EFTA00104555.pdf

IL/ I I/ 4VVI II . KIRKLAND & ELLIS LLP AND AtIlLIATIM Honorable R. Alexander Acosta United States Attorney Re: Jeffrey Fastein Dear Alex: vnvw.kiaklunU.CCun December 17, 2007 IL UV'S/ I IU Thank you for meeting with us on Friday, December 14. 2007. The meeting demonstrated significant agreement un broad issues of policy. We all agree on the centrality of the principle of horizontal equality, namely that Mr. Epstein should be treated no differently • - neither more nor less favorably — than a less prominent or less wealthy detimdant accused of similar conduct. We also all agree that no person should he allowed to plead guilty to a statute that does not precisely apply to his cauxklei. We agree as well that the goal of these extensive negotiations is to reach a just, equitable, proportional and truthful result. In this letter. we seek to implement these agreed-upon principles. lowevcr, we arc deeply concerned that, at this late juncture. we remain unenlightened as to a coherent theory of federal criminal law that would pass serious muster. Especially in view of (i) the unprecedentedly expansive interpretation of 18 § 2422(h) and. relatedly. (ii) tlx: employment of IS § 2255. we have only recently COM to understand that adorns your list of would-be victims. 'the theory of her inclusion remains ens ro e m mystery. In any event. she is manifestly not a victim, for reasons we shall elucidate. So too, we have respectfully tequested illtunination as to the factual predicate for the applicability of Florida Stamm § 796.03. which now appears deeply problematic. We are met time and again substantively with silence. but when the veil of ignorance is only slightly lified. the actual. truthful facts as weighed in a fair and reasonable balance are found fatally wanting. 'Ibis is fundamentally Whir and pmlbundly wrong, We are eager to resolve these issues with your ( M)ice expeditiously. 'In that end. we respectfully reaffirm our request fur a prompt. independent. expedited review of the evidence. Chicago Hong Kong London Munich Now York San Frandoco Washla%an. D.C. EFTA00104555 ig VV.,/ I IV KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 2 which includes but is not limited to -s testimony: the witness transcripts; the tainted eports: and our prior submissions. In light or the concerns we raised and the evidence we discussed at the December 14 meeting, we arc lirmly persuaded that this provides the only avenue for Mr. Epstein to be affithkd the bedrock value of horizontal equality. We now elaborate on the three pivotal issues last discussed at last Friday's (December 14) meeting. I. The Conduct is Not a Res:kb:rabic Offense Under Florida Law Under the Agreement. Mr. Epstein is to plead guilty to an indictment charging one count of Florida Statute § 796.07. solicitation of prostitution, and to one count of Florida Statute § 796.03. procuring a minor for prostitution. Given the commercial nature of the conduct generally associated with § 796.03. a defendant convicted under this statute must register as a sexual offender under Florida's Sex Offender Registration and Notification Act (the "Florida's Sex Act"). However. Mr. Epstein's alleged conduct does not meet the requirements of § 796.03, or for that matter. any of the other Florida statutes that require registration. A. Florida Statute § 796.03 is Inapplicable It should be noted that at the time § 796.03 was negotiated between the panics. Ms. maintained (and continued to maintain as late as last week). that a § 796.03 charge involved the solicitation of minor, not the procurement °fa minor. During those negotiations. we repeatedly asked Ms. to confirm that she possessed the requisite evidence to make out a registerahle charge. to which she unwaveringly replied that she did in fact possess this evidence. Although she has refused to disclose such evidence despite our repeated requests. we continual to proceed in good faith. We were then informed by Lana 13clohlavek that solicitation of a minor is not a registerable offense, and we promptly made that known to Ms. t. With the evidence at hand, it is clear that § 796.03 is a procurement statute that has no application to Mr. Epstein whatsoever.' tinder § 796.03. "(al person who procures for prostitution, or causes to he prostituted. any person who is under the age of IS years commits a thlony of the second degree . . .". Conviction under this statute requires an offender to register at a sexual offender (whereas a defendant convicted of soliciting a prostitute under § 796.07 does nor). Recognizing this It is obvious form tiro lien pleu proposal we received from Ms. _t, that she has adways scen solicitaliuts of a minor as the appropriate charge under the facts Ohis is also the Sinie's recommended charge). What is now apparent is kit ,Ite thought dial solicitation of a minor was bath a felony and a register:tide char e under Florida law. It is not. Rather than force-fit another charge that matches the sentence Ms. desires. your (mice should implement the mate charge that it Inn maintained is the most appropriate for the alleged conduct -- solicitation era minor. EFTA00104556 II al • le avy • II. IC rnit KIRKLAND H. ELLIS L LP Honorable R. Alexander Acosta Dix:ember 17. 