EFTA00214702.pdf

Dec-01-01 Mike Fro,-Fowler-White Burnett 1061//6201 T-066 P 00I/004 F-076 LAW OP MKS FOWLER WHITE BURNETT MIAMI, rLOIU DA 33131.3302 FAX TRANSMITTAL DATE: December 7, 2007 Name Fax Numhcr ex sta FROM: Lilly Ann Sanchez FAX NUMBER: MATTER NO: 71200 REMARKS: please see attached. NUMBER OF PAGES: 3 (Excluding trinaminal page) TEI.EPHONF. NUMBER: Original documents will O will not O follow by mail. TIME OF TRANSMITTAL: a.m./p.m. TRANSMITTED BY: Phan:copy should he token of this IMIWItillift41 if it is to be retained since facsimile paper has limited storage lift THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE (IF LONG DISTANCE, PLEASE CALL COLLECT) AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. PLEASE NOTIFY US IMMEDIATELY BY CAWNG (308)180-9200, IF THERE IS ANY PROBLEM. EFTA00214702 Dec-07-07 04:5444 From-Fowler-Whits Burnett 3057000201 1-086 P.002/004 F-076 FOWLERWHITE ATTORNEYS AT LAW BURNTT Aiwa • Fogril•aa • Werrimulaleacm • 07.90TERSCURO December 7, 2007 First Assistant United States Attorney United States Auomey's Office Southern District of Florida (WPM 11.W10 INATA 1.0.1Mit0T4 noes I 395 BilIGICW. AVOW( MIMe. 1%.O1,11OA 3313 1 TC...0•1•214 (3001 7590200 ratans MOGI 769-9 to gontromirtionoari ULLY AWN SANCHEZ Down Rene No.: (3051 7099279 Noon Maslow's Mo.. 13011 725-7579 gavoCterobitlintli-tort Re: Jeffrey Epstein Dear Pursuant to your letter dated December 6, 2007, attached is a signed Affirmation of the Non-Prosecution Agreement and Addendum to same dated October 30. 2007 (collectively "Agreement" signed by my client Jeffrey E Epstein (see attached). Moreover, pursuant to the tams of the Agreement, please note that the plea and sentencing hearing have been scheduled foe January 4, 2008 at 8:30 am. before Judge Sandra McSorley (please see attached notice of hearing). In addition. as expressed in my voicemail message to you earlier, I would request that the Office hold off on sending any victim notification letters until we can further discuss the contents therein. Please call me at your earliest convenience. Sincerely, cc. Alex A. Acosta Judge Kenneth Star Lilly Ann Sanchez Dal Vt.911O9LBITIM34oroatAll(32nO-13:51) FOWLAR Win &SWETT PA. EFTA00214703 Doc -B7 -07 04:55m Froe-fowlsr -Whits Burnett 3057609201 T-966 P 003/004 F-976 Affirms Oars I. Jeffrey B. Epstein do hereby re-affum the Noo-P:o see =on Ayer:lac it acid Ack.letatra to tune dined October 30, 2007. J7/1) 44- Du, EFTA00214704 Dee-07-0T 04:Slee From-Fowler-White Burnett 305/11020I T-011 P.004/004 F-076 STATE OF FLORIDA vs. JEFFREY EPSTEIN, Defendant. IN THE CIRCUIT COURT OF THE FIFTEEN111 JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2006CF009454AIOC NOTICE OF HEARING PLEASE TAKE NOTICE that the undersigned hu called up for hewing the following: JUDGE: Sandra McSorley DATE: January 4, 2008 TIME: 8:30 a.m. PLACE: Roam 11F. Palm Beath County Courthouse MATTER: Plea Confizence r Y CERTIFY that a copy of the fore o• has been furnished by mall r sEB quire. State Attorney's Office, West Palm Bear& Flonda 33401 this 7* day of December. 2007. ATIERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South Suite 1400 West Palm Batch, Fleri • 33401 (56 9-8300 IA* LDBERGER, ESQUIRE Fl Bar No. 262013 co: The Honorable Sandra McSorley EFTA00214705 12/07/07 FRI 15:31 FAX 1 213 680 8500 KIRRLAND&ELLIS LLP I& 001 KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street Los Angeles, California 90017 Phone. (213) 680-8400 Fax: (213) 680-8500 Please notify us Immediately If any pages ars not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED. MAY CONSTITUTE INSIDE INFORMATION. AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE UNAUTHORIZED USE. DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (213) 680-8400. To: lion. R. Alexander Acosta Company: Fax N: Direct N: United States Attorney's Office Southern District of Florida From: Date: Kenneth W. Starr Rpm vet os: December 7, 2007 34 Message Fax N: Direct SI: EFTA00214706 12/07/07 FRI 15:31 FAX 1 213 680 6500 KIRKLAND&F.I.LIS III' 00 2 Kennett W. Starr To Cali Wrier Directly; (213)6604440 Mitarmakkalanacorn KIRKLAND & ELLIS LLP VIA FACSIMILE (3051530-6444 Honorable R. Alexander Acosta United States Attorney United States Attorney's Office Sou District of orida Re: Jeffrey Epstein Dear Alex: Jun) APIllIA) b '.UM 111/01. 777 8c Naito@ Sant Lois Amain CaMornis 00317 (213) 600.1400 www.liirklend.00m December 7, 2007 Faceim1le. (213) 840-6603 As we discussed by phone earlier today, we will be providing submissions with respect to (i) concerns regarding the implementation of Section 2255, which raises, in our view, serious policy issues and (ii) concerns regarding the conduct and background of the investigation. We propose to have both submissions to you by no later than 3:00 PM on Monday December 10. In the meantime, we are furnishing herewith the independent ethics opinions of Judge Herbert J. Stern and Joe D. Whitley regarding the federal investigation of this matter, and the Section 2255 component of the Agreement, respectively. Please note that these opinions are in the process of being revised and updated. However, we send these opinions to you now to meet the tight deadline to which the parties have agreed upon. We will follow up with you by phone regarding our submissions before the close of business on Monday. As we discussed earlier today, these submissions will not be viewed as a breach of the Agreement. We, like you, are eager to achieve finality in this matter. QT1 Kenneth W. Starr cc: Assistant Attorney General Chicago First First Assistant U.S. Attorney Hong Kong London Munich Nov Yost San Francesco Washington. D.0 EFTA00214707 12/07/07 FRI 15:31 FAX 1 213 680 8500 K I RKLANDILEILL IS LLP Ilt] 003 ALSTON&B1RD UT Privileged and Confidential Attorney-Client Work Product 'Fa Jay P. Letkowitz FROM: Joe D. Whitley DATE: December 5, 2007 RE: Jeffrey Epstein have been asked to offer my views regarding the case of Jeffrey Epstein ("Mr. Epstein"), who entered into a Deferred Prosecution Agreement ("the Agreement") with the United State's Attorney's Office for the Southern District of Florida ("USAO") to resolve state and federal criminal investigations relating to his actions involving numerous young women. I am writing because the Agreement entered into by Mr. Epstein raises a variety of significant legal and policy issues that I believe merit further consideration by the Department of Justice ("the Department"). Please note that I only recently became involved in this matter. I was provided with the following documents by Mr. Epstein's defense counsel: the Agreement and the addendum thereto; the USAO's letter of Crime Victims' Rights —Notification of Resolution of Epstein Investigation; Jay Lefkowitz's letter to R. Alexander Acosta dated October 10, 2007; Jay Lefkowitz's letter to R. Alexander Acosta dated October 23, 2007; R. Alexander Acosta's letter to Judge Edward B. Davis dated October 25, 2007; Jay l,cfkowitz's letter to dated November 8, 2007; Judge Kenneth Starr's letter to Alice Fisher dated November 28, 2007; Jay Lefkowitz's letter to R. Alexander Acosta dated November 29, 2007; and R. Alexander Acosta's letter to Jay Letkowitz dated November 30, 2007. My opinion is based on my background and experience, a review of these documents, and independent legal research. PROCEDURAL HISTORY It is my understanding that Mr. Epstein entered into the Agreement with the USAO in order to resolve dual state and federal investigations into his alleged criminal conduct. As a condition of the Agreement, and to avoid federal indictment, Mr. Epstein was required to waive jurisdiction and liability for any monetary claims brought under 18 U.S.C. § 2255 by any member of a group of alleged victims who would later be identified to Mr. Epstein by the USAO. In addition, Mr. Epstein was required to waive the right to contest damages up to the statutory minimum in settling each of those claims. The Agreement does not provide for Mr. Epstein to conduct an independent inquiry to determine whether any colorable bases for any claims claim exist once he learns the identities of the alleged victims. Nor does it provide for any other mechanism for such a review. Atlanta • Ourimte • Dallas • New York • Research Triangle • Washington. D.C. www.