EFTA00289782.pdf

11,05107 MON 10:05 FAX 305 530 a440 EXECUTIVE OFT, CE la 002/003 10002 gaMm, fi ileitea\ Department of Justice United Stow Attontey Southern District of Florida DELIVERYIX FSCS2411.1j Jay P. Lefkowitz, Esq. Kirkland & Ellis UP Citigroup Center 153 East 53rd Street New Yodc, New York 10022,-4675 Re: Jeffrey lipstein Dear Jay: 99 N.G. 4th Soca Miami, FL 33132-V11 (305) 961.9299 Futuinurk: (305)530-6414 November 5.2007 Several things have come to my attention that seem contrary to your client intending to abide by his obligations under the Non-Prosecution Agreement. As you know, that agreement requires our Office to inform you of potential breaches to give you and your client the opportunity to respond before an indictment is filed. At this time, I do not believe that the agreement has been breached; however, I have sufficient concerns that need to be addressed. First, T understand that private investigators working for Mr. Epstein have contacted victims to ask them whether any detectives or FBI agents have discussed a financial settlement with them. On one occasion, the private investigators told the parent of a victim that she should get an attorney for her daughter and she should do so right away. These actions are troublesome because the P131 agents legally arc required to advise the victims of the resolution of the matter, which includes informing them that, as pan of the resolution, that Mr. Epstein has agreed to pay damages in some circumstances. Furthermore, Mr. Epstein well knows that we are in the process of selecting an attorney to represent the victims and, but for the inordinate amount of time spent negotiating the Addendum, that attorney would already have been selected. Paragraph 7 of the Nun-Prosecution Agreement explicitly provides that contact with the victims shall .be through that counsel. Accordingly, please canine' that there will be no further efforts to contact any victims until fudge Davis selects the attorney representative and that, thereafter, contact will be made only through that counsel. Second, the Non-Prosecution Agreement requires Mr. Epstein Muse his best efforts to enter his guilty plea and to be sentenced not later than October 26, 2007. Despite this obligation. the Office agreed that Mr. Epstein could postpone this deadline to November, but reiterated that Mr. EFTA00289782 11 /05 /V MON 10:00 FAX 305 530 5440 ere:cirri v8 OFFICE 003/003 rdloo3 JAY P. I.Encowrtz. Esc, Neveniast 5.2007 Pace 2 OF 2 Epstein had to begin his term of incarceration not later than January 4, 2008. I have learned that the November hearing has been removed from the calendar and the next case disposition conference has not been set until January 7.2008. This delay is unacceptable, and, pursuant to your obligations, the Office requests that you confer with the State Attorney's Office to try to find a date in November when the judge is available toconduct a simultaneous plea and sentencing. If you cannot find such a date. please provide documentation of your efforts to abide by the terms of the Non-Prosecution Agreement. Third, there have been several press reports that Mr. Epstein no longer intends to enter a guilty plea. Normally I would not pay any attention to Such reports, but your recent correspondei we attempting to restrict our Office from communicating with the State Attorney's Office and the allusion to the Imposition of sentences that dearly fall outside die terms of the Non-Prosecution Agreement raises concern. Please confirm that Mr. Epstein intends to abide by his agreement to plead guilty to the specified charges and to make a binding recommendation that the Court impose a sentence of 18 months of continuous confinement in the county jail. Finally, MeNon-Prosecution Agreentaatrequims that you provide the Office with copies of all proposed agreements with the State Attorney's Office before Mr. Epstein signs any such agreements. To date, no such agreements havebeen received. Please provide Inc with copies of any and all agreements with the State Attorney's Office for our review. The Office also would like to have someone present at the change ofplea and sentencing to monitorMr. Epstein's compliance with the terms of the Non-Prosecution Agreement, so please keep me informed of the date, time, and location of the hearing. Please provide me with a written response, adopted by Mr. Epstein, addressing these concerns and reiterating Mr. 13pstein 'a intention to comply with the terms or the Non-Prosecution Agreement by November 8, 2007. By: cc: It. Alexander ttomey Sincerely, It, Alexander ACO5Ut a stant United States Attorney EFTA00289783 "Ina 05/16/2008 11:18 FAX • 05/16/08 FRI 11:08 FAx UNITED STATES DEPARTME Criminal Divisio Child Exploitation and Obsc 1400 New York Avenue, NW Suite 600 Washington, DC 20530-0001 20005 TO: .R- Alexander Acosta, Esq. Jay I.e£kowitz, Esq. Okt-ICE NUMBER: L FAX NUMBER: FROM: e> lalber DATEIIIME May 16, 2008 OFFICE NUMBER: NUMBER OF PAGES. EXCLUDING THIS SHEET: 5 SPECIAL INSTRUCTIONS: bq EFTA00289784 . 06/16/2008 11:16 FAX ' 06/16/08 FRI II:08 FAX Q002/006 ej002 U.S. Department of Justice Criminal Division Andrew G. Oosterbaan, Chief CUM aoloitenion and OfraunkySentan Jay Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 E. 53111St. New York, NY 10022-4611 Re: Investigation of Epstein Dear Mr. Lefkowitz: 14014m Yak Angus. NW Suite 600 Warldift0m. DC20130 P02)514-5780 FAX: (207)1/4.1793 May 15, 2008 Pursuant to your request and the request of U.S. Attorney R. Alexander Acosta, we have independently evaluated certain issues raised in the investigation of Jeffrey Epstein to determine whether a decision to prosecute Mr. Epstein for federal criminal violations would contradict criminal enforcement policy interests, As part of our evaluation, we have reviewed letters written on behalf of Mr. Epstein on February 1, 2007, June 25, 2007, July 6, 2007, March 28, 2008, April 8, 2008, April 28, 2008, and May 14, 2008, with their attachments. We have also reviewed memos prepared by the U.S. Attorney's Office. As you will recall, we met with you and other representatives of Mr. Epstein to further discuss your views on the propriety of a federal prosecution. We have discussed the factual and legal issues you raise with the Criminal Division's Appellate Section, and we consulted with the Office of Enforcement Operations concerning the petite policy. We are examining the narrow question as to whether there is a legitimate basis for the U.S. Attorney's Office to proceed with a federal prosecution of Mr. Epstein. Ultimately, the prosecutorial decision making authority within a U.S. Attorney's Office lies with the U.S. Attorney. Therefore, to borrow a phrase from the case law, the question we sought to answer was whether U.S. Anorncy Acosta would abuse his discretion if he authorized prosecution in this case. As you know, our review of this case is limited, both fketually and legally. We have not looked at the entire universe of facts in this case. It is not the role of the Criminal Division to re- conduct a complete factual inquiry from scratch. Furthermore, we did not analyze any issues concerning prosecution under federal statutes that do not pertain to child exploitation, such as the money laundering statutes. EFTA00289785 05/16/2008 11:16 FAX 05/18/08 PRI 11:08 FAX g)003/006 e 003 As was made clear at the outset, we did not review the facts, circumstances, or terms included in the plea offer, nor any allegations that individuals involved in the investigation engaged in misconduct. Despite that agreement, we note that your letters of April 8, April 28, and May 14 focus in large part on accusations of investigative or prosecutorial misconduct. Not only do allegations of prosecutorial misconduct fall outside the boundary of our agreed review, they also fall outside the authority of the Criminal Division in the first instance. Simply, the Criminal Division does not investigate or resolve allegations of professional misconduct by federal prosecutors. For these reasons, we do not respond to the portion of those letters that discuss alleged misconduct. Based on our review of all of these materials, and after careful consideration of the issues, we conclude that U.S. Attorney Acosta could properly use his