2007 Page 3 ligIUUll/ I IU distinction, the legislature drew u bright line between procuring a minor for prostitution on the one hand, and solicitation for prostitution on the other. Indeed. procurement under § 796.03 is clearly not the same as solicitation under § 796.07. as the former requires that the defendant procure the minor to engage in a sex act with a third party, not the defendant himself. This clear demarcation is well settled law in Florida. In Register v. State. for instance. the cowl reversed a conviction of j 796.03 tor a defendant who offered a 12-year-old girl money to have sex with hint The court further explained that to expand the meaning of the statute would be disingenuous to the intent of the legislature: We find nothing in either statute that would support the State's argument that offering money while soliciting sonicone to have sex with the offeror was intended to have die same erhnimil consequences as inducing a victim to engage in sexual activity with a third Party to the financial benefit of the pimp. A person who offers ninny to a minor to have sex with him commits a crime. 'the Florida Legislature has designated such an am of solicitation as a less severe crime than c.vpInithig a minor to engage in sexual activity with a third party, to the procurer's fimmeial advantage. 'Ibis distinction is a matter within the exclusive prerogative of the legislative branch. Register. 715 So.2d 274.278 (Ha. 1st DCA 1998). (emphasis added)- Similarly, in Kobel v. Mile. the defendant's conviction under * 796.03 was reversed because the court determined that the defendant's actions did not constitute procurement. In Kobel. the defendant approached a ten-year old hay and his friend on the street. arranged to meet them in an alley, and offered the boys money for oral sex. The defendant was arrested and charged with two counts of procurement of a minor for prostitution. in violation of § 796.03 and two counts of attempted indecent assault. The appellate court determined that the defendant's conduct did not constitute the crime of procurement and held that *796.03 did not apply because the defendant had not attempted to hire a minor to have sex with a third party. The court recognized that both nets arc punishable crimes, but made a ekar delineation between them: Din the context of pmstittnion, the word "procure' must be given its specialized meaning. which is "to Alain as a prostitute fur another." connoting a commercial motive. Although the solicitation of a minor for sex and the procurement of a minor kw prostitution are both evil deeds, the use of a minor Ihr the "commercial enterprise" of prostitution is a greater evil. This long-settled body orsulte statutory and decisional law has not. to our knowledge. been criticised or otherwise drawn into question by Florida's duly-elected, policy-sensitive Governors int:hiding GovernorJet, Bush acid the incumbent Govanor. EFTA00104557 ,(., I 1/1....W. Il i . 10 mina KIRKLAND & ELLIS LLP I lonorablc R. Alexander Acosta December 17. 2007 Page 4 la Ono/ 110 Kobel. 745 So. 3d 979.982_ (Fla. 4th DCA 19991.3 (emphasis added) • Other Florida decisions have echoed the reasoning and analysis of Kobel and Register. Sec Petty st Stale, 761 So.2d 474 (Fla 3d DCA 2000) (reversing a conviction of § 793.03 for at defendant who paid a prostitute for sexual acts she engaged in with the defendant because the court found no evidence of commercial exploitation). Item. Mr. Epstein did not procure any minor for a third party under the meaning of § 793.03. (liven the well settled legal precedent. It is clear that § 796.03. the operative statute requiring registration under the Agreement. does not lit the conduct alleged and therefore required registration should he removed from the Agreement. B. The Conduct flocs Not Require Registration Under Florida Law Other statutes for which registration is required also present circumstances that in no my lit Mr. Elocin's alleged conduct. It is clear based on these statutes that the legislature intended for registration to apply to only the most heinous caws or crimes against children. See Florida Statute § 943.0435( I )(a)( I ). Specifically, sexual offenders arc persons who have been convicted of committing. attempting. soliciting or conspiring to commit the following kinds of crimes: kidnapping of a child; false imprisonment of a child under the age of 13: luring or enticing a child under 12 into a structure; sexual battery; procuring child prostitution: lewd and lascivious battery. molestation, or conduct: lewd and lascivious ofknse.s committed in the presence of an elderly person, battery, and molestation: pmmoting a sexual performance by a child: showing obscene material to a minor: possessing child computer pornography: transmitting child pornography; buying or selling a minor with knowledge the minor will he portrayed as engaging or appearing to engage in sex was. See generally. Florida Statute § 943.0435( I )(a)( ). Not only does Mr. Epstein's conduct not fall within any of the delineated statutes. hut his alleged acts are not comparable in terms of severity or harm. The vast majority of the women perlbrming massages were over the age of IR: with respect to the women alleged to he minors at the time of the purported conduct, the vast majority of those women were 16 or 17; there is no evidence of battery; there is no child pornography: and there is no evidence of kidnapping. imprisonment. luring. or proeuring.4 In many instances. these women called Mr. Epstein to solicit work as a masseuse. and in each instance these women wore paid for their services. The Kobe/ case expressly ovenunntd the 4th District opinion in .41(Conn when a conviction under § 796.03 for a deli:ndant who offactla minor nuthey to (avow in sex with the defendant himself was affirmed. Sec Alet:ann v. Slide, 711 So. 2d1290 (Fla. 4th DCA l 908). 