. (USAFLS)

. (USAFLS) From: (USAFLS) Sent: 2007 3:11 P To: AFLS) (USAFLS) Cc: . (USAFLS) Subject: FW: Jeffrey Epstein Attachments: 2007-05-22 letter to AUSe Gentlemen, l a and I have already met with Lefcourt, which is really the meeting I promised him. I spoke to him last week and he said he had more information they wanted to present. I told him he could make an appointment to come in again if he wanted to and that we would meet with him again, but I did not promise that we would wait to give him a meeting "before" we charged. So, I think he is really ready for the next level rather than a second meeting with me. Mike Tein also mentioned to me at some point that they wanted to make a presentation on the law and I suggested to him that he contact Matt without telling him exactly what stage of review we were at. I don't know if Tein and Lefcourt have crossed wires or not. In any event, I am forwarding this letter to you. I am going to suggest to Lefcourt the same thing that I suggested to Tein. I assume you would grant his attorneys a chance to make whatever presentation they desire. It would probably be helpful to us in any event to hear their legal arguments in case we have missed something. Whether Alex would be present or grant them another meeting after that is his call. From: Gerald Lefcourt Emailt Sen y 22, 2007 2:05 PM To: LS) Cc: . (USAFLS); Subject: Jeffrey Epstein attached is a letter seeking meetings, as discussed with you, but with others if it is not resolved. Thanks for your attention. Could you email back so that I know you have received this letter? Gerald B. Lefcourt Gerald B I Afrat , P.C. Ne rk 10021 Tel. 1 Case No. 08-80736-CV-MARRA P-013303 EFTA00230208 cp/2.54 LekotAyf-to No. 08-80736-CV-MARRA P-013304 EFTA00230209 LAW OFFICES OF Gmateam B. Drecotrin, P.G. A PROFESSIONAL CORPORATION IPS EAST 70' STREET NEW YORE, NEW YORIELOOEI GERALD B. LEFCOURT SHERYL E. REICH FAITH A. FRIEDMAN June 25, 2007 BY HAND DELIVERY Esq., First Assistant United States Attorney Esq., Chief, Criminal Division The United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, Florida 33132 Deputy Chief, Northern Region Assistant United States Attorney The United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Dear and Re: Jeffrey E Epstein and MIS ASS As you are aware, we represent Jeffrey E. Epstein in connection with your ongoing investigation. We write to you in advance of our June 26, 2007, meeting to address some of the concerns that have been raised during our recent conversations. Although not exhaustive of all the issues we wish to discuss, or points we intend to raise, we believe this submission will facilitate a more productive meeting by giving you an overview of our position and the materials we plan to present in order to demonstrate that none of the statutes identified by you can rightly be applied to the conduct at issue here. We are prepared to discuss the issues raised herein further at tomorrow's meeting as well as to discuss additional concerns you may voice, all for the purpose of demonstrating why no federal prosecution should lie. The Federal Criminal Statutes Identified Should Not Be Applied Here It is clear from both the fundamental principles of federal criminal law and the specific statutes in question that federal law is not intended to prohibit, nor does it prohibit, all "wrongful" sexual activity. Indeed, there is no federal crime of sex with an underage person — Case No. 08-80736-CV-MARRA P-013305 EFTA00230210 LAW OFFICES OE GERS.T.D B. LE:POI:MEM, P.G. Esq. Esq. q. Esq. Office of t e lilted States Attorney Southern District of Florida June 25, 2007 Page 2 even assuming such an act took place in this case — nor could there be such a crime under the United States Constitution.' By and large, the delineation of such conduct (that is, determining what conduct is wrongful), and the prosecution for such conduct, have been delegated to the states. Such conduct is punishable under state laws, under which the age of consent varies from 14 to 18 with many states making sex with a 16 year old completely lawful regardless of the age of the other person.2 In short, the role of federal law in this area is carefully circumscribed. The legislative history of the federal "sex" statutes at issue evinces no federal concern with the prevalent local phenomenon of young adults — 16 or 17 years of age — voluntarily choosing to engage in sexual contact with anyone they desire. This is strictly a state concern, which some states have chosen to criminalize, while others have not, and some local prosecutors have chosen to prosecute, while others have not. It is not an accident that, as far as we have been able to determine, there is no federal case involving a defendant who maintains a reasonable mistake of fact defense, where that defendant reasonably belie-WU-11c other person was 18 years of age. The federal statutes were not meant to apply in those circumstances as such conduct is a matter of state law. The federal statutes were intended to address those cases involving sexual activity with children. Indeed, the federal concerns intended to be redressed by these statutes, as evidenced by the legislative history; the advisory titles of the statutes; and even their sometimes broad language, arc: the use of coercion and violence to lead children into a life of prostitution (12, l3, or 14 years old, or younger); sex trafficking and slavery of children; interstate or foreign travel to have sex with children (or engage in other illegal sexual activity); and trolling for children on the intemet in order to have sex with them. None of these concerns is present here.3 These constitute the paradigmatic federal concerns, mainly because the states are ill prepared to deal effectively with interstate and international trafficking of children. On the other hand, the states are fully capable of deciding how to deal with entirely local matters relating to men who allegedly have inappropriate sexual contact with local young women. To disregard these concerns, to ignore congressional purpose, and attempt to give the federal statutes their broadest possible interpretation would cause the undesired result of criminalizing federally virtually all acts of prostitution or sexual misconduct — a result not intended by Congress and I United States v. Lopez. 514 U.S. 549 (1995). 2 Notably, Chapter 109A statutes, e.g., §§ 2241.2245, to which § 2423(b) inherently refers, each deal in terms of force and/or age. A review of these statues demonstrates that in each instance unless force is involved, the vice must be under 16 years old for a prosecution to lie. 3 We understand the Office has taken the view that Mr. Epstein targeted underage high school students. This vra absolutely not the case and we will be prepared to discuss at our meeting the objective evidence demonstrating no such targeting occurred. Case No. 08-80736-CV-MARRA P-013306 EFTA00230211 LAW OFFICES OF GERALD B. LatecouRT, P.G. A. illafatta EsEsEsq .q. q Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 3 unlikely to be sanctioned by the courts." To stretch the statutes in the unprecedented way it appears is contemplated would do just that. Although in this memo we have focused primarily on the federal sex statutes, in the same way that those statutes cannot logically be expanded to cover the conduct at issue, neither can the statutes governing monetary transactions. These latter statutes, designed to curb the use of what would appear to be otherwise innocent financial transactions to disguise proceeds of unlawful activity and avoid Internal Revenue Code requirements, have no place in this case. The ills sought to be remedied by these statutes are far removed from the conduct in which Mr. Epstein purportedly engaged. We address each statute in turn, starting with those regulating monetary transactions. 18 U.S.C. § 1956(a)(3) - The Money Laundering Statute - Does Not Apply to Mr. Epstein's Alleged Misconduct No reasonable reading of the money laundering statute can countenance such a charge against Mr. Epstein, for the statute on its face, or as even applied by the courts, has absolutely no application to the alleged misconduct. Under the facts of this case, to charge Mr. Epstein with violating the money laundering statute would be both unprecedented and inappropriate. The money laundering statute was designed to be used and has been construed as a "concealment" statute, not a spending statute. See United States v. Shepard, 396 F.3d 1116 (10th Cir.), cert. denied, 545 U.S. 1110 (2005); United States v. Ilan, 434 F.3d 42 (1st Cir. 2006) (money laundering statute does not criminalize the mere spending or investing of illegally obtained assets. Instead, at least one purpose for the expenditure must be to conceal or disguise the assets). The Eleventh Circuit has held that "[t]o prove money laundering under § 1956(a)(3), the government must show that the defendant (1) conducted or attempted to conduct a financial transaction (2) involving property represented to be the proceeds of specified unlawful activity, (3) with the intent (a) 'to promote the carrying on of specified unlawful activity,' (b) `to conceal or disguise the nature, location, source, ownership, or control of property believed to be the 4 "Section 1591 does not criminalize all acts of prostitution (a vice traditionally governed by state regulation). Rather, its reach is limited to sex trafficking that involves children or is accomplished by force, fraud, or coercion". United States v. Evans, 476 F.ad 1176, 1179 n. 1 (1 I th Cir. 2007). Nor, has the Department of Justice deemed it appropriate. See, e.g. United States Department of Justice Civil Rights Division Anti-Trafficking News Bulletin, August/September 2004, Vol. I, Nos. 8 and 9, at 2 (in order to address the demand for prostitution the federal government must work with the state, as it is state law that controls). Case No. 08-80736-CV-MARRA P-013307 EFTA00230212 LAW OFFICES OF GERALD 13. burcOURT, , Esq. Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 4 proceeds of specified unlawful activity,' or (c) `to avoid a transaction reporting requirement under State or Federal law'. United States v. Puche, 350 F.3d 1137 (11th Cir. 2003);5 see also United States v. Arditti, 955 F.2d 331 (5'h Cir.), reh'g denied, cert. denied 506 U.S. 998 (1992), cert. denied 506 U.S. 1054, reh'g denied 507 U.S. 967 (1993) (undercover agent's representation that he was in the cocaine business and that the initial $15,000 were the proceeds of a collection satisfied requirement for establishing basis for money laundering "sting" operations that government agent represent that property involved in the transaction was the "proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity"). Thus, it is clear that the statute unquestionably and explicitly requires (a) the use of proceeds of specified unlawful activity; or (b) cash which is or was represented to be the product oif riiirawfill activity, with neither paradigm being applicable in the case. That this was how the statute was intended to be used and is understood is further evidenced by section 9-105 of the United States Attorney's Manual, which states: Sections 1956 and 1957 both require that the property involved in the money laundering transaction be the proceeds of specified unlawful activity at the time that the transaction occurs. The statute dots not define when property becomes "proceeds," but the context implies that the property will have been derived from an already completed offense, or a completed phase of an ongoing offense, before it is laundered. Therefore, as a general rule, neither § 1956 nor § 1957 should be used where the same financial transaction represents both the money laundering offense and a part of the specified unlawful activity generating the proceeds being laundered. The allegations of this case simply do not support a money laundering charge. Any attempt to make such a charge would constitute inappropriate overreaching and