12/11/2007 11:37 FAX

12/11/2007 11:37 FAX £ 004/099 Jay P I ntlwniz. P.C. 10 Call Writer Dewar (2'9)440.4970 loSl0W.12Okabild Coll Chicacjo KIRKLAND & ELLIS LLP VIA FACSIMILE (305) 530-6444 United States Attorney United States Attorney's Office Southern District of Florida 99 N r. 4th Street Miami. FI, 33132 Dear I appreciate the opportunity you have provided to review some ol' the issues and concerns of Mr. F.pstein's defense team. Importantly. I appreciate your agreement that this submission would neither be understood by you as constituting a breach or thc Non-Prosecution Agreement ("Agreement") nor result in any unwinding of the Agreement by your Office. Implicit in this agreement is the understanding that I can share with you our concerns and request a review on the basis Ibr these concerns. while at the same time assure my client that this submission will not in any respect result in thrmal or intimnal repercussions or attempts by any member of the prosecution or investigative team to involve themselves In Mr. Epstein's detriment in any matter related to the Agreement, particularly in the state prosecution. This Idler is intended to support our assertion to you that the manner in which both the investigation of allegations against Mr. Epstein and the resolution thereof were highly irregular and wammt a full review. We appreciate your willingness to consider the evidence. We respectfully request that you review Judge Stern's letter to Alan Dershowilz faxed to you on December 7. 20(17. in connection with the concerns we set forth in this submission. A A0,111411. l'A•1041,:ali.. O61VMM Ca.11140 193 Eau! 53r0 Slowl New York. New Volk 10022.4611 (2121 4484800 tOm December I I. 2007 Re: Jilliey Epstein (212) 4404%00 I. FEDERAL INVESTIGATORS RELIED UPON TAINTED EVIDENCE. We have serious concerns that the summaries of the evidence that have been presented to you have been materially inaccurate. As you may know. tlw principal witnesses in this case were first interviewed by Detective of the Palm Beach Police Department (the "PIWIT) and other state law enforcement 4)1'1-leers. Thew interviews (the ••witness statements") were ollen tape-recorded thus providing a verbatim and detailed record orthe recollections or thc witnesses at a point in time prior to any federal involvetnent. Unfortunately. the police report authored by Detective and certain affidavits executed 1w him contained both material misstatements Ham Kong I Mann Los Anaitlet. Munich San Francisco Washington. D C. 3501.211.025 Page 1 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095001 EFTA01248625 12/11/2007 11:37 FAX 005/089 KIRKLAND & ELLIS LLP December I I. 200 Page 2 regarding the specifics of what he was told by his witnesses and also contained omissions of critical and often exculpatory infOrmation that was recorded verbatim during the taped interview sessions. The federal investigation involved interviews with many of the same witnesses. We are awn that at least one federal interview ( Was recorded. We understand that Detective provided his police report and certain affidavits to the federal authorities but did not pow' e t e actual witness statements of the taped haterviews to your Office or to the FRI. These witness statements constitute the hest evidence available (they are verbatim and earlier in time to the federal interviews), and they contain statements that arc highly exculpatory to Mr. Epstein. Because understanding the compromised nature of the "evidence" against Mr. Epstein is key to a proper view or this case, we summarize it in detail below. A. The Witness Statements Kstablish That Mr. Ensicin MANSCIMS Under IS. Indeed. the witness statements demonstrate that the opposite is true. shows that the many of the masseuses were eighteen or over. including Nnt Target First. the evidence at the time they visited Mr. Lpstein's home. Also, there is substantial evidence. !Nand in the sworn statements of the women themselves, which indicate that. to the extent others were in fact under the age of ei hteen, man affirmatively lied about her age. As herself told the PHPI): told me to say I was 13 because said . . . if you're not then he [EpsteinI won't really let you in his house. So I said I was IX". Detective however. largely ignored these critical admissions in his Police Report and Probable Cause Affidavit. • • Q: At any time, did he speak to you and does he know how old you are? Did he know how old you were A: . . .As a mater of fact. Haley [Robson] told one to say I was IS because Haley said tell him you're 18 because if you'll: not. then he won't molly let you in his house. So I said I was IS. As I was giving him a massage. he's like, how old are you? And then I was like IS. But I kind of said it really fast because I didn't want to make it sound like I was lying or anything. (Swum Statement 012(ISA15). Q: Did he ask you your age? A: Yeah, I told him I was I S. (Sworn Statement of 10/05105). 3501.211-025 Page 2 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095002 EFTA01248626 12/11/2007 11:38 FAX It 008/089 KIRKLAND S. ELLIS LLP December II. 2007 Page 3 • • • Q: Did he know your uge? A: I don't think — I think he did. Downstairs was like oh. well if they ask you how old are you just say you're IR but he never asked me how old I was. I thought you had to be 18 to give a massage (inaudible). (Sworn Statement of 12/13/O5) A: We went supposed to say we were 111. Q: Who told you that, to say that? A:_. (Sworn Statement of 11!R/05). A: I told him I was I S. (Sworn Statement of 10/3/051. Wall with I don't know how old she is because she lied about her age. Slw lied to me when I first mei her. When I was IR she told me she was IS. (Inaudible.) Well she left her purse at my house and she told me to make sure that I didn't look in her purse. When I went through her purse I found her state license that said she was I6 so she lied to me about her age. (Sworn Statement of ICl/03/0W 0: Now. how old were you when you first started going there? A: Eighteen. I'm 19 now this last March." (Sworn Statement of 10/12/05). Q: And all this occurred when you %sure 18 though? I In addition to giving a swam matentent at the PRPD Station. ItehsOn's conversations with Delectivellill while being transported to nod from the Malign, wen: also recorded. This excerpt h. taken from the recording of traveling from the station. 3501.211-025 Page 3 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095003 EFTA01248627 12/11/200? 