4 It should he noted that in the history of Florida law, there has never been a statutory rape charge when: Ike exchange of money was involved. EFTA00104558 1141/ I II/ 40V I • . se raw KIRKLAND & ELLIS LLP Honorable It. Alextualur Acosta December 17. 2007 Page 5 to you/ I to C. The Stale Attorney's Mee. Does Not Relieve the Conduct is Registerable It should not he surprising then that no registerable statute - federal or state — appears to cover the conduct in this case. This is because registration. as a matter of law and policy, has always been limited to extremely dangerous sexual deviants who pose higher than ordinary risks of recidivism. Applying a registerable crime to solicitation-type conduct of the kind al issue here would bring into question the very constitutionality of registration. It would also dilute its impact and compromise the credibility of those who are responsible for vouching for the dangerousness of defendants required in register for life— here the State Attorney's 011iee.3 Indeed. the Stale Attorney's Office has long maintained that Mr. Epstein's alleged conduct does not give rise to a registerable offense in Florida. The State believes that house arrest is a more than appropriate sentence. However. contrary to your policy of horbontal equality. your Office rejected the State's view of the case and effectively dictated a harsher sentence to the State and specifically stated that house arrest would amount to "mansion arrest" for Mr. Epstein. Treating Mr. Epstein differently from any other similarly charged individual simply because of his wealth directly contravenes the policy of horizontal equality. Given that Mr. Epstein's conduct does not lit the requirement for registration nor does his life or circumstances lit the next for registration. we propose that Mr. Epstein's charge he modified to reflect this. II. The Conduct is Not a 4 2422 Offense A. A Review of the Applicability of § 2422 is Also Necessary We appreciate your concern about whether the Florida statute to which Mr. Epstein is required to plead under the Agreement actually fits the facts of the case. We believe. however. that you should be even more concerned about whether the federal statutes lit the Amis. The concern over the federal statutes should be greater fur several compelling reasons of constitutionality. statutory construction. ethics and principle. First. We believe, and understand you to share our belieE that it is improper to require a defendant to accept a plea to questionably applicable statutes. In the same rein. it is far more improper to indict. or threaten to indict. a defendant under an equally questionable statute. Them Your Oftice's rt.-pealed references to the Stale Mummy's ()Ince as -a jok ire without writ. Barry Krischcr. the Palm Beach County State Attorney. has served is orrice for 12 years. . the lead prosecutor in this nuttier, has over u dei.s.tdc urexperience prosecuting sex-related crimes and was a founding member a1 the Child Abuse Protocol. EFTA00104559 mg YU I / I IV KIRKLAND & ELLIS LLP I lonorable It. Alexander Acosta December 17. 2007 Page 6 is a long tradition of accepting pleas that allow for some flexibility as to the crime charged. since pleas represent a mutual agreement and mutual waiver by the parties. Although certain elements cannot, in law, be waived, courts have treated this issue more flexibly in the context of plea agreements. There ix no such flexibility in the context of an indictment or threatened indictment. Second. Federal statutes are, as a matter of constitutional law. required to be even clearer and less subject to common law expansion than stair statutes. As far back as 1812. the Supreme Court has held that there could be no common law crimes under federal law. See United States v. Hudson. 7 Cranch 32. 43 (1812) (-1O1ur Courts no doubt possess powers not immediately derived from statute: but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers. l. The states have never been subject to this limitation on the federal government. Indeed, at the time of the Founding there were state common law crimes, and state courts had broad authority subject to consideration of lair warning — to apply common law principles to the construction of state criminal statutes. Federal courts have never had such authority: Although it is not likely that a criminal will carefully consider the text of the law before he taunters or steals. it is reasonable that a fair warning should be given to the world in language that the common world will understand of what Ike law intends to do if a certain line is passed. To make tlx: warning fair. so far as possible the line should he clear. When a rule of conduct is bid down in words that evoke in the cummt>tt mind only the picture of vehicles moving on land. t..alv- statute shoukt not he extended to aircraft. simply because it may sixan to us that a similar policy applies, or upon the spccuha that, it' the legislature had thought of it. very likely broader words would have been ?vk8ou* v, US.. 283 U.S. 25, 27 (1931) (Justice Holmes). There could he no federal common law crimes because criminal law has traditionally been the province of the states. except in instances of over-arching federal interests, of which none am implicated in the matter at hand. Third. This issue is especially compelling in the context of a federal statute that purports to make a federal