discretion to authorize prosecution in this case. We will briefly address each of, the issues that you have raised. Knowledge of age. Federal child exploitation statutes differ as to whether there must be proof that the defendant was aware that the children were under the age of 18. However, even For those statutes where knowledge of age is an element of the offense, it is possible to satisfy that element with proof that the defendant was deliberately ignorant of facts which would suggest that the person was a minor, For that reason, the fact that some of the individuals allegedly lied to Mr. Epstein about their age is not dispositive of the issue. While there may be an open factual issue as to Mr. Epstein's knowledge, we cannot say that it would be impossible to prove knowledge of age for any such charges which require it. Therefore, Mr. Acosta could rightfully conclude that this factual issue is best resolved by a jury. Travel for the ptripose. in the materials you prepared, you suggest that Mr. Epstein should not be charged with violating 18 U.S.C. § 2423(b) because his dominant purpose in going to Florida was not to engage in illegal sexual activity, but rather to return to one of his residenecs. While we fully understand your argument, we also find that the U.S. Attorney's office has a good faith basis fully to develop the facts on this issue and brief the law to permit a court to decide whether the law properly reaches such conduct. Mr. Acosta would not be abusing his discretion if he decided to pursue such a course of action. Intent to engage In the conduct at the time of travel. Based on our review of the facts of this ease, we respectfidly disagree that there is no evidence concerning Mr. Epstein's intent when he traveled, and when that intent was formed. Should Mr. Acosta elect to let the case proceed so that a jury can resolve this factual issue, he would be within his discretion to do so. Use of a facility or means of interstate or foreign commerce. Much of the materials you have prepared and much of the meeting we had focused on 18 U.S.C. § 2422(b), specifically your contention that Mr. Epstein did not use the phone to coerce anyone to engage in illegal sexual activity. We understand the issue you raise concerning the statutory interpretation. As before, however, we cannot agree that there is no evidence that would support a charge under Section 2422(b), nor can we agree that there is no argument in support of the application of that statute to this case. Finally, our assessment is that the application of that statute to these facts would not be 2 EFTA00289786 06/16/2008 11:16 FAI 06/18/08 FRI 11:09 FAX bliOS/006 1:9004 so novel as to implicate the so-called "clear statement rule," the Ex Post Facto clause, or the Due Process clause. As with the other legal issues, Mr. Acosta may elect to proceed with the case. Absence of coercion. With respect to 18 U.S.C. § 1591, the alleged absence of the use of force, fraud, or coercion is of no moment. The statute does not require the use of force, fraud, and coercion against minors. Because of their age, a degree or coercion is presumed. In your materials, you note that the statute requires that the minors must be "caused" to engage in a commercial sex act, further arguing that the word "cause" suggests that a certain amount of undue influence was used. We reject that interpretation, as it would read back into the offense an element-coercion-that Congress has expressly excluded We have successfblly prosecuted defendants for the commercial sexual exploitation of minors, even when the minors testified that not only did they voluntarily engage in Ihe commercial sex acts, it was their idea to do so. As such, Mr. Acosta could properly decide to pursue charges under Section 1591 even if there is no evidence of coercion. More broadly, a defendant's criminal liability does not hinge on his victim identifying as having suffered at his bands. Therefore, a prosecution could proceed, should Mr. Acosta decide to do so, even though some of the young women allegedly have said that they do not view themselves as victims. Witness credibility. As all prosecutors know, them are no perfect witnesses. Particularly in cases involving exploited children, as one member of your defense team, Ms. Thacker, surely knows from her work at acts, it is not uncommon for victim-witnesses to give conflicting statements. The prosecutors are in the best position to assess the witness's credibility. Often, the prosecutor may decide that the best approach is to present the witness, let defense counsel explore the credibilityprobleras on cross-examination, and let the jury resolve the issue. Mr. Acosta would be within his authority to select that approach, especially when here there arc multiple, mutually-corroborating witnesses. Contradictions and omissions in the search warrant application. We have carefully reviewed the factual issues you raise concerning the search warrant application. For a search warrant to be suppressed, however, the factual errors must be material, and the officers must not have proceeded in good faith. Despite the numerous factual errors you describe, the U.S. Attorney's Office could still plausibly argue that the mistakes—whether inadvertent or intentional—were not material to the determination that probable cause existed for a search, and that the search was in good faith in any event. As such, Mr. Acosta could properly elect to defend the search warrant in court rather than forego prosecution. Petite Policy: After reviewing the petite policy and consulting with the Office of Enforcement Operations MEG", we conclude that the petite policy does not prohibit federal prosecution in this case. According to the U.S. Attorney's Manual, the petite policy "applies whenever there has been a prior state or federal prosecution resulting in an, acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of 3 EFTA00289787 0005/006 06/16/2008 11:17 FAX 06/16/08 FRI li:00 FAX c0005 the case on the merits after jeopardy has attached." USAM 9-2.031(C). Our understanding is that the state case is still pending. As such, the procedural posture of the state case does not implicate the petite policy. We recognize that the petite policy could be triggered if the state case concluded after a federal indictment was issued but prior to the commencement of any federal trial. Id. However, the policy "does not apply ... where the (state) prosecution involved only a minor part of the contemplated federal charges." USAM 9-2.031(13). Based on our understanding of the possible federal charges and existing state charges, we do not think the petite policy would be an issue should federal proceedings take place. Federalism and Prosecutorial Discretion. All of the above issues essentially ask whether a federal prosecution can proceed. We understand, however, that you also ask whether a federal prosecution should proceed, even in the event that all of the elements of a federal offense could be proven. On this issue, you raised two arguments: that the conduct at issue here is traditionally a state concern because the activity is entirely local, and that the typical prosecution under federal child exploitation statutes have different facts than the ones implicated here. You have essentially asked us to look into whether a prosecution would so violate federal prosecutorial policy that a United States Attorney's Office should not pursue a prosecution. We do not think that is the case here for the following reasons. Simply, the commercial sexual exploitation of children is a federal concern, even when the conduct is local, and regardless of whether the defendant provided the child (the "pimp") or paid for the child (the "John"). In your materials, you refer to a letter sent by the Department of Justice to Congress in which the Department expresses concern over the expansion of federal laws to reach almost all instances of prostitution. In that portion of the letter, the Department was expressly referring to a proposed federal law that reach adult prostitution where no force, fraud, or coercion was used. Indeed, the point being made in that letter is that the Department's efforts are properly focused on the commercial sexual exploitation of children