fer eigever thlny FAA wmvuzsiw KIRKLAND & ELLIS LLP AND AIIMIATLD PAR INCESHIPG www kirkland com December 17, 2007 Honorable R. Alexander Acosta United States Atiorney Dear Ale? thank you for inceting with us on Friday, December 14, 2007. The meeting demonstrated significant agreement on broad issues of policy. We all agree on the centrality of the principle of horizontal equality, namely that Mr. Epstcin should be treated no differently neither more nor less favorably — than a less prominent or less wealthy defendant accused of similur conduct. We also all agree that no person should be allowed to plead guilty to a statute that docs not precisely apply to his conduct. We agree as well that the goal of these extensive ucotiations is to reach a just, equitable, proportional and Wuthtul result. In this letter. we seck to implement these agreed-upon principles. However, we are deeply concemed that, at this late juncture, we remain unenfightened as to a coherent theory of federal criminal law that would pass serious muster, Especially in view of (in the unprecedentedly expansive interpretation of 18 ULS.C. § 2422(b) and, relatedly, (i1) the employment of 18 U.S.C. § 2255, we have only recently come to understand that adorns your list of would-be victims. ‘he theory of her inclusion remains enshrouded in mystery. In any cvent. she is manifestly not a victim. for reasons we shall elucidate, So too, we have respecilully requested illumination as to the factual predicate for the applicability of Florida Stanite § 796.03, which now appears deeply problematic. We are met time and again substantively with silenec. but when the veil of ignorance is only slightly lifted, the actual. truthful facts as weighed in a fair and reasonable balance are found fatally wanting. this is fundamentally unfair and profoundly wrong, We are cager to resolve these issues with your Office expeditiously, To that end, we respectully reattirm our request for a prompt. independent. expedited review of the evidence, Chicago Hong Koag London Munich Now York San Francisco Washington, D.C, EFTA00104555

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emery wmvveosiiv KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 2 which includes but is not limited io i. testimony: the witness transcripts; the tainted reports: and our prior submissions. In light of the concerns we raised and the evidence we discussed at the December 14 meeting. we are firmly persuaded that this provides the only avenue for Mr. Epstein to be afforded the bedrock value of horizontal equality, We now claborate on the three pivotal issues last discussed at last Friday's (December 14) mecting. I. ‘the Conduet is Not a Registcrable Offense Under Florida Law Under the Agreement, Mr. Epstein is to plead guilty to an indictment charging one count of Florida Statute § 796.07, solicitation of prostitution, and to ope count of Florida Statute § 796.03, procuring a minor for prostitution. Given the commercial nature of the conduct generally associated with § 796.03, a defendant convicted under this statute must register as a stxual offender under Florida’s Sex Offender Registration and Notification Act (the “Florida’s Sex Act"). However, Mr. Epstein’s alleged conduct does not meet the requirements of § 796.03, or for that matler, any of the other Florida statutes that require registration, A. Florida Statute § 796.03 is Inapplicable It should be neted that at the time § 796.03 was nacgotiated between the partics. Ms_ maintained (and continued to maintain as late as last week). that a § 796.03 charge involved the solicitation of a minor, not the procurement of a miner, During those negotiations, we repeatedly asked Ms. to confirm that she possessed the requisite evidence to make out a registerable charge, to which she unwaveringly replied that she did in Fact possess this evidence, Although she has refused to disclose such evidence despite our repeated requests, we continued to proceed in good faith. We were then informed by Lana Belohlavek that solicitation of a minor is not a registcrable offense. and we promptly made that known to Ms. . With the evidence at hand, it is clear that § 796.03 is a procurement statute that has no application to Mr. Epstein whatsoever.' Under § 796,03, “[a] person who procures for prostitution. or causes to be prostituted, any person who is under the age of 18 years commits a felony of the second degree... Conviction under this statute requires an offender to register as a sexual offender (whereas a defendant convicted of soliciting a prostitute under § 796.07 does not). Recognizing this {tis obvious from the first plea proposal we received from os. i. that she has ulways scen solicitation of a minor as the appropriate charge under the tacis (this is also the Sinte’s recommended charge). What is now apparent is that she thought that solicitation of a minor was both a felony and a registerable charge under Florida law. (tis not. Rather than force-fil another charge that matches the sentence Ms. desires, your Office should implement the state charge that it has maintained is the most appropriate for the alleged conduct --- solicitation of a minor, EFTA00104556

