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CONFIDENTIAL SUBMISSION TO
THE OFFICE OF THE DEPUTY
ATTORNEY GENERAL
RE J. EPSTEIN
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KIRKLAND & ELLIS LLP
AND AFFILIATED PARTNERSHIPS
Kenneth W. Starr
To Call Writer Directly: Facsimile:
777 South Figueroa Street
Los Angeles, California 90017
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:
Dir. Fax:
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 USA() or CEOS,
please advise and we will fedex them to you without delay.
Chicago 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 USAO 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- __________________1(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
Ms. 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 USAO
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 USAO
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 "[T]he 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.
cc: Deputy Attorney General Mark Filip
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SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL
IN THE MATTER OF JEFFREY E. EPSTEIN
Jeffrey Epstein, a successful businessman and noted philanthropist with no prior criminal
record, has been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b).
Since the limited review conducted by CEOS, two Supreme Court decisions—one authored by
Justice Scalia and the other by Justice Thomas—have revitalized the bedrock principles that
federal criminal statutes must be narrowly construed, that they may not be stretched to federalize
conduct not clearly covered by their prohibitions, and that whenever there are two plausible
constructions of a criminal statute, the narrower construction (hich safeguards liberty) rather than
the broader construction (which expands the federal prosecutor's arsenal) controls under the
venerable rule of lenity.
Mr. Epstein's conduct—including his misconduct—falls within the heartland of historic
state police and prosecutorial powers. Absent a significant federal nexus, matters involving
prostitution have always been treated as state-law crimes even when they involve minors. Mr.
Epstein's conduct lacks any of the hallmarks that would convert this quintessential state crime
into a federal one under any of the statutes prosecutors are considering.
Mr. Epstein lived in Palm Beach, and his interstate travel was merely to go home. Any
sexual conduct that occurred after he arrived was incidental to the purposes for his travel. Even
CEOS admitted that applying § 2423(b) to a citizen traveling home would be "novel." In fact, it
would be both unprecedented and in conflict with Supreme Court cases that have withstood the
test of time for over 60 years.
Moreover, Mr. Epstein did not use the internet (either via email or chatrooms) to
communicate with any of the witnesses in this investigation. Indeed, he did not use any other
facility of interstate commerce, including the phone, to knowingly persuade, entice, or induce
anyone to visit his home—the "local" locus of all the incidents under investigation—much less
to persuade, entice, or induce a known minor to engage in prohibited sex acts, as § 2422(b)
requires. Nor did anyone on his behalf "persuade" or "induce" or "entice" or "coerce" anyone as
these words are ordinarily understood and as the new Supreme Court decisions mandate they be
applied: narrowly, without stretching ordinary usage to conform to a prosecutor's case-specific
need for a broad (and in this case unprecedented) application. In addition, as will be shown
below, § 2422(b) requires that the object of the communication be a state law offense that "can
be charged." Yet because the state of Florida's statute of limitations is one year for the first
prostitution offense and three years for other targeted offenses, and because all or virtually all of
the offense conduct at issue in the federal investigation occurred prior to June 20, 2005, those
acts can not be charged by the State, and thus cannot meet this essential element of federal law.
Finally, Mr. Epstein neither coerced, nor enslaved, nor trafficked, nor derived any profit
from his sexual conduct. He was an ordinary "John," not a pimp. But § 1591 is directed only
against those who engage in force or fraud or coercion or who are in the business of commercial
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sexual trafficking. The statute has never been applied to a "John," and only a highly and
impermissibly selective prosecution could stretch § 1591 to reach conduct like that at issue in
this case.
In short, without "novel" interpretive expansions—a description used by CEOS itself—it
cannot be shown that Mr. Epstein violated any of the three federal statutes identified by
prosecutors. As the Supreme Court's recent decisions in Santos and Cuellar make clear, federal
law may not be stretched in that manner, and the current federal investigation relies, as its
foundation, on impermissibly elastic stretches of each statute beyond any reported precedent;
beyond the essential elements of each statute; well outside the ordinary construction of each
statute's limitations; and on a selective, extraordinary, and unwarranted expansion of federal law
to cover conduct that has always been exclusively within the core of state powers.
At this point in time, the need for Departmental oversight is critical. We appreciate this
opportunity to submit our assessment of the key facts in this case and review of the pertinent
federal statutes, and respectfully request that the Office of the Deputy Attorney General end
federal involvement in this matter so that the State of Florida may resolve this case appropriately.
Summary of the Facts
Mr. Epstein has maintained a home in Palm Beach, Florida for the past 20 years. While
there, he routinely conducted business, received medical attention, socialized with friends, and
helped care for his elderly mother. Mr. Epstein also had various women visit his home to
perform massages. He did not personally schedule the massage appointments or communicate
with the women over the phone or the Internet. Rather, Mr. Epstein's personal assistants
scheduled many types of appointments, personal trainers, chiropractors, business meetings and
massages. The phone message pad taken from his house and in the possession of the
government confirmed that in many cases, the women themselves contacted Mr. Epstein's
assistants to inquire about his availability—rather than vice versa.
The majority of the massages were just that and nothing else. Mr. Epstein often would be
on the telephone conducting business while he received his massage. At times, the masseuses
would be topless, and some sexual activity might occur—primarily self-masturbation on the part
of Mr. Epstein. On other occasions, no sexual activity would occur at all. There was no pattern
or practice regarding which masseuse would be scheduled on a particular day—if one would be
scheduled at all—or whether any sexual activity might occur. Indeed, Mr. Epstein almost never
knew which masseuse his assistants had scheduled until she arrived. See Tab 3, Toll
Records.
Mr. Epstein specifically requested that each masseuse be at least 18 years old. The vast
majority of the masseuses were in fact in their twenties, many accompanied to Mr. Epstein's
home by friends or even other family members. Furthermore, most of the women who have
testified that they were actually under 18 have specifically admitted to systematically lying to
Mr. Epstein about their age. See Tab 4 MIME Tr. at 38-39; Tab 5, =Err. at 16; Tab 6,
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at 6, 8, 22, 45; Tab 7, Jr.M 13; Tab 8 Tr. at 8; Tab 9, Tr. at 5; and
Tab 10, Tr. at 14-15 (excerpts from these transcripts are included below). Furthermore,
the women who visited Mr. Epstein's home all visited voluntarily and many willingly returned
several times.
The State Attorney's Office (the "SAO") has vast experience prosecuting sex crimes and
conducted an exhaustive, 15-month investigation of Mr. Epstein. A Grand Jury has concluded
that Mr. Epstein was merely a local "John," guilty of soliciting prostitution in violation of state
law. Notably, Florida law distinguishes soliciting from procuring and compelling prostitution if
minors are involved. Indeed, soliciting is a misdemeanor except for the commission of a third
subsequent offense, turning it into a felony. The SAO, therefore, sought and obtained an
indictment charging Mr. Epstein with felony solicitation of prostitution. Mr. Epstein is prepared
to plead guilty and accept a sentence for that offense—a sentence that, notably, is far more
severe than that meted out to other "Johns" convicted of violating Florida's solicitation laws for
cases in which sexual activity was alleged.
Though CEOS points out its admirable goal of "protecting children," a moniker that
engenders high emotions, the conduct alleged here involves women over 16, which is the age of
consent in 38 states and supplies the effective federal age of consent. The young women were by
no means the target of high-school trolling; they were individuals who, with friends, visited Mr.
Epstein's house—a home full of friends and staff. The civil complaints filed against Mr. Epstein
reiterate the fact that the individuals who visited Mr. Epstein would visit with their friends. And
Mr. Epstein never spoke to or had any contact with these women before they arrived at his
house. And again, the State is handling this matter appropriately.
We respectfully submit that that should be the beginning and the end of this matter. As
you know, the Department's Petite Policy precludes successive federal prosecutions after a State
has acted: "[A] state judgment of conviction, plea agreement [here held in abeyance solely as a
result of the federal investigation], or acquittal on the merits shall be a bar to any subsequent
federal prosecution for the same act or acts." U.S.A.M. § 9-2.031A (emphasis added).
Consistent with that principle, and of particular relevance to this case, the Department itself just
recently observed the following:
[P]rostitution-related offenses have historically been prosecuted at the state or
local level. This allocation between state and Federal enforcement authority does
not imply that these crimes are less serious, but rather reflects important structural
allocations of responsibility between state and Federal governments.... [T]he
Department is not aware of any reasons why state and local authorities are not
currently able to pursue prostitution-related crimes such that Federal jurisdiction
is necessary.
See Tab 11, November 9, 2007 Letter from Justice Department Principal Deputy Assistant
Attorney General Brian Benczkowski to the House Committee on the Judiciary, p. 8-9.
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Summary of the Law
We have reviewed every reported case under 18 U.S.C. §§ 1591, 2422(b), and 2423(b),
and cannot find a single one that resulted in a conviction on facts akin to the ones here. In some
respects, it is not surprising that no precedent supports federal prosecution of a man who engaged
in consensual conduct, in his home, that amounts to solicitation under State law. After all,
prostitution, even when the allegations involve minors, is fundamentally a State concern, United
States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (noting that federal law "does not
criminalize all acts of prostitution (a vice traditionally governed by state regulation)"), and there
is no evidence that Palm Beach County authorities and Florida prosecutors cannot effectively
prosecute and punish the conduct. See also Batchelder v. Gonzalez, No. 4:07-cv-00330-SPM-
AK, 2007 WL 5022105 (N.D. Fla. Oct. 19, 2007). In fact, the opposite is true—the state-elected
officials, cognizant of the local mores of the community, have a lauded history of just such
prosecutions.
In any event, and as set forth below, none of the federal statutes in this case remotely
supports a prosecution on the facts of this case without each and every element being stretched in
a novel way to encompass the behavior at issue. We begin with first principles. Courts in this
country have "traditionally exercised restraint in assessing the reach of federal criminal statutes,
both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207
(1985), and out of concern that 'a fair warning should be given to the world in language that the
common world will understand, of what the law intends to do if a certain line is passed.' Arthur
Andersen LLP v. United States, 544 U.S. 696, 703 (2005) (quoting McBoyle v. United States, 283
U.S. 25, 27 (1931)) (citation omitted).
Two recent Supreme Court decisions dramatically underscore these principles and help to
highlight why federal prosecution in this case would be improper as a matter of both law and
policy. See United States v. Santos, No. 06-1005 (June 2, 2008); Cuellar v. United States, No.
06-1456 (June 2, 2008). Though they both address the interpretation and application of the
federal money laundering statute, 18 U.S.C. § 1956, the principles they set forth are equally
applicable here. In Santos, the Court held that the statutory term "proceeds" means "profits"
rather than "receipts," and thus gave the statute a significantly narrower interpretation than what
the government had urged. In his plurality opinion, Justice Scalia emphasized that where a
statutory term in a criminal statute could support either a narrow or broad application, the narrow
interpretation must be adopted because "[w]e interpret ambiguous criminal statutes in favor of
defendants, not prosecutors." Slip op. at 12. As his opinion explained, the rule of lenity "not
only vindicates the fundamental principle that no citizen should be held accountable for a
violation of a statute whose commands are uncertain, or subjected to punishment that is not
clearly proscribed. It also places the weight of inertia upon the party that can best induce
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Congress to speak more clearly and keeps courts from making criminal law in Congress's stead."
Slip op. at 6.1
In Cuellar, the Court examined the link between the money-laundering statute's mens rea
requirement and the underlying elements of the offense. After a careful textual analysis of the
statute and its structure, the Court ruled that the defendant's conviction could be sustained only if
he knew that the transportation of funds to Mexico was designed to conceal their nature,
location, source, ownership or control—not merely that the defendant knew that the funds had
been hidden during their transportation to Mexico. Slip op. at 10-17.
Both decisions relied on the ordinary meaning of the statutory terms Congress chose.
And both rejected attempts to broaden those words to cover conduct not clearly targeted by
Congress. Taken together, these decisions reject the notion that prosecutors can take language
from a narrowly drawn federal statute—especially one that itself federalizes the prosecution of
conduct traditionally within the heartland of State police powers—and convert it into a license to
reach additional conduct by ignoring, rewriting or expansively interpreting the law. Both cases
additionally rejected the notion that statutes should be broadly construed in order to facilitate
prosecutions or to in anyway diminish the burden on prosecutors to prove each essential element
of a federal charge in conformity with Congress's determinations as to what is within the federal
criminal law and what is not. The conflict between the Santos and Cuellar decisions and
CEOS 's grant of effectively unlimited discretionary authority to the USA0 to take federal law to
"novel" places where they have never reached before could not be starker.
These lessons have no less force in the context of Executive Branch decision-making
than they do in the context of Judicial interpretation. As you are aware, when federal prosecutors
exercise their discretion, they bear an independent constitutional obligation to faithfully interpret
the law as written—not to broaden its scope beyond the limits endorsed by both Congress and
the President. There is no support for CEOS's view that the courts or a jury should ultimately
decide whether a "novel" construction of the law is correct. Instead, the Executive Branch itself
has a non-delegable obligation not to exceed its authority; the power of other branches to check
or remedy such usurpation does not legitimize executive action that exceeds its bounds. See Tab
12, November 2, 1994 Memorandum from Assistant Attorney General Walter Dellinger to the
Hon. Abner J. Mikva, Counsel To The President, on Presidential Authority To Decline To
Execute Unconstitutional Statutes, available at http://www.usdoj.gov/olc/nonexcut.htm.
In this case, the text, structure, and history of the relevant federal statutes unambiguously
indicate that these statutes were designed to address problems of a national and international
Justice Stevens, in his concurring opinion, also acknowledged the rule of lenity, calling the plurality opinion's
discussion of that rule "surely persuasive." United States v. Santos, No. 06-1005, slip op. at 5 (June 2, 2008)
(Stevens, J., concurring).
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scope—not the local conduct that is alleged here—and each of these statutes requires proof of
the defendant's actual knowledge that simply is not present in this case. Any attempt to stretch
the language of these statutes to cover this case would be a misuse of the law and contrary to
express legislative intent. In short, the elements under each federal statute-18 U.S.C. §§ 1591,
2422(b) and 2423(b)—are not satisfied here.
1. 18 U.S.C. § 2422(b)
18 U.S.C. § 2422(b) requires the government to prove beyond a reasonable doubt that the
defendant engaged in communications over an interstate facility (e.g., the Internet or phone) with
four concurrent intentions: (1) to knowingly (2) persuade, induce, entice or coerce, or attempt to
persuade, induce, entice, or coerce (3) a minor (4) to engage in prostitution or criminal sexual
activity for which the person can be charged. Mr. Epstein's conduct does not satisfy the
elements of § 2422(b). Each element must be individually stretched, and then conflated in a
tenuous chain to encompass the alleged conduct with any individual woman.
As the statute makes clear, the essence of this crime is the communication itself—not the
resulting act. The Court of Appeals for the Eleventh Circuit, in Murrell, underscores the point:
The defendant in Bailey contended that attempt under § 2422(b) 'requires the
specific intent to commit illegal sexual acts rather than just the intent to persuade
or solicit the minor victim to commit sexual acts.' Id. at 638. In response, the
court held `[w]hile it may be rare for there to be a separation between the intent to
persuade and the follow-up intent to perform the act after persuasion, they are two
clearly separate and different intents and the Congress has made a clear choice to
criminalize persuasion and the attempt to persuade, not the performance of the
sexual acts themselves. Hence, a conviction under the statute only requires a
finding that the defendant had an intent to persuade or to attempt to persuade.'
United States v. Murrell 368 F.3d 1283, 1287 (11th Cir. 2004) (citing United States v. Bailey,
228 F.3d 637, 638-39 (6th Cir.2000)). Thus, the targeted criminal conduct must occur through
the interstate facility, not thereafter, and the scienter element must be present at the time of the
call or Internet contact.