would stretch the statute beyond its intended purpose. Unlike the typical money laundering case, Mr. Epstein did not receive money or funds from any criminal conduct which he then used in a financial transaction. See, e.g., United States v. Taylor, 239 F. 3d 994 (9th Cir. 2001) (defendant charged with running an illegal escort service and using proceeds from that business to pay credit cards s Instructive is Eleventh Circuit Pattern Jury Instruction 70.4 which states that the defendant can be found guilty of § 1956(a)(3)(A) only if (I) he knowingly conducted a financial transaction; (2) thqjranitantion involved property represented to be the proceeds of specified unlawful activity or that was use4 to conduct or facilitate specified unlawfuLactivity and (3) the defendant engaged in the transaction with the intent to promote the carrying on of specified unlawful activity. Case No. 08-80736-CV-MARRA I -U1330 EFTA00230213 LAM OFFICES Or GraitALD B. LIWCOURT, M Es sg. , q. , Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 5 used to purchase airline tickets to fly prostitutes to Las Vegas). Nor did Mr. Epstein use money he knew otherwise to be unlawfully tainted in a financial transaction designed to facilitate, conduct, or promote prostitution or other criminal conduct. Rather, to the extent the evidence may show that Mr. Epstein paid for sexual services, he most certainly did so with untainted, legitimately earned funds. In addition, unlike the typical "sting" case, which 1956(a)(3) was enacted to address, there is no evidence that Mr. Epstein was aware, or that government or law enforcement personnel made him aware of circumstances from which he could reasonably have inferred that the funds were from specified unlawful activity. This is not a case where large amounts of cash of questionable origin were repeatedly delivered to Mr. Epstein in small denominations in duffel bags and boxes. See, e.g., Puche, supra, 350 F. 3d 1137; see also United States v. Rahseparian, 231 F. 3d 1257 (10th Cir. 2000) (government failed to prove that defendant knew that money was obtained by mail fraud, the unlawful activity underlying money laundering count). To proceed under a view that the statute covers such behavior would lead to the unintended result of making use of a credit card or wire transfer to pay for sexual services provided by a prostitute money laundering. That was surely not what Congress intended, how the courts have interpreted the language of the statute, or even how it is viewed by the Department of Justice. 18 U.S.C. § 1960 - Prohibition of Unlicensed Money Transmitting Business Does Not Apply to Mr. Epstein's Alleged Misconduct Likewise, a prosecution under § 1960 cannot lie. 18 U.S.C. § 1960 is a regulatory statute that was enacted in order to combat the growing use of money transmitting businesses for the purpose of transferring large sums of illegally obtained monies and to avoid the strictures of the Internal Revenue Code, as well to fund terrorism. The type of business contemplated by Congress is one which, for a fee, accepts funds for transfer within or outside the United States. See United States v. Talebnejad, 460 F.3d 563, 565 (4th Cir. 2006); United States v. Velastegui, 199 F.3d 590 (2d Cir. 1999). Once the money transmitter receives the fee and the money from the customer, a third party at the recipient location then pays the money to the designee or the transmitter wires the money directly to the recipient. These formal and informal businesses are often operated for the purpose of sending money to an individual's home country from the United States. See, e.g., Talebnejad, supra, 460 Case No. 08-80736-CV-MARRA P-013309 EFTA00230214 LAW OPTICES Or GERALD B. Darr, P.C. Esq. Esq. A. • q. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 6 F.3d at 567 (Iranian immigrants operated money transmitting business in Maryland); Velastegui, 199 F.3d at 593 (money transferred to Mexico by unlicensed agent); United States v. Bah, 2007 U.S. Dist. LEXIS 25274 (S.D.N.Y. 2007) (defendant operated restaurant in New York which also transmitted cash overseas); United States v. Abdullah, 2006 U.S. Dist. LEXIS 47493 (W.D.Va. 2006) (Iraqi defendant charged customers a fee for transferring money from the United States to Middle Eastern countries). However, as noted, in many instances, due to the lack of uniform regulation, these businesses have served to transfer funds which were the proceeds of illegal activity. See United States v. Valdes, 2006 U.S. Dist. LEXIS 12432 (S.D.N.Y. 2006) (defendants transmitted proceeds of drug trafficking to Colombia); see also P.L. 103-325, Title IV, § 408, 108 Stat. 2252. In response to the growing concern about this improper use of these businesses, Congress enacted § 1960, in conjunction with § 5330, establishing a regulatory scheme to assist in the effective enforcement of criminal, tax, and other laws and prevent such businesses from participating in any illegal enterprises. Id. It is clear that § 1960 does not apply, and was never intended to apply, to Mr. Epstein's purported misconduct. Mr. Epstein did not own or operate a "money transmitting business" as defined in § 5330. Nor was he in the money transmitting business. Mr. Epstein was not providing check cashing, currency exchange, or money transmitting or remittance services. Nor was he issuing or redeeming money orders, travelers' checks, or other similar instruments, or acting as a person engaged as a business in the transmission of funds. Indeed, he was not carrying on a business at all through these transfers. The term "business" is defined as an "activity or enterprise for gain, benefit, advantage or livelihood" (Black's Law Dictionary (7th ed. 2007)) or as "a usually commercial or mercantile activity engaged in as a means of livelihood". Merriam-Webster's Online Dictionary. The only funds transferred were Mr. Epstein's personal monies, monies he lawfully earned. He did not profit from the transmission of this money. Nor was the act of transmitting the money a means of his livelihood. Ile simply took legitimate money and used it to meet his financial obligations. At best, the evidence demonstrates that Mr. Epstein transmitted funds from personal accounts in New York to accounts in Florida in order to pay for personal expenses — food, flowers, household upkeep, etc. This cannot be viewed as anything different from giving cash to a family member, or transferring money from a savings or brokerage account to a checking account, in order to pay bills and expenses. Under no reading of the facts can Mr. Epstein's conduct in transferring money between his accounts constitute a "business", much less a money transmitting business. As such, a prosecution wider the statute should not lie. Case No. 08-80736-CV-MARRA P-013310 EFTA00230215 LAW OIFICCS of Graner.n B. D4 • UftT, P.C. 111 , Esq. , Esq. A. Villafaila, Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 7 18 U.S.C. § 1591 — The Misconduct Alleged Does Not Fall Within the Ambit of the Statute 18 U.S.C. § 1591 - "Sex Trafficking of Children or by Force, Fraud, or Coercion" — was passed as part of the Trafficking Victims Protection Act ("TVPA") to address a problem far removed from the present set of circumstances: human trafficking, in general, and human sex trafficking, in particular, involving both a commercial and coercive component. The statutory scheme was designed to prevent the organized exploitation of women and children for profit and was not intended to address the conduct alleged here: The central principle behind the l'rafficking Victims Protection Act is that criminals who knowingly operate enterprises that profit from sex acts involving persons who have been brought across international boundaries for such purposes by force or fraud, or who force human beings into slavery, should receive punishment commensurate with the penalties for kidnapping and forcible rape. 147 Cong. Rec. E2179-02; see also United States Department of Justice Civil Rights Division Anti-Trafficking News Bulletin, April 2005, Vo. 2, No. I at 1; July 2004, Vol. 1, No 7. at 6; and January 2004, Vol. I, No. 1, at 1, 3 (reflecting the positions of President Bush, Attorney General Gonzalez, former Attorney General Ashcroft, and fonner Assistant Attorney General for the Civil Rights Division Acosta that human trafficking involves force, fraud and coercion, and is a form of modern day slavery). The behavior and actions of Mr. Epstein are far removed from the human trafficking concerns addressed by Congress in enacting § 1591. Any attempt to prosecute him under this section would be unprecedented and highly irregular. Not surprisingly, the case law does not support any such prosecution. Nationwide there are relatively few appellate decisions dealing with prosecutions under § 1591. In the Eleventh Circuit, there are only a handful, several of which are unpublished. A review of these cases reveals that the paradigmatic case for enforcement falls into one of two categories.6 The first involves defendants who have engaged in a highly predatory sort of business — prostituting underage persons, either by force, fraud, or coercion. These cases bear no relationship to the circumstance at issue here. See, e.g., United States v. Norris, 188 Fed. Appx. 822 (I 1 Cir. 2006) (unpublished)(prosecution of several men for conspiracy to hold young women in peonage, and to traffic them for commercial sex acts, involving force and threats; bail issue); United States v. 6 A review of the United States Deparnnent of Justice Civil Rights Division Anti-Trafficking News Bulletins confirms that this same pattern exists nationwide. We will be prepared to discuss these cases further at our meeting and will supply details about the cases upon request. Case No. 08-80736-CV-MARRA P-013311 EFTA00230216 LAW orreccs OF GERALD B. lanrcouarr, sq. , Esq. A Esq. Office of the United Stales Attorney Southern District of Florida June 25, 2007 Page 8 Sims, 161 Fed. Appx. 849, 2006 WL 14581 (11th Cir. 2006) (unpublished). See also Evans, supra, 476 F.3d 1176. The second involves sex tourism sting operations where the defendants signed up for a "Taboo Vacation," usually to go to Costa Rica to have sex with children. In these cases the state interest is relatively minimal and United States treaty obligations have made federal intervention a high priority. See, e.g., United States v. Clarke, 159 Fed. Appx. 128, 2005 WL 3438434 (11th Cir. 2005)(unpublished); United States v. Strevell, 185 Fed. Appx. 841, 2005 WI, 1697529 (11th Cir. 2006)(unpublished), cert. denied, 127 U.S. 692 (2006). No such federal interest is implicated in the purely local case of Mr. Epstein. Here, there was no trafficking — no "force, fraud or coercion"; no threats; no sexual servitude; no financial venture; no profit from a financial venture; no forced work in the commercial sex industry; and no transporting of children from underdeveloped countries to the United States or even across state lines. Nor was there any conduct which can be considered so extremely abusive or violent, that an expansion of the statutes beyond their intended purpose would be warranted. 