EFTA00214291.pdf

12/11/2007 11.37 FAX 002/099 KIRKLAND & ELLIS LLP ANSI µq Iwo 11 nail... rani , . 777 South Ftepoorno SWAM LOn AWS:14.$4. Caldwria 90017 xnnnum W Stan I u Call Miler Direct ty 171316W-8440 ktlarrOlutklietti cam VIA 17At IMI1.17 30a 5;i0-6444 I lonorable R. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4111Stnan Miami, FL 33132 Rc Jeffrey Epstein Dear Alex: (TIS) 680.8400 www luiluse0 corn December I I. 2IHY7 Enct:undo (Pin) 880.8500 As we discussed during our telephone conversations on both Friday and Monday (yesterday), we are submitting Iwo separate letters that address our broad areas of deep concern in this matter: First. the cluster of fundamental policy issues surrounding the use and implementation of 2255. a richly policy-laden but uncharted area of federal law: and second. our profound concerns as to the background and conduct of the investigation. Consistent with our conversations. we submit these letters with the assurance and understanding Thai our doing w in no manner constitutes a breach of the Non-Persecution Agreement or unwinds that Agreement. We arc grateful for your courtesy in agreeing to receive and consider these submissions. and then to meet to discuss them. As you undertake your study and reflection, kindly allow me to make this pivotal point: In the combined 250 years experience ofJeffrey's defense team, we have together and individually concluded that this ease is not only extraordinary and unprecedented. ii is deeply and uniquely troubling. the constellation of issues. large and small, renders Jeffreys mutter entirely sal genesis. We say this not lightly. Indeed, as you will glean from our two letters. we are gravely concerned that, in addition to its odd conceptualization and genesis. the matter in its day-to-day implementation has been handled in a manner that raises deeply troubling questions with respect to both federal policy and individual judgment in a system that is, at its hest. assiduously devoted to the rule of law. The latest episodes involving 2255 notification to the alleged victims put illustratively in bold relief our concerns that the ends of justice. time and aµain. are nut being served. Hy way of illustration. hut ii is only one among a cascading list of grave concerns. we now understand that the Assistant United States Arta •conduct has troubled us from day one has quite recently reached out to the attorney fur and Chicago Hong Kong London Munich Now York Sun rtanctoco Washington. D.C. EFTA00214291 12/11/2007 11 37 FAX /003/088 KIRKLAND & ELLIS LLP Honorable K. Alexander Acosta December I I. 2007 Page 2 provided oral notification of the victim notification letter. This notification, as we have slated time and again. is profoundly unthir. Rut guile apari from our substantive concerns, which are abiding and which had prompted our appeal to the Assistant Attorney General in the first instance. we had thought that the notification process had been held in abeyance until completion of our ongoing discussions with respect to that process. That appears not to be so. This latest in a baleful line of prosecutorial actions is drip in with irony. We respectfully cull your attention to the transcript or she interview with and guide you -- as the duly confirmed Executive Branch official charged wit a making judgments consistent with our constitutional order -- to the telling fact that did not in any manner view herself as u victim. Quite to the contrary. She is not alone. We draw attention to this episode as but a recent indication of the deepening need for your thoughtful and independent review. And for your agreeing to pmvide that review, our defense team is very grateful. RespectIlilly Submitted. Kenneth W. Star• EFTA00214292 12/11/2007 11:37 FAX 004/099 KIRKLAND & ELLIS L LP Jay P I otternWs, P C. loP 11Wr r ly blk Orland can VIA FACSIMILE (303) SM1-4444 Honorable R. Alexander Acosta united States Attorney United Slates Attorney's ()filet Southern District of Florida 99 NE itlh Street Miami. Fla 33132 Dear Alex: nap MIn IARD 'Armen-. Cinarmap Conte, 153 Emit 530 Strout New Yolk, New 'An k 10027.4611 www.►1rkljnd rem December I I. 2007 Re • Jetty Pinkie; Feciannle. I appreciate the opportunity you have provided to review some of the issues and concerns of Mr. Epstein's defense team. Importantly. I appreciate your agreement that this submission would neither be understood by you as constituting a breach or the Non-Prosecution Agreement (- Agreement- ) nor result in any unwinding of the Agreement by your Mice. Implicit in this agreement is the understanding that I can share with you our concerns and request a review on the basis fur these concerns. while at the same time assure my client that this submission will not in any respect result in Ibrmal or informal repercussions or attempts by any member or the prosecution or investigative team to involve themselves to Mr. Epstein's detriment in any matter related to the Agreement. particularly in the state prosecution. This letter is intended to support our assertion to you that the manner in which both the investigation of allegations against Mr. Epstein and the resolution thereof were highly irregular and warrant a full review. We appreciate your willingness to consider the evidence. We respectfully request that you review Judge Stern's letter to Alan Dershowitz faxed to you on December 7. 2007. in connection with the concerns we set forth in this submission. 1. F1CDF.RAL INVESTIGATORS RELIED UPON TAINTED EVIDENCE. We have serious concerns that the summaries of the evidence that have been presented to you have been materially inaccurate. As you may know. the principal witnesses in this case were first interviewed by Detective of the Palm Reach Police Department (the "PRPD") and other state law enforcement officers. 'these interviews (the -*witness statements") were ollen tape-recorded thus providing a verbatim and detailed record of the recollections of the witnesses at a point in timeprior to any federal involvement. ttnibrtunately. the police report authored by Detective and certain affidavits executed by him contained both material misstatements Chicago Hong Kong I nnAnn LOU Artvelet Munch San Francesco Waggingion. D.C. EFTA00214293 13/11/2007 11:37 FAX e 005/099 KIRKLAND & ELLIS LLP R. Alexander Acosta Decemher II. 2(N07 Page 2 regarding the specifics of what he was told by his witnesses and also contained omissions of critical and often exculpatory information that was recorded verbatim during the taped interview sessions. The federal investigation involved interview. with many of the same witnesses. We are aware that at least one federal interview) was recorded. We understand that Weenie provided his police report and certain a0idavits to the federal authorities hut did not provide the actual witness statements of the taped interviews to your Office or to the FRI. These witness statements constitute the hest evidence available (they arc verbatim and earlier in time to the federal interviews), and they contain statements that are highly exculpatory to Mr. Epstein. Because understanding the compromised nature of the "evidence" against Mr. Epstein is key to a proper view of this ease. we summarize it in detail below. A. The Witness Statements Establish That Mr. Epstein Ilid Not Tame Masseuses Under IS. Indeed, the witness slaleincots demonstrate that Mc opposite is rw hat the many of ‘• • • • VC% and visit‘ r. Epstein's home. Also, there is su canna cvr case, found in the sworn statements of the women themselves, which indicate that, to the extent others were in fact under the age of ei hteen, man affirmatively lied about her age. As herself told the PRPD: told me to say I was IS because sat . . . t you're not then he [Epstein' won't really let you in his house. So I said I was Ig". Detective !M. however. largely ignored these critical admissions in his Police Report and Probable Cause Affidavit. • Q: At any time. did he speak to you and does he know how old you are? Did he know how old you were? A: . . .As a mater of feet. told me to say I was IS because said tell him you're IS because ilyou're nut. then he won't really let you in his house. So I said I was IS. As I was giving him a massage. he's like, how old arc you? And then I was like IS. But 1 kind of said it really fast because I didn't want to make it sound like I was lying or anything. (Sworn Statement of 3/15/05). t): Did he ask you your age? A: Yeah. I told him I was I S. (Sworn Statement of I0/05/05). EFTA00214294 12/11/2007 11'38 FAX oos/098 K. Alexander Acosta December 11. 2007 Page 3 • KIRKLAND & ELLIS LLP Q: Did he know your age? A: I don't think -- I think he did. Downstairs was like oh. well if they ask you how old arc you just say you're I R hut he never asked me how old I wax. 1 thought you had to be IX to give a massage (inaudible). (Sworn Statement of 12/13/05) A: We were supposed m say we were IR. 0: Who told you that, to nty that? A: (Sworn Statement of I I /X./05). • S A: I told him 1 was IS. (Sworn Statement of I0/3/05). • concerning Well with I I don't know how old she is because she lied about her age. She lied to me when I first met her. When I was IS she told me she was IS. (Inaudible.) Well she tell her purse at my house and she told me to make sure that I didn't look in her purse. When I went through her purse I found her state license that said she was 16 so she lied to me about her age. (Sworn Statement of 10/03/051.' • • Q: Now. how old were you when you lint started going there? A: Eighteen. I'm 19 now this last Mareh.n (Sworn Statement of 10/12/05). Q: And all this occurred when you were IS though? In addition to giving a soorn statement at the PAP() St: tion. 5 conversations with Detective while being transported to mid from the station were also recorded. This excerpt i. taken from the recording of raveling from the slat tint. EFTA00214295 12/11/2007 11.38 FAX gP 007/099 KIRKLAND & ELLIS LLP R. Alexander Acosta Uceember I I. 2007 Page 4 A: I Ih-huh. I had been 18 for like 8 months. nine months already. My birthday is in June su I had been 18 for a while. (Sworn Statement of 2/3/05). 0: Okay. How old are you now? You're. - A: I'm 20 Q: You're 20. So a couple months ago you would have been what. 19? A: Ith-huh. 0: Alright. So July, August you would have licen 19, 20. On the verge of 20? A: Ulithuh. (Sworn Statement of 11/4/05) We believe that other witnesses have similarly told the FBI that Mr. Epstein attempted to monitor the ages of the masseuses who came to his home. We further believe that these transcripts would show that the federal interest in prosecuting Mr. Epstein fur paradigmatic state °Mimes was far less compelling than the inaccurate pollee reports suggest. B. pcteetive I= Made Crucial Misstatements in the Police Report and Probable Cause Affidavits. We have reviewed the sworn and recorded witness statements of many of the individuals who were interviewed (conducted in person or by telephone) as well as a number of the controlled calls cited in the Police Report. 'lime Mier time, we found statements in the Police Report attributed to statements made in the sworn recordings that either simply were nut said. or in sonic instances. are flatly contradicted, by the witness who purportedly mu • • tement. In fact, they often stand in stark contrast to representations made by Detective in both the official Police Report and in affidavits signed by him under oath . We highlight the most significant ones identified to date: • aDiel Not Report that Epstein Told Her to Lie About her Age the Probable Cause Affidavit indicates that during her sworn statement "-advised that during her frequent visits Epstein asked for her real age. IM stated she was sixteen land that' Epstein advised her not in tell anyone her real age." Arrest Probable Cause Affidavit at I I. That statement appears nowhere in Ms sworn statement. EFTA00214296 12/11/2007 11:38 FAX la 008/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page Did Not State that Epstein Photographed Her Having Sex Detective also reports as claiming that iipstein would photograph and her naked and having sex and proudly dis the photographs within the home." Id at 12. Again, this statement is not in ='s swam statement. To the contrary, the transcript reflects that stated: "I was just like, it was me standing in front of a big white marble bathtub .. . in the guest bathroom in his master suite. And it wasn't like I was you know spreading my legs or anything for the camera, I was like. I was standing up. I think I WILS standing up and I just like, it was me kind of looking over my shoulder kinds smiling. and that was that." Sworn Statement of 10/11/05 at 35. 