In this case, however, Mr. Epstein did not use an interstate facility to communicate any
illegal intention in this case; the phone calls were made by his assistants in the course of setting
up many other appointments. Neither a conspiracy charge nor a charge of aiding and abetting
can fulfill the mens rea requirement here. Indeed, neither Mr. Epstein nor his assistants knew
whether sexual activity would necessarily result from a scheduled massage. And certainly, no
such activity was ever discussed on the phone by either Mr. Epstein or his assistants. Instead, as
the record in this case makes clear, many appointments resulted in no illegal sexual activity, and
often, as confirmed by the masseuses' own testimony, several individuals who were contacted by
phone visited Mr. Epstein's house and did not perform a massage at all. Where sexual activity
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did result, it was mainly self-pleasuring masturbation and not necessarily illegal, but spontaneous
and resulted from face-to-face conversations during the massage. Thus, the fact that Mr. Epstein
later may have persuaded any particular masseuse to engage in unlawful activity during the
massage does not work retroactively to render the earlier scheduling phone call an offense under
§ 2422(b). Nor is there any evidence that women who returned to Mr. Epstein's home time and
again were somehow coerced or induced over a facility of interstate commerce to do so.
The first essential element of § 2422(b) that "[w]hoever, using the mail or any facility or
means of interstate or foreign commerce," by its plain language, requires that the
communication, which is the essence of the crime and its actus reus, take place during the use of
the facility of interstate commerce (in this case, unlike the vast majority of Internet chat room
sting operations, a telephone). The statute is not ambiguous. It requires that the criminal
conduct occur while the defendant is "using" (i.e. engaged in the communication), not thereafter.
Given the utter lack of direct evidence against Mr. Epstein, prosecutors have signaled that
they intend to offer a purely circumstantial case if this matter proceeds to trial—essentially
arguing that "routine and habit" evidence could substitute for actual proof that an interstate
facility was used to solicit sex from minors. Thus, despite the fact that the calls themselves were
not made by Mr. Epstein and did not contain the necessary explicit communication to knowingly
induce minors to provide sexual favors for money, prosecutors are seeking to turn the phrase "are
you available"—the same phrase used with friends, chiropractors, and trainers—into a ten-year
mandatory prison sentence. In any case, the prosecution's attenuated argument regarding
"routine and habit" will also not fit the facts of this case. The witness testimony at issue makes
clear that there was no clear "routine or habit" with respect to the interactions at issue. And in
those unpredictable instances where sexual contact resulted, it was a product of what occurred
after the benign phone communication, not during the call itself.
The prosecution's theory of liability—that a call to a person merely to schedule a visit to
the defendant's residence followed by a decision made at the residence to engage in prohibited
sexual activity is sufficient—cannot survive either a "plain language" test or the rule of lenity as
they have been authoritatively construed in the recent Santos and Cuellar cases. The statute
cannot be read otherwise. As the Cuellar decision makes clear, a proper interpretation of a
federal criminal statute is guided "by the words of the operative statutory provision," not by
outside objectives, such as those facilitating successful prosecution. See Cuellar, supra, Slip op.
at 7. As Justice Alito stated in his concurring opinion, the government must prove not just the
"effect" of the secretive transportation, but also that "petitioner knew that achieving one of these
effects was a design (i.e. purpose) of the transportation" of currency. Cuellar v. United States,
supra, 553 US., Slip op. At 1 (Auto, J. concurring). Similarly, it is not enough that one effect of
a communication scheduling a visit between Mr. Epstein and a minor was that there might be
subsequent face-to-face inducement. Instead, the statute, as drafted, defines the crime as the
communication and demands that far more be proven than that the use of an interstate facility
resulted in a later meeting where even an inducement (as opposed to a solicitation) was made.
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The prosecution has never represented to counsel that they have evidence that would
prove that the inducement or enticement to engage in illegal sexual acts occurred over the phone
(or Internet). The prosecution's references to "routine and habit" evidence that would substitute
for the explicit communications usually found in the transcripts from chat rooms or sting
operations is tenuous at best. In essence, the prosecution would be alleging communications
understood, but not spoken, by two people, one of whom was usually a secretary or assistant.
Separating the actus reus and the mens rea, however, and premising criminal liability on
persuasion that might occur after the communication, or on the existence of a specific intent to
engage in illegal sex with a minor that arises after the communication would violate the bedrock
principle of criminal law that predicates liability on the concurrence of the act and the criminal
state of mind. Even if, arguendo, the communication and mens rea could be separated (a
premise which is at odds with the requirement of concurrence), Mr. Epstein denies that the
factual proof demonstrates such a pattern or practice. Instead, the evidence compellingly proves
that there was no regularity or predictability to the content of the communication or in what
occurred at meetings that were telephonically scheduled (including those that are the subject of
this investigation).
A second essential element of 2422(b) requires that the defendant "knowingly" induce,
persuade, entice or coerce a person believed to be a minor. " . . . [K]knowingly. . . induces. ."
requires the Court to define inducement so it is consistent with its ordinary usage and so the term
is not so broad that it subsumes the separate statutory terms of "entices" and "persuades."
Inducement has a common legal meaning that has been endorsed by the government when it
operates to narrow the affirmative defense of entrapment. Inducement must be more than "mere
solicitation;" it must be more than an offer or the providing of an opportunity to engage in
prohibited conduct. See, e.g,. United States v. Sanchez-Berrios, 424 F.3d 65, 76-77 (1st Cir.
2005); United States v. Brown, 43 F.3d 618, 625 (11th Cir. 1995). The government cannot fairly,
or consistent with the rule of lenity, advocate a broader definition of the same term when it
expands a citizen's exposure to criminal liability than when it limits the ambit of an affirmative
defense to criminal conduct. If the term is ambiguous, absent clear Congressional intent on the
issue, the Court's decision in Santos requires that the narrower rather than the broader definition
be used.
The facts simply do not prove Mr. Epstein's culpability for knowingly inducing or
persuading minors. First, in the case of masseuses who agreed or even sought to return to see
Mr. Epstein on successive occasions, there is no evidence that there was any inducement,
persuasion, enticement or coercion over the phone. And, for masseuses seeing Mr. Epstein for
the first time, there was generally no telephone contact with Mr. Epstein and there was no
knowledge that any third party at Mr. Epstein's specific direction was inviting them to Mr.
Epstein's home over the phone rather than in face-to-face meetings. The women who visited Mr.
Epstein's home were all friends of friends. Contrary to the facts in this case, § 2422(b)'s
knowing inducement element is essential to federal liability and, given its hefty minimum
mandatory punishment, it should not be interpreted as a strict liability statute.
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There is insufficient evidence that Mr. Epstein targeted minors, as required. The
evidentiary pattern does not even establish willful blindness since Mr. Epstein took steps to
ensure his visitors were over 18—and certainly took none to avoid knowing. But, even if the
government contends that it possesses evidence that could demonstrate that Mr. Epstein knew or
should have known or suspected that a small number of the masseuses were underage, that would
still not make this an appropriate case for federal, rather than state prosecution. The federal
statutes were not intended to supersede state prosecutions involving isolated instances of
underage sex. Instead, the federal statutes were intended for large-scale rings or for an
individual who was engaged, while using interstate facilities such as the Internet, with the willful
targeting of minors.
The government's evidence, even when stretched to the limit, will not show a pattern of
targeting underage persons for illegal sexual activity. A federal prosecution should not become a
contest between the prosecution and defense over whether the defendant knew, suspected or
should have known whether a particular person was or was not over age. The history of cases
brought under this statute make crystal clear that knowledge of the defendant regarding the age
of the women is required—either by admission or by incontrovertible transcripts of
conversations (i.e. stings operations which require repeated acknowledgment of the defendant's
awareness of the victims' age). Even states with absolute liability about mistake regarding age
rarely prosecute cases where definitive proof is lacking (Palm Beach County rarely does and
when it does, it imposes house arrest sentences). This is a matter for the exercise of state
prosecutorial discretion and not federal mandatory minimum statutes that were not intended to
cover such conduct.
A third essential element of § 2422(b) is the requirement that the government prove that
the defendant actually believed that the person being persuaded (coerced, etc.) was a minor at the
time of the communication. See e.g., Offense Instruction 80, Eleventh Circuit Pattern Jury
Instructions-Criminal (2003) ("The defendant can be found guilty of that offense only if... the
defendant believed that such individual was less than (18) years of age..."); United States v.
Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (§ 2422(b) requires that the defendant knowingly
target a minor). Importantly, then, all the elements must be proven with respect to a specific
person. However, we are told that the majority of proof is no more than toll records, not
recorded conversations or Internet chat transcripts, but toll records and perhaps a memory of
what was said years ago on a particular call for a particular request from a particular person
acting at Mr. Epstein's direction.
Two final points bear special emphasis here. The statute, which according to Santos and
Cuellar must be narrowly construed, also requires that the inducement be to engage in
prostitution or sexual activity "for which [the defendant] can be charged." 18 U.S.C. § 2422(b).
However, simple prostitution is not defined (or made punishable) in the U.S. Code, and state law
thus supplies the appropriate reference point. Under Florida law, "prostitution" entails the
"giving or receiving of the body for sexual activity for hire," Fla. Stat. § 796.07(1)(a), and the
term "sexual activity" is limited to "oral, anal, or vaginal penetration by, or union with, the
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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.2 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 allegation which was made in March of 2005)
prior to mid-June of 2005.
2. 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).
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18 U.S.C. § 1591, a sex trafficking statute, provides up to 40 years' imprisonment for
anyone (1) who recruits or obtains by any means a person in interstate commerce (ii) knowing
that the person is under 18 and (iii) knowing that the person will be caused to engage in a
commercial sex act. The most heinous of crimes, described on the CEOS website, fall within
this statute and include the buying and selling of children and the forced servitude of third-world
immigrants brought to this country to be enslaved. Mr. Epstein's behavior is nowhere near the
heartland of this statute. This statute has also been previously reserved for prostitution rings
involving violence, drugs and force. In stark contrast, there is no jurisdictional hook that brings
Mr. Epstein's conduct within the ambit of the statute, and securing a prosecution on these facts
would require a court to set aside both reason and precedent to convict a local 'John' with a sex-
slavery crime. It can not be said that Mr. Epstein engaged in trafficking and slavery nor did he
knowingly recruit or obtain underage women with knowledge that they would be caused to
engage in a commercial sex act. Thus, prosecuting him under this statute would expand the law
far beyond its scope.
To the extent there are cases where prosecutors think that Mr. Epstein should have known
that certain women were underage, there is no evidence that Mr. Epstein "caused [them] to
engage in a commercial sex act." The term "cause" naturally implies the application of some
sort of force, coercion, or undue pressure, but there is no evidence that Mr. Epstein's interactions
with the women were anything but consensual. Again, many of the women phoned Mr.
Epstein's assistant themselves in order to determine whether he wanted a massage. Nor can the
cause requirement be proved simply by the fact that Mr. Epstein compensated the women. After
all, the statute elsewhere requires that the women "engage in a commercial sex act," which by
definition means that they would have received something of value in exchange for sexual
services. Interpreting the statute to authorize prosecution whenever a commercial sex act results
from solicitation thus would render the term "caused" superfluous, and would make every 'John'
who interacts with an underage prostitute guilty of a federal crime—even where the transaction
is entirely local. Read in context, then, there is no doubt that the statute targets pimps and sex-
traffickers who knowingly obtain underage girls and direct them to engage in prostitution. There
is not a shred of evidence that Mr. Epstein (or his assistants) did any such thing, and he cannot be
prosecuted under this statute.
The Cuellar and Santos decisions also foreclose a prosecution under § 1591. Just as the
federal money laundering statute did not come down to a proscription against transportation of
criminal proceeds that are hidden, the sex trafficking of children statute cannot be boiled down
and expanded to a federal proscription of commercial sexual activity with persons who turn out
to be below the age of 18.
3. 18 U.S.C. § 2423
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18 U.S.C. § 2423(b), a statute enacted to prevent sex tourism, provides up to 30 years of
imprisonment for anyone who travels across state lines (i) for the purpose of engaging in (ii)
illicit sexual conduct with a minor. Neither of those elements is satisfied here.
Mr. Epstein did not travel to Palm Beach for the purpose of engaging in sexual activity
with a minor, within the meaning of the statute. The evidence is indisputable that Palm Beach
was where Mr. Epstein spent most of his discretionary time, and that his travels to Palm Beach
were merely trips returning often to his home of twenty years—not the escapades of a sex tourist
off to some destination inextricably intertwined with the required significant or dominant
purpose of that trip to be to have "illicit sexual conduct." Epstein's trips to Palm Beach were
simply those of a businessperson traveling home for weekends or stopping over on his way to or
from New York and St. Thomas or to visit his sick and dying mother in the hospital for months
on end. He certainly did not travel to his home in Florida for the dominant purpose of engaging
in sexual conduct with a person who he knew was under 18 when he did not know, at the time he
decided to travel, from whom he was to receive a massage, if he were to receive one at all.
In Cuellar, the unanimous Supreme Court linked the term "design" in the money-
laundering statute to the terms "purpose" and "plan," and stressed that those terms all required
the defendant to "formulate a plan for; devise"; "[t]o create or contrive for a particular purpose or
effect"; [carry out] "[a] plan or scheme"; or "to conceive and plan out in the mind." Slip. op. at
12 (citing dictionary definitions). The same link is present here, and it simply cannot be said that
Mr. Epstein's design, plan, or purpose in traveling to Palm Beach was to engage in illicit sexual
conduct with minors; his design or plan or purpose was simply to return to his home.
Any construction of § 2423(b)'s "for the purpose of' language to include purposes
beyond the dominant purpose of the travel would run afoul of the rule of lenity and due process
principles discussed earlier. Any attempted prosecution of Mr. Epstein under a more expansive
construction of the "for the purpose of' language would also violate the separation of powers
doctrine. Congress, which selected the "for the purpose of' language signaled no clear intention
to make it a federal crime whenever an actor has engaged in illicit sexual conduct following his
crossing of state lines as long as it might be said that sexual activity at his destination was among
the activities he pursued there. Congress well knows how to write a statute in this field which
eliminates a purpose requirement. See 18 U.S.C. § 2423(c)("Any United States citizen or alien
admitted for permanent residence who travels in foreign commerce, and engages in any illicit
sexual conduct with another person ..."). § 2423(b) is not such a statute.
Federal court decisions watering down the "for the purpose of" requirement fly in the
face of the two Supreme Court decisions addressing that element. See Hansen v. Huff 291 U.S.
559 (1934); Mortensen v. United States, 322 U.S. 369 (1944). Santos and Cuellar speak loudly
and clearly against prosecutors seeing such elasticity in federal criminal statutes, including those
enacted to protect important federal interests. In cases involving the federalization of activity
that is within the States' historic police power, Congress must speak with particular clarity. See,
e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989).
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Relevant Past Cases
We have not been able to find a single federal prosecution based on facts like these—but
have voluminous evidence of federal prosecutors routinely declining to bring charges in cases far
more egregious than this one. To take just one obvious example, federal prosecutors have self-
consciously refrained from involvement in the literally dozens of sexual cases of former priests,
opting instead to allow seasoned state prosecutors (like the ones in this case) to pursue the
accused former clergymen. That is so despite (1) the large number of victims, (2) the vast
geographic diversity of the cases, and (3) the fact that some of these cases involve allegations
that the defendant forcibly molested, abused, or raped literally dozens of children—including
some as young as five years old—over a period of years. Nonetheless, federal prosecutors have
not hesitated to let their state counterparts pursue these cases free from federal interference—
even though the sentences meted out vary greatly on account of the fact that "[c]riminal penalties
are specific to localities or jurisdictions."3 The facts of this case, which involve the solicitation
of consensual topless massages and some sexual contact, entirely in the privacy of his home and
almost entirely by women over the age of 18, pale in comparison to the outright sexual abuse and
degradation of preteen minors in many of the priest cases.