and the exploitation of adults through the use of force, fraud, or coercion. As such, there is no inconsistency between the position taken in that letter and the federal prosecution of wholly local instances of the commercial sexual exploitation of children. If Congress wanted to limit the reach of federal statutes only to those who profit from the commercial sexual exploitation of children, or only to those who actually traffic children across state lines, it could have done so. It did not. Finally, that a prosecution of Mr. Epstein might not look precisely like the cases that came before it is not dispositive. We can say with confidence that this case is consistent in principle with other federal prosecutions nationwide. As such, Mr. Acosta can soundly exercise his authority to decide to pursue a prosecution even though it might involve a novel application of a federal statute. Conclusion. After carefully considering all the factual and legal issues raised, as well as the arguments concerning the general propriety of a federal case against Mr. Epstein on these 4 EFTA00289788 05/36/08 FRI 11:10 FAX facts, we conclude that federal prosecution in this case would net be improper or inappropriate. While you raise many compelling arguments, we do not sec anything that says to us categorically that a federal case should not be brought. Mr. Acosta would not be abusing his prosecutorial discretion should he authorize federal prosecution of Mr.;Ostci Since(ivv au co: AAG tam DAAG U.S. Attorney R. Alexander Acosta EFTA00289789 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY ELECTRONIC MAIL Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 100224675 Re: Jeffrey Epstein Dear Jay: 5001 Australian Ave, Ste 400 West Palm Beach, FL 33401 (561)820-8711 Facsimile: (561) 820.8777 December 13, 2007 I am writing not to respond to your asserted "policy concerns" regarding Mr. Epstein's Non- Prosecution Agreement, which will be addressed by the United States Attorney, but the time has come for me to respond to the ever-increasing attacks on my role in the investigation and negotiations. It is an understatement to say that I am surprised by your allegations regarding my role because I thought that we had worked very well together in resolving this dispute. I also am surprised because I feel that I bent over backwards to keep in mind the effect that the agreement would have on Mr. Epstein and to make sure that you (and he) understood the repercussions of the agreement. For example, I brought to your attention that one potential plea could result in no gain time for your client; I corrected one of your calculations of the Sentencing Guidelines that would have resulted in Mr. Epstein spending far more time in prison than you projected; I contacted the Bureau of Prisons to see whether Mr. Epstein would be eligible for the prison camp that you desired; and I told you my suspicions about the source of the press "leak" and suggested ways to avoid the press. Importantly, I continued to work with you in a professional manner even after l learned that you had been proceeding in bad faith for several weeks — thinking that I had incorrectly concluded that solicitation of minors to engage in prostitution was a registrable offense and that you would "fool" our Office into letting Mr. Epstein plead to a non-registrable offense. Even now, when it is clear that neither you nor your client ever intended to abide by the terms of the agreement that he signed, 1 have never alleged misconduct on your part. The first allegation that you raise is that I "assiduously" hid from you the fact that Bert Ocariz is a friend of my boyfriend and that I have a "longstanding relationship" with Mr. Ocariz. EFTA00289790 • LAY P. LEFKOWITZ, ES Q. DECEMBER 13,2007 PACE 2 OF 5 I informed you that I selected Mr. Ocariz because he was a friend and classmate of two people whom I respected, and that I had never met or spoken with Mr. Ocariz prior to contacting him about thil case. All of those facts are true. I still have never met Mr. Ocariz, and, at the time that he and I spoke about this case, he did not know about my relationship with his friend. You suggest that I should have explicitly informed you that one of the referrals came from my "boyfriend" rather than simply a "friend," which is the term I used, but it is not my nature to discuss my personal relationships with opposing counsel. Your attacks on me and on the victims establish why I wanted to find someone whom I could trust with safeguarding the victims' best interests in the face of intense pressure from an unlimited number of highly skilled and well paid attorneys. Mr. Ocariz was that person. One of your letters suggests a business relationship between Mr. Ocariz and my boyfriend. This is patently untrue and neither my boyfriend nor I would have received any financial benefit from Mr. Ocariz's appointment. Furthermore, after Mr. Ocariz learned more about Mr. Epstein's actions (as described below), he expressed a willingness to handle the case pro ban°, with no financial benefit even to himself. Furthermore, you were given several other options to choose from, including the Podhurst firm, which was later selected by Judge Davis. You rejected those other """ options. You also allege that I improperly disclosed information about the case to Mr. Ocariz. I provided Mr. Ocariz with a bare bones summary of the agreement's terms related to his appointment to help him decide whether the case was something he and his firm would be willing to undertake. I did not provide Mr. Ocariz with facts related to the investigation because they were confidential and instead recommended that he "Google" Mr. Epstein's name for background information. When Mr. Ocariz asked for additional information to assist his firm in addressing conflicts issues, I forwarded those questions to you, and you raised objections for the first time. I did not share any further information about Mr. Epstein or the case. Since Mr. Ocariz had been told that you concurred in his selection, out of professional courtesy, I informed Mr. Ocariz of the Office's decision to use a Special Master to make the selection and told him that the Office had made contact with Judge Davis. We have had no further contact since then and I have never had contact with Judge Davis. I understand from you that Mr. Ocariz contacted Judge Davis. You criticize his decision to do so, yet you feel that you and your co-counsel were entitled to contact Judge Davis to try to "lobby" him to select someone to your liking, despite the fact that the Non-Prosecution Agreement vested the Office with the exclusive right to select the attorney representative. Another reason for my surprise about your allegations regarding misconduct related to the Section 2255 litigation is your earlier desire to have me perform the role of "facilitator" to convince the victims that the lawyer representative was selected by the Office to represent their interests alone and that the out-of-court settlement of their claims was in their best interests. You now state that doing the same things that you had asked me to do earlier is improper meddling in civil litigation. Much of your letter reiterates the challenges to Detective Recarey's investigation that have EFTA00289791 JAY RLEFKOATIZ, ESQ. DECEMBER 13, 2007 PAGE 3 OF 5 already been submitted to the Office on several occasions and you suggest that I have kept that information from those who reviewed the proposed indictment package. Contrary to your suggestion, those submissions were attached to and incorporated in the proposed indictment package, so your suggestion that I tried to hide something from the reviewers is false. I also take issue with the duplicity of stating that we must accept as true those parts of the Recarey reports and witness statements that you like and we must accept as false those parts that you do not like. You and your co-counsel also impressed upon me from the beginning the need to undertake an independent investigation. It seems inappropriate now to complain because our independent investigation uncovered facts that are unfavorable to your client. You complain that I "forced" your client and the State Attorney's Office to proceed on charges that they do not believe