2 Said Epstein Did Not Touch Her Inappropriately Detective recounts that advised that "Epstein grabbed her buttocks and pulled her close to him." Probah e 'new Affidavit at 6. See also, Police Report (10/07/05 at 30 (some). never made this statinnem. In fact, when Detective sked. "He did not touch you inappropriately?" responded. "No." Swum Statement of 10/04/05 at I I. • if Nut Sixteen When She First When to Epstein's llome. Detective states: ' also stated she was sixteen years old when she first went to Epstein's house . ncident Report at 52. However. affimustively states that she was seventeen when she first went to Epstein's home: - Q: Okay. How old were you when you first went there? A: Seventeen. Q: Seventeen. A: And I was 17 the last time I went there ton. I turned I$ this past June". Sworn Statement of I I/14/05. • Told Detective Rccarcy that Epstein Did Nu/Takeout Sex Tays. I he Probable Cause Affidavit indicates ilia staled, "Epstein would use a antasager/vibrator, which she described as white in color and a large head. Epstein would rub the vibrator/massager on her vaginal area as he would masturbate." Pmbable Cause Affidavit at 14: sot a/sa Police Report f I/10/05) at 49 ("Epstein would use a massager/vibrator, which she described as white in color with a large head, on her."). This statement appears nowhere in the transcript of 's swum ■ was interviewed by Detectiva twice, once by telephone, and once in in The portions of the Police Report to which we refer specilicalb cite tiw imNrson interview of ads the source for the information reported. We have reviewed the retooling of that interview and hese the comparison on that review, We have never heard n recording or die telephone interview, EFTA00214297 12/11/2007 11:39 FAX a 009/099 KIRKLAND 8. ELLIS LLP December 11. 2007 l'age 6 statement. In fact. when Dctectiv' asked whether Mr. Epstein had -ever take[n] out any toys," responded. -No." Sworn Statement of 11/08/05 at 17. • Did Not Recall Mr. Epstein Masturbating Detective -counts that -advised she was cure [Mr. Epstein] was mastur aunt based on his hand movements going up and down on his penis area." Probable Cause Affidavit at 8. See oho Police Report (10/07/05 al 33 sante). Detectives account is in direct contradiction to true statement. specifically: Q: Okay did he ever take off— did he ever touch himself? A: !don't think so. Q: No. Did he ever masturbate himself in fmnt of you? A: I don't remember him doing that. Ile might have hut I really don't remember. (Sworn Statement of 1(/05/05 at 7). • Stated that Only One Girl Looked Young Police Report at 57: stoical that towards the end of his employment. the masseuses were younger an younger. However, he said no such thing: Q: Did they seem young to you? A. No. sir. Mostly no. We saw one or two young ones in the last year. Hefore that. it was all adults . . . I remember one girl was young. We never asked how old she was. It was not in my job . . . But I imagine she was 16. IT'. (Sworn Statement of I1/21/05) C. Defective Made Material Omissions in the Police Report. In addition to the misstatements in the Police Report and Probable Cause Affidavit as to the evidentiary record, there were also material omissions. both of facts known to the PBPD and also of facts nut known to the MOD, though known by the State Attorney. In the latter instance. the lack of knowledge was the result of the PBPD's refusal to receive the exculpatory evidence. In last. they refused to attend a meeting called by the State Attorney specifically to provide the relevant evidence. 1 has, the Police RCM* and Probable Cause Affidavit only oiler a skewed view of tlx: facts material to this matter. Examples follow. I. The Video Surveillance Equipment Located in Mr. Epstein!r Office and Garage. Ruth the Police Report (at 43) and the Probable Cause Affidavit (at 18) make EFTA00214298 12/11/2007 11:39 FAX e 010/099 KIRKLAND & ELLIS LLP December 11. 2007 ['Age 7 particular mention of the "discovery" of video surveillance equipment (or "covert cameras" as they are called) in Epstein's garage and library/office. Inclusion of this information insinuates a link bow • • • • airman and the events at issue: in the Probable Cause Affidavit Detective states, "on the first floor of the 'Epstein' residence I [Detective found two covert cameras hidden within clocks. One was kwatal in the garage and the other located in the library area on a shell behind Epstein's • • • • computer's hard drive was reviewed which showed several images of and other witnesses that have been interviewed. All of these images appeared to come from the camera positional behind Epstein's desk". See Probable Cause Affidavit at IR. Clearly omitted from both the Police Report and the Probable Cause Affidavit is the fact that the MK). and specifically Detective Rccarey. knew about the cameras since they way installed in 2003. with the help al the PAPA to address the theft of cash from E.pstein's home. This fact is detailed in a PaInt Beach Police Report prepared in October 2003 dual • Is, the installation of video equipment. the video recording capturing (Mr. Epstein's then house manager) "red handed". and he incriminating statements made by when he was confronted at the time. See tat that the video footage was turned over to IX:waive Police Report at 5. R. The annemporanani, report confirms the himself. 2. Polygraph £raatiaatian and Report. On May 2. 2006. Mr. Epstein submitted to a polygraph examination by George Slattery. a highly respected polygraph examiner who is regularly used by thc State Attorney. The examination was done ai". l - • , were told that the sole locus of the investigation was the conduct wit Mr. Epstein was asked (a) whether whether he "in anyway threatenledi "that she was IR years old"; an ( ) whether he "believed . was IR years old". As set forth in the Report of the examination. the term "sexual contact" was given an extremely broad meaning in order to capture any inappropriate conduct that could have occurred.} 11w results of the examination uch conduct occurred: (ii) Mr. Epstein never threatened told Mr. Epstein she was IS years old: and (iv) Mr. Epstein felievc was I R years old. ct with (h) (c) whet t • was to d by I lw definition inclothal: "sexual intercourse. oral WA acts (penis in mouth ur mouth on vagina). linger ri.monoion of the vaging linger penetration or the anus. muching or th4: vagina for sexual grailtiention purposes, touching of the penis for scsual t ratiticatiott purpnws. masturbation by or to another. tosichine or rubhins or thy breams. or any other physical contact involving sexual thoughts native desires with another person". EFTA00214299 12/11/2007 11:39 FAX la011/099 KIRKLAND & ELLIS LLi R. Alexander Acosta December I I. 2007 Page 8 3. Broken **Sex Taw" in Mr. Epstein's Trash. The Police Report details the police finding in Mr. Epstein's trash what is described as broken pieces of a "sex tor and that this "discovery" purportedly corroborated witness statements. Omitted from both the Police Report and the Probable Cause Affidavit is the fact that during the course of' executing the search warrant in Epstein's home, the police discovered the other piece of that key "sex tor and realized it was in !het only the broken handle of a salad server. Though "sex toys" play a prominent role in the Police Report and Probable Cause Affidavit. the Police Report was never amended to reflect the discovery of this new and highly relevant evidence. 4. Failure to Consider Erculpatory or Impeaching Evidence. Other exculpatory and impeaching evidence known by the PBPD was omitted from the Police Report and Probable Cause Affidavit by. in our view, manipulating the date the investigation was allegedly closed. According W the Police Report (at 85). Detective "explained Ito ASA that the PBPD had concluded its ease in December of 2005". That assertion, which is false. conveniently resulted in the omission of all information adduced subsequent to that date. Thus. though the Police Report in fact contains information obtained after December 2005. the PBPD purported to justify its refusal to consider, or even to include, in the Police Report, the Probable Cause Affidavit or what it released to the public, all the exculpatory and evidence impeaching the witnesses submitted on behalf of Mr. Epstein. most of which was provided alter December 2005. That evidence is listed below. 5. Unreported Criminal Histories and Mental Health Problems of the Witnesses Relied an In the Police Report and Probable Cause Affidavit Evidence obtained concerning the witnesses relied upon to support the Probable Cause Affidavit casts significant doubt on whether these witnesses ore sufficiently credible to support a finding of probable cause, let alone to sustain what would he the prosecution's burden of proof at a trial' Though such evidence was submitted to the PLIPD. none of it was included in the Police Report or the Probable Cause Affidavit. • While the Police Report (at 57) and the Probable Cause Affidavit (at 21) contain assertions by which allegedly support bringing a criminal charge. the evidence revealing evident mental instability: prior criminal conduct against Epstein: and bias tc. ,t.lt s Epstein is notably omitted. As detailed above. in 2003nas filmed taking money from Epstein's home. After being caught on videotape unlawfully entering Epstein's home and stealing cash front a briefcase, I Whik We have never intender.110 and do not here seek to east aspersions on any of the witnesses. in previously asking the State and now asking you to evaluate the strength of this ease. we have been constrained to point ow the fact that the alleged v. 'n a C se to present themselves to the world through MySpace profiles with self-selected monikers such a. and ' or with nude piton-is. EFTA00214300 12/11/2007 11:40 FAX el 012/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 9 admitted to the PHPD that he entered the house unlawfiilly on numerous occasions, stealing cash and attempting to steal Epstein's licensed handgun to commit suicide. Although this information was known by Deteetiveat the time the Police Report and Probable Cause Affidavit were prepared. and is clearly material to an • determination of credibility, it was omitted. was the source of the vast majority of the serious a legations made against Epstein. While the Police Report and Probable Cause Affidavit rely on numerous assertions. there arc two significant problems with that reliance. First there is no mention of certain critical admissions made by= during her interview. as well as on her MySpace wehpage (discovered by defense investigators and turned over to the State Attorney). Setanid.M hut omitted fmn) the Police Report is an • reference to the fads known about her by the MD. specifically, that at the aim was making these assertions she had been arrested by the PAM and was hats prosecuted jar "'accession of marijuana and drug paraphernalia We lake each in tuna. • Admits Voluntary Sexual Conduct With Epstein. Refuses to Disclose the Disposition of the Monies Site Earn and Lies About Being "Given' a Car by Epstein: Detective failed to include in the Police Report —admission that on one occasion she engaged in sexual conduct with Epstein'sgirlfriend us her birthday "gill" to Epstein. Nor does Detective include the fact that flatly refused to discuss with him the disposition of the thousands of dollars she said she was given by Epstein. or that she falsely claimed that she did not use drugs. despite her MySpace entries in which she exclaims "I can't wait to buy some