18 U.S.C. § 2421 — Mann Act — The Statute Was Not Intended To Address The Misconduct Alleged Here Any attempt to charge Mr. Epstein under 18 U.S.C. § 2421 would violate both the spirit and purpose of the statute. Section 2421 was first enacted by Congress in 1910 to prevent the use of interstate commerce to facilitate prostitution, concubinage, or other fonns of immorality. Hoke v. United States, 227 U.S. 308 (1913); Wilson v. United States, 232 U.S. 563 (1914); Caminetti v. United States, 242 U.S. 470 (1917). The statute's primary purpose was to address the so-called commercial case of transporting females for immoral purposes. Cleveland v. United States, 329 U.S. 14 (1946) (even though the Act includes some non-commercial cases within its scope, its primary focus is commercial sexual activity); United States v fatnerson, 60 F Supp 281 (D.C. Iowa 1944). However, it has also served to protect women against conduct, whether commercial or not, that involves transportation and is exploitive or violent. See, e.g., De Vault v. United States, 338 F.2d 179, 180 (10th Cir. 1964) (applying the Act to protect girl who was raped). ....1 The Mann Act is a relatively antiquated morality statute that, despite its overly broad language, is wisely used only sparingly. Notably, the most recent reported decision in the Il th Circuit involving the Mann Act was decided in 1984. United States v. Phelps, 733 F.2d 1464 (11th Cir. 1984). Case No. 08-80736-CV-MARRA P-013312 EFTA00230217 IAVI OFFICF-1 OF GERALD B. larccran, P.C. Esq. A. Villafafia, Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 9 Indeed, a nationwide search of reported prosecutions and convictions under the Act reveals that the statute has primarily been limited to cases involving prostitution rings/businesses and their owners. United States v. Holland 381 F.3d 80 (2d Cir. 2004) (woman running prostitution business convicted for recruiting and transport of prostitutes under § 2421); United States v. Footman, 215 F.3d 145 (1th Cir. 2000) (pimp who ran a prostitution ring convicted of violating § 2421). Likewise, in keeping with its purpose and title, the statute has been used in sex trafficking cases involving the exploitation of the poor and disadvantaged from foreign countries. See, e.g., United States v. Julian, 427 F.3d 471 (7i6 Cir. 2005) (sex tourism operator in Mexico facilitating travel of poor Mexican boy for sexual relationship in the United States violated § 2421). On the other hand, other cases which have targeted non-owners of prostitution rings, have further limited § 2421 prosecutions to circumstances involving egregious conduct, such as the use of force or kidnapping. See, e.g United States v. Lowe, 145 F.3d 45 (1th Cir. 1998) (defendant transported woman across state lines against her will and then raped her). See also Poindexter v United States, 139 F.2d 158 (8th Cir. 1943) (transportation by defendant of woman across state line with purpose of raping her violated 18 U.S.C. § 2421 since statute covers interstate transportation of woman without pecuniary motive where intent is to have illicit relations with her by force or otherwise); Brown v United States, 237 F.2d 281 (8th Cir. 1956) (the defendant violated the Act when he tricked woman into his car and drove her across state lines where he threatened, choked, struck and raped her, and then drove her back to the bus depot where he had picked her up). As we have previously pointed out, the allegations being levied against Mr. Epstein involve no such misconduct. We have found no reported decision in the past 20 years in which an individual was prosecuted under the Mann Act for simply traveling across state lines with a woman whom he paid for sexual services — even assuming the evidence shows this to be the case here. To use the Act to prosecute Mr. Epstein, where he was neither the owner nor operator of a prostitution ring, and where there are no allegations of kidnapping, force, or violence, would be unprecedented and would stretch the statute beyond what all understand is its modern day intended purpose. 18 U.S.C. § 2422(b) — The Misconduct Alleged Does Not Fall Within the Ambit of the Statute In enacting th(mtemebrolling statute, 18 U.S.C. § 2422(b), Congressional concerns were focused on a very specific and recent phenomenon: young people using the Internet in ever-increasing numbers, and attracting sexual predators out of the woodwork. Disturbingly, computers and the intemet made it frighteningly easy for sexual predators to enter into the homes of families, undetected by parents, and prey on these children in cyberspace. As Congress recognized, with so many children online, the internet provided predators a new place - Case No. 08-80736-CV-MARRA P-013313 EFTA00230218 LAW OFFICES OF GurtALD 13. Incomtx, P.C. Esq. Esq. sq. A. afia, Esq. O ice of the United States Attorney Southern District of Florida June 25, 2007 Page 10 cyberspace - to target children for criminal acts. Congress enacted the interne( trolling statute to combat the alarming increase in Internet predators, who were able to maintain their anonymity, while making unwanted sexual solicitations of vulnerable youngsters. The statutory language and reported decisions confirm the statute's important, but narrow, focus. Section 2422(b) does not establish any federal sex crimes with a minor, which remain a matter of state, not federal, concern. Instead, as the reported cases reveal, it defines a crime of communication, not of sexual contact. Indeed, what all of the cases have in common is that the defendant used th o communicate with a child or purported child (or a person with influence over such a child or purported child), and with the intent to arrange a sexual tryst with the child, with both the belief that the person was a child and with full knowledge that sexual activity with an individual of that age was illegal — precisely the situation the statute was designed to reach. Mr. Epstein's case lies far outside those parameters, and far outside the language and intended reach of the statute. In Mr. Epstein's case, even if there were inappropriate sexual contact with one or more 16 or I 7 year olds, there was no use of the Internet to lure young victims, and no danger presented by Internet predation. 18 U.S.C. § 2423(b) — No Travel For The Purpose of Engaging In Illicit Sexual Conduct, As Required By The Statute The linchpin of a prosecution under § 2423(b) is "travel for the purpose of engaging in . . . illicit sexual conduct". The evidence overwhelmingly demonstrates that no case can be made that Mr. Epstein ever traveled to Florida in order to engage in illicit sexual conduct. Elimination of the "purpose" requirement of the statute would undermine congressional intent, as recently expressed and re-affirmed in the Trafficking Act of 2002 and PROTECT Act of 2003.7 Unlike subsections (a) and (b), § 2423(c), makes it unlawful to travel in foreign commerce and engage in illicit sexual conduct, without any proof of intent or purpose. It was enacted in response to the extraordinary difficulties the Department of Justice had faced in proving a defendant's intent or purpose in traveling when prosecuting foreign travel cases. Significantly, Congress did not amend § 2423(b), which continues to require purpose where the travel is interstate. Thus, Congress recognized the state's primary interest in proscribing illicit sexual conduct occurring within the state, unless one traveled to the state for that purpose. 7 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 108- 21, 117 Stat. 650 (2003). See generally United States v. Clark, 435 F.3 1100 (91° Cir. 2006). Case No. 08-80736-CV-MARRA P-013314 EFTA00230219 LAW OFIICES or Orman) B. LEPretrwr, P.C. Esq. , Esq. ES Q. A. Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 11 Legislative intent, and concepts of federalism, would be undermined if interstate travel with only incidental sexual conduct were prosecuted. The nature and scope of Mr. Epstein's activities in Florida do not support the conclusion that any purported illicit sexual conduct was an "important" "purpose of the travel, a significant motivating factor", or in other words, more than merely incidental. See United States v. Horschauer, 2007 WL 979931 (1 e h Cir. 2007) (unpublished). We understand from conversations with Ms. Villafaiia that she believes that Mr. Epstein was and is a resident of New York, and that all trips to other homes were trips "away from home," undertaken for a limited period and with a specific purpose. The evidence clearly does not support this view.8 Mr. Epstein has owned a home in Florida since September, 1990 - longer than any other residence he has owned — when he purchased the property on El Brillo Way. Ile spent substantial amounts of money during the relevant period to improve and to maintain this home. In addition, his travel records demonstrate that during the relevant period Mr. Epstein both spent the majority of his weekends, and additional time in Florida. Although he left Florida for business and other projects, he consistently returned to Florida, weekend after weekend, year after year. Specifically, the flight logs establish that for the period 2003 - 2005 (through September) , there is no month when he did not spend at least one long weekend in Florida, including in the summer months, and that he spent well over half of all weekends in Florida. to Upon returning to Florida, Mr. Epstein routinely visited with various family members and close friends, all of whom reside or have homes in Florida, saw his primary care physician for checkups and prescribed tests, and frequented movie theaters and comedy clubs. Notably, during the relevant period, Mr. Epstein's mother took seriously ill, was often hospitalized, and convalesced in Florida until she died in 2004. A principal reason for Mr. Epstein's travels to Although the locus of one's residency for tax purposes is not conclusive on the question of where one in fact esides, on a number of occasions since 1995 the taxing authorities of New York State have determined that stein did not spend sufficient time in New York to be considered a resident of New York for tax purposes. 999, Mr. Epstein has qualified under the applicable test as a domiciliary of the United States Virgin Islands herefore entitled to the tax advantages being a domiciliary there afford Mr. Epstein stopped traveling to Florida beginning in October, 2005. In 2003, there were 31 multi-day trips to Florida, 29 of which were for multi-day weekends; in 2104, 37 m trips to Florida, 36 of which were multi-day weekends; and in 2005 (nine months), 24 multi-day trips to Florida, 2 of which were multi-day weekends. Case No. 08-80736-CV-MARRA P-013315 EFTA00230220 LAW O1/,et! or GERALD B. LErootorr, P.G Esq. Esq. A. Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 12 Florida during that time was to visit with and attend to his mother's needs, sec to her funeral arrangements, and address matters relating to her estate. In recognition of the amount of time he spent in Florida, during the relevant period Mr. Epstein worked with several local real estate agents to purchase a larger home. For example, in 2004, as publicly reported, he attempted to acquire the Gosman Estate, a unique property that was eventually auctioned by the Bankruptcy Court. Similarly, due to the extensive amount of time he spent in Florida and his desire to have his pilots close by and available should a flight out of Florida be required, the home base for Mr. Epstein's flight operations was Florida. Routine maintenance of the aircraft, periodic FAA inspections, and interior refittings were all carried out in Florida. Indeed, the regular crew members — the pilots and engineer — all resided in Florida, as did the majority of contract crew members who were hired from time to time. Both Hyperion Air Inc. (legal owner of Mr. Epstein's Gulfstream G-IIB), and JEGE, Inc. (legal owner of Mr. Epstein's Boeing 727), rent office space and a storage facility in Florida for the purpose of housing airplane records, including flight logs and wiring drawings, and providing the crew with a local office. The amount of time Mr. Epstein spent at his home in Florida, and the extensive list of Florida-based activities clearly undermines the contention that Mr. Epstein is a New York resident and defeats the notion that his purpose in traveling to Florida was to engage in illicit sexual conduct. On the contrary, Mr. Epstein returned to Florida to engage in the routine activities of daily living. We do not believe that the government could overcome the many substantial hurdles to be encountered when attempting to prove that a specific trip to Florida was for the required statutory "purpose" of engaging in specific "illicit sexual conduct"." Improprieties Surrounding The Search Warrant We previously referred