11:38 FAX la 007/099 KIRKLAND & ELLIS ur Meet1... H.2(11 Page 4 A: t Ih-huh. I had been IS for like S months. nine months already. My birthday is in June so I had been IS fora while. (Sworn Statement of 2/3/05). O: Okay. How old are you now? You're - A: I'm 20 O: You're 20. So a couple months ago you would have been what. IQ? A: I Ih-huh. Q: Alright. So July. August you would have been I% 20. On the verge of 20? A: Llb-huh. (Sworn Statement of 11/4/05) We believe that other witnesses have similarly told the hill that Mr. Epstein attempted to monitor the ages of the masseuses who came to his home. We further believe that these transcripts would show that the federal interest in prosecuting Mr. Epstein for paradigmatic state offenses was far less compelling than the inaccurate police reports suggest. D. Detective Made Crucial Misstatements In the Police Report and Probable Cause Affidavits. We have reviewed the sworn and recorded witness statements of many of the individuals who were interviewed (conducted in person or by telephone) as well as a number of the controlled calls cited in the Police Report. Time idler time, we found statements in the Police Report attributed to statements made in the sworn recordings that either simply were nut said. or in some instances. arc flatly contradicted, by the witness who purportedly made the statement. In fact. they often stand in stark contrast to representations made by Detective in both the official Police Report and in affidavits signed by him under oath . We hig t tg t the most signilictun ones identified to date: • Hall Did Not Report that Epstein Told Her to Lie About her Age The Probable Cause Affidavit indicates that during her sworn statement "'loll advised that during her frequent visits Lipstein asked for her real age. I fall shard she was sixteen land that' Epstein advised her not to tell anyone her real age.- Arrest Probable Cause Affidavit at II. That statement appears nowhere in Hall's sworn statement. 3501.211-025 Page 4 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095004 EFTA01248628 12/11/2007 11 38 FAX a 008/099 KIRKLAND & ELLIS LLP December I I. 2007 Page 5 Hall Did Nut State that Epstein Photographed Her I laving Sex Detective Reearey also reports Ilall as claiming that "Epstein would photograph Marcinkova and her naked and having sex and proudly display the photographs within the home." kl. at 12. Again, this statement is not in I Ian's sworn statement. To the contrary. the transcript reflects that Hall stated: "I was just like. it was me standing in front of a big white marble bathtub ... in the guest bathroom in his master suite. And it wasn't like 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 was me kind of looking over my shoulder kinds smiling. and that was that." Sworn Statement of 10/11/05 at 35. 2 Said Epstein Did Not Touch tier Inappropriately Detective recounts that Fayth advised that "Epstein grabbed her buttocks and pulled her close to him." Probable Cause Affidavit at 6. See also. Police Report (10/07/05) at 30 (same). Penick never made this statement. In Butt when Detective asked. "He did not touch you inappropriately'!" Pentek responded. "No.- Sworn Statement of 10/04/05 at I I. Was Nat Sixteen When She First When to Epstein's I tome. CCHAPA: states: also stated she Was sixteen years old when she first went to Epsiein's house". Incident Report at 52. However. affirmatively stales that she was seventeen when she first went to Epstein's home: "Q: Okay. How old were you when you first went there? A: Seventeen. Q: Seventeen. A: And I was 17 the last time I went there mo. 1 Rimed 18 this past June". Sworn Statement of 11/14/05. • Li Told Detective= that Epstein Did Nut Mite out Sex Toys. The Probable Cause Affidavit indicates that suited, "Epstein would use a massager/vibrator. which she described as white in color and a large head. Epstein would rub the vibrator/massager on her vaginal area as he would masturbate.- Pmhable Cause Affidavit at 14: see also Police Report 11 I/10/05) at 49 ("Epstein would use a massager/vibrator, which she described as white in color with a large head, on her."). 'this statement appears nowhere in the transcript of Velasco's swum 2 [Ian was intervkwed by Detective twice. (Mee by telephone. and once in person. The portions of the Police Report to which we refer speei wally cite the in•persun interview of I tall as the source for the information reported. We have reviewed the recording of that interview and base the comparison on that review. We have never heard a recording of the telephone interview. 3501.211-025 Page 5 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095005 EFTA01248629 12/11/2007 11:39 FAX if1009/099 KIRKLAND & ELLIS LLP December 1 I. 2007 Page 6 statement. In Net. when Detective asked whether Mr. Epstein had "ever takeliel out any toys," respo .- Sworn Statement of 1 I/08/05 at 17. Did Not Recall Mr. Epstein Masturbating Dcteetivel recounts that • -advised she was sure (Mr. Epstein] was MASIIII lung based on his an movements going up and dawn on his penis area." Probable Cause Affidavit at IL See a/so Police Report ( I0/07105) at 35 (same). Detective account is in direct contradiction to true statement, specifically: Q: Okay did he ever take oil—did lie ever touch himself? A: I don't think wt. Q: No. Did he ever masturbate himself in front of you? A: I don't remember him doing that. Ile might have hut I really don't remember. (Sworn Statement of 10/05/05 at 7). • Stated that Only One Cirl Leaked Young Police Report at 57: stated that towards the end or his employment. the masseuses were younger and younger. However, he said no such thing: Q: Did they seem young to you? A. No. sir. Mostly no. We saw one or two young ones in the last year. Rehire that. it WM all adults . I nancmher one girl as young. We never asked how old she was. It was not in my job . . . But I imagine she was 16. IT'. (Sworn Statement of I I /2I/05) C. Detective Made Material Omissions in the Police Report. In addition to the misstatements in the Police Report and Probable Cause Affidavit as to the evidentiary record, them were also material omissions. both of facts known to the PBPD and also of facts not known to the PRIV, though known by the State Attorney. In the halter instance. the lack of knowledge was the result of the MOD's refusal to receive the exculpatory evidence. In fact. they refused to attend a meeting called by the State Attorney specifically to provide the relevant evidence. Thus, the Police Report and Probable Cause Affidavit only offer a skewed view of the facts material to this matter. Examples follow. I. The Video Surveillance Equipment Located in Mr. Epstein Office and Garage. Both the Police Report (at 43) and the Probable Cause Affidavit (at IX) make 3501.211-025 Page 6 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095006 EFTA01248630 12/11/2007 11:39 FAX 11010/0£411 KIRKLAND & ELLIS LLP December 11.2007 Page 7 particular mention of the "discovery- of video surveillance equipment (or "coven cameras" as they arc called) in Epstein's garage and library/office. Inclusion of this information insinuates a link between the equipment and the events at issue: in the Probable Cause Affidavit states, "on the first floor or the IEpstein, residence I found two covert cameras hidden within clocks. One was located in the garage and the other located in the library area on a shell behind Epstein's desk . . . The computer's hard drive was reviewed which showed several images of I laley Robson and other witnesses that have been interviewed. All of these images appeared to come from the camera positioned behind Lipstein's desk". See Probable Cause Affidavit at lit Clearly omitted from both the Police Re Ion and the Probable Cause Affidavit is the fact that the PBPL). and specifically knew about the cameras since they were installed in 2003. with the help q t re D. to address the theft of cash from Epstein's home. 