crime out of conduct that has traditionally been the province of the states, as sex with minors and solicitation of scx for money have always been.6 Before a federal statute can he construed to cover such conduct, its language must he —unmistakably clear. because Congress cannot he presumed to have intended to disrupt the delicate balance between federal and state jurisdiction over crimes that have been traditionally prosecuted by the states. In cases raising potential Perim issues, the federal statute must unambiguously cover the conduct at issue. I. As we have made clear throughout this investigation. the alkged conduct does not implicate overarching federal interests because the conduct was purely local in nature. the conduct is covered by state law. and then: are no Indicia of force, coercion, violuoce, drugs. luring or trafficking. EFTA00104560 tziis/cvvi i f . ls rAA KIRKLAND & ELLIS LLP I onorable R. Alexander Acosta December 17, 2007 Page 7 lin ammo Fourth. The federal statutes at issue in this case are far more draconian than the state statutes. The federal statutes carry far higher minimum mandatory sentences and higher guidelines. The courts have always required greater clarity. predictability and certainty in the application of harsh statutes than less harsh ones. Fifth. It would raise profound issues of federal criminal enlbreement for your Office deliberately to apply a more permissive statute to its awn work than to a state statute. It would he unconscionable not to apply at least as rigorous a standard of certainty and clarity to your Office's indictment than to a state statute. even one that is pan of a deal made by your Office. It would he unseemly in the extreme for your Office to apply a more permissive standard to its own work than to a state statute. We believe strongly that a dispassionate and Ihir review of the facts will reveal that even if the same standards were to he applied to the applicability vet non of the state and federal statutes. the conclusion could not in good conscience he =died that the Florida statute is inapplicable. while at the same time concluding that the Iideral statutes arc applicable. The daunting standards that must be applied to federal statutes include the Ibiluwing: • The Rule of Lenity; 'the Supreme Court has long held that criminal statutes that are subject to differing interpretations should he construed in the defendant's Itivor. See Pasquantina v. U.S.. 544 U.S. 349. 383 (2005) ("We have long held that. when confronted with 'two rational readings of a criminal statute, one harsher than the other. we arc to choose the harsher only when Congress has spoken in clear and definite language.") (chine (Inked States r. McNally. 483 U.S. 350. 359-360 (1987): United States v. Universal CIT. Credit Corp.. 344 U.S. 218. 221-222 (1 952)) Furthermore, the note of lenity also applies to Florida state criminal law. See &Tines v. State. 715 So.2d 274, 278 (Fla. 1st DCA 1998) ("To the extent that penal statutory language is indefinite or 'is susceptible of differing constructions.' due process requires a strict construction of the language in the defendant's favor under the rule of lenity") (citing F. Stat. 775.021(1) (1995); Perkins v. State. 576 80.2d 1310. 1312 (Fla. 1991): Logan v. State, 666 So.2d 260.261 (Flu. 4th DCA 1996)). • Plain Meatninzt Commonly accepted principles of statutory law require that statutes be given their plain and unambiguous meaning. it' one exists. Sec lIelvering v. Nor York Must Co.. 292 U.S. 455. 469 (1934) ("Under the recognized rules of construction we should give the words of the statme their ordinary and common meaning-) (citations omitted). • Clarity and Predictability: "When choice has to be made between two readings of what conduct Congress has made a crime. it is appropriate. before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and EFTA00104561 lid 41Yuf „v KIRKLAND & ELLIS LLP I lonorable K. Alexander Acosta December 17.2007 Page definite". See United States v. Floss. 404 U.S. 336. 34748 (1971) (citations and footnote omitted). It is fundamentally unlItir to apply to conduct criminal statues that cannot be understood clearly. Furthermore. given that one primary impose of criminal law is to announce that one will be punished Cur tlx: crimes they commit, the statutes condemning them to a sentence should clearly and predictably express the conduct that is prohibited. The fact that even members of our own delemw team. including Profemor Alan Dershowitz. with 45 years of experience in reading. teaching and litigating criminal statutes. could not determine that any of the lederal statutes would be applicable to Mr. Epstein's conduct. a lay person cannot be expected to make that determination. As confirmed by Judge Stem's conclusions regarding the application of § 2422(b), as well as the other relevant federal statutes, the conduct at imam is clearly not within the predictable scope of jt 2422. See Judge Stern's Letter ("In sum. whatever sexual contact occurred. occurred face to lace. without the use of an instrumentality of interstate commerce to persuade or induce it. and therefore. was not an act proscribed by the statute. Accordingly Mr. Epstein committed no crime within the scope or 3 2422(b)."), • Nn Creative Applications of the fa►w: Funhennore, criminal statutes should not lend themselves to creative interpretations. ICIriminal prosecution. as distinguished from civil lawsuits. is nut supposed to he based on novel theories. Before anyone can he criminally prosecuted. both the alleged criminal conduct and the penalty must be spelled out unambiguously in n plainly worded criminal statute understandable to the average citizen . ..there is no room tier creativity by prosecutors who are understandably eager to send messages to miscreants who are themselves using creativity in circumventing anachronistic criminal statutes.