to the many irregularities, misrepresentations and omissions which tainted the slate's case. These irregularities would have a significant impact on any federal prosecution. For example, early on in any prosecution, the legality of the initial search II There are, of course, a number of other ways in which Mr. Epstein's conduct did not violate § 2423(6). For instance, we anticipate that it will be difficult to show under the facts that at the time he initiated his travel to Florida, he knew the woman from whom he would later receive a massage, if at all, was at the time under the age of 18, or that he would engage in "illicit sexual conduct" as defined by that statute. Similarly, and again assuming that it could be shown that one of his purposes in traveling to Florida was to receive a massage, given that the activities during many of the massages varied, we do not believe it can be established that his purpose (or even one of his purposes) in traveling was to engage in "a sex act", however that tenn is ultimately defined. Case No. 08-80736-CV-MARRA P-013316 EFTA00230221 LAW OFFICES OF Gishsta.) B. LETCOURT, P.G. Esq. Esq. A. Esq. Office o the United States Attorney Southern District of Florida June 25, 2007 Page 13 conducted pursuant to the state search warrant would need to be litigated. The warrant suffers from such substantial glaring, facial deficiencies that a motion to suppress would likely result in the suppression of all items seized during the search of 358 El Brillo, as well as all evidence derived from the search, both physical and testimonial. In addition, the affidavit prepared by Det. Recarey in support of the search warrant is replete with material misstatements and omissions which, if not intentional, at a minimum, were made with reckless disregard for the truth. The principal misstatements and omissions all involve Det. Recarey's assertions of what the women interviewed said in their recorded sworn statements, statements taken by Det. Recarey himself and with which he was fully familiar. FIowever, a comparison of the transcripts of those interviews with the information set forth in the affidavit reveals many instances in which Det. Recarey represented to the issuing judge that the women interviewed said things which they did not in fact say, or failed to reveal material information contained in those same statements that would have been important for the judicial officer to know in determining whether the warrant should issue at all and, if so, whether the seizure of the broad categories of items outlined in the warrant should be authorized. Additionally, the execution of the warrant resulted in the seizure of a number of items which clearly fell outside the scope of the warrant, thus, requiring suppression of these unlawfully seized items. The material misstatements and omissions fall into three categories: (1) the mischaracterization of the significance of surveillance/videotape equipment located in Mr. Epstein's home; (2) the mischaracterization and misrepresentation of facts associated with the ages of the women and Mr. Epstein's claimed knowledge of their ages; and (3) the mischaracterization and misrepresentation of facts concerning the conduct in which Mr. Epstein allegedly engaged with these women. We take each in turn. Misrepresentations Regarding The Surveillance Equipment In an attempt to justify a seizure of computers at Mr. Epstein's residence — despite the fact that there was no misconduct alleged in connection with the use of computers — Det. Rccarey affirmed that he . . . recalled working a previous case within Epstein's residence on October 5, 2003, when Epstein reported a theft from within his house. A former, disgruntled houseman was suspected in stealing monies from the house. At that time, I observed several covert cameras which, would capture and record images of anyone within Case No. 08-80736-CV-MARRA P-013317 EFTA00230222 LAW OFFICES Or GEFLALD B. LEPCOURT, P.C.. Esq. Esq. ■ . Office of the United States Attorney Southern District of Florida June 25, 2007 Page 14 the residence. Epstein had purchased covert cameras which were built in wall clocks and table clocks. These images were then downloaded onto proprietary spyware software for later viewing. (Affidavit at 10). The clear implication of Det. Recarey's statement is that images of the purported "victims" may have been captured on the cameras and downloaded to computers where they remained, and could be seized, pursuant to a warrant. Det. Recarey, however, knew full well, but failed to inform the court, that the cameras were part of a security system installed with the assistance of the Palm Beach Police Department and were located in only two areas of the house — Mr. Epstcin's office and the garage. Dot. Recarey was also aware — but did not tell the court — that none of the women interviewed alleged that she visited, much less engaged in illicit conduct, with Mr. Epstein in either location. Finally, none of the witnesses ever claimed, even when asked, that Mr. Epstein videotaped her, or evidenced any knowledge whatsoever that he may have videotaped her visit. There can be no doubt that hi§..rnisstatements andlomissioAwere intentional and designed to establish probable cause that did not exist and to overcome staleness concerns. Misrepresentations Regarding The Age Of The Witnesses and Mr. Epstein's Knowledge Det. Recarey affirmed that claimed: [Mr. Epstein] told her the younger the better. (Affidavit at 4) And, that: Robson stated she once tried to bring a 23 year old female and Epstein stated that the female was too old. (Affidavit at 4) What Det. Recarey, no doubt intentionally, omitted was Robson's further explanation, which rendered Mr. Epstein's comments innocuous: A: Let me put it this way, he — I tried to bring him a woman who was 23 and he didn't really like it. Q: I le didn't go for it? A: It's not that he didn't go for it. It's just that he didn't care for it. And he likes the girls that are between the ages of 18 and 20. (Robson Statement at 12) (emphasis added) Case No. 08-80736-CV-MARRA P-013318 EFTA00230223 LAW OFFICES or Gmann B. LEPCOIRIT, P.C. Esq. Esq. .sq. A. 'sq. O ice o the United States Attorney Southern District of Florida June 25, 2007 Page 15 Had that critical information - information that turns allegedly illegal conduct into more innocent conduct — been included it would have seriously undermined the probable cause for the search warrant. Similarly, and equally problematic, Det. Rcearcy refused to include statements demonstrating that when asked by Mr. Epstein, the girls affirmatively misrepresented their ages as being 18, and/or Mr. Epstein was not aware of their true ages. (Gonzales Statement at 39, Robson Statement at 12, Pentek Statement at 5, Laduke Statement at 9). Indeed, although he noted that Gonzales had told Mr. Epstein she was 18, omitted from the affidavit why she lied: Haley said tell him you're 18 because if you're not, he won't let you in his house. So I said I was 18. As I was giving him a massage, lie was like how old are you. And then I was 18. But I kind of said it really fast because I didn't want to make it sound like I was lying or anything. (Gonzales Statement at 39). Misrepresentations Regarding The Conduct In Which Mr. Epstein Purportedly Engaged In the following statement Det. Recarey affirmatively misrepresented what.= =stated: "Hall states Epstein would photograph them naked and having sex and proudly display the photographs within the home". (Affidavit at 9). Ms. [fall actually made the following statement: A: I was just like, it was me standing in front of a big white marble bathtub ... And it, it wasn't like I was you know spreading my legs or anything for the camera, I was like, I was standing up. I think I was standing up and I just like it, it was me kind of like looking over my shoulder kinda smiling, and that was that. (Hall Statement at 35). Dct. Recarey further swore in his affidavit that- Advised that sometime during the massage, Epstein grabbed her buttocks and pulled her close to him. (Affidavit at 6). Case No. 08-80736-CV-MARRA P-013319 EFTA00230224 LAW OVEICL'S os GERALD B. LEEPCOURT, P.G. Esq. Esq. Esq. A. Villa afia, Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 16 kuarely denied being touched "inappropriately" or otherwise by Mr. Epstein: Q: He did not touch you inappropriately? A: No. (Pentek Statement at 11). These misrepresentations were compounded by Dct. Recarey's failure to include accounts by the witnesses that Mr. Epstein did not in fact engage in illicit conduct during their encounters. Specifically, Det. Recarcy did not inform the court that witnesses stated: (1) they were not asked to and did not touch Mr. Epstein's genitals, (Gonzales Statement at 43, Robson Statement at 12); (2) they did not have sex with Mr. Epstein, (Gonzales Statement at 43); (3) Mr. Epstein did not masturbate during the massage, (Pentek Statement at 11; Siciliano Statement at 13; and Laduke Statement at 7); and, (4) Mr. Epstein did not touch them inappropriately. (Pentek Statement at 11; Siciliano Statement at 13, 15; Gonzales Statement at 42). After all the misstatements are corrected, the omissions included, and the irrelevant facts omitted, what is left is an equivocal account of an encounter eight months prior to the warrant application and an equally unreliable account of an encounter which, even assuming arguendo it occurred, was more than eleven months old. Surely this evidence was too stale to support issuance of a search warrant, as it did not provide probable cause to believe that any items evidencing a violation of the subject statutes — let alone any items of the type described as "kept and used" in such violations — would still be on the premises at the time of the search. Unlawful Search Of The Second Residence The officers executing the search warrant exceeded the scope of the warrant when they entered and proceeded to search the second residence on Mr. Epstein's property. Even if those agents did not know in advance that the building was a second residence, which they did,12 that fact would have been immediately obvious to them upon entry. Notwithstanding such knowledge, they disregarded the terms of the warrant and proceeded to search the second residence. There was no probable cause for a search of that residence and thus, both the search and seizure of items found therein violated the Fourth Amendment. " A review of the videotape of the pre-search walk-thru of El Brillo reveals that officers knew prior to searching the second residence and seizing items located therein, that this was the living quarters of someone other than Mr. Epstein. This is corroborated by the Palm Beach Police Report in which Officer Michael Dawson recounts "I assisted in the search of Banasiak's living quarters. Numerous cd's along with a message book was seized". Police Report at 46; see also Police Report at 45. Case No. 08-80736-CV-MARRA P-013320 EFTA00230225 LAW Or EICES Or Gnata.r) 13. Lgruotrar, P.C. Esq. , Esq. , Esq. A. Villafafta, Esq. