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Kenneth W. Starr
Kirkland & Ellis LLP
777 South Figueroa Street
Los Angeles, CA 90017-5800
Phone: 213-680-8440
Fax: 213-680-8500
Irstarr@ldridand,com
May 19,2008
VIA FACSIMILE (202) 514-0467
Honorable Mark Filip
Office of the Deputy Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Joe B. Whitley
Alston & Bird LLP
The Atlantic Building
950 F Street, NW
Washington, DC 20004-1404
Ph: 202-756-3189
Fax: 202-654-4889
joe.whitley@alston,com
CONFIDENTL4L
Dear Judge Film:
In his confirmation hearings last fall, Judge Mukasey admirably lifted up the finest
traditions of the Department of Justice in assuring the United States Senate, and the American
people, of his solemn intent to ensure fairness and integrity in the administration of justice. Your
own confirmation hearings echoed that bedrock determination to assure that the Department
conduct itself with honor and integrity, especially in the enforcement of federal criminal law.
We come to you in that spirit and respectfully ask for a review of the federal involvement
in a quintessentially state matter involving our client, Jeffrey Epstein. While we are well aware
of the rare instances in which a review of this sort is justified, we are confident that the
circumstances at issue warrant such an examination. Based on our collective experiences, as
well as those of other former senior Justice Department officials whose advice we have sought,
we have never before seen a case more appropriate for oversight and review. Thus, while neither
of us has previously made such a request, we do so now in the recognition that both the
Department's reputation, as well as the due process rights of our client, are at issue.
Recently, the Criminal Division concluded a very limited review of this matter at the
request of U.S. Attorney Alex Acosta. Critically, however, this review deliberately excluded
many important aspects of this case. Just this past Friday, on May 16, 2008, we received a letter
from the head of CEOS informing us that CEOS had conducted a review of this case. By its own
admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed
limitation was CEOS's abstention from addressing our "allegations of professional misconduct
by federal prosecutors"—even though such misconduct was, as we contend it is, inextricably
intertwined with the credibility of the accusations being made against Mr. Epstein by the United
States Attorney's Office in Miami ("USAO"). Moreover, CEOS did not assess the terms of the
Deferred Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors'
inappropriate efforts to implement those terms. We detail this point below.
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Honorable Mark Filip
May 19, 2008
Page 2
By way of background, we were informed by Mr. Acosta that, at his request, CEOS
would be conducting a review to determine whether federal prosecution was both appropriate
and, in his words, "fair." That is not what occurred. Instead, CEOS has now acknowledged that
we had raised "many compelling argtunents" against the USAO's suggested "novel application"
of federal law in this matter. Even so, CEOS concluded, in minimalist fashion, that "we do not
see anything that says to us categorically that a federal case should not be brought" and that the
U.S. Attorney "would not be abusing his prosecutorial discretion should he authorize federal
prosecution of Mr. Epstein" thus delegating back to Mr. Acosta the decision of whether federal
prosecution was warranted (emphasis added). Rather than assessing whether prosecution would
be appropriate, CEOS, using a low baseline for its evaluation, determined only that "it would not
be impossible to prove . . ." certain allegations made against Mr. Epstein. The CEOS review
failed to address the significant problems involving the appearance of impermissible selectivity
that would necessarily result from a federal prosecution of Mr. Epstein.
We respect CEOS's conclusion that its authority to review "misconduct" issues was
precluded by Criminal Division practice. We further respect CEOS's view that it understood its
mission as significantly limited. Specifically, the contemplated objective was to determine
whether the USAO would be abusing its discretion by bringing a federal prosecution rather than
making its own de novo recommendations on the appropriate reach of federal law. However, we
respectfully submit that a full review of all the facts is urgently needed at senior levels of the
Justice Department. In an effort to inform you of the nature of the federal investigation against
Mr. Epstein, we summarize the facts and circumstances of this matter below.
The two base-level concerns we hold are that (1) federal prosecution of this matter is not
warranted based on the purely-local conduct and the unprecedented application of federal
statutes to facts such as these and (2) the actions of federal authorities are both highly
questionable and give rise to an appearance of substantial impropriety. The issues that we have
raised, but which have not yet been addressed or resolved by the Department, are more than
isolated allegations of professional mistakes or misconduct. These issues, instead, affect the
appearance and administration of criminal justice with profound consequences beyond the
resolution in the matter at hand.