•blon.com EFTA00214708 12/07/07 FRI 15:32 FAX 1 213 880 8500 K IRKLANDRELL I S LLP Z004 Jeffrey Epstein December 5, 2007 Page 2 Privileged & Confidential Attorney-Client Work Product ANALYSIS It has long been recognized that it is both appropriate and desirable for a federal prosecutor to require a criminal defendant to make restitution to his victims in order to satisfy the conditions of a plea agreement. Indeed. the United States Attorney's Manual specifically authorizes federal prosecutors to take restitution into consideration in making charging decisions. This case presents the more novel question of whether and in what circumstances the government may condition a plea agreement on a defendant's willingness to waive the right to contest civil liability for claims by his or her alleged victims. To my knowledge, this is a case of first impression because settlement of civil claims under 18 U'.S.C. § 2255 has never been required as a condition precedent to the satisfaction of a criminal plea agreement prior to the Agreement of Mr. Epstein. Use of 18 U.S.C. § 2255 in the manner outlined in the Agreement as a proxy for traditional criminal restitution in the Agreement raises a number of significant legal and policy concerns including: (I) the potential for entanglement of the federal government in a private civil suit, including the use of governmental resources and potential for improper influence on such a suit; (II) the due process implications of requiring a defendant to waive the right to contest jurisdiction, civil liability, and damages in future suits by as yet unnamed plaintiffs; and (III) the risk that the promise of uncontested damages may compromise victim testimony thereby undermining the legitimacy of the federal investigative inquiry. Given the significance of the issues implicated by the Agreement in this case, the Department would be well-served to make a high-level policy decision about whether and in what circumstances a federal prosecutor could properly require a waiver of the right to contest liability under 18 U.S.C. § 2255 and other civil statutes as a proxy for traditional victim restitution. I. Excessive entanglement It is well-settled that the federal government should not ordinarily use its power or resources to influence the outcome of private civil litigation. This is so because unnecessary entanglement of the government in such cases and the use of federal resources could improperly influence such cases and create the appearance of impropriety. Thus, any criminal plea agreement that causes the government to have a direct impact in the outcome of a private civil suit should be carefully scrutinized by the Department to avoid even the specter of such impropriety. The Agreement of Mr. Epstein. and similar plea agreements conflating civil liability with more traditional criminal restitution, are certainly cases that would warrant such Department-level review. This is so for several reasons. First, requiring a defendant to waive the right to contest civil liability as a condition of satisfying a plea agreement could give the appearance that a federal prosecutor was using the threat of the government's criminal enforcement power simply to extract private civil settlements from a defendant. Second, in order to ensure that a defendant settled the civil suits as required, the government would have to provide continuing oversight of the settlement process thus further enmeshing it in a purely ADMEN 20164491.2 EFTA00214709 _ _ 1t/Ir1/.07 FRI 15:33 FAX 1 213 880 8500 K I RKLAND&ELL I S LLP litoo5 Jeffrey Epstein December 5, 2007 Page 3 Privileged & Confidential Attorney-Client Work Product private civil suit. Third, depending on the breadth of the waiver of liability demanded, a plea agreement of the sort entered into by Mr. Epstein could force a defendant to settle otherwise merit-less civil claims in contravention of the government's fundamental mandate to promote justice. Thus, inherent in a criminal plea agreement conditioned on thc defendant waiving the right to contest civil liability for claims brought by alleged victims is the risk of excessive government influence in private civil matters. Therefore, the Department of Justice should seriously consider whether the use of such conditions in criminal plea agreements is appropriate at all, and if so, what restrictions and oversight should be in place to prevent undue entanglement. II. Due process Plea agreements of the sort entered into by Mr. Epstein may also have significant due process implications. In legislating and applying the principles of restitution in the criminal justice context, Congress and the courts have been concerned with several aspects of due process. To wit, they have uniformly required a factual and temporal nexus between the victims who arc to be compensated and the crimes charged When incorporating these principles of restitution into a deferred or non-prosecution agreement, the same care should be taken to ensure a proper nexus exists between the crimes charged and the victims to be compensated. This correlation between crime and punishment is one of the hallmarks of justice. When a plea agreement requires a defendant to waive his or her right to contest civil liability for future claims that may be brought by as yet unnamed plaintiffs whose bases for suit are unknown to the defendant, careful consideration should be given to ensure that proper safeguards arc in place. These due process considerations are even more pronounced when, as in this case, the defendant is required to waive the right to contest liability for suits filed under 18 U.S.C. § 2255. Under IK U.S.C. § 2255, if a defendant is found liable for violation of one of the predicate crimes, an injured minor victim is entitled to recover at least the statutorily prescribed minimum amount in damages. Thus, a plea agreement that requires a defendant to waive thc right to contest liability under this provision could leave a criminal defendant open to liability for claims with no factual merit by purported plaintiffs who suffered no actual injury. Indeed, the Agreement in Mr. Epstein's case requires him to waive the right to contest jurisdiction, liability, and damages as to an unnamed group of alleged victims who will only later he identified to Mr. Epstein by the USAO. Thus, because Mr. Epstein did not know the identities of the alleged victims identified by the government, he had absolutely no opportunity to conduct even a cursory ADMINICOM910 EFTA00214710 12/07/07 FRI 15:33 FAX 1 213 880 8500 K RKIANDAELLI LLP RI 006 Jeffrey Epstein December 5, 2007 Page 4 Privileged & Confidential Attorney-Client Work Product inquiry to ensure that an alleged plaintiff has a legitimate claim under 18 U.S.C. § 2255 prior to waiving his right to contest liability.' Mr. Epstein's case highlights the potential problems inherent in allowing federal prosecutors unfettered authority to condition a criminal plea agreement on a waiver of the right to contest civil liability. Indeed, given the fundamental prosecutorial mandate to do justice, one can query whether the government should ever accept a waiver of the right to contest liability from a defendant without providing him or her with sufficient information to at least identify the potential claimant and the basis for his or her claim. Thus, it is apparent that there is a need for the Department to establish clear and well- reasoned policies to guide federal prosecutors in determining if and under what circumstances civil liability waiver provisions in plea agreements such as the one used in the Agreement of Mr. Epstein are appropriate and, if appropriate, what safeguards should be employed. III.Compromising witness reliability and undermining the federal investigative process Plea agreements that require the defendant to waive the right to contest civil liability for