12/11/2007 11:37 FAX

12/11/2007 11:37 FAX a 002/099 KIRKLAND & ELLIS LLP NO ma MI IN It% Kenneth W Sten I o CAN NOW Ootelty Hiccintakc wcwouniMilacOrn Ikcember I I. 2007 O051 530-6444 I lonomble R. Alexander Acosta United States Attorney United States Attorney's Unice Re: Jeffrey Epstein Dear Alex: As we discussed during our telephone conversations on both Friday and Monday (yesterday), we arc submitting two separate letters that address our broad areas of deep concern in this matter: First, the cluster of fundamental policy issues surrounding the use and implementation of 2255. a richly policy-laden but uncharted area of federttl 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 of Jeffrey'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. ad generic. We say this not lightly. Indeed, as you will glean from our tsvo letters. we are gravely concerned that, in addition to its odd conceptualization and genesis, the matter in Rs 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 again, are nut being served. By way of illustration. but it is only one among a cascading list of grave concerns. we now understand that the Assistant United States Attorney w 1 • it act has troubled us from day one has quite recently reached out to the attorney for and CNcago Hong Kong London Munich Now 'stook Son rrancieco Washingla D.C. RFP MIA 000442 EFTA00208923 12/11/2007 1 1.37 FAX 6)003/089 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta Decemhcr I I. 2007 Page 2 pmvidcd oral notification of the victim notification letter. This notification. as we have slated time and again_ is profoundly unfair. But quite apart from our substantive concerns, which am abiding and which had prompted our appeal to the Assistant Attorney General in the ant instance, we had thought that the notification process had been held in abeyance until completion of our ongoing discussions with respect to that process. That appears not to be so. This latest in a baleful line of pmseeutorial actions is drippin with 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 making Judgments consistent with our constitutional order — to the telling fact that Ms. Miler did not in any manner view herself as u 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 provide that review, our defense team is very grateful. Respectfully Submitted. Kenneth W. Starr RFP MIA 000443 EFTA00208924 12/11/2007 11:37 FAX la 004/099 • • KIRKLAND & ELLIS LLP near ru1tURA l'AtINLICAPrit J'y P I ellcowdz. P C I o C 'I Wr r wintildittand.Can December I I.2007 VIA FACSIMILE (305) 5.30-6444 I lonorable K. Alexander Acosta linked States Attorney United States Attorney's (Mice Re: .1rffix;v Epstein Dear Alex: I appreciate the opportunity you have provided to review some of the issues and concerns of Mr. Epstein's defense team. Importantly. I appreciate your agreement dud 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 awl-I:mem 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 my client that this submission will not in any respect result in formal ur informal repercussions or attempts by any member of the prosecution or investigative team to involve themselves in 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 Stem's letter to Alan Dershowitz faxed to you on December 7. 2007, in connection with the ameems we set forth in this submission. I. FEDERAL INVESTICATORS 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 cam %sae tirst interviewed by Detectiven the Palm Beach Police Department (the -PRPIT) and other state law enforcement officers. These interviews (the - witness statements- ) were often tape-recorded thus providing a verbatim and detailed record of the recollections of the witnesses nt a point in time prior to any federal involvement. Unfortunately. the police report authored by Detective and certain affidavits executed by him contained both material misstatements Chicago Hong Kong I antinn Los Armpits munch San Francisco Washington. D C RFP MIA 000444 EFTA00208925 12/11/2007 11:37 FAX 005/099 KIRKLAND & ELLIS LLP K. Alcsander Acosta December I I. 21)07 Page 2 reganling the specifics or what he was told by his witnesses and also contained omissions of critical and often exculpatory information that was recorded verbatim during the taped interview sessions. The federal investigation involved intent with many of the same witnesses. We are aware that at least one federal interview 1 ) 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. These witness statements constitute the best evidence available (they are verbatim and earlier in time to the federal interviews), and they contain statements that are highly exculpatory to Mr. Epstein. Because understanding the compromised nature of the "evidence" against Mr. Epstein is key to a proper view of this case. we summarize it in detail below. A. The Witness Statements !establish That Mr. Iln.tein Dirt Not Tame Masseuses tinder 18. Indeed, the witness statements demonstrate that the opposite is true. First. the evidence shows that the many of the masseuses were ei ghteen or over. ineludin and at the time they visited Mr. Epstein's home. Also, there is substantial evidence, linind in the sworn statements of the women themselves, which indicate that, to the extent others were in fact under the age of ei hteen, man affirmatively lied about her age. As herself told the PftPI): told me to say I was IS because said . . . if you're not then he [Epstein' won't really let you in his house. So I said I was Ir. Detective Recarey. however. largely ignored these critical admissions in his Police Report and Probable Cause Affidavit. Q: At any time. did he speak to you and does he know how old you are? Did he know how old you were? A: . . As a mater of lact. old me to say I was 18 because -lid tell him you're IS because if you're not, then he won't really let you in his +use. Su I said I was IS. As I was giving him a massage. he's like. how old arc you? And then I was like IS. But I kind of said it really fast because I didn't want to make it sound like I was lying or anything. (Swum Statement of 3/I 5/05). Q: Did he ask von your age? A: Yeah. I mid him I %%as IS. (Sworn Statement of 10/05/05). RFP MIA 000445 EFTA00208926 12/11/2007 11:38 FAX la 008/089 K. Alexander Acosta December 11.2007 Page 3 • • • • • KIRKLAND & ELLIS LL(' Q: Did he know your age? A: I don't think — I think he did. you how old are you just say you re thought you had to be IS to give a 12/13/05) A: We were supposed to say we were I S. (1: Who told you that, to say that? A: (Sworn Statement of 11/8/05). wni: like oh. well if they ask Lit c :set cr .tsked me how old I was. 1 massage (inaudible). (Sworn Statement of A: I told him I was IS. (Sworn Statement of 10/3/05). concerning Well with don't know how old she is because she lied about her age. She lied In me when I first met her. When 1 was IR she told me she was I& (Inaudible.) Well she tell her purse at my house and she told me to make sure that I didn't look in her purse. When I went through her purse I found her state license that said she was lb so she lied to me about her age. (Sworn Statement of 10/03/051) 0: Now. how old were you when you first 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 IS though? I In addition to giving a swam mmement au the MINI Station. nnversat ions with I )eteet v while being muisported to illki from the station were also re . -his ew:erpt taken from the act in of raveling from the Mahon. RFP MIA 000446 EFTA00208927 12/11/2007 11:38 FAX la 007/089 R. Alexander Acosta December I I.2007 Page 4 • KIRKLAND & ELLIS LLI' A: I Ih-huh. I had been DI for like 8 months, nine months already. My birthday is in June so I had been 18 for a while. (Sworn Statement of 2/3/05). Q: Okay. Flow old arc you now? You're - A: I'm 20 Q: You're 20. So a couple months ago you would have been what. 19? A: tlh-huh. Q: Alright. So July. August you would have been 19.20. On the verge of 20? A: Llh-huh. (Sworn Statement of 11/4105) We believe that other witnesses have similarly told the FRI that Mr. Epstein attempted to monitor the ages of the masseuses who came to his home. We further believe that these transcripts would show that the federal interest in prosecuting Mr. Epstein fur paradigmatic state offenses was far less compelling than the inaccurate police reports suggest. B. Reflective a Made Crucial Misstatements in the Police Henna 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. Time alter 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. arc flatly eontradiewd, by the witness who purportedly made the statement. In fact, they ellen stand in stark contrast to representations made by I klAtlia in both the official Police Report and in affidavits signed by him under oath . We highlight the most significant ones identified to date: • el Not Report that Epstein Told Her to Lie Ahout her Age [he Probable Cousc Affidavit indicates that during her sworn statement advised that during her frequent visits Epstein asked for her real age.. state WAS sixteen [and thatI Epstein advised her not to tell anyone her rea a Probable Cause Affidavit at II. That statement appears nowhere in swum statement. RFP MIA 000447 EFTA00208928 12/11/2007 11.38 FAX a 008/099 KIRKLAND & ELLIS LLI' R. Alexander Acosta December I 1. 2007 Page 5 • Did Nut State that Epstein Photographed Her I laving Sex Detective also reports as claiming shut "Epstein would photograph Marcinkova and her naked andrwing sex and proudly dis lav the photographs within the home." Id at 12. Again, this statement is not in sworn statement. To the contrary. the transcript reflects that stated: "I was just like. it was me standing in front of a big white marble bathtu ... in the guest bathroom in his master suite. And it wasn't like I was you know spreading my legs or anything for the camera. I was like. I wax standing up. I think I was standing up and I just like. it was me kind of looking over my shoulder kinda smiling, and that was that." Sworn Statement of 10/11/05 at 35.2 'aid Epstein Did Not Touch Her Inappropriately tee' we recounts that advised that "P.pstein grabbed her buttocks and pulled her close to him. ron e .ause Affidavit at 6. See also. Police Report (10/07/05) at 30 (same). ever made this statement. In fact. when Detective asked. "He did no ouch you inappropriately?" responded. -No.