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 17 However, even assuming the warrant could possibly be read to encompass the search of the second residence, the affidavit is completely devoid of probable cause to search it. "[W]hen law enforcement wishes to search two houses or two apartments, it must establish probable cause as to each". United States'. Cannon, 264 F.3d 875, 879 (9th Cir. 2001). There Was No Probable Cause To Seize Many Of The Items Listed In The Warrant In addition, there was no probable cause to search for videotapes since all the women who were asked whether they had been videotaped denied knowledge of any videotaping. These are crucial facts which Det. Recarey omitted from his affidavit. Moreover, as noted, Det. Recarey had actual knowledge from his prior investigation that that were a limited number of video cameras located in the house and they were focused only on Mr. Epstein's desk and the garage — two locations where money was kept and where no one alleged any wrongdoing took place. Likewise, nothing in the affidavit could support a finding of probable cause to believe that computers or computer-related items were used in the commission of the alleged offenses. The seizure and subsequent search of the computers and computer-related items clearly violated the Fourth Amendment. See, e.g., United Stalest Riccardi, 405 F.3d 852, 862-63 (10th Cir. 2005) (warrant authorizing seizure of computer, all electronic and magnetic media stored therein, and a host of external storage devices without limitation unconstitutional as authorizing general search); United States'. Joe, 2007 WL 108465 at *7 (N.D.Ca1. January 10, 2007) ("computers and related or similar devices, and information on hard or floppy drives, which may contain any documents and records . . .." overbroad and ordering suppression); United States'. Slaey, 433 F.Supp.2d 499, 500 (E.D.Pa. 2006) ("[a1ny records, documents, materials and files maintained on a compute?' overbroad because it authorized agents to seize everything even if unrelated to the offense under investigation and even if wholly personal); United States'. Clough, 246 F.Supp.2d 84, 87-88 (D.Me. 2003Xwarrant to search computers which contained no limitations on the search was unconstitutionally overbroad); United States'. Hunter, 13 F.Supp.2d 574, 584 (D.Vt. I 998)(section of warrant which authorized seizure of all computers, all computer storage devices, and all computer software systems was unconstitutionally overbroad). Finally, there was no probable cause to believe that "hair fiber, semen, or other bodily fluids" would likely to be at Mr. Epstein's residence some eight months or more after the alleged criminal violations. There are serious hurdles to a federal prosecution, including the way the federal investigation was initiated, namely by Palm Beach Police Detective Recarey. Although Det. Recarey's questionable actions undermined the state proceeding, his work was provided to your Office "on a silver platter". Even though the FBI conducted its own investigation, that Case No. 08-80736-CV-MARRA P-013321 EFTA00230226 LAW OPTICES OF Guata.0 B. Uncover, P.C. Esq. Esq. q. A. i a aria, Esq. O ice o the United States Attorney Southern District of Florida June 25, 2007 Page 18 investigation cannot avoid being tainted by Det. Recarey's actions. Many of the leads the FBI followed, the witnesses it interviewed, and the documents it subpoenaed all inexorably flowed directly from the fruits of Oct. Recarey's investigation. Det. Recarey's credibility is interwoven in the federal investigation given the overlap of witnesses and documentary evidence with the antecedent state investigation. Not only would a federal prosecution implicate issues of the scope of taint of both physical evidence and witness testimony emanating from the state search, a federal prosecution would inexorably result in scrutiny of the extent to which Det. Recarey's pre-search investigation was adversely compromised by his zeal to prosecute Mr. Epstein. That Det. Recarey's desire to prosecute Mr. Epstein ran so deep is no more evident than through his participation in the unprecedented, selective, and prejudicial public release of materials such as the Palm Beach Police Reports and Probable Cause Affidavits. These documents, like the search warrant affidavit, were replete with material misstatements and omissions, one of the most glaring of which was the reference in the Police Reports to the discovery of a "sex toy" in Mr. Epstein's trash. Through the execution of the search warrant, it was discovered that the "sex toy" purportedly found in a trash pull was in fact only a piece of a broken salad fork. Despite this discovery, Det. Recarey, bent on painting the facts to support Mr. Epstein's prosecution, never took any steps to correct the Police Report and note the innocent nature of the item. Petite Policy We have previously submitted extensive materials regarding the role the Petite Policy should play in this matter. Rather than restate our position, we would like to discuss it in detail at the meeting. Conclusion This case started as and should end as a state matter. It involves local issues which are best addressed by state law. The statutes identified were never intended to be applied in circumstances such as these, where the federal interests intended to be redressed by the statues are not present. We hope that after a full and candid discussion with your office you too will see the inadvisability of proceeding with a federal indictment. We are prepared to address any of the subjects touched on above and welcome any additional issues you wish to raise. We are also prepared to make a fuller written or oral presentation on all the issues we have raised herein or any other lingering concerns you have. Case No. 08-80736-CV-MARRA P-013322 EFTA00230227 LAW CONCIES Or GERALD B. IncounT, P.C. A. Esq. O ce o the United States Attorney Southern District of Florida June 25, 2007 Page 19 Thank you for your cooperation in this matter. We look forward to meeting on June 26, 2007. If you have any questions, please do not hesitate to call. cc: Esq. Roy Black, Esq. Alan Dershowitz, Esq. Case No. 08-80736-CV-MARRA P-013323 EFTA00230228 4cpcmS-k- 14- ae -Le-o 'to klazfd/W-0- vo-LA- Vtuit_ r0(-Wok& ru --- .unityprek bi-czAkzit- h.* •6v-OL-3 4e/vd- lenft p(aLv-N 46(_, tryv:A. te iv4usitc[e_ cs-Y- NOT 1-14C IN,oF oR €NS OF Cu4kac. Suss l tkrraNe - -11/•,- -4-64cwv 'to 0, •C CetlY \SY \ ( uok.tv-t_-fe \ lairooctoic t'o dear, v,450 +0 -to [ ye arb9t Ca C01. 44 CCP+C"1 VOF Okt , -to wrd.sLryiNi\o- pkavio rivak-S IN\tayuaHok Jai-jcoo-k low-votk- fictr, -;s v, 6covrAO, 2t c., 36k ci-te ,ct --1 _ei-th Gr. 2DooXeniver.) Case No. 08-80736-CV-MARRA P-013324 EFTA00230229 14- 1 "tu cAyrinruk"vt-dflovis -Trautk ActrvtA4 —"()OJ-evi [A1, f '' GIS" /5)11-4'1, /3(0 Feat 325 CI I-I-14 Cir 2_00s) - (AS ■ 64Y-e-tt) (,&S . goynoda)-1 , 372 r3d ) 3( • 1 34- Gr, Zoog 141/1 ') C I zoc.4) L /, - C-0-COCISpL/1001? 1 : U%•S v Pisrmin 443 F.324 912- C-141/ 1 Cir, 2-Doc. „Acajf-YAr-,5* 1--art -V .orN ak,o.ix\vit-to\4113 pufpost( — Prot Z3 7 P. (04;) 4,t'a Cr. 191 Case No. 08-80736-CV-MARRA P-013325 EFTA00230230 `161/0 1 Viliar-do-io'_ tp LzrAguj ii--- Case No. 08-80736-CV-MARRA P-013326 EFTA00230231 (USAFLS) From: . (USAFLS) Sent: on t•m er 17, 2007 10:35 AM To: USAFLS); Subject: (USAFLS) Ili Rolando —I lore is the last e-mail that I sent to Jay last night. Jay talked with his client about it and reports that they are leaning towards options 1 or 4. They are going to try to make that decision today (there seems to be some dissension in the ranks because Jack Goldberger gave some incorrect information), and draft a proposed either Non-Prosecution Agreement or Plea Agreement. As you can see from my list below, there are a number of things in their last draft that were unacceptable. All of the loopholes that I sewed up they tried to open. So, Jay is supposed to be consulting with Roy Black regarding the correct state information and then will give me a call. I agreed to ask the Judge to take the hearing off calendar tomorrow and to postpone the grand jury appearances that were scheduled from tomorrow, but I told him in no uncertain terms that I am indicting on the 25th so this needs to be resolved early this week. and I talked about all of this as well. Long answer to a short question, sorry. Hi Jay — n wait until l ia after the show, but my voice is going so I thought I would type it up. I talked to and he still doesn't like the factual basis. In his opinion, the plea should only address the crimes a we were addressing, and we were not investigating Mr. Epstein abusing his girlfriend. So, these are the only options that he recommended: 1. We go back to the original agreement where Mr. Epstein pleads only to state charges and serves his time in the state, except that we can agree to only 18 months imprisonment. 2. Mr. Epstein pleads guilty to the state charges and also pleads to either two obstruction counts or to one count of violating 47 USC 223(a)(1)(B), with a joint non-binding recommendation of 18 months, so that Mr. Epstein can serve his time federally. 3. (My suggestion only, not 1): I go back to the U.S. Attorney and ask him to agree to an ABA- plea to a 371 count (conspiracy o violate 2422(b)) with a binding 20-month recommendation so that Mr. Epstein can serve all of his time in a federal facility. Or 4. Mr. Epstein pleads to one obstruction count, and serves part of his time federally and part state. On your other proposed changes, some are fine and some are problematic. Re your paragraph 2: As to timing, it is my understanding that Mr. Epstein needs to be sentenced in the state after he is sentenced in the fed se, but not that he needs to plead guilty and be sentenced after serving his federal time. recommended that some of the timing issues be addressed only in the state agreement, so that it isn't obvious to the judge that we are trying to create federal jurisdiction for prison purposes. My understanding is that Mr. Epstein should sign a state plea agreement, plead guilty to the federal offenses, plead guilty to the state offenses, be sentenced on the federal offenses, and then be sentenced on the state offenses, and then start serving the federal sentence. Re your paragraph 3: As to the reservation of Mr. Epstein's right to withdraw his state plea or to appeal his stale plea or sentence, that is fine, but we need the caveat that, if he were to do so, the United States could proceed on our charges. Re your paragraph 6: With respect to the waiver of the right to appeal the federal sentence, given the way we have drafted the information, it is possible that getting to the 18 month sentence will require an upward departure. The version of the agreement that you were working from is a federal non- 266 Case No. 08-80736-CV-MARRA P-013327 EFTA00230232 prosecution agreement, the ones I have sent you recently are plea agreements that get filed with the court. Please see if the appeal waiver language in those versions is alright. Re your paragraph 7: As I mentioned, we will not waive the presentence investigation. I know that this will delay Mr. Epstein's sentencing by 70 days, but that will allow him to get all of his affairs in order. As to bail, it will be set at the time of arraignment, and we can work out a joint recommendation regarding the amount and its limitations. I have no objection to making a joint recommendation that Mr. Epstein remain out on bond pending his sentencing, but I'm not sure that it belongs in a plea agreement, especially since I can't bind the court on that issue. However, I can assure you, and we can put it on the record during the plea colloquy, that I will join in your recommendation that he remain out on bond pending sentencing. The same goes for the prison camp issue. As I mentioned, I have opposed a designation only once in a very particular case. I can assure you, and we can put it on the record at the plea colloquy that I will not oppose your recommendation for Mr. Epstein's designation. Re your paragraph 8: As I mentioned over the telephone, I cannot bind the girls to the Trust Agreement, and I don't think it is appropriate that a state court would administer a trust that seeks to pay for federal civil claims. We both want to avoid unscrupulous attorneys and/or litigants from coming forward, and I know that your client wants to keep these matters outside of public court filings, but I just don't have the power to do what you ask. Here is my recommendation. During the period between Mr. Epstein's plea and sentencing, I make a motion for appointment of the Guardian Ad Litem. The three of us sit down and discuss things, and I will facilitate as much as I can getting the girls' approval of this procedure because, as I mentioned, I think it is probably in their best interests. In terms of plea agreement language, let me suggest the following: The United States agrees to make a motion