'Ibis fact is detailed in a Palm Mach Police Report prepared in October 2003 detailing the thefts. the installation or video equipment. the video recording capturing (Mr. Epstein's then house manager) "red handed". and the incriminating statements made by =when he was confronted at the lime. See MIMI Police Report at 5. 8. The contemporaneous police report confirms the fact that the video footage was turned over to Detective himself. 2. Polygraph Examination and Report. On May 2. 2006. Mr. Epstein submitted to a polygraph examination by George Slattery. a highly respected polygraph examiner who is regularly used by the State Attorney. The examination was done at a time when we were told that the sole focus of the investigation was the conduct with Mr. Epstein was asked (a) whether 1w had "sexual contact with : (h) whether he "in anyway threatenl.x11 (c) whether he was told by That she was IR years o an whether he "believed WM years old-. As set forth in the Itepon or the examination. the term "sexual contact" was given an extremely broad meaning in order to capture any inappropriate conduct that could have occurred.) llw results or the examination confirmed that (i) no such conduct occurred: (ii) Mr. Epstein never Threatened 1=IMIIIIIIIMMIE told Mr. Epstein she was IR years old: and (iv) Mr. Epstein believed •was IR years uhf. the thainnion incluilml: ••:usual intercourse. Mid ses mss (penis in mouth err 'mind, on vagina). linger penetration of the vagina. linger penetration or the anus. touching or the vagina for %canal gratilieautm purposes. touching of the penis for sexual gnstilicaiinn imposts. masturbation by or to another. touching or nihhing of the breasts. tit any other physical contact involving sexual thoughts :outgo/ desires with another peratn-. 3501.211-025 Page 7 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFFA_00095007 EFTA01248631 12/11/2007 11:39 FAX 0 1 von KIRKLAND & ELLIS LLr December I I. 2007 Page 8 3. Broken "Sex ik,w" in Mr. Epstein's Trash. The Police Report details the police finding in Mr. Epstein's trash what is described as broken picas of a "sex toy" and that this "discovery" purportedly corroburauxl witness statements. Omitted from both 11w Police Report and the Probable Cause Affidavit is 11w filet that during the course of executing the search warrant in Epstein's home, the police discovered the other piece of that key "sex toy- and realized it was in litet only the broken handle of a salad server. Though "sex toys" play a prominent role in the Police Report and Probable Cause Affidavit. tlx: Police Report was never amended to relied the discovery of this new and highly relevant evidence. 4. Failure to Consider Evetilpatory or Impeaching Evidence. Other exculpatory and impeaching evidence known by the PBPD was omitted from the Police Report and Probable Cause Affidavit by, in our view, manipulating the date the investigation was allegedly closed. According to the Police Report (at 85). Detective 'explained Ito ASA 1 that the PBPD had concluded its ease in December of 2005". That assertion, which is false. conveniently resulted in the omission of all information adduced subsequent to that date. Thus, though the Police Report in fact contains information obtained after December 2005. the PRPD purported to justify its refusal to consider, or even to include, in the Police Report, the Probable Cause Affidavit or what it released to the public, all the exculpatory and evidence impeaching the witnesses submitted on behalf of Mr. Epstein. most of which was provided tiller December 2005. That evidence is listed below. S. Unreported Criminal Histories and Mental Health Problems of the Witnesses Relied ost in the Police Report and Probable Cruse Affidavit. Evidence obtainixl concerning the witnesses relied upon to support the Probable Cause Affidavit casts significant doubt on whether these witnesses arc sufficiently credible to support a finding of probable cause, lea alone to sustain what would be the prosecution's burden of proof at a trial:: Though such evidence was submitted to the PRP!). none of it was included in the Police Report or the Probable Cause Affidavit. While the Police Report (at 57') and the Probable Cause Affidavit fat 21) contain assertions by which allegedly support bringing a criminal charge. the evidence revealing evident mental instability; prior criminal conduct against Epstein,. and bias towards Epstein is notably omitted. As detailed above, in 2003, was filmed taking money from Epstein's home. After being caught on videotape unlawfully entering Epstein's home and stealing cash from a brierense, While we have never intended to and do nOl here seek to SISIUSOUsly cowl aspersions on any oldie witnesses, in previously asking the Stoic and now asking you to evaluate the strength of this ease, we have been constrained to porn out the fact that the alleged victims chow to present themselves to the work) through MySpace profiles with self-selected monikers such as "Pimp Juke and -Ashley Fucking Davis- or will, node photos. 3501.211-025 Page 8 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095008 EFTA01248632 12/11/2007 11:40 FAX 012/099 KIRKLAND & ELLIS LLP December 11, 2007 1'age admitted to the PBPD that he entered the house unlawfully on numerous occasions. stealing cash and attempting to steal Epstein's licensed handgun to commit suicide. Although this information was known by DetcetivaM at the time the Police Report and Probable Cause Affidavit were prepared. and is clearly material to any detennination of credibility. it was omitted. . I 'was the source of the vast majority of the serious allegations made against Epstein. While the Police Report and Probable Cause Affidavit rely on numerous assertions. there are two significant prnblems with that reliance. First there is no mention of certain critical admissions made by a during her interview, as well as on her MySpace wehpage (discovered by defense investigators and turned over to the State Attorney). Second. all but omitted from the Police Report is an reference to the fads known about her by the PBPD. specifically, that at the lime was making these assertions the had been arrested by the MD and way being prosecuted *possession of marijuana and drug paraphernalia. We take each in turn. • Admits Voluntary Sexual C' lea With Epstein. Refuses to Disclose the Disposition of the Monies She Earned, and Lies About Being "Gime a Car by Epstein: Detective railed to include in the rolice Report Hall's admission that on one 