- Sworn Statement of 10/04/05 at I I. • War Nut Sixteen When She First When to Epstein's I tome. Detective states: • also stated she was sixteen years old when she first went to Epstein's house . Incident Kepon at 52. lowever. affirmatively states that she was seventeen when she first went to Epstein's home: "U: Okay. How old were you when you first went there? A: Seventeen. Q: Seventeen. A: And 1 was 17 the last time I went there too. turned IS this past June". Sworn Statement of 11/14/05. fold Detective Keeney that Epstein Did Not Take out Sex Toys. Epstein Pmhahlc Cause Affidavit at 14: see also Police Report (11/10/05) at 49 C'Epstein 'this statement appears nowhere in the transcript of -sworn 21.11/Als interviewed by Oacclivveice. once by telephone. and once in person. The portions of thc Police Report to which we refer specific:all) cite the interson interview of as the source for the inlbrmation nponcd. We have reviewed the reconling of that interview and base the coniretrison on that review. We have never Nand a recording of the telephone intervievi. RFP MIA 000448 EFTA00208929 12/11/2007 11:38 FAX QI009/093 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 6 statement. In fuel. when Deicelive asked whether Mr. Epstein had "ever mkt] out any toys,"Illinesponded. "No." Sworn Statement of 11/08/05 at 17. • Nil Nov Recall Mr. Epstein Masturbating Detective Meottnts that-"advised she was sure [Mr. Epstein' was inasitirbating based on his hand movements going up and down on his penis area.- Probable Cause Affidavit at R. See also Police Report ( I 0/07/05) at 35 (same). Detective account is in direct contradiction to true statement. specilically: Q: Okay did he ever take off— did he ever touch himself? A: I 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 I0/05/05 at 7). • Juan Alessi Stated that Only One Girl Looked Young Police Report at 57: "Alessi stated 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 remember one girl was young. We never asked how old she was. It was not in my job . . . But I imagine she was 16. 17". (Sworn Statement of I I/21/05) C. Detective 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 omixsions, both of facts known to the POPD and also of facts not known to the POPO, though known by the State Attorney. In the latter instance. the luck of knowledge was the result of the PBPD's refusal to receive the exculpatory evidence. In feet they refused to attend a meeting called by the State Attorney specifically to provide the relevant evidence. Thus. the Police Report and Pmbahle Cause Affidavit only affix a skewed view of the facts material to this matter. examples follow. 1. The Video Surveillance Equipment Located in Mr. Enteln's Office and G'arame. Ruth the Police Report (at 43) and the Probable Cause Affidavit (at IS) make RFP MIA 000449 EFTA00208930 12/11/2007 11:39 FAX 8010/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11.2007 Page 7 particular mention of the "discovery" of video surveillance equipment (or "coven cameras" as they are called) in Epstein's garage and library/office. Inclusion of this information insinuates a link between the equipment and the events at issue: in the Probable Cause Affidavit fletectiv. states. "on the flat floor of the I Epstein' residence I [Detective Sund two covert cameras hidden within clocks. One was located in the garage and the other located in the library area on a shell' behind Epstein's desk . . . The computer's hard drive was reviewed which showed several images of and other witnesses that have been interviewed. All of these images appeared 10 come from the camera positioned behind Epstein's desk". See Probable Cause Affidavit at 1K. Clearly omitted from both the Police Report and the Probable Cause Affidavit is the fact that the PIM and specifically Detective knew about the trAMCM since they were installed in 2003. with the help of w D, to address the theft of cash from Epstein's home. 'Ibis fact is detailed in a Palm Beach Police Report prepared in October 1003 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 time. See Alessi Police Report at 5. R. The contemporaneous police report confirms the fact that the video footage was turned over to Detective himself. 2. Polygraph Examination (mann. On May 2. 2006. Mr. Epstein submitted to a polygraph examination by NUM 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 Mr. Epstein was asked (a) whether he bad "sexual contact with (b) shcther he "in anyway threatenledi (c) whe cr w was o t by that she was IR years LI whether he "believed vas years old". As set forth in the Report or the examination. the term "sexual contact" was given an extremely broad meaning in order to capture any inappropriate conduct that could have occurred) The results of the examination confirmed that (i) no such conduct occurred: (ii) Mr. Epstein never threatened (iii) told Mr. Epstein she was 18 years old: and (iv) Mr. Epstein believed .as K vests old. Ile deiinninn included: - soda' intercourse. oral sex acts (penis in mouth ur 'initial on vagina). linger penetration of the vagina. linger penetration of the anus. touching of the vagina for sexual gratification purposes, touching orate penal for sexual gratilieat.on purposes. niamurbalion by at to :another. hushing or rubbing of toe breasts. or any other physical contact involving :sexual ihoughis :rod or desire. with another person". RFP MIA 000450 EFTA00208931 12/11/2007 11:38 FAX x011/088 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 8 3. Broken "Sex Top" i►► 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 fact 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 milted it was in fact 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 reflect the discovery of this new and highly relevant evidence. 4. Failure to Consider Ernelpatory or Impeaching Evidence. Other exculpatory and impeaching evidence known by the PBPD tau omitted from the Police Report and Probable Cause Affidavit by, in our view, manipulating the date the investigation was allegedly closed. According to the Police Report tat 85). Detective "explained Ito ASA Itclohlavek) that the PBPD had concluded its case in of 2005". That assertion, which is false. conveniently resulted in the omission of all inlbnnation adduced subsequent to that dale. Thus. though the Police Report in fact contains information obtained after December 2005. the PBPD purported to justify its refusal to consider, or even to include, in the Police Report. the Probable Cause Affidavit or what ii 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 Health Problems of Me Witnenes Relied on in the Police Report and Probable Cause Affidavit. Evidence obtained concerning the witnesses relied upon to support the Probable Cause Affidavit casts significant doubt on whether these witm.-1/4ws are sufficiently credible to support a finding of probable cause, let alone to sustain what would be the prosecution's burden of proof at a trial .4 Though such evidence was submitted to the PBPD. 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 2I ) 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, 1 Whit,: WC haw never intended to and do not here seek to watuitously coo aspersions on any of tlw witnesses. in previously asking the Stale and now asking you to evaluate she strength of this ease, we have been constrained to point out the fact thin the alleged victims chose to present themselves to • world through MySpace profiles with self-selected monikers such as -Pimp Juice- and' ' or with nude photos. RFP MIA 000451 EFTA00208932 12/11/2007 11:40 FAX ill 012/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page') Alessi admitted to the PRPD that he entered the house unlawfully on numerous occasions, stealing cash and attempting to steal Epstein's licensed handgun to commit suicide. Although this information was known by Detective 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 of the vast majority of the serious clowns tags( Epstein. While the Police Report and Probable CUM: Affidavit rely on numerous assertions, them are two significant problems with that reliance. First there is no mention al certain critical admissions made by during her interview, as well as on her MySpace %%vilage (discovered by defense investigators and turned over to the State Attorney). Second. all but omitted from the Police Report is an • reference to the facts known about her by the PBPD. specifically. that at the time was making these assertions she had been arrested hr the PBPD and was being prosecuted jar possession 4 marijuana and drug paraphernalia. We take each in turn. • Admits Voluntary Sexual Conduct With Epstein. tan to ac ose Me Disposition of /be Monies She Lamed. and Lies About Being "Chen" a Car by tifiin: Detective thiled to include in the Police Report admission that on one occasion she engaged in sexual conduct with Epstein's girlfriend us her hirthda " ill"' to Epstein. Nor does Detective S include the n fact that s lady refused to discuss with him the disposition of the thousa &Jars she said she was given by Epstein. or that she falsely claimed that she did not use drugs. despite her MySpace entries in which she exclaims "I can't wail to buy some weed " Detective a was aware the car had been rented. not purchased and only ii was only leased on a monthly basis for two months. While fanciful claim that she was given a car appears in the Police Itcport, it is never corrected. itt Arrested for Possession of Marijuana and Drug amp tern sit As noted. on September I I. 2005. was arrested tbr possession of marijuana and drug paraphernalia. In response to this arrest. ="came forward" (as the Probable Cause Affidavit implies at FOTiT), claiming she had knowledge of "sexual activity taking place" at Epstein's residence and misconduct by Epstein. ('Ibis "coming forward" appears 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 of her Own criminal conduct, which should have been taken into account when assessing her credibility as a witness. RFP MIA 000452 EFTA00208933 12/11/2007 11 40 FAX 51013/099 R. Alexander Acosta December 11.2007 Page 10 KIRKLAND & ELLIS LLP • Steals From a Victoria's Secret Stun. An Investigation y private investigators working for the defense revealed that in late 2005 MI was employed at a Victoria's Secret store in Florida. Three days after her marijuana case was laminated. !fall was caught by a store manager asattempted to leave the more with merchandise in her purse, the security tag Mill attached. Seeing the manager. claimed "someone is trying to set me up". Following an internal investigation, which disclosed additional thefts from both the store mid a customer. she was fired. In a recorded interview. admitted to stealing and asserted that her reason for doing so was that "she was not gening paid enough". This information and supporting documentation was presented to the PDPD. but was never included in the Police Report or Pmbahle Cause Affidavit. • ics on MySpace About Victoria's Secret Store Inntination. Also uncovered by defense investigators is dissembling version of the Victoria's Secret debacle on her "MySpace" webpage. There, announced that she ". . . forgot to let everyone know I 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 EVIIRYTI