in, yet you do not want our Office to inform the State Attorney's Office of facts that support the additional charge nor do you want any of the victims of that charge to contact Ms. Belohlavek orate Court. Ms. Belohlavek's opinion may change if she knows the full scope of your client's actions: You and I spent several weeks trying to identify and put together a plea to federal charges that your client was willing to accept Yet your letter now accuses me of "manufacturing" charges of obstruction of justice., making obscene phone calls, and violating child privacy laws. When Mr. Lourie told you that those charges would "embarrass the Office," he meant that the Office was unwilling to bend the facts to satisfy Mr. Epstein's desired prison sentence — a statement with which I agree. I hope that you understand how your accusations that I imposed "ultimatums" and "forced" you and your client to agree to unconscionable contract terms cannot square with the true facts of this case. As explained in letters from Messrs. Acosta and Sloman, the indictment was postponed for more than five months to allow you and Mr. Epstein's other attorneys to make presentations to the Office to convince the Office not to prosecute. Those presentations were unsuccessful. As you mention in your letter, I -a simple line AUSA — handled the primary negotiations for the Office, and conducted those negotiations with you, Ms. Sanchez, Mr. Lewis, and a host of other highly skilled and experienced practitioners. As you put it, your group has a "combined 250 years experience" to my fourteen. The agreement itself was signed by Mr. Epstein, Ms. Sanchez, and Mr. Lefcourt, whose experience speaks for itself. You and I spent hours negotiating the terms, including when to use "a" versus "the" and other minutiae. When you and I could not reach agreement, you repeatedly went over my head, involving Messrs. Laurie, Menchel, Siemer), and Acosta in the negotiations at various times. In any and all plea negotiations the defendant understands that his options are to plead or to continue with the investigation and proceed to trial. Those were the same options that were proposed to Mr. Epstein, and they are not "persecution or intimidation tactics." Mr. Epstein chose to sign the agreement with the advice of a multitude of extremely noteworthy counsel. You also make much of the fact that the names of the victims were not released to Mr. Epstein prior to signing the Agreement. You never asked for such a term. During an earlier meeting, where Mr. Black was present, he raised the concern that you now voice. Mr. Black and I did not have a chance to discuss the issue, but I had already conceived of a way to resolve that EFTA00289792 JAY P. LEFICOWITZ, ESQ. DECEMBER 13, 2007 PAGE 4 OF 5 issue if it were raised during negotiations. AS I stated, it was not, leading me to believe that it was not a matter of concern to the defense. Since the signing of the Non-Prosecution Agreement, the agents and I have vetted the list of victims more than once. In one instance, we decided to remove a name because, althoughthe minor victim was touched inappropriately by Mr. Epstein, we decided that the link to a payment was insufficient to call it "prostitution." I have always remained open to a challenge to the list, so your suggestion that Mr. Epstein was forced to write a blank check is simply unfounded. Your last set of allegations relates to the investigation of the matter. For instance, you claim that some of the victims were informed of their right to collect damages prior to a thorough investigation of their allegations against Mr. Epstein. This also is false. None of the victims was informed of the right to sue under Section 2255 prior to the investigation of the claims. Three victims were notified shortly after the signing of the Non-Prosecution Agreement of the general terms of that Agreement. You raised objections to any victim notification, and no further notifications were done. Throughout this process you have seen that I have prepared this case as though it would proceed to trial. Notifying the witnesses of the possibility of damages claims prior to concluding the matter by plea or trial would only undermine my case. If my reassurances are insufficient, the fact that not a single victim has threatened to sue Mr. Epstein should assure you of the integrity of the investigation.' 'There are numerous other unfounded allegations in your letter about document demands, the money laundering investigation, contacting potential witnesses, speaking with the press, and the like. For the most part, these allegations have been raised and disproven earlier and need not be readdressed. However, with respect to the subpoena served upon the private investigator, contrary to your assertion, and as your co-counsel has already been told, I sad consult with the Justice Department prior to issuing the subpoena and I was told that because I was not subpoenaing an attorney's office or an office physically located within an attorney's office, and because the business did private investigation work for individuals (rather than working exclusively for Mr. Black), I could issue a grand jury subpoena in the normal course, which is what I did. I also did not "threaten" the State Attorney's Office with a grand jury subpoena, as the correspondence with their grand jury coordinator makes perfectly clear. With regard to your allegation of my filing the Palm Beach Police Department's probable cause affidavit "with the court knowing that the public could access it," I do not know to what you afrafating: Attlocumen—Mr"—e-13.2a to the *gnitiftijitic elal,1143- • • • the Palm Beach Police Department's probable cause affidavit has never been filed with the Court. If, in fact, you are referring to the Ex Parts Declaration of Joseph Recarey that was filed in response to the motion to quash the grand jury subpoena, it was filed both under seal and exports, so no one should hat access to it except the Court and myself. Those documents are still in the Court file only because you have violated one of the terms of the Agreement by failing to "withdraw (Epstein's] pending motion to intervene and to quash certain grand jury subpoenas." EFTA00289793 JAY P. LEFKOWITZ, ESQ. DECEMBER 13, 2007 PAGE S OF 5 With respect to NM, I contacted her attorney — who was paid for by Mr. Epstein and was directed b counsel for Mr. Epstein to demand immunity — and asked only whether he still represented and if he wanted me to send the victim notification letter to him. He asked what the letter would say and I told him that the letter would be fort co .ing in about a week and that I could not provide him with the terms. With respect to status as a victim, you again want us to accept as true onl facts that are beneficial to your client and to reject tis false anything detrimental to him. made a number of statements that are contradicted by doctunentary evidence and a review o her recorded statement shows her ibility with respect to a number of statements. Based upon all of the evidence coil is classified as a victim as defined by statute. Of course, that does not mean that considers herself a victim or that she would seek damages from Mr. Epstein. I believe that a number of the identified victims will not seek damages, but that does not negate their legal status as victims. I hope that you now understand that your accusations against myself and the agents are unfounded. In the fixture, I recommend that you address your accusations to me so that I can correct any misunderstandings before you make false allegations to others in the Department I hope that we can move forward with a professional resolution of this matter, whether that be by your client's adherence to the contract that he signed, or by virtue of a trial. Sincerely, IC Alexander Acosta United States Attorney By: Assistant United States Attorney cc: It. Alexander Acosta, U.S. Attorney First Assistant U.S. Attorney You also accuse me of "broaden[ing] the scope of the investigation without any foundation for doing so by adding charges of money laundering and violations of a money transmitting business to the investigation." Again, I consulted with the Justice Department's Money Laundering Section about my analysis before