12/2e/o 71 lefksaita bs Aosta EFTA00176147

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KIRKLAND & ELLIS LLP AND AFFILIATED PARTNERSHIPS: 12/26/2007 14:45 FAX KIRKLAND&ELLIS (a) 002/006 Citigroup Center 153 Enar 53rd Steet iat P. Lafkowitz, P.C, New York, New York 10022-4611 —_— ° Bice. , 446-4000 (4 446-4970 (Fi «46-4200 r | - wad com weew,kirkiand.com December 26, 2007 VIA FACSIMILE (305) 530-6444 Ilonorable R. Alexander Acosta United States Attorney United States Atlomey’s Office Southern District of Florida 9 NE 4th Street Miami, FL 33132 Re: Jeffrey Epstein Dear Alex: I write to address the questions you posed to me during a conversation we hud late last week, Specifically, you requested a clarification of our position on two issues; (1) our view on your latest proposal regarding notification to the alleged victims under 18 U.S.C. § 3771; and (2) ur response to your proposed language regarding the 18 U.S.C. § 2255 component of the deferred-prosccution agreement (the “Agreement”). Before | tum to these questions, | would like to rcilerate that this letter responds (o your invitation to discuss proposed modifications to Uie Agreement and should not be construed in any way as a breach of the Agreement. With that siid, I must tell you that the more T look into these issues, the more difficulties I see in trying to tic the resolution of a federal criminal matter with a federal civil mattcr involving minors, and this is even further complicated when the premisc of the resolution is a deferred federal prosecution conditioned on a plea to specific state offenses with a specific sentence pre- determined and required to be imposed by the slate court, without consideration of the fact that the State view of this case differs dramatically from yours. With that in mind, 1 turn to each of your questions below. First, although we appreciate your willingness to modify your Office’s § 3771 notice, which is embodied in your latest proposal, we must still object to aspects of your proposal on the ground that notice under § 3771 is per se inapplicable to this case under the Attorney General’s own guidclines, because the alleged victims are not “crime victims” under § 3771. The Attomey Ceneral Guidclines for Victim and Witness Assistance defines “crime victim” as follows; For the purpose of enforcing the rights cnumerated in article 1.B, a victim is ‘a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia’ (18 U.S.C, § 3771(e)) if the offense is charged in Federal district court, If a victim is under 18 years of age, incompetent, incapacitated, or Chicago Hong Kong London Los Angeles Munich San Francisco Washington, D.C. EFTA00176148

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12/26/2007 14:45 FAX KIRKLAND&ELLIS jJecember 26, 2007 Page 2 deceased, » family member or Icgal guardian of the victim, a representative of the victim's cstate, or any other person so appointed by the court may exercise the victim's rights, but in no cyent shall the accused serve as a guardian or representative for this purpose, (18 U.S.C, § 3771(e)). The Attorney General Guidelines for Victim and Witness Assistance, at 9 (emphasis added). [lerc, the women are clearly not “crime victims” under the Attorney General Guidelines definition, To be a “crime victim”, 4 person or entity must be harmed by an offense that has heen charged in Federal district court, See U.S. Guevara-Toloso, 2005 WL 1210982 at *2 (£.D.N.Y. May 23, 2005) (noting that § 3771's reference to “the crime” suggests “a focus only on the crime with which a defendant is charged in the case in which a victim seeks to assert her statutory rights.”) (emphasis added) Since there has been no offense charged in Federal district court in this mattcr, the identified individuals necessarily do not qualify as “crime victims”. In addition, the Attorncy General Guidelincs further defines a “crime victim” as “a person that has siffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime. (12 U.S.C. § 10607(e)(2))” Jd. As you know, we bclicve we have shown that at Icast some (if not all) of the identificd individuals did not suffer any injury al all in connection with Mr. Epstein's alleged conduct.! In addition, under the Attorncy General Guidelines, notification must be balanced against aiy action that may impinge on Mr. Epstein’s duc process rights. The Attorncy General Cuidelincs clearly call into question “the wisdom and practicality of giving notice” to a “possible witness in the case and the effect that relaying any information may have on the defendant's right te a fair trial.” The Attorney General Guidclines for Victim and Witness Assistance, at 30, The Attomey General Guidclines caution federal prosccutors from providing notice to potential itnesses in instances where such notice could compromise the defendant’s due process rights. his is particularly true, as herc, if the notice includes confidential information, including the conditions of a confidential deferred-prosecution agreement or non-prosecution agreement. In light of these concems, we respectfully request that you reconsider sending notices to the ulleged victims pursuant to § 3771. Our objection to § 3771 notwithstanding, we do nol object (as we made clear in our letter last week) that some form of notice be given to the alleged victims, To that end, we request an opportunity to review the notification before it is sent in order to avoid any confusion or misunderstandings. We believe, howcver, that any and all notices with respect to the alleged victims of state offenses should be sent by the State Attorney rather than your Office, and we 1 See for example, our prior submissions regarding Suigc =o GE J 003/006 EFTA00176149