claims of alleged victims also pose a risk of compromising the reliability of victims' testimony and undermining the legitimacy of the federal criminal investigative process. As already noted, the terms of Mr. Epstein's agreement require him to settle civil suits filed under 18 U.S.C. § 2255 by any alleged victim identified by the USAO without providing him with any opportunity to determine whether there is even a colorable factual basis for the individual's claim. Thus, to the extent that a witness is informed of this fact during an investigation, there is a risk that the witness' claims might be colored by the prospect of a guaranteed monetary settlement without any adversarial vetting process. This heightened risk that a witness might make false or misleading claims could thus undermine both the actual and perceived legitimacy of the federal investigative process. Given the inherent risk involved when a potential victim learns that he or she could obtain a substantial monetary settlement, the Department has a significant interest in protecting the perceived integrity of federal investigations in cases involving plea agreements of the sort entered into by Mr. Epstein. Thus, the Department should consider developing processes and procedures to ensure that the investigative process is insulated from such risks. Indeed, given that the Agreement in this case is apparently a matter of first impression, it seems appropriate fix both Mr. Epstein's counsel and the USAO to agree not to contact the alleged victims directly from this point forward and for the Department to conduct a thorough, independent inquiry to confirm that any alleged In fact, based on the documents I reviewed, it appears that at least one of the alleged victims is now 24 years-old. This suggests that the victim was either not a minor at the time of the alleged events or that the events fall outside of the timeframe of the charged crimes. ADsO14/20i64443•2 • EFTA00214711 12/07/07 FRI 15:34 FAX 1 213 680 8500 K I RKLANINLELLI S LLP ch 007 Jeffrey Epstein December 5, 2007 Page 5 Privileged & Confidential Attorney-Client Work Product victims were not improperly influenced, even if unwittingly, during the course of the federal investigation of Mr. Epstein. CONCLUSION There is no doubt that a federal prosecutor can and should consider restitution to victims as a factor in determining the appropriate plea agreement in a federal criminal case. It is unclear, however, whether and in what circumstances a federal prosecutor can properly condition a criminal plea agreement on the requirement that a defendant waive the right to contest civil liability and damages for a claim brought by an alleged victim. Indeed, it is apparent that conflating restitution with civil liability in this context has significant legal and policy implications that have yet to be adequately addressed by the Department. Given the many potential pitfalls of a plea agreement of the sort entered into by Mr. Epstein, even though it was entered into on a voluntary basis, I submit that the Department should devote its attention to the development of policies, procedures, and appropriate mechanisms for oversight of such plea agreements. Furthermore, given that no such review process currently exists, in the interest of justice, Mr. Epstein's case should be given appropriate departmental review at this time. 1 do not say this lightly, because I believe that such Department oversight should be reserved only for the exceptional case. In my view, however, the legal and policy issues implicated here arc so significant that such review is warranted. ADMP720169493v2 EFTA00214712 12/07/07 FRI 15:34 FAX 1 213 680 8500 KiRKLAND&ELLIS LLP 411008 STERN & KILCULLEN, LLC COUNSELORS AT LAW HERBERT J STERN KEVIN M KILCULI.EN JEFFREY SPEISER JOEL M. SILVERSTEIN EDWARD S. NATHAN PASOUALE J RUFOLO JOHN P INGLESINO LINDA A ELI-ENRON TERRY L YRANTINA JOHN P. WYCISKAI A ALAIN LEIBMAN LISA D. TAYLOR MARK W. RUFOLO STEVEN D GORELICK 75 LIVINGSTON AVENUE ROSELAND. NEW JERSEY O7O69 Alan Dershowitz, Esq. Harvard Law School 1563 Massachusetts Avenue Cambridge, Massachusetts 02139 TEE 973 53640C° FAX; 973 536-9684 December 7.2007 LING LAU MELISSA L. NIGLIO OCLADE SHAUN T. HUGHEY NATHAN .J STEIN MICHAEL GINGER BRIAN J. DEBOER HOWARD B TAT EDUARDO J JIMENEZ RICHARD EDWARD HAMILTON Of couNKEL Re: Jeffrey Epstein Dear Mr. Dershowitz: You have asked me to review the procedures and methods employed by the United States Attorney's Office for the Southern District of Florida in injecting itself into the State of Florida investigation and prosecution of your client, Jeffrey Epstein. In short, and as will be set forth at greater length herein, my review indicates that the federal authorities inappropriately involved themselves in the investigation by the state 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. What is particularly unusual here is that the allegations against Mr. Epstein are the type that are routinely and traditionally investigated and disposed of by state authorities and which the United States only rarely, if ever, retains jurisdiction. What is even more extraordinary here is the obvious purpose of the federal authorities to EFTA00214713 12/07/07 FRI 15:34 FAX 1 213 880 8500 KIRRLANDSIELLI LLI1 lit 009 Alan Dershowitz, Esq. December 7, 2007 Page 2 dictate the outcome of a state proceeding under circumstances of limited, if not actually nonexistent federal interest My Background I have extensive experience in the administration of criminal justice both on the state and on the federal level. I was employed as an Assistant District Attorney in New York County from February 1962 until October 1965. One of the investigations I was responsible for was the death of Malcolm X. From 1965 until 1969 I was employed by the United States Department of Justice in Washington as a trial attorney in the organized crime and racketeering section of the Criminal Division. I was assigned to investigate and to prosecute cases involving wrongdoing in municipal government and in the trade union movement. in 1969 I became the Chief Assistant to the United States Attorney for the District of New Jersey. From 1970 to 1971, I was the acting United States Attorney for the District of New Jersey. From 1971 through 1973, I was the United States Attorney for the District of New Jersey. In these positions I personally conducted or supervised trials of numerous public officials on both the state and federal level as well as a myriad of other federal crimes, and worked closely with law enforcement officials at the local and state levels. From 1973 through 1987, I was a United States District Judge for the District of New Jersey and presided over many criminal trials and proceedings. In 1979 1 was selected by the United States Department of State to be the United States Judge for Berlin to preside over a trial of individuals who allegedly highjacked an airplane from East Germany to West Berlin. Since 1987, 1 have been in the private EFTA00214714 12 07'07 FRI 15135 FAX 1 213 680 8500 KIHNIAND&I-11.1.1S LIT a010 Alan Dershowitz, Esq. December 7, 2007 Pagc 1 practice of law and have represented clients in various jurisdictions who have been investigated by federal and state authorities. Attached is a copy of my resume. Thus, I am very familiar with the operation of the criminal justice system both on the federal and state levels, as well as the factors used by federal and state prosecutors in charging defendants. The Allegations Mr. Epstein is alleged to have had improper sexual contact, solely in Florida, with womcn who were under the age of 18. Mr. Epstein maintained residences both in New York and Florida and would repeatedly fly from New York to Florida where his primary residence was located He would travel to Florida for purposes of returning to his home. Upon his return he would ask his assistants to make various day to day arrangements including social visits, exercise appointments, appointments with physicians and the like. On numerous occasions telephone calls would be made by his