weedumn- Deteetial was aware the car had been rented. not purchased. and only it was only leased on a monthly basis for two months. While fanciful claim that she was given a car appears in the Pollee Report, it is never corrected. • Vas Arrested for Possession of Media na and Drug arap terns to. As noted. on September I I. 2005.Mwas arrested for possession of marijuana and drug paraphernalia. In response to this arrest. I tall - came forward- (as the Probable Cause Affidavit implies at I0- l), claiming she had knowledge of - sexual activity taking place" at Epstein's residence and misconduct by Epstein. Obis -coming forward" a ors no where in the Police Report.) Thus. it becomes clear that assertions of misconduct by Epstein were motivated by a desire to avoid the repercussions of her own criminal conduct, which should have been taken into account when assessing her credibility as a witness. EFTA00214301 12/11/2007 11.40 FAX 0013/099 R. Alexander Acosta December 11.2007 Page 10 KIRKLAND & ELLIS LLP • Steals Front a Victoria's Secret Store. An investigation y private investigators working for the defense revealed that in lute 2005 was employed at a Victoria's Secret store in Florida. Three days afier her ;liana ease was terminated. IIMIwas caught by a stop: manager as attempted to leave the store with merchandise in her purse, the security tag Mill attached. Seeing the manager.M:laimcd "someone is trying to set me up". Following an internal investigation. which disclosed additional thefts from both the store and a customer. she was fired. In a recorded interview. admitted to stealing and asserted that her reason liw doing so was that "she was not getting paid enough". "Ibis information and supporting documentation was presented to the PBPL). but was never included in the Police Report or Probable Cause Affidavit. • Lies on *Space About Victoria's Secret Store Ternanallon. Also uncovered by defense investigators is dissembling version of the Victoria's Secret debacle on r "MySpace" wchpage. There. announced that she ". . . forgot to let everyone know I quit my job at V.S. They said they suspected me of 'causing losses to their company' which by tlx: way is bullshit. was 'hy the honk' on EVERYTHING!!! . . . I got so fed up in that office that I handed the Loss Prevention lady back my keys and walked out". This information and supporting documentation was provided by the defense to the PUPD. but was not included in the Police Report or Probable Cause Affidavit. • Lies en her Victoria's Secret Job Applicatian. Additional information on MySpace wehpage casts further doubt on her credibility. For example. she boasts to having engaged in a fraudulent scheme to get hired by Victoria's Secret. explaining. "Oh, it was s' funny I used [my boyfriend' as one of my references for • ' • • rd job and the lady called me back and told me that gave me such an outstanding reference that she did not need to call anyone else back.. . . he got me the job! Just like that . .. I lied and said he was the old stock manager at Holister she bought it. . ." This inthrmation and supporting documentation was provided by the defense to the PRPD, hut was not included in the Police Report or Probable Cause Affidavit. Boasts About Her Marijuana Use. Also on her y pace we page can he Mum admissions of purchasing and using marijuana and marijuana Ixtraphentalia. Stales she "can't wait to buy some weed!!! . . . I can't wait!!! . . . (I MId on: EFTA00214302 12/11/2007 11:40 FAX 0014/099 R. Alexander Acosta Decemher 11.2007 Page 11 KIRKLAND & ELLIS LLP let me say that again) I can't wait to buy some weed!!!. . . I also want to get a vaporizer so I can smoke in my room because apparently there are 'narcs' everywhere-.=also posted a photograph of a marijuana cigarette and labeled it at heaven looks like to me". This information and supporting documentation was provided by the defense to the Pall), was not included in the Police Report or Probable Cause Affidavit (although there is both a fleeting reference in the Police Report to use of marijuana with her boyfriend lat 671 and in the Probable Cause Affidavit to marijuana arrest (at lo- ll)). • While the Police Report and Probable Cause Affidavit contain numerous assertions intended to negate taped admission that she clear! • told Epstein she was IR, omitted from these documents is reference to MySpace webpage. presented to the State Attorney's Office. where . in no connection to this case, she qffirtnatively represented to the world that she was IS, thereby corroborating her lie to Epstein. Also omitted is any reference to her long history of run-ins with law enforcement. Among those arc multiple runaway complaints by her parents and her assignment to a special high school for drug abusers. • 'I/Apace Webpage States She Drinks, Uses Drugs, Gets into Trouble, Has Deafen Someone Up, Shoplifts. Has Lost her Virginity, Earns 5250,000 and Higher, and Contains Naked and Provocative Photographs. The first image seen on MySpace webpage, the photo echo se to represent her. Is ih4t of a naked woman provocatively king on the beach. The illuminating webpage also contains-assertions that of all her body pans. she "lovelsi her ass". she drinks to excess. uses drugs, "gets into trouble, has beaten someone up. has shoplifted "lots", "already lost" her virginity, and cams "$250,000 and higher". As with tlx: other impeaching infbnnation. this material, vital to determining credibility, was provided by the defense to the PRPD but was never included in the Police Report or Probable Cause Affidavit. • Prior Recurs! — Drugs, Alcohol, Running Away From Home. has a history of running away/turning up missing from her parents various homes; of using drugs and alcohol; and of associating with individuals of questionable judgment. For example, a Palm Beach County Sheriff's Office Report details how only two days after she returned to Florida to live with her father, on March 31, 2006. police were called to the home in response to her father's report that she and her twin sister were missing. The Police Report describes her as "under the influence of a narcotic us Ishel could barely stand up, EFTA00214303 12/11/200? 11:41 FAX 11015/009 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page 12 u teri eyes were bloodshot. and 'her uails were diluted [Niel'. It flintier documents that had stayed out all night and were returned home by a -drug dealer. This event coincided with having been found at an "ina ro riate location" by Georgia police in response to a call taboo disappearance. Although this information. material to determining credibility. was provided by the defense and known to the PBPD. it was never included in the Police Report or Probable Cause Affidavit. While the Police Re port and Probable Cause va rely on statements of his federal hank mu convic on. w is c mix investigators discovered and influd over to the PBPD during the course al' the investigation. was omitted. served 21 months in federal prison for his offense. • While the Police Report and Probable Cause AI ie ova re y on statements stepmother. omitted is sta a comae ion Ur 1 identity fraud. This information. uncovered by defense investigators, was also turned over to the PBPD during the course of the investigation. D. In Unlit Of The Compromised Nature Of The Evidence —A Fulsome Review Should Re Conducts. These tainted and inaccurate reports compromised the ledend inv.:Nagai ion.4 As you may know, the PBPD took the unprecedented and highly unethical step of releasing these reports to the media as well. These reports spread across the Internet, and were undoubtedly read by the other individuals who were later interviewed by the FBI for giving Mr. Epstein massages. As we have shown, these reports contain multiple fabrications, omissions. and outright misstatements of fact. Moreover. the evidence and the allegations were undeniably misrepresented to the MI. with no inclusion of the evidence exposing the deficiencies of the "proor and the exculpatory evidence upon which the State relied. Furthermore. it should he noted that many of these same individuals were also interviewed by the FBI after their state interviews but prior to Mr. Epstein's counsel providing the government with the transcripts of the recorded interviews. The 4 Although we have been informal that the FBI identified and then inicrsiessi:d addit. - I riflemenl witnesses, many of their discoveries arc hclieved to have emanated from message pad% roniaininit contain in forma ion that were scion! mini Mr hpuyin% home pursuant to a state search warrant thai was deeply and constillii tonally flawed by Iniiisstateinents and omissions as well as other facial deliskinks EFTA00214304 12/11/2007 11:41 FAX ON018/089 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 13 transcripts and tapes, which we hope to share with you in person, will likely present a very different view of those interviews taken afterwards. Therefore. in the interest of truth. we ask you to review the transcripts. compare them to the FBI reports upon which the indictment was predicated. and then determine whether the FBI summaries and the prosecution memorandum upon which the charging decisions were made overstate Mr. Epstein's federal culpability. Concomitant to these requests. we would ask that you determine whether the investigative team ever provided these trustworthy tapes and transcripts to those in your Office who were being asked to authorize the prosecution so that they could themselves assess the reliability of the FBI interview repons against a verbatim record of the same witness's prior statements. We believe that this request is fair and would not be unduly burdensome. II. THE IMPROPER IN VOI EM ENT AND CONDUCT OF FEDERAL AUTHORITIES. As established above, the Slate's charging decision. of one count of the solicitation of prostitution, was hardly irrational or irregular. Indeed, I ana Belohlavek. a Florida sex prosecutor for 13 years, concluded that the women in question were prostitutes and that "there arc no victims here." There was no evidence of violence. force, drugs. alcohol, coercion ur seen abuse or a position of authority. Each and every one of the alleged "victims" knew what to expect when they arrived at Mr. Epstein's house and each was paid for her services. In filet, Mr. Lpstein's message book establishes that many of these women routinely scheduled massage sessions with Mr. Epstein themselves, without any prompting. Ms. I3elohlavek also noted that many ()I' these individuals worked either as exotic dancers or in one of the ma masse parlors dotted across West Palm Beach. Ms. Belohlavek also specifically stated that could not be trusted and was "only interested in money." She further found that it was inappropriate for Mr. Epstein to register as a sex offender because she did not believe that he constituted a threat to young girls and because registration had not been required in similar or even more serious eases. Ms. Belohlavak thought. and still believes, that the appmpriate punishment is a term of probation. Yet. the government has devoted an extraordinary amount of its time and resources to prosecute Mr. Epstein for conduct the State believes amounts to a "sex for money" case. While we are loathe to single-out for criticism the conduct of any particular professional, we cannot escape the conclusion that the cumulative effect of the conduct of Assistant United States Anima led your Office to take positions during the investigation and negotiation of this matter that has led to anon:cab:mai federal overreaching. In tact. Judge Ilcrben Stem's states " . . .the federal authorities inappropriately involved themselves in the investigation by the slate authorities and employed highly irregular and coercive tactics to override the judgment of state law enforcement authorities as to the appropriate disposition of their case against your client." See Judge Stern's letter faxed to you on December 7, 2007. EFTA00214305 12/11/2007 11.42 FAX Ill 017/099 KIRKLAND & ELLIS LLP December 11, 2007 Page 14 A. The Petite PolietShould Have Precluded Federal involvement. As you know, prior to negotiating the terms of the Agreement. we requested that the government consider the Petite Policy and the problems associated with conducting a dual and successive prosecution. We stressed to your Office, on a number of occasions, that we had reached a final negotiated resolution with the State and were only being forced to postpone the execution of that agreement for the sake of the federal investigation. We made submissions and met with your Office to present analyses or the fact that federal prosecution in this matter was in direct conflict with the requirements of the Petite Policy. It was our contention, and remains our contention, that federal prosecutors had never intervened in a matter such us this one. And because there was no deficiency in the state criminal process that would otherwise require federal intervention. the express terms of the Petite Policy precluded federal prosecution regardless qf the outcome of the stale cave. Since the state investigation was thorough and in no way inadequate and the concerns implicated by the matter all involved local issues and areas of traditionally local concern, we urged your Office to contemplate whether a federal prosecution was appropriate. However, on August 3. 