Legal memorandum on Florida statutes of limitations affecting potential prosecution of Jeffrey Epstein under §2422(b)

KIRKLAND & ELLIS LLP sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation.” Fla. Stat. § 796.01(1)(d). Also, the Florida Supreme Court jury instructions define prostitution as involving “sexual intercourse.” As a result, topless massages—even ones for hire that include self- masturbation—fall outside the ambit of the state-law definition of prostitution. Absent proof beyond a reasonable doubt that, at the critical time of the communication, Mr. Epstein had a specific intent to persuade another to engage in prostitution or “sexual activity,” as defined by Florida law, he cannot be guilty of an offense under § 2422(b). As important, the plain language of the phrase “for which any person can be charged” necessarily excludes acts as to which the state’s statute of limitations has run. Under Florida law, prostitution and prostitution-related offenses are misdemeanors in the second degree for a first violation.” See Fla. Stat.. § 796. 07(4)(a). The limitations period for a misdemeanor in the second degree is one year, and there is no tolling provision based upon the victim’s age. See Fla. Stat. § 775.15(b). Even as to allegations of third degree felonies, the statute of limitations is three years. Thus, any conduct alleged to have occurred before mid-June 2005 cannot be charged as a matter of state law and thus cannot be a predicate for a § 2422(b) offense—even if the federal statute of limitations has not run on any given § 2422(b) offense because of the lengthier statute codified in 18 U.S.C. § 3282. Thus, no prosecution under § 2422(b) can be brought based upon inducement of prostitution or sexual activity for which Florida’s statute of limitation has run. Furthermore, in Florida, the statute of limitations does not simply give rise to an affirmative defense. On the contrary, statute of limitations “creates a substantive right which prevents prosecution and conviction of an individual after the statute has run.” See State v. King, 282 So. 2d 162 (Fla. 1973); Tucker v. State, 417 So. 2d 1006 (Fla. 3d D.C.A. 1982) (citing cases). Given the one-year statute of limitations, any conduct that might amount to prostitution or other chargeable sexual activity that occurred before one year from today is not conduct for which any person can be charged with a criminal offense. Also, given the three year statute of limitations for third degree felonies, any allegations of illegal state criminal conduct that is classified as a third degree felony cannot be charged in the state and, concomitantly, cannot be the basis for a federal charge under § 2422(b), to the extent that it occurred—as did almost all of the pivotal allegations (e.g., the [MM allegation which was made in March of 2005) prior to mid-June of 2005. Ze 18 U.S.C. § 1591 2 The offense is a felony of the third degree only for a third or subsequent violation. Fla. Stat. § 796.07(4)( c). 10 HOUSE_OVERSIGHT_012151