In a precedent-shattering investigation of Jeffrey Epstein that raises important policy
questions—and serious issues as to the fair and honorable enforcement of federal law—the
USAO in Miami is considering extending federal law beyond the bounds of precedent and
reason. Federal prosecutors stretched the underlying facts in ways that raise fundamental
questions of basic professionalism. Perhaps most troubling, the USA() in Miami, as a condition
of deferring prosecution, required a commingling of substantive federal criminal law with a
proposed civil remedy engineered in a way that appears intended to profit particular lawyers in
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Honorable Mark Filip
May 19, 2008
Page 3
private practice in South Florida with personal relationships to some of the prosecutors involved.
Federal prosecutors then leaked highly sensitive information about the case to a New York
Times reporter.' The immediate result of this confluence of extraordinary circumstances is an
onslaught of civil lawsuits, all save one brought by the First Assistant's former boutique law firm
in Miami.
The facts in this case all revolve around the classic state crime of solicitation of
prosiltution.2 The State Attorney's Office in Palm Beach County had conducted a diligent
investigation, convened a Grand Jury that returned an indictment, and made a final determination
about how to proceed. That is where, in our federal republic, this matter should rest.
Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason
the State has not resolved this matter is that the federal prosecutors in Miami have continued to
insist that we, Mr. Epstein's counsel, approach and demand from the State Attorney's Office a
harsher charge and a more severe punishment than that Office believes are appropriate under the
circumstances. Yet despite the USAO's refusal to allow the State to resolve this matter on the
terms the State has determined are appropriate, the USAO has not made any attempt to
coordinate its efforts with the State. In fact, the USA° mandated that any federal agreement
would be conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike
that imposed on other defendants within the jurisdiction of the State Attorney for similar
conduct.
From the inception of the USAO's involvement in this case, which at the end of the day
is a case about solicitation of prostitution within the confines of Palm Beach County, Florida, we
have asked ourselves why the Department of Justice is involved. Regrettably, we are unable to
suggest any appropriate basis for the Department's involvement. Mr. Epstein has no criminal
history whatsoever. Also, Mr. Epstein has never been the subject of general media interest until
a few years ago, after it was widely perceived by the public that he was a close friend of former
President Bill Clinton.
The conduct at issue is simply not within the purview of federal jurisdiction and lies
outside the heartland of the three federal statutes that have been identified by prosecutors-18
U.S.C. §§ 1591, 2422(b), and 2423(b).
One of the other members of Mr. Epstein's defense team, Jay Lefkowitz, has personally reviewed the reporter's
contemporaneous notes.
2 Although some of the women alleged to be involved were 16 and 17 years of age, several of these women
openly admitted to lying to Mr. Epstein about their age in their recent sworn statements.
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Honorable Mark Filip
May 19, 2008
Page 4
These statutes are intended to target crimes of a truly national and international scope.
Specifically, § 1591 was enacted to combat human trafficking, § 2422 is aimed at sexual
predation of minors through the Internet, and § 2423 deals with sex tourism. The nature of these
crimes results in multi-jurisdictional problems that state and local authorities cannot effectively
confront on their own. However, Mr. Epstein's conduct was purely local in nature and, thus,
does not implicate federal involvement. After researching every reported case brought under 18
U.S.C. §§ 1591, 2422(b), and 2423(b), we found that not a single case involves facts or a
scenario similar to the situation at hand. Our review of each precedent reflects that there have
been no reported prosecutions under § 1591 of a `john' whose conduct with a minor lacked
force, coercion, or fraud and who was not profiting from commercial sexual trafficking. There
have likewise been no cases under § 2422(b)—a crime of communication—where there was no
use of the Internet, and where the content of phone communications did not contain any inducing
or enticing of a minor to have illegal sexual activity as expressly required by the language of the
statute. Furthermore, the Government's contention that "routine and habit" can fill the factual
and legal void created by the lack of evidence that such a communication ever occurred sets this
case apart from every reported case brought under § 2422(b). Lastly, there are no reported cases
of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to
his own home.3
Although these matters were within the scope of the CEOS review, rather than
considering whether federal prosecution is appropriate, CEOS only determined that U.S.