- See Alan M. Dershowitz. Making Up 71w Lau•. N.Y. 'limes 33. Aug. 16. 1996. • Do Not Apply Creative Annlieations for the First Time in a Close Case: This matter is undoubtedly one of first impression. To stretch the federal statutes beyond recognition to fit the conduct without any precedent can have dangerous and unforeseen consequences. • Clear Lettislative Intent to l'reemnt Slide Law: Well-established law also respects the sovereignty of states with respect to asserting criminal law. -Mlle historic lattice powers ul the Stales lard not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." See Rice v. Santa re Elevator Corp.. 331 U.S. 21X, 230 ( I 947). • Narrowly Tailored Statutes Should Apply: If there arc Iwo statutes — one that narrowly and precisely fits the facts, and another that is broad and general the narrow statute should apply. See Radzonower r. lonehe Ross /4 Co.. 426 U.S. la 0976) rft is a basic principle of statutory construction that a statute dealing with a narrow, precise. EFTA00104562 IL/ ../.S.VM I 1 1 . 10 rnn KIRKLAND & ELLIS LLP Ifonorable K. Alexander Acosta December 17, 2007 page 9 hats to conform to or support a firde our review of the sworn testimony of-: second, by letters from your Office advising us that the "victims" of Mr. Epstein's federal v. ) • ' s •en reviewed and narrowed hut that remained on that list: and third, by stated theory of liability under § 2422(b) at the Detx•mber 74 meeting. tutu/flu and specific subject is not submerged by a later enacted statute covering a more generalized spectrinn. Where there is no clear intention otherwise. a specific statute will not be controlled or nullified by a general one. regardless of the priority of enactment.") (quotations omitted). This is especially true if the narrow statute is a state statute and the more general statute is a federal statute, especially in an area traditionally prosecuted by the states. See f inired States v. Evans, 476 F.3d 1176 (11th Cir. 2007) ("prostitution Iisl a vice traditionally governed by state regulation"). We believe with great conviction that the above demonstrates that Congress needs to speak clearly when a federal criminal statute reaches quintessentially state sexual conduct and suhjeets an accused citizen to potential consequences of gravely serious federal guidelines and in some eases minimum mandatory) sentencing. We have repeatedly represented to you and others in the hierarchy of your Office that we believe that the facts of Mr. Epstein's conduct simply do not conform to the legal requirements for prosecution under § 2422(b) or any conspiracy brought under § 371 to violate § 2422(b). In foci the chasm between Mr. Epstein's conduct and § 2422(h) mirrors the gulf between his conduct. and Florida Statute § 790.03. B. * 2422 Plainly Does Not Apply to These Facts We have been intormtxl that § 2242(h) served as the pivotal federal statute which was the foundation of either conairaev_trindel g § 371) or the substantive charges. Al (he December 14 meeting. provided insight into the Government's theory of prosecution. stating that sexual contact with an underage female and an out-of-slate phone call were sufficient to support a § 2242(b) charge. This is quite wrong as a natter of law. There was manifestly no inducement so as to make out a § 2242(b) charge, and sexual contact with an underage female, without more, is incontestably and quintessentially a state offense? Our previously expressed but profoundly substantial concerns regarding the feature of the known or violating § 2422(h) were reinforced. first, by t Although Ms. alleges. that pursuant to the Agreement. a "victim" of federal crimes, her testimony unmistakably reveals that not only did suffer no injury (let alone damages). but she would probably never mount such a claim. Indeed. Ms. On July 6, 2007. we previously sent to your Ollice a submission regarding the inapplicability of *24.12(b). We have attached thc July 6 submission to this letter. EFTA00104563 lel till/ I Ill KIRKLAND & ELLIS LLP Ito:tumble R. Alexander Acosta December I7.20(17 Page 10 testimony establishes that the conduct was consensual; that she lied to Mr. Epstein about her age; that she instructed others to lie to Mr. Epstein about their ages: that there was no sexual contact at any time; and that the c • to inducement over the telephone or any other tom of communication. Excerpts 01 s testimony establishing each of these pivotal points are set forth below: • Consent Q: Okay. When did you meet him and who introduced you to Jeffrey? A: My girlfriend introduced me to Jeffrey.