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veg eegaver 16.00 FAA wvuasiiv KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 3 distinction. the legislature drew a bright line between procuring a minor Jor prostitution on the one hand, and solicitation for prostitution on the other. Indeed, procurement under § 796.03 is clearly not the same as solicitation under § 796.07, as the former requires that the defendant procure the minor to engage ina sex act with a third party, not the defendant himself. This clear demarcation is well sctiled law in Florida, In Register v. State. for instance, the cuvnrt reversed a conviction of § 796.03 for a defendant who offered a 12-year-old girl moncy to have sex with him. The court further explained that to expand the meaning of the statute would be disingenuous to the intent of the Icyislature: We find nothing in cither statute that would support the State’s argument thal offering moncy while soliciting someone to have sex with the offeror was intended to have the same criminal consequences as inducing a victim to engage in sexual activity with a third purty tot neial benefit of the pimp. A person who offers money to a minor to have sex with him commits a crime. ‘The Florida Legislature has designated such an act of solicitation as a less severe crime than exploiting a minor to engage in sexual activity with a third party, to the procurer’s financial advantage. “This distinction is a matter within the exclusive prerogative of the legislative branch. Register, 715 So.2d 274, 278 (Fla. Ist DCA 1998), (emphasis added) * Similarly, in Kobel v. State. the defendant's conviction under § 796,03 was reversed because the court determined that the defendant's actions did not constitute procurement. In Kohel, the defendant approached a ten-year old bay and his friend on the street, arranged to meet them in an alley, and offered the boys moncy for oral sex. The defendant was arrested and charged with (wo counts of procurement of a minor for prostitution, in violation of § 796.03 and Ovo counts of attempted indecent assault. ‘The appellate court determined that the defendant's conduct did not constilute the crime of procurement and held that § 796,03 did not apply because the defendant had not attempted to hire a minor to have sex with a third party, ‘The court recognized that both acts are punishable crimes, but made a clear delineation between them: {lJ the context of prostitution, the word “procure” must be given its specialized meaning, which is “to obtain as 4 prostinuc for another.” connoting a commercial mative. Although the sylicitation of a minor for sex and the procurement of a minor for prostitution are both evil deeds, the use of a miner for the “commercial enterprise” of prostitution is a greater evil. This long-scttled body of state statutory and decisional law has not, to our kKnowledye, heen criticized or otherwise drawn into questivn by Florida's duly-clected, policy-sensitive Governors including, Governor Jeb Bush and the incumbent Governor, ” EFTA00104557

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ter tigevyr t4.to TAA guussiiv KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 4 Kohel. 745 So, 2d 979, 982 (Fla. 4th DCA 1999). (emphasis added) Other Florida decisions have echoed the reasoning and analysis of Aohel and Register. See Petty v. State, 761 So.2d 474 (Fla 3d DCA 2000) (reversing a conviction of § 793.03 fora defendant who paid a prostitute for sexual acts she engaged in with the defendant because the court found ne evidence of commercial exploitation). Mere. Mr. Epstein did not procure any minor for a third party under the meaning of § 795.03. Given the well settled leval precedent, it is clear that § 796.03, the operative statute requiring registration under the Agreement, does not fit the conduct alleged and therefore required registration should be removed from the Aurcement. B. The Conduct Does Not Require Registration Under Florida Law Other statutes for which registration is required also present circumstances that in no way fit Mr. Epstcin’s alleged conduct. {tis clear based on these statutes that the legislature intended for registration to apply to only the most heinous cases of crimes against children. See Vlorida Statute § 943.0435(1)(a)(1). Specifically, sexual offenders are persons who have been convicted of committing, allempting. soliciting or conspiring (0 commit the following kinds of crimes: kidnapping of a child; false imprisonment of a child under the aye of 13: luring of enticing a child under 12 into a structure; sexual battcry: procuring child prostitution: lewd and lascivious battery. molestation, or conduct: lewd and lascivious offenses committed in the presence of an elderly person, battery, and molestation: promoting a sexual performance by a child: showing obscene material w a minor: possessing child computer pornography; transmitting child pornography; buying or selling a minor with knowledge the minor will he portrayed as engaging or appearing to engage in sex ucts. See generally, Florida Statute § 943.0435(1)(a)(1), Not only does Mr. Epsicin's conduct not fall within any of the delineated statutes, but his alleged acts are not comparable in terms of severity or harm. ‘The vast majority of the women performing massages were over the age of 18: with respect to the women alleged to be minors at the time of the purported conduct. the vast majority of those women were 16 of 17; there is no evidence of battery: there is no child pornography: and there is no evidence of kidnapping. imprisonmeut, luring. or procuring.” In many instances. these women called Mr. Epstein to solicit work as a masscuse, und in cach instance these women were paid for their services. 4 The Kebel case expressly overturned the 4th District opinion in Atc(gan where a conviction under § 796.03 for a detendant who offered a minor moncy to engage in sex with the defendant himself was affirmed. See AfeCann v. State, TUL So. 2d 1290 (Fla, ath DCA 1998). 4 {should be noted that in the history of Florida faw, there has never been a statutory rape charge where the exchange of money was involved. EFTA00104558