Nor does this case bear any of the hallmarks that typify the cases that federal prosecutors
have pursued under the federal statutes at issue here. When asked, the closest case suggested by
the prosecutors was United States v. Boehm—and it hardly could differ more from Mr. Epstein's
case. In Boehm, the defendant was charged with conspiracy to distribute cocaine and cocaine
base to minors, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 859(a); being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and sex trafficking of children in
violation of 18 U.S.C. §§ 371 and 1591. United States v. Boehm, Case No. 3:04CR00003 (D.
Alaska 2004). Boelun's actions, unlike Mr. Epstein's, also had a strong interstate nexus: Boehm
purchased and distributed large quantities of crack cocaine and cocaine that traveled in interstate
commerce, and he used his home and hotels (which were used by interstate travelers) to purchase
drugs and distribute them to minors while also arranging for these minors to have sex with him
and others. Indeed, Boehm not only (1) purchased cocaine in large quantities; (2) distributed the
drugs to minors; (3) possessed illegal firearms; (4) and arranged for the minors to have sex with
other members of the conspiracy in exchange for drugs; but (5) admitted to knowing the ages of
the individuals involved.4 Here, by contrast, as previous stated, all of the conduct took place in
Mr. Epstein's private home in Palm Beach; there was no for-profit enterprise; no interstate
component; no use by Mr. Epstein of an instrumentality of interstate commerce; no violence; no
force; no alcohol; no drugs; no guns; and no child pornography.
3 See http://www.bishop-accountability.org/reports/2004_02_27_JohnJay/2004_02_27 Terry Joluday_3.htm
#cleric7.
4
In fact, Boehm and his co-defendants distributed drugs to approximately 12 persons between the ages of 13 and
21. Boehm also had a prior criminal history—and one that clearly showed he was a danger to society: he
previously had been convicted of raping both a thirteen year-old girl and a fifteen year-old girl. (Day 7 of
Sentencing hearing p. 32).
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To the extent there is a similar, but more egregious, local Florida case on the books, it is
that of Barry Kutun, a former North Miami city attorney accused of having sex with underage
prostitutes and videotaping the sessions. Mr. Kutun pleaded guilty on May 18, 2007 in a Miami-
Dade County courtroom as part of an agreement with State prosecutors and he received five
years probation and a withholding of adjudication with no requirement to register as a sex
offender—all without a shred of involvement by federal prosecutors, who declined to prosecute
him. Indeed, given the wide use of the telephone in today's society, it gives a rogue prosecutor
carte blanche to turn any local crime into a federal offense. Given the federal government's
decision to abstain from prosecuting that case, it is hard to understand how the federal
prosecutors responsible for this case think that the State's treatment of Mr. Epstein somehow
leaves federal interests substantially un.vindicated. There is simply no basis for the federal
prosecutors' disparate treatment of Mr. Epstein.
Summary of the Evidence
Finally, we wish to share new evidence—obtained through discovery in connection with
the civil lawsuits filed in this matter—which confirms that further federal involvement in this
matter would be inappropriate. This testimony taken to date categorically confirms that (i) Mr.
Epstein did not target minors; (ii) women under 18 often lied to Mr. Epstein about their ages; (iii)
Mr. Epstein did not travel in interstate commerce for the purpose of engaging in illegal sexual
activity; (iv) Mr. Epstein did not use the Internet, telephone or any other means of interstate
communication to coerce or entice alleged victims; (v) Mr. Epstein did not apply force or
coercion to obtain sexual favors; and (vi) all sexual activity that occurred was unplanned and
purely consensual. The women's own statements—made under oath—demonstrate the absence
of a legitimate federal concern in this matter, and highlight the serious practical difficulties an
attempted federal prosecution would face.
• Mr. Epstein did not recruit or obtain these women in interstate commerce (necessary
for a conviction under § 1591).
o confirmed that she did not know Mr. Epstein and had
absolutely no contact with him—be it through Internet, chat rooms, email,
or phone—prior to their arrival at his home. See Tab 13 Tr.
(deposition), p. 30.
o has stated that (like many other women) she first met Mr.
Epstein when her friend, introduced her to him. See Tab
14, Tr. A, p. 4-5. ________________________
• Mr. Epstein was told the girls were over 18.
o expressly admitted to lying to Mr. Epstein about her age.
See Tab 13, . (deposition), p. 37 ("Q. So you told Jeff that you
were 18 years old, correct? A. Yes.").
stated that she not only always made sure she had a fake ID
with her and lied to Mr. Epstein by telling him she was 18, but that she
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also had conversations with other women in which these women hoped
that "Jeffrey didn't find out [their] age[s]." See Tab 6, Miller Tr., p. 45.
o also stated that she: "would tell my girlfriends just like
approached me. Make sure you tell him you're 18. Well, these girls that I
brought, I know that they were 18 or 19 or 20. And the girls that I didn't
know and I don't know if they were lying or not, I would say make sure
that you tell him you're 18." See Tab 6, Ir., p. 22.
o stated that old her say that she was 18 if asked. See
Tab 14, Tr. A, p. 8.
stated that she "told him I was 19." See Tab 5,
Tr., p. 16.
• Mr. Epstein did not know these women would be caused to engage in a sex act
(necessary for a conviction under § 1591) and any sexual activity that took place was
unplanned.
o stated "sometimes [Mr. Epstein] likes topless massages, but
you don't have to do anything you don't want to do. He just likes
massages." See Tab 6, Tr., p. 7.
o also stated "[s]ometimes [Mr. Epstein] just wanted his feet
massaged. Sometimes he just wanted a back massage." See Tab 6,
Tr., p. 19.
• Mr. Epstein did not use an interstate facility to communicate an illegal objective to
the alleged victims (necessary for a conviction under § 2422(b)).
o confirmed that Mr. Epstein never emailed, texted, or chatted
in an Internet chat room with her. See Tab 13, (deposition),
p. 30.
• Mr. Epstein did not target minors (necessary for a conviction under § 2422(b))
o stated, "I always made sure -- I had a fake ID, anyways, saying
that I was 18. And I (who is friend who brought her to
Mr. Epstein's home)] just said make sure you're 18 because Jeffrey
doesn't want any underage girls." See Tab 6, Fr., p. 8.
• Mr. Epstein did not use the phone or the Internet to induce proscribed sexual activity
(necessary for a conviction under § 2422(b)).
o stated that there was never any discussion over the phone about
her coming over to Mr. Epstein's home to engage in sexual activity: "The
only thing that ever occurred on any of these phone calls [with
or another assistant] was, 'Are you willing to come over,' or,
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'Would you like to come over and give a massage." See Tab 14= Tr.
A, p. 15
confirmed that she was informed that she was going to Mr.
Epstein's house to give him a massage and nothing else, and that no one
"said anything to [her] on the telephone [or over the Internet] about sexual
activity with Mr. Epstein." See Tab 13, (deposition), p. 24-
25.
o also confirmed that no one associated with Mr. Epstein ever
tried to call her or contact her through the Internet to try to persuade,
induce, entice or coerce her to engage in any sexual activity. See Tab 13,
(deposition), p. 31.
• Mr. Epstein did not travel to Palm Beach for the purpose of engaging in sexual
activity with a minor (necessary for a conviction under § 2423(b)).
o Mr. Epstein spent at least 100 days a year in Palm Beach for family
purposes, business purposes, and social purposes, and to maintain a home.
o While in Palm Beach, Mr. Epstein routinely visits family members and
close friends, has seen his primary care physician for checkups and
prescribed tests in the Palm Beach area, and until her death in April of
2004, regularly saw his mother who was hospitalized and then
convalesced in south Florida.
o From 2003 through 2005 there was no month when Mr. Epstein did not
spend at least one weekend in Palm Beach.
o The Palm Beach area is the home base for his flight operations, for
maintenance of his aircraft, and for periodic FAA inspections.
o Additionally, Mr. Epstein's pilots and engineers all resided in Florida.
• Mr. Epstein's conduct did not involve force, coercion or violence and any sexual
activity that took place was consensual. The witness transcripts are replete with
statements such as the following:
o stated that she was not persuaded, induced, enticed or
coerced by anyone to engage in any sexual activity. See Tab 13,
Tr. (deposition), p. 31.
o tated: "[Mr. Epstein] never tried to force me to do anything."
See Tab 14,
o stated, "I said, I told Jeffrey, I heard you like massages topless.
And he's like, yeah, he said, but you don't have to do anything that you
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don't feel comfortable with. And I said okay, but I willingly took it off"
See Tab 6,
o also stated "[s]ome girls didn't want to go topless and Jeffrey
didn't mind." See Tab 6,
• Mr. Epstein did not engage in luring.
o Mr. Epstein's message books show that several masseuses would regularly
call Mr. Epstein's assistants, without any prompting by Mr. Epstein or his
assistants, asking to visit Mr. Epstein at his home.
o stated "a lot of girls begged me to bring them back [to Mr.
Epstein's house]."
• There was no alcohol or drugs involved, a fact that is not in dispute.
• Mr. Epstein has no prior criminal history, a fact that is not in dispute.
• These women do not see themselves as victims.
o indicated under oath that the FBI attempted to persuade her that
she was in fact a "victim" of federal crimes when she herself repeatedly
confirmed that she was not. See Tab 14, , p. 9-12 and Tab 15,
B, p. 7.
Conclusion
Jeffrey Epstein, a self-made businessman with no prior criminal history, should not be
prosecuted federally for conduct that amounts to, the solicitation of prostitution. A federal
prosecution based on these facts would be an unprecedented exercise of federal power, a misuse
of federal resources, and a prosecution that would carry with it the appearance, if not the reality,
of unwarranted selectivity given the incongruity between the facts as developed in this matter
and the factual paradigms for all other reported federal prosecutions under each of the three
statutes being considered. It would require the pursuit of a novel legal theory never before
sanctioned by federal law—and that indeed is inconsistent with each of the statutes prosecutors
have identified. Accordingly, we respectfully request that you direct the U.S. Attorney's Office
for the Southern District of Florida to discontinue its involvement in this matter, and return
responsibility for this case to the State of Florida.
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SUMMARY OF
MISCONDUCT
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SUMMARY OF MISCONDUCT ISSUES IN THE MATTER OF JEFFREY E. EPSTEIN
• The manner in
which federal prosecutors have pursued the allegations against Mr. Epstein is highly irregular
and warrants full review by the Depaament. While we repeatedly have raised our concerns
regarding misconduct with the United States Attorney's Office in Miami (the "USAO"), not only
has it has remained unwilling to address these issues, but Mr. Epstein's defense counsel has been
instructed to limit its contact to the very prosecutors who are the subject of this misconduct
complaint. For your review, this document summarizes the USAO's conduct in this case.
Background
1. In March 2005, the Palm Beach Police Department opened a criminal investigation of
Palm Beach resident, Jeffrey E. Epstein. The press has widely reported that Mr. Epstein
is a close friend of former President Bill Clinton.
2. In July 2006, after an intensive probe, including interviews of dozens of witnesses,
returns of numerous document subpoenas, multiple trash pulls and the execution of a
search warrant on his residence, Mr. Epstein was indicted by a Florida Grand Jury on one
count of felony solicitation of prostitution.
3. In a publicly released letter, Palm Beach Police Chief Michael Reiter criticized the Grand
Jury's decision and the State Attorney's handling of the case. Shortly after the Grand
Jury's indictment, the Chief took the unprecedented step of releasing his Department's
raw police reports of the investigation (including Detective Recarey's unedited written
reports of witness statements and witness identification information), that were later
proven to be highly inaccurate transcriptions of witnesses' actual statements. The Chief
also publicly asked federal authorities to prosecute the case.
Jeffrey Sloman Becomes Involved in Mr. Epstein's Case at the Earliest Stage
4. In early November of 2006, Epstein's lawyers had their initial contact with the newly
assigned line federal prosecutor, A. Marie Villafana. Although it is extremely unusual
for a First Assistant United States Attorney to participate in such a communication,
FAUSA Jeffrey Sloman was present on that very first phone call.
5. On November 16, 2006, despite that the fact that the investigation exclusively concerned
illegal sexual conduct during massage sessions, AUSA Villafana issued irrelevant official
document requests seeking Mr. Epstein's 2004 and 2005 personal income-tax returns,
and later subpoenaed his medical records. See Tab 16, November 16, 2006 Letter from
M. Villafana.
Sloman Becomes Personally Involved in a Dispute Over Another State Sex Case
6. In March 2007, FAUSA Sloman reported to local police an attempted trespass by a 17-
year-old male. Mr. Sloman claimed that the individual had attempted to enter Mr.
Sloman's home without invitation to make contact with his 16-year-old daughter, but he
spotted the young man before the perpetrator had an opportunity to enter the house. The
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same individual had previously fled the home of another neighbor after entering that
house uninvited, when, looking for the bedroom of their 17-year-old daughter, he
mistakenly entered the bedroom of their 14-year-old daughter, touched her on the leg and
startled her awake. State of Florida v. Johnathan Jeffrey Zirulnikoff, Case No. F078646
(June 28, 2007).
7. After a thorough review by the Miami State Attorney's Office, and sex-crimes prosecutor
Laura Adams, the investigation revealed that the defendant and both the neighbor's 17-
year-old daughter and Mr. Sloman's daughter were previously acquainted. The
defendant was charged with simple trespass in connection with his unauthorized entry
into the neighbor's house. Id.
8. FAUSA Sloman, however, demanded that the young man be registered as a sex offender
and objected to any sentence short of incarceration. The Assistant State Attorney in
charge of the sex-crimes unit reported Mr. Sloman's conduct during the proceedings as
"outrageous." The defendant's attorney described Mr. Sloman as being "out of control."
Shortly after, Mr. Sloman began publicly deriding the elected State Attorney, his office
and the state process for prosecuting sex offenses, as "a joke."
Unauthorized Tactics in Disregard of the United States Attorney's Manual are Used
9. In June 2007, AUSA Villafana subpoenaed the investigating agent of Epstein's attorney,
Roy Black, in a clear effort to invade the defense camp. The subpoena was specifically
drafted to discover the investigator's contacts, with all prospective witnesses, Mr. Epstein
and his attorneys.' Not surprisingly, Ms. Villafana issued this subpoena without the
requisite prior approval by the DOJ's Office of Enforcement Operations. See United
States Attorneys' Manual, § 9-13.410. When confronted, she misleadingly responded
that she had consulted with the Department of Justice and was not required to obtain
0E0 approval because her subpoena was not directed to "an office physically located
within an attorney's office." See Tab 18, December 13, 2007 Letter from M. Villafana at
4 n.1 . This answer clearly suggests that Ms. Villafana had intentionally misled the
Department officials about the items that her subpoena sought.2
The subpoena sought, among other things: "All documents and information related to the nature of the
relationship between [the investigator and/or his firm] and Mr. Jeffrey Epstein, including but not limited to . . .
records of the dates when services were performed . . . telephone logs or records of dates of communications
with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like
(whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or
when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf) . See Tab
17, June 18, 2007 Subpoena to William Riley! Riley Kiraly, If 3.
Indeed, we are aware of two other recent instances in which Villafana placed serious misrepresentations before
a court. On July 31, 2007, in the grand-jury litigation arising out of this case, she filed the "Declaration of
Joseph Recarey," attaching the state detective's affidavit in support of a search warrant for Epstein's house. See
In Re Grand Jury Subpoenas Duces Tecum OLY-63 and OLY-64, No. FGJ 07-103(WPB) (S.D. Fla. July 31,
2007). At the time she filed Detective Recarey's affidavit, she knew it contained numerous material
misrepresentations, including gross misstatements of witness statements and other evidence. Second, we
(Continued...)