seeking the appointment of a Guardian ad Litem to represent the identified victims. Following the appointment of such Guardian, the parties agree to work together in good faith to develop a Trust Agreement, subject to the Courts approval, that would provide for any damages owed to the identified victims pursuant to 18 U.S.C. Section 2255. Then include the last two sentences of your paragraph 8. Re the two paragraphs following your paragraph 8: I will include our standard language regarding resolving all criminal liability and I will mention "co-conspirators," but I would prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge. Also, we do not have the power to bind Immigration and we make it a policy not to try to, however, I can tell you that, as far as I know, there is no plan to by to proceed on any immigration charges against either Ms. Ross or Ms. Marcinkova. Also, on the grand jury subpoenas, I can prepare letters withdrawing them as of the signing of the plea agreement, but I would prefer to take out that language. In my eyes, once we have a plea agreement, the grand jury's investigation has ended and there can be no more use of the grand jury's subpoena power. I had hoped that we were far closer to resolving this than it appears that we are. Can I suggest that tomorrow we either meet live or via teleconference, either with your client or having him within a quick phone call, to hash out these items? I was hoping to work only a half day tomorrow to save my voice for Tuesday's hearing and grand jury, if necessary, but maybe we can set a time to meet. If you want to meet 'off campus" somewhere, that is fine. I will make sure that I have all the necessary decision makers present or 'on call,' as well. If we can resolve some of these issues today, lets try to, and then save only the difficult issues for tomorrow. Sony for the long e-mail, and for ruining your date with your daughter. A. Assistant U.S. Attorney 500 S. Australian Ave, Suite 400 West Palm Beach, FL 33401 Phone 561 209-1047 Fax 561 820-8777 267 Case No. 08-80736-CV-MARRA P-013328 EFTA00230233 From: Garcia, Rolando (USAFLS) Sent: Monday, September 17, 2007 10:26 AM To: (USAFLS) Subject: Epstein Where are we at in the plea negotiations? Tracking: 268 Case No. 08-80736-CV-MARRA P-013329 EFTA00230234 LIM° 7 1Xiskat,olh /2) SiaoCu'l Case No. 08-80736-CV-MARRA P-013330 EFTA00230235 KIRKLAND & ELLIS LLP AND AIFILIAIE0 PARTNERSHIPS rtraete vokm Jay P. Letkowitz, P.C. To ca Writer Directly: VIA E-MAIL Jeffrey H. Sloman United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, Florida 33132-2111 Dear Jeff: Citigroup Center 169 East 63rd Street New York, New York 10022.4611 www.kkkiand.com November 8, 2007 Re: Jeffrey Epstein Facsimile: I write in response to your recent letter, dated November 5, 2007. I want to make clear at the outset that Mr. Epstein is complying fully with the Non Prosecution Agreement (the "Agreement") and that he has every intention of continuing to honor its terms in good faith. Any disagreement the parties have regarding the terms of the Agreement should be resolved through open dialogue and should not be construed as a repudiation of the Agreement. I do, however, want to address each of the points you raise in your letter. First, we do not believe Mr. Epstein's agents are precluded from speaking to any individuals at this point in time. We carefully reviewed the Agreement and the laws governing contact with witnesses and proceeded under the belief that Mr. Epstein's agents could properly contact potential witnesses in this matter. We believe that nothing in the Agreement precludes contact by Mr. Epstein's agents with any individuals. Paragraph 7 of the Agreement states that "Epstein's counsel may contact the identified individuals through [the attorney representative]," but it in no way restricts any other contacts that are both lawful and appropriate. Furthermore, your Office has not yet identified the alleged victims under 18 U.S.C. § 2255 nor has an attorney representative been selected. Indeed, it is quite common for a party's agents, and even his attorneys, to speak with potential claimants prior to their retaining formal representation. And in this situation — where Mr. Epstein faces significant potential civil exposure, and he has a right to veraci —Jp i these claims — it is appropriate that his agents would seek to obtain as much information about potential -dims as possible. Nevertheless, because we want to cooperate with your Office and since you object to such communications, we will cease all contact with these individuals until the date of Mr. Epstein's plea. We request, however, that your Office provide a basis for precluding Mr. Epstein or his agents from speaking to any individuals at this time. Chicago Hong Kong London Los Angeles Munich San Frandsco Washington, D.C. Case No. 08-80736-CV-MARRA P-013331 EFTA00230236 KIRKLAND & ELLIS LLP November Page 2 Second, I am a little surprised by your insistence that we request that the state court conduct the plea and sentence in November. You may recall that we previously discussed, and txil.. you agreed, that because the state judge will not stagger the plea and sentencing as we ...clot contemplated in the Agreement, Mr. Epstein could plea and be sentenced at any point before CP -1*hr Nts‘01‘ January 4, 2008. As you know, the judge's refusal to stagger the plea and sentencing actually "" Y-Op ittl° harms Mr. Epstein because this delays the timing under which he can receive the names of the 4,2&41,44A individuals identified by the United States as "victims" under § 2255. But we believe we must defer to the judge's decision in this matter. To clear up any misunderstanding, however, the judge has set this case "for trial" on January 7 only as a formal matter. The judge has invited the parties to appear for the plea and sentencing on January 4, and we do not anticipate any delay beyond that date. Third, I want to clear up any confusion regarding the many inaccurate media reports about Mr. Epstein. With the hope of maintaining some semblance of privacy for Mr. Epstein, we have avoided interacting with the media regarding this matter. Indeed, the only recent comment was Howard Rubenstein's confirmation to the Palm Beach Daily News that this matter had been resolved and would not proceed to a trial. That comment was authorized only out of concern that you might read an inaccurate story and believe, mistakenly, that Mr. Epstein had decided not to proceed under the Agreement. Fourth, regarding the sentence to be imposed by the court, the Agreement, and all of the discussions we have had about it, are very clear: Mr. Epstein is to be sentenced to ap 18-month term in accordance with the same rules and regulations (and the same rights and privileges) that apply to everyone in the state of Florida. That Mr. Epstein would be treated no better and no worse than anyone else was a material term of the Agreement. u Office now believes is not entitled to equal treatment, I would ve e an ex lanation o t re asis of such view. am su icient y concerned about comments in your letter to seek clarification on this point, especially because the lawyers in your Office have made clear on numerous occasions to me that as long as Mr. Epstein received an 18-month sentence, your Office would not seek to interfere with the implementation of the state sentence. /‘ Fifth, pursuant to the Agreement, Mr. Epstein, through his counsel, agrees to provide the c‘ ,5146::e n (-Le (4/.. 14: 212/4/4/ . agreements made with the State Attorney's Office. 1174-re<t i, Finally, I must tell you that I am troubled by the manner in which your Office has dealt with the § 2255 issues that are encompassed in the Agreement. As you already know, one of the 't ea s Thhil lawyers initially recommended by your Office contacted Judge Davis to lobby for the assignment /VC >lb elefik of attorney representative even before Judge Davis was formally selected to appoint an attorney representative. Moreover, I find it highly unusual that your Office has continued to insist that a Case No. 08-80736-CV-MARRA P-013332 EFTA00230237 KIRKLAND & ELLIS LLP November 8, 2007 Page 3 primary criteria for the appointment of the attorney representative should be the ability to take on contingency fee cases directed at Mr. Epstein. I trust you understand that I raise these concerns with you out of respect your Office. However, despite Mr. Epstein's full intention to abide by all of the terms of the Agreement, we must reserve our right to object to certain aspects of the e_22O Yet --- a nSr ee 2255_12mvisions of the Agreement. I look forward to continuing to work with your Office to resolve any outstanding issues, and I sincerely anticipate a conclusion of this matter in the very near future. Sincerely, X Ja . Le owitz cvlat ic a t (co2fc (21d11:41.4,QL. a- •iF i sc et,h4Lot 6410 Case No. 08-80736-CV-MARRA P-013333 EFTA00230238 " /13/0 I S(60--)-104; Le:4w 1.3 Case No. 08-80736-CV-MARRA P-013334 EFTA00230239 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY FACSIMILE Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 99 N.E. 44 Street Miami. FL 33132-2111 Facsimile: (305) 330-6444 November 13, 2007 I write in response to your letter of November 8, 2007. Most importantly, I want to reiterate that a guilty plea and sentencing more than two months beyond the original deadline is unacceptable to the Office. Contrary to your assertion, the Non- Prosecution Agreement does not contemplate a staggered plea and sentencing (that was contemplated only in a federal plea, where the federal rules provide for such staggering). Instead, the Agreement contemplates a combined plea and sentencing followed by a later surrender date for Mr. Epstein to begin serving his jail sentence. As you will recall, the plea and sentencing hearing originally was to occur in early October 2007, but was delayed until October 26th to allow Mr. Goldberger to attend. It was delayed again until November to allow you to attend. You have provided no showing of how you and your client have used your best efforts to insure that the plea and sentencing occur in November. A prompt hearing would end speculation by the press and others about Mr. Epstein's intentions and, more importantly, would show the U.S. Attorney's Office and the FBI that Mr. Epstein intends to comply with all of the terms of the Non-Prosecution Agreement. Accordingly, I again advise you that the Office requires Mr. Epstein to make his best efforts to enter his guilty plea and to be sentenced forthwith. Please advise me of the new date and time so that someone from our Office can be present. Your letter asserts that Mr. Epstein and the State Attorney's Office have reached an agreement as to the terms of Mr. Epstein's plea and sentencing, but no such agreements have yet been provided to us. As you know, the Non-Prosecution Agreement requires Mr. Epstein to provide copies of all proposed agreements prior to entering into any agreement — not just prior to signing an agreement. Please immediately provide us with the terms of any agreements that have been Case No. 08-80736-CV-MARRA P-013335 EFTA00230240 JAY P. LEPKOWIT2, ESQ. NOVEMBER 13, 2007 PAGE 2 OF 3 negotiated with the State Attorney's Office on Mr. Epstein's behalf, whether or not they have yet been reduced to writing, so that we have adequate time to review them prior to the change of plea and sentencing to determine that Mr. Epstein is complying with the terms of the Non-Prosecution Agreement. As to the type of sentence that Mr. Epstein hopes to receive, the Agreement clearly indicates that Mr. Epstein is to be incarcerated. In addition to the terms of the Agreement, the Florida Department of Corrections does not allow persons who are registered sex offenders to participate in "community release" (which includes "work release"). Since Mr. Epstein will have to register as a sex offender promptly after his guilty plea and sentencing, he will not be eligible for such a program. Thus, the U.S. Attorney's