01.1:35101) she engaged in sexual conduct with Epstein's girlfriend us her hirthligir to Epstein. Nor does Detective include the fact that flatly refused to discuss with him the disposition of the thousands of dollars she said she was given by Epstein. or that she falsely claimed that she did not use drugs. despite her MySpacc entries in which she exclaims "I can't wait to buy some wcialumn" Detective IMMII was aware the car had been rented. not purchased. and only ii was only leased on a monthly basis for two months. While MIIIINfanciful claim that she was given a car appears in the Police Report, it is never corrected. • Was Arrested for Possession of Marijuana and Drug map :emu au. As noted, on September II. 2005. I lull was arrested for possession of marijuana and drug paraphernalia. In response in this arrest. I call 'came forward" (as the Probable Cause Affidavit implies at 10-I I). claiming she had knowledge of -squat activity taking place" at Epstein's residence and misconduct by Epstein. (This "coming forward" lawyers no where in the Police Report.) Thus, it becomes clear that I= assertions of misconduct by Epstein were motivated by a desire to avoid the repercussions of her own criminal conduct. which should have been taken into account when assessing her credibility as a witness. 3501.211-025 Page 9 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095009 EFTA01248633 12/11/2007 11:40 FAX a013/099 December 11. 2007 Page 10 KIRKLAND & ELLIS LLP • Steals Front a Victoria's Secret Stun,. An investigation y private investigators working for the defense revealed that in late 2005 I tall was employed at a Victoria's Secret store in Florida. Three days alter her marijuana case was terminated, I tall was caught by store manager as Hall attempted to leave the store with merchandise in her purse, the security tag still attached. Seeing the manager. alaimed -someone is trying to set me up". Following an internal investigation, which disclosed additional thefts Crum both the store and a customer. she was fired. In a recorded interview. Ilall udrained to stealing and asserted that her reason 1hr doing so was that "she was not getting paid enough". This information and supporting documentation was presented to the PBPD. but was never included in the Police Report or Probable Cause Affidavit. • Lies on MySpace About Victoria's Secret Store ertnination. Is° uncovered by defense investigators is I laWs dissembling version of the Victoria's Secret debacle on her "MySpace" wehpage. There. Hall announced that she ". forgot to let everyone know I quit my job at V.S. 'Hwy said they suspected me oreau.sing losses to their company' which by the way is bullshit. I was 'by the honk' on EVCRY1 I HNC)!!! . . . l got so red up in that office that I handed the Loss Prevention lady back my keys and walked out". This information and supporting documentation was provided by the defense to the run). hut was not included in the Police Report or Probable Cause Affidavit. • Lies on her Victoria's Stern Job Application. Additional information on MySpace webixtge casts further doubt on her credibility. For example. she boasts to having engaged in a Ihnidttlent scheme to get hired by Victoria's Secret. explaining. "Oh. it was so funny I used [my boyfriend! as one or my references for my Victoria's Secret job and the lady called me back and told me that William Tucker gave me such an outstanding reference that she did not need to call anyone else hack... . he got me the job! Just like that . .. I lied and said he was the old stock manager at Holistcr she hought it. .." This inlbrmation and supporting documentation was provided by the defense to the 19O1), but was not included in the Police Report or Probable Cause Affidavit. • Anoxic About Iler Marijuana Use. Also on her MySpace %vebpage can be found I Iall's admissions of purchasing and using marijuana and marijuana paraphernalia. Specifically. s t a t e s she "can't wait to buy sonic weed!!! . . . I can't wait!!! ... Mid on: 3501.211-025 Page 10 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095010 EFTA01248634 12/11/2007 11 40 FAX 1010/088 December I I, 2007 Page 11 KIRKLAND & ELLIS LLP let me say that again) I can't wait to buy some %coda . I also want to get a vaporizer so I can smoke in my room because apparently there are 'flares' everywhere". Hall also posted a photograph oral marijuana cigarette and labeled it "what heaven looks like to me", This information and supporting documentation was provided by the defense to the KIM. was nut included in the Police Report or Probable Cause Affidavit (although there is both a heeling reference in the Police Report to Hall's use of marijuana with her boyfriend (at 67) and in the Probable Cause Affidavit to l hill's marijuana arrest (at 10- I I)). • While the Police R. • 'ratable Cause Affidavit contain numerous assertions intended to negate taped admission that she clearly told Epstein she was IS, omitted from these documents is reference to MyStrace webreige. presented to the State Attorney's ()Ince. where . in no connection to this case, she affirmatively represented to the world that she was /8, thereby corroborating her lie to Epstein. Also omitted is any reference to her long history of run-ins with laws:aorta:anent. Among those arc multiple runaway complaints by her patron's and her assignment to a special high school for drug abusers. • ,,t ('Space Webpage States She Drinks, Uses Drugs. Gels into Trouble, Has /(eaten Someone Up, Shoplifts. Has Last her Virginity, Earns 5250,000 and Higher, and Contains Naked and Provocatfre Photographs. The firm image seen on MySpace webpage, the photo Min chose to represent her, is that of a naked woman provocatively I ing on the beach. The illuminating wcbpagc also contains assertions that of all her body parts. she "lovolsl her an". she drinks to excess, uses drugs. "gets into trouble', has beaten someone up. has shoplifted "lots". "already *sr" her virginity, and earns "S250,000 and higher". As with the other impeaching infortraation. this material. vital to determining credibility, was provided by the defense to the P13PD but was never included in the Police Report or Probable Cause Affidavit. • Prior Record — Drugs, Alcohol, Running Away From Home. 'has a history 01' running away/taming up missing from her parents' various homes; of using drugs and alcohol; and of associating with individuals of questionable judgment. For example, at Palm Beach County Sheriff's Office Report details how only two days after she returned to Florida to live with her father. on March 31. 20(*. police were called to the home in response to her father's report that she and her twin sister were missing. The Police Report describes her as "under the influence of a narcotic as 'she' could barely stand up. 3501.211.025 Page II of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095011 EFTA01248635 12/11/200? 