expanding that scope. The duty attorney agreed with my analysis. EFTA00289794 11/0$/07 MON 10:05 FAX 30$ $30 e440 EXECuTIVE OFFICE upoe2/oos eon U.S. Department of Justice United S?atos Atrontoy Southern District of Florida DELIVERY UY FakCSIMTEX Jay P. Leibowitz, Esq. Kirkland R Ellis LIP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Ito: Isfftty_frengeb Dear Jay: 99 ME. 4. Street Mrom4 61 331324 Ill (3af) 961.9299 Facsimile: (305)3304444 November 5, 2007 Several things have come to my attention that seem contrary to your client intending to abide by his obligations under the Non-Prosecution Agreement. AS you know, that agreement requires our Office to inform you of potential breaches to give you and your client the opportunity to respond before an indictment is filed. At this time, I do not believe that the agreement has been breached; however, I have sufficient concerns that need to be addressed. Pint, I understand that private investigators working for Mr. Epstein have contacted victims to ask them whether any detectives or FBI agents have discussed a financial settlement with them. On one occasion, the private investigators told the parent of a victim that she should get an attorney for her daughter and she should do so right away. These actions are troublesome because the FBI agents legally aro required to advise the victims of the resolution of the matter, which includes informing them that, as pan of the resolution, that Mr. Epstein has agreed to pay damages in some circumstances. Fur-then-note, Mr. Epstein well knows that we are in the process of selecting an attorney to represent the victims and, but for the inordinate amount of time spent negotiating the Addendum, that attorney would already have been selected. Paragraph 7 of the Nun-Prosecution Agreement explicitly provides that contact with the victims shall. be through that counsel Accordingly, please confirm that there will be no further efforts to contact any victims until Judge. Davis selects the attorney representative and that, thereafter, contact will be made only through that counsel. Second. theNon-Prosecution Agreement requires Mr. Epstein to use his best efforts to enter his guilty plea and to be sentenced not later than October 26, 2007. Despite this obligation. the Office agreed that Mr. Epstein could postpone this deadline to November, but reiterated that Mr. EFTA00289795 • ileos,07 M0N 10:06 FAX 305 330 6440 etECt7IVE OFFICE l 003/003 003 JAY I'. LEPKOWITZ, ESQ. Novemana 5,2007 PA0e 2 OF 2 Epstein had to begin his terra of incarceration not later than January 4.2008. T have learned that the November hearing has been removed from the calendar and the next case disposition conference has not been set until January 7. 2008. This delay is unacceptable, and, pursuant to your obligations, the Office requests that you confer with the State Attorney's Office to try to find a date in November when the judge is available to conduct a simultaneous plea and sentencing. If you cannot find such a date, please provide documentation of your efforts to abide by the terms of the Non-Prosecution Agreement. Thud, there have been several press reports that Mr. Epstein no longer intends to enter a guiltyplea. Normally I would not pay a ny atte ntion to such reports, but your recent eorrespondentn attempting to restrict our Office from communicating with the State Attorney's Office and the allusion to the imposition of sentences that clearly fall outside the terms of the Non-Prosecution Agroetrent raises concern. Please confirm that Mr. Epstein intends to abide by his agreement to plead guilty to the specified charges and to make a binding recommendation that the Court impose a sentence of 18 months of evotinuous confinement in the county jail. Finally, the Ton-Prosecution Agreementrequires that you provide the Office with copies of all proposed agreements with the State Attorney's Office before Mr. Epstein signs any such atonements. To date, no such agreements have been received. Please provide ate with copies of any and all agreements with the State Attorney's Office for our review. The OtTice also would like to have someone present at the thangeofplea and sentencingto monitorMr. Epstein's compliancewith the terms of the Non-Prosecution Agreement, so please keep me informed of the date, time, and location of the hearing. Please provide me with a written response, adopted by Mr. Epstein, addressing these concerns and reiterating Mr. Epstein's intention to comply with the tetras orate Non-Prosecution Agreement by November S, 2007. 13y cc: R. Al • • itorney Sincerely, R. Alexander Acosta First Assistant trailed States Attorney EFTA00289796 05/16/2008 11:16 FAL 05/16/08 FRI 21:08 FAX UNITED STATES DEPARTIVIE. Criminal Divisio Child Exploitation and Obsc 1 1400 New York. Avenue, NW . . Suite 600 Washington, DC 20530-0001 • 20005 TO: •R. Alexander Acosta, Esq. aay Le£kawita, Esq. OFFICE NUMBER: L FAX NUMBER: FROM: Alexandra Gelber. DAT2 !TIME May 16, 2008 OFFICE NUMBER: NUMBER OF PAGES, EXCLUDING Tuts SI•IEET, 5. SPECIAL INSTRUCTIONS: b EFTA00289797 06/16/2008 11:16 PAS 06/16/08 FRI 11:08 FAX @002/006 (6002 XJ.S. Department of Justice Criminal Division Andrew G. Oosterbsan, Chief add &pie/mien end Otownity Section Jay Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 E. 53i4 St. New York, NT 10022-4611 Re: Investigation cildrery Epstein Dear Mr. Lefkowitz: 1400 New YOck Avenue. NW &die 600 Washington, DC20530 O02)514-5780 FAX: n07)5/44793 May 15, 2008 Pursuant to your request and the request of U.S. Attorney IL Alexander Acosta, we have independently evaluated certain issues raised in the investigation of Jeffrey Epstein to determine whether a decision to prosecute Mr. Epstein for federal criminal violations would contradict criminal enforcement policy interests. As part of our evaluation, we have reviewed letters written on behalf of Mr. Epstein on February 1, 2007, June 25, 2007, July 6, 2007, March 28, 2008, April 8, 2008, April 28, 2008, and May 14, 2008, with their attachments. We have also reviewed memos prepared by the U.S. Attorney's Office. As you will recall, we met with you and other representatives of Mr. Epstein to further discuss your views on the propriety of a federal prosecution. We have discussed the factual and legal issues you raise with the Criminal Division's Appellate Section, and we consulted with the Office of Enforcement Operations concerning the petite policy. We are examining the narrow question as to whether there is a legitimate basis for the U.S. Attorney's Office to proceed with a federal prosecution of Mr. Epstein. Ultimately, the prosecutorial decision making authority within a U.S. Attorney's Office lies with the U.S. Attorney. Therefore, to borrow a phrase from the case law, the question we sought to answer was whether U.S. Anorney Acosta would abuse his discretion if he authorized prosecution in this case. As you know, our review of this case is limited, both factually and legally. We have not looked at the entire universe of facts in this case, ft is not the role of the Criminal Division to re- conduct a complete factual inquiry from scratch. Furthermore, we did not analyze any issues concerning prosecution under federal statutes that do not pertain to child exploitation, such as the money laundering statutes. EFTA00289798 05/16/2008 11:16 FAX 05/16/08 FRI 11:08 FAX 11003/006 rizi003 As was made clear at the outset, we did not review the facts, circumstances, or terms included in the plea offer, nor any allegations that individuals involved in the investigation engaged in misconduct. Despite that agreement, we note that your letters of April 8, April 28, and May 14 focus in large part on accusations of investigative or prosecutorial misconduct. Not only do allegations of prosecutorial misconduct fall outside the boundary of our agreed review, they also fall outside the authority of the Criminal Division in the first instance. Simply, the Criminal Division does not investigate or resolve allegations of professional misconduct by federal prosecutors. For these reasons, we do not respond to the portion of those letters that discuss alleged misconduct. Based on our review of all of these materials, and after careful consideration of the issues, we conclude