Office is simply putting you on notice that it intends to make certain that Mr. Epstein is "treated no better and no worse than anyone else" convicted of the same offense. If Mr. Epstein is somehow allowed to participate in a work release program despite the Department of Corrections' rules and practices, the Office intends to investigate the reasons why an exception was granted in Mr. Epstein's case. Finally, as to the matters related to contacting the victims and the civil litigation, let me address your issues in turn. First, one of the material terms of the Non-Prosecution Agreement was Mr. Epstein's agreement to waive the right to contest the "veracity" of the victims' claims. Second, the questions put to the victims who have already been contacted did not address the "veracity" of their claims. Instead, the investigators' questions were limited to whether they had been contacted by any law enforcement officers and told that there would be a civil settlement. Third, the Non- Prosecution Agreement did not anticipate such a lengthy delay in the selection of an attorney representative, and the victims would have been "represented parties" without such delay; thus, the use of the phrase "may contact" meant "has permission to contact." Hopefully, that issue will soon be moot. I anticipate that Judge Davis will announce the selection of a lawyer/firm in the near future. Upon the lawyer/firm's formal acceptance, I will contact the lawyer/firm and request that he/she contact you after conferring with the victims. In the meantime, please treat all of the victims as represented parties who must be contacted only through their counsel. Your concerns regarding the § 2255 litigation are unfounded. As you know, Mr. Ocariz had been told that he would be the attorney representative for the victims. As a matter of professional courtesy, he was informed that the Office decided to use a Special Master in the selection of the attorney representative. His decision to contact Judge Davis to express his interest in continuing to work on the case was no more "lobbying" than contacts made by your colleagues to Judge Davis to persuade him to select your choice of an attorney and to persuade him that the non-prosecution agreement's terms did not contemplate litigation. You state that you are concerned that the Office has continued to insist that a primary criteria for the appointment of counsel is the ability to handle litigation against Mr. Epstein, yet your continued reference to challenging the "veracity" of the victims' claims, your contacting of victims whom you knew were soon to be represented, your attempts to muzzle the Office's and the FBI's abilities to comply with victim notification rules, and Case No. 08-80736-CV-MARRA P-013336 EFTA00230241 JAY P. LEFKOW1TZ, ESQ. NOVEMBER 13, 2007 PAGE 3 OF 3 your client's consistent attacks upon the victims in the press all confirm the need for appointed counsel to be prepared for such litigation. Lastly, the statement at the end of your letter that you "reserve [the] right to object to certain aspects of the §2255 provisions of the Agreement" needs explanation. The provisions regarding §2255 appeared in the first statement of terms and every draft of the Non-Prosecution Agreement. By signing the Agreement, your client gave up the right to "object" to its provisions. Mr. Epstein entered into a binding contract, and the breach of any of its terms is a breach of the entire Agreement, as summarized at the top of page 6 of the Agreement. Please clarify your position on this point. Please provide me with the terms of the agreement(s) with the State Attorney's Office and the new date for the change of plea and sentencing by Friday, November 16, 2007. Sincerely, R. Alexander Acosta United States Attorney cc: By: R. Alexander Acosta, U.S. Attorney AUS A A. First Assistant United States Attorney Case No. 08-80736-CV-MARRA P-013337 EFTA00230242 stNei Slorron i'D Lekktuitv, Case No, 08-80736-CV-MARRA P-013338 EFTA00230243 12/05/01 WED 15:23 FAX 1 213 680 8500 KIRKLANDAELLIS LIP Ligon! KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street Los Angeles, California 90017 Phone: (213) 880-8400 Fax: (213)660-8500 Please notify us Immediately if any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONSTITUTE INSIDE INFORMATION, AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE. UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (213) 680-8400. To: Company: Fax Direct It United States Attorney's Office Hon. R. Alexander Acosta (305) 530-6444 Southern District of Florida Pages From: Date; Fax It: Direct Si: arintir Kenneth W. Starr December 5, 2007 3 (213) 680-8500 Message: Case No. 08-80736-CV-MARRA P-013339 EFTA00230244 12/05/07 WED 15:24 FAX 1 213 880 8500 KIRKLAND&ELLIS LLP la1003 Honorable It Alexander Acosta December 5, 2007 Page 2 Finally, you state that you intend to issue the victim notification letters o rda December 7. However, in a discussion late last week between Jeff Sloman and Mr. Sloman indicated that your Office would send us a revised version o e non on letter, which we have not received to date. ,While we believe that it is wholly inappropriate for your Office to send this letter under any circumstances, it is certainly inappropriate to issue this letter without affording us the right to review it. We strongly urge that you withhold the notification letter until after we are able to discuss this matter with Assistant Attorney General Fisher. Yours S Ciely, Kenneth W. Starr Jg witz ic cc: Honorable Alice Fisher, Assistant Attorney General Jeffrey H. Sloman, First Assistant U.S. Attorney I . 1 Case No. 08-80736-CV-MARRA P-013340 EFTA00230245 12/05iti7 WED 15:24 FAX 1 213 680 8500 KIRKMAN:ELLIS LLP ZOO 2 1400•6 Vi. Stan TorlaWriter : kstanakirkland.com KIRKLAND & ELUS LLP VIA FACSIMILE (305) 530-6444 Honorable IL Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Dear Alex: tam ullWw PAILTNEASIOPS 777 South Figueroa Steel Los Annie, Callfornia 90017 Re: Jeffrey Epstein (213) 0800400 wmos.kirkland.com December 5, 2007 Facatm115: (213) 6804500 We are in receipt of your letter faxed to Jay on December 4 and faxed to Ken today in Los Angeles, and write to inform you that we will respond in full to that letter no later than Friday, December 7. We take this opportunity to address a few of the initial issues. First and foremost, we reaffirm the Non-Prosecution Agreement (the "Agreement"). Mr. Epstein has no intention of unwinding the Agreement. Indeed, he has already performed under the Agreement by directing his lawyers to urge the State of Florida to allow him to plead guilty to crimes more egregious than the State believes he committed, and to sentence bim more harshly than the State still believes is appropriate. However, as you know, we take serious issue with your staff's interpretation and implementation of the Agreement, in particular the use of Section 2255, but also other aspects of your office's investigation and prosecution of this matter. As we have expressed to you on prior occasions — where you have made clear you have no objection — we hope to address these issues with Assistant Attorney General Fisher in Washington. Second, your letter makes reference to "certain filings" that you state are due to your Office by December 7 and to "certain events" that must occur before December 14. We have no knowledge of any such deadlines and in fact do not bow what filings and events to which you are referring. Please let us know what the December 7 and December 14 deadlines are, if any, so that we can make sure to comply with them. Case No. 08-80736-CV-MARRA P-013341 EFTA00230246 Case No. 08-80736-CV-MARRA P-013342 EFTA00230247 KENNETH STARR, ESQ. NOVEMBER 30, 2007 PAGE 6 OF 6 expenditure of excessive management resources, and the Office is unwilling to invest any more of those resources. The prosecution of the case also has been delayed almost eight months to allow you to raise any and all issues; we will not tolerate any further delay. Accordingly, please provide us with a definitive statement, signed by your client, of his intention to abide by each and every term of the Agreement by close of business on Tuesday, December 4, 2007. By that time, you must also provide us with the agreement(s) with the State Attorney's Office and a date and time certain for the plea and sentencing, which must occur no later than December 14, 2007. If we do not receive these items by that time, we will deem the agreement to be rescinded and will proceed with the prosecution. There must be closure in this matter. Sincerely, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY cc: First Assistant U.S. Attorney AUSA A. Case No. 08-80736-CV-MARRA P-013343 EFTA00230248 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY FACSIMILE Jay P. Leficowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 99 N.E. 4th Street Miami, FL 33132-2111 (305) 961-9299 Facsimile: (305) 530-6444 Nevettiber50720771 I write in response to your recent e-mails and letters regarding victim notification and other issues. Some of these issues also are addressed in the U.S. Attorney's letter to Mr. Starr, but in light of our discussions, I believe a separate response is needed. In a recent e-mail, you write that you were surprised at the tone of my e-mail of November 27, 2007. That tone was engendered by the roadblocks that you continue to erect as we try to perform our contractual obligations coupled with Mr. Epstein's nonperformance. This letter end. IthST-Attemeyasosta=raettes setforth the last opportunity for your client and his entire defense team to conform unwaveringly to all of the terms of the Non-Prosecution Agreement. -Antazd-hrthe -- 41TrATINfierittthiecletter: POteeerdingly121ease provide us with a definitive statement, signed by your client, of his intentionTo abide by each and every term of the Agreement by close of business on Tuesday, December 4, 2007. By that time, you must also provide us with the agreement(s) with the State Attorney's Office and a date and time certain for the plea and sentencing, which must occur no later than December 14, 2007. If we do not receive these items by that time, we will deem the agreement to be rescinded and will proceed with the prosecution. There must be closure in this matter. Before I address your continued allegations of some sort of misconduct on the part of the Office for trying to abide by both its legal and contractual obligations, I must address your client's failures to comply with the Agreement. Case No. 08-80736-CV-MARRA P-013344 EFTA00230249 JAY P. LEFKOWITZ, ESQ. aihNNIEFFSPRe1001003.. PAGE 2 OF 7 Three weeks ago we spoke about the failure to set a timely plea and sentencing date. At that time, you assured me that the scheduling delay was caused by the unavailability of Judge McSorley. You promised that a date would be set promptly. On November 15th, Rolando Garcia met with Barry Krisher on another matter, and was told by Mr. Krisher that he had just spoken with Jack Goldberger, and that Mr. Epstein's plea and sentencing were set to occur on December 14, 2007. Since that time, we have tried to confirm the date and time of the hearing in order to include that information in the victim notification letters. You continue to refer to the plea and sentencing as thou it • • anuary; Mr. Krisher's office has not confirmed any date; and Mr. Goldberger told that "there is no date." I have repeatedly told you that a delayed guilty plea and sentencing — now more than two months beyond the original deadline — is unacceptable to the Office. Contrary to your past assertions, the Non-Prosecution Agreement does not contemplate a staggered plea and sentencing. Instead, the Agreement contemplates a combined plea and sentencing followed by a later surrender date for Mr. Epstein to begin serving his jail sentence. As you will recall, the plea and sentencing hearing originally was to occur in early October 2007, but was delayed until October 26th to allow Mr. Goldberger to attend. It was delayed