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Mr. Epstein is Required to Agree to Civil Liability In Order to Avoid a Federal Indictment
10. On July 31, 2007, during negotiations over a possible federal plea agreement, FAUSA
Sloman and AUSA Villafana demanded that Mr. Epstein agree to the imposition of civil
liability under 18 U.S.C. § 2255 as a pre-condition to deferral of federal prosecution. To
the best of our knowledge, the inclusion of such a term in a deferred prosecution
agreement of this kind is absolutely unprecedented.3 Specifically, Ms. Villafana
demanded that Mr. Epstein waive the right to contest civil liability to a list of individuals
she said were "victims" of § 2255, whose names, however, she refused to disclose, and
agree to pay damages of a minimum of $150,000 to each and every one of such
undisclosed individuals, and hire an attorney to represent them if they decided to sue
him. See Tab 20, July 31, 2007 Draft of Deferred Prosecution Agreement.
11. FAUSA Sloman and AUSA Villafana insisted that the identities of the individuals on the
list not be disclosed to Mr. Epstein or his counsel until after Mr. Epstein was already
sentenced in the state case.
(a) Over the next two months, Mr. Sloman refused to negotiate these terms. They
ultimately became incorporated into the final deferred prosecution agreement.
See Tab 21, September 24, 2007 Non-Prosecution Agreement, T117-11.
(b) It was not until seven months later, in February 2008, that Epstein's lawyers were
able to take their first official statement from one of the women FAUSA Sloman
alleged were minor victims of federal offenses.
(c) This statement, a deposition of the initial complainant in the state
case, taken in the presence of her lawyer, proved that none of the necessary
elements for any federal charge could be satisfied based on brief
contact with Mr. Epstein. The witness also admitted lying to Mr. Epstein,
testifying that she told him that she was an adult  and wanted him to believe that
she was an adult. See Tab 13,_____________________(deposition), p. 35 ("Q. So you
told Jeff that you were 18 years old, correct? A. Yes."), 37 ("Q. You wanted Mr.
Epstein to believe that you really were 18, right? A. Correct.").
(d) Shortly after this deposition, the defense was able to obtain statements from other
women on Mr. Sloman's so called "list of § 2255 victims" and, so far, all such
statements also continue to demonstrate that Mr. Sloman's repeated
representations to the defense about the existence of federal jurisdiction were
false.
understand that Villafana was recently reprimanded at a special hearing convened by a United States District
Judge in the West Palm Beach Division of the Southern District of Florida, for making misrepresentations
during a prior sentencing proceeding.
3 In fact, Stephanie Thacker, a former deputy to CEOS Chief Drew Oosterbaan, has stated that she knew of no
other case like this being prosecuted by CEOS.
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12. In August 2007, in a clear attempt to coerce a state settlement, Ms. Villafana threatened
to broaden the investigation to include a money laundering violation (18 U.S.C. § 1956),
though all the funds expended were simply Mr. Epstein's, and a violation for operating an
unlicensed money-transmitting business (18 U.S.C. § 1960), though Mr. Epstein never
had such a business. See Tab 22, August 31, 2007 Letter from M. Villafana to Ross
(reciting, in a target letter to one of Epstein's employees, that the investigation concerns
"suspected violations of federal law, including but not limited to, possible violations of
Title 18, United States Code, Sections . . . 1591, . . . 1956, 1960 . . . .") (emphasis
added).
13. On the very same day that the grand jury issued subpoenas to the records-custodian and
employees of Epstein's businesses for all financial transactions from 2003 forward, Ms.
Villafana (who we were told was not authorized to act in this regard without supervisory
approval) promised to close the money-laundering investigation "if the sex offense case
is resolved." See Tab 23, August 16, 2007 Letter from M. Villafana to G. Lefcourt ("In
other words, if the sex offense case is resolved, the Office would close its investigation
into other areas as well. The matter has not been, and it does not appear that it will be,
resolved so the money laundering investigation continues, and Request Number 6
[seeking records of every financial transaction conducted by Epstein and his six
businesses from "January 1, 2003 to the present"] will not be withdrawn.").
14. Two weeks later, when Mr. Epstein continued to oppose federal prosecution during
negotiations and Mr. Epstein's counsel sought a meeting with the United States Attorney,
AUSA Villafana then classified all of Mr. Epstein's assistants as targets (sending a target
letter to one of them and promising the attorney of the other two that additional target
letters would be served on them as well), dispatched FBI agents to the homes of two of
his secretaries, and personally telephoned Mr. Epstein's largest business client to advise
him of the nature of the investigation. See Tab 22, August 31, 2007 Letter from M.
Villafana to
FAUSA Sloman Forces Mr. Epstein's Lawyers to Convince the State Prosecutors To
Impose a More Severe Sentence Than They Believe Is Appropriate
15. Throughout the plea negotiations with the USAO, Mr. Sloman and Ms. Villafana
continually insisted that the only way they would agree not to bring a federal indictment
was if Epstein's lawyers, not the state prosecutors as required under the Petite Policy,
convinced the state prosecutors to impose a more severe punishment than the state
believed was appropriate under the circumstances.
16. FAUSA Sloman's version of the history with respect to the sentence he required Mr.
Epstein's lawyers to seek from the State contradicts his later assertion, which is patently
false—that "the SDFL indicated a willingness to defer to the State the length of
incarceration" and "considered a plea to federal charges that limited Epstein's
sentencing exposure . .. " See Tab 1, May 19, 2008 Letter from J. Sloman. In fact, by a
email dated August 3, 2007, Criminal Division Chief Matthew Menchel advised the
defense that the federal government required a minimum term of two years of
incarceration. See Tab 40, August 3, 2007 Email from M. Menchel. Subsequently, Ms.
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Villafana emailed the defense stating that United States Attorney Acosta would accept no
less than 18 months of incarceration, following by a one-year term of house arrest.
Federal Prosecutors Misrepresented the Number of Alleged "Victims."
17. In September 2007, in order to add additional pressure on Mr. Epstein to execute a
deferred prosecution agreement, AUSA Villafana claimed that there were "40" minors on
the government's list of purported § 2255 victims. To compound that misleading
characterization, she continued to insist that a guardian-ad-litem be appointed to represent
these purported "minors" in the proceedings. See Tab 24, September 19, 2007 Email
from M. Villafana to J. Lefkowitz.
18. When challenged as to whether there was a genuine need for a guardian, given that Ms.
Villafana continued to refuse to disclose the names or any other information about her
putative list of "minors," she eventually conceded that only "I is definitely under 18 still,
and I think there is another minor." See Tab 25, September 23, 2007 Email from M.
Villafana to J. Lefkowitz (emphasis added).
19. The next day, AUSA Villafana retreated from the number "40," stating that she had now
"compiled a list of 34 confirmed minor victims with no definition of how they would be
considered as such.. There are six others, whose names we already have, who need to be
interviewed by the FBI to confirm whether they were 17 or 18 at the time of their activity
with Mr. Epstein." See Tab 26, September 24, 2007 Email from M. Villafana to J.
Lefkowitz (emphasis added). This statement indicated that, at least the "six others" (and,
as it turns out, all those identified except two) had reached the age of majority, and, in
fact, no guardian was necessary to represent their interests.
Defense Counsel was Falsely Advised That the Non Prosecution Agreement Would Be Kept
Confidential.
20. On September 24, Epstein and the USAO executed a Non Prosecution Agreement.
21. His attorneys asked Ms. Villafana to "please do whatever you can to keep this from
becoming public." See Tab 27, September 24, 2007 Email from J. Lefkowitz to M.
Villafana.
22. Ms. Villafana replied that she had "forwarded your message only to Alex [Acosta], Andy
[Lourie], and Rolando [Garcia]. I don't anticipate it going any further than that." Id.
23. Ms. Villafana stated that the agreement would be "placed in the case file, which will be
kept confidential since it also contains identifying information about the girls." Id.
The Prosecution Immediately Notifies Three Plaintiffs That Mr. Epstein Has Executed A
Non Prosecution Agreement
24. In direct violation of these representations, "shortly after the signing," the government
notified "three victims" of the "general terms" of the Non Prosecution Agreement. See
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(c)
KIRKLAND &ELLIS LLP
Tab 18, December 13, 2007 Letter from M. Villafana (admitting that the notification
occurred "shortly after the signing").
AUSA Villafana Misleads Mr. Epstein In An Attempt To Refer Plaintiffs to Her
Boyfriend's Close Friend
25. On September 25, Ms. Villafana recommended a local products-liability defense
attorney, Humberto "Bert" Ocariz, Esq., for the highly lucrative post of attorney
representative for the government's list of as-yet-undisclosed "victims."4
(a)
Ms. Villafana wrote to the defense, "I have never met Bert, but a good friend in
our appellate section and one of the district judges in Miami are good friends
with him and recommended him." See Tab 28, September 25, 2007 Email from
M. Villafana to J. Lefkowitz (bottom email) (emphasis added).
(b) Ms. Villafana failed to disclose that this "good friend in our appellate section"
was her live-in boyfriend. See Tab 18, December 13, 2007 Letter from M.
Villafana (conceding the "relationship" with "my boyfriend").
Beyond her clear conflict-of-interest and affirmative effort to conceal it, it is
unimaginable that AUSA Villafana would have engaged in an ex-parte
communication with a United States District Judge in the same district about the
details of a pending grand-jury investigation without prior disclosure and
supervisory approval.
(d) Later, it became clear that Ms. Villafana also had at least one other ex-parte
communication with that same United States District Judge about the grand jury's
investigation. See Tab 29, October 5, 2007 Email from M. Villafana to J.
Lefkowitz (stating that "one of the District Judges in Miami mentioned [retired
Judge Joseph Hatchett] as a good choice" to decide any fee disputes concerning
Epstein's paying for a lawyer to represent the unnamed women in claims against
Epstein).
26. The next day, AUSA Villafana advised the defense that she was removing one of the
alternatives to Mr. Ocariz from our consideration, on the basis that "one of his partners is
married to an AUSA here," and explained that, because of that personal relationship,
4
These actions were improper. As you know, the Department prohibits employees from using any nonpublic
information to secure private benefits of any kind: "An employee shall not ... allow the improper use of
nonpublic information to further his own private interest or that of another, whether through advice or
recommendation, or by knowing unauthorized disclosure." 5 C.F.R. § 2635.703 (emphasis added). Among
the examples of prohibited disclosure specifically illustrated by this regulation is the disclosure of nonpublic
information to "friends" to further their financial interests, id., at Example 1, and the disclosure of nonpublic
information to a newspaper reporter, id., at Example 5 (see allegations below regarding the leak to the New York
Times). Furthermore, the Justice Department prohibits its employees from using their position to benefit friends
or relatives. See 5. C.F.R. § 2635.702; see also 5. C.F.R. § 2535.502.
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"[t]here is too great a chance of an appearance of impropriety." See Tab 28, September
26, 2007 Email from M. Villafana to J. Lefkowitz.
27. The following day, Ms. Villafana relayed that, and asked us to respond to, the very first
concern raised Mr. Ocariz, which was "how are they going to get paid" and whether
"there is any cap or other limitation on attorney's fees that [Epstein] will pay in the civil
case." See Tab 30, September 27, 2007 Email from M. Villafana to J. Lefkowitz.
28. Ms. Villafana clearly contemplated that Mr. Epstein would be paying for Mr. Ocariz at
his "hourly rate" to represent the alleged "victims" against Epstein even "if all [the] girls
decide they want to sue." Id.
29. When the defense complained of Ms. Villafana's undisclosed conflict-of-interest in
selecting her boyfriend's friend to prosecute civil claims against Mr. Epstein on behalf of
her undisclosed list of purported "victims," Ms. Villafana later argued that Mr. Epstein
had no right to complain because "the Non-Prosecution Agreement vested the Office with
the exclusive right to select the attorney representative." See Tab 18, December 13, 2007
Letter from M. Villafana. Shortly after being notified, however, United States Attorney
Acosta removed Mr. Ocariz from consideration, and requested an amendment to the Non
Prosecution Agreement.
30. In response to the many complaints about Ms. Villafana's misconduct and violations of
the United States Attorney's Manual, Criminal Division Chief Matthew Menchel
characterized her as "unsupervisable."
31. Contrary to the express agreement of United States Attorney Acosta that the federal
government would not interfere in the administration of any state sentence, FAUSA
Sloman continued to try to deny the right of the State to issue work release and/or gain
time by stating that Mr. Epstein must "make a binding recommendation that the Court
impose" a sentence of 18 months of continuous confinement in the county jail. See Tab
21, September 24, 2007 Non Prosecution Agreement. Shortly thereafter, Mr. Sloman
sent the FBI to meet with the state sex-crimes prosecutor in an attempt to secure her
commitment to oppose a work release option.
FAUSA Sloman Attempts to Thwart Discovery
32. On October 31, Mr. Sloman emailed Mr. Epstein's counsel, confirming that "I understand
that the plea and sentence will occur on or before the January 4th [2008] date." See Tab
41, October 31, 2007 Email from J. Sloman to J. Lefkowitz (emphasis added).
33. On November 5, despite Mr. Sloman's having sent that email just one week before, after
learning that the defense had begun to question women on their "list," Mr. Sloman wrote
Mr. Epstein's attorneys demanding that his plea and sentencing in the State case now be
moved up to November 2007. See Tab 2, November 5, 2007 Letter from J. Sloman.
34. Mr. Sloman further demanded in the letter that Mr. Epstein's attorneys "confirm that
there will be no further efforts to contact any victims" until the victims are represented by
counsel. Id. As the women were all adults, there could be no lawful justification for Mr.
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Sloman's demand, other than to protect prospective plaintiffs from being interviewed
prior to their retaining an attorney (including, as it turned out, Mr. Sloman's former law
partner) to bring civil lawsuits against Epstein.
35. Mr. Sloman also demanded that Epstein "begin his term of incarceration not later than
January 4, 2008," id., which turned out to be just three weeks before the first civil lawsuit
would be filed against Epstein.
36. Contrary to the express agreement of United States Attorney Acosta that the federal
government would not interfere in the administration of any state sentence, Mr. Sloman
tried to limit gain time and or work release by stating that Mr. Epstein must "make a
binding recommendation that the Court impose a sentence of 18 months of continuous
confinement in the county jail." Id. (This followed Mr. Sloman's position that the Office
would consider a state sentence ordering probation in lieu of incarceration to be a breach
of the deferred-prosecution agreement.) Shortly thereafter, Mr. Sloman sent the FBI to
meet with the state sex-crimes prosecutor in an attempt to secure her commitment to
oppose work release.
37. Mr. Sloman insisted that Mr. Epstein not learn the identities of the government's list of
alleged "victims" until after Epstein was sentenced and incarcerated.
38. We have reason to believe that, around this same time, Mr. Sloman's former law partner,
Jeffrey Herman, had met with the father of one of the prospective plaintiffs, Saige
Gonzalez.5 At the same time (and until as recently as March of 2008), the Official
Florida Bar website continued to identify Mr. Sloman as a named partner in Mr.
Herman's firm. See Tab 31, Florida Bar Website page.
39. Mr. Herman, who is the named partner in the former firm of Herman, Sloman,
Mermelstein, filed five lawsuits, each asking for $50 million, against Mr. Epstein. Each
lawsuit is entitled "Jane Doe # vs. Jeffrey Epstein," despite the fact that each of the
plaintiffs is an adult and not entitled to plead anonymously. See Tab 32, Examples of
Federal Complaints.
40. Mr. Herman convened press conferences contemporaneously with filing three of the
suits. In the most recent press conference, he admitted that all of the plaintiffs lied to
Epstein about their ages. See Tab 33, Herman Public Statement. One of the supposedly
traumatized "victims" actually pled in her complaint that she returned to Epstein's house
"on many occasions for approximately three years." Another of these supposedly
traumatized "victims" herself acted to introduce her friends and acquaintances to Mr.
5
The Justice Department rules disqualify employees from working on matters in which their former employers
have an interest: "an employee shall be disqualified for two years from participating in any particular matter
in which a former employer is a party or represents a party if he received an extraordinary payment from
that person prior to entering Government service. The two-year period of disqualification begins to run on the
date that the extraordinary payment is received." 5 C.F.R. § 2635.503(a) (emphasis added).