* (M• Sworn Statement at 5- 6) Q: Now you said thatMitold you that he likes massages. Did she elaborate on what types of massages? A: She said sometimes he likes topless mass; ts, but you don't have to do anything you don't want to do. He just likes massages. • • * * * A: I said. 1 told Jeffrey. I heard you like massages topless. And he's like. yeah. he said, but you don't have to do anyth n you don't feel comfortable with. And I said okay. but I willingly took it off. • Sworn Statement at 10) • Lied About Her Age A: . . . So I asked her. I said well. what about my age? And she said well, just make sure that tell him that you're 111. And I had a fake ID at the time and we went there. r Sworn Statement at 6) Although we are unaware as 10 WhCille is on the government's list of alleged -victims- it bears inemioning ilia has a criminal recant and usher damaging credibility issues. including a history of drug abase. violence. and prosalutioit. EFTA00104564 •L/ ,1/I.UY• 11 . la !AA KIRKLAND & ELLIS LLP I lonorable It. Alexander Acosta December 17, 20(17 Page II C 012/110 A: . . had a hike It) anyways, saying that I was IS. An s • NI said make sure you're IS because Jeffrey doesn't want any underage girls. Sworn Statement at 8) A:. . . of course. he thought I was 18. . . ( • Instructed Others to I .k About Their Ages Sworn Statement at 13) A: . . . 1 bring a lot, like maybe -- I don't know. may • "4 maybe 30 [girls to Lpsteinj. It was all about the money to me at that time. Sworn Statement at 28) A: . . I would tell my girlfriends just like tell him you're 18. Well, these girls that I hroug u. 20. And the girls that I didn't know and I dun' would say make sure that you tell him you're IR. • Nu Sexual Contact approached me. Make sure you know that they were 18 or 19 or is if they were lying nr nut. I Sworn Statement at 22) A• So I willingly the first time took off my top when I gave him a massage and nothing t an that. It was just a back massage and neck massage and I was out of there. Sworn Statement at 9) Q: Did he at any point kiss you. touch you, show any kind of affection towards you? A: Never, never. Sworn Statement at 21) A: Ile didn't want me to touch him and he didn't touch me ut all. ( Statement at I 7) Sworn A: I would wear panties. Willingly one time because we were making jokes and everything and willingly one time I. had, yes. I was totally nude. but I was fine with it. EFTA00104565 Is, • • • •.•••••• • • a . no • tilt KIRKLAND & ELLIS LLP lortorable R. Alexander Acosta December 17.2007 Page 12 toy iJ/ I IV 0: Okay. A: Totally line with it. Q: And how did that massage go? A: Actually. it was a foot massage and he was silting on the couch. We didn't even have the massage table out and I gave him a foot rub and I was nude. a Sworn Statement at 20-2 I) 0: lk never pulled you closer to him in a sexual way? A. I wish. No. no. never. ever. ever. no. never. Jeffrey is an awesome man. no. Sworn Statement at 21) 0: Okay. And with the other girls. was it the same as what you did or different? A: Yeah. yeah. I mean. well, I was more willingly to do more, you know. Like said, I went nude for him one time. But the other girls, they practically were topless and that's all that thor willing to do. Sonic girls didn't want to go topless and Jeffrey didn't mind. Sworn Statement at 23) • No Inducement A. Jeffrey. he was a very awesome guy and I jiii i't I ended up giving him my number so I could — I didn't or o drive me anymore. 1 would rather go to him on my own. Sworn Statement at 15) A: No. I gave Jeffrey my number. And I said. you Ittliny lime you want me to give you a massage again. I'll more than welcome to. ( Sworn Statement at 8) A: Me •• leffrey hardly ever talked on the phone. Ile was always busy. It was mostly We'd talk when I would eel them you know. So it was like you want to tome in? Ycs. cool, you know. Come there, no. cool, bye. Sworn Statement at 32-33) EFTA00104566 *se I I / .I.V•P I I . I IS 1 AA I lonorable R. Alexander Acosta December 17. 2007 Page 13 KIRKLAND & ELLIS LIP * k * * * CU 10/ I Ill NI Q: We have -- I don't know. We have some mes. guess that some girls names that would call Jeffrey and leave a [message' ... ( Sworn Statement at 25) A: livery ajjlagLbr • ' • • they said ihey were line with it. And like. for instance, -- a lot of girls begged me to bring them back. ' • wanted to coin': back for the money. And as far as I know, we all had fim there. 1 Sworn Statement at 45) In sum, I testimony clearly shows that she is not a victim. in fact. never wanted to cooperate with the investigation she refused to cooperate with the PM, refused service ()I' a subpoena. hired an attorney. and forced the government to give her immunity before she would speak to them. It cannot be than she may now seek relief from Mr. Epstein as a "victim" under 4 2255 without proof of injury or inducement. we. Ms. assertion of documentary proof' of an interstate plume call by does not establish the nexus required for inducement under § 2422. When challenged at the December 14 meeting to justif • • cm c wen the demands of list the federal criminal statute and the testimony of Ms. offered of-state toll record. While this document may be inconsistent wi h a small part of testimony as to the issue of the locus of phone calls. it utterly fails to demonstrate that th‘ Government theory s ) what at its essence is a federally:Mon of underage prostitution (set. letter to of December 13. 