that U.S. Attorney Acosta could properly use his discretion to authorize prosecution in this case. We will briefly address each of the issues that you have raised. Knowledge of age. Federal child exploitation statutes differ as to whether there must be proof that the defendant was aware that the children were under the age of 18. However, even For those statutes where knowledge of age is an element of the offense, it is possible to satisfy that element with proof that the defendant was deliberately ignorant of facts which would suggest that the person was a minor. For that reason, the fact that some of the individuals allegedly lied to Mr. Epstein about their age is not dispositivc of the issue. While there may be an open factual issue as to Mr. Epstein's knowledge, we cannot say that it would be impossible to prove knowledge of age for any such charges which require it. Therefore, Mr. Acosta could rightfully conclude that this factual issue is best resolved by a jury. Travel for the purpose. In the materials you prepared, you suggest that Mr. Epstein should not be charged with violating 18 U.S.C. § 2423(6) because his dominant purpose in going to Florida was not to engage in illegal sexual activity, but rather to return to one of his residences. While we fully understand your argument, we also find that the U.S. Attorney's office has a good faith basis fully to develop the facts on this issue and brief the law to permit a court to decide whether the law properly reaches such conduct. Mr. Acosta would not be abusing his discretion if he decided to pursue such a course of action. Intent to engage In the conduct at the time of travel. Based on our review of the facts of this case, we respectfully disagree that there is no evidence concerning Mr. Epstein's intent when he traveled, and when that intent was formed. Should Mr. Acosta elect to let the case proceed so that a jury can resolve this factual issue, he would be within his discretion to do so. Use of a facility or means of interstate or foreign commerce. Much of the materials you have prepared and much of the meeting we had focused on 18 U.S.C. § 2422(b), specifically your contention that Mr. Epstein did not use the phone to coerce anyone to engage in illegal sexual activity. We understand the issue you raise concerning the statutory interpretation. As before. however, we cannot agree that there is no evidence that would support a charge under Section 2422(b), nor can we agree that there is no argument in support of the application of that statute to this case. Finally, our assessment is that the application of that statute to these facts would not be 2 EFTA00289799 05/16/2008 11:16 FAX 05/16708 FRI 11:09 FAX a004/006 O004 so novel as to implicate the so-called "clear statement rule," the Kr Post Facto clause, or the Due Process clause. As with the other legal issues, Mr. Acosta may elect to proceed with the case. Absence of coercion. With respect to 18 U.S.C. § 1591, the alleged absence of the use of force, fraud, or coercion is of no moment. The statute does not require the use of force, fraud, and coercion against minors. Because of their age, a degree oCcoercion is presumed. In your materials, you note that the statute requires that the minors must be "caused" to engage in a commercial sex act, further arguing that the word "cause" suggests that a certain amount of undue influence was used. We reject that interpretation, as it would read back into the offense an element-coercion-that Congress has expressly excluded. We have successfully prosecuted defendants for the commercial sexual exploitation of minors, even when the minors testified that not only did they voluntarily engage in the commercial sex acts, it was their idea to do so. As such, Mr. Acosta could properly decide to pursue charges under Section 1591 even if there is no evidence of coercion. More broadly, a defendant's criminal liability does not hinge on his victim identifying as having suffered at his hands. Therefore, a prosecution could proceed, should Mr. Acosta decide to do so, even though some of the young women allegedly have said that they do not view themselves as victims. Witness credibility. As all prosecutors know, there are no perfect witnesses. Particularly in cases involving exploited children, as one member of your defense team, Ms. Thacker, surely knows from her work at CEOS, it is not uncommon for victim-witnesses to give conflicting statements. The prosecutors are in the best position to assess the witness's credibility. Often, the prosecutor may decide that the best approach is to present the witness, let defense counsel explore the credibility problems on cross-examination, and let the jury resolve the issue. Mr. Acosta would be within his authority to select that approach, especially when here there arc multiple, mutually-corroborating witnesses. Contradictions and omissions in the search warrant application. We have carefully reviewed the factual issues you raise concerning the search warrant application. For a search warrant to be suppressed, however, the factual errors must be material, and the officers must not have proceeded in good faith. Despite the numerous factual errors you describe, the U.S. Attorney's Office could still plausibly argue that the mistakes—whether inadvertent or intentional—were not material to the determination that probable cause existed for a search, and that the search was in good faith in any event. As such, Mr. Acosta could properly elect to defend the search warrant in court rather than forego prosecution. Petite Policy: After reviewing the petite policy and consulting with the Office of Enforcement Operations ("OLEO"), we conclude that the petite policy does not prohibit federal prosecution in this case. According to the U.S. Attorney's Manual, the petite policy "applies whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of 3 EFTA00289800 @1005/006 • 05/16/2008 11:17 FAX 05/26/08 FRI 11:09 FAX @t 005 the case on the merits after jeopardy has attached." USAM 9-2.031(C). Our understanding is that the state case is still pending. As such, the procedural posture of the state case does not implicate the petite policy. We recognize that the petite policy could be triggered if the state case concluded after a federal indictment was issued but prior to the commencement of any federal trial. Id. However, the policy "does not apply ... where the [state] prosecution involved only a minor part of the contemplated federal charges." USAM 9-2.031(B). Based on our understanding of the possible federal charges and existing state charges, we do not think the petite policy would be an issue should federal proceedings take place. Federalism and Prosecutorial Discretion. All of the above issues essentially ask whether a federal prosecution can proceed. We understand, however, that you also ask whether a federal prosecution should proceed, even in the event that all of the elements of a federal offense could be proven. On this issue, you raised two arguments; that the conduct at issue here is traditionally a state concern because the activity is entirely local, and that the typical prosecution under federal child exploitation statutes have different facts than the ones implicated here. You have essentially asked us to look into whether a prosecution would so violate federal prosecutorial policy that a United States Attorney's Office should not pursue a prosecution. We do not think that is the ease here for the following reasons. Simply, the commercial sexual exploitation of children is a federal concern, even when the conduct is local, and regardless of whether the defendant provided the child (the "pimp") or paid for the child (the "John"). In your materials, you refer to a letter sent by the Department of Justice to Congress in which the Department expresses concern over the expansion of federal laws to reach almost all instances of prostitution. in that portion of the letter, the Department was expressly referring to a proposed federal law that reach adult prostitution where no force, fraud, or coercion was used. Indeed, the point being made in that letter is that the Department's efforts are properly focused on the commercial sexual exploitation of children and the exploitation of