assistants for women to come to his home to provide him with massages, for which they were paid. On occasions those calls were made after Mr. Epstein and his staff arrived in Florida and at other times massages were scheduled after the masseuse called Mr. Epstein's home looking for "work". Mr. Epstein preferred that the masseuses be over the age of 18 and many were, in fact, in their early to mid twenties. There are allegations that Mr. Epstein routinely masturbated and repeatedly sought to touch the masseuses. We are aware the government has alleged sexual intercourse and digital penetration in a number of instances EFTA00214715 12/07/07 FRI 15:35 FAX I 213 680 8500 K I RKI.AND&FI.I.I LI.P rit 011 Alan Denhowitz, Esq. December 7, 2007 Page 4 What does not seem to be in dispute is that there are no claims that Mr. Epstein transported any minors in interstate commerce, nor did he troll the internet or use the interact to identify or lure any minor to engage in any improper conduct. There is no credible evidence that Mr. Epstein specifically targeted young children for sexual activity of any sort or that he is a sexual predator who preys on children, although it later turned out that some of the women were younger than 18. Nor are there any plausible claims that Mr. Epstein used force or threats against anyone or that he profited fmancially. The matter came under investigation by the State officials in Florida After Mr. Epstein learned of the allegations, he fully cooperated with the State authorities. The investigation revealed what is stated above - - no violence was ever used, there was no targeting of minors, there was no coercion, financial gain etc. - - and, importantly, there were serious creditability problems with many of the witnesses, at least one of whom refused to comply with a grand jury subpoena to testify. Accordingly, after a 13 month investigation, the State offered Mr. Epstein a plea to aggravated assault with a sentence of 5 years probation, with a 3 year early termination of probation. After being preliminary accepted by Mr. Epstein's counsel, the plea was re-evaluated and ultimately rejected because of the concerns that sex offender registration could be required. During further negotiations, at which time discussions were held regarding the lack of creditability of certain key witnesses, the State Attorney decided to present the matter to the grand jury. At the grand jury presentation one of the state's key witnesses failed to appear and the grand jury returned an indictment of felony solicitation of a prostitute. EFTA00214716 12/07/07 FRI 15:36 FAX 1 213 680 8500 IC I RKIANDRELL IS I.I.P IZ 012 Alan Dershowitz, Esq. December 7, 2007 Page 5 After a disgruntled local police officer complained of the terms of the plea agreement between Mr. Epstein and the State of Florida, the United States Attorney's office interjected itself in the disposition of this case, conducted an investigation, and advised Mr. Epstein that he must consent to a plea with the State of Florida that would require. a) at least an 18 month jail sentence, b) that he register as a sex offender, c) that he agree, without even knowing their names, that women who claimed they provided him with massages - - as many as 40 persons - - be allowed to sue him, d) that he would not contest jurisdiction or the facts of those suits, e) that cach woman be entitled to S150,000 in damages (or an amount agreed to by the parties), f) and that the United States Attorney's office select the attorney for the women (a business colleague of the boyfriend of the Assistant United States Attorney handling the case was initially chosen)'. Mr. Epstein was threatened that upon a failure by him to comply with all of these demands, the United States Attorney would bring additional charges against him for violations of federal law, specifically 18 U.S.C. § 2422(cXEnticement of a Minor to Engage in Sexual Activity) and/or 18 U.S.C. § 2423(b) (Travel with Intent to Engage in Illegal Sexual Conduct) and perhaps money laundering, 18 U.S.C. § 1956(3)(3). These threats, if implemented, would have exposed Mr. Epstein to a period of incarceration of approximately 180 months (15 years) under the Sentencing Guidelines. • • • • Negotiations with the State Attorney thereafter never resulted in an agreed upon plea because of the ongoing federal investigation However, the State has consistently maintained its position that the conduct alleged does not warrant sex offender registration or even a jail sentence. EFTA00214717 12/07/07 FRI 15:30 FAX 1 213 080 8500 RIRRLANDAELLI5 LLP la1013 Alan Dershowitr, Esq. December 7,2007 Page 6 I have reviewed the submissions made on behalf of Mr. Epstein to the United States Attorney's office — in the Southern District of Florida, which concluded that the cited federal statutes are inapplicable to the allegations made against Mr. Epstcin and therefore, as a matter of substantive federal law, it was inappropriate for the United States Attorney's office to threaten such a prosecution. In my professional opinion, these conclusions arc correct. I will first address those statutes and explain why I believe the conclusions reached in the prior submissions were appropriate. 18 V.S.C. & 2422(b) (Enticement of a Minor) Section 2422(b) provides: Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices or coerces any individual who has not attained the age of IR years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years. Section 2422(b) was added to the Mann Act ten years ago, as part of the Telecommunications Act of I996, in order to combat Internet predators. As the Eleventh Circuit has recognized: particular sub-section was included in Title V of the Telecommunications Act, which is the section titled 'Obscenity and Violence,' after the Senate Judiciary Committee held a hearing regarding child endangerment via the intemet. EFTA00214718 12/07/07 FRI 15:36 FAX 1 213 680 8500 KIRKLAND&ELLIS LLP ra014 Alan Dershowitz, Esq. December 7, 2007 Page 7 See United Sates v. Searcy 418 F.3d 1193, 1197 (11th Cir. 2005) (citing H.R. Rep. No. 104.458, at 193 (1996) (Conf. Rep.)). ace ast K. Seto, Note- How S_hould Legislation Deal with Children and the Victims aid terpetrators of Cyberstalicina? 9 Cardozo Women's L.J. 67 (2002). in enacting subsection (b), Congressional concerns were focused on a particular and recent phenomenon. Young people were using the intemet in ever-increasing numbers, and it was proving to be a dangerous place. According to a DOJ study, one in five youths (ages 10 to 17) had received a sexual approach or solicitation over the Internet in the previous year. One in 33 had received an "aggressive sexual solicitation," in which a predator had asked a young person to meet somewhere, called a young person on the phone, and/or sent the young person correspondence, money, or gifts through the U.S. Postal Service. See Office for Victims of Crime, U.S. Dept of Justice OVC Bulletin, "Internet crinflingt Children" (3d png. 2005). Unfortunately, computers and the intemet had facilitated sexual predators who prey on children. Historically, child predators found their victims in public places where children tend to gather, such as schoolyards and playgrounds. But, as Congress recognized, with so many children online, the interne provided predators a new place - cyberspace - to target children for criminal acts. Use of the Internet, which occurs in private, and the secrecy and deception it permits, eliminates many of the risks predators face when making contact in person, and presents special law enforcement problems that are difficult for any local jurisdiction to tackle. EFTA00214719 12/07/07 FRI 15:37 FAX 1 213 680 8500 K I RKIAND&EI.I. I S I.I.P 015 Alan Dershowitz, Esq December 7, 2007 Page 8 The statutory language and reported decisions confirm the statute's important but narrow focus. Unlike 18 U.S.C. §§ 2241 et se_q„ § 2422(b) does not establish any federal sex crimes with a minor. Section 2422's subject is not sex, sexual activity, or face-to-face sexual exploitation of minors. Such behavior