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fer tesevyr tho to rna igvussil KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 5 | os The State Attorney's Office Does Not Believe the Conduct is Registerable Wt should not be surprising then that no registerable statute = federal or state — appears to cover the conduct in this case. This is because registration, as a matter of law and policy, has always heen limited to extremely dangerous sexual deviants who pose higher than ordinary risks of recidivism, Applying a registerable crime to solicitation-type conduct of the kind at issue here would bring into question the very constitutionality of registration. It would also dilute its impact und compromise the credibility of those who are responsible for vouching for the dangcrousness of defendants required to register for life — here the State Attorney's Olfice.* Indeed, the State Attorney's Office has long maintained that Mr. Epstein’s alleged conduct docs not give rise to a repisterable offense in Florida, The State believes that house arrest is 4 more than appropriate sentence. Tlowever, contrary to your policy of horizontal equality, your Office rejected the State’s view of the cause and effectively dictated a harsher sentence to the State and specifically stated that house arrest would amount to “mansion arrest” for Mr. Epstein, Treating Mr, Epstein differently from any other similarly charged individual simply because of his wealth dircetly contravenes the policy of horizontal equality. Given that Mr. Kpstein’s conduct does not fit the requirement lor registration nor does his lile or circumstances fil the need for registration. we propose that Mr. Lpstein’s charge be modified to relleet this. I. The Conduct is Not a § 2422 Offense A. A Review of the Applicability of § 2422 is Also Necessary We appreciate your concern about whether the Florida statute to which Mr, Epstein is required to plead under the Agreement actually fits the facts of the cusc. We believe. however, that you should be even more concerned about whether the federal statutes fit the facts. ‘The concern over the federal statutes should be greater for several compelling reasons of constitutionality, statulory construction. ethics and principle. ‘irst, We believe, and understand you to share our belief. that if is improper to require a defendant to accept a plea to questionably applicable statutes. In the sume vein. it is far more improper to indict. or threaten to indict. « defendant under an cqually questionable statute, There * Your Office's repeated references to the State Auomey's Office as “a joke“ gre without merit. Barry Krischer, the Palm Beach County State Attorney, has served in office for 12 years. a, the lead prosceulor in this matter, has over a decade of experience prosecuting sex-related crimes and was a founding member of the Child Abuse Protocol, EFTA00104559

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ores wyyvisiiy KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 6 is a long tradition of accepting pleas that allow for some Mexibility as to the crime charged, since pleas represent a mutual agreement and mutual waiver by the parties. Although certain clements cannot, in law. be waived, courts have treated this issue more [exibly in the context of plea agreements, There is no such Mexibility in the context of an indictment ur threatened indictment, Second, Federal statutes are, as a matter of constitutional law. required to be even clearer and less subject to common law expansion than state statutes, As far back as 1812. the Supreme Court has held that there could be no common law crimes under federal law, See United States v. [fuidson, 7 Cranch 32, 43 (1812) (*{O]ur Courts no doubt possess powers not immediately derived from statute: but all exercise of criminal jurisdiction in common kiw cases we are of opinion is not within their implied powers.) ‘The states have never been subject to this limitation on the federal government. Indeed. at the time of the Founding there were state common flaw crimes, and state courts had broad authority subject to consideration of fair warning —- to apply common law principles to the construction of state criminal statutes, Federal courts have never had such authority: Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, uf is reasonable that a fair warning should be piven to the world in language that the common world will understand of what the law intcuds to do if'a certain line is passed. To make the warning thir, so far as possible the Jine should be clear, When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the stalute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation tnt if the legislature had thought of it, very likely broader words would have been used... McBovle v. US., 283 U.S. 25, 27 (1931) Gustice Holmes). There could be no federal common law crimes because criminal law has traditionally been the province of the slates, except in instances of over-arching federal interests, of which none are implicated in the matter at hand. Third. This issue is especially compelling in the context of a federal statute that purports lo make a federal crime out of conduct that has traditionally been the province of the slates, as scx with minors and solicitation of sex for money have always been.“ Belore a federal slatute can be construed to cover such conduct, its language must be “unmistakably clear”, because Congress cannot be presumed to have intended to disrupt the delicate balance between federal and state junsdiction over crimes that have been traditionally prosecuted by the statcs. In cases raising potential Petite issues, the federal statu(e must unambiguously cover the conduct at issue. © As we have made clear throughout this investigation, the alleged conduct does not implicate over-arching federal interests because the conduct was purely local nm nature, the conduct is covered by state law, and there are no indicia of force, cocrcion, viglence, drugs. luring of waflicking. EFTA00104560