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Epstein. All of these plaintiffs are apparently on the above-described government
"victim" list.
FAUSA Sloman Attempts to Encourage Civil Suits and the Hiring of the Government's
Choice of Attorney
41. On November 27, Mr. Sloman sent an email to Mr. Epstein's attorneys stating that "I
intend to notify the victims by letter after COB Thursday [two days later]." See Tab 34,
November 27, 2007 Email from J. Sloman to J. Lefkowitz.
42. The morning of November 28, attorneys for Mr. Epstein faxed a letter to Assistant
Attorney General Alice Fisher, requesting a meeting with her to discuss the impropriety
of the USAO's encouraging civil lawsuits against Mr. Epstein under the guise of the
terms of the Non Prosecution Agreement. See Tab 35, November 28, 2007 Letter from
K. Starr to A. Fisher.
43. Late in the day on November 28, Epstein's attorneys received from AUSA Villafana a
copy of the USAO's proposed victim-notification letter that "Jeff [Sloman] asked that I
forward." See Tab 36, November 28, 2007 Email from M. Villafana to J. Lefkowitz.
(a) The proposed victim-notification letter cited as authority the "Justice for All Act
of 2004" (which U.S. Attorney Acosta later agreed had no application to these
circumstances). It referred to the addressees as minor "victims," suggested they
make statements in state court, that they were not entitled to make, and referred
incorrectly to Mr. Epstein as a "sexual predator." Id.
(b) FAUSA Sloman also proposed advising recipients, in an underlined sentence that,
"You have the absolute right to select your own attorney" to "assist you in making
. . . a claim" for "damages from [Epstein]." But that "[i]f you do decide to use
[two attorneys selected by the U.S. Attorney's "special master"] as your attorneys,
Mr. Epstein will be responsible for paying attorney's fees incurred during the time
spent trying to negotiate a settlement." Id.
The USA() Leaks Confidential Information to the New York Times
44. Perhaps most troubling of all, the USAO has repeatedly leaked information about this
case to the media—including to Landon Thomas, the senior business correspondent for
the New York Times. We have personally reviewed Mr. Thomas's own notes, and they
are remarkably detailed about highly confidential aspects of the prosecution's theory of
the case and the plea negotiations.
45. Mr. Thomas's calls to the USAO initially were referred to Assistant United States
Attorney David Weinstein. AUSA Weinstein informed Mr. Thomas that federal
authorities were considering charging Mr. Epstein under 18 U.S.C. §§ 1591, 2422 and
2423, and told the reporter that Mr. Epstein had both lured girls over the telephone and
traveled in interstate commerce for the purpose of engaging in sex with minors. AUSA
Weinstein also divulged the terms and conditions of the USAO's negotiations with Mr.
Epstein—including the fact that Mr. Epstein had proposed "house arrest" with extra
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stringent conditions—which Mr. Weinstein could only have learned from FAUSA
Sloman, AUSA Villafana or United States Attorney Acosta himself.
46. AUSA Weinstein then asked why Mr. Epstein should ... be treated differently than
anyone else. Mr. Thomas apparently stated that he understood that there was evidence
that the women had lied about their ages. AUSA Weinstein replied that this was not a
defense and that Mr. Thomas should not believe "the spin" of Mr. Epstein's "high-priced
attorneys." Indeed, Mr. Weinstein told Mr. Thomas that the USA() was very concerned
about a Palm Beach editorial that questioned whether Mr. Epstein would receive a rich
man's justice. AUSA Weinstein then stated that, in fact, Mr. Epstein "doesn't have a
defense."
47. Mr. Epstein's attorneys learned of the call and complained to the USAO. Counsel for
Mr. Epstein then had an in-person meeting with FAUSA Sloman and United States
Attorney Acosta describing these leaks to the New York Times. During Mr. Thomas' next
call to the USAO, made two weeks later, AUSA Weinstein "admonished" him (in the
words of Mr. Thomas) for disclosing the contents of their prior conversation to the
defense, and strongly "reminded" Mr. Thomas that AUSA Weinstein's prior comments
about Mr. Epstein had only been "hypothetical" in nature. That claim is sheer nonsense:
AUSA Weinstein had disclosed specific details of Mr. Epstein's case, including plea
terms proposed by the defense, as revealed based on Mr. Thomas's own
contemporaneous hand-written notes.
48. Shortly thereafter, Mr. Sloman wrote to the defense that Mr. Thomas was given, pursuant
to his request, non-case specific information concerning specific federal statutes." See
Tab 37, February 27, 2008 Email from J. Sloman. Again, that claim was utterly false;
Mr. Thomas's contemporaneous hand-written notes, reviewed by Jay Lefkowitz, confirm
that the USAO had violated settled Department policy and ethical rules by providing
case-specific information about the Department's legal theories and plea negotiations.
Conclusion
We bring these difficult and delicate matters of misconduct to your attention not to
require any disciplinary action or review by the Office of Professional Responsibility. Although
we have been told that some of this misconduct has been self-reported (only after we raised these
complaints in writing), we feel confident that not all the facts were adequately presented. Rather,
we believe that they are highly relevant to your decision whether to authorize a federal
prosecution in this case. This pattern of overzealous prosecutorial activity strongly suggests
improper motives in targeting Jeffrey Epstein, not because of his actions (which are more
appropriately the subject of state prosecution), but, rather, because of who he is and who he
knows. We also bring this pervasive pattern of misconduct to your attention because we believe
it taints any ongoing federal prosecution. The misconduct pervades the evidence in this case.
The offers of financial inducement to witnesses, improperly encouraged by the government,
make their potential testimony suspect. The reliance on tainted evidence gathered by the state
will require a careful sorting out of poisonous fruits.
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Most important, however, is that the extraordinary nature of this misconduct, so unusual
in ordinary federal prosecutions, raises the gravest of concerns about why prosecutors would go
to such lengths in a case already being prosecuted by the State and with so little, if any, federal
concern. Accordingly, we ask you to conduct your own investigation of these matters, because
we believe that what we have provided you may constitute only the tip of a very deep iceberg.
Without the power of subpoena, which we currently lack, we are unable to dig deeper. We
strongly believe that there is far more exculpatory evidence that has not been disclosed, more
leaks that we have not yet uncovered and more questionable behavior. This is a case that cries
out for a deeper investigation than we are capable of conducting, before any decision to
prosecute is permitted.
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RESPONSE TO
FAUSA
SLOMAN'S LETTER
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Response to Letter by FAUSA Sloman Dated May 19, 2008
In a May 19, 2008 letter to Jay Lefkowitz (See Tab 1), SDFL First Assistant U.S.
Attorney Jeffrey Sloman provided what purported to be a summary of the events that have
occurred during the investigation of Mr. Epstein. Mr. Sloman's letter is fraught with
inconsistencies, false and misleading characterizations and outright falsehoods. The comparison
below between the false assertions in Mr. Sloman's letter and what actually transpired is only the
tip of the iceberg. We respectfully submit that Mr. Sloman's letter alone demonstrates the
degree to which the record of facts have been distorted and these distortions have permeated this
unprecedented investigation.
1. "INDEPENDENT" AND "DE NOVO" REVIEW.
Mr. Sloman's Letter:
• "[W]e obliged your request for an independent de nova review of the investigation and
facilitated such review at the highest levels of the Department of Justice. " Tab 1, May
19, 2008 Letter from J. Sloman, p. 5, 1 3.
The Truth:
• CEOS' review, concluded in May 2008, was neither independent nor de nova.
o CEOS' review was not "independent:"
• Drew Oosterbaan, who conducted the review on behalf of CEOS, had
already reviewed the prosecution memo on this matter eight months
earlier. During a meeting with defense counsel at the United States
Attorney's Office in Miami (the "USAO") in September of 2007, he
opined that he so believed in the prosecution that he "would try the case
myself."
• Indeed, Mr. Sloman acknowledges that Mr. Oosterbaan had previously
opined on this matter, stating:
This particular attack on this statute [18 U.S.C. § 2242(b)]
had been previously raised and thoroughly considered and
rejected by . . . CEOS prior to the execution of the
[Deferred Prosecution] Agreement [in September 2007].
Id., p. 5 (emphasis added).
• The statute Mr. Sloman referred to (§ 2422(b)) lies at the heart of the
Epstein investigation. Thus, according to Mr. Sloman, Mr. Oosterbaan
was tasked with reviewing his own prior decision regarding applying the
key statute under which the SDFL proposed prosecuting Mr. Epstein.
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• The defense immediately raised concerns regarding the non-independence
of the review when told that it would be Mr. Oosterbaan tasked with
providing the review, but was told that when Mr. Oosterbaan rendered his
prior opinion, "he was not really up to speed on the facts"
o CEOS' review was not de novo:
• By letter dated May 15, 2008 (four days before Mr. Sloman's letter), Mr.
Oosterbaan advised Mr. Lefkowitz that CEOS reviewed the matter only
for abuse of discretion:
[T]he question we sought to answer was whether U.S.
Attorney Acosta would abuse his discretion if he
authorized prosecution in this case.
See Tab 38, May 15, 2008 Letter from D. Oosterbaan, p. 1 (emphasis
added). See also, id., p. 2 ("Mr. Acosta would not be abusing his
discretion if he decided to pursue such a course of action."); and p. 5
("Mr. Acosta would not be abusing his prosecutorial discretion should he
authorized federal prosecution of Mr. Epstein.").
• For the factual record of its "abuse of discretion" review, CEOS relied on
the very same prosecution memo that it had already reviewed in rendering
its prior opinion, stating:
As you know, our review of this case is limited, both factually and
legally. We have not looked at the entire universe of facts in this
case.
See Id., p. 1 (emphasis added).
• Nor did CEOS review any facts related to the irregular provisions in the
Deferred Prosecution Agreement or the numerous complaints of
prosecutorial misconduct, both of which are inextricably intertwined with
the impropriety of the investigation. Id. at 1.
2. NOTIFICATION OF WITNESSES.
Mr. Sloman's Letter:
• Mr. Sloman dismissed the totality of the defense's objections to the inappropriate
notification the SDFL proposed to send to its witnesses, stating merely that:
"[Y]ou objected to victims['] being notified of time and place of Epstein's
state[-]court sentencing hearing."
2
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See Tab 1, May 19, 2008 Letter from J. Sloman, p. 4, 'ff 1.
The Truth:
• The defense engaged in days of negotiation and made 14 separate substantive objections
to the unprecedented notification letter that Mr. Sloman threatened to send to an
undisclosed list of "victims." The eventual transmission of this highly misleading letter
was only halted by an appeal to AAG Fisher. Among those substantive objections
(which related to far more than the "time and place" of the state's sentencing hearing)
were:
o Sending the letter would contravene the government's commitment to take no
position regarding potential claims of government witnesses. See Tab 39,
November 28, 2008 Email from J. Lefkowitz to J. Sloman.
o The letter cited to an inapplicable statute (the Justice for All Act of 2004) as its
justification for being sent. Id. AUSA Acosta later conceded that the citation to
this statute as a justification was wholly incorrect.
o The letter wrongly advised all recipients that Mr. Epstein would be required to
register as "a sexual predator for the remainder of this life."
o The letter amounted to an invitation to civil litigation against Mr. Epstein,
advising recipients that they had the right to seek civil damages from Mr. Epstein,
and in an underlined instruction, stated that if they chose an attorney other than
the one chosen by the government they would be required to pay his fees, but if
they chose the government's choice, Mr. Epstein would be required to pay the
fees.
3. MISCHARACTERIZATION OF OUR ARGUMENTS.
Mr. Sloman's Letter:
• Mr. Sloman's letter misleadingly characterizes our substantive defense of the
government's investigation as, "the investigation merely produced evidence of relatively
innocuous sexual conduct with some minors who, unbeknownst to Mr. Epstein,
misrepresented their ages."
See Tab 1, May 19, 2008 Letter from J. Sloman, p. 2.
The Truth:
• We never made such a claim. To the contrary, we argued that sworn statements we have
taken of the alleged victims demonstrate that law enforcement has presented versions of
their testimony that are necessarily sensationalized and fictionalized. We presented
3
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evidence that Mr. Epstein routinely and daily receives massages from adults. Only a
small percentage of the masseuses turned out to be minors. The majority of those minors
interviewed by law enforcement admitted to lying directly to Epstein about their ages
(not "unbeknownst to Epstein"), and inventing further false details to substantiate their
lies. Indeed, the civil attorney for several of these women admitted at his recent press
conference that they lied to Mr. Epstein about their ages. Numerous witnesses testified
that Mr. Epstein asked that all masseuses be over the age of 18. Further, the evidence is
undisputed that Mr. Epstein's assistants scheduled the massages and Mr. Epstein did not
know which masseuses his assistants had scheduled on a particular day, until the massage
took place. We admitted that there was sexual conduct, and argued—not that it was
"innocuous" as Mr. Sloman alleges—but that it was mostly Mr. Epstein's own self-
pleasuring, which did not satisfy the requisite federal element of criminal sexual conduct
(which is, in turn, defined by state law). These are important distinctions and show that
Mr. Sloman has misrepresented the record about the most basic part of our defense.
4. SLOMAN DEMANDS AN UNREALISTIC DEADLINE TO COMPLY WITH AN
AGREEMENT HE UNILATERALLY MODIFIES.
Mr. Sloman's Letter:
• "Unless [Mr. Epstein] complies with all of the terms and conditions of the [Deferred
Prosecution] Agreement, as modified by the United States Attorney's December 19,
2007 letter to Ms. Sanchez by close of business on Monday, June 2, 2008, the SDFL will
elect to terminate the Agreement." Id., p.1
The Truth:
• The Deferred Prosecution Agreement was never modified by U.S. Attorney Acosta's
December 19, 2007 letter. Oddly, Mr. Sloman acknowledges this on page 4 of his May
19 letter, where he writes that Mr. Acosta "proposed" this modification and that "[Mr.
Lefkowitz] rejected these proposals." Thus, Mr. Sloman is threatening to terminate the
Deferred Prosecution Agreement, unless Mr. Epstein complies with a unilateral
modification that Mr. Sloman concedes was never agreed to by defense counsel.
• Orchestrating the information, plea and sentencing requirements of the Deferred
Prosecution Agreement within the extremely limited two-week timeframe imposed by
Mr. Sloman's June 2, 2008 deadline would have been difficult enough.
• More importantly, as explained below, the SDFL has refused to provide the defense with
information it requires to enable Mr. Epstein to comply with the additional plea and
sentencing requirements of the Deferred Prosecution Agreement (let alone, by the June 2
deadline arbitrarily imposed by Mr. Sloman).
o The Deferred Prosecution Agreement requires Mr. Epstein to plead guilty to and
be sentenced for an additional offense which requires that he be registered as a
sex offender. In different places in his May 19, 2008 letter, Mr. Sloman
4
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describes the additional charge to which Mr. Epstein is required to plead guilty
under the Deferred Prosecution Agreement as "procurement of minors to engage
in prostitution" or "solicitation of minors to engage in prostitution." The former
is an offense for which Mr. Epstein would be required to register, but one for
which the state has no evidence to charge Mr. Epstein and the SDFL refuses or is
unable to provide evidence that it claims it has. The latter requires no
registration, but it is the offense which, over and over again, Ms. Villafana
insisted upon including in the Deferred Prosecution Agreement, and is one which
the State believes is appropriate. The inconsistency between the description of
the offense required by the SDFL, the elements of an offense that can be justified
on the facts of this case and the SDFL's requirement that the offense be a
registrable one has created substantial confusion.
o As a result of this confusion, in December 2007, both the defense and the state
requested that the SDFL provide the factual allegations to enable Mr. Epstein and
the State to create a truthful factual recitation of a registrable offense required by
the Deferred Prosecution Agreement, but, to date, the SDFL has failed to do so
without any explanation.