11:41 FAX 0015/099 December I I, 2007 Page 12 KIRKLAND & ELLIS LLP Bled eyes were bloodshot. and Baal pupils wen; diluted frier. It further documents that and her sister had stayed out all night and were returned home by a "drug dealer". This event coincided with having been found at an "ins ro riate location" by Georgia police in response to n call about disappearance. Although this information. material to determining credibility. was provided by the defense and known to the PBPD. it was never included in the Police Report or Probable Cause Affidavit. • While the Police Report and Probable Cause AI t avit m y on statements or father. IME his federal hank fraud conviction. which defense investigators discovered and turned over to the PBPD during the course or the investigation, was omitted. Gonzalez served 21 months in federal prison for his offense. While the Police Report and Probable Cause statements or stepmother, omitted is state conviction fur identity fraud. This information. uncovered by defense investigators, was also turned over to the PBPD during the course of the investigation. D. In Liteht Of The Compromised Nature or The Evidence, A Fulsome Review Should Be Conducted. These tainted and inaccurate reports compromised the federal investigation?' As you may know, the PBPD took the unprecedented and highly unethical step of releasing these reports to the media as well. These reports spread across the Internet, and were undoubtedly read by the other individuals who were later interviewed by the FBI for giving Mr. Epstein massages. As we have shown, these reports contain multiple fabrications, omissions. and outright misstatements of fact. Moreover, the evidence and the allegations were undeniably misrepresented to the FRI. with no inclusion of the evidence exposing the deficiencies of the "proof' and the exculpatory evidence upon which the State relied. Funhennore. it should he noted that many of these same individuals were also interviewed by the FBI after their state interviews but prior to Mr. Epstein's counsel providing the government with the transcripts of the recorded interviews. The Although we have been informed that the FBI identified and then interviewed additional potential willlo.tim:K, many 'Wilk:it discoveries arc believed to have emanated from mcssasc pads containing contact information that were seined from Mr Lpstein1/2 home pursuant to a state .search %entrant that was deeply and constitutionally flawed by ReCtreys ntimlatetnettls and omissions as well as other facial deficiencies. 3501.211-025 Page 12 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095012 EFTA01248636 12/11/2007 11:41 FAX O01B/099 KIRKLAND & ELLIS LLP December I I, 2007 Page 13 transcripts mid tapes, which we hope w share with you in person, will likely present a very di lthrent view of those interviews taken afterwards. 'Therefore, in the interest of truth. we ask you to review the transcripts. compare them to the FBI reports upon which the indictment was predicated. and then determine whether the FBI summaries and the prosecution memorandum upon which the charging decisions were made overstate Mr. lipstein*s federal culpability. Concomitant to these requests. we would ask that you determine whether the investigative team ever provided these trustworthy tapes and transcripts to those in your Oilier: who were being asked to authorize the prosecution so that they could themselves assess the reliability or the FBI interview reports against a verbatim neon) of the same witness's prior statements. We believe thin this request is lair and would not be unduly burdensome. II. THE IMPROPER INVOLVEMENT AND CONDUCT OF FEDERAL A lIT1IORITIES. As established above. the State's charging decision. of one count of the solicitation of prostitution, was hardly irrational or irregular. Indeed. a Florida sex prosecutor for 13 years, concluded that the women in question were pros times and that - there arc no victims here." There was no evidence of violence. force, drugs. alcohol, euereiun ur an abuse of a position of authority. Each and every one of the alleged "victims" knew what to expect when they arrived at Mr. Epstein's house and each was paid for her services. In fact, Mr. Epstein 's message book establishes that many of these women routinely scheduled massage sessions with Mr. Epstein themselves, without any prompting. also noted that many of these individuals worked either as exotic dancers or in on massage parlors dotted across West Palm Beach. also specifically stated that lallIMOIN could not be trusted and was "only interested in money.- She limber found that if was inappropriate for Mr. Epstein to register as a sex olTender because she did not believe that he constituted a threat to young girls and because registration had not hcen required in similar or even more seriota cases. thought. and still believes, that the appropriate punishment is a term of probation. Yet. the government has devoted an extraordinary amount of its time and resources to prosecute Mr. Epstein for conduct the State believes amounts to a "sex for money" case. While we are loathe to single-out for criticism the conduct or any particular professional, we cannot escape the conclusion that the cumulative effect of the conduct of Assistant United States Attorney led your Office to take positions during the investigation and ne qui:Ilion of this matter that has led to unprecedented thdend overreaching. In fact. Judge slates " . . .the federal authorities inappropriately involved themselves in the investigation by the slate authorities and employed highly irregular and coercive tactics to override the judgment of state law enforcement authorities as to the appropriate disposition of their case against your client See letter faxed to you on December 7. 2007. 3501.211-025 Page 13 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095013 EFTA01248637 12/11/2007 11. 02 FAX e017/039 KIRKLAND & ELLIS LLP December 11, 2007 Page 14 A. The Petite Policy Should Have Precluded Federal Involvement. As you know, prior to negotiating the terms of the Agreement. we requested that the government consider the Pefire Policy and the problems associated with conducting a dual and successive prosecution. We stressed to your Office, on u number of occasions. that we had reached a final negotiated resolution with the Stale and were only being forced to postpone the execution of that agreement for the sake of the federal investigation. We made submissions and met with your Office to present analyses of the fact dint federal prosecution in this matter was in direct conflict with the requirements of the Petite• Policy. It was our contention, and remains our contention• that federal prosecutors had never intervened in a matter such as this one. And because there was no deficiency in the state criminal process that would otherwise require federal intervention. the express terms of the halm Policy precluded federal prosecution regardless glare auteame gjrhe soar ease. Since the state investigation was thorough and in no way inadequate and the concerns implicated by the matter all involved local issues and areas of traditionally local concern, we urged your Office to contemplate whether a federal prosecution was appropriate. However, on August 3. 