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veg uigevur ftoat TAA ig0ov/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December | 7, 2007 Page 7 Fourth. ‘The federal statutes at issue in this case are far more draconian than the state statutes. The federal statutes carry far higher minimum mandatory sentences and higher guidelines. The courts have always required greater clarity. predictability und certainty in the application of harsh statutes than less harsh ones. Fifth. { would raise profound issues of federal criminal enforcement (or your Office deliberately to apply a more permissive statute to its own work than to a safe statute, ft would be unconscionable not te apply at least as rigorous a standard of certainty and clarity to your Office's indi¢iment than to a state statute, even one that is part of a deal made by your Office. It would be unscemly in the extreme for your Office to apply a more permissive standard to its own work than to a slatg statute, We believe strongly that a dispassionate and fair review of the facts will reveal that even if the same standards were to be applied to the applicability vel non of the state and federal statutes, the conclusion could not in good conscience be reached that the Florida statute is inapplicable, while at the same time concluding that the federal srawites are applicable. The daunting standards that must be applied to federal statutes include the following: « The Rule of Lenity: ‘The Supreme Court has long held that criminal statutes that are subject to differing interpretations should be construed in the defendant's favor. See Pusquantina v. US. 544 U.S. 349, 383 (2005) ("We have long held that, when confronted with ‘two rational rcadings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.) (citing Waited States v. McNally, 483 US. 350, 359-360 (1987): United Mates v. Universal CLT. Credit Corp,, 344 U.S. 218. 221-222 (1952)) Purthermore, the rule of lenity also applies to Florida state criminal law. See Register v. State, 715 So.2d 274. 278 (Fla. lst DCA 1998) (“le the extent that penal statutory language is indelinile or ‘is susceptible of differing constructions.” due process requires a strict construction of the language in the defendant's favor under the rule of lenily”) (citing F. Stat. § 775.021(1) (1995); Perkins v. State, 576@ Se.2d 1310, 1312 (Fla. 1991): Logan v. State, 666 So.2d 260. 261 (Fla. 4th DCA 1996)). ¢ Plain Meaning: Commonly accepted principles of statutory law require that statutes be given their plain and unambiguous meaning. if onc exists. See /elvering v. New York Trust Ca., 292 U.S. 455, 469 (1934) (Under the recognized rules of construction we should give the words of the statute their ordinary and common meaning”) (citations omitted). * Clarity and Predictability: “When choice has to be made between two readings of what conduct Congress has made a crime. it is appropriate, belore we choose the harsher alternative, to require that Congress should have spoken in language that is clear and EFTA00104561

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we 6 cece wvveriny KIRKLAND & ELLIS LLP Honorable KR. Alexander Acosta Devember 17, 2007 Page 8 definite”, See United States v. Bass. 404 U.S, 336, 347-48 (1971) (citations and footnote omitted). [tis fundamentally unfair to apply to conduct criminal statues that cannot be understood clearly. Furthermore, given that one primary purpose of criminal law is to announce that one will be punished for the crimes they commit, the statutes condemning them to a sentence should clearly and predictably express the conduct that is prohibited, The fact that even members of our own delense team, including Professor Alan Dershowily, with 45 years of expericnce in reading, teaching and litigating criminal statutes. could not determine that any of the Jederal statutes would be applicable to Mr. Epstein’s conduct, a lay person cannot be expected to make that determination. As confirmed by Judge Stem’s couclusions regarding the application of § 2422(b), as well as the other relevant federal statutes, the conduct at issue is clearly not within the predictable scope of § 2422. See Judge Stern's etter (“In surn, whatever sexual contact occurred. occurred face to face, withoul the usc of an instrumentality of interstate commerce lo persuade or induce it, and therefore, was not an act proscribed by the statute. Accordingly Mr. Epstcin committed no crime within the scope of § 2422(b).”), « No Creative Applications of the Law: Furthermore, criminal statutes should not lend themselves to creative interpretations. ~[C]riminal prosecution, as distinguished from civil lawsuits. is nut supposed to be based on novel theories. Before anyone can be criminally prosecuted, both the alleged criminal conduct and the penalty must be spelled out unambiguously in a plainly worded criminal statute understandable to the averaye citizen . . there is no room for creativity by prosecutors who are understandably cayer to send imessages to miscreants who are themselves using creativily in circumventing anachronistic criminal statutes.” See Alan M. Dershowitz. Aluking Up The Law, N.Y. Vimes 33, Aug. 16, 1996. Do Not Apply Creative Applications for the Kirst Time in a Clase Case: This matter is undoubtedly one of first impression. ‘To stretch the federal statutes beyond recognition to fit the conduct without any precedent can have dangerous and unforeseen consequences. « Clear Legislative Intent to Preempt State Law: Well-established kiw also respects the sovercignty of states with respect to asserting criminal law. “|‘l'fhe historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Conyress.” See Rice v, Santa Fe Elevator Corp.. 331 U.S, 218, 230 (1947), ¢ Narrowly ‘Tailored Statutes Should Apply: If there are two statutes — one that narrowly und precisely fits the facts, and another that is broad and general «the narrow statute should apply. See Radzanower v. Touche Rass & Co., 426 U.S, 148 (1976) (Tt is a basic principle of statutory construction that a statute dealing with a narrow, precise, EFTA00104562