• Mr. Sloman refuses to provide the requested factual allegations, which the State cannot
furnish, and now demands a two week deadline to comply. Thus Mr. Sloman has
unreasonably imposed a deadline with which he himself has made it impossible for Mr.
Epstein to comply.
5. WAIVER OF APPEAL TO ASSISTANT ATTORNEY GENERAL FISHER.
Mr. Sloman's Letter:
• "[T]he SDFL provided you with 30 days to appeal the decision to the Assistant Attorney
General of the United States Alice Fisher" and "you chose to forego an appeal to AAG
Fisher."
Id., p. 2.
The Truth:
• Mr. Acosta tolled an August 17 deadline, acknowledging that there were "serious issues"
about the case that needed to be discussed, and scheduled a meeting with the defense for
September 7, 2007. At the September 7, 2007 meeting, with Drew Oosterbaan in
attendance, the government dismissed the defense's objections and set a September 21,
2007 deadline to finalize a non-prosecution agreement or the defense would face an
already-drafted 53-page indictment, purportedly identifying 40 minors, with a guideline
range of 188 months.
• Facing Ms. Villafana's threatened draconian indictment, without the claimed offer of the
right to raise objections in an appeal to AAG Fisher, the defense chose to negotiate an
5
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Agreement to Defer Prosecution to the State, an agreement without precedent and fraught
with substantial practical and legal hurdles to its implementation.
6. THE SDFL DID NOT DEFER TO THE STATE.
Sloman's Letter:
• "[T]he SDFL indicated a willingness to defer to the State the length of incarceration."
Id., p. 2.
The Truth:
• The SDFL neither deferred to the State, nor even discussed with the State, the length of
Mr. Epstein's incarceration. In a letter to the defense, Criminal Division Chief, Matthew
Menchel rejected the sentence contemplated by the State's plea agreement, writing that
"the federal interest will not be vindicated in the absence of a two-year term of state
imprisonment." See Tab 40, August 3, 2007 Email from M. Menchel. Of course, this
position is contrary to Section 9-2031D of the U.S. Attorney's Manual (indicating that
the "result" of a state prosecution is "presume[d]" to have vindicated the federal interest).
It is understandable, therefore, that Mr. Sloman might want to retreat from it now.
Indeed, the final Deferred Prosecution Agreement (DPA) restricts the state-court judge
from exercising any of his rightful discretion and to specifically prohibit the judge from
offering probation, community control or any other alternative in lieu of incarceration.
DPA, 2(a).
7. SUGGESTION OF ADDITIONAL STATE PLEA
Mr. Sloman's Letter:
• The parties considered: "as suggested by [the defense], a plea to state charges
encompassing Epstein's conduct." See Tab 1, May 19, 2008 Letter from J. Sloman, p.2,
I 2.
The Truth:
• It was the government, and not the defense, that suggested a plea to state charges to
resolve the federal investigation. Andrew Lourie proposed declining prosecution in favor
of the state. Although Mr. Epstein and the State Attorney's Office had already reached
a plea agreement, in August 2007, Mr. Sloman and AUSA Marie Villafana warned that
they intended to prosecute Epstein federally unless his counsel (i.e., not the U.S.
Attorney's Office) sought more stringent conditions to the State's proposed plea
agreement. These stringent conditions included, among other things, the two-year prison
term demanded by Mr. Menchel (discussed above) and a charge requiring him to register
as a sex offender.
6
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8. ALL IDENTIFIED VICTIMS BE PUT IN SAME POSITION AS IF EPSTEIN
HAD BEEN TRIED.
Mr. Sloman's Letter:
• "The Agreement provides for a method of compensation for the victims such that they
would be placed in the same position as if Epstein had been convicted of one of the
enumerated offenses set forth in Title 18, United States Code Section, 2255."
Id.
The Truth:
• Mr. Sloman continues to mischaracterize the highly irregular provisions of the Deferred
Prosecution Agreement. The SDFL did not merely attempt to preserve the compensation
rights of those it identified as victims; it attempted to create compensation rights for those
it identified, without imposing on them the burden of proving that they were in fact
victims under § 2255.
o In the Deferred Prosecution Agreement, the SDFL required Mr. Epstein to waive
the right to contest liability under 18 U.S.C. § 2255 as to a list of individuals that
the SDFL would not disclose to Mr. Epstein until after he was sentenced and to
pay for an attorney to secure compensation under § 2255 for those undisclosed
individuals, or if they decided to sue Mr. Epstein.
o § 2255 ordinarily provides individuals with a right to recover minimum guaranteed
damages of $150,000, without having to prove actual damages, only if: (1) they
were victims of an enumerated federal offense, including offenses under 18 U.S.C.
§§ 2422 and 2423, (2) they were minors at the time of the offense, and most
importantly (3) they were personally injured as a result of the offense.
o The defense has confirmed examples of women who testified that they were not
victims of Mr. Epstein and suffered no personal injury. These women were,
nevertheless, on the list of "victims" identified by the government.. In fact, when
confronted with the testimony of a women who denied both being a victim and
incurring personal injury, Ms. Villafana actually acknowledged such testimony.
To justify inclusion of that woman on the government's list, however, Ms.
Villafana then challenged her own witness's credibility.
• For this reason, it is false to state that these "identified" individuals are in the same
position that they would have been had Epstein been convicted at trial. Had there been a
trial, Mr. Epstein would have had a right to confront these individuals through cross-
examination. Any individual that did not establish that she was a minor victim of conduct
that satisfied each element of an enumerated statute under § 2255,or that she suffered
personal injury, would not qualify for any treatment under § 2255. However, under the
Deferred Prosecution Agreement, as an "identified individual" on the government's list,
7
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this same individual would nevertheless be entitled to engage an attorney paid for by Mr.
Epstein to recover $150,000 of damages from Mr. Epstein under § 2255 without ever
alleging any injury. In fact, the defense was told that the only question Mr. Epstein
would be permitted to ask before paying the girls is " have you ever met Epstein.". Thus,
the Deferred Prosecution Agreement places identified individuals in a far better position
than they would be in if Mr. Epstein were convicted at trial.
9. ASSIGNMENT OF RIGHT TO SELECT LEGAL REPRESENTATIVE.
Mr. Sloman's Letter:
• "Prior to any issues arising concerning the implementation of the 2255 provision, the
SDFL unilaterally agreed to assign its responsibility to select the attorney representative
for the alleged victims to an independent third-party."
See Tab 1, May 19, 2008 Letter from J. Sloman, p. 4, f.3.
The Truth:
• That such an assignment was the SDFL's "unilateral" decision is false. Before the
SDFL decided to assign selection of the "attorney representative" to an independent third
party, AUSA Marie Villafana had already proposed an "attorney representative." She
had proposed local products-liability lawyer, Humberto Ocariz, and claimed he had been
recommended by a "good friend in the Appellate Division." Ms. Villafana's account was
misleading, as it omitted that this "good friend" was her live-in boyfriend, and that Mr.
Ocariz was his former law-school roommate. When we discovered this independently,
we objected. Only then did the SDFL propose assigning the selection process to an
independent special master and agree to amend the Deferred Prosecution Agreement.
Thus, while it may be true that the SDFL assigned its selection responsibility to avoid the
appearance of favoritism, it did not do it "unilaterally," but, rather, only after Epstein
uncovered the Office's misleading disclosure and apparent conflict-of-interest.
10. TIMETABLE FOR MOVING FORWARD.
Mr. Sloman's Letter:
• "On February 25, 2008, I sent you an e-mail setting forth a timetable for moving forward
in the event that CEOS disagreed with your position. That time is now."
Id. , p. 6.
The Truth:
• Mr. Sloman provides only part of the history of this case in order to justify his improper
actions. He had stated he would close the investigation if CEOS told him to. However,
CEOS at our very first contact said that under no circumstances did they see that as their
8
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IURKLAND &ELLIS LLP
role. They said they would only advise on an abuse of discretion standard. Making the
outcome a foregone conclusion. Furthermore, in response to the February 25 e-mail,
which attempted to establish a schedule to limit the entire review process (the defense has
repeatedly suggested that the misconduct was intertwined with the investigation and
would therefore seek higher review), Mr. Lefkowitz e-mailed Mr. Acosta directly. On
February 29, 2008, Mr. Sloman responded to Mr. Lefkowitz's e-mail to Mr. Acosta,
stating that Mr. Sloman was acting out of frustration, but "[p]lease be assured that it has
not, and never has been, this Office's intent to interfere or restrict the "review process"
for either Mr. Epstein or CEOS. I leave it to you and CEOS to figure out how best to
proceed and will await the results of that process." As stated above, CEOS determined
that it would not review many of the defense's objections and as to the remainder of those
objections, its review would be limited (contrary to Mr. Acosta's assurances), which left
the need, supplemented by the defense's subsequent request, for a more thorough review
of critical issues by others at the Department of Justice. Mr. Sloman's re-imposition of
the (albeit modestly extended) timetable was an obvious attempt, in violation of his
February 29 agreement, to thwart the request made by the defense to the Deputy Attorney
general, to complete the review process that Mr. Acosta had promised.
11. "DELAY."
Mr. Sloman's Letter:
• In a section entitled "Delay," Mr. Sloman states that "the SDFL again agreed to
accommodate Epstein's request to appear in state court for plea and sentencing on
January 4, 2008."
Id.,p. 3.
The Truth:
• Curiously, Mr. Sloman fails to mention correspondence from the U.S. Attorney stating
that delay of that date would be "inevitable" as the defense has raised "serious questions"
about the propriety of the prosecution. Strikingly, in that same section, Mr. Sloman
claims that "the Agreement did not contemplate a staggered 'plea and sentencing,"
despite quoting, three sentences earlier, from the Agreement's staggered requirement
that Epstein plead and be sentenced by October 26, and "begin serving his sentence not
later than January 4, 2008."
We are, like most attorneys seeking Depai___Luient review, without access to the USAO
prosecution summaries or other submissions to the Department. Given the substantial issues that
have been raised in this and other submissions, we request that you conduct a de novo review
that goes beneath the face of any conclusions being advocated by the USAO; instead, we seek a
review that is based on the transcripts of witness testimony themselves so that the reviewer can
9
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make an independent decision not adversely affected by conclusions that over and over have
proven, witness by witness, allegation by allegation, to be inaccurate and unwarranted and not an
appropriate basis for the exercise of federal prosecutorial authority.
10
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THACKER
RESPONSE TO
CEOS'S LETTER
HOUSE OVERSIGHT 012182
GEORGE G. GUTHRIE
ROBERT B. ALLEN
REBECCA A. BETTS
R. TERRANCE RODGERS
DAVID B. THOMAS
JAMES S. ARNOLD
DAVID J. HARDY
WM. SCOTT WICKLINE
PAMELA L. CAMPBELL
PAMELA C. DEEM
PHILIP J. COMBS
STEPHANIE D. THACKER
BRYANT J. SPANN
TERESA K. THOMPSON
DEBRA C. PRICE
CHRISTOPHER S. ARNOLD
CHRISTOPHER D. PENCE
PETER G. MARKHAM
ZACKARY B. MAZEY
OF COUNSEL
THOMAS E. McHUGH
LAW OFFICES
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC
P. 0. BOX 3394
CHARLESTON, WEST VIRGINIA 25333-3394
500 LEE STREET, EAST, SUITE 800
CHARLESTON, WEST VIRGINIA 25301
June 19, 2008
Mr. John Roth
Senior Associate Deputy Attorney General
Office of the Deputy Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Mr. Roth:
FACSIMILE
WRITERS DIRECT DIAL
e-mail: I 6
I write to offer my reaction to the May 15, 2008 correspondence from the United States
Department of Justice Child Exploitation and Obscenity Section ("CEOS") regarding the federal
investigation of Jeffrey Epstein by the United States Attorney's Office for the Southern District of
Florida ("USAO").1 I will refrain from recounting Mr. Epstein's arguments in detail here, but,
rather, will highlight salient points responsive to the CEOS letter.
In particular, I write from a background well familiar with child exploitation cases and
victim/witness issues. As the CEOS letter points out (CEOS letter at p. 3), I was a member of
CEOS. In fact, I served as a federal prosecutor for twelve years; five years as an Assistant United
States Attorney for the Southern District of West Virginia, and seven years at CEOS. I began
working as a trial attorney for CEOS in 1999, and was promoted to Deputy Chief for Litigation in
2002, and ultimately to Principal Deputy Chief for the Section in 2004.
As those who have worked with me know, I have a history of working diligently on behalf of
victims of crime. While at the United States Attorney's Office for the Southern District of West
Virginia, I was a part of the prosecution team that prosecuted the first case in the country under the
federal Violence Against Women Act. United States v. Bailey, 112 F.3d 758 (4th Cir.), cert denied,
522 U.S. 896 (1997). The case went to trial and the defendant was sentenced to life in prison. I also
spearheaded the domestic violence and federal criminal child support prosecution efforts for that
office, prosecuting some of the first cases in the country under the federal Child Support Recovery
1 Citations to the May 15, 2008 correspondence will be referenced herein as "CEOS letter at p. ."
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Mr. John Roth
June 19, 2008
Page 2
Act. Later, while at the Department of Justice, I co-authored the Department's Federal Child
Support Prosecution Handbook.
My work at CEOS permitted me to continue my efforts on behalf of vulnerable victims of
crime. While there, for example, I was part of the prosecution team in United States v. Dwight York,
428 F.3d 1325 (1 1thCir. 2005), cert denied, 548 U.S. 908 (2006). York was the leader of a pseudo
religious organization, and systematically molested countless children, some as young as six years
old. The case went to trial and York was sentenced to 135 years in prison. As part of that trial team,
I was awarded the Attorney General's Award for Distinguished Service. Additionally, at CEOS I
was one of the architects of the Innocence Lost Initiative, a nationwide initiative designed to combat
child prostitution. For this, I was awarded an Assistant Attorney General's Award for Outstanding
Victim/Witness Service. Likewise, I was awarded a subsequent Assistant Attorney General's Award
for Special Initiative in connection with a nationwide sex tourism prosecution initiative I helped to
develop.
I say all this not for any boastful purpose, but, rather, to make clear that I am fully cognizant
of victim issues, and that I am no pushover in terms of prosecution standards. I am also very well
aware of the good work of CEOS, and the outstanding credentials of those who toil in that office.
With all due respect to CEOS, however (and recognizing that their review of this case was
quite limited), given the facts and circumstances of this investigation, a federal prosecution of Mr.
Epstein simply should not be countenanced. In my view, such prosecution would be counter to the
important mandate of the Department of Justice as emblazoned on its seal, "Qui Pro DominaJustitia
Sequitur," referring to the Attorney General"who prosecutes on behalf of justice."
As you well know, it is fundamental to that mandate that, as the representative of the people
of the United States, the duty of a federal prosecutor is not simply to seek conviction as at any cost,
but, rather, to seek justice. Berger v. United States, 295 U.S. 78, 88 (1935). ("The United States
Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all.") While it is true
that Berger was decided at the post-trial, as opposed to the pre-indictment, stage of the case, the
bedrock principle contained in the above quote should transcend the entire investigation and
prosecution process. Indeed, it is arguably most imperative at the investigation stage, at which point
law enforcement is dealing with a presumptively innocent citizen.
In summary, we understand the allegations against Mr. Epstein to be that Mr. Epstein paid
individuals to find friends and acquaintances, certain of whom were under the age of 18, to provide
topless massages to him at his Palm Beach home in exchange for money. Mr. Epstein's assistants
allegedly scheduled these massages for him over the telephone at the direction of Mr. Epstein,
allegedly including some scheduling calls to underage women. However, the evidence contradicts
these allegations. First, Mr. Epstein did not ask that the masseuses be under the aca To the
contrary, he specifically asked that they be 18 or older. As one witness commented, said tell
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Mr. John Roth
June 19, 2008
Page 3
them you're 18 because if you're not, he won't let you in his house." Ir. at 38-39.