IING!!! . . . I got o fed up in that office that I handed the Loss Prevention lady back my keys and walked nut". This information 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 her Victoria's Secret Job Application. Additional d information on MySpace webpage casts further doubt on her credibility. For example. she boasts to having engaged in a fraudulent scheme to get hired by Victoria's Secret, explaining. "oh, it was so funny I used (my boyfriend) as one of my references for my Victoria's Secret job and the lady called me back and told me that William fucker 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 Mister she bought „" This information and supporting documentation was provided by the defense to the PRPD, but was not included in the Police Report or Probable Cause Affidavit. • Roast About Her Marijuana Use. Also on her y pace we page can be Mond admissions of purchasing and using marijuana and marijuana paraphernalia. Specifically,-states she "can't wail to buy some weed!!! . can't wait!!! . . . (I told on: RFP MIA 000453 EFTA00208934 12/11/2007 11:40 FAX a 01 4 / 0 98 • • KIRKLAND & ELLIS LLP R. Alexander Acosta Di:ember I I, 2007 Page 11 let me say that again) I can't wait to buy some weedn I also want to get a vaporizer so I can smoke in my room because apparently there arc 'nares' everywhere". also posted a photograph of a marijuana cigarette and labeled it "what heaven looks like to me". This information and supporting documentation was provided by the defense to the PBPD, was not included in the Police Report or Probable Cause Affidavit (although there is both a fleeting reference in the Police Report to use of marijuana with her boyfriend (au 47) and in the Probable Cause Affidavit to marijuana arrest (at fil- 1 l )). • : While the Police Report and Probable Cause Affidavit contain numerous as. ions intended to negate taped admission that she clearly told Epstein she was IR, omitted from t ewe moments is reference to MySpace webpage. presented to the State Attorney's Office, where . in no connection to this case, she teirmatively represented to the world that she was /8. thereby corroborating her lie to Epstein. Also omitted is any reference to her long history of run-ins with law colons:mem. Among those arc multiple runaway complaints by her parents and her assignment to a special high school for drug abusers. • *Space Webpage Slates She Drinks, Uses Drugs, Gels m u ran de, Has Reaten Someone Up, Shoplifts. Has Lost her Virginity, Earns 5250.000 and Higher, and Contains Naked and Provocative Photographs. The first image seen on MySpace wetmage, the photo chose to represent her. is that of a naked woman provocative mg on the beach. The illuminating webpage also contains ssertions that of all her body pans. she "love[sj her ass". she drinks to excess. uses drugs, "gets into trouble', has beaten someone up. has simplified "lots". "already lost" her virginity, and cams "$250,000 and higher". As with the other impeaching information, this material, vital to determining enzlibility, was provided by the defense to the PUN) but was never included in the Police Report or Probable Cause Affidavit. 'a Record — Drugs. Alcohol, Running Away From °MC as a history of running away/turning up missing from her parents' various homes; of using drugs and alcohol; and of associating with individuals of questionable judgment. For example, a Palm Beach County Sheriff's Mee Report details how only two days alter she returned to Florida to live with her father, on March 31, 2004. police were called to the home in response to her father's report that she and her twin sister were missing. The Police Report describes her as "under the influence of a narcotic as Ishii could barely stand up. RFP MIA 000454 EFTA00208935 12/11/2007 11:41 FAX S015/099 KIRKLAND & ELLIS LIP It. Alexander Acosta December I I, 2007 Page 12 IhcrJ eyes were bloodshot. and Pied pupils were diluted frier. It further documents that and her sister had stayed out all night 'crc retumed home by a "drug dealer". This event coincided with wing been found at an "ina ro date location" by Georgia po tee in response to a call nboul 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. Affidavit rely on statements of father. While the Police Re ft and Probable Cause his federal hank fraud conviction. which dctense mvestignicas discovered and turned over to the PIIPI) during the course of the investigation, was omitted. served 21 months in federal prison for his offense. • While the Police Report and Probable Cause Affidavit rely on statements of stepmother. omitted is state conviction for identity fraud. This information. uncovers, y efense investigators. was also turned over to the PBPD during the course of the investigation. In leitht Of The (.7omneoniised Nature Of The Evidence. A Fulsome Review Should Be Conducted. These tainted and inaccurate reports compromised the federal investigation.' As you may know. the PBPI) 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 tlx: FBI for giving Mr. Epstein massages. As we have shown. these reports contain multiple fabrications, omissions. and outright misstatements or fact. Moreover. the evidence and the allegations were undeniably misrepresented to the FBI. with no inclusion of the evidence exposing tlx: deficiencies of the -proof" and the exculpatory evidence upon which the State relied. Furthermore. it should he 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 of the recorded interviews. The 4 Although we have hc'cn informed that the Flit identified and then interviewed lidditivasal potential witnecses, many of their discoveries an: believed to have emanated from message pads containing contact information that were seized from Mr Lpslein's home pursuant to a state search wamint that was deeply and constitutionally flawed by Re ivy's misstatements and omissions as well as other facial deficiencies. RFP MIA 000455 EFTA00208936 12/11/2007 11:41 FAX el018/099 KIRKLAND & ELLIS LLP It. Alexander Acosta Decetnber I I. 2007 Page 13 transcripts and tapes, which we 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. Epstein'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 Olliee who were being asked to authorize the prosecution so that they could themselves assess the reliability of the no interview reports against a verbatim record or the same witness's prior statements. We believe that this request is fair and would not be unduly burdensome. 11. THE IMPROPER INVOLVEMENT AND CONDUCT OF FEDERAL AUTHORITIES. As established above. the State's charging decision. of one wow of the solicitation of prostitution. MIS hardly irrational or irregular. Indeed, Lana Belohlavek. 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. Aec., drugs. alcohol, coercion or au abuse of a position of authority. Each and every one of the alleged "victims" knew what to expect when they arrived at Mr. Epstein'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. Epstein themselves, without any prompting. Ms. Belohlavek also noted that many of these individuals worked either as exotic dancers or in one of the man • masse e parlors dotted across West Palm Beach. Ms. Belohlavek also specifically stated that could not be trusted and was "only interested in money." She further found that it was inappropriate for Mr. Epstein to register as a sex offender because she did not believe that he constituted a threat to young girls and because registration hod not been required in similar or even more serious cases. Ms. Belohlavak 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 resources to prosecute Mr. Epstein for conduct the State believes amounts to a "sex for money" case. While we are loathe to single-nut for criticism the conduct of any particular professional, we cannot 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 I lerben Stern's states " . . Alta federal authorities inappropriately involved themselves in the investigation by the state authorities and employed highly irregular and coercive tactics to override the judgment of state law enforcement authorities us to the appropriate disposition of their case against your client." See Judge Stern's letter faxed to you on December 7. 2007. RFP MLA 000456 EFTA00208937 12/11/2007 11:42 FAX gi 017/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 14 A. The Petite Poliev 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 State 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 die fact that federal prosecution in this mutter was in dirtiest conflict with the requirements or the Petite 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 terms of the Petite Policy precluded federal prosecution regardless glum outcome at the state case. Since the suite investigation was thorough and in no way inadequate and the concerns implicated by the matter all involved local issues and areas of traditionally local concern, we urged your Office to contemplate whether a federal prosecution 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 state prison, with the option of eliminating incarceration upon StItA.L55fili completion of the term of supervised custody. among other terms. Mr. Menchel stated that "the federal interest will not be vindicated in the absence of a two year term in state prison." Sec August 3. 2007 letter. Such an articulation of the federal interest, we believe. misunderstands the Petite Policy on two grounds. Finn. the Office's position that the federal interest would not be vindicated in the absence of a jail tcnn for Mr. Epstein. runs contrary to Section 9-2.0310 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, tlx: slate plea agreement offered was not "manifestly inadequate" under LJ.S.A.M. Si 9- 2.03111 indeed, the only real difference between the suite and federal plea proposals was whether Mr. Epstein served his sentence in jail or community quarantine. We formerly believed that our Petite Policy concerns were being addressed or, at least, preserved. hut we learned that only offer reaching a final compromise with your Office 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 lawn included in the droll prosecution Agreements up until September 24. 