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fereisevvr 81,130 TAA gvuivsitu KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 9 and specific subject is pot submerged by a later enacted statute covering a more generalized spectrum. Where there is no clear intention otherwise, a specific statute will not be controlled or nullificd by a general one, regardless of the prierity of enactment.~) (quotations omitted), This is especially true if the narrow statute is a state statute and the more general statuly is u federal statute, especially in an area traditionally prosecuted by the states. See United States v, Evans, 476 F.3d 1176 (11th Cir. 2007) (“prostitution is] a vice traditionally governed by state regulation”). We believe with great conviction that the above demonstrates that Congress needs to speuk clearly when a federal criminal statute reaches quintessentially state sexual conduct and subjects an accused citizen to potential consequences of gravely scrious [ederal guidelines (and in some cases minimum mandatory) sentencing. We have repeatedly represented to you and others in the hierarchy of your Office that we believe that the Facts of Mr, ipstein’s conduct simply do not conform to the legal requirements for prosecution under § 2422(b) or any conspiracy brought under § 371 to violate § 2422(b). In fact, the chasm between Mr. Lipstein’s conduct and § 2422(b) mirrors the gulf between his conduct and Florida Statute § 796.05. B. § 2422 Plainly Does Not Apply to These Facts We have been informed that § 2242(h) served as the pivotal federal statite which was the foundation of cither congpiguey ter 18 USC. $371) or the substantive charges. At the December 14 meeting. il provided insight into the Government's theory of prosecution, stating that sexual contact with an underage female and an out-of-stile phone call were sufficient to support a § 2242(b) charge, This is quile wrong as a matter of law, ‘There was manifestly no induccment so as to make out a § 2242(b) charge, and sexual contact with an underage female. without more, is incontestably and quintessentially a state offense.? Our previously expressed but profoundly substantial concerns regarding the failure of the known facts to conform to or support a fedeglc for violating § 2422(b) were reinlorced., first, by our review of the sworn testimony of} : second, by letters from your Office advising us that the |i ctims” of Mr. Epstein’s federal violations | ecn reviewed und narrowed hut that PE on that list: and third, by an... theory of liability under § 2422(b) at the December 14 meeting. \ . - . - Although Ms, | alleges, that pursuant to the Agreement. sat “victim of Iederal crimes, her testimony unmistakably reveals that not only did suffer no injury (let slonc damages). but she would probably never mount such a claim. Indeed. Ms. 7 Oo July 6, 2007, we previously sent to your Office a submission regarding ihe inapplicability of § 2422(b). We Ime attached the July 6 submission to this letter EFTA00104563

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~ se wmviisisy KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 10 HEE «stimony establishes that the conduct was consensual; that she lied to Mr. Epstein about her age: that she instructed others to lic to Mr, Lipstein about their ages: that there was no sexual contact al any time: and that_there was _no inducement over the tclephene or any other form of conmunication. Excerpts a . testimony establishing cach of these pivotal points are sel forth below: « Consent Q: Okay. When did you meet him and who introduced you to Jeffrey? A: My virlricnd introduced me to Jefirey.* i Swom Statement at 3- 6) ae he Q: Now you said that Eo you that he Jikes massages. Did she elaborate on what types of massages’? A: She said sometimes he likes topless massages, but vou don't have to da anything you don't want to do, He just likes massages. ) ake RR Az 1 said. 1 told Jeffrey, | heard you like massages topless. And he’s like. yeah, he said, bul you don't have to do anything that you don't [cel comfortable with, And } said okay, but I willingly tuok it off. r Sworn Statement at 10) * Lied About Her Age A:... So tasked her. | said well, what about my age? And she said well, just make sure that_you tel] him that you're 18, And | had a fake 11) at the time and we went there. =. Sworn Statement at 6) eee RK is on the government's list of alleged “victims”, it record and viler damaging credibility issues, including a Although we are uni hears mentioning (hai history of drug abuse, violence, and prostitution. EFTA00104564