remains a matter of state, not federal, concern. Section 2422(b) defines a crime of communication, not of contact. It makes unlawful a narrow category of communication, one not protected by the First Amendment because the target is a minor, and the subject is one that enjoys no constitutional protection Both the attempt and the substantive crime defined by § 2422 are complete at the time that communication with a minor, or purported minor, takes place; the essence of the crime occurs before any face to face meeting or any sexual activity with a minor has taken place, regardless of whether any meeting or activity ever eventuates. In sum, the statute was designed to address, and is therefore limited to situations where a person, purposefully and knowingly, targets a minor, and communicates with that minor by means of an instrumentality of interstate commerce. This conduct almost always originates in a chatroom on the Internet or by email - - to use the anonymity and opportunities for deception permitted by these media - - to persuade a person he knows or believes to be a minor to engage in sexual activity, which would constitute a crime under state law, were it to occur. The reported cases reveal that is the way federal prosecutors have understood the statute. Virtually all of the prosecutions brought under § 2422(b), resulting in published EFTA00214720 12/07/07 FRI 15:37 FAX 1 213 880 8500 K I RKLARDRELL I I.I.P 016 Alan Dershowitz, Esq. December 7, 2007 Page 9 decisions, have essentially involved a standard fact pattern what an undercover agent pretends to be a young teenager on-line, and is directly solicitated. See United States v Farner 251 F.3d 510 (5°' Cir. 2001). See also United States v. Root, 296 F.3d 1222, 1227- 28 (11'h Cir. 2002); United States v. Sims, 428 F.3d 945, 959 (10°' Cir. 2005); United States v. Helder, 452 F.3d 751 (8° Cir. 2006); United States v. Meek, 366 F.3d 705, 717- 20 (9°' Cir. 2004). There are approximately two dozen Eleventh Circuit races involving prosecutions under § 2422(b). most of which involve this prototypical fact pattern. See, e.g., United States v. Mono, 364 F.3d 1300 (11th Cir. 2004), vacated for further consideration in light of Booker, 125 S. Ct. 1338 (2006), opinion reinstated by, 144 Fed. Appx. 804 (2005); United States v. Omega, 363 F.3d 1093 (1Is Cir. 2004); United States v. Miranda, 348 F.3d 1322 (11th Cir. 2003). United States v Tillmog, 195 F.3d 640 (1l d' Cir. 1999)• USA States v.Panfil 338 F.3d 1299 (11° Cir. 2003); United States v. Garrett, 190 F.3d 1220 Ws Cir. 1999). United States v. Burgess, 175 F.3d 1261 (11° Cir. 1999). United States v. Roias, 145 Fed. Appx. 647 (111° Cir. 2005); United States v. Root 296 F. 3d 1222 (11 ° Cir. 2002). What all of these cases have in common is that the defendant used the inteinet to purposefully communicate directly with a minor or a purported minor (or a person with influence over such a minor or purported minor), with the intent to arrange a sexual tryst believing that the individual was a minor and with the knowledge that such sexual activity was illegal because of the age of the victim. This is precisely the situation the EFTA00214721 12/07/07 FRI 15:38 FAX 1 213 680 8500 K I RICLAND&ELL I 5 LLP al 017 Alan Dershowitz, Esq December 7, 2007 Page 10 statute was designed to reach. Mr. Epstein's situation has nothing in common with the scenario Congress acted to address. In Mr. Epstein's case, even assuming for purposes of this memorandum that there was inappropriate sexual contact with minors, there was no use whatsoever of the internet, or any other communication device, in an attempt to induce a minor. The statutorily proscribed act is the use of a channel of interstate commerce to persuade, induce, entice or coerce. "The underlying criminal conduct Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate §2422(b)." United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). See also United States v. Bailey 228 F.3d 637, 639 (02' Cu. 2000) ("Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves."). The forbidden conduct is the actual or attempted persuasion, inducement, enticement, or coercion; if there has been sexual misconduct without persuasion, there is no violation of this law. Furthermore, the persuasion must be first directed at an individual known by the defendant to be younger than 18. Second, its subject must be the minor's participation in prostitution or sexual activity that would be a criminal offense under state law. Confining the statute's reach to such situations is precisely what eliminates what would otherwise be First Amendment problems. See Bailey 228 F.3d at 639 ("Defendant simply does not EFTA00214722 12/07/07 FRI 15:38 FAX 1 213 680 8500 K I RKLAND&ELLI S LI.P 2018 Alan Dershowitz, Esq. December 7, 2007 Page II have a First Amendment right to attempt to persuade minors to engage in illegal sex acts."). As the plain language of the statute and the legislative history shows, the use of the Internet, telephone, or mail is not merely a jurisdictional "hook"; it is the very crux of the crime. Congress was not addressing face to face interactions between adults and minors during which inducement might be used, but rather interactions that occurred over the Internet, sometimes followed by the phone or the mail. The statute requires that the persuasion must occur "knowingly". Thus, someone commits the offense only if (I) he knows (or believes) that person is under 18, and (2) knows that the activity he is proposing would be illegal with a person of the age he believes that person to be. Since the age of consent varies from jurisdiction to jurisdiction within the United States, and is generally 16 or 17, even an actor's knowledge that the individual he is attempting to persuade is not yet 18 does not mean that he is knowingly seeking to persuade or induce someone to engage in activity that would constitute a crime. See Richard A. Posner & Katharine B. Silbaug, A Guide to America's Sex Laws 44 (Univ. of Chi. Press 1998). Accordingly, to violate § 2422(b), an actor must know that he is trying to persuade not only someone under 18, but someone who is considered a minor in the jurisdiction, and that the sexual conduct contemplated would constitute a crime. EFTA00214723 12/07/07 FRI 15:38 FAX 1 213 680 8500 R I RKLANT4ELL15 LLP Wo19 Alan Dershowitz, Esq. December 7, 2007 Page 12 Thus, if u defendant believes he is interacting with an adult, he is not guilty of the federal crime even if he is dealing with a minor pretending to he a grown-up. See Unite! States v. Thomas, 410 F.3d 1235 (10th Cir. 2005). Mr. Epstein did not use any facility of interstate commerce to do the forbidden act - to persuade, entice, induce, or coerce - nor did he attempt to do so. His staff used the phone to make a variety of arrangements for Mr. Epstein's stays in Palm Beach, including getting the house ready for his arrival, checking movie schedules, and making phone calls to schedule doctors' appointments, business appointments, personal training, physical therapy and massages Even if Mr. Epstein could be held responsible for his assistant's use of the telephone, her calls regarding massages were not the statutorily proscribed persuasions or enticements of a minor to do illegal acts but simply to set up appointments. Assuming Mr. Epstein persuaded individuals to engage in forbidden conduct with him in his home, he did not violate the statute. There was no inducement by or on the telephone or on the interne, mid none is alleged. For example, if during a massage, Mr. Epstein inquired if the masseuse was interested in doing something more, and she said yes, the inducement, if any, occurred face to fact and without the use of any telephone or the intemet. Any subsequent telephone call by his staff for scheduling purposes for another massage was for that purpose and not for an inducement, which had already occurred face to fact. In sum, whatever sexual contact occurred, occurred face to face, without the use of EFTA00214724 12/07/07 FRI 15:39 FAX 1 213 680 8500 K I RKLANT&ELLIS L LP Bozo