2007. rejected a proposed state plea which included that Mr. Epstein serve two years of supervised custody followed by Iwo years of incarceration in a state prison, with the option of eliminating incarceration upon successful completion of the term of supervised custody. among other terms. stated that - the federal interest will not he vindicated in the absence of a two year term in state prison." .War August 3.2007 letter. Such an articulation of the federal interest, we believe. misunderstands the Petite Policy on two grounds. First. the Offices position that the federal interest would not be vindicated in the absence of a jail term for Mr. Epstein. runs contrary to Section 9-2.0311) of the United States Attorney's Manual, because this section requires the federal prosecutor to focus exclusively on the quality or process of the prior prosecution. not the sentencing outcome. Second, the slate plea agreement offered was not -manifestly inadequate" under U.S.A.M. § 9- 2.03 ID. Indeed, the only real dilTennwe between the suite and federal plea proposals was whether Mr. Epstein served his sentence in jail or community quarantine. We formerly believed that our Petite Policy concerns were being addressed nr, at least. preserved. hut we learned that only after reaching a final compromise with your Ollice as to the tams of the Agreement, and at the very last minute. that language regarding the l'eilte Policy was removed from the final version. The two following references to the Perin Policy had been included in the drall prosecution Agreements up until September 24. 2007. the day the Agreement was executed. at which point they were eliminated by your Office: IT APPEARING, after an investigation urihe offenses and t•.pstein's background. that the interest only United Slater pununnt to the Petite policy will be served by the Ibllowing procedure ... Epstein understands that the United Slates Ationsty has no authority to require the State Attorney's (Mice to abide by any terms of this agreement. Epstein understands that it is his 3501.211.025 Page 14 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_000950 14 EFTA01248638 12/11/2007 11.42 FAX 018/099 December I I. 2007 Page IS KIRKLAND & ELLIS LLP obligation to undertake discussion with the Sink Attorney's Ollicc to cusun: compliance with these pnacedures, which compliance will he necessary to satisfy the United States' interest. pursuant In the Petite policy. We reiterate that this case was at heart a local matter that was being fully addressed by the state criminal justice system. The state process resulted in an appropriate resolution or this matter and would have vindicated any conceivable federal interest. Thus, there was nu substantial federal interest that justified a federal prosecution. It has recently come to our attention that that the CEOS chief statements may be relevant to this mutter. While we welcome the opportunity to consider these statements, our extensive research had found only one federal action that was remotely similar to the federal investigation for the prosecution of this matter. and that ease has sin= been distinguished as well. R. Prompted An Unduly Invasive lovestity Of Mr. Epstein. investigation of Mr. Epstein raises serious questions. Despite the fact that she was made aware of the inaccuracies in the PBPD's Probable Cause Affidavit, she chose to include the affidavit in a document tiled with the court knowing that the public could access it. Then. issued letters requesting documents whose subject matter have no relation to the allegations against Mr. Epstein. Notably, after we objected to these overly broad and intrusive reuests. Deputy Chief denied knowledge of actions and commendably sought to significantly narrow the list of documents requested. In a subsequent court filing. Ms. II...referred to our agreement to remove these items from her demand list as evidence of Mr. Epstem's "non-cooperation". This was only the beginning. also subpoenaed an agent or Roy Black (without fidlowing the guidelines provided in the United States Attorney's Manual that require prior notification to Washington necessary to seek a lawyer's records). We once more requested to intervene. Despite these efforts. Sowed up with a subpoena fur Mr. Epstein's confidential medical records served directly on his chiropractor (with no notice to Mr. Epstein). also made the unusual request of asking the Stale Attorney's Office for some ol' the grand jury materials. She threatened to subpoena the State when she was informed that it was a violation of Florida law to release this information. After compiling this "evidence-. stated she would he initiating an investigation into purported violations of IR U.S.C. 3159I (again without the required prior DOJ notification). then broadened the scope of the investigation without any foundation for doing so by adding charges of money laundering and violations of a money transmitting business to the investigation. Mr. Epstein's counsel explained that there could be no basis for these charges since Mr. Epstein did not commit any prerequisite act for a money laundering charge and has never even been engaged in a money transmitting business. Ms. responded that Mr. Epstein could he charged under these statutes because he funded 3501.211.025 Page 15 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095015 EFTA01248639 12/11/2007 11:42 FAX e 018/098 KIRKLAND & ELLIS LLP December II, 2007 Page 16 illegal activities. To suggest that Mr. Epstein could violate these statutes simply by spending his legally earned money on prostitutes is manilinaly an erroneous interpretation of the law. To our relict'. tiller briefing c1 at a meeting regarding the spurious application of these statutes, we were told to ignore the laundry list and that defense coitus:1s' lbeus should be turned to IN U.S.C. §2422(b). Once Mr. Epstein's counsel submitted and presented the reasons why a federal case would require stretching the relevant federal statutes beyond recognition, and that federal involvement in this matter should be precluded based on federalism concerns. the Perric Policy, and general principles of prosecutorial discretion. the parties commenced discussions of a possihle plea agreement. Around this time, we received an e-mail from suggesting that she wanted to discuss the possibility of a concurrent federal and state reso talon. We were immediately informed hy your Office that did not have the authority to make any such plea proposals and would not he involved in any further negotiations of a plea. Despite this commitment. was the principle negotiator of the Agreement. At our meeting on September s le made reference to an allegation against Mr. Epstein involving a 12 year old individual. This allegation