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a | t KIRKLAND & ELLIS LLP 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 (1* Cir. 2005); United States v. Brown, 43 F.3d 618, 625 (11™ 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. HOUSE_OVERSIGHT_012149