2007. the day the Agreement was executed, at which point they were eliminated by your Office: IT APPEARING, alter an inv.:30101km of the ulTenses and Upslein's background, that the interest of the United States pursuant to the Petite policy will be served by the hallowing procedure . . . Epstein understands that the United States Attorney has no authority to require the State Attorney's Unice to abide by any terms of this agreement. Epstein understands that it is his RFP MIA 000457 EFTA00208938 12/11/2007 11:42 FAX 0018/099 KIRKLAND & ELLIS I Lr R. Alexander Acosta December 11.2007 Page I5 obligation to undcdakc discussion with the Slate Attomey's Office Ia custom caswpiiiiitim with these procedures. which compliance will be necessary to satisfy the United States' intero.t, pursuant to the Petite policy. We reiterate that this case was at heart a local mutter that was being billy addressed by the state criminal justice system. The state process resulted in an appropriate resolution of this matter and would have vindicated any conceivable federal interest. Thus, there was no substantial federal interest that justified a fedend prosecution. It has recently come to our attention that that the CEOS chief statements may be relevant to this matter. 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 for the prosecution of this matter. and that case has since. been distinguished as well. R. romnted An Unduh• Invasive Inuesliention Of Mr. Epstein. vestigation of Mr. Epstein raises serious questions. Despite the fact that she was made aware of the inaccuracies in the PBPD's Probable Cause Affidavit. she chose to include the affidavit in a document tiled with the court knowing that the public could access it. Thena 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 'Annie denied knowledge of lotions and Mr. I.ourie commendably sought to significantly narrow the list of documents requested. In a subsequent court tiling. Mimed to our agreement to remove these items from her demand list as evidence of Mr. Epstein's "non-conperation-. 'Ibis was only the beginning. also subpoenaed an agent of Roy Black (without following 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 efforts. followed up with a subpoena liar Mr. Epstein's confidential medical records served directly on his chiropractor (with no notice to Mr. Epstein). made the unusual request of asking the State Attorney's Office for some of the grand jury materials. She threatened to subpoena the State when she was informed that it was a violation of Florida law to release this information. Alter compiling this "evidence-. stated she would he initiating an investigation into purported violations of IR U.S.C. §l59l (again without the required prior OW notification). MIME then broadened the scope of the investigation without any foundation tie 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. responded that Mr. Epstein could he charged under these statutes because he funded RFP MIA 000458 EFTA00208939 12/11/200? 11:42 FAX el 019/099 • • KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 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. To our relict. after 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' focus should he turned to IS U.S.C. §2422(b). 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 mutter should be precluded butt on federalism concerns, the Petite Policy, and general principles of prosecutorial disattion, the panics corn • discussions of a possible plea agreement. Around this time, we received an e-mail from suggesting that she wanted to discuss the possibility of a concurrent federal and state resolution. We were immediately informed by your Office that did not have the authority to make any such plea proposals and would not he involved in any further negotiations of n plea. Uespite this commitment. 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 foundmion. Though your last lever suggests there was "nu contact" between individuals in your Office and the press. we were previously told by Mr. Laurie that the FBI was receiving "infonnatinn" specifically from Connolly. a Vanity Fair reporter, and not vice versa. C. Included Unfair Terms in the Aereement, took positions in negotiating this matter that stray from both stated policy and established law. First. insisted that as part of the federal plea agreement. the State Attorney's Office. without being shown new evidence, should be convinced to charge Mr. lifmacin with violations of 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 restitution case and believed that a term of probation was - and is - the appropriate sentence. At 's insistence, however, Mr. Epstein was kited to undertake the highly unusual and unprecedented action al directing his defense team to contract the State prosecutors themselves and ask for an upward departure in bath his indictment and sentence. There was no ellim by the stale and federal prosecutors to coordinate the prosecutions, a practice which is against the tenets of the Poke 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 time-frame within which Mr. Lipstein must enter that state pica and surrender to state olficials; and the amount of time he must spend in county jail. This is particularly true where the State RFP MIA 000459 EFTA00208940 12/11/200? 11:43 FAX a 020/099 • KIRKLAND S. ELLIS LLP It. Alexander Acosta December I I, 2007 Page 17 Attorney's Office has a different view of the case and there has heen no coordination with state authorities.6 In addition. required that Mr. Epstein's sentence include a registemble offense. As you know, requiring sexual offender registration will have a significant impact both immediately and forever after. This harsh term. which is said to be suggested by the FBI. was added despite the fact that the State believed that Mr. Epstein's conduct did not warrant any such registration. As yoti know. slate officials have special expertise in deciding which offend= pose a threat to their conununity. Moreover, this demand places the state pmseeutors' credibility at issue and diminishes the force of sexual registration when it is applied to ollenders who state prosecutors do not believe arc dangerous or require registration. decision not to permit the State Attorney to determine a matter uniquely within its province was tin v.arr.-mu:Al What is more, when negotiating the settlement portion of the Agreement. insisted that a civil settlement provision be included in the Agreement, namely, the inclusion of IS I I.S.C. § 2255. u negotiating term which is unprecedented in nature.7 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, ultimatums required that we acquiesce to these unprecedented terms. For instance, when plea discussion stalled as a exult of emands. Mr. tipstein's counsel received a letter from her stating as it "now appears you will not settle." At this point. :xpn:ssed her intention to re-launch the government's previously set aside money laundering investigation. She also issued a rash of subpoenas and sent target letters to Mr. Epstein's employees. adding new federal charges including obstruction of justice. She then personally called Mr. Epstein's largest and most valued business client without any basis to inform 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 no dollar amount limit discussed for the fund, but 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 state restitution provision that would allow "victims" to recover damages. Ms. however, rejected this idea and suggested requiring a guardian ad !item. implying that When asked whether Dv anonym of Janice polices regarding coordination with .sale &authorities had been fidlowed. gave no response other than stating. "it is none of your concern:* 7 In fact. Stephanie Thacker. a former deputy to Drew Osterbahm, has stated that she knew of no other case like this heing prosecuted by ('EOS. With that in mind, we welcome the upponanity to review 11w extensive research that CLOS bas done, as indicated by your Orrice. RFP MIA 000460 EFTA00208941 12/11/2007 11:48 FAX e021/099 • KiRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page 18 the alleged "victims" in question were currently minors and needed special representation. We later learned that the government's list of individuals included a woman as old a 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 haw been a "victim" under 18 U.S.C. 2255. even if the conduct occurred in 2001). At insistence, the panics ultimately agreed to the appointment of an attorney representative. hut then took the position that Mr. Epstein should pay for the representative's fees. which ell'ectively meant that Mr. Epstein must pay to sue himself,' also proposed wholly irrelevant charges such as making obscene phone calls and violations of child privacy laws. When Mr. Lunde learned of these proposed charges he asked Mr. Epstein's defense team to ignore them as they would "embarrass the Office.- Continually And Purposefully_ Misinterpreted The Critical Terms of the Agreement. Since the execution of the Agreement.IIIIMIIIIIIhas 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 In compromise on specific issues that we have raised with your Office. In particular. them arc times when we have received verbal agreement from you or your staff (and sometimes from Ms. howl() on a 'articular issue, only to subsequently receive a contradictory interpretation from Ms. hat negates our prior common understanding. I per misinterpretations appear to he attempts to effectively change the spirit and the meaning of the Non-Prosecution Agreement. We offer several examples of significant misinterpretations. First. despite the fact that we received several commitments I'mm your Unice that it would monitor Mr. Epstein's state sentencing but not interfere with it in any way, Ms. sought to do just that. Ms. IMMINOMIlecision to utilise 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 as to any available restitution, not of any potential civil remedies, to which they are entitled. Despite this fact. Ms. proposed a Victims Notification letter to be sent to the alleged lialeral victims. Ms. IIMIM has gone even Wither. 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 provides the identified individuals with either a right to appear at Mr. Epstein's plea and sentence or to submit a written statement to be filed by the State Attorney. Here. Mr. 1 this arranrement does not put these alleged "victiins- in the same position as they would have heel, had Mr. Epstein been convicted at trial • - in radt obey arc much kilo- tall RFP MIA 000461 EFTA00208942 12/11/2007 11:44 FAX 0022/099 • • KIRKLAND & ELLIS LLP R. Alexander Acosta December I I.2007 Page I9 Epstein is pleading guilty to. and being sentenced for. 