Second, Mr. Epstein himself did not schedule such appointments. Third, Mr. Epstein would not
know who would be providing a massage at any particular time. Fourth, and importantly, Mr.
Epstein's assistants were not directed to contact underage women, and were not aware of the true
ages of the women they contacted. In fact, more often than not, the masseuses themselves, or the
individuals who introduced the masseuses, made the initial contact. As a result, Mr. Epstein and his
assistants were routinely unaware of the identities of many of these young women before they
arrived.
The allegations further include the assertion that Mr. Epstein engaged in unlawful sexual
conduct with certain underage women who arrived at his house to provide a massage. At times,
during these massages, Mr. Epstein masturbated, engaged in some sexual touching, and a small
number of alleged acts of penetration. However, most of the women who performed massages on
Mr. Epstein were over the age of 18. Many of the young women have sworn under oath that they, in
fact, told Mr. Epstein that they were 18 or older, and that they did so because they knew that if they
were not 18 years old, they would not be allowed into Mr. Epstein's home. In fact, Mr. Epstein has
passed a polygraph examination to this effect relative to the government's primary, and youngest,
alleged victim, Indeed, many of the women also worked at local massage parlors,
which presumably had a requirement that the masseuse have reached the age of majority. To the
extent there are allegations that Mr. Epstein should have been alerted to certain underage women
based on conversations he allegedly had with them, those conversations would have taken place in
person and at his home, thereby precluding any prior scheduling with knowledge of their true ages.
As explained below, any factual allegations of repeat massages with such persons would lack
necessary elements required for a federal nexus to such conduct.
All of the alleged activity occurred in Mr. Epstein's home in Palm Beach, Florida. Many of
the massages allegedly involved conduct which, even if engaged in, is not proscribed by federal law,
either because the masseuses were of age, or because conduct with underage masseuses only
involved topless massages, massages in undergarments or naked massages. To the extent prohibited
sexual activity occurred, any inducement, enticement, and/or persuasion used would have taken
place during a face-to-face encounter—thus eliminating the possibility for the commission of a
federal crime, which requires the existence of a communication through a facility of interstate
commerce in which the defendant persuades or entices the minor to engage in illegal sexual activity.
Furthermore, any prohibited sexual activity that did occur based on the facts on the record is best left
to the state to address because the facts of this case do not fall comfortably within the federal
domain.
This is a case about purely local activity, involving local actors, and affecting local
interests and thus, should be handled by local authorities. Nonetheless, the USA() has indicated
its intent to prosecute Mr. Epstein for purported violations of 18 U.S.C. §§ 2422, 2423, and
1591. However, as set forth in detail in prior submissions, the facts of this case fall squarely
outside the heartland of those statutes — in fact, in law, and in congressional intent. As their plain
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Mr. John Roth
June 19, 2008
Page 4
text and history indicate, these statutes were designed to address problems that are truly national
and international in scope: human trafficking in § 1591; telephone or Internet sexual predation in
§ 2422; and sex tourism in § 2423. Unlike the alleged conduct at issue here, those problems
unquestionably present multi-jurisdictional obstacles that States and localities cannot confront
effectively on their own. Mr. Epstein's conduct was purely local in nature, and the State of
Florida and Palm Beach County are effectively prosecuting and punishing that conduct.
Although CEOS asserts, "that a prosecution of Mr. Epstein might not look precisely like the
cases that came before it is not dispositive" (CEOS letter at p. 4), the fact is this case does not look
anything like those cases. The facts here do not carry any of the hallmarks that typify an appropriate
federal prosecution •for child exploitation as reflected in all such prior federal prosecutions.
Specifically, the facts here do not carry the hallmarks for a sex trafficking or child prostitution
prosecution. Mr. Epstein did not target minors. In fact, the evidence indicates just the opposite.
There was no travel in interstate commerce for the purpose of engaging in illicit sexual activity.
There was no prohibited use of a facility of interstate commerce. There was no commercial for profit
sexual enterprise. There was no force. There was no violence. There was no use of drugs or
alcohol. There was no child pornography.
18 U.S.C. § 1591 is clearly designed to combat organized rings of individuals who engage in
the business of human trafficking, involving both a commercial and coercive component. As
President Bush has noted:
generally speaking, trafficking in persons refers to actions, often including the use of
force, fraud or coercion, to compel someone into a situation in which he or she will
be exploited for sexual purposes, which could include prostitution or pornography, or
for labor without compensation, which could include forced or bonded labor . . .
trafficking in persons is often linked to organized crime, and the profits from
trafficking enterprises help fund other illegal activities. The growth of vast
transnational criminal networks supported in part by trafficking in persons fosters
official corruption and threatens the rule of law.2
This in no way describes the case here. Yet the USA() has been unwavering in its single
minded focus to stretch the limits of these federal statutes beyond their intended use, and beyond
precedent, in order to prosecute Mr. Epstein. As the CEOS letter acknowledges, the legal theories
the USAO intends to attempt to pursue against Mr. Epstein are "novel," having never before been
sanctioned by federal law. They should not be sanctioned now. As the Supreme Court recently
pronounced, when a statutory term in a criminal statute could support both a narrow or broad
application of the federal criminal law, "the tie must go to the defendant." United States v. Santos,
553 U. S .______and Cuellar v. United States, 553 U.S_____(June 2, 2008), Slip Op. at 6.
2 February 25, 2003 Trafficking in Persons National Security Presidential Directive.
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A full and fair review of the facts here is critical to this analysis. Yet, it is clear that CEOS
did not conduct such a review. In his recent letter to Jay Lefkowitz, First Assistant United States
Attorney ("FAUSA") Jeffrey Sloman confirmed our understanding that the USA() was to have
"facilitated" an "independent de novo review of the investigation" by the Department. (May 19,
2008 Sloman letter at p. 5). Yet, the CEOS review was not complete, and by its own terms not de
As CEOS itself noted, "our review of this case is limited both factually and legally. We have
not looked at the entire universe of facts in this case. It is not the role of the Criminal Division to
conduct a complete factual inquiry from scratch." (CEOS letter at p. 1). Indeed, entire subject areas
relevant to the inquiry were not considered at all by CEOS. In essence, CEOS was only in a position
to make the most cursory possible review, an "abuse of discretion" review, without considering the
facts at the necessary level of detail, and without taking into account the many and varied issues of
misconduct we have raised in this case. As the CEOS letter indicates, "we did not review the facts,
circumstances, or terms included in the plea offer nor any allegations that individuals involved in the
investigation engaged in misconduct." (CEOS letter at p. 2). All of this begs the question — if it is
not CEOS' role to "conduct a complete factual inquiry," and CEOS did not consider any of the
allegations of misconduct here, which at the very least have created a strong appearance of
impropriety, and, at worst evidence an intent and effort to unfairly prejudice Mr. Epstein to the
financial benefit of the friends and colleagues of the prosecution team in the USAO, then where and
when can justice ever hope to be served in this case? This is a prosecution burden that cannot, and
should not, be brushed aside.
We contend the limited nature of the CEOS review deeply affected its conclusions. For
example, CEOS most likely did not review original documents, such as transcripts, and instead relied
on the summaries of federal prosecutors and FBI agents, against whom we have raised serious
concerns regarding misconduct. If the summary memos from the USA() are as flawed as other
USAO communications have been, and which we have been able to show are misleading and
inaccurate, the CEOS abuse of discretion review is likely flawed as well. Moreover, although the
USAO expected, and personally promised to us, an independent review, FAUSA Sloman's letter also
makes clear that our pivotal legal challenge to the use of 18 U.S.C. § 2422(b) had already "been
previously raised and thoroughly considered and rejected by . .. CEOS prior to" the recent CEOS
review. (May 19, 2008 Sloman letter at p. 5). The fact that CEOS had to evaluate its own decision
with respect to some of the allegations against Mr. Epstein prevents its subsequent review and
opinion from being truly independent.
Following this most recent CEOS review "limited both factually and legally," and with no
citation to any case law relative to the statutes in question, CEOS concludes merely, "federal
prosecution in this case would not be improper or inappropriate (CEOS letter at p. 5);" in essence,
that the United States Attorney could bring this case in the exercise of his federal discretion should
he so choose ("we conclude that U.S. Attorney Acosta could properly use his discretion to authorize
prosecution in this case."). (CEOS letter at p. 2). However, CEOS drew the conclusion that the
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federal prosecution of Mr. Epstein would not be "improper or inappropriate" absent any review at all
of the misconduct here, and absent a full review of the facts and law. The facts, the law, and the
alleged misconduct are each necessarily inextricably intertwined with the question of whether or not
this is a viable federal prosecution. These imposed limits flawed the review from the outset. In any
event, CEOS concedes that the defense team makes "many compelling arguments." (CEOS letter at
p. 5). In the end, then, one is left with the impression that the CEOS review and opinion, although
concluding that the USA() could push forward at its own discretion, is a much qualified one.
The federal prosecution of Mr. Epstein has been a moving target from the inception. Each
time the allegations, the witnesses or the applicable law is subject to a searching inquiry, we have
found that the allegations have been misrepresented, the law does not apply to the actual facts here,
and the USA() prosecution theory falls apart. Yet, in the face of the voluminous evidence we have
submitted in this regard, while acknowledging that the theories are "novel," and that our arguments
against federal prosecution are "compelling," CEOS concluded, "Mr. Acosta could rightfully
conclude that this federal issue is best resolved by a jury" and that "the USA° has a good faith basis
to fully develop the facts on this issue and brief the law to permit a court to decide whether the law
appropriately reaches such conduct." With all due respect, and recognizing that CEOS may be— and
apparently was — limited in its authority, it should not be the prerogative of the prosecution arm of
the United States government to simply roll the dice, and let the court system just sort it out when
dealing with the life and liberty of a United States citizen. The Department of Justice should not be
so cavalier when labeling someone as a child molester. While it may be within the discretion of the
USA() to do so, it is not in accord with the principles of justice.
Indeed, as noted, just a few weeks ago, the Supreme Court underscored this point in Santos
and Cuellar. The Court made clear that prosecutorial discretion does not provide the USA() cart
blanche to expand criminal statutes as they seek to do here with complete disregard for congressional
intent. The Court rejected speculation as a basis of determining the scope of a criminal statute;
"probability is not a guide which a court, in construing a penal statute, can safely take." Slip op. at 7,
quoting United States v. Wiltberger, 5 Wheat. 76,105 (1820). "We interpret ambiguous criminal
statutes in favor of defendants, not prosecutors." Slip op. at 12.
Based on my experience, I believe that the facts here do not warrant a federal child
exploitation prosecution. At its core, this case is quintessentially a state concern as opposed to
implicating any federal interest. Indeed, the Florida State Attorney's Office ("SAO"), led by the
chief of the Sex Crimes Division, thoroughly investigated this matter, and presented it to the grand
jury. The facts, as opposed to the deeply flawed press reports, were carefully assessed by
experienced State prosecutors who aggressively enforce State criminal laws. Following an extensive
15-month State investigation, Mr. Epstein was indicted by a State grand jury on a single felony count
of solicitation of prostitution.
During the investigation, the State prosecutor exhaustively reviewed the evidence, met face-
to-face with many of the alleged victims, considered their credibility — or lack thereof — and
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considered the extent of exculpatory evidence, including a psychosexual evaluation of Mr. Epstein
and a polygraph examination demonstrating that Mr. Epstein genuinely believed at the time of the
alleged conduct that the State's key witness was over the age of 18. Then, after
months of negotiations, the State reached what it believed was an appropriate resolution of the case.
Importantly, this resolution was consistent with that of cases involving other defendants who had
engaged in similar conduct. Implementation of the State resolution of the case was held in abeyance,
however, due to the unexpected commencement of the successive federal criminal investigation.
While it is true, as CEOS points out, (CEOS letter at p. 3) that many criminal prosecutions
turn on issues of credibility of witnesses, to which many members of the defense team can attest
(having had decades of federal criminal litigation experience among us), this does not serve to divest
the prosecutor of his/her duty to make a searching inquiry of the facts before using the power of
prosecution, and the weight of the United States government, to level serious accusations. CEOS
likewise acknowledges as much, "the prosecutors are in the best position to assess the witnesses'
credibility." (CEOS letter at p. 3).
Since the CEOS letter also singles me out as someone who should be familiar with witness
issues, I feel compelled to note that, of course, I am well aware that it is not uncommon for witnesses
to give conflicting statements. I am also fully aware that the credibility of key government witnesses
may be strongly impacted by the $50 million incentive provided via the civil lawsuits at play, and
encouraged by the goverrunent here. 3 I have also read many of the conflicts between witness
testimony and Detective ReCarey's own rendition of that testimony in his reports and/or search
warrant affidavit. Detective ReCarey apparently formed a view early on as to the purported
criminality of Mr. Epstein's conduct regardless of the mountain of evidence to the contrary. For a
prosecutor that has had an opportunity to review the full facts, and to meet with the witnesses,
however, "conflicting statements" cross the line to a "lack of credibility" that simply can not sustain
a prosecution. That is where an appropriate application of prosecutorial discretion must be brought
to bear.
Again, CEOS was not itself in the position to exercise such discretion. By its own admission,
CEOS did not make a full review of the witness statements here, and CEOS certainly did not sit
down across the table and speak to these witnesses. We understand that was apparently not its
perceived role. But, CEOS should recognize that at least one prosecutor in this case — the Chief of
the SAO Sex Crimes Division has done so. Lana Belohlavek not only met with and interviewed
these witnesses during the course of the 15-month state investigation prior to any federal
involvement, but she again sat across the table from many of them in connection with recent civil
3 It is important to note here that this investigation was launched not upon the complaint of any alleged victim, but,
rather, upon the complaint of ather, , and her stepmother, More
notable still is the fact that has been convicted of federal bank fraud, an has a state
conviction for identify fraud. Hardly pillars of credibili. Yet, the USAO did not supply this information to the
defense. Even more telling is the fact that filed a $50million lawsuit purportedly on behalf of his
daughter without her authority or knowledge.
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0
depositions in this matter. Ms. Belohlavek, and the SAO, is likewise well familiar with the breadth
of the federal investigation, and has integrated that knowledge into the current enhanced state
sentencing recommendation. The SAO remains firm in the position that the proposed state resolution
is a sound one, and that there was no child exploitation here. Notably, however, not once during the
pendency of the federal investigation has the USA() ever reached out to its state prosecutive
counterpart that initiated this investigation in the first place to discuss the issues or to thoroughly
ferret out the facts or the witness credibility issues.
In the eight lines the CEOS letter accords to the topic of witness credibility CEOS asserts,
"there are multiple mutually-corroborating witnesses," (CEOS letter at p. 3). However, the CEOS
letter does not highlight a single one. In contrast, we have put forth numerous "mutually
corroborating" witness statements. Far from supporting a federal prosecution, these statements
instead corroborate that 1) the alleged victims lied to Mr. Epstein about their age; 2) there was no use
of a facility of interstate commerce by Mr. Epstein; 3) there was no inducement or coercion; 4) there
was no commercial enterprise; and 5) there was no illicit sexual conduct.
Indeed, Mr. Epstein took several steps to ensure that no minors entered his home, most
notably, by affirmatively asking the women whether they were actually 18. See e.g. 'I'r. At
38-39. That fact — which many of the potential witnesses have confirmed in sworn interviews —
strongly indicates that Mr. Epstein specifically intended to preclude anyone under 18 from giving
him a massage. That fact is confirmed by, among other things, testimony that "he
likes the girls that are between the ages of like 18 and 20 . . . ." Tr. at 12. In fact, the
evidence bears out that the majority of the women who came to Mr. Epstein's residence to provide a
massage were over 18.