Alan Dershowitz, Esq. December 7, 2007 Page 13 an instrumentality of interstate commerce to persuade or induce it, and therefore, was not an act proscribed by the statute. Accordingly, Mr. Epstein committed no crime within the scope of § 2422(b). & 2423(b) (Travel with Intent to Engage in Illegal Sexual Conduct) Similarly, the facts of this case do not make out a violation of 18 U.S.C. § 2423(b). Section 2423(b) provides that: A person who travels in interstate commerce ... for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. ["Illicit sexual conduct" means a sexual act that occurs with a person under age 16, or a commercial sex act with a person under age 18. See §2423(1) and 18 U.S.C. 2243(a).] Mr. Epstein did not violate 18 U.S.C. § 2423(b) because his travel to Florida was not for the purpose of engaging in a sexual act with a person younger than 16, nor a commercial sex act with a person under 18. Assuming that Mr. Epstein purposefully engaged in a proscribed act in Florida, it arose long after his travel to Florida was complete, while a massage with a particular masseuse was in progress. Like § 2422(b), § 2423(b) does not criminalize sexual conduct, with any person, regardless of that person's age. Rather, it criminalizes travel for the Purpose of engaging in unlawful sexual activities. United States v, Hayward 359 F.3d 631, 638 (3d Cir. 2004). See also United States v. Tykarsky 446 F.3d 458, 471 (3d Cir. 2006): EFTA00214725 12/07/07 FRI 15:39 FAI 1 213 880 8500 R I RMANDRELL I S 1.1.P lib 0 21 Alan Dcrshowitz, Esq. December 7, 2007 Page 14 The relationship between the wens rea and the actus reus required by § 2423(b) is neither incidental nor tangential. Section 2423(b) does not simply prohibit traveling with an immoral thought, or even with an amorphous intent to engage in sexual activity with a minor in another state. The travel must be for the purpose of engaging in the unlawful sexual act. See so Hansen v. Huff, 291 U.S. 559, 562-63 (1934) and Mortensen v. UnitekStates, 322 U.S. 369, 374 (1944) ("An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement") (emphasis added)• Cleveland v, United States, 329 U.S. 14, 20 (1946) ("There was evidence that the unlawful purpose was the dominant motive.").2 Under these standards, there is no basis for concluding that Mr. Epstein's principal purpose in going to Florida was to engage in illicit sexual conduct, as defined by the statute, even if we assume that some such conduct occurred while he was there. Given the other purposes of his 50 or more Florida trips, the act of going there cannot itself give rise to any inference of improper purpose. On the contrary, it is evident that the principal purpose of his trips to Florida was to go to his Palm Beach home for reasons that were professional, personal and financial, including to minimize his taxes by establishing a residence, and to visit his family, in particular his brother, his ailing mother and after his mother passed away, the grave sights of both of his parents. Mr. Epstein surely did not go Some Courts have held that the illicit sexual conduct must be: an "efficient and compelling purpose," United Stake v. Meacham 115 F.3d 1458, 1495 (10° Cir. 1997); a "motivating purpose " United Suites v. clugfc1.1, 49 F.3d 1079, 1083 (5° Cir. 1995). Of "at least one of the defendant's motivations for taking the trip in the first place," united States v. Sail 935 F.2d 385, 389 (I° Cir. 1991). SLAWUnited States v. ffotchouez, 224 Fed. Appx. 923 (11° Cir. 2007) (unpublished). EFTA00214726 12/07/07 FRI 15:40 FAX 1 213 680 8500 K RK LANDLELL LIP fril 022 Alan Dershowitz, Esq. December 7, 2007 Page 15 to Florida because its laws governing sexual conduct with young people are particularly lax.3 Moreover, no violation of § 2423(b) occurred because, even assuming at some point during the massages Mr. Epstein knew that the particular masseuse was under 18 years old and that certain behavior could be illegal, such knowledge would have come into being when he was already in Palm Beach and could not have been a factor motivating him to go there. Since the vast majority of his masseuses were over 18, and he usually did not know who his masseuse would be until she arrived at his home, sexual contact with a minor could not have been a factor motivating his travel.4 18 U.S.C. § 195640O) (Money Latutderine) No reasonable reading of the money laundering statute can countenance a charge against Mr. Epstein, for the statute on its face, and as applied by the courts, has absolutely no application to the alleged misconduct. Under the facts of this case, to charge Mr Epstein with violating the money laundering statute would be unprecedented. The Eleventh Circuit has held that "[go prove money laundering under § 1956(aX3), the government must show that the defendant (1) conducted or artentptedlo conduct a The age of consent varies from state to sate. In Connecticut, it is 16 for intercourse, Conn. Oen. Stat. Ann. § 53a-71, and 15 for sexual contact. Conn Gen. Stat. Ann. § 53a-73a. In Massachusetts and New Jersey, the age of consent Is 16. Mass. Gen. Laws ch. 265, § 23; Mass. Gen, Laws ch. 272, § 35A; NJ. Stat. Ann. § 2C:14.2. New York sets the age of consent at 17. N.Y. Penal Law § 130.05(3). Nor are any of the other sections of 18 U.S.C. 2423 prohibiting •'sex tourism" applicable. Section (a) prohibits transporting a minor (under Ill) in interstate or foreign commerce for sexual purposes. Section (c) prohibits traveling to a foreign county to engage in illicit sexual conduct Section (d) prohibits facilitating travel of a person for the purpose of engaging in illicit sexual conduct for financial gain. All that has been alleged is that Mr. Epstein traveled to his home Si Florida and engaged in sexual activities with local Florida residents. There are no allegations whatsoever that he ever transported a minor or an adult to another state or foreign country for sexual purposes, or for that matter, that he traveled to a foreign country to engage in illicit sexual activities. EFTA00214727 12/07/07 FRI 15:40 FAX I 213 880 8500 K I RKLANDSSLI. 15 I.LP Z023 Alan Dcrshowitz, Esq. December 7, 2007 Page 16 financial transaction (2) involving property represented to be the proceeds of specified unlawful activity, (3) with the intent (a) 'to promote the carrying on of specified unlawful activity,' (b) 'to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of sps-sified unlawful activity,' or (c) 'to avoid a transaction reporting requirement under State or Federal law'," United States v. puche, 350 F.3d 1137, 1142-43 (11* Cir. 2003).' See also United States v. Arditti 955 F.2d 331 (5* Cir. 1992). Thus, it is clear that the statute unquestionably requires (a) the use of proceeds of specified unlawful activity; 0/ (b) cash which is or was represented to be the product of unlawful activity, with neither paradigm being applicable in the ease. Mr. Epstein did not receive money or funds from any criminal conduct which he then used in a financial transaction. 