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 Ls unjustifiable. Furthermore. only after obtaining the executed Agreement did Ms. begin insisting that the selected nairesentative's duties go beyond settlement and include litigating claims thr individuals. In Ms. halms Notification letter. she states that Mr. rodhurst and Mr. JosetSberg, the se et. t. a o ey representatives. may -repnrsent- the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by Ms. Shah is patently incorrect. Yet, neglecting the spirit of the negotiations; neglecting the terms of the Agreement: and neglecting commonly-held principles of ethics with respect to conflicts. Ms. continues to improperly emphasize that the chosen attorney representative should he able to litigate the claims of individuals. In a similar fashion. Ms. has overstated the scope of Mr. lipswin's waiver of liability pursuant to the Agreement. Ms. began asserting that Mr. Epstein has waived liability even when cluims with tlx: identified individuals are not settled just after the execution of the Agreement. Despite the fact that at that time. we obtained an a !gement from you that Mr. Epstein's waiver would not stretch past settlement. Ms. mimics to espouse this erroneous interprctat ion. F. Ms. and The Settlement Process. We are concerned that Ms. has repeatedly attempted to manipulate the process under which Mr. Epstein has agreed to settle civil claims. First, she inappropriately attempted to nominate I 'lambert - Hen- Ocariz for attorney representative. despite the bet that Mr. Deariz has a longstanding relationship with Ms. `MI. Mr. (kariz turns out to he a very good personal friend and law school classmate of ms. boyfriend, a fact she assiduously kept hidden from counsel. We also learned from Ms. that she shared with Ocariz the summary of charges the government was considering against Mr. Epstein. Even after your Office conceded that it was inappmpriate for its attorneys to select the attorney representative. Ms. continued to lobby for Mr. Oeariz's appointment. ()n October 19. 2007, retired Judge %%3 Davis. who was appointed by the panics to select the attorney representative. informed Mr. Epstein's counsel that he received a telephone call fmni Mr. Ocariz directly requesting that Judge Davis appoint him as the imomey 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 there was no communiattion hetween stale 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 be disqualified to participate in work release even though the Agreement mandates that Mr. Kpstein he treated as any other inmate. RFP MIA 000462 EFTA00208943 12/11/2007 11:44 FAX 0023/099 KIRKLAND & ELLIS LLi' 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 a review would serve to address similar concerns as those raised in May v. Maryland. which mandate the disclosure of evidence material to guilt or innocence even after the execution Ulan Agreement to enter a plea of guilty. See 373 11.S. 83 (1 963). We believe that the "prosecution team" was informed by its witnesses (including persons other than and who are discussed at length above) that Mr. Epstein's practice was to see • women older than 18 rather than targeting those under I8. We would expect, for instance, that a key witness whose interview with the FBI was recorded, would have provided sac exonerating information us 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 not just that Mr. Epstein had sexual contact with witnesses who were in fact underage but whether the allegations arc based on trustworthy (and corroborated) evidence that (i) Mr. Epstein knew that the remelt) in question was under 18 at the time of the sexual contact. (ii) Mr. Epstein traveled to his home in Palm Beach lin the purpose of having such sexual contact to the extent the allegation charges a violation of Itt U.S.C. § 2423(b) and (e) Mr. Epstein induced such sexual contact by using an instrumentality of interstate commerce to the extent the allegations charge a violation of 18 U.S.C. 2422(b) (there is no evidence of Internet solicitation which is the norm upon which federal jurisdiction is usually modeled under this statute). We believe that the intimation 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 arc 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 drat) federal indictment was based against the -hest evidence." including the transcripts of the tape recorded pre-federal involvement interviews. Finally. I would like to reiterate our appreciation for the opportunity you have provided to review some of our issues and concerns. 1 look forward to speaking with you shortly. Sincerely. RFP MLA 000463 EFTA00208944 • • U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY ELECTRONIC MALI lay P. Lefkowitz, Esq. Kirkland & Ellis LIP Re: ,leffrev Epstein Dear Jay: December 13, 2007 I am writing not to respond to your asserted "policy concerns" regarding Mr. Epstein's Non- Prosecution Agreement, which will be addressed by the United States Attorney, but the time has come for me to respond to the ever-increasing attacks on my role in the investigation and negotiations. It is an understatement to say that I am surprised by your allegations regarding my role because I thought that we had worked very well together in resolving this dispute. 1 also am surprised because I feel that I bent over backwards to keep in mind the effect that the agreement would have on Mr. Epstein and to make sure that you (and he) understood the repercussions of the agreement. For example, I brought to your attention that one potential plea could result in no gain time for your client; I corrected one of your calculations of the Sentencing Guidelines that would have resulted in Mr. Epstein spending far more time in prison than you projected; I contacted the Bureau of Prisons to see whether Mr. Epstein would be eligible for the prison camp that you desired; and I told you my suspicions about the source of the press "leak" and suggested ways to avoid the press. Importantly, I continued to work with you in a professional manner even after I learned that you had been proceeding in bad faith for several weeks - thinking that 1 had incorrectly concluded that solicitation of minors to engage in prostitution was a registrable offense and that you would "fool" our Office into letting Mr. Epstein plead to a non-registrable offense. Even now, when it is clear that neither you nor your client ever intended to abide by the terms of the agreement that he signed, I have never alleged misconduct on your part. The first allegation that you raise is that I "assiduously" hid from you the fact that Bert Ocariz is a friend of my boyfriend and that I have a "longstanding relationship" with Mr. Ocariz. RFP MIA 000464 EFTA00208945 • • JAY P. LEFKOWITZ, ESQ. DECEMBER 13, 2007 PAGE 2 OF 5 I informed you that I selected Mr. Ocariz because he was a friend and classmate of two people whom I respected, and that I had never met or spoken with Mr. Ocariz prior to contacting him about this case. All of those facts arc true. I still have never met Mr. Ocariz, and, at the time that he and I spoke about this case, he did not know about my relationship with his friend. You suggest that I should have explicitly informed you that one of the referrals came from my "boyfriend" rather than simply a "friend." which is the term I used, but it is not my nature to discuss my personal relationships with opposing counsel. Your attacks on me and on the victims establish why I wanted to find someone whom I could trust with safeguarding the victims' best interests in the face of intense pressure from an unlimited number of highly skilled and well paid attorneys. Mr. Ocariz was that person. One of your letters suggests a business relationship between Mr. Ocariz and my boyfriend. This is patently untrue and neither my boyfriend nor I would have received any financial benefit from Mr. Ocariz's appointment. Furthermore, after Mr. Ocariz learned more about Mr. Epstein's actions (as described below), he expressed a willingness to handle the case pro bono, with no financial benefit even to himself. Furthermore, you were given several other options to choose from, including the Podhurst firm, which was later selected by Judge Davis. You rejected those other options. You also allege that I improperly disclosed information about the case to Mr. Ocariz. I provided Mr. Ocariz with a bare bones summary of the agreement's terms related to his appointment to help him decide whether the case was something he and his firm would be willing to undertake. I did not provide Mr. Ocariz with facts related to the investigation because they were confidential and instead recommended that he "Google" Mr. Epstein's name for background information. When Mr. Ocariz asked for additional information to assist his firm in addressing conflicts issues, I forwarded those questions to you, and you raised objections for the first time. I did not share any further information about Mr. Epstein or the case. Since Mr. Ocariz had been told that you concurred in his selection, out of professional courtesy, I informed Mr. Ocariz of the Office's decision to use a Special Master to make the selection and told him that the Office had made contact with Judge Davis. We have had no further contact since then and I have never had contact with Judge Davis. I understand from you that Mr. Ocariz contacted Judge Davis. You criticize his decision to do so, yet you feel that you and your co-counsel were entitled to contact Judge Davis to try to "lobby" him to select someone to your liking, despite the fact that the Non-Prosecution Agreement vested the Office with the exclusive right to select the attorney representative. Another reason for my surprise about your allegations regarding misconduct related to the Section 2255 litigation is your earlier desire to have me perform the role of "facilitator" to convince the victims that the lawyer representative was selected by the Office to represent their interests alone and that the out-of-court settlement of their claims was in their best interests. You now state that doing the same things that you had asked me to do earlier is improper meddling in civil litigation. Much of your letter reiterates the challenges to Detectiva investigation that have RFP MIA 000465 EFTA00208946 •) • • JAY P. LEFKOWITZ, ESQ. DECEMBER 13,2007 PAGE 3 OF 5 already been submitted to the Office on several occasions and you suggest that I have kept that information from those who reviewed the proposed indictment package. Contrary to your suggestion, those submissions were attached to and incorporated in the proposed indictment package, so your suggestion that I tried to hide something from the reviewers is false. I also take issue with the duplicity of stating that we must accept as true those parts of the Recarey reports and witness statements that you like and we must accept as false those parts that you do not like. You and your co-counsel also impressed upon me from the beginning the need to undertake an independent investigation. It seems inappropriate now to complain because our independent investigation uncovered facts that are unfavorable to your client. You complain that I "forced" your client and the State Attorney's Office to proceed on charges that they do not believe in, yet you do not want our Office to inform the State Attorney's Office of facts that support the additional charge nor do you want any of the victims of that charge