2007. rejected a proposed state plea which included that Mr. Epstein serve two years of supervised custody followed by two years of incarceration in a state prison, with the option of eliminating incarceration upon successful completion of the term of supervised custody. among other terms. stated that "the federal interest will not be vindicated in the absence of a Iwo year term in state prison." See August 3. 2007 letter. Such an articulation of the federal interest, we believe. misunderstands the Petite Policy on two grounds. First. the Olliec's position that the federal interest would not be vindicated in the absence of a jail term for Mr. Epstein. runs contrary to Section 9-2.031D of the United States Attorney's Manual, because this section requires the federal prosecutor to focus exclusively on the quality or process of the prior prosecution. not the sentencing outcome. Second, the slate plea agreement offered was not "manifestly inadequate" under 11.S.A.M. § 9- 2.03ID. indeed, the only real difference between the state and federal plea proposals was whether Mr. Epstein served his sentence in jail or community quarantine. We formerly believed that our Petite Policy concerns were being addressed or. at least. preserved, hut we learned that only after reaching a final compromise with your Office us to the terms of the Agreement, and at the very last minute, that language regarding the Petite Policy was removed from the final version. The two following references to the &lite Policy had been included in the drafi prosecution Agreements up until September 24. 2007. the day the Agreement was executed, at which point they were eliminated by your Office: IT APPEARING, after an investigation of the offenses and Epstein's background. that the interest of the United Stales pursuant to the Petite policy will be served by the following procedure ... Epstein understands that the United States Attorney has no authority to require the State Attorney's °nice to abide by any terms of this agreement. Epstein understands that it is his EFTA00214306 12/11/2007 11.42 FAX it 018/099 KIRKLAND & ELLIS Lo December 11. 2007 Page 15 Angelina% to undertake discussion with the Slate Attorney's 011ie,: to ensure compliance with these procedures. which compliance will he necessary to satisfy the United Status' interest. pursuant In the Poise policy. We reiterate that this ease was at heart a local matter that was being fully addressed by the state criminal justice system. The state process resulted in an appropriate resolution of this matter and would have vindicated any conceivable federal interest. Thus. there was no substantial federal interest that justified a federal prosecution. It has recently come to our attention that that the CE.OS chief statements may be relevant to this matter. While we welcome the opportunity to consider these statements. our extensive research had found only one federal action that was remotely similar to the federal investigation for the prosecution of this matter. and that ease has since hccn distinguished as well. N. . Promnted An Undulv Invasive Investieation Of Mr. Enstein. investigation of Mr. Epstein raises serious questions. Despite the filet that she was made aware of the inaccuracies in the PBPD's Probable Cause Affidavit. she chose to include the affidavit in a document filed with the court knowing that the public could sceess it. Then, issued letters requesting documents whose subject matter have no relation to the allegations against Mr. Epstein. Notabl . alter we objected to these overly broad and intrusive rt. nests. Deputy Chief denied knowledge of actions and commendably sought to significantly narrow the list of documents requested. In a subsequent court filing, referred to our agreement to remove these items from her demand list as evidence of r. .pstem's -non-cooperation". 'Ibis was only the beginning. also subpoenaed an agent of Roy Black (without following the guidelines provided in the United States Attorney's Manual that require prior notification to Washington necessary to seek a lawyer's records). We once more requested to intervene. Despite these efforts. followed up with a subpoena fur Mr. Epstein's etmlidenthal medical records served directly on his chiropractor (with no notice to Mr. Epstein). also made the unusual request of asking the State Attorney's Office for sonic or the grand jury materials. She threatened to subpoena the State when she was informed that it was a violation of Florida law to release this information. After compiling this "evidence-. stated she would he initiating an investigation into n it violations of IS U.S.C. *1591 (again without the required prior DOJ notification). then broadened the scope of the investigation without any foundation for oing so •v adding charges of money laundering and violations or a money transmitting business to the investigation. Mr. Epstein's counsel explained that there could be no basis for these charges since Mr. Epstein did not commit any prerequisite act for a ma laundering charge and has never even been engaged in a money transmitting business. responded that Mr. Epstein could be charged under these statutes because he funded EFTA00214307 12/11/2007 11 42 FAX a 019/099 KIRKLAND & ELL I5 LLP Dccenthcr II, 2007 Page 16 illegal activities. To suggest that Mr. Epstein could violate these statutes simply by spending his legally earned money on prostitutes is manifestly an erroneous interpretation of the hew. To our relief. alter briefing at a meeting regarding the spurious application of these statutes, we were told to ignore the laundry list and that defense counsels' focus should be turned to 18 U.S.C. §2422(h). Once Mr. Epstein's counsel submitted and presented the reasons why a federal case would require stretching the relevant federal statutes beyond recognition, and that federal involvement in this matter should he precluded basest on federalism concerns, the Petite Policy, and general principles of prosecutorial discretion. the parties commenced discussions of a possible plea agreement. Around this time. we received an e-mail from suggesiin4 that she wanks] in discuss the possibility o ' • • federal and state resolution. We were immediately Maimed by your Office that did not have the authority to make any such plea proposals • he involvt.x1 in any further negotiations of a plea. Despite this commitment. was the principle negotiator of the Agreement. At our meeting on September 7. she made reference to an allegation against Mr. Epstein involving a 12 year old individual. This allegation is without merit and without found:Mon. Though your last liter suggests there was "no contact" between individuals in your Office and the press. we were previously told by hat the Flit was receiving "intimation" specifically from Connolly. a Vanity Fair reporter, and not vice versa. C. Included I Infair Terms in the Am-cement, took scions in negotiating this matter that stray Imm both stated policy and established law. First. insisted that as part of du federal plea agreement. the State Attorney's Office, without being drown new evidence, should be convinced to charge Mr. Epstein with violations of law and recommend a sentence that are significantly harsher than what the State deemed appropriate. In fact. the State Attorney viewed this matter as a straightforward prostitution case and believed that a term of probation was • and is - the appropriate sentence. At insistence, however. Mr. Epstein was forced to undertake the highly unusual and unprecedented action of directing his defense team to contract the State prosecutors themselves and ask for an upward departure in both his indictment and sentence. There was no ellbrt by the state and federal prosecutors to coordinate the prosecutions. a practice which is against the tends of the Petite Policy. In our view, it is unprecedented to micro-manage each and every term of Mr. Epstein's State plea. including the exact state charges to which Mr. Epstein plead guilty; the lime-frame within which Mr. Epstein must enter that state plea and surrender to state officials: and the amount of time he must spend in county jail. This is particularly true where the State EFTA00214308 12/11/2007 11:43 FAX 020/098 KIRKLAND & ELLIS LLi' December I I, 2007 Page 17 Attorney's Office has a different view of the case and there has been no coordination with state authoritics.6 In addition required that Mr. F.pstein's sentence include a registerahle offense. As you know, requiring sexual offender registration will have a significant impact both immediately and forever alter. This harsh term. which is said to be suggested by the FBi. was added despite the fact that the Mate believed that Mr. Epstein's conduct did not warrant any such registration. As you know, slate officials have special expertise in deciding which offenders pose a threat to their community. Moreover, this demand places the state pmseeutors' credibility at issue and diminishes the force of sexual registration when ° is applied to °Minters who state pmsecutors do not believe are dangerous or require registration. decision not to permit the Slate Attorney to determine a matter uniquely within its province was unwarranted. What is more. when negotiating the settlement portion of the Agreement. insisted that a civil settlement provision be included in the Agreement namely, the inclusion of 18 iLS,C. 2255. a negotiating term which is unprecedented in nature., While %ve were reluctant and cautious about a plea agreement in which a criminal defendant gives up certain rights to contest liability for a clvi! settlement, ultimatums required that we acquiesce to these unprecedented terms. For instance, when plea discussion stalled as a result of MIN= demands. Mr. Epstein's counsel received a letter from her slating as it Thaw appears you will not settle." Al this point. expressed her intention to re-launch the government's previously set aside money laundering investigation. She also issued a mesh of subpoenas and sent target letters to Mr. Epstein's employees. adding new federal charges including obstruction of justice. She then personally called Mr. Epstein's largest and most valued business client without any basis to inform him of the investigation. In an attempt to prevent further persecution and intimidation tactics. we proposed that Mr. Epstein establish a restitution fund specifically for the settlement of the identilied individuals' civil claims and that an impartial, independent representative be appointed to administer that fund. There was no dollar amount limit discussed Ibr the fund, hut the idea was still rejected. We then pointed out that the state charges to which Mr. Epstein was to plaid guilty • h it a state restitution provision that would allow "victims" to recover damages. owever, rejected this idea and suggested requiring a guardian ad !item. implying that " When asked whether De (Moil of Justice polices reganling coordination with stow imihorliies had been followed • ve no response other than Mating. - it is none of your concern.