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KIRKLAND & ELLIS LLP
AND AFFILIATED PARTNERSHIPS
Kenneth W. Starr
o Call Writer Directly
Chicago
777 South Figueroa Street
Los Angeles, California 90017
(213) 680-8400
www.kirkland.com
June 19, 2008
John Roth, Esq.
Principal Associate Deputy Attorney General
Office of the Deputy Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W., Room 4115
Washington, D.C. 20530
Dear Mr. Roth:
Facsimile:
I again want to thank you for this opportunity to explain why we believe that a federal
prosecution of Jeffrey Epstein is unwarranted. I appreciate your having informed us that you
already have our May 19 and May 27 communications to the Deputy Attorney General, as well
as our prior written submissions to CEOS and to the Southern District of Florida.
In light of the significant volume of our prior submissions and to facilitate your review,
we have drafted four supplemental submissions that will provide a roadmap for your
investigation of this matter. Given the bulk of these documents and their appended supporting
attachments, you will receive this packet by messenger tomorrow. A brief description of each of
the four submissions follows. First, I have included a succinct summary of the facts, law and
policy issues at hand. This document sets forth a basic overview of the issues and summarizes
our principal contentions as to why federal prosecution of this matter is neither appropriate nor
warranted.
The three other submissions include: a summary of the irregularities and misconduct that
occurred during the federal investigation; a letter from former CEOS attorney Stephanie Thacker
that responds to CEOS 's assessment of its limited review of Mr. Epstein's case; and a point-by-
point rebuttal to First Assistant United States Attorney Jeffrey Sloman's recent letter which we
believe contains factual inaccuracies typical of our correspondence from the United States
Attorney's Office in Miami (the "USAO"). Also, for your reference, the package you receive
tomorrow will contain a binder including all documentation to which we refer in our
submissions. Finally, we will be providing a detailed checklist of each submission or substantive
communication to the USAO. Our intention is that you have copies of each such document to
enhance your review. If there are any that you have not received from the USAO or CEOS,
please advise and we will fedex them to you without delay.
Hong Kong London Munich New York San Francisco Washington, D.C.
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John Roth, Esq.
June 19, 2008
Page 2
As you are likely aware, the Department's prior review of this matter was incomplete
and, by its own admission, not "de novo." See Tab 38, May 15, 2008 Letter from A. Oosterbaan.
Without considering the Non Prosecution Agreement that left this matter to be resolved in the
State or any of the misconduct, CEOS reviewers, tasked with reviewing some of their own
previously expressed opinions, assessed only whether the United States Attorney would "abuse
[his] discretion" if he pursued this case. While we appreciate CEOS' s willingness to examine
these limited issues, its conclusion that a prosecution would not be an "abuse of discretion" rings
particularly hollow in light of CEOS 's admirably candid concessions that we have raised
"compelling" objections and that a prosecution on these facts would require "novel" applications
of federal law. Indeed, even a brief review of CEOS's own mission statement reveals how
inapposite a federal prosecution is to the facts in this case.
Importantly, we note that the CEOS review was conducted prior to the Supreme Court's
very recent decisions in Santos and Cuellar, which we believe—illuminating as they do the
Court's interpretive methodology when it comes to federal criminal law—powerfully
demonstrate the substantive vulnerability of the USAO's unprecedented employment of three
federal laws. That Office's interpretation would never pass muster under the Supreme Court's
recent pronouncements and should not be countenanced. That is all the more true under the
circumstances where the duly appointed U.S. Attorney opined that, in effect, the "unitary"
Executive Branch was driving this prosecution. We now know that is not so.
What I respectfully request, and what I hope you will provide, is a truly "de novo"
review—that is, an independent assessment of whether federal prosecution of Mr. Epstein is both
necessary and warranted in view of the legal and evidentiary hurdles that have been identified,
the existence of a State felony plea and sentence that have been advocated by the State Attorney
for Palm Beach County, and the many issues of prosecutorial misconduct and overzealousness
that have permeated the investigation. I also request that you provide us with the opportunity
during your review to meet with you in person to answer any questions you may have and to
elucidate some of the issues in our submission.
We believe that an independent review will confirm our strong belief that federal
prosecutors would be required to stretch the plain meaning of each element of the enumerated
statutes, and then to combine these distorted elements in a tenuous chain, in order to convict Mr.
Epstein. Indeed, just this week (and after two years of federal involvement in this matter),
Assistant United States Attorney Villafana re-initiated the federal grand jury investigation—in
direct contravention of the parties' Non Prosecution Agreement—and issued yet another
subpoena seeking evidence in this case. See Tab 19, Subpoena to In the
subpoena, AUSA Villafana directs_____________________to appear on July 1, 2008 to give testimony
and produce documents to FGJ 07-103 West Palm Beach. The attachment to the subpoena seeks
documents such as photographs, emails, telephone billing information, and contact information
that relate to Mr. Epstein as well as specific other people who received protection from federal
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John Roth, Esq.
June 19, 2008
Page 3
prosecution as a result of Mr. Epstein's having entered into the September 24, 2007 Non
Prosecution Agreement with the USAO.
Notably, the Non Prosecution Agreement contains the following agreed condition:
Further, upon execution of this agreement and a plea agreement with the State Attorney's Office,
the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury
subpoenas will be held in abeyance unless and until the defendant violates any term of this
agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to
quash certain grand jury subpoenas.
See Tab 21, September 24, 2007 Non Prosecution Agreement. It also guarantees that persons
identified in the Grand Jury subpoena such as_________________________________and Leslie Groff
and others will not be prosecuted. The new Grand Jury subpoena clearly violates the Non-
Prosecution Agreement. Although Mr. Epstein has exercised his rights to appeal to the
Department of Justice with the full consent and knowledge of the USAO, he has not breached the
Agreement. The re-commencing of the Grand Jury is in violation of the Agreement.