to contact Ms. Belohlavek or the Court. Ms. Belohlavek's opinion may change if she knows the full scope of your client's actions. You and I spent several weeks trying to identify and put together a plea to federal charges that your client was willing to accept. Yet your letter now accuses me of "manufacturing" charges of obstruction of justice, making obscene phone calls, and violating child privacy laws. When Mr. Lourie told you that those charges would "embarrass the Office," he meant that the Office was unwilling to bend the facts to satisfy Mr. Epstein's desired prison sentence — a statement with which I agree. I hope that you understand how your accusations that I imposed "ultimatums" and "forced" you and your client to agree to unconscionable contract terms cannot square with the true facts of this case. As explained in letters from Messrs. Acosta and the indictment was postponed for more than five months to allow you and Mr. Epstein's other attorneys to make presentations to the Office to convince the Office not to prosecute. Those presentations were unsuccessful. As you mention in your letter, I -a simple line AUSA — handled the primary negotiations for the Office, and conducted those negotiations with you, Ms. Sanchez, Mr. Lewis, and a host of other highly skilled and experienced practitioners. As you put it, your group has a "combined 250 years experience" to my fourteen. The agreement itself was signed by Mr. Epstein, Ms. Sanchez, and Mr. Lefcourt, whose experience speaks for itself. You and I spent hours negotiating the terms, including when to use "a" versus "the" and other minutiae. When you and I could not reach agreement, you repeatedly went over my head, involving Messrs. l and Acosta in the negotiations at various times. In any and all plea negotiations the defendant understands that his options are to plead or to continue with the investigation and proceed to trial. Those were the same options that were proposed to Mr. Epstein, and they are not "persecution or intimidation tactics." Mr. Epstein chose to sign the agreement with the advice of a multitude of extremely noteworthy counsel. You also make much of the fact that the names of the victims were not released to Mr. Epstein prior to signing the Agreement. You never asked for such a term. During an earlier meeting, where Mr. Black was present, he raised the concern that you now voice. Mr. Black and I did not have a chance to discuss the issue, but I had already conceived of a way to resolve that RFP MIA 000466 EFTA00208947 • • JAY P. LEFKON972, ESQ. DECEMBER 13,2007 PAGE 4 OF S issue if it were raised during negotiations. As I stated, it was not, leading me to believe that it was not a matter of concern to the defense. Since the signing of the Non-Prosecution Agreement, the agents and I have vetted the list of victims more than once. In one instance, we decided to remove a name because, although the minor victim was touched inappropriately by Mr. Epstein, we decided that the link to a payment was insufficient to call it "prostitution." I have always remained open to a challenge to the list, so your suggestion that Mr. Epstein was forced to write a blank check is simply unfounded. Your last set of allegations relates to the investigation of the matter. For instance, you claim that some of the victims were informed of their right to collect damages prior to a thorough investigation of their allegations against Mr. Epstein. This also is false. None of the victims was informed of the right to sue under Section 2255 prior to the investigation of the claims. Three victims were notified shortly after the signing of the Non-Prosecution Agreement of the general terms of that Agreement. You raised objections to any victim notification, and no further notifications were done. Throughout this process you have seen that I have prepared this case as though it would proceed to trial. Notifying the witnesses of the possibility of damages claims prior to concluding the matter by plea or trial would only undermine my case. If my reassurances are insufficient, the fact that not a single victim has threatened to sue Mr. Epstein should assure you of the integrity of the investigation.' 'There arc numerous other unfounded allegations in your letter about document demands, the money laundering investigation, contacting potential witnesses, speaking with the press, and the like. For the most part, these allegations have been raised and disprovcn earlier and need not be readdressed. However, with respect to the subpoena served upon the private investigator, contrary to your assertion, and as your co-counsel has already been told, I did consult with the Justice Department prior to issuing the subpoena and I was told that because I was im subpoenaing an attorney's office or an office physically located within an attorney's office, and because the business did private investigation work for individuals (rather than working exclusively for Mr. Black), I could issue a grand jury subpoena in the normal course, which is what I did. I also did not "threaten" the State Attorney's Office with a grand jury subpoena, as the correspondence with their grand jury coordinator makes perfectly clear. With regard to your allegation of my filing the Palm Beach Police Department's probable cause affidavit "with the court knowing that the public could access it," I do not know to what you are referring. Ali documents related to the grand jury investigation have been filed under seal, and the Palm Beach Police Department's probable cause affidavit has never been filed with the Court. If, in fact, you are referring to the Ex Pane Declaration of Joseph Recarey that was filed in response to the motion to quash the grand jury subpoena, it was filed both under seal and er pane, so no one should have access to it except the Court and myself. Those documents are still in the Court file only because you have violated one of the terms of the Agreement by failing to "withdraw [Epstein's] pending motion to intervene and to quash certain grand jury subpoenas." RFP MIA 000467 EFTA00208948 • JAY P. LEFROwin, ESQ. DECEMBER 13,2007 PAGE $ OF $ With respect to Ms. Miller, I contacted her attorney — who was paid for by Mr. Epstein and was directed by counsel for Mr. Epstein to demand immunity — and asked only whether he still represented Ms. Miller and if he wanted me to send the victim notification letter to him. He asked what the letter would say and I told him that the letter would be forthcoming in about a week and that I could not provide him with the terms. With respect to Ms. Miller's status as a victim, you again want us to accept as true only facts that am beneficial to your client and to reject as false anything detrimental to him. Ms. Miller made a number of statements that arc contradicted by documentary evidence and a review of her recorded statement shows her lack of credibility with iespc‘t to a number of statements. Based upon all of the evidence collected, Ms. Miller is classified as a victim as defined by statute. Of course, that does not mean that Ms. Miller considers herself a victim or that she would seek damages from Mr. Epstein. I believe that a number of the identified victims will not seek damages, but that does not negate their legal status as victims. I hope that you now understand that your accusations against myself and the agents arc unfounded. In the future, I recommend that you address your accusations to me so that I can correct any misunderstandings before you make false allegations to others in the Department. I hope that we can move forward with a professional resolution of this matter, whether that be by your client's adherence to the contract that he signed, or by virtue of a trial. By: Sincerely, R. Alexander Acosta United States Attorney Assistant United States Attorney cc: R. Alexander Acosta, U.S. Attorney First Assistant U.S. Attorney You also accuse me of "broaden[ing] 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." Again, I consulted with the Justice Department's Money Laundering Section about my analysis before expanding that scope. The duty attorney agreed with my analysis. RFP MIA 000468 EFTA00208949 • • • Jay Leflowilz/New York/Kirkland-Ellis 02/29)2008 03.11 PM Dear Alex, to cc Dec Subject Fw: Epstein I received the attached email from this week and to put it mildly, I was shocked. As you will recall, back at the beginning of January, when we both agreed that there were significant irregularities with the deferred prosecution agreement, you called a time-out. You had decided to ask Drew's Office to take a look at the matter and suggested that we would be hearing him within days. At that time, we welcomed the development — especially given that we had reason to be concerned that some of the individuals in your Office were not acting appropriately in relation to this matter. In particular, we were very concerned that one of your prosecutors had given a substantial amount of information to a New York Times reporter — telling him not only about specific aspects of our plea negotiations, but also sharing with him details about your Office's theory concerning what laws you believe Mr. Epstein has violated. In broad strokes, Mr. David Weinstein told Mr. Thomas that the Office was contemplating charging Mr. Epstein under Sections 2422(b) (with a full discussion of principal liability), 2423, and 1591. He also complained about Mr. Epstein's lawyers and told Mr. Thomas not to "believe the spin from Mr. Epstein's high priced attorneys? Mr. Weinstein even informed Mr. Thomas that we had "asked for privately paid armed guards" as part of a house arrest proposal we had made. Even more surprising, he subsequently told Mr. Thomas that we had learned of the conversation, complained about it and suggested an explanation. Needless to say, we were very troubled by these conversations. At this same time, we agreed that in order to provide Drew a sufficient amount of time to evaluate the matter, it made sense to move the deadline for state plea to March, which we did. I was therefore quite surprised to receive, in rapid succession, a call from Drew asking to begin the review process and then only two days later, an email from Jeff informing me of new and extremely short and arbitrary deadlines. The one thing I had become certain about in this case was that you were sincere in your desire to ensure that the DOJ took a proper and principled position with respect to this matter, and that you fully accepted our desire, and our right, to appeal any adverse decision by your Office to the DOJ. In fact, on several occasions -- including our meeting before Thanksgiving In your Office — you stated precisely as much to me. That is why I am so surprised by Jeff's latest email. We are very interested in