5_ee, e.g., United States v, Taylor, 239 F. 3d 994 (9* Cir. 2001) (defendant charged with running an illegal escort service and using proceeds from that business to pay credit cards used to purchase airline tickets to fly prostitutes to Las Vegas). Nor did Mr. Epstein use money he knew to be unlawfully tainted in a financial transaction designed to promote prostitution or other criminal conduct. Rather, to the extent the evidence may show that Mr. Epstein paid for sexual services, he most certainly did so with untainted, legitimately earned funds. • • • • s Instructive is the Eleventh Circuit Pattern Jury Instrucuun 70.4 which states that the defendant can be found guilty of § 1956(aX3XA) only if (I) he knowingly conducted a financial transaction; (2) the transaction involved property represented to be the proceeds of specified unlawful activity or that was used to conduct or facilitate specified unlawful activity, and (3) the defendant engaged in the transaction with the intent to promote the carrying on of specified unlawful activity. EFTA00214728 12/07/07 FRI 15:41 FAX I 213 880 8500 K IRKLANIMELLIS LLP itt1024 Alan Dershowitz, Esq. December 7, 2007 Page 17 Having demonstrated that there is no real federal interest in this case, because there is no federal crime, it is apparent that the United States Attorney's Office is simply attempting to dictate the procedures and outcome of a state prosecution in which federal authorities can have no legitimate interest_ It may be that some law enforcement authorities in other jurisdictions, state or federal, might choose to handle this matter differently from the way chosen by the State of Florida, but that does not permit or even excuse their outside interference. Moreover, were there in fact a federal crime of some sort here that could be prosecuted - - and I suggest there is none - - traditional notions of prosecutorial discretion would mitigate against such a prosecution un the facts of this case. The Factors That Federal Prosecutors Are Mandated To Consider in Determining Whether To Bring A Prosecution Militate Against Prosecution. I have also reviewed the submissions made on behalf of Mr. Epstein which addressed the Petite Policy, which is set forth in the United States Attorney's Manual, and concluded that even assuming that there is a valid basis for federal charges, those charges would be barred by that Policy. In my professional opinion that conclusion was the correct one. My review of the USAM not only supports this conclusion regarding the Petite Policy but also reveals that there arc other sections of the I JSAM which would bar any federal prosecution or interference with state proceedings. EFTA00214729 12/07/07 FRI 15:41 FAX 1 213 680 8500 K RKLANDRE L L IS LLP WI 025 Alan Dershowitz, Esq. December 7, 2007 Page 18 A. DeclipioCro Prosecute The United States Attorney's Manual [hereinafter "USAM") sets forth when to initiate or decline prosecution. Section 9-27.220 provides, in pertinent part: The attomey for the government should commence or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless, in his/her judgment, prosecution should be declined because: 1. No substantial Federal interest would be served by prosecution; 2. The person is subject to effective prosecution in another jurisdiction; or 3. There exists an adequate non-criminal alternative to prosecution. Mr. Epstein has been prosecuted in Florida, which considered all of the issues and determined the appropriate crime to charge him with. As shown above, there is no federal interest here. Moreover, were we to assume that Mr. Epstein's conduct constitutes a federal crime that can be proved, nevertheless, no "substantial Federal interest" would be served by prosecuting him. On this question, the USAM Section 9-27.230 gives specific guidance: In determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including: I. Federal law enforcement priorities; EFTA00214730 12/07/07 FRI 15:42 FAX 1 213 680 8500 K I RK LAND&ELL I S LLP fm 026 Alan Dcrshowitz, Esq. December 7, 2007 Page 19 2. The nature and seriousness of the offense; 3. The deterrent effect of prosecution; 4. The person's culpability in connection with the offense; 5. The person's history with respect to criminal activity; 6. The person's willingness to cooperate in the investigation or prosecution of others; and 7. The probable sentence or other consequences if the person is convicted. 6 Each of these factors militates against prosecution. As indicated, federal law enforcement priorities focus on the use of the internet to target minors, or trafficking in minors. The conduct in which Mr. Epstein arguably engaged was different in nature. Given its essentially sui genesis character, its prosecution would have little or no deterrent effect. Mr. Epstein has no criminal history. If prosecuted under statutes designed to address far more serious conduct and far more dangerous offenders, he would be subject to punishment that is grossly disproportionate to his behavior. Clearly, whatever phone calls may have been made by Mr. Epstein's staff were merely incidental; they were not a means to lure underage women into illicit sexual acts while taking advantage of anonymity and distance. Likewise, Mr. Epstein's interstate travel was of no federal interest. He spent a great deal of his time in Florida because he has ' Each of these fac-tors is discussed m greater detail in USAM 9-27 230(8). EFTA00214731 12/07/07 FRI 15:42 FAX 1 213 680 8500 KIRKLAND&ELLIS LLP Qt027 Alan Dashowitz, Esq. December 7, 2007 Page 20 a home and family there, and for a variety of other reasons that had nothing to do with sexual behavior with underage woman. Given the attenuated relationship between sexual behavior with any person under 18 and the use of the phone (or interstate travel), the federal interest in this matter is slight, if existent at all. The conduct at issue is not an example of a widespread phenomenon that crosses state lines or that is difficult for local authorities to prosecute. It does not involve targeting of children. It does not involve organized prostitution, sex trafficking, or organized crime. It does not involve violence or threat of harm It does not involve child pornography. Indeed, the circumstances of this case are idiosyncratic. What is alleged here is entirely local sexual encounters - whether with an adult or a minor — which are, and always have been, the concern of local prosecutors. They are not what the federal statutes target, nor arc they the kind of cases that the U.S. Attorney's Office usually pursues. K. Petite Policy In addition to the factors discussed above, the Petite Policy (regarding dual and successive prosecutions), should also be a bar to any federal prosecution or involvement in the State proceedings. The USAM at 9-2.031 establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same acts involved in a prior state or federal proceeding. Though the Policy does not create any substantive or procedural EFTA00214732 12/07/07 FRI 15:42 FAX 1 215 880 8500 KIRKLANDiELLIS LLP 11028 Alan Dershowitz, Esq. December 7, 2007 Page 21 rights enforceable by law, it nevertheless provides a valid basis for arguing against the institution of charges in this matter: This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased tier of fact. .. . Satisfaction of the three substantive prerequisites does not mean that a proposed prosecution must be approved or brought The traditional elements of federal prosecutorial discretion continue to apply. USAM 9-2.031(A) The Policy does not apply unless there has been a prior prosecution resulting in an acquittal or a conviction, including one resulting from a plea agreement. USAM 9- 2.031(C). While here there technically has not been a conviction in the state courts, there would have been one but for the interference of federal authorities. Thus under the spirit, if not the language itself, the policy should apply here. This matter does not involve a substantial federal interest, nor would the state prosecution leave a substantial federal interest "demonstrably unvindicated." "In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest." USAM 9-2.031(D). EFTA00214733 12/07/07 FRI 15:43 FAX 1 213 680 8500 K I RKLAND&ELL I S 1.LP 029 Man Dershowitz, Esq. December 7, 2007 Page 22 The presumption may be overcome when the prior prosecution resulted in a sentence which was manifestly inadequate in light of the federal interest involved or if the choice of charges in the prior prosecution was affected by certain inappropriate or irrelevant factors such as "incompetence, corruption, intimidation, or undue influence." No such factors exist here. The negotiations between Mr. Epstein and the State's Attorney's office were conducted at arms length, and sometimes in an atmosphere of mutual hostility. At no point was Mr. Epstein granted any sort of "break" in his ease due to his wealth, his political affiliations, or the prominence of his lawyers. If anything, those factors worked against him. The state prosecutors devoted enormous resources in a 13 month investigation. Ultimately, the State's Attorney's office charged