adults through the use of force, fraud, or coercion. As such, there is no inconsistency between the position taken in that letter and the federal prosecution of wholly local instances of the commercial sexual exploitation of children. If Congress wanted to limit the reach of federal statutes only to those who profit from the commercial sexual exploitation of children, or only to those who actually traf£c children across state lines, it could have done so. It did not. Finally, that a prosecution of Mr. Epstein might not look precisely like the cases that came before it is not dispositive. We can say with confidence that this case is consistent in principle with other federal prosecutions nationwide. As such, Mr. Acosta can soundly exercise his authority to decide to pursue a prosecution even though it might involve a novel application of a federal statute. Conclusion. After carefully considering all the factual and legal issues raised, as well as the arguments concerning the general propriety of a federal case against Mr. Epstein on these 4 EFTA00289801 • --- - -- 05/15/0:5 FRI- 11:10 FAX ®oat facts, we conclude tint federal prosecution in this case would not be improper or inappropriate. While you raise many compelling arguments, we do not see anything that says to us categorically that a federal case should not be brought. Mr. Acosta would not be abusing his prosecutorial discretion should he authorize federal prosecution of Mr. S cc: AAG Alice S. Fish DAAG U.S. Attorney R. Alexander Acosta S EFTA00289802 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY ELECTRONIC MAIL Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 500 S. Australian Ave, Ste 400 West Palm Beach, FL 33401 (561) 8204711 Facsimile: (561) 820-8777 December 13, 2007 I am writing not to respond to your asserted "policy concerns" regarding Mr. Epstein's Non- Prosecution Agreement, which will be addressed by the United States Attorney, but the time has come for me to respond to the ever-increasing attacks on my role in the investigation and negotiations. It is an understatement to say that I am surprised by your allegations regarding my role because I thought that we had worked very well together in resolving this dispute. I also am surprised because I feel that I bent over backwards to keep in mind the effect that the agreement would have on Mr. Epstein and to make sure that you (and he) understood the repercussions of the agreement. For example, I brought to your attention that one potential plea could result in no gain time for your client; I corrected one of your calculations of the Sentencing Guidelines that would have resulted in Mr. Epstein spending far more time in prison than you projected; I contacted the Bureau of Prisons to see whether Mr. Epstein would be eligible for the prison camp that you desired; and I told you my suspicions about the source of the press "leak" and suggested ways to avoid the press. Importantly, I continued to work with you in a professional manner even after I learned that you had been proceeding in bad faith for several weeks — thinking that I had incorrectly concluded that solicitation of minors to engage in prostitution was a registrable offense and that you would "fool" our Office into letting Mr. Epstein plead to a non-registrable offense. Even now, when it is clear that neither you nor your client ever intended to abide by the terms of the agreement that he signed, I have never alleged misconduct on your part. The first allegation that you raise is that I "assiduously" hid from you the fact that Bert Ocariz is a friend of my boyfriend and that I have a "longstanding relationship" with Mr. Ocariz. EFTA00289803 JAY P. LEFKOWITZ, ESQ. DECENSER 13, 2007 PAGE 2 OF 5 I informed you that I selected Mr. Ocariz because he was a friend and classmate of two people whom I respected, and that I had never met or spoken with Mr. Ocariz prior to contacting him about this case. All of those facts are true. I still have never met Mr. Ocariz, and, at the time that he and I spoke about this case, he did not know about my relationship with his friend. You suggest that I should have explicitly informed you that one of the referrals came from my "boyfriend" rather than simply a "friend," which is the term I used, but it is not my nature to discuss my personal relationships with opposing counsel. Your attacks on me and on the victims establish why I wanted to find someone whom I could trust with safeguarding the victims' best interests in the face of intense pressure from an unlimited number of highly skilled and well paid attorneys. Mr. Ocariz was that person. One of your letters suggests a business relationship between Mr. Ocariz and my boyfriend. This is patently untrue and neither my boyfriend nor I would have received any financial benefit from Mr. Ocariz's appointment. Furthermore, after Mr. Ocariz learned more about Mr. Epstein's actions (as described below), he expressed a willingness to handle the case pro bono, with no financial benefit even to himself. Furthermore, you were given several other options to choose from, including the Podhurst firm, which was later selected by Judge Davis. You rejected those other options. You also allege that I improperly disclosed information about the case to Mr. Ocariz. I provided Mr. Ocariz with a bare bones summary of the agreement's terms related to his appointment to help him decide whether the case was something he and his firm would be willing to undertake. I did not provide Mr. Ocariz with facts related to the investigation because they were confidential and instead recommended that he "Google" Mr. Epstein's name for background information. When Mr. Ocariz asked for additional information to assist his firm in addressing conflicts issues, I forwarded those questions to you, and you raised objections for the first time. I did not share any further information about Mr. Epstein or the case. Since Mr. Ocariz had been told that you concurred in his selection, out of professional courtesy, I informed Mr. Ocariz of the Office's decision to use a Special Master to make the selection and told him that the Office had made contact with Judge Davis. We have had no further contact since then and I have never had contact with Judge Davis. I understand from you that Mr. Ocariz contacted Judge Davis. You criticize his decision to do so, yet you feel that you and your co-counsel were entitled to contact Judge Davis to try to "lobby" him to select someone to your liking, despite the fact that the Non-Prosecution Agreement vested the Office with the exclusive right to select the attorney representative. Another reason for my surprise about your allegations regarding misconduct related to the Section 2255 litigation is your earlier desire to have me perform the role of "facilitator" to convince the victims that the lawyer representative was selected by the Office to represent their interests alone and that the out-of-court settlement of their claims was in their best interests. You now state that doing the same things that you had asked me to do earlier is improper meddling in civil litigation. Much of your letter reiterates the challenges to Detective Recarey's investigation that have EFTA00289804 JAY P., LEFKOW/12, ESQ. DECF-MBER 13, 2007 PAGE 3 OF 5 already been submitted to the Office on several occasions and you suggest that I have kept that information from those who reviewed the proposed indictment package. Contrary to your suggestion, those submissions were attached to and incorporated in the proposed indictment package, so your suggestion that I tried to hide something from the reviewers is false. I also take issue with the duplicity of stating that we must accept as true those parts of the Recarey reports and witness statements that you like and we must accept as false those parts that you do not like. You and your co-counsel also impressed upon me from the beginning the need to undertake an independent investigation. It seems inappropriate now to complain because our independent investigation uncovered facts that are unfavorable to your client. You complain that I "forced" your client and the State Attorney's Office to proceed on charges that they do not believe in, yet you do not want our Office to inform the State