- ; In fact a former deputy to hu% muted dial she knew of no other caw like this being prosecub. y l. :OS. With that in mind. we welcome the opportunity t0 review the extensive research that CEOS has clone, as indicated by your Office. EFTA00214309 12/11/2007 11 43 FAX Ri021/099 KIRKLAND & ELLIS LLP December 11.2007 Page 18 the alleged "victims" in question were currently minors and waled special representation. We later learned that the government's list of individuals included a woman as old as twenty-four. which flies in the face of prior representations (it should be noted that any person who is currently twenty four years old or older could not have been a - victim- under 18 U.S.C. t 2255. even if the conduct occurred in 2001). A insistence, the parties ultimately agreed to the appointment of an attorney representative. hut then took the position that Mr. lipstein should pay for the representative's fees. which effectively meant that Mr. Epstein must pay to sue himsell.3 also proposed wholly irrelevant charges such as making obscene phone calls and violations of child privacy laws. When Mr. Lunde learned of these proposed charges he asked Mr. Epstein's defense team to ignore them as they would "embarrass the Office.- D. Continually And Purposefully Misinterpreted The Critical Terms u 1 lc Aareentent. Since the execution of the Agreement has repeatedly misconstrued the terms contained therein. As you know. several facets of this mailer have been highly contested by the panics. We sometimes have obtained two competing views as to your willingness to compromise on specific issues that we have raised with your Office. In particular, there arc t• • • we have received verbal agreement hum you or your stall (and sometimes from Ms. herselt) on a particular issue. only to subsequently receive a contradictory interpretation from that negates our prior common understanding. tier misinterpretations appear to be attempts to effectively change the spirit and the meaning of the Non-Prosecution Agreement. We offer several examples of significant misinterpretations. First. despite the fact that we received several commitments from your Office that it would monitor Mr. Epstein's state sentencing but not interfere with it in any way. sought to do just that. decision to utilize a civil remedy statute in the pin of a restitution fund for the a es vie ems eliminates the notification requirement under the Justice for All Act of 2004. a federal law that requires federal authorities to notify victims as to any available restitution. not of any potential civil remedies to which they are entitled. Despite this fact, ced a Victims Notification letter to he sent to the alleged federal victims. has gone even further. alleging that the "victims" may make written statements or testily against Mr. Epstein at the sentencing. We bind no basis in law or the Agreement that pmvides the identified individuals with either a right to appear at Mr. E.pstein's plea and sentence or to submit a written statement to he filed by the State Attorney. Here. Mr. " this an.intentena does not put dose alieged "victims' in the mine position ;is they would hens heen had Mr. Epstein been convicted at trial - in fact, they hire Much WWI' Olt EFTA00214310 12/11/2007 11:44 FAX a 022/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 19 Epstein is pleading guilty to. and being sentenced Dix. state offenses. not the federal offenses tinder which the government has unilaterally recognized these identified individuals as - victims". The notion that individuals whose names are not event known to the charging prosecutor in a state action should somehow be allowed to speak at a proceeding is unjustifiable. Furthermore. only after obtaining the executed Agreement did begin insisting that the selected re re.• • - •'sduties go beyond settlement and include litigating claims for individuals. In Victims Notification lever, she states that Mr. limilturst and Mr. Josefsberg. the selected attorney representatives. may "represent" the identified individuals. This tango a •a • • at the selected representatives will agree to serve in the capacity envisioned by which is patently incorrect. Vet, neglecting the spirit of the negotiations: neglecting the terms of the Agreement: and neglecting commonly-held principles of ethics with respect to confliels, ontinues m improperly emphasize that the chosen attorney representative should he able to litigate the claims of individuals. In a similar fashion. has overstated the scope of Mr. Epstein's waiver of liability pursuant to the Agreement. began asserting that Mr. Epstein has waived liability even when claims with the identified individuals arc not settled just after the execution of the Agreement. Despite the fact that at that time. we obtained an agreement from you that Mr. Epstein's waiver would not stretch past ;with:mem. continues to espouse this erroneous interpretation. F.. an The Settlement PrsSess. We are concerned that has repeatedly attempted to manipulate the process under which Mr. Epstein has a to sett e civil claims. First. she inappropriately attempted to nominate !lambert "Hen" Oeariz for attorney representative. despite the fact that Mr. Oeariz has a longstanding relationship with friend and law school classmate of from counsel. We also learned from Mr. Ocariz turns out to he a very good personal boyfriend. a fact she assiduously kepi hidden that she shared with Ocariz the summary• of charges the government was considenng against r. Epstein. Even after your O that it was inappmpriatc for its attorneys to select the attorney representative. continued to lobby for Mr. Ocariz's appointment. On October 19.2007, retired Ju ge wan. Davis. who was appointed by the parties to select the attorney representative. informed Mr. Epstein's counsel that he received a telephone call from Mr. Ganz directly requesting that Judge Davis appoint him as the attorney representative in this matter. Furthenunre. federal interference continues to plague the integrity of the implementation of the Agreement. We recently learned that despite the fact that there was no communication hctwecn state and federal authorities as m the investigation of Mr. Epstein. the FBI visited the State Attorney's Office two weeks ago to request that Mr. Epstein he disqualified to participate in work release even though the Agreement mandates that Mr. Epstein be treated as any other inmate. EFTA00214311 12/11/2007 11.44 FAX a 023/099 KIRKLAND & ELLIS Lit R. Alexander Acosta December 11. 2007 Page 20 III. CONCLUSION In sum, we request that you review the evidence supporting the prosecution of Mr. Epstein. Such a review would serve to address similar concerns as those raised in Heady v. Maryland. which mandate the disclosure of evidence material to guilt or innocence even after the execution of an Agreement to enter a plea of guilty. See 373 U.S. 83 (1963). We "prosecution team" was informed by its witnesses (including persons other the and who arc discussed at length above) that Mr. Epstein's practice was to see women older than 18 rather than targeting those under 18. We wmtld expect, for instance, that a key witness whose interview with the FBI was recorded, would have provided sue exonerating intimation us well as many others. We would also expect the review to uncover clear evidence that demonstrates that Mr. Epstein did not travel to Florida for the purpose of having illegal underage sex nor that he induced underage women by using the Internet or the phones. Furthermore. we ask you to consider whether there is reliable evidence nut just that Mr. Epstein had sexual contact with witnesses who were in fact underage hut whether the allegations arc based on trustworthy (and corroborated) evidence that (i) Mr. Epstein knew that the fetnale(s) in question was under I8 at the time of the sexual contact. (ii) Mr. Epstein traveled to his home in Palm Beach kir the purpose of having such sexual contact to the extent the allegation charges a violation of IX U.S.C. § 2423(h) and (c) Mr. Fpstein induced such sexual contact by using an instrumentality of interstate commerce to the extent the allegations charge a violation of IS U.S.C. § 2422(b) (there is no evidence of Internet solicitation which is the norm upon which 'Wend jurisdiction is usually modeled under this statute). We believe that the information we provide to you in this submission will be informative and spark a motivation to gain more information with respect to the investigation of this matter. Again, we are not seeking to unwind the Agreement: we arc only seeking for you to exercise your discretion in directing that an impartial and respected member of your Office test the evidence upon which the droll federal indictment was based against the "hest evidence." including the transcripts of the tape recorded pre-federal involvement interviews. Finally. I would like to reiterate our appreciation for the opportunity you have provided to review *nine of our issues and concerns. I look forward to speaking with you shortly. Sincerely. i'M i ,/` 4/4 ' ay4). Lefkoyit7 EFTA00214312 12/11/2007 11:44 FAX /11024/099 KIRKLAND & ELLIS LL(' Jo. V Letkowk2, P C In C.II WI' lief Directly, lelkowitzekoklinx1.cern VIA FAC:SI M 11,N: (305) 530-6444 Ilonorable K. Alexander United States Attorney United Stab Attorney's Office Southern District of Florida 99 Nli 4th Street Miami, EL 33132 Dear Alex. *10) MOILIATED pAsitionnin Ca"YOUP Cowie. 153 Cast 53n1 Sweet Now York. Now York 10022-4611 (212).440.1500 www.lorkland corn December I I. 2007 Re: Gµgrin FOcoonllo I thank you lbr the opportunity to express my concerns with the Section 2255 component of the Non-Prosmution Agreement (1he "Agreement"). I pmvidc this submission as a good faith enbrt to communicate nll or our concerns on this matter. I respectfully request that you consider the issues I discuss below in conjunction with the ethics opinion of Mr. Joe D. Whitley that 1 fared to your Office on December 7. Background of Negotiations I believe it is important fix you to he aware of the full scope and substance of our communications with your Office with respect to first, the negotiations regarding the inclusion of the Section 2255 component and second. the process of implementation of its terms. Contrary to your Office's view, we do not raise our concerns about the Section 2233 component of the Agreement at the "eleventh hour." Since the very first negotiation of the Non-Prosecution Agreement between the USAO and Mr. Epstein. we have verbalized our objections to the inclusion of and specific language relating to Section 2255. Also. when negotiating the settlement portion of the federal plea aµreement. we immediately sought an alternative to the 2255 language. In fact. for the sake of expediting any monetary settlements that were to he made and to allow for a quick resolution of the matter. 'se repeatedly Mimed that Mr. Epstein establish a restitution fund specifically for the settlement of the identified individuals' civil claims and that an impartial, independent representative be appointed to administer that fund. This option. however. was rejected by your Office. Notably, while in our December 4 letter to me. you indicate that the reason for the rejection of a fund was because it would place an upper limit on Chicago Hong Kong LonOun Us Amain Wroth San Francs= Washington. D.C. EFTA00214313 12/11/2007 11. 05 FAX a 025/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page 2 the victims' recovery, we placed no such limit on the amount that the alleged victims could recover. Our objections regarding the Section 2235 component of the Agreement began as early as August 2 when. after receiving the LISAO's proposed Non-Prosecution Agreement. we suggested that the 2255 component of the Agreement could be satisfied by the creation of restitution fund: . . .Mr. Epstein is prepared to hilly fund the identified Emit of victims which arc die focus of the Office — that is. the 12 individuals noted ai the meeting on July it, 2007. This would idlow the victims to be able to promptly put this behind them and go ftwwards with their lives. Ilsgivcii the opportunity to opine as to the appropriateness of Mr. Fostein's proposal, in my extensive experience in these types or caws. tbe victims prefer a quick resolution with compensation for damages and will always support any disposition that eliminates the need fur trial. See letter from Lily Ann Sanchez to dated August 2. 