is without merit and without foundation. Though your last letter suggests there was "no contact" between individuals in your Office and the press. we were previously told hy that the FM was receiving "information- specifically from Connolly. a Vanity Fair reporter, and not vice versa. C. Included linfair Terms in the Aura:mein., took positions in negotiating this matter that stray from both stated policy and established law. First, insisted that as part of rule federal plea agreement, the State Attorney's Office. without •ing s town new evidence, should be convinced to charge Mr. Epstein with violations of law and recommend a sentence that are significantly harsher than what the State deemed appropriate. In fact. the State Attorney viewed this nuttier as a straightforward prostitution and believed that a term of probation was - and is - the app mpriale sentence. Al insistence, however, Mr. Epstein was forced to undertake the highly unusual and unprecedented action of directing his defense te.un to contract the State prosecutors themselves and ask for an upward departure in both his indictment and sentence. Tlwre was no effort by the state and lederal prosecutors to coordinate the prosecutions. a practice which is against the tenets of the Petite Policy. In our view. it is unprecedented to micro-manage each and every term of Mr. Epstein's State plea. including the exact state charges to which Mr. Epstein plead guilty; the time-frame within which Mr. Epstein must enter that state plea and surrender to state officials: and the amount of time he must spend in county jail. This is particularly true where the State 3501.211-025 Page 16 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095016 EFTA01248640 12/11/2007 11:43 FAX la 020/099 KIRKLAND & ELLIS LLP December I 1.2007 Page 17 Attorney's °nice has a different view of the case and there has been no coordination with state authorities.6 In addition. required that Mr. Epstein's sentence include a registeroble offense. As you know, requiring sexual offender registration will have a significant impact both immediately and forever alter. This harsh term. which is said to be suggested by the FEL was added despite the fact that the State believed that Mr. Ersuein's conduct did nut warrant any such registration. As yod know. state officials have special expertise in deciding which offenders pose a threat to their community. Moreover. this demand places the state prnscemors credibility at issue and diminishes the force of sexual registration when it is applied to offenders who state prosecutors do not believe are dangerous or require registration. = ,Iceisiun not to penoit the State Attorney to determine a matter uniquely within its province was unwarranted. What is more, when negotiating the settlement portion or the Ameernern. - insisted that a civil settlement pmvision be included in the Agreement. namely, the inclusion of IS U.S.C. 2255, a negotiating term which is unprecedented in nature., While we were reluctant and cautious about a plea agreement in which a criminal defendant gives up certain rights to contest liability for a chi/ settlement, ultimatums required that we a • uiesee to these unprecedented terms. For instance, when plea discussion stalled as a result of demands. Mr. lipstcin's counsel received a letter from her slating as it "now appears you will not settle." Al this point, expressed her intention to re-launch the government's previously set amide money laundering investigation. She also issued a nisi of subpoenas and sent target tenors to Mr. Epstein's employees. adding new ledund charges including obstruction of justice. She then personally called Mr. Epstein's largest and most valued business client without any basis to infonn him of the investigation. In an attempt to prevent further persecution and intimidation tactics. we proposed that Mr. Epstein establish a re:dilution fund specifically for the settlement of the identified individuals' civil claims and that an impartial. independent representative be appointed to administer that fund. There was no dollar amount limit discussed for the fund, hut the idea was still rejected. We then pointed out that the state charges to which Mr. Epstein was to plead guilty carried with it a slate restitution provision that would allow "victims" to recover damages. Ms. however, rejected this idea and suggested requiring a guardian ad litem. implying that " When asked whether De fawn of husice polices regarding courclinatiOn with stole stuthorities had been follownl: save no reponse other than stating: -it is nonc of your eons:ern?' 7 In thet. a foreseer deputy enairiiii. has mused that she knew tar no other cam: like Ibis being prosecuted by CEOS. With that in mind, we welcome the opportunity to review the extensive research that CEOS has done, as indicated by your Arnim. 3501.211-025 Page 17 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_000950 17 EFTA01248641 12/11/2007 11:43 FAX ® 021/098 KIRKLAND & ELLIS ILI' December I I, 2007 Page 18 the alleged "victims" in question were currently minors and needed special representation. We later learned that the government's list of individuals included a woman as old as twenty-four. which flies in the face of prior representations (it should be noted that any person who is currently twenty four years old or older could not have been a "victim" under IR U.S.C. § 2253. even if the conduct occurred in 2001). Al insistence, the parties ultimately egress( to the appointment of an attorney representative. but then took the position that Mr. lipstein should pay for the n:presentalive's fees, which effectively meant that Mr. Epstein must pay to sue himscffin also proposed wholly irrelevant chi es such as making obscene phone culls and violations of child privacy laws. When learned of these proposed charges he asked Mr. Epstein's defense team to ignore them as they would "embarrass the Office.- Continually And Purposefully Misinterpreted The Critical Terms of the Agreement. Since the execution of the Agreement. has repeatedly misconstrued the terms contained therein. As you know. several wags o t is matter have been highly contested by the parties. We sometimes have obtained two competing views as to your willingness to compromise on specific issues that we have raised with your Office. In particular. there arc times when we have received verbal agreement from you or your stall(and sometimes from Ms. herself) on a particular issue, only to subsequently receive a contradictory interpretation from that negates our prior common understanding. I ler misinterpretations appear to • attempts to effectively change the spirit and the meaning of the Non-Prosecution Agreement. We ofikr several examples of significent misinterpretations. First. despite the fact that we received several commitments from your Mix that would monitor Mr. Epstein's state sentencing but not interfere with it in any way. sought to do just that. decision to utilize a civil