But further, the new investigation, which features a wide-ranging, fishing-expedition type
to search in New York does nothing to satisfy the very essential elements of federal statutes that
are lacking despite the intensity of an over two-year investigation in the Palm Beach area.
Absent evidence of Internet luring, inducements while using the phone, travel for the purpose,
fraud or coercion, the subject of the New York investigation is as lacking in the essential basis
for converting a state case into a federal case as is the remainder of the Florida investigation.
The reaching out to New York to fill the void emanating from the failures of the Florida
investigation compellingly demonstrates the misuse of federal resources in an overzealous, over-
personalized, selective and extraordinary attempt to expand federal law to where it is has never
gone. This last-ditch attempt by Ms. Villafana reinforces our belief that the USA() does not have
facts that, without distortion, would justify a prosecution of Mr. Epstein.
In view of the prosecution's often-verbalized desire to punish Mr. Epstein, we believe
that the prosecution summary suffers from critical inaccuracies and aggregates the expected
testimony of witnesses so as to reach a conclusion of guilt. Our contention is reinforced by the
fact that key prosecution witnesses have provided evidence and testimony that directly
undermines the prosecution's misleading and inaccurate summary of its case. Indeed, we now
have received statements from three of the principal accusers— _  (through a state
criminal deposition), (through a federal FBI-USAO sworn and transcribed
interview), and (through a defense—generated sworn transcribed interview).
Each of these witnesses categorically denies each essential element that the prosecution will have
to prove in order to convert this quintessential state-law case into a federal matter.
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John Roth, Esq.
June 19, 2008
Page 4
It thus is especially troubling that the USAO has not provided us with the transcript of
's federal interview, nor the substance of the interviews with Ms. or Ms.
, nor any information generated by interviews with any of the approximately 40 alleged
witnesses that the prosecution claims it has identified. Because the information provided by
these women goes directly to the question of Mr. Epstein's guilt or innocence, it is classic Brady
information. We understand that the U.S. Attorney might not want to disclose impeachment
information about their witnesses prior to a charge or during plea negotiations. But we firmly
believe that when the Government possesses information that goes directly to a target's factual
guilt or innocence, the target should be informed about such heartland exculpatory evidence.
Most importantly, aside from whether the Department believes Brady obligates
disclosure to a target of a federal investigation prior to the target's formal accusation, no such
limit should apply to a Department review. Accordingly, we request that you go beneath the face
of any summary provided to you by the USAO and instead review the actual witness transcripts
and FBI 302s, which are essential for you to be able to make a truly independent assessment of
the strength and wisdom of any federal prosecution.
After careful consideration of the record, and as much as it pains me to say this, I simply
do not believe federal prosecutors would have been involved at all in this matter if not for Mr.
Epstein's personal wealth and publicly-reported ties to former President Bill Clinton. A simple
Internet search on Mr. Epstein reveals myriad articles and news stories about the former
President's personal relationship with Mr. Epstein, including multi-page stories in New York
Magazine and Vanity Fair. Mr. Epstein, in fact, only came to the public's attention a few years
ago when he and the former President traveled for a week to Africa (using Mr. Epstein's
airplane)—a trip that received a great deal of press coverage. I cannot imagine that the USA()
ever would have contemplated a prosecution in this case if Mr. Epstein lacked this type of
notoriety.
That belief has been reinforced by the significant prosecutorial impropriety and
misconduct throughout the course of this matter. While we describe the majority of these
irregularities in another submission, two instances are particularly troubling. First, the USA()
authorized the public disclosure of specific details of the open investigation to the New York
Times—including descriptions of the prosecution's theory of the case and specific terms of a plea
negotiation between the parties. Second, AUSA Villafana attempted to enrich friends and close
acquaintances by bringing them business in connection with this matter. Specifically, she
attempted to appoint a close personal friend of her live-in boyfriend to serve as an attorney-
representative for the women involved in this case.
It also bears mentioning that actions taken by FAUSA Sloman present an appearance of
impropriety that gives us cause for concern. Mr. Sloman's former law partner is currently
pursuing a handful of $50-million lawsuits against Mr. Epstein by some of the masseuses.
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John Roth, Esq.
June 19, 2008
Page 5
Finally, as you know, Mr. Epstein and the USA() entered into an agreement that deferred
prosecution to the State. In this regard, I simply note that the manner in which this agreement
was negotiated contrasts sharply with Mr. Sloman's current representation that "[Vile SDFL
indicated a willingness to defer to the State the length of incarceration . . . " See Tab 1, May 19,
2008 Letter from J. Sloman, p. 2. This statement is simply not true. Contrary to Mr. Sloman's
assertion, federal prosecutors refused to accept what the State believed to be appropriate as to
Mr. Epstein's sentence and instead, insisted that Mr. Epstein be required serve a two-year term of
imprisonment (which they later decreased to 18 months plus one year of house arrest). Federal
prosecutors have not only involved themselves in what is quintessentially a state matter, but their
actions have caused a critical appearance of impropriety that raises doubt as to their motivation
for investigating and prosecuting Mr. Epstein in the first place.
At bottom, we appreciate your willingness to review this matter with a fresh—and
independent—set of eyes. To facilitate your review, I once again request the opportunity to
make an oral presentation to supplement our written submissions, and we will promptly respond
to any inquiries you may have.
Kenneth W. Starr
cc: Deputy Attorney General Mark Filip
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