Attorney's Office of facts that support the additional charge nor do you want any of the victims of that charge to contact Ms. Belohlavek or the Court. Ms. Belohlavek's opinion may change if she knows the fill scope of your client's actions: You and I spent several weeks trying to identify and put together a plea to federal charges that your client was willing to accept. Yet your letter now accuses me of "manufacturing" charges of obstruction of justice, making obscene phone calls, and violating child privacy laws. When Mr. Lourie told you that those charges would "embarrass the Office," he meant that the Office was unwilling to bend the facts to satisfy Mr. Epstein's desired prison sentence — a statement with which I agree. I hope that you understand how your accusations that I imposed "ultimatums" and "forced" you and your client to agree to unconscionable contract terms cannot square with the true facts of this case. As explained in letters from Messrs. Acosta and Sloman, the indictment was postponed for more than five months to allow you and Mr. Epstein's other attorneys to make presentations to the Office to convince the Office not to prosecute. Those presentations were unsuccessful. As you mention in your letter, I —a simple line AUSA — handled the primary negotiations for the Office, and conducted those negotiations with you, Ms. Sanchez, Mr. Lewis, and a host of other highly skilled and experienced practitioners. As you put it, your group has a "combined 250 years experience" to my fourteen. The agreement itself was signed by Mr. Epstein, Ms. Sanchez, and Mr. Lefcourt, whose experience speaks for itself. You and I spent hours negotiating the terms, including when to use "a" versus "the" and other minutiae. When you and I could not reach agreement, you repeatedly went over my head, involving Messrs. Loud; Menchel, Sloman, and Acosta in the negotiations at various times. In any and all plea negotiations the defendant understands that his options are to plead or to continue with the investigation and proceed to trial. Those were the same options that were proposed to Mr. Epstein, and they are not "persecution or intimidation tactics." Mr. Epstein chose to sign the agreement with the advice of a multitude of extremely noteworthy counsel. You also make much of the fact that the names of the victims were not released to Mr. Epstein prior to signing the Agreement. You never asked for such a term. During an earlier meeting, where Mr. Black was present, he raised the concern that you now voice. Mr: Black and I did not have a chance to discuss the issue, but I had already conceived of a way to resolve that EFTA00289805 JAY P. LEFKOWTTZ, ESQ. DECEMBER 13, 2007 PAGE 4 OF 5 issue if it were raised during negotiations. As I stated, it was not, leading me to believe that it was not a matter of concern to the defense. Since the signing of the Non-Prosecution Agreement, the agents and I have vetted the list of victims more than once. In one instance, we decided to remove a name because, although the minor victim was touched inappropriately by Mr. Epstein, we decided that the link to a payment was insufficient to call it "prostitution." I have always remained open to a challenge to the list, so your suggestion that Mr. Epstein was forced to write a blank check is simply unfounded. Your last set of allegations relates to the investigation of the matter. For instance, you claim that some of the victims were informed of their right to collect damages prior to a thorough investigation of their allegations against Mr. Epstein. This also is false. None of the victims was informed of the right to sue under Section 2255 prior to the investigation of the claims. Three victims were notified shortly after the signing of the Non-Prosecution Agreement of the general terms of that Agreement. You raised objections to any victim notification, and no further notifications were done. Throughout this process you have seen that I have prepared this case as though it would proceed to trial. Notifying the witnesses of the possibility of damages claims prior to concluding the matter by plea or trial would only undermine my case. If my reassurances are insufficient, the fact that not a single victim has threatened to sue Mr. Epstein should assure you of the integrity of the investigation.' 'There are numerous other unfounded allegations in your letter about document demands, the money laundering investigation, contacting potential witnesses, speaking with the press, and the like. For the most part, these allegations have been raised and disproven earlier and need not be readdressed. However, with respect to the subpoena served upon the private investigator, contrary to your assertion, and as your co-counsel has already been told, I Jid consult with the Justice Department prior to issuing the subpoena and I was told that because I was nal subpoenaing an attorney's office or an office physically located within an attorney's office, and because the business did private investigation work for individuals (rather than working exclusively for Mr. Black), I could issue a grand jury subpoena in the normal course, which is what I did. I also did not "threaten" the State Attorney's Office with a grand jury subpoena, as the correspondence with their grand jury coordinator makes perfectly clear. With regard to your allegation of my filing the Palm Beach Police Department's probable cause affidavit "with the court knowing that the public could access it," I do not know to what you aftlettliThigTAIrdiJcuments relataito-the graffdliify invegfitatiotitivereeraireitiiiiiiEr the Palm Beach Police Department's probable cause affidavit has never been filed with the Court. in fact, you are referring to the Ex Parse Declaration ofJoseph Recarey that was filed in response to the motion to quash the grand jury subpoena, it was filed both under seal and ex parte, so no one should have access to it except the Court and myself. Those document are still in the Court file only because IN__have violated one of the terms of the Agreement by failing to "withdraw [Epstein's] pending motion to intervene and to quash certain grand jury subpoenas." EFTA00289806 JAY P. LEFICOWITZ, ESQ. DECEMBER 13, 2007 PAGE 5 OF With respect a, I contacted her attorney — who was paid for by Mr. Epstein and was directed b cou sel for Mr. Epstein to demand immunity — and asked only whether he still represente and if he wanted me to send the victim notification letter to him. He asked what the letter would say and I told him that the letter would ' g in about a week and that I could not provide him with the terms. With respect to status as a victim, you again want us to accept as anything detrimental to himamade a number of statements that are contradicted by that are beneficial to your client and to reject is false documentary evidence and a review of her recorded statement shows her credibility with respect to a number of statements. Based upon all of the evidence colt is classified as a victim as defined by statute. Of course, that does not mean tha considers herself a victim or that she would seek damages from Mr. Epstein. I believe that a number of the identified victims will not seek damages, but that does not negate their legal status as victims. I hope that you now understand that your accusations against myself and the agents are unfounded. In the future, I recommend that you address your accusations to me so that I can correct any misunderstandings before you make false allegations to others in the Department. I hope that we can move forward with a professional resolution of this matter, whether that be by your client's adherence to the contract that he signed, or by virtue of a trial. Sincerely, IL Alexander Acosta United States Attorney By: cc: R. Alexander Acosta, U.S. Attorney , First Assistant U.S. Attorney Assistant United States Attorney You also accuse me of ubroaden[ing] the scope of the investigation without any foundation for doing so by adding charges ofmoney laundering and violations of a money transmitting business to the investigation!' Again, I consulted with the Justice Department's Money Laundering Section about my analysis before expanding that scope. The duty attorney agreed with my analysis. EFTA00289807