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KIRKLAND & ELLIS LLP 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 (11™ 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 HOUSE_OVERSIGHT_012150