2007.1 For the duration of the negotiations, we then continued to encourage the use of a restitution fund in place of civil liability under Section 2255. For example. in our draft plea agreement sent to your Office on September 16. 2007. we included the following paragraph: Epstein agrees to fund 3trust set up in concert with the Government and under the supervision of the IS' Judicial Circuit in and for Palm 'leach County. F.pswin agrees dial a Trioace will be appointed by die Circuit Conn and that lunch from the Trust will be available to he disbursed at the -looter's discretion to un agreed list of persons who seek reimbursement and make a good faith showing to the Tomei: that they suffered injury as a result of the conduct of Epstein. Lipstein waives his right to contest liability ur damages up to an amount agreed to by Ilse panics for any settlements entered into by the Trustee. Eivaenrs waiver is not to he construed as an acluu.eiawl of civil or criminal battiky in regards to any of those who seek emispensalion from the Trust. See draft proposal sent from Jay Lclkowitz to Andrew I.oude dated September 15. 2007. In response, demanded that the Agreement contain language considering the inclusion of a guardian ad litem in the proceedings. despite the fact that, we an: now led to believe that all but one of the women in question are in fact not minors. Interestingly. Ms. not only raises the same concerns that now have become issues with respect to the implementation of the Section 2255 cum mem, she also believes that the creation of a trust would be in the victims' best interests. writes: It was not until abide receipt of this letter that indicated to us that the scope of liability would encompass mu just die 12 individuals minted in the indictment, but "all or the minor girls identified during the federal investigation." Sc, e-mail to Sanchez dated August 3, 2007. EFTA00214314 12/11/2007 11:45 FAX it 026/099 KIRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page 3 As I menliimed over the telephone. I cannot bind the girls to the Trust Agreement, and I don't think it Is ammtriate that a state court would administer 11 mist that seeks to pay for ledend civil claims. IFe Mob mum to (mad unscrupulous attorneys diktat liiigaius Fans consIngivneant and buns that your client wants to Leer there matters outside of public coort.lilings. hot I ilea don't have the power to do what you ask. Here is my recommendation. During die period between Mr. Epstein's plea and sentencing. I make a motion for appoitanwnt of the Guardian Ad 1.itcm. 'the three of us sit clown and discuss things, and / will fac)iinny in ninth as I can getting the itiris' approved of this primedger !Penrose. as I Ittemitmed I thinA It is prahahly in their hest aileron. In terms of plea agreement language, let me suggest the following: Tlw 1 hilted Stales agrees to make a motion seeking the appointment of a Guardian ml I.item to represent the identified victims. Following the App oiniment of such Guardian. the parties agree to work together in good faith to develop a Trust Agreement. subject to the Cnurt's approval. that would provide liw any rk ages owed to the Windiest victims PIII:41131111 III IS ILS.C. Section 2255. Then include die last Iwo sentences of your paragraph It See email froir to letkowitz dated Sc tenther lb. .2007 (emphasis added). I lowever. notably. in the drat) agreement that follows. keeps the same objectionable language and only adds a portion of what was suggested in her communication to us: Epstein agrees that. if any of the victims identified in the federal investigation file suit pursuant to IS U.S.C. 9 2255,, Epstein will not contest die jurisdiction of the U.S. ISistriet Court for the Southern District at Florida over his person amkor the subject mailer, and Epstein will not contest that the identified victims arc penes who. while minors. were victims of violations urn*: Ill, United Slates Code. Sections(s) 2422 and:or 2123. The United States shall provide Errocin's anome,4 with a IS of the identified victims, which will not exceed luny. after Epstein has signed this agreement and has been sentenced. The I Mated States shall make a motion with the Linked Stales Uiarict Court tor die Southern ISistrict of Florida for the appointment of a guardian ad them for the identified victims and Epstein's counsel may contact Ow identified victims through that counsel. See draft non-pmsecution agreement e-mailed fro to Lelkowitz dated September I?. 2007. the inclusion of a guardian ad 'them, however. on y served to complicate matters. We continued to reiterate our objections to the inclusion of § 2255 in the Agreement repeatedly. as evidenced in an email from to myself on September 23. 2005 where she writes: "we have been over paragraph 6 'the then relevant 2255 paragraphl an infinite number of times." During negotiations. it was decided that an attorney representative be appointed in the place of a guardian ad Mem -- not for the sake of litigating claims. but based on the belief that a µuardian ad litem would not be appropriate for adults that arc capable of making their own decisions. I lowever. the IISA • • •tl into the Agreement that we pay for the attorney representative — when originally stated that the n:presrmative could he paid for by us or the federal court. Sec c-mail frona Lelkowitz dated September 23. 2007. EFTA00214315 12/11/2007 11:45 FAX t 027/099 KIRKLAND & ELLIS Lir R. Alexander Acosta I)cecmhcr I I. 2007 l'age 4 the final agreement was very similar to what was proposed b. in her initial draft agreement on July 31. 2007: the United States shall provide Epstein's attorney's w ilh a list of individuals whom it his identified as victims, as delined in III U.S.C. ✓; 2255. alter Epstein has signed this agroment and has been sentenced. Upon the execution of this agreement, the United States. in consultation with and subject to the good faith approval of Epstein's counsel. shall select an attorney representative for these persons. who shall be paid for by Epstein. Lpstein's counsel may contact the identified individuals through that represcntaiive. If any of the individuals referred to in paragraph (7), septa. elects In file suit pursuant to It § 2255. Epstein will not contest the jurisdiction of the United States District Court fur the Southern District of Florida over this person and'or the subject matter. and Epstein waives his right In coolest liability and also waives his right to contest damages up to an amount as allecil to between the identified individual anal Epstein. so king as the identified individual elects to poicectl exclusively under IS U.S.C. § 2255. and agrees to waive any other claim for damages. whether pursuant to slate. federal. or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United Statc.s. Epstein's signature on ibis agreement. huts waivers and failures in contest liability and such damages in any suit are Iloilo he construed us an admission or any criminal or civil liability. See final plea agreement. The Agreement requires Mr. Epstein to waive jurisdiction and liability under IR U.S.C. §2255 for the settlement of any monetary claims that might be made by alleged victims identified by tlw USAO (the "identified individuals"). Mr. Epstein is precluded from contesting liability as to civil lawsuits seeking monetary compensation for damages for those identified individuals who elect to stole the civil claims for the statutory minimum of either $50.000 (the amount set by Congress as of the date of the occurrences) or $130.000 (the amount currently set by statute) or some other agreed upon damage amount. Mr. Epstein must pay for the services of the selected attorney representative :as long as they are limited to settling the claims of the. identified individuals. The implementation of the icons of the Agreement was just as contentious as was the dialling and ne '• s this portion of the Agreement. The first major obstacle was a direct result of improper attempt to appoint. Mr. Bert Dean?. a close, person friend of her boyfriend's for the role of attorney representative. We objected in the strongest terms to such an appointment due to our serious concerns regarding the luck of independence of this and the appearance of impropriety caused by this choice. As n result. the LISA° drafted tin addendum to the Agreement. This addendum provides fur the use of an independent third party to select the attorney representative and also specifies that Mr. Epstein is not obligated to pay the cost of litigation against him. Upon the decision that we would appoint an independent party to choose the attorney representative. we were engaged in consistent and constant dialogue with your shift as to the precise: language that would he transmitted to the independent party to explain his or role. EFTA00214316 12/11/2007 11 46 FAX 029/099 KIRKLAND & ELLIS LLP R. Alexander Acosta Decemhcr I I. 2007 Page 5 At each juncture. the inclusion of a civil remedy in the Agreement has resulted in unending debates and disagreements with respect to the appropriate manner in which to implement the terms of the Section 2255 component. The main issues that have arisen since the dialling and execution of the final agreement include the process flit the selection of an attorney representative: the scope of Mr. Epstein's waiver of liability and jurisdiction: the role of the attorney representative: the language contained in various drafts of the Iota to the independent third party: the correct amount of minimum damages pursuant to Section 2255: the extent and substance of communications between the witnesses and alleged victims and the USA° and the FBI, particularly with respect to the settlement process: the language contained in the lends proposed to be sent to the alleged victims: and the extent of continued federal involvement in the state procedures of Mr. Epstein's state plea and sentence. Notably. neither Section 2255. nor any other civil remedy statute, has been used as a pre- requisite to criminal plea agreement and it is dear that the use of these terms creates unanticipated issues. Furthermore. the waiver of rights of which the b AO insisted is also not a traditional aspect of criminal resolutions. While we were reluctant and cautious about a Non- Prosecution Agreement in which a criminal defendant gives up certain rights to contest liability for a civil settlement, we did not believe them was room ay contention given the USAO's, and specifically ultimatums that required that we acquiesce to these unprecedented terms. Concerns Regarding Section 2255 Mr Epstein unconditionally re-asserts his intention to WWII and not seek to withdraw from or unwind the Agreement previously entered. Ile raises important issues regarding the implementation of the 2255 provisions not to unwind the provisions or invalidate the Agreement but instead to call attention to serious matters of policy and principles that you are requested to review. As you will see below our main policy-related concerns are ( I ) the inclusion of Section 2255. a civil remedies statutes in a criminal plea agreement. (2) the blanket waiver of jurisdiction and liability as to certain unidentified individuals to whose claims the government has asserted they take no position, and (3) any communications between federal authorities, including your staff and the Fill, and witnesses and alleged victims and the nature of such communications. With respect to the interpretation of the terms of the Agreement. we do not agree with your Office's intetpretation of the expansive scope of Mr. Epstein's agreement to waive liability and jurisdiction. Nor