Many of the young women who were aged 16 and 17 visited Mr. Epstein's residence only
once or twice, and the evidence strongly shows that they lied to Mr. Epstein about their age. Two of
these individuals,an, were 14 and 15 at the time they met Mr.
Epstein. Given that each has brought a civil lawsuit against Mr. Epstein, with and her
family seeking $50 million from Mr. Epstein, their testimony against Mr. Epstein is per se suspect.
But, despite their obvious incentive to harm Mr. Epstein, their testimony actually confirms his
innocence, for instance, has testified that who introduced her to Mr.
Epstein, expressly told her to lie to Mr. Epstein about her age.
Q: And told you that if you weren't 18 Epstein wouldn't let you into his house,
right?
A: That's — yes, yes.
(deposition) at 32.
Q: You didn't want Mr. Epstein to know that you were lying about your age, right?
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A: Correct.
Q: You didn't want Mr. Epstein to know that you were not 18 yet, right?
A: Correct.
(deposition) at 36.
In fact, Ms. told Mr. Epstein that she was 18 years old, and confirmed this fact with
Palm Beach Police. Id. at 36. Beyond that, Ms. "swore on her mother's grave" that she
and Mr. Epstein did not engage in sex of any kind. Tr. (deposition) at 24. She further
repeatedly explained that prior to the time she went to Mr. Epstein's house (she went there only
once), nobody ever tried to coerce her to engage in sexual activity with Mr. Epstein. Not over the
telephone, not over the Internet, not at all. Ir. (deposition) at 31-32. These are not facts
upon which a federal case can stand.
Ms. s age was also unknown to Mr. Epstein when she went to his home.
, who was introduced to Mr. Epstein by Ms testified in her federal sworn interview
that Ms. old her to lie to Epstein. aggm- Tr. at 8 ("she just said make sure you're 18
because Jeffrey doesn't want any underage girls") (emphasis added). Ms. testimony
strongly suggests that Ms. ied to Mr. Epstein about her own age as well. Ms.
also self represented that she worked at a local erotic massage parlor that presumably required a
minimum age.
The conduct of is likewise illustrative of "mutually corroborating" testimony
which supports the fact that this is not an appropriate federal case. In the same way that Ms.
was referred to Mr. Epstein and brought to his home without having been introduced or
acquainted in any manner, Ms. was referred by someone else, , who also told
her to lie to Mr. Epstein about her age, which she did. =Tr. at pp. 8-9).
CEOS seeks to buttress the USA() prosecution by asserting "it is possible to satisfy that
element [proof of specific intent as to the age of the alleged victims] with proof that the defendant
was deliberately ignorant of facts which would suggest that the person was a minor." (CEOS letter
at p. 2). Such assertion is counter to the law and to the facts. Reliance on a deliberate ignorance
standard as to any of the three statutes in issue requires the factual predicate of an intent not to learn
of an incriminating fact. This is the antithesis of the factual context of this case where there is
repeated proof that the minors believed that they had to lie because Mr. Epstein had an actual
practice of attempting to verify age, and would not let them in his house if they were under the age of
18. See United States v. Kennard, 472 F.3d 851, 857-858 (11th Cir. 2006), quoting, United States v.
Puche, 350 F.3d 1137, 1149 (11th Cir. 2003) (An instruction on deliberate ignorance is appropriate
only if it is shown [among other things] . . . that the defendant purposely contrived to avoid learning
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of all of the facts in order to have a defense in the event of a subsequent prosecution."). Thus, the
facts preclude reliance on the concept of deliberate ignorance as a substitute for proof.
The fact that the search warrant affidavit in this case is rife with mis-statements and
omissions regarding the key element of age is critical. However, CEOS concludes with no apparent
supporting analysis, "despite the numerous factual errors you describe, the U.S. Attorney's Office
could still plausibly argue that the mistakes — whether inadvertent or intentional — were not material
to the determination . . . ." (CEOS letter at p. 3). Although, as CEOS notes, there are "numerous"
such misrepresentations, through affirmative statement or intentional omission, a focus on but one of
those misrepresentations highlights that such misrepresentations were, in fact, material. The fact is
that Detective ReCarey grossly misrepresented Mr. Epstein's intent as it related to the age of the
women he permitted entry to his residence.
In the search warrant affidavit, Detective ReCarey affirmed that claimed:
[Mr. Epstein told her the younger the better.
And, stated she once tried to bring a 23 year old female and Epstein stated that the
female was too old.
What Detective ReCarey, no doubt intentionally, omitted wafurther 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: He 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. (Statement at 12) (emphasis
added).
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, Detective ReCarey did not include the many statements
demonstrating that, when asked by Mr. Epstein, the women affirmatively misrepresented their ages
as being 18, and/or that Mr. Epstein was not aware of their true ages. Indeed, although Detective
ReCarey did note that Ms bid Mr. Epstein that she was 18, he omitted from the affidavit
the key point as to why she lied:
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=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, he was like how old are you.
And then I was like 18. But I kind of said it really fast because I didn't want to make
it sound like I was lying or anything. at 38-39.
Thus, consistent with the guidance provided in Franks v. Delaware, 438 U.S. 154 (1978), the
search warrant affidavit in this case reveals knowing and reckless falsehoods and omitted material
information. This is precisely the type the United States Supreme Court sought to guard against.
The age of the alleged victims, and of Mr. Epstein's intent in that regard, is an element of the
crimes that must be proven in order to sustain a conviction. In particular, § 2422(b) requires that the
defendant specifically intended to target a minor. See, e.g., United States v. Murrell, 368 F.3d 1286
(11th Cir. 2004) ("[T]o prove an attempt the government must first prove that [defendant], using the
intemet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in
unlawful sex.") (Emphasis added). Section 2422(b) expressly requires that the crime be committed
"knowingly," and that requisite mental element applies as to each element of the crime. United
States v. XCitement Video, Inc., 513 U.S. 64, 68-69 (1994); United States v. Meek, 366 F.3d 705,
718 (9th Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United States v.
Bailey, 228 F.3d 637, 638-639 (6th Cir. 2000). How, then, could the USA() "plausibly argue" that a
misrepresentation about an element of the crime could be viewed as "not material"? If the elements
of the alleged crime are not met, there is no probable cause to sustain the search warrant in the first
instance. If the elements are not met, there is no federal crime. That is material.
Moreover, it is clear from the plaint text of the statute that the statutorily proscribed act
pursuant to 18 U.S.C. §2422(b) is the actual use of a facility of interstate commerce to persuade,
entice, induce, or coerce. "The underlying criminal conduct Congress expressly proscribed in passing
§2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act
itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g., with himself or a third
party) without then committing any sex act himself, he would nevertheless violate §2422(b)." United
States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). See also, United States v. Bailey, 228 F.3d
637, 639 (6th Cir. 2000) ("Congress has made a clear choice to criminalize persuasion and the
attempt to persuade, not the performance of the sexual acts themselves."). Thus, if there has been
sexual misconduct (which we deny) without the requisite persuasion, there is no violation of this
federal law.
The investigation and testimony in this case makes clear that Mr. Epstein did not use any
facility of interstate commerce to commit any act forbidden by 18 U.S.C. § 2422(b)—to persuade,
induce, entice, coerce—nor did he direct any of his assistants to do so. Indeed, by way of example,
as clear on this point at her deposition during which she repeatedly testified that
nobody—not Mr. Epstein or any of his assistants—ever used the Internet or phone in any way to try
to persuade her to engage in sexual activity with Mr. Epstein. (deposition) at 31-32.
Nonetheless, even assuming, arguendo, that persuasion to engage in sexual conduct occurred over
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the telephone (which we deny), it is black letter law that the mens rea must coincide with the actus
reus. Thus, the government must prove that Mr. Epstein has the specific intent to target a known
minor to engage in prohibited sexual activity at the time of the call. We have seen zero evidence of
this. To the extent Mr. Epstein later may have persuaded a particular individual to engage in
unlawful sexual activity during a massage, such persuasion occurred face to face, and can not work
retroactively to render the earlier phone call an offense under the statute.
As to the purported violation of 18 U.S.C. § 2423 for allegedly traveling in interstate
commerce for the purpose of engaging in illicit sexual activity, CEOS does not deny that Mr. Epstein
was returning to one of his residences when he traveled to Florida!' CEOS explicitly stated it "fully
understand[s] our argument" (CEOS letter at p.2) that Mr. Epstein should not be charged under
§ 2423(b) because the dominant purpose for his traveling to Palm Beach was not to engage in illegal
sexual activity, but to simply return to one of his residences. Rather, this is apparently another
"compelling" point of law which may be left to "a court to decide whether the law properly reaches
such conduct." (CEOS letter at p. 2).5 Notably, implicit in this concession by CEOS is that the law
has never before been so applied, that is, there is no precedent for a court to extend the statute as the
USA() seeks to do here. In fact, the United States Supreme Court prohibited the criminalization of
travel under identical circumstances over a half century ago. See Mortenson v. United States, 322
U.S. 369, 374 (1944) (intention to engage in proscribed conduct must "exist before the conclusion of
the interstate journey and must be the domMate motive of such interstate movement." (Emphasis
added.)
Beyond an absence of proof regarding the travel element in connection with 18 U.S.C. §2423,
the requisite age requirement for a violation of that statute is important. 18 U.S.C. §2423, by
reference to Chapter 109A (18 U.S.C. §2423(0(1)), specifically defines a minor for purposes of that
statute as an individual who has not attained the age of 16. If an alleged victim is 16 years of age or
older, a violation of this statute pursuant to 2423(f)(1) can only occur if it can be proven that force,
threat or drugs were involved. See, 18 U.S.C. §§ 2241 et seq. There are no such allegations here. As
a result, in order to find a violation under 18 U.S.C. § 2423, the United States would have to prove
that Mr. Epstein engaged in one of the sexual acts defined at 18 U.S.C. § 2246(2) with an individual
under the age of 16, and that he formed the intent and dominant purpose to do so prior to the time he
made a return trip to Florida. Again, there is no such evidence here. has specifically
testified that 1) she never engaged in sexual activity with Mr. Epstein; 2) she never even met or
talked to Mr. Epstein prior to her arrival at his house; and 3) she lied about her age not only to Mr.
Epstein, but, in fact, to the world on her MySpace page when she said that she was 18 years old. It is,
then, also worth noting in this regard that 18 U.S.C. §§2243(c) provides an affirmative defense if
proven by a preponderance of the evidence if Mr. Epstein reasonably believed that was
4 In addition to his residence there, Mr. Epstein also has several businesses, and personal matters and contacts to which
he attends in Florida. For example, beginning in 2002, Mr. Epstein visited his mother nearly every weekend in Palm
Beach until she passed away in April, 2004.
5 As previously set forth herein, and as more fully explained in other submissions related to this case, the recent
Supreme Court decisions in Santos and Cuellar make this attempted stretch of the law improper.
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had attained the requisite legal age. Finally, although 18 U.S.C. §2423(f)(2) also defines "illicit
sexual conduct" as any commercial sex act with a person under the age of 18, 18 U.S.C. §2423(g)
also provides a specific affirmative defense as to that age element if proven by a preponderance of
the evidence that Mr. Epstein reasonably believed that the young women had attained the requisite
legal age. As we have demonstrated, time and again the women involved lied to Mr. Epstein as to
illeir true age, representing that they were, in fact, over the age of 18. Many of them also represented
that they worked at local massage parlors, which presumably would have imposed a legal age
requirement.
Lastly, in contrast to 18 U.S.C. §1591, Mr. Epstein's conduct did not involve trafficking of
women or children in the sex industry, and was not part of any phenomenon that, in the aggregate,
had an economic impact on interstate or foreign commerce. Additionally, Mr. Epstein did not
benefit financially from the alleged conduct. Therefore, as the SAO determined, and still believes,
Mr. Epstein was a customer, a "John" for whom prosecutions are best left to the State to address.
Indeed, there is no reported precedent extending federal law to a local "John" who does not violate
the child exploitation statutes. Indeed, CEOS does not point to a single case where federal
prosecutors have used § 1591 in a case involving facts like these. Instead, every § 1591 prosecution
has involved national or international sex trafficking and/or for-profit prostitution rings, involving
the knowing use of minors and/or forcible coercion, or forcible rape, physical abuse or intimidation.
These are the elements required by the statute, and they are not met here.
Although CEOS could, perhaps, point to United States v. Evans, 476 F.3d 1176 (11th Cir.
2007) as a case that, standing alone, involved wholly intrastate conduct, the facts of that case are far
different in key respects than this one. The Evans case involved both the commercial and coercive
components that Congress, and administration policy statements intended in 18 U.S.C. § 1591
prosecutions. Evans, and his co-conspirators (Madison and Yearby) were not "Johns." They
operated a for profit prostitution ring marked by control of, and extreme violence toward, the
victims, who they knew were underage. Indeed, Evans forced one such victim, age 14 years old, to
continue to work even after she had been hospitalized with ADDS. As part of their business, Evans
and his co-conspirators provided the victims with cell phones, hotels, and condoms, and the victims
were forced to give all of their money from this prostitution ring to Evans and his co-conspirators.
None of this type of activity comes close to the facts regarding Mr. Epstein. Finally, but significantly,
the prostitution ring in Evans was not, in fact, entirely intrastate as the companion case of one of the
Evans co-defendants makes clear. See, United States v. Madison, 477 F.3d 1312, 1313-1314 (11th
Cir. 2007) (Jane Doe #2 stated that she traveled to Atlanta, Georgia with Madison to work as a
prostitute).
Thus, courts, including the Eleventh Circuit in Evans, have underscored the point that § 1591
simply is not intended to cover the kind of alleged conduct at issue here. "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.3d at 1179 n. 1; See also United States v. Sims, 171 Fed.
HOUSE OVERSIGHT 012195
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC
Mr. John Roth
June 19, 2008
Page 14
Appx. 849, 2006 WL 14581 at *3 (11th Cir. 2006) (to establish Sims's guilt on the sex trafficking of
a minor count, the government had to show that Sims benefited financially from Owen's sexual
activity and that Sims knew that (a) force or coercion would be used to cause Owens to engage in a
criminal sex act or (b) that Owens was under the age of 18.) (emphasis added). Again, none of these
factors is present in this case. The Eleventh Circuit's interpretation of the statute makes perfect
sense: were § 1591 not limited in this fashion, it would threaten to criminalize a host of localized
behavior that has nothing to do with human trafficking, and, thus, is of no valid federal interest.
In sum, to accord discretion to the USAO, albeit without benefit of the requested full denovo
review, to exercise authority to pursue a prosecution which involves a "novel" application of three
federal statutes in the face of numerous "compelling arguments" is not warranted, as it is not
supported by the facts, the law, or justice. Echoing the admonition of the Supreme Court in the
Berger decision, the Comment to Rule 3.8 of the Rules of Professional Conduct (Special
Responsibilities of a Prosecutor), says it best "A prosecutor has the responsibility of a minister of
justice and not simply that of an advocate. This responsibility carries with it specific obligations to
see that a defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence." This is a responsibility that can not be taken for granted. The government bears
the burden of assuring that it possesses sufficient evidence to prove each element of a crime with
respect to some specific victim before publicly branding Mr. Epstein a child molester. In this case,
however, the USA() has not met its burden for any victim for any of the crimes alleged. It is not
enough to simply gloss over the required proof, and rely on the jury or the court to just sort it all out
in the end. The stakes are too high. As a result, the USA() should not be permitted to pursue an
unfounded federal criminal case against Mr. Epstein under the guise of prosecutorial discretion.
Such prosecution in this case necessarily would appear to be selective to Mr. Epstein. To be
clear, our request that Mr. Epstein should not be prosecuted federally would not permit him to go
completely unpunished, but, rather, would simply place him in the same prosecution position as
others similarly situated. Therefore, we continue to believe that after a complete, de novo, and
independent review, the only appropriate conclusion will be that this case is best left to the state to
resolve.
STEPHANIE D. THACKER
SDT/kdt
Enclosures
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