HOUSE_OVERSIGHT_012193.jpg

ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. John Roth June 19, 2008 Page 11 aid 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. EM 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 qi" Cir. 2004) (“[T]o prove an attempt the government must first prove that [defendant], using the internet, 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 (9" Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11™ Cir. 2002); United States v. Bailey, 228 F.3d 637, 638-639 (6" Cir. 2000). How, then, could the USAO “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, ifa 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 (11" Cir. 2004). See also, United States v. Bailey, 228 F.3d 637, 639 (6" 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 MM(deposition) at 31-32. Nonetheless, even assuming, arguendo, that persuasion to engage in sexual conduct occurred over HOUSE_OVERSIGHT_012193