do we agree with your Office's view of the expansive role of the attorney representative. Below. I describe first, the policy implications and the practical problems that these terns have created or will create Second. I describe points ol' contention us to the interpretation of various terms of the Section 2255 component of the Agreement. EFTA00214317 12/11/2007 11.46 FAX 029/099 KIRKLAND & ELLIS LLP It. Alexander Acosta December I I, 2007 Page 6 1. Policy Considerations The inclusion of Section 2255 in a criminal plea agreement is unprecedented and raises significant policy-related concerns. Some of these issues can create and have created problems us to the ability of this component to (1) maintain the integrity and independence of the USA°. (2) serve its purpose. namely to provide fair and appropriate recovery to any victims in a prompt fashion, and (3) protect the rights of the defendant. While we appreciate your consideration of our concerns described below, we arc also conlickm that your commitment to justice and integrity will cause you to consider any additional policy and ethical issues that the Section 2255 component raises. A. Government Involvement The inclusion of Section 2255. a purely civil remedy. raises the risk of excessive government interference in private, civil matters. As Mr. Whitley states in his opinion. . .tninectmary entanglement of the government in such cases and the use of federal resources could improperly influence such cases and create the appearance of impropriety.' It is well established that the government should refrain from getting invoked in lawsuits. I lowever, to include Section 2255 in a federal agrccmcnl inherently exacerbates the risk of federal involvement in civil litigation and thus far, in practice, the inclusion of this statute, as opposed to the creation of a restitution fund, has resulted in continued li:deral involvement in this matter. Federal criminal investigators and pn)secutnrs should not be in the business of helping alleged victims of state crimes secure civil financial settlements us a condition precedent to entering non-prosecution nr deferred prosecution agreements. 'Phis is especially true where the defendant is pleading to state crimes for which there exists u state stanne allowing victims to recover damages. See Florida Statutes Z 796.09. The fact that state law accounts for the ability of victims to recover truly eliminates the nerd for a waiver of liability under a federal statute. Furthermore, the vehicle for the financial settlement under the Agreement requires restitution in a lump sum without requiring proof of actual injury or loss federal authorities should therefore be particularly sensitive to avoid causing a prejudiced and unfair result. Sect ion 2255 is a civil statute implanted in the criminal code that in contrast to all other criminal restitution statutes fails to correlate payments to specific injuries or losses and instead presumes that victims under the statute have sustained damages of at least a minimum lump sum without regard to whether the complainants suffered actual medical, psychological or other forms of individualized harm. We presume that it is for this reason that Section 2255 has never before been employed in this manner in connection with a nnmprosecution or deferred prosecution agreement. EFTA00214318 12/11/2007 11:47 FAX l030/089 KIRKLAND & ELLIS LLP It. Alexander Acosta December I 1. 2007 Page 7 Mr. Epstein's blanket waiver of liability as to civil claims gives the appearance of impropriety. While your Office has, on several occasions, asserted that they take no position as to the claims of the individuals it identifies as "victims.- the fact that they continue to promote the award of a civil settlement to these individuals is problematic. As you know. government coronets and plea agreement must net diminish or undermine the integrity of the criminal justice system. See US. v. McGovern. 822 F.2d 739. 743 (8th Cir. 1987) ("A plea agreement. houvver. is not simply a contract between two panics. it necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea.- ). The requirement that Mr. Lipstein blindly sacrifice his rights. as a civil litigant. to contest allegations made against him seem to contradict the principles of justice and fairness that arc embedded in the tenets of the United Slates Attorney's Office. I also assert that on both a principled and practical level, the mere involvement of your O1110: in the matter with respect to civil settlement is inappropriate. Even though we understood from you that federal involvement in this matter would cease after the attorney representative was selected, your Office continues to assert their obligation to he in contact with the alleged victims in this manor. Had we agreed to a restitution fund for the victims instead of the civil remedies provision, we would not have objected to your Office's communications with these individuals. However, because the alleged victims have the ability to recover damages based on a civil claim pursuant to the Agreement, we are concerned with your Office's ongoing efforts to stay involved in this matter. Contact with fixleral authorities at this point can only invite the possibility for impermissible or partial communications. Most recently, your Ollitx: sent us drafts of a letter that your Office proposed to send to the alleged victims (the "victim notification letter). While the revised draft of this letter slates that victims should contact the State Attorney's Office for assistance with their rights, there is no phone number provided for the office and instead the letter provides the telephone number and an invitation to contact Special Agent of the FBI. Indeed, the letter as currently drafted invites nut only contact between your Office and the victims, it also asserts that federal witnesses may become participants in a state proceeding. thus federalizing the state plea and sentencing in the same manner as would the appearance and statements of a member of your Office or the FB1.2 We arc concerned with the fact that some of the victims were previously notified. a. Mr. Jeffrey Stoma wale* in his terser of December 6 Idler In your letter of December 4. you state that )ou would not issue the Victim Notification Letter until December 7. 'I lax, it r troubling to learn that some victims Weft notified prior to that date. Please confirm when the victims were nod fled, who w a. notified. the method of communication for the notification, and tlx: individual who notified them EFTA00214319 12/11/2007 11:47 FAX a 031/099 KIRKLAND & ELLIS LLP K. Alexandcr Acosta December I I. 2607 Pnge X The proposed victim notification letter asserts that the federal 'victims' have the right to appear at Mr. Epstein's plea and sentence or to submit a written statement to be filed by the State Attorney. However, as agreed to in the federal non-prosecution Agreement, Mr. Epstein will be pleading to mote churgvx and he will be sentenced tiff the commission of mate offenses. The 'victims' the govenunent identifies relate only to the federal charges for which Mr. Epstein was under investigation. The draft victim notification letter cites Florida Statutes § 960.001(k) and 921.143(1) as the authority lhr allowing the alleged victims to appor nr give statements. however these provisions apply only to the victim of the crime fur which the defendant is being sentenced . . . " Thus Florida law only affords victims of state crimes to appear or submit statements in criminal proceedings and the state charges for which Mr. Epstein will be sentenced are not coextensive with the federal investigation. Further. any questions at this point involving the charges against Mr. Epstein or the proper state procedures under which he will plead or be sentenced are appropriately made to the State Attorney's Office. Continued federal involvement in this mutter has led to an impropriety that was unanticipated us well. attempted to manipulate the terms of Mr. Epstein's settlement so that persons c ose to her would personally profit. inappropriately attempted to nominate Bert Ocariz for attorney representative, despite the fact that Mr. Minix turns out to be a very good personal friend of Ms. Villalana's boyfriend, a fact she assiduously kept hidden from counsel. We requested alternate choices immediately, hut were told that Mr. Outwit had been inlbnned of the charges the government would bring against Epstein and in response, he asked in an e-mail whether his fees would be capped. Needless to say. we were alarmed that would attempt to influence the settlement process on such improper grounds. An even a er t e MAO conceded that it was inappropriate for its attorneys to select the attorney representative, continued to improperly lobby for Mr. ()eoriz's appointment. On October 19, 2007, retired Judge Edward D. Davis, who was appointed by the parties to select the attorney representative. informed Mr. Epstein's counsel that he received a telephone call from Mr. Ocariz directly requesting that Judge Davis appoint him as the attorney representative in this matter. Although it is unclear how Mr. Ocariz even knows that Judge Davis has been chosen to administer the settlement. process, it can only he understood as Ms. attempts to compromise the lisirnicss of the settlement process. R. Integrity of the Process and the Legitimacy of the Claims The waiver of liability Mr. Epstein must make in relation to Section 2255 endangers the legitimacy of the claims made by the alleged victims. There is a heightened risk that the alleged victims will make false and exaggerated claims once they are informed of Mr. Epstein's waiver under Section 2255 for the settlement of claims pursuant to the Agreement. Indeed. Mr. Whitley states. " . . .the Department (of Justice) should consider developing processes and procedures to ensure that the investigative procims is insulated from such risks." It is also well settled that witnesses cannot be given any special treatment due to the fact that it may :Meet the reliability of EFTA00214320 12/11/2007 11:47 FAX 032/099 KIRKLAND & ELLIS LLP It. Alexander Acosta Decetnber 11. 2007 Page 9 their testimony. Any and all communications between the federal authorities and the aliened "victims" and witnesses in this matter has the ability to influence the reliability of the testimony obtained and the validity of the civil settlements that result. Thus. there is still a real concern that mime of the statements that federal prosecutors relied upon in its prosecution of this matter may have been tainted. An inquiry is required to confirm that at the time witness statements were given. there were no communications made by federal agents regarding potential civil remedies. The government should not provide promises of guaranteed monetary settlements to encourage cooperation because they run the risk of seriously tainting the reliability of witness statements. While we by no means are accusing your Office of making improper communications at this point the fact that the award of a civil settlement, without any requirement to prove liability. is available to the identified individuals, raises cause Ibr concern as to the nature of all conununications that are made to the 'victims.' You previously stated that the IJSAO's main objective with respect to the Section 2255 component of the Agreement was to -place the victims in the same position as they would have been had Mr. Epstein been convicted at trial." I lowcvcr. to accomplish this goal. your Office rejected using traditional terms that allow for the restitution of victims. Instead, your Office chose to insert itself into the negotiations. settlement, and potential litigation of a civil suit. With all due respect. we object to your Office's attempt to make the victims whole by requiring that Mr. Epstein deprive himself of rights accorded to him as a potential civil defendant. While we am aware one of the responsibilities of your Office is to provide lire restitution for victims of crimes. this does not give the government the responsibility to enable alleged victims to collect a civil