2007 at pg 4, par 1). This is compellingly so Ibr several reasons: • Absent testimony. the evidence does not exclude the possibility that Mr. E stein neither caused nor knew of the call in question or the possibility that neither nor Mr. Epstein were even participants on the call: • Absent the testimony of one of the participants. the documented record of the faC1 of a call does not negate th • • • ' • that the call did not even involve discussion about scheduling a visit from to Mr. Epstein's house nor any other material subject matter. • Absent the testimony of one of the participants, there is no evidence of inducement, an essential element of the statute and an el • • uires significantly more than scheduling a visit with someone who like was agreeable to come to Mr. Epstein's house prior to the call: EFTA00104567 spy 1:// 1 1V KIRKLAND & ELLIS LLP I Innorable R. Alexander Acosta December 17.2007 Page 14 call is completely consistent with someone returning a call initiated by Absent evidence of the content of the call, a telephone record reflectit of state is rather • than "inducing" a sexual act; • A review of message logs seized ::pstein's residence during the gale investigation (as well as a review of testimony) would reflect that it was common for there to he incoming calls by women of all ages asking to he called and seeking to visit Mr. Epstein: and • 'Me alleged conduct is far outside the heartland of conduct that § 2422(h) was clearly designed by Congress to prevent Internet (or arguably. by extension, telephone) luring. Indeed. denies that she Was ever induced to came to Mr. Epstein's house. The is • toed cannot sustain a federal prosecution without more. We know, from rewiewing Ms. transcript, that there is nn more. Even if there were telephone conununications resort mg the scheduling of massages. mere solicitation is not inducement. Inducement carries with it a much higher standard than solicitations In entrapment cases for instance. the Government has argued, and the courts have agnsal. that inducement requires ••conduci sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party". U.S. v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993): US. v. Shuns. 2007 WI. 4287666 at •3 (S.D.Fla. Dec. 5. 2007). "Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement." because ari Inducement entails some semblance of 'arm-twisting; pleading, or coercive tactic,:'. Marred v. State. 841 So.2d 600. 603 (Fla.App. 4th Dist. 2003) (finding no government inducement because "appellant had already demonstrated his predisposition to commit the offense"). Here. Mr. Epstein at the very worst is guilty of solicitation because he only provided women with an opportunity to commit the act of prostitution by arranging for appointments to he scheduled. Scheduling by telephone, by itself. does nut rise to the level of inducement because there is neither a "semblance of arm-twisting. pleading, or coercive tactics" nor an attempt to "implant a.criminal design in the mind" of any party. The designation of as a "victim' in the fact of her own testimony is emblematic of the greater problem with the sweeping federal investigation of this matter. That she remains on a shortened list of j 225$-eligible "victims" in the face of sworn testimony rellecting no inducement, no injury is required for j 2255 recovery, and no violation of the most applicable federal predicates. j 2422(h). should, we contend, trigger deep concern that those who n This is nanieularly true when then: is linle Ite nu evidence that the defendant even intute the calls himself. EFTA00104568 WV but IV KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 15 were drafting and/or reviewing the federal indictment that was the catalyst for the Agreement were themselves misinformed about the scope and demands of proof required by § 242201 With underage sexual contact a matter of slate criminal prohibition, the additional requisites of federal law unproven by more than a toll record, and the consequences flowing num the current Agreement as serious as the inevitability of unwarranted civil recoveries of an amount that could be $150,000 to requiring a state sentence of 18 months in jail and a lifetime of registration as the conditions Ibr Mr. Epstein to avoid a charge of violating § 2422(b) — a charge Ibr which we strongly believe him to he innocent — we believe the overall risk of a miscarriage of justice to compel a reconsideration of the federal charging decision that catalyzed the execution of the Agreement. This ix particularly true in light of the unprecedented application of § 2422 in this manner. We have previously provided charts of every reported precedent demonstrating that the reach of § 2422(b) being advanced by your Office in this matter is unprecedented. Attempts by CEOS to match the facts of Mr. Epstein's conduct with any prior ease — reported or otherwise generated a single distinguishable precedent that had nn relationship to the Gods under consideration in this matter.10 Indeed, upon a careful review of the evidence, your Office will undoubtedly conclude that federal law is being taken where it has never gone before, and this is the last clear chance lire this District through your independent judgment •• on its own volition — to do the right thing. Therefore. we urge that you direct that a full and fair and complete examination of the most trustworthy evidence be ordered. offs Finality With Relined to ti 2255 For several weeks. we have articulated our fundamental — and growing — concerns with respect to the profound policy issues raised by your Otrice's invocation of * 2255. It is common ground among us that § 2255 has not been the subject of policy guidance from Main Justice. over the long life of this unusual statute. It is therefore undisputed that we un sailing in uncharted jurisprudential and policy waters. This should not be a mutter entrusted to the judgment of those who have not run the separation-a-powers gauntlet of Presidential nomination and Senate confirmation. As we discussed at our December 14 meeting. and you quite courteously listened. we believe