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neds save itashissis an 012/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Pave 1) Az... 1 had a fake (1D anyways, saying that | was 18, And ghe just said make sure you're 18 beeause Jeffrey doesnt want any underage girls. Sworn Statement at 8) tke ee A:... of course. be thought J was 18. . i; Sworn Statement at 13) «Instructed Others to Lie About Their Ages A:... 1 bring a lot, like maybe -- | don’t know, maybe 30, maybe 30 [xirls to Epstein]. It was all about the money to me at that time. Swom Stutcment at 28) aka ae Az... [would tell my girlfriends just like BED so prscia me. Make sure you tell him you're 18. Well, these girls that | brought, | know that they were 18 of 19 or 20. And the girls that! didn't know und [| don® ow if they were lying or not, | would say make sure that you tell him you're 18. Sworn Statement at 22) = No Sexual Contact A:... So 1 willingly the first time took off my top wheo | gave him a massage and nothing more than that. 11 was just a back massage and neck massage and | was out of there. Sworn Statement at 9) od Q): Did he at any point kiss you. touch you, show any kind of ulfection towards you? A: Never, never, i Swom Statement at 21) heeae A: Le didnt want me to touch him and he didn’t touch me ut all. Zz Swam Statement ut 17) aRRAKRSE A: | would wear pantics. Willingly one time because we were making jokes and everything and willingly one time [ had, yes. 1 was totally nude. but | was fine with it. EFTA00104565

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vegeves see ee can wmyissity KIRKLAND & ELLIS LLP Honorable R, Alexander Acosta December 17. 2007 Page 12 Q: Okay. A: Totally tine with it. Q: And how did that massaxe go? A; Actually. it was a foot massage and he was silting on the couch, We didn't even have the massage table out and | gave him a foot rub and | was nude. Sworn Statement at 20-21) ~s eee Q: Lle never pulled you closer to him in a sexual way? Az: wish. No, no. never, ever, ever, no, never, Jeflrey is an awesome man, 10, 7 | Sworn Statement at 21) teh me Q: Okay. And with the other girls, was il the same as what you did or different? A: Yeah. yeah. 1 mean. well, | was more willingly to do more, you know. Like | said, | went nude for bim one time, But the other girls. they practically were topless and that’s all that theyawere willing to do. Some girls didn’t want to go topless and Jeffrey didn’t mind. r Sworn Statement at 23) * No Inducement it know | ended up or o drive me Sworn Statement at 15) Ar... Jeffrey. he was a very awesome yuy and | jug giving him my number so | could -- | didn’t we anymore. | would rather go to him on my own. ( ae ee A: No, | gave Jeffrey my number. And 1 said. you know. any lime you want me to give you a massage again, I'll more than welcome to. Sworn Statement at 8) ARR ee A: Me g Jeflrey hardly ever talked on the phone. He was always busy, It was mostly We'd talk when | would get there, you know, So it was like i you want lo come in? Yes. cool, you know. Come there, no, cool, bye. Sworn Statement at 32-33) EFTA00104566

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tes tepever thon fan wviasiiu KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17, 2007 Page 13 aan kke Q: We have -- | don’t know. We have some mess guess that some girls’ names that would call Jeffrey and leave a [message]... ( Swom Statement at 25) ee wee A: Every they said they were line with it. And like, for instance, iin a a lot of girls begged me to bring them back. wanted to come back for the money. Aud as far as | know, we all had fun there. = Sworn Statement at 45) In sum, SE :-sticnony clearly shows that she is nota victim, In fact, never wanted to cooperate with the investigation she refused to cooperate with the FBI. relused service of a subpoena. hired an attorney. and forced the government to give her immunity belore she would speak to them, Ut cannot be that she may now seek relief from Mr. Epstein as a “victim™ under § 2255 without proof of injury ar inducement. thermore, Ms. 7 assertion of documentary proof of an interstate phone cull by docs not establish the nexus required for inducement under § 2422. When challenged at the December 14 mecting to Oe : ee the demands of the federal criminal statute and the testimony of Ms. offered only an gut oFstate toll record. While this document may be inconsistent with a small part of a testimony as to the issue of the locus of phone culls. it utterly fails to demonstrate that the Government theory supports what at its essence is a federalization of underage prostitution (sce letter to | of December 13, 2007 at pg 4, pur 1). ‘This is compellingly so for several reasons: * Absent testimony. the evidence does not exclude the possibility that Mr. Epstcio neither caused nor knew of the call in question or the possibility that neither {a nor Mr. Epstein were even participants on the call: ¢ Absent the testimony of one of the participants. the documented record of the fact of a call does not negate the possibility that the call did not even involve discussion about scheduling a visit ‘oo lll to Mr. Epstein’s house nor any other material subject matter: ¢ Absent the testimony of one of the participants, there is no evidence of inducement, an essential clement of the statute and an elee atrcquires significantly more than scheduling 4 visit with someone who —l was agrecuble to come to Mr. Epstein’s house prior to the cull: EFTA00104567