settlement. Despite this concern, it should also he noted that, the Agreement, both as written and as interpreted by your Office significantly enlarges the victims' ability to recover from Mr. Epstein. For instance. if the individuals attempted to litigate against Mr. Epstein. they would have been determined to be victims only after a lengthy trial, in which they would have been thoroughly deposed. their credibility tested and their statements subject to cross-examination. The defendant, under these circumstances, would not have had pay the plaintiffs' legal fees. Moreover, these individuals would face significant evidentiary hurdles, unwanted publicity, and most importantly, no certainty of success on the merits. Therefore. the notion that your Office is merely attempting to restore these - victims" to the same position as they would have been had Mr. Epstein been convicted at trial misunderstands the Agreement and your Office's implementation or its terms. C. Rights of a Defendant Requiring Mr. Epstein to make a blanket waiver of liability and jurisdiction as to unidentified victims whose claims to which the government takes no position can be construed as EFTA00214321 12/11/2007 11:48 FAX ei 033/099 KIRKLAND & ELLIS LLP K. Alexander Acosta December I 1.2007 Page 10 violative of his Due Process rights. Furthermore. the fact that the statute at issue in this matter does not connect harm to the minimum amount available to the victim and simply includes a lump sum exacerbates the potential for injustice and an abridgement of Mr. Epstein 's rights. At the very least. Mr. Epstein should be given the right to know the identity of the victims and the evidence upon which each one was identified as a victim by the government. The USAO has proyidiai no information us to the specific claims that were made by each identified individual, nor were we given the names or ages of tlx: individuals or the time-trame of the alleged conduct at issue. the t!SAO's reluctance to provide Mr. Epstein with any information regarding the allegations against him leaves wide open the opportunity IS misconduct by the federal investigators and eliminates the ability for Mr. Epstein and/or his agents to verily that the allegations at issue are grounded in factual assertions and real evidence. Indeed, the requirement that a target of ledend criminal prosecution agree to waive his right to contest liability as to unnamed civil complainants mates at minimum an appearance of injustice, both because of the obvious Due Process concerns of waiving rights without notice of even the identity of the complainant and because of the involvement of the federal criminal justice system in civil settlements between private individuals. We reaffirm the right to test the veracity of the victims' claims as provided to us in the letter from you to Judge Davis dated October 25. 2007. "victim" Mr purposes of Section 2255 relict: II has recently come to our attention that our staffhas identifi as a •ho initially fused to cooperate with federal authorities during the course of the investigation. only submitted to an interview after she was conferred with a grunt of immunity. Surd this is not a demand typically made by someone who is a crime - vie iii". Moreover sworn testimony does not suggest that she is a victim. has not only admitted that she lied to Mr. Lipstein about her age claimi • • X years old, but that she counseled others to lie to Mr. Epstein in the same manner. also states that Mr. Epstein was clear with her that he was only interested in "women" who were ol'age and that most of the stun g women she brought to his home were in over IS years of age. Moreover. whilt claims to have provided massages to Mr. Epstein. she does not allege to have engaged in sexual intercourse with Mr. Epstein: does not claim she provided him with oral sex: does not purport that Mr. Epstein penetrated her in any manner, denies Mr. Epstein ever used a vibrator, massager. or any type of "sex toy" on her: denies he touched her breasts. buttocks, or vagina: and states that she never touched Mr. Epstein's sexual organs -- no w s s e asked to du so by Mr. I tpsicin. Without a right to contest the liability of claims •ill likely receive fur more in civil damages than what would he she would have had Mr. Epstein been convicted. In addition, the Agreement with the MAO only defers federal prosecution of Mr. Epstein: it does not assert a declination to prosecute. as was first contemplated in the negotiation of the Agreement. Any payments made and/or settlement agreements reached with the alleged EFTA00214322 12/11/2007 11:48 FAX 1034/099 KIRKLAND & ELLIS LLI' It. Alexander Acosta December I I, 2007 Page I I victims prior to the foreclosure of any future federal prosecution carries the potential of being used as evidence against Mr. Epstein. 'thus. to protect his rights as a defendant. Mr. Epstein should not be required to pay any of the alleged victims until after the threat of prosecution no longer exists. II. Misinterpretations of the Agreement The contentiousness caused by the implementation of the Section 2255 portion of the Agreement has also been caused by what we believe are misinterpretations of the terms by your Office. These problems, which I describe below. are a practical outgrowth of the fact that civil settlement, as opposed to restitution. is considered in the Agreement. A. Rule of the Attorney Representative The USA() has improperly emphasized that ihe chosen attorney representative should he able to litigate the claims of individuals, which violates the terms, and deeply infringes upon the spirit and nature of. the Agreement. However. after the panics agreed to the appointment of an independent third party to select the representative, the government announced that the criteria for choosing an appropriate attorney representative would include that they be "a plaintiff's lawyer capable of handling multiple lawsuits against high profile attorneys." This interpretation of the scope or the attorney representative's role is 11w outside the common understanding that existed when we negotiated Mr. Epstein's settlement with the USAO. Moreover. we have made the LISA° aware of the potential ethical problems that would arise should the selected representative be allowed to litigate and settle various claims against Mr. Epstein. The initial draft victim notification law contained language that confirmed your Office's interpretation and indicated that Mr. Podhurst and Mr. Josershrog, the selected attorney representatives. may "represent" the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by the liSAO. which we believe is patently incorrect. To suggest this notion in a letter to victims who have limited or no knowledge of the ethical principles at issue will only lead to confusion, misunderstanding and disappointment among the identified individuals when they learn that such representation is foreclosed. R. Scope of Mr. Epstein's Waiver Your Office has taken the position that Mr. Epstein waives liability beyond the settlement of claims and that he will waive liability even in lawsuits brought by the identified individuals. However. this overstates the scope of Mr. Epstein's waiver pursuant to the Agreement. Mr. Epstein has only agreed that he will waive the right to contest liability and jurisdiction for the purpose of settling claims with the alleged victims pursuant to Sections 7 through 8 of the Agreement and Addendum. Mr. Epstein has no obligation to waive this right to contest liability EFTA00214323 12/11/2007 11:49 FAX 5095/099 KIRKLAND & ELLIS LLP K. Alexander Acosta December 11, 2007 Page 12 in any claim For damages • • by an enumerated "victim- or anyone else - where that puny fails to settle her claims pursuant to the terms of the Agreement. The revised dealt of the letter avoids this misinterpretation and directly quotes Paragraphs 7, & 9 and 10 of the Agreement. While we do not have any objection to including this portion of the Agreement in the proposed letter, we request that Paragraphs 7A. 7T). and 7C of the Addendum to the Agreement also be included because the language contained there in most clearly outlines the scope of Mr. limtein's obligation to pay damages under the Agreement. C. Right of the Alleged Victims to Be Notified As woe have expressed to you previously, we do not agree with your (Mice's assertion that it is either an obligation and even appropriate fin the LISA° to send a victims notification letter to the alleged victims. The Justice lin All Act of 2004 only contemplates notification in relation to available restitution for the victims of crimes. However, since Section 2255 is only one of many civil remedies, there is no requirement that the LISA° inform alleged victims pursuant to the Justice for All Act of 2004. Notably, if the USA() had agreed to include a restitution fund in the Agreement as opposed to a civil remedy statute, the alleged victims would have tlx: right to be notified pursuant to the relevant Act. Further. we note that the reasons you cite in favor of issuing the proposed Victims Notification letter in your correspondence of December 4 arc also inapplicable to this scenario. For instance, you cite IS U.S.C. § 3771 for the proposition that your Office is obligated to provide certain notices to the alleged victims. However. 18 U.S.C. § 3771(02) & (3) provide: A crime victim has the hallowing rights: Ct) The right u, reasotsuble, accurate. and timely notice of any public coon proceeding. or say parole proceeding, involving die crime or any release or escape of the accused. 131 the right not to be excluded from any such public court proceeding. utiles% the court, after Ix-toying clear and convincing evidence. determines that testimony by the victim would he materially altered lithe victim heard other testimony at abc proceeding. (emphasis added). Your interpretation of § 3771 is erroneous because the rights conferred by the statute indicate that these rights are for the notification and appearance at public proceedings involving the crime tor which the relevant individual is a victim. As you know, the public proceeding in this matter will be in stale court for the purpose of the entry of a plea on state charges. Therefore, 18 U.S.C. § 3771 clearly does not apply to - victims- who are not state "victims." You additionally cite your Office's obligations under § 3771(c)( I) of the Justice for All Act of 2004. Irowdier, this subsection relates bad: to the "rights described in subsection (a)." Thus, since the rights set forth in subsection (a) only apply to the victims of the crimes fur EFTA00214324 12/11/2007 11.49 FAX ci 089/098 KIRKLAND & ELLIS LLP R. Alexander Acosta fkeember I I.2007 Page 13 which the public proceeding is being held. the individuals identified by your Office have no rights to notification or appearance wider this Act. You further cite 42 U.S.C. 10607(cX1)O3) and (cX3) which. you state. obligates your Office to inform victims of -arty restitution or other relief' to which that victim may be entitled and of notice of the status of the investigation: the filing of charges against a suspected offender. and the acceptance of a plea. Although we do not believe this applies here tier the same reasons stated above. we further assert that your pmposed Victims Notification letter seeks to go beyond what is prescribed under 42 U.S.C'. 10607. Indeed, there is nothing in the statute that requires your Office to solicit witness testimony or statements Ibr the purposes of Mr. Epstein's sentencing hearing. Furthermore, we assert that any notification obligation you believe you have under this statute should be addressed by Judge Davis. We submit to you based on the policy concerns of including a civil remedies statute in a criminal agreement and requiring the waiver of a defendants' rights under that agreement creates a host of pmhlems that. in this case. have led to a serious delay in achieving finality to the satisthetion of all parties :Mewed. We appreciate your consideration of these issues and hope that we can find a solution that resolves our concerns. Sincerely. EFTA00214325