims once they are inlbmwd of Mr. fipstein's waiver under Section 2255 for the settlement of claims pursuant to the Agreement. Indeed, Mr. Whitley states. " . . .the Department [of Justice) should consider developing processes and procedures to ensure that the investigative process is insulated from such risks." It is also well settled that witnesses cannot be given any special treatment due to the fact that it may affect the reliability of EFTA00176141 12/11/2007 11:47 FAX 032/099 KIRKLAND & ELLIS LIT It. Alexander Acosta December I I.2007 Page 9 their testimony. Any and all communications between the federal authorities and the alleged "victims" and witnesses in this matter has the ability to influence the reliability of the testimony obtained and the validity of the civil settlements that result. Thus, there is still a real concern that Mime of the statements that federal prosecutors relied upon in its prosecution of this mallet may have been tainted. An inquiry is required to confirm that at the time witness statements were given, there were no communications made by federal agents regarding potential civil remedies. The government should not provide promises of guaranteed monetary settlements to encourage cooperation because they run the risk of seriously tainting the reliability of witness shnemems. While we by no means are accusing your Office of snaking improper communications at this point the fact that the award ol' a civil settlement, without any requirement to prove liability. is available to the identified individuals, raises cause for concern us to the nature of all communications that are made to the 'victims.' You previously stated that the USAO's main objective with respect to the Section 2255 component of the Agreement was to "place the victims in the same position us they would have Oven had Mr. Epstein been convicted at trial." I lowever. to accomplish this goal. your Office rejected using traditional kilns that allow for the restitution of victims. Instead, your Office chose to insert itself into the negotiations, settlement, and potential litigation of a civil suit. With all due respect we object to your Offices attempt to make the victims whole by requiring that Mr. F.p.sicin deprive himself of rights accorded to him as a potential civil defendant. While we are aware one of the responsibilities of your Office is to pmvidc lie restitution for victims of crimes, this does not give the government the responsibility to enable alleged victims to collect a civil settlement. Despite this concern, it should also he noted that, the Agreement. Moth as written and us interpreted by your Office significantly enlarges the victims' ability to recover from Mr. Lipstein. For instance. it' the individuals attempted to litigate against Mr. Epstein. they would have been determined to be victims only after a lengthy trial, in which they would have been thoroughly deposed, their credibility tested and their statements subject to cross-examination. The defendant, under these circumstances, would not have had pay the plaintiffs' legal fees. Moreover, these individuals would face significant evidentiary hurdles, unwanted publicity, and most importantly. no certainty of success on the merits. Therefore. the notion that your Office is merely attempting to restore these - victims" to the same position as they would have been had Mr. Epstein been convicted at trial misunderstands the Agreement and your 011ice's implementation of its terms. C. Rights of a Defendant Requiring Mr. Epstein to snake a blanket waiver of liability and jurisdiction as to unidentified victims whose claims to which the government takes no position can be construed as EFTA00176142 12/11/2007 11:40 FAX 1i:1033/098 KIRKLAND 8. ELLIS LLP R. Alexander Acosta December 11. 2007 Page 10 violative of his Due Process rights. Furthermore, the fact that the statute at issue in this matter does not connect harm to the minimum 011100111 available to the victim and simply includes a lump sum exacerbates the potential for injustice and an abridgement of Mr. Epstein's rights. At the very least. Mr. Epstein should be given the right to know the identity of the victims and the evidence upon which each one was identified as a victim by the government. The USAO has provided no information us to the specific claims that were made by each idauilioxl individual, nor were we given the names or ages of the individuals or the 'imam of the alleged conduct at issue. The USAO's reluctance to provide Mr. Epstein with any information regarding the allegations against him leaves wide open the opportunity Ihr misconduct by the federal investigators and eliminates the ability for Mr. Epstein and/or his agents to verily that the allegations at issue are grounded in factual assertions and real evidence. Indeed, the requirement that a target of federal criminal prosecution agree to waive his right to contest liability as to unnamed civil complainants creates at minimum an appearance of injustice, both because of the obvious Due Process concerns of waiving rights without notice of even the identity of the complainant and because of the involvement of the federal criminal justice system in civil settlements between private individuals. We reaffirm the ri ht to test the veracity of the victims' claims as provided to us in the letter from you to Judge dated October 25. 2007. "victim- 11w purposes of Section 2255 relict: Ms. who initially al ri .al lirefused tn asa It has recently come to our attention that your staff has identified cooperate with federal authorities during the course o t nc investigation, only submitted to an interview after she wits conferred with a grant of immunity. Surely this is not a demand typically made by someone who is a crime "victim". Moreover, Ms. Millers sworn testimony does not suggest that she is a victim. Ms. has not only admitted that she lied to Mr. Epstein about her age claiming she was 18 years old, ut that she counseled others to lie to Mr. Epstein in the same manner. Ms. also states that Mr. Epstein was clear with her that he was only interested in "women w to were ol'age and that most of the youn g women she brought to his home were Sued over 18 years of age. Moreover. while Ms. claims to have provided massages to Mr. Epstein. she does not allege to have engaged in sexual intercourse with Mr. Epstein: does not claim she provided him with and sex: does not purport that Mr. Epstein