having the meetings you suggested with Drew. It would be very unfortunate to begin the review process that you have asked Drew to conduct and at the same time artificially constrict it. As you know, the timing of a thorough review would cause no prejudice to the government's prosecution of Mr. Epstein. To the contrary, we hope that our dialogue with Drew will allow for the government to make a more informed decision concerning this matter. We have been waiting eagerly for a call from Drew for nearly two months. Now that he is prepared to meet with us, it is unfair for o seek to impose artificial deadlines. Since I will be in trial next week, we are planning to begin our meetings with Drew during the second week in March. I sincerely hope we can resolve this matter in the near future. To be clear -- at this stage we are not asking for anything but the same due process that you promised to afford to us when we last spoke in early January. Best, Jay cc: RFP MIA 000469 EFTA00208950 05/28/2008 09:07 FAX 2026161239 DOJ/ODAC 05 10 :Is MO\ 13:22 1:;\ 1 213 6h0 8500 It I RKLINDLF.I.I.1 5 lip 111006/013 1 Kenneth W. Starr Joe D. Whitley Kirkland & Ellis LLP Alston & Bird LIP May 19, 2008 VIA FACSIMILE (202) 514.0467 CONFIDENTIAL honorable Mark Filip Office of the Deputy Attorney General United States Department of Justice Dear Judge Filip: In his confirmation hearings last fall, Judge Mukasey admirably lifted up the finest traditions of the Department of Justice an assuring the United States Senate, and the American people, of his solemn intent to ensure fairness and integrity' in the administration of justice Your own confirmation hearings echoed that bedrock determination to assure that the Department conduct itself with honor and integrity, especially in the enforcement of federal criminal law. We come to you iii that spirit and respectfully ask for a review of the federal involvement in a quintessentially state matter involving our client, Jeffrey Epstein. While we are well aware of the rare instances in which a review of this sort is justified, we arc confident that the circumstances at issue tvaaant such an examination. Based on our collective experiences, as well as those of other former senior Justice Department officials whose advice we have sought, we have never before seen a case more appropriate for oversight and review. Thus, while neither of us has previously made such a request. we do so now in the recognition that both the Department's reputation, as well as the due process rights of our client, are at issue. Recently, the Criminal Division concluded a very limited review of this matter at the request of U.S. Attorney Alex Acosta. Critically, however, this review deliberately excluded many important aspects of this case Just this past Friday, on May 16, 2008, we received a letter from the head of CEOS informing us that CEOS had conducted a review of this case. By its own admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed limitation was CEOS's abstention from addressing our "allegations of professional misconduct by federal prosecutors"--even though such misconduct was, as we contend it is, inextricably intertwined with the credibility of the accusations being made against Mr. Epstein by the United States Attorney's Office in Miami (''USAO"). Moreover. CEOS did not assess the terms of the Deferred Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors' inappropriate efforts to implement those tcnns. We detail this point below. RFP MIA 000470 EFTA00208951 05/28/2008 09:07 FAX 2026161239 DOJ/ODAC n3- 19. oh NM\ IA 2:2 I \\ I 2I3 6/0 S.SUO KIRKLANIMELLIS LLP id1007/013 CIO 3 Honorable Mark Filip May 19. 2008 Page 2 Ry way of background, we were informed by Mr. Acosta that, at his request, CEOS would be conducting a review to determine whether federal prosecution was both appropriate and, in his words, "fair." That is not what occurred. Instead, CEOS has now acknowledged that we had raised "many compelling arguments" against the USAO's suggested -novel application" of federal law in this matter. Even so. CEOS concluded. in minimalist fashion, that "we do not see anything that says to us categorically that a federal case should not be brought" and that the U.S. Attorney "would not he abusing his prosecutorial discretion should he authorize federal prosecution of Mr. Epstein" thus delegating back to Mr. Acosta the decision of whether federal prosecution was warranted (emphasis added). Rather than assessing whether prosecution would be appropriate, CEOS, using a low baseline for its evaluation, determined only that "it would not be impossible to prove . ." certain allegations made against Mr. Epstein. The CEOS review failed to address the significant problems involving the appearance of hnpormissible selectivity that would necessarily result from a federal prosecution of Mr. Epstein. We respect CEOS's conclusion that its authority to review "misconduct" issues was pen. luded by Criminal Division practice. We further respect CEOS's view that it understood its mission as significantly limited. Specifically, the contemplated objective was to determine whether the USAO would be abusing its discretion by bringing a federal prosecution rather than making its own de nova recommendations on the appropriate reach of federal law. However, we respectfully submit that a full review of all the facts is urgently needed at senior levels of the Justice Department. In an effort to inform you of the nature of the federal investieation against Mr. Epstein. we summarize the facts and circumstances of this matter below. Re two base-level concerns we hold arc that (1) federal prosecution of this matter is not warranted based on the purely-local conduct and the unprecedented application of federal statutes to facts such as these and (2) the actions of federal authorities are both highly questionable and give rise to an appearance of substantial impropriety. The issues that we have raised, but which have not yet been addressed or resolved by the Department, are more than isolated allegations of professional mistakes or misconduct. These issues, instead, affect the appearance and administration of criminal justice with profound consequences beyond the resolution in the matter at hand. In a precedent-shattering investigation of Jeffrey Epstein that raises important policy questions—and serious issues as to the fair and honorable enforcement of federal law—the USA() in Miami is considering extending federal law beyond the bounds of precedent and reason. Federal prosecutors stretched the underlying facts in ways that raise fundamental questions of basic professionalism. Perhaps most troubling, the USAO in Miami, as a condition of deferring prosecution, required a commingling of substantive federal criminal law with a proposed civil remedy engineered in a way that appears intended to profit particular lawyers in RFP MIA 000471 EFTA00208952 05/28/2008 09:08 FAX 2028161239 05 19 08 NO\ 13:23 FAN 1 213 880 8300 1 RKLAND&FLLIS LLP DOJ/ODAC Woos/els oo Honorable Mark Filip May 19, 2008 Page 3 private practice in South Florida with personal relationships to some of the prosecutors involved. Federal prosecutors then leaked highly sensitive information about the case to a New York Tunes reporter.' The immediate result of this confluence of extraordinary circumstances is an onslaught of civil lawsuits, all save one brought by the First Assistant's former boutique law fimi in Miami. The facts in this case all revolve around the classic state crime of solicitation of prostitution.2 The State Attorney's Office in Palm Beach County had conducted a diligent investigation, convened a Grand Jury that returned an indictment, and made a final determination about how to proceed. That is where, in our federal republic, this matter should rest. Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason the State has nut resolved this matter is that the federal prosecutors in Miami have continued to insist that we, Mr Epstein's counsel, approach and demand from the State Attorney's Office a harsher charge and a more severe punishment than that Office believes are appropriate under the circumstances. Yet despite the USAO's refusal to allow the State to resolve this matter on the terms the State has determined are appropriate, the USAO has not made any attempt to coordinate its efforts with the State. In fact, the USA° mandated that any federal agreement would be conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike that imposed on other defendants within the jurisdiction of the State Attorney fur similar conduct. From the inception of the USAO's involvement in this case, which at the end of the day is a case about solicitation of prostitution within the confines of Palm Beach County, Florida, we have asked ourselves why the Department of Justice is involved. Regrettably, we are unable to suggest any appropriate basis for the Department's involvement. Mr. Epstein has no criminal history whatsoever. Also. Mr. Epstein has never been the subject of general media interest until a few years ago, after it was widely perceived by the public that he was a close friend of former President Bill Clinton. The conduct at issue is simply not within the purview of federal jurisdiction and lies outside the heartland of the three federal statutes that have been identified by prosecutors-18 U.S.C. §§ 1591, 2422(b), and 2423(b). One of the other members of Mr. Epsteln's defense team, lay Le&owitz, has personally reviewed the reporter's contemporaneous notes. Although wine of the women alleged to be involved were 16 and 17 years of age, several of these women openly admitted to lying to Mr Epstein about their age in their recent sworn statements. RFP MIA 000472 EFTA00208953 05/28/2008 00:09 FILI 2028181239 DOJ/ODAC 19: pa MON 13:23 FAN I 213 660 8600 KIRKLANDSIELL S 1.1.1' II09/013 Honorable Mark Filip Ma' !9 2008 rage 4 These statutes are intended to target climes of a truly national and international scope. Specifically, tj 1591 was enacted to combat human trafficking, § 2422 is aimed at sexual predation of minors through the Internet. and § 2423 deals with sex tourism. The nature of these crimes results in multi-jurisdictional problems that state and local authorities cannot effectively confront on their own. However, Mr. Epstein's conduct was purely local in nature and, thus. does not implicate federal involvement. After researching every reported ease brought under 18 U.S.C. §§ 1591, 2422(b), and 2423(b), we found that not a single casc involves facts or a scenario similar to the situation at hand. Our review of each precedent reflects that there have been no reported prosecutions under § 1591 of a 'john' whose conduct with a minor lacked force, coercion, or fraud and who was not profiting from