that, ati implemented in this extraordinary situation. § 2255 abounds with basic issues founding in the Due Process Clause of the Filth Amendment. In In 11.1 e. Boehm, the defendant bought and distributed crack cocaine and cocaine to underage girls; admitted to knowing that the girls were underage; ananged for Underage girls to have sex with usher mentbers orate conspiracy in exchange for the drugs: and he was in patsession of illegal firearms at the time of the alleged conduct. EFTA00104569 KIRKLAND & ELLIS LI P Ihmorable R. Alexander Acosta December 17,2007 Page R. For these reasons. we deeply appreciate your contemplation of the appropriateness of the *2255 portion of the Agreement. As we discussed during the December 14 meeting. and as expressed in our December 11 leiter, it is improper for Mr. Epstein to be required to pay recovery to individuals who do nothing but simply assert a claim under § 2255. Some of the individuals identified do not consider themselves victims, nor would they be considered victims under any meaning of the law, given the evidence. Furthermore. § 2255 allows for a civil remedy and there is no basis for the government to be involved with the recovery of damages based on civil claims of private individuals. While we appreciate your Ollice's objective to provide certain individuals with restitution in connection with this matter, we strongly urge you to consider an appropriate process by which such restitution can made. We respectfully reiterate that this process, should not include any further federal interference in any way with respect to the recovery of civil claims. IV. Conctuxinn We believe — and know you share our belief — that citizens should he treated alike reganlless of wealth or status when it comes to criminal justice. We ask for nothing more of our treatment of Mr. Epstein than that he he treated as would any other citizen of Palm Reach under similar circumstances. Mr. Epstein should not he charged with offenses to which his conduct does not apply. in either the state or federal context. Equal treatment would require that Mr. Epstein's prosecution be carried out by the State Attorney's Mee. Mr. Epstein's conduct does not appropriately lit within the Itcartland of federal law. Further, we respectlially submit that the federal government should not sit as an "appellate court" and permit an unhappy state investigator (in this case one who we contend had little fidelity to the law) to seek review of a decision made in good faith regarding the charging decisions of an elected state prosecutor. As we have expressed to you both at our meeting and in this letter, Florida law mandates that the procurement of a minor for the purposes of solicitation requires that the defendant procured the individual for activity with a third party. Mr. Epstein's alleged conduct does not lit this offense. The routine and practice of Florida state authorities and courts is to distinguish between solicitation and procurement of minors, the former being u misdemeanor under state law, the latter a felony (and the commission of multiple misdemeanors does not create a felony). Equal treatment would mandate that Mr. Epstein be charged for solicitation and thus, nut be required to register us a sexual offender. It is improper for the federal government to direct a citizen to seek an enhancement of charges that the state pmsecutor has deemed appropriately lit the conduct and that prosecutors conclusions are consistent with practices regarding other citizens of his county liar similar offenses. We believe that you should authorize the State Attorney for Palm Beach County to decide — based on all the evidence, which we agree you should provide him if you agree that he should make the charging decision — whether to require EFTA00104570 u• • ./ e-WI. 01 .4.1 Ins KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 17 kat/lb/110 a prosecution of Mr. Epstein lig solicitation (which the evidence supports) or procurement (which the evidence clots not support) and that federal involvement in this case should he narrowly tailored to serve only this goal'' Lastly, we reaffirm our request for independent review of the evidence. Previously, we requested but you declined to provide the draft indictment. We understand that we have no statutory right to a FRI 302 that inculpates Mr. Epstein (although we believe that lintdy principles would encourage the disclosure of F131 302 reports that exonerate him). We are concerned that there is information that could be rebutted if disclosed but instead, known only to the FRI and your Office, it stands unchallenged. Fur that reason, we urge you or someone you trust to review the evidence on tut expedited basis. We will provide without delay all transcripts of state interviews that are not already in your possession. We will answer any questions the "reviewer" has. We seek such review not to delay the process. We will do everything that is requested to provide any information the reviewer seekS from our investigation. We believe that given the unique context of the current case — one without Ibderal precedent — that such a process is consistent with the highest and most noble goads of the criminal justice system: to learn the truth. Yours merely, Kenneth W. Starr cc: Jeffrey 11. Stumm, First Assisting U.S. Attorney " If you ()nice wishes, it may submit this letter to the Stale Attorney's Office, bin the State Attorney's Office should then make the sentencing &lamination based on the evidence. EFTA00104571