remedy statute in the place of a restitution fund for the alleged victims eliminates the notification requirement under the Justice for All Act or 2004. n federal law that requires 'Wend authorities to notify victims as to any available restitution, not of any potential civil remedies• to which they are entitled. Despite this 'beti roposed a Victims Notification letter to he sent to the alleged fedend victims. has gone even further. alleging that the "victims" may make written statements or testy against Mr. Epstein at the sentencing. We hind no basis in law or the Agreement that provides the identified individuals with either a right to appear at Mr. Epstein's plea and sentence or to submit a written statement m be filed by the State Attorney. Here. Mr. s This arrangement does not put these alleged "victims" in the same position as !hey would have been had Mr. Epstein been convicted at trial in fact. they am much better off. 3501.211-025 Page 18 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095018 EFTA01248642 12/11/2007 11:44 FAX a 022/099 KIRKLAND & ELLIS L Li' December 11.2007 Page I9 Epstein is pleading guilty to. and being sentenced lit state offenses. not the federal offenses under which the government has unilaterally recognized these identified individuals as - victims". The notion that individuals whnse names are not even known to the charging prosecutor in a state action should somehow be allowed to speak at a proceeding is unjustifiable. Furthermore. only after obtaining the executed Agreement did begin insisting that the selected re resentative's duties go beyond settlement and include litigating claims for individuals. In Victims Notification letter, she states that Mr. Podlturst and Mr. Josefsherg. the selected attorney representatives. may -represent- the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by which is patently incorrect. Vet. neglecting the spirit of the negotiations: neglecting the terms of the Agreement: and neglecting commonly-held principles 01 ethics with respect to conflicts. continues in improperly emphasize that the chosen attorney representative should the claims of individuals. ha a similar tbshion.-d has overstated the scope of Mr. Epstein's waiver of liability pursuant to the Agreement. Ms. Villalana began assening that Mr. Epstein has waived liability even when claims with the identified individuals are not settled just after the execution of the Agreement. Despite the fact that at that time. we obtained an agreement from you that Mr. Epstein's waiver would not stretch past settlement. continues to espouse this erroneous interpretation. F.. and The Settlement Process. We are concerned that has repeatedly attempted to manipulate the process under which Mr. Epstein has agreed to settle civil claims. First, she inappropriately attempted to nominate I lumber Ocariz for attorney repn:sentative, despite the fact that Mr. ()earlz has a longstanding relationship with Mr. Ocariz turns out to he a very good personal friend and law school classmate ulliMINIM. boyfriend, a fact she assiduously kept hidden from counsel. We also learned from 1.M.that she shared with Ocariz the summary of charges the government was considenng against Mr. Epstein. Even alter your Office concealed that it was inappropriate for its attorneys to select the attorney representative. continued to lobby lift Mr. Dennis appointment. On October 19. 2007, retired Judgelialmille PAW who was appointed by the parties to select the attorney representative. inlbrmed Mr. Epstein's counsel that he received a telephone call from Mr. Atari,: directly requesting that Judge appoint him as the attorney representative iu this matter. Furthermore. federal interference continues to plague the integrity of the implementation of the Agreement. We recently learned that despite the fact that then: was no communication between state and federal authorities as in the investigation of Mr. Epstein. the FIJI visited the Stale Attorney's Unice two weeks ago to request that Mr. Epstein he diseµtalified to participate in work release even though the Agreement mandates that Mr. Epstein he treated as any other inmate. 3501.211-025 Page 19 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095019 EFTA01248643 12/11/2007 11:44 FAX la 023/089 KIRKLAND & ELLIS LLP December II. ..00 / Page 20 III. CONCLUSION In sum, we reamest that you review the evidence supporting the prosecution of Mr. Epstein. Such a review would serve to address similar concerns as those raised in firmly v. Maryland. which mandate the disclosure of evidence material to guilt or innocence even after the execution (Wan Agreement to enter a plea of guilty. See 373 U.S. 831.1'63). We believe that the "pzusecution team- was informal by its witnesses (including pentons other than and who arc discussed at length above) that Mr. Epstein's practice was to seek women older than 18 rather than targeting those tinder IS. We would expect, for instance. that a key witness whose interview with the FRI was recordeal. would have provided such exonerating information as well us many others. We would 0150 expect tlx: review to uncover clear evidence that demonstrates that Mr. Epstein did 11Ot travel to Florida for the purpose of having illegal underage sex nor that he induced underage women by using the Internet or the phones. Furthermore, we ask you to consider whether there is reliable evidence nut just that Mr. Epstein had sexual contact with witnesses who were in fact underage hut whether the allegations are based on trustworthy (and corroliorated) evidence that (i) Mr. Epstein knew that the lianale(s) in question was under IS at the time of the sexual enamel. (ii) Mr. Epstein traveled to his home in Palm Beach For the purpose of having such sexual contact to the extent the allegation charges a violation of IX J.K.C. § 2423(h) and (e) Mr. F.pstein induced such sexual contact by using an instrumentality of interstate commerce to the extent the allegations charge a violation of IS U.S.C. § 2422(b) (there is no evidence or interne( solicitation which is the norm upon which federal jurisdiction is usually modeled under this statute). We believe that the information we provide to you in this submission will be informative and spark a motivation to gain more information with respect to the investigation of this matter. Again, we are not seeking to unwind the Agreement: we are only seeking for you to exercise your discretion in directing that an impartial and respected member of your Office test the evidence upon which the drat) federal indictment was based against the - best evidence;' including the transcripts of the tape recorded pm-federal involvement interviews. Finally. I would like to reiterate our appreciation for the opportunity you have provided to review some of our issues and concerns. I look forward to speaking with you shortly. Sincerely. 3501.21 b025 Page 20 of 20 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00095020 EFTA01248644