penetrated her in any manner: denies Mr. Epstein ever used a vibrator. massager. or any type of "sex toy" on her: denies he touched her breasts. buttocks. or vagina: and states that she never touched Mr. Epstein's sexual organs — nor was she asked to do so by Mr. Epstein. Without a right to contest the liability of claims. Ms. will likely receive far more in civil damages than what would he she would have had Mr. :web) been convicted. In addition, the Agreement with the MAO only defers federal prosecution of Mr. Epstein: it does not assert a declination to prosecute. as was first contemplated in the negotiation of the Agreement. Any payments made and/or settlement agreements reached with the alleged EFTA00176143 12/11/2007 11:48 FAX 094/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December t I. 2007 Page I I victims prior to the foreclosure of any future federal prosecution carries the potential of being used as evidence against Mr. Epstein. Thus, to protect his rights as a defendant. Mr. Epstein should nut be required to pay any of the alleged victims until after the threat of prosecution no longer exists. II. Misinterpretations of the Agreement The contentiousness caused by the implementation of the Section 2255 portion of the Agreement has also been caused by what we believe are misinterpretations of the terms by your Office. These problems, which I describe below, area practical outgrowth of the fact that civil settlement. us opposed to restitution, is considered in the Agreement. A. Rule of the Attorney Representative The LIMO has improperly emphasized that ate chosen tummy representative should be able to litigate the claims of individuals, which violates the terms, and deeply infringes upon the spirit and nature of. the Agreement. I lowever. after the panics agreed to the appointment of an independent third puny to select the representative, the government announced that the criteria for choosing an appropriate attorney representative would include that they be `•a plaintiff's lawyer capable of handling multiple lawsuits against high profile attorneys." This interpretation of the scope of the attorney representative's role is lift outside the common understanding that existed when we negotiated Mr. Epstein's settlement with the MAO. Moreover, we have made the USA° aware of the potential ethical problems that would arise should the selected representative be allowed to litigate and settle various claims against Mr. Epstein. The initial draft victim notification letter contained language that confirmed your Office's interpretation and indicated that Mr. Podhurst and Mr. Josefsberg, the selected attorney representatives. may "represent" the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by the 0SA°. which we believe is patently incorrect. To suggest this notion in a letter to victims who have limited or no knowledge of the ethical principles ut issue will only lead to confusion, misunderstanding and disappointment among the identified individuals when they learn that such representation is foreclosed. B. Scope of Mr. Epstein's Waiver Your Office has taken the position that Mr. Epstein waives liability beyond the settlement of claims and that he will waive liability even in lawsuits brought by the identified individuals. However. this overstates the scope of Mr. Epstein's waiver pursuant to the Agreement. Mr. Epstein has only agreed that he will waive the right to contest liability and jurisdiction for the purpose of settling claims with the alleged victims pursuant to Sections 7 duough 8 of the Agreememand Addendum. Mr. Epstein has no obligation to waive this right to contest liability EFTA00176144 12/11/2007 11:49 FAX la 035/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 12 in any claim liar damages • • by an enumerated "victim" or anyone else — where that party fails to settle her claims pursuant to the terms of the Agreement. The revised droll of the letter avoids this misinterpretation and directly quotes Paragraphs 7. 8, 9 and to of the Agreement. While we do not have any objection to including this portion of the Agreement in the proposed letter, we request rhat Paragraphs 7A, 711. and 7C of the Addendum to the Agreement also be included because the hinguatte containixl there in most clearly outlines the scope of Mr. Epstein's obligation to pay damages under the Agreement. C. Right of the Alleged Victims to Be Notified As we have expressed to you previously, we do not agree with your Office's assertion that it is either am obligation and even appropriate for the MAO to send a victims notification letter to the alleged victims. The Justice Sr All Act of 2004 only contemplates notification in relation to available restitution for the victims of crimes. However, since Section 2255 is only one of many civil remedies, there is no requirement that the USAO inform alleged victims pursuant to the Justice Sr All Act of 2004. Notably. if the USAO had agreed to include a restitution fund in the Agreement as opposed to a civil remedy statute, the alleged victims would have the right to be notified pursuant to the relevant Act. Further. we note that the reasons you cite in favor of issuing the proposed Victims Notification letter in your correspondence of December 4 are also inapplicable to this scenario. For instance, you cite 18 U.S.C. * 3771 for the proposition that your Office is obligated to provide certain notices to the alleged victims. However. 18 U.S.C. § 3771(0)(2) & (3) provide: A crime victim has the fallowing rights: (2) The right to reasonable, accurate, and timely' notice of any public court proceeding, or any parole proeeeding, invoking the crime nr any release or escape ot'ihc meat:nal. I.31.11}1.1 right not to he excluded limn any such public court proceeding. unless the court, alter receiving clear and convincing evidence, determines that testimony by the victim would he materially altered 011ie victim heard other testimony at the proceeding. (emphasis added). Your interpretation of § 3771 is erroneous because the rights conferred by the statute indicate that these rights an: for the notification and appearance at public proceedings involving the crime for which the relevant individual is a victim. As you know, the public proceeding in this matter will be in stale court thr the purpose of the entry of a plea on state charges. Therefore, 18 U.S.C. § 3771 clearly does not apply to *Victims" who are not sta