commercial sexual trafficking. There have likewise been no cases under § 2422(b)—a crime of communication—where there was no use of the Internet. and where the content of phone communications did not contain any inducing or enticing of a minor to have illegal sexual activity as expressly required by the language of the statute. Furthermore, the Government's contention that "routine and habit" can fill the factual and legal void created by the lack of evidence that such a communication ever occurred sets this case apart front every reported case brought under § 2422(6). Lastly, there are no reported cases of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to his own home.3 Although these matters were within the scope of the CEOS review, rather than considering whether federal prosecution is appropriate, CEOS only determined that U.S. Attorney Acosta "would not be abusing his prosecutorial discretion should he authorize federal prosecution" in this case. The "abuse of discretion" standard constitutes an extremely tow bar of evaluation and while it may be appropriate when the consideration of issues arc exclusively factual in nature, this standard fails to address concerns particular to this situation, namely the "novel application" of federal statutes. The "abuse of discretion" standard in such pure legal matters of statutory application risks causing a lack of uniformity. The same federal statutes that would be stretched beyond their bounds in Miami have been limited to their heartland in each of the other federal districts. Also, because this case implicates broader issues of the administration of equal justice, federal prosecution in this matter risks the appearance of selectivity in its stretching of federal law to fit these facts. Federal prosecution of a man who engaged in consensual conduct in his home that amounted to, at most, the solicitation of prostitution, is unprecedented. Since prostitution is fundamentally a mute concern, (see United Stares' Evans, 476 F.3d 1176, n.1 (1Ith Cir. 2007) (federal law "does not criminalize all acts of prostitution (a vice traditionally governed by state regulation)")). and that is no evidence that Palm Beach County authorities and Flout prosecutors cannot effectively prosecute and punish the conduct, there is no reason why this matter should be extracted from the hands of state prosecutors in Florida. RFP MIA 000473 EFTA00208954 05/28/2008 09:09 FAX 2026161239 .0:p ;8 Oh MON 13:24 FXX 1 213 680 8500 DOJ/ODAG KIRKIANDLELLIS LLP 14010/013 ;(!) aim Honorable Mark Filip May 19. 2008 Page 5 in fact, recent testimony of several alleged "victims" contradicts claims made by federal prosecutors during the negotiations of a deferred prosecution representations of kev Government witnesses (such as and confirm the following First, there was no communication, telephonic or otherwise, that meets the requirements of § 2422(b). For instance. Ms. confirmed that Mr. Epstein never emailed, text-messaged, or used any facility of interstate commerce whatsoever. bcfore or after her one (and only) visit to his home. Ti. (deposition} at 30. Second, the women who testified admitted that they lied to Mr. Epstein about their age in order to gain admittance into his home. Indeed, the women who brought their underage friends to Mr. Epstein testified that they would counsel their friends to lie about then ages as well. Ms. Miller stated the following: "I would tell my girlfriends just like approached me. Make sure you tell him you're 18. Well. these girls that I brought, I know that they were IS or 19 or 20. And the girls that I didn't know and I don't know if they were lying or not, 1 would say make sure that you tell him you're 18." Miller Tr. at 22. Third, there was no tontine or habit of improper communication expressing an intent to transform a massage into an illegal sexual act. In fact, there was often no sexual activity at all during the massage. Ms Miller testified that IsJoinetimes [Mr. Epstein] just wanted his feet massaged. Sometimes he just wanted a hack massage." Miller Tr. at 19. also stated that Mr. Epstein "never touched [her] physically" and that all she di was -massage I his back. his chest and his thighs and that was it." Tr. at 12-13. Finally, there was no force, coercion, fraud. violence, dm ven alcohol present in connection with Mr. Epstein's encounters with these i women. Ms. s tilted that "[Mr. Epstein] never tried to force me to do anything." Tr A at 12. These accounts are far from the usual testimony in sex slavery, Internet stings and sex tourism cases previously brought. The women in actuality were not younger than 16, which b the age of consent in most of the 50 states, and the sex activity was irregular and in large part. consisted of solo self-pleasuring. The recent crop of civil suits brought against Mr. Epstein confirm that the plaintiffs did not discuss any sexually-related activities with anyone prior to arriving at Mr. Epstein's residence. This reinforces our contention that no telephonic or Internet persuasion. inducement, enticement or coercion of a minor, or of any other individual, occurred. In addition, Mr. Jeffrey Herman, the former law partner of one of the federal prosecutors involved in this matter and the attorney for most of the civil complainants (as described in detail below), was quoted in the Palm Beach Post as saying that "it doesn't matter that his clients lied about their ages and told Mr. Epstein that they were 18 or 19. agreement. The consistent Not only is a federal prosecution of this matter unwarranted, but the irregularity of conduct by prosecutors and the unorthodox terms of the deferred prosecution agreement arc beyond any reasonable interpretation of the scope of a prosecutor's responsibilities. Elie list of improprieties includes, but is not limited to, the following facts: RFP MIA 000474 EFTA00208955 05/28/2006 09:10 FAX 2026161239 10 us M0N 13:25 FAN 1 213 660 6500 DOJ/ODAG 1.1 W11011/013 45007 Honorable Mark Filip May 19. 2008 Page 6 • Federal prosecutors made the unprecedented demand that Mr. Epstein pay minimum of S150.000 per person to an unnamed list of women they referred to as minors and whom they insisted required representation by a guardian ad litem. Mr. Epstein's counsel later established that all but one of these individuals were actual!) adults, not minors. Even then, though demanding payment to the women, the USAO eventually asserted that it could not vouch for the veracity of any of the claims that these women might make. • Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fees of a civil attorney chosen by the prosecutors to represent these alleged "victims" should they choose to bring any civil litigation against him. They also proposed sending a notice to the alleged "victims," stating, in an underlined sentence, that should they choose their own attorney, Mr. Epstein would not be required to pay their lees. The prosecutors further demanded that Mr. Epstein waive his right to challenge any of the allegations made by these "victims.- • The Assistant U.S. Attorney involved in this matter recommended for the civil attorney, a highly lucrative position. an individual that we later discovered was closely and personally connected to the Assistant U.S. Attorney's own boyfriend. • Federal prosecutors represented to Mr. Epstein's counsel that they had identified (and later rechecked and re-identitied) several alleged "victims" of federal crimes that qualified for payment under 18 U.S.C. § 2255, a civil remedy designed to provide financial benefits to victims. Only through state discovery provisions did we later learn that many of the women on the rechecked "victim list" could not possibly qualify under § 2255. The reason is that they, themselves. testified that they did not suffer any type of harm whatsoever, a prerequisite for the civil recovery under § 2255. Moreover, these women stated that they did riot, now or in the past, consider themselves to be victims. • During the last few months. Mr. Herman, First Assistant...MI former law partner, has filed several civil lawsuits against Mr. Epstein on behalf of the alleged 4-victims." It is our understanding that each of Mr. Herman's clients are on the RFP MIA 000475 EFTA00208956 05/28/2006 09:10 FAX 2026161239 DOJ/ODAC .05 In 08 MON 13:25 FAX 1 213 680 8500 hIRKLAMMELLIS LLP wa012.013 tt0ot. • Honorable Mark Filip May 19, 2008 Page 7 Government's confidential "list of victims." Most of these lawsuits seek S50 million in money damages.' • Assistant U.S. Attorney spoke about the case in great detail to Landon Thomas, a reporter with the New York Tunes, and revealed confidential information about the Government's allegations against Mr. Epstein. Tht• Assistant U.S. Attorney also revealed the substance of confidential plea negotiations. • When counsel for Mr. Epstein complained about the media leaks. First Assistant responded by asserting that "Mr. Thomas was given, pursuant to his request, non-case specific information concerning specific federal statutes" Based on Mr. Thomas' contemporaneous notcs, that assertion appears to be false. For example, Mr. 1==told Mr. Thomas that federal authorities believed that Mr. Epstein had lured girls over the telephone and traveled in interstate commerce for the purpose of engaging in underage sex. He recounted to Mt. Thomas the USAO's theory of prosecution against Mr. Epstein. replete with an anaiysis of the key statutes being considered. Furthermore, after Mr Epstein's defense team complained about the leak to the t2SAO, Mr. in Mr. Thomas' own description. then admonished him for talking to the defense, and getting him in trouble. Mr. further told him not to believe the - spin- of Mr. Epstein's "high-priced attorneys," and then, according to Mr. Thomas, Mr. forcefully "reminded" Mr. Thomas that all prior conversations were mere') hypothetical. We are constrained to conclude that the actions of federal officials in this case strike at the heart of one of the vitally important, enduring values in this country the honest enforcement of federal law, free of political considerations and free of the taint of personal financial motivations on the part of federal prosecutors that, al a minimum, raise the appearance of serious impropriety. We were told by U.S. Attorney Acosta that as pan of the review he requested, the Department had the authority. and his consent, to make any determination it deemed appropriate regarding this matter, including a decision to decline federal prosecution. Yet. CEUS's only conclusion, based on its limited review of the investigation, is that U.S. Attorney Acosta would not abuse his discretion by proceeding against Mr. Epstein. Thus, the decision of whether 4 As recently as two months ago. Mr. still listed publicly as a pun of his former l