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sees mvyivritv KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December 17. 2007 Page 14 * Absent evidence of the content of the call, a telephone record reflecting of stale call is completely consistent with someone returning a call initiated by rather than “inducing” a sexual act; * A review of message logs seized ff ‘pstein's residence during the state investigation (as well us a review of testimony) would reflect that it was common for there to be incoming calls by women of all ages asking to be called and secking to visit Mr. Epstein, and © ‘The alleged conduct is far outside the heartland of conduct that § 2422(b) was clearly designed by Congress to prevent Intermet (or arguably. by extension, telephone) luring. Indecd. BE bcnics that she was ever induced to come to Mr, [pstein’s house. The record cannot sustain a federal prosecution without more, We know, from reviewing Ms. transcript, that there is no more, Liven if there were iclephone conumunications regarding the scheduling of massages, mere solicitation ix not inducement, \nducement carrics with it a much higher standard than solicitation.” In entrapment cases lor instance. the Government has argued, and the courts have agreed, that inducement requires “conduct sullicicntly excessive to implant a criminal design in the mind of an otherwise innocent party”. OLS. vy, Daniel, 3 F.3d 775, 778 (4th Cir, 1993): U.S. », Shuts, 2007 WT. 4287666 at *3 (S,1).F la. Nec. §. 2007). “Neither mere solicitation nor the creation of opportunities to cammit an offense comprises inducement.” because “[iJpducement entails some semblance of “arm-twisting.” pleading, or coercive tactics”. Afarreel v. State, 841 Sv.2d 600, 603 (Fla.App. 4th Dist. 2003) (finding ne povernment inducement because “appellant had already demonstrated — his predisposition to commit the offense”). Here, Mr. Epstein at the very worst is guilty of solicitation because he only provided women with an opportunity to commit the act of prostitution by arranging for appointments to be scheduled, Scheduling by telephone, by itself. does not rise to the level of inducement because there is neither a “semblance of anm-twisting. pleading. or coercive tactics” nor an attempt to “implant a-criminal design in the mind” of any partly. The designation of a. a “vielim” in the face of her own testimony is emblematic of the greater problem with the sweeping federal investigation of this matter. “That she remains on a shortened list of § 2255-eligible “victims” in the face of sworn testimony reflecting no inducement, no injury is required for § 2255 recovery, und no violation of the mast applicable lederal predicates. § 2422(b), should, we contend, trigger deep concem that those who nr * ‘This is particularly true when there is little to ne evidence that the defendant even made the calls himself, EFTA00104568

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ms cece wviwsiey KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta Wecember 17. 2007 Page 15 were drafling and/or reviewing the federal indicunent that was the catalyst for the Agreement were themselves misinformed about the scope and demands of proof required by § 2422(b). With underage sexual contact a matter of state criminal prohibition, the additional requisites of federal law unproven by more than a toll record, and the consequences flowing from the current Agreement as scrious as the inevilability of unwarranted civil recoveries of an amount that could be $150,000 to requiring a slate sentence of 18 months in jail and a lilctime of registration as the conditions for Mr. Epstcin to avoid a charge of violating § 2422(b) —- a charge Jor which we strongly believe him to be innocent — we believe the overall risk of a miscarriage of justice to compel a reconsideration of the federal charging decision that catalyzed the execution of the Agreement, This is particularly truc in light of the unprecedented application of § 2422 in this manner, We have previously provided charts of every reported precedent demonstrating that the reach of § 2422(b) being advanced by your Office in this matter is unprecedented. Attempts by CEOS to match the facts of Mr. Epstein's conduct with any prior case — reported or otherwise ~~ generated a single distinguishable precedent that had no relationship to the facts under consideration in this matter, !° Indeed. upon a careful revicw of the evidence, your Office will undoubtedly conclude that federal law is being taken where it has never gone before, and this is the last clear chance for this District through your independent judyment -- on its own voliGen —- to do the right thing. ‘Therefore. we urge that you direct that a full and fair and complete examination of the most trustworthy evidence be ordered, If}. Finality With Respect to § 2255 Vor several weeks, we have articulated our fundamental — und growing — concerns with respect to the profound policy issues raised by your Office's invocation of § 2255. lis common ground among us that § 2255 has pot been the subject of policy guidance from Main Justice, over the Jong life of this unusual statute, I is therefore undisputed that we are sailing in uncharted jurisprudential and policy waters. This should not be a matter entrusted to the judgment of those who have not run the separation-ol-powers gauntlet of Presidential nomination and Senate continnation, As we discussed at our December 14 mecting. and you quile courteously listened. we believe that, as implemented in this extraordinary situation, § 2255 abounds with basic issues founding in the ue Process Clause of the Vifih Amendment. "In LES.» Bochm, the defendant bought and distributed crack cocaine and cocaine fo underage girls; admitted to knowine that the girls were underage; arranged for inderage girls to have sex with other members of the conspiracy in exchange for the drugs: and he was in possession of illegal firearms at the time of the alleged conduct. EFTA00104569