Attorney Acosta "would not be abusing his prosecutorial discretion should he authorize federal
prosecution" in this case. The "abuse of discretion" standard constitutes an extremely low bar of
evaluation and while it may be appropriate when the consideration of issues are exclusively
factual in nature, this standard fails to address concerns particular to this situation, namely the
"novel application" of federal statutes. The "abuse of discretion" standard in such pure legal
matters of statutory application risks causing a lack of uniformity. The same federal statutes that
would be stretched beyond their bounds in Miami have been limited to their heartland in each of
the other federal districts. Also, because this case implicates broader issues of the administration
of equal justice, federal prosecution in this matter risks the appearance of selectiVity in its
stretching of federal law to fit these facts.
3 Federal prosecution of a man who engaged in consensual conduct in his home that amounted to, at most, the
solicitation of prostitution, is unprecedented. Since prostitution is fundamentally a state concern, (see United
States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (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, there is no reason why this matter
should be extracted from the hands of state prosecutors in Florida.
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Honorable Mark Filip
May 19, 2008
Page 5
In fact, recent testimony of several alleged "victims" contradicts claims made by federal
prosecutors during the negotiations of a deferred prosecution agreement. The consistent
representations of key Government witnesses (such as Tatum Miller, Brittany Beale, Saige
Gonzalez, and Jennifer Laduke) confirm the following critical points: First, there was no
communication, telephonic or otherwise, that meets the requirements of § 2422(b). For instance,
Ms. Gonzalez confirmed that Mr. Epstein never emailed, text-messaged, or used any facility of
interstate commerce whatsoever, before or after her one (and only) visit to his home. Gonzalez
Tr. (deposition) at 30. Second, the women who testified admitted that they lied to Mr. Epstein
about their age in order to gain admittance into his home. Indeed, the women who brought their
underage friends to Mr. Epstein testified that they would counsel their friends to lie about their
ages as well. Ms. Miller stated the following: "I would tell my girlfriends just like Carolyn
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! 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." Miller Tr. at 22. Third, there was no
routine or habit of improper communication expressing an intent to transform a massage into an
illegal sexual act. In fact, there was often no sexual activity at all during the massage. Ms.
Miller testified that "[s]ometimes [Mr. Epstein] just wanted his feet massaged. Sometimes he
just wanted a back massage." Miller Tr. at 19. Jennifer Laduke also stated that Mr. Epstein
"never touched [her] physically" and that all she did was "massage[ ] his back, his chest and his
thighs and that was it." Laduke Tr. at 12-13. Finally, there was no force, coercion, fraud,
violence, drugs, or even alcohol present in connection with Mr. Epstein's encounters with these
women. Ms. Beale stated that "[Mr. Epstein] never tried to force me to do anything." Beale Tr.
A at 12. These accounts are far from the usual testimony in sex slavery, Internet stings and sex
tourism cases previously brought. The women in actuality were not younger than 16, which is
the age of consent in most of the 50 states, and the sex activity was irregular and in large part,
consisted of solo self-pleasuring.
The recent crop of civil suits brought against Mr. Epstein confirm that the plaintiffs did
not discuss any sexually-related activities with anyone prior to arriving at Mr. Epstein's
residence. This reinforces our contention that no telephonic or Internet persuasion, inducement,
enticement or coercion of a minor, or of any other individual, occurred. In addition, Mr. Jeffrey
Heiman, the former law partner of one of the federal prosecutors involved in this matter and the
attorney for most of the civil complainants (as described in detail below), was quoted in the Palm
Beach Post as saying that "it doesn't matter" that his clients lied about their ages and told Mr.
Epstein that they were 18 or 19.
Not only is a federal prosecution of this matter unwarranted, but the irregularity of
conduct by prosecutors and the unorthodox terms of the deferred prosecution agreement are
beyond any reasonable interpretation of the scope of a prosecutor's responsibilities. The list of
improprieties includes, but is not limited to, the following facts:
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Honorable Mark Filip
May 19, 2008
Page 6
• Federal prosecutors made the unprecedented demand that Mr. Epstein pay a
minimum of $150,000 per person to an unnamed list of women they referred to as
minors and whom they insisted required representation by a guardian ad litem. Mr.
Epstein's counsel later established that all but one of these individuals were actually
adults, not minors. Even then, though demanding payment to the women, the
USAO eventually asserted that it could not vouch for the veracity of any of the
claims that these women might make.
• Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fees
of a civil attorney chosen by the prosecutors to represent these alleged "victims"
should they choose to bring any civil litigation against him. They also proposed
sending a notice to the alleged "victims," stating, in an underlined sentence, that
should they choose their own attorney, Mr. Epstein would not be required to pay
their fees. The prosecutors further demanded that Mr. Epstein waive his right to
challenge any of the allegations made by these "victims."
• The Assistant U.S. Attorney involved in this matter recommended for the civil
attorney, a highly lucrative position, an individual that we later discovered was
closely and personally connected to the Assistant U.S. Attorney's own boyfriend.
• Federal prosecutors represented to Mr. Epstein's counsel that they had identified
(and later rechecked and re-identified) several alleged "victims" of federal crimes
that qualified for payment under 18 U.S.C. § 2255, a civil remedy designed to
provide financial benefits to victims. Only through state discovery provisions did
we later learn that many of the women on the rechecked "victim list" could not
possibly qualify under § 2255. The reason is that they, themselves, testified that
they did not suffer any type of harm whatsoever, a prerequisite for the civil recovery
under § 2255. Moreover, these women stated that they did not, now or in the past,
consider themselves to be victims.
• During the last few months, Mr. Herman, First Assistant Sloman's former law
partner, has filed several civil lawsuits against Mr. Epstein on behalf of the alleged
"victims." It is our understanding that each of Mx. Herman's clients are on the
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Honorable Mark Filip
May 19, 2008
Page 7
Government's confidential "list of victims." Most of these lawsuits seek $50
million in money damages.4
• Assistant U.S. Attorney David Weinstein spoke about the case in great detail to
Landon Thomas, a reporter with the New York Times, and revealed confidential
information about the Government's allegations against Mr. Epstein. The Assistant
U.S. Attorney also revealed the substance of confidential plea negotiations.
• When counsel for Mr. Epstein complained about the media leaks, First Assistant
Sloman responded by asserting that "Mr. Thomas was given, pursuant to his
request, non-case specific information concerning specific federal statutes." Based
on Mr. Thomas' contemporaneous notes, that assertion appears to be false. For
example, Mr. Weinstein told Mr. Thomas that federal authorities believed that
Mr. Epstein had lured girls over the telephone and traveled in interstate commerce
for the purpose of engaging in underage sex. He recounted to Mr. Thomas the
USAO's theory of prosecution against Mr. Epstein, replete with an analysis of the
key statutes being considered. Furthermore, after Mr. Epstein's defense team
complained about the leak to the USAO, Mr. Weinstein, in Mr. Thomas' own
description, then admonished him for talking to the defense, and getting him in
trouble. Mr. Weinstein further told him not to believe the "spin" of Mr. Epstein's
"high-priced attorneys," and then, according to Mr. Thomas, Mr. Weinstein
forcefully "reminded" Mr. Thomas that all prior conversations were merely
hypothetical.
We are constrained to conclude that the actions of federal officials in this case strike at
the heart of one of the vitally important, enduring values in this country: the honest enforcement
of federal law, free of political considerations and free of the taint of personal financial
motivations on the part of federal prosecutors that, at a minimum, raise the appearance of serious
impropriety.
We were told by U.S. Attorney Acosta that as part of the review he requested, the
Department had the authority, and his consent, to make any determination it deemed appropriate
regarding this matter, including a decision to decline federal prosecution. Yet, CEOS's only
conclusion, based on its limited review of the investigation, is that U.S. Attorney Acosta would
not abuse his discretion by proceeding against Mr. Epstein. Thus, the decision of whether
4
As recently as two months ago, Mr. Sloman was still listed publicly as a part of his former law firm. While we
assume this was an oversight, Mr. Sloman's identification as part of the firm raises the appearance of
impropriety.
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Honorable Mark Filip
May 19, 2008
Page 8
prosecution is fair and appropriate has been placed, once again, in U.S. Attorney Acosta's
hands.
In light of the foregoing, we respectfully ask that you review this matter and discontinue
all federal involvement so that the State can appropriately bring this matter to closure. We
would greatly appreciate the opportunity to meet with you to discuss these important issues.
Such a meeting would provide the Department with an opportunity to review the paramount
issues of federalism and the appearance of selectivity that are generated by the unprecedented
attempts to broaden the ambit of federal statutes to places that they have never before reached.
We sincerely appreciate your attention to this matter.
Respectfully submitted,
Kenneth W. Starr
Kirkland & Ellis LLP
Joe D. Whitley
Alston & Bird LLP
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