again until November to allow you to attend. You have provided no showing of how you and your client have used your best efforts to insure that the plea and sentencing occur in November. In fact, we recently learned that a plea conference had been scheduled with Judge McSorley for NoVember 20, 2007, but was canceled at the request of the parties, not the judge. Judge McSorley has not been away for any extended period, and there is no basis for your assertion that the judge is the cause of any past or future delay. Mr. Epstein currently has four Florida Bar members on his defense team, so attorney scheduling is rat an adequate basis for delay. Three weeks ago I also asked you to provide our Office with the terms of the Plea Agreement with the State Attorney's Office. It is now more than two months since the signing of the Non- Prosecution Agreement and we have yet to see any formal agreement, or even a list of essential terms of such an agreement. The only conclusion that we can draw is that you are trying to avoid providing the Office with adequate time to review your agreement prior to the change of plea and sentencing to determine whether Mr. Epstein is complying with the terms of the Non-Prosecution Agreement. Your letters make reference to a failure by the United States to abide by the "spirit" of the Agreement, but recent correspondence shows that Mr. Epstein hopes to serve his sentence on "work release." This is plainly contrary to both the terms and spirit of the Agreement. The Agreement clearly indicates that Mr. Epstein is to be incarcerated, and during your joint meeting with representatives of our office and the State Attorney's Office, the parties specifically discussed that Mr. Epstein would serve his time in solitary confinement at the Palm Beach County Jail to obviate your safety concerns. In addition to the terms of the Agreement, the Florida Department of Corrections does not allow persons who are registered sex offenders to participate in "community release" (which includes "work release"). Since Mr. Epstein will have to register as a sex offender Case No. 08-80736-CV-MARRA P-013345 EFTA00230250 JAY P. LEFKOW117, ESQ. NOVEMBER 30, 2007 PAGE 3 OF 7 promptly after his guilty plea and sentencing, he will not be eligible for such a program. Thus, the U.S. Attorney's Office is simply putting you on notice that it intends to make certain that Mr. Epstein is "treated no better and no worse than anyone else" convicted of the same offense. If Mr. Epstein is somehow allowed to participate in a work release program despite the Department of Corrections' rules and practices, the Office intendstainvestiga4e the reasons why an exception was granted in Mr. Epstein's case. IS c4aJ.i. lets Ft) lecu- rt. Next, let me address various accusations that you and Mr. Starr, amongst others, have raised. You have repeatedly alleged that attorneys in our office and agents of the FBI have leaked information to the press in an effort to affect possible civil litigation with Mr. Epstein. This is untrue. There has been no contact between any member of the press and any employee of our office or the FBI since you incorrectly accused investigators of telling "Vanity Fair" about Mr. Starr's employment by Mr. Epstein several months ago. As you have been told before, prior to that, the press had provided information to the FBI, but no comment was ever made about the ongoing investigation, it was simply referred to as an "open investigation." V-euf-fteetzsattansen-thisfeint... urate ana wmcn t as. We intend to continue to refrain from commenting or providing information to the press. We would ask that your client and all of his representatives do the same. Mr. Starr's letter to Assistant Attorney General Alice Fisher contains several false statements and accusations. First, Mr. Epstein was never forced to enter into any agreement and all terms of the agreement were fully negotiated, including the terms regarding the payment ofmonetary damages to the victims under 18 U.S.C. § 2255. In fact, some of those terms were re-negotiated as part of the Addendum. Second, if Mr. Epstein's cadre of attorneys was concerned about a way to test the validity of the victims' claims prior to placing the names of those victims on the list prepared by our office, that term could have been negotiated. In fact, at one of our early meetings, Roy Black raised that concern, and possible solutions were contemplated by our office prior to the negotiations. However, since none of Mr. Epstein's team of attorneys requested the inclusion of such a term, it was omitted from the Agreement. To the extent that you now object to the Agreement that you negotiated, this is akin to "buyer's remorse." However, you and Mr. Starr have, instead, made claims to the Justice Department that these thoroughly negotiated terms "leave[) wide open the opportunity for misconduct by federal investigators." You then misinterpret several statements that were included in correspondence — at your insistence — as proof that the designated victims have invalid claims. Let me make clear that each of the listed individuals are persons whom the Office identified as victims as defined in Section 2255, that is, as persons "who, while a minor, was a victim of a violation of section . . . 2422 or 2423 of this title." In other words, the Office is prepared to indict Mr. Epstein based upon what Mr. Starr refers to as Mr. Epstein's "interactions" with these individuals. This conclusion is based upon a thorough and proper investigation — one in which none Case No. 08-80736-CV-MARRA P-013346 EFTA00230251 JAY P. LEFKOWITZ, ESQ. NOVEMBER 30, 2007 PAGE 4 OF 7 of the victims was informed of any right to receive damages of any amount prior to the investigation of her claim. co r _afa.potentielriuil claim-for damagoo. In fact, after the Agreement was signed, the FBI only had the opportunity to inform three victims of the resolution of the matter before you raised complaints and, in deference to your request, the Office asked that they defer further notifications. The Office agrees that it is not a party to, and will not take a role in, any civil litigation, but the Office can say, without hesitation, thatweach person on the list was a victim f Mr. Epstein's criminal behavior. eva-ute thuen 44nout- Mr. Starr's letter also suggests that the number of victims to whom Mr. Epstein is exposed by the Agreement is limitless. As you know, early drafts of the Agreement contained a numerical limit of 40 victims. At your request, that number was removed. The Office repeatedly confirmed that the number would not exceed 40; after conducting additional investigation, it was reduced to 34, and we recently removed another name because, despite the fact that Mr. Epstein offensively touched the victim, in our opinion, the touching was not "sexual" enough to properly include her as a victim as defined in Section 2255. Once the list is provided to you, if you have a good faith basis for asserting that a victim never met Mr. Epstein, we remain willing to listen and to modify the list if you convince us of your position. Mr. Starr also asserts that the Office has "improperly insisted that the chosen attorney representative should be able to litigate the claims of individuals, which violates the terms of the Agreement and deeply infringes upon the spirit and nature of the Agreement." Again, this was a term that could have been discussed and negotiated prior to entering into the Agreement. At least five extremely experienced attorneys reviewed the Agreement prior to its execution. Your failure to consider what would happen if a victim refused to accept the minimum settlement you offered to her does not render the Agreement void, unconscionable, or violative of Due Process. Whether counsel for the victims decides that there is a conflict is something to be addressed by him, but the Agreement speaks for itself. Finally, let me address your objections to the draft Victim Notification Letter. You write that you don't understand the basis for the Office's belief that it is appropriate to notify the victims. The "Justice for All Act of 2004" amended Title 18 by adding Section 3771, entitled "Crime victims' rights." Those rights include: "The right to reasonable, accurate, and timely notice of any public th court proceeding . .. involving the crime" and the "ri t not to be excluded from any such public 1 ..aira_li&meeding ..." 18 U.S.C. § 3771(a)(2) & (3). trouropinicrn7the-broltd-tanguageref-Sestion ., n proseetlia&ISection 3771 also commands that "employees of the Department of Justice ... engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." 18 U.S.C. §3771(c)(1). Additionally, the Victims' Rights and Restitution Act of 1990 enacted Title 42, United States Case No. 08-80736-CV-MARRA P-013347 EFTA00230252 JAY P. LEFKOWITZ, ESQ. NOVEMBER 30, 2007 PAGE 5 OF 7 Code, Section 10607, entitled "Services to victims." Pursuant to that statute, our Office is obligated to "inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and [the] manner in which such relief may be obtained." 42 U.S.C. § 10607(c)(1)(B).' With respect to notification of the other information that we propose to disclose, the statute requires that: (3) During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of — (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; ... (C) the filing of charges against a suspected offender; . . . 0) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial. 42 U.S.C. § 10607(cX3). Again, these sections are not limited to proceedings in a district court. Our Non-Prosecution Agreement resolves the federal investigation by allowing to plead to a state offense. The victims identified through the federal investigation should be appropriately informed, and our Non-Prosecution Agreement does not and cannot require the U.S. Attorney's Office to forego its legal obligations. As noted, Section 10607 commands our office to make these notifications at "the earliest possible opportunity." The unnecessary delays engendered by your continued objections to the Office's performance of its contractual and legal obligations will uu longer be -efriak . Your claim that, by notifying victims of their legal rights, we are seeking to "federalize" the state plea is incorrect. Our office is simply informing the victims of their rights. It does not command them to appear at the hearing or to file a victim impact statement. In fact, the letter recommends the sending of any statement to the State Attorney's Office so that ASA Belohlavek can determine which, if any, statements are appropriate to file with the Court. Next, you assert that our letter mischaracterizes Mr. Epstein's obligation to pay damages to the victims. It does not. The Agreement provides: If any of the [identified victims] elects to file suit pursuant to 18 U.S.C. § 2255, 'Based upon the language of this statute, your statement that our notification must be limited only to the right to restitution is incorrect. Case No. 08-80736-CV-MARRA P-013348 EFTA00230253 Jay P. LEFKOWITZ, ESQ. NOVEMBER 30, 2007 PAGE 6 OF 7 Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability up to an amount as agreed to between the identified individual and Epstein, so long as the individual elects to proceed exclusively under 18 U.S.C. § 2255 and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Contrary to your assertion, this Agreement specifically contemplates possible litigation — it would be nonsensical to include a waiver of personal jurisdiction in the District Court if the Agreement was supposed to bar any victim from filing suit. A violation of this provision, by contesting jurisdiction or otherwise, will be considered a material breach. It had been my suggestion to AUSA Villafafia that we simply quote the terms of the Agreement directly into the Notification Letter or include a photocopy of the relevant sections. If you would prefer that we proceed in that manner, that is acceptable. We also have no objection to referring to Mr. Epste