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see weee tere e cee wyiisiw KIRKLAND & ELLIS LLP Llonorable R. Alexander Acosta December 17, 2007 Page 16 For these reasons. we deeply appreciate your contemplation of the appropriateness of the § 2255 portion of the Agreement. As we discussed during the December !4 meeting. and as expressed in our December 11 letter, it is improper for Mr, Epstein to be required to pay recovery to individuals who do nothing but simply assert a claim under § 2255, Some of the individuals identifica do not consider themselves victims, nor would they be considered victims under any meaning of the law, given the evidence. Furthermore. § 2255 allows for a civil remedy and there is no basis for the government to be involved with the recovery of damages based on civil claims of private individuals, While we appreciate your Office’s objective to provide certain individuals with restitution in connection with this matter, we strongly urge you lo consider an appropriate process hy which such restitution can made, We respectfully reitcrate that this process, should not include uny further federal interference in any way with respect to the recovery of civil claims. Vv. Conclusion We believe — and know yau share our belief — that cilizens should be treated alike regardless of wealth or status when it comes to criminal justice. We ask for nothing more of your treatment of Mr. Epstein than that he be treated as would any other citizen of Palm Beach under similar circumstances. Mr. Epstein should not be charged with offenses to which his conduct does not apply, in either the state or federal context. Equal treatment would require that Mr. Lpstein’s prosecution be carried oul by the State Atiorncy’s Office. Mr. Ispstein’s conduct does not appropriately fit within the heartland of federal Jaw, Further, we respectlully submit that the Icderal government should pot sit as an “appellate court™ and permit an unhappy state investigator (in this case one who we contend had little fidelity to the law) to seek review of a decision made in good faith regarding the charging decisions of an clected state prosecutor, As we have expressed to you both at our meeting and in this letter, Florida law mandates that the procurement of a minor for the purposes of solicitation requires that the defendant procured the individual for activity with a third party. Mr, Lipstein’s alleged conduct does not fit this offense. The routine and practice of Mlorida state autheritics and courts is to distinguish between solicitation and procurement of minors, the former being a misdemeanor under state law, the latter a [clony (and the commission of multiple misdemeanors docs not create a [clony). Equal treatment would mandate that Mr. Epstein be charged for solicitation und thus, not be required to register as a sexual offender. It is improper for the federal government to direct 4 cilizen to seek an enhancement of charges that the state prosecutor has deemed appropriately tit the conduct and that prosecutors conclusions are consistent with practices regarding other citizens of his county for similar offenses. We belicve that you shauld authorize the State Attomey for Palm Beach County to decide —— based on all the evidence, which we agree you should provide him if you agree that he should make the charging decision — whether to require EFTA00104570

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ter eegeves 8ee san @v1u/110 KIRKLAND & ELLIS LLP Honorable R. Alexander Acosta December | 7, 2007 Page 17 a prosecution of Mr, Epstein for solicitation (which the evidence supports) or procurement (which the evidence does not support) and that federal involvement in this cause should he narrowly tailored to serve only this goal.!! Lastly, we reaffirm our request tor independent review of the evidence, Previously, we requested but you declined to provide the draft indictment. We understand that we have no statutory right to a FBI 302 that inculpates Mr. Epstein (although we believe that Brady principles would encourage the disclosure of FB) 302 reports that exonerate him). We are concerned that there is information that could be rebutted if disclosed but instead, Known only to the FBI and your Olfice, it stands unchallenged. For that reason, we urge yuu or someone you trust to review the evidence on an expedited basis. We will provide without delay all transcripts of state interviews that are not already in your possession. We will answer any questions the “reviewer” has. We seck such review not to delay the process. We will do everything that is requested to provide any information the reviewer seeks from our investigation. We belicve Uiat given the unique context of the current case — one without federal preecdent —~ that such a process is cansistent with the highest and most noble goals of the criminal justice system: to Icarn the truth. Yours Sincerely, cco: Jeffrey H. Sloman, First Assistant U.S. Attorney '! ifyou Office wishes, it may submit this etter to the State Attiomey’s Office, but the State Attorney's Office should then make the sentencing determination based on the evidence. EFTA00104571