Mr. Epstein with a more severe crime than originally contemplated. In determining the charges, that Office obviously took into account the fact that some of the alleged victims have serious credibility problems, including damaging histories of lies, illegal drug use, and crime and therefore was concerned with the substantial possibility that with these witnesses it might not be able to make any cast against Mr. Epstein. The charging decision was not an act of favoritism, but rather an appropriate exercise of the State's Attorney's office's discretion. The conduct of the United States Attorney here is not merely intrusive of these arms length negotiations, it is coercive of a defendant and requires him to ask the State to impose a harsher punishment upon himself than the State itself has determined appropriate. EFTA00214734 12/07/07 FRI 15.43 FAX 1 213 680 8500 KIRKLAND&ELLIS LLP EZ030 Alan Dershowitz, Esq. December 7, 2007 Page 23 C. Prosecution in Another Jurisdiction Furthermore, another section of the USAM 9-27.240, Initiating and Declining Charges Because of a Prosecution in Another Jurisdiction, would also prohibit any federal charges here. In determining whether prosecution should be declined because the person is subject to prosecution in another jurisdiction, the attorney for the government should weigh all relevant considerations, including: 1. The strength of the other jurisdiction's interest in prosecution; 2. The other jurisdictions ability and willingness to prosecute effectively; and 3. The probable sentence or other consequences if the person is convicted in the other jurisdiction. There can be no dispute that the State of Florida had a strong interest in this prosecution and the ability and the willingness to prosecute it. Furthermore, the behavior alleged here is certainly one of local interest and of particular interest to the State authorities who conducted a 13 month investigation. 'Ibis is not a civil rights case from the 1960's brought half heartedly and resulting in an acquittal. The sentence agreed to by the State, while it may not be to the federal authorities liking, is certainly within the parameters of sentences for these types of crimes and does not warrant federal intervention. EFTA00214735 12/07/07 FRI 15:43 FAX 1 213 080 8500 K IRKLANDLELL I S 01031 Alan Dershowitz, Esq. December 7, 2007 Page 24 D. Payments of Money The federal authorities have also insisted that any plea with the State of Florida must require Mr. Epstein to agree to be sued by as many as 40 of the women, that he not contest jurisdiction or the facts of those suits and that each woman be entitled to $150,000 in damages (or an amount agreed to by the parties). It is apparent that the federal authorities have inappropriately tried to impose upon Mr. Epstein penalties provided for in 18 U.S-C. § 2255(a). The federal prosecutors have attempted to circumvent the requirements of that statute by essentially making anyone who claims to be a victim automatically entitled to a $150,000 payment without any requirement of proof of injury, which the statute requires. Prosecutors shouldn't be in the business of helping alleged victims of state crimes secure financial settlements especially here where some of the victims may be suspect. In addition, a threat by a prosecutor to prosecute unless payments arc made to potential prosecution witnesses is highly inappropriate and not something that I have ever encountered before.' In United States v, Singleton 165 F.3d 1297, 1302 (10th Cir. 1999) the Court frowned upon such behavior: Our conclusion in no way permits an agent of the government to step beyond the limits of his or her office to make an offer to a witness other than one traditionally exercised by the sovereign. A prosecutor who offers something other then a concession normally granted by the 7 While federal law provides for restitution to victims and prosecutors have required restitution as part of plea agreements, it is done in situations where the victims arc readily identifiable and their losses are reasonably ascertainable. Here, without any proof the prosecutors demanded payments to unlatovm individuals who may not have been harmed at all. What is more, the government has stated that it takes no position as to validity of these alleged victim's claims. EFTA00214736 12/07/07 FRI 15:44 FAX 1 213 680 8500 KIRK LANDAE LL 15 LLP al 032 Alan Dershowitz, Esq. December 7, 2007 Page 25 government in exchange for testimony is no longer the alter ego of the sovereign and is divested of the protective mantle of the government. The demand for such payments for unproven "victims" in amounts unrelated to any rational standard is beyond the bounds of any legitimate or even rational governmental conduct. In sum, coercing Mr. Epstein to pay $150,000 to 40 or so "victims" when no determination has been made that they are entitled to any compensation, in any amount, is unknown to me in my experience and is beyond mere heavy handedness: it is oppressive. Conclusion There was no reason for federal authorities to interfere in this case. The State of Florida devoted substantial resources investigating the case and considered all the evidence, including its strengths and weaknesses, in determining the appropriate sentence to resolve this matter. That sentence would have ensured that the defendant would never engage in such conduct again In my experience, as a line prosecutor, as a prosecutor in charge of a United States Attorney's office, and as a defense attorney involved in criminal casts throughout the country, I have never encountered a situation like this one where a federal prosecutor injects himself into a state proceeding and used threats of federal prosecution to force changes in the outcome of a state proceeding not merely to one more to his liking, but one which has no rational relationship to the situation. As unusual as this would be if EFTA00214737 12/07/07 FRI 15:44 FAX 1 213 680 8500 KIRKLAND&ELLIS LLP la 033 Alan Dershowitz, Esq. December 7, 2007 Page 26 there were a clear federal interest hem, it is all the more shocking in this instance: a matter that is solely of state concern - - local sex crimes having no interstate or national importance - - with no attendant federal crime. Furthermore, even if these federal statutes somehow applied to the situation here, it would still not be appropriate to bring these charges. The federal statutes were meant to address exploitation of minors, trafficking in illegal sex across state and national borders, and child pomogTaphy. What we have here is one individual seeking sexual gratification in the privacy of his own home and if he did something inappropriate, it is not for the federal government to intrude by ignoring the Petite Policy and other similar restrictions, as well as our traditional concepts of federalism. The situation here is not what Congress had in mind when it enacted these statutes. If the federal authorities believe that the states are not properly policing the sex trade, the remedy should be to lobby Congress for stronger statutes, not to interfere in a state proceeding in order to make some kind of statement. It is not the federal government's role to police the states' exercise of prosecutional discretion, barring a serious impropriety. Surely, this is not that situation. If the true motivation of federal prosecutors here is simply their personal dislike of Mr. Epstein, or mere personal dislike for the crime or of their sympathy for the women, those are clearly impermissible considerations and are improper. Sec USAM 9- 27. 260(AX2). In my judgment and experience, it would be most appropriate for the prosecutors in the United States Attorney's office to advise the State authorities that they have no EFTA00214738 12/07/07 FRI 15;45 FAX 1 213 880 8500 RIRRLAND&ELLIS LLP l034 Alan Dershowitz, Esq. December 7, 2007 Page 27 finlher interest in these proceedings and that State and the defendant are free to negotiate whatever resolution they dean appropriate. Sincerely, 4ilifrtil- 5'}-ei, HJS:It Herbert J. Stan EFTA00214739