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12/28/2007 14:48 FAX KIRKLAND&ELLIS December 26, 2007 lage 3 i gree that your Office should defer to the discrclion of the State Attormey regarding all matters \ith regard to those victims and the state proceedings. Second, the more we work to resolve our mutual concerns regarding the § 2255 component of the Agreement, the more our growing fears are realized that the implementation of § 2255 in this casc is inherently flawed and becoming truly unmanageable. In the first instance, tic implementation of § 2255 in this malter causes manageability concerns because it appears the civil component of this casc must be stayed until after all phases of a criminal action have becn rosolved, 18 U.S.C. § 3509(k), which codifics child victims’ and child witnesscs’ rights, seems on its face to preclude any interfercnce arising from a potential or pending civil action on a related criminal proceeding in order to protect a defendant's right to due process. ‘The statute Scales: If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises oul of the same occurrence and in which the child is the victim, the civil action shall be stayed until the cnd of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subsection, a criminal action is pending until its final adjudication in the trial court. 18 U.S.C. § 3509(k). See also, John Doe | I Francis, 2005 WL 517847, at *2 (N.D. Fla. Feb. 1), 2005) (“the language of 18 U.S.C. § 3509(k) is clear that a stay is required in a case such as this where a parallel criminal action is pending which arises from the same occurrence involving niinor victims. See 18 U.S.C. § 3509(k). Inasmuch as Plaintiffs have offered no authority or evidence to the contrary, the Court finds that the stay in this case must remain in effect until final a:ljudication of the criminal casc by the state court.”) It appears that any attempt to resolve the civil componcnt of this case (be it through structured settlements or civil litigation) may be precluded by § 3509(k) insofar as all phascs of tte criminal action have not yet been resolved. To allow for a civil causc of action while a r¢Jated criminal action remains pending cun unduly bias the witncsscs who could be improperly ircentivized by a potential monetary recovery. ‘he prevention of such a result is precisely the reason that § 3509(k) was enacted. Indecd, there can be no such resolution of “all phases of the criminal action” here, until Mr. Epstein’s state sentence is concluded and all opportunity for the initiation of a federal prosecution is forcclosed. In addition, we have reiterated in previous submissions that Mr. Epstein does not belicve he: is guilty of the fedcral charges cnumerated under § 2255, For this reason, we believe that your proposed language regarding an appropriate § 2255 procedure unfairly asks Mr. Epstein to agree that each and every alleged victim identified by the Government is a victim of an cxumerated federal offense under § 2255 and should, therefore, be placed in thc same position (004/008 EFTA00176150

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12/26/2007 14:46 FAX KIRKLAND&ELLIS JJccember 26, 2007 Page 4 she would have been had Mr. Epstein becn convicted of such an offense. As we discussed last weck, it is this requirement that makes your § 2255 proposal so problematic. As much as we ippreciate your willingness to revisit the § 2255 issues, we cannot accept your language as proposed, hecausc we belicve that the conduct of Mr. Epstein with respect to these alleged victims fails to satisfy the requisite elements of any of the enumerated offenses, including 18 V.S.C. § 2422(b) or 18 U.S.C. § 2423(b). In light of the information we have prescnted to you tegarding the two alleged victims whom we understand appear on your list, we hope you inderstand why your language presents us with these concerns. Esscntially, you are asking us to kelp put thesc women in a position that may not be warranted, In short, your proposed language regarding § 2255 statcs that Mr. Epstcin should be treated “‘as if he had been convicted” of an enumerated federal crime. This requires Mr. Epstein to in cssence admit guilt, though he believes he did not commit the requisite offense, The United States Attorney Manual (“USAM") 9-27.440, Principles of Fedcral Prosecution, sets forth a clear Tequirement when a defendant tenders a plea of guilty but subsequently denies committing the offense to which he has offered to plead. Specilically, 9-27.440 provides, in part: In a case in which the defendant tcnders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should muke an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. See also USAM 9-16.015, To date, your Office has refused our requests to share such information with us. For the purposes of attempting to resolve the § 2255 issue, we once again request that your Office make this proof available. Spccifically, your Office has represented that liability exists undcr § 2422(b) and § 2423(b), as well as the stale offense, Florida Statute § 796,03. We would welcome this previously sought information at your carlicst convenience to enable us to resolve tl.is matter in a timely fashion. Finally, 1 would like to address your request that we provide revised language to your Office regarding the appropriate § 2255 procedure, Given the inhercnt complexities described aliove, we have not been able to find language that comports with the Agreement and your stated guals, especially given your insistence that the women be placed in the same position as if Mr. Bostcin “had been convicted”.2, However, if you so choose — and kecping in mind that we 2 In addition, we remind you that wholly and apart from the judicial stay that appeurs to be required under § 3509(k), we believe that the minimum damages amount referenced in § 2255 ($150,000) is subject to un cx- post facto molion, as the stanitory minimum was $50,000 at the time of the ullcgcd conduct and the statute is being implemented in a defcrred-prosecution agreement. (@ 005/008 EFTA00176151

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12/26/2007 14:47 FAX KIRKLANO&ELLIS 006/006 December 26, 2007 Page 5 intend to abide by the Agrccment — we would be willing at you carliest convenience to discuss possible altcrnatives, Thank you for your time and consideration. We remain available to work with you to tesolve these difficult issues in a constructive manner, and we look forward to your response to the concorns we have raised that have not yet been addressed by your Office. Sincerely, JaY P, Lefkowitz cc: Icfirey H. Sloman, First Assistant U.S. Attorncy EFTA00176152

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12/28/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE oo1 Dear Jay, On September 24, 2007, your client, Jeffrey Epstein and two of his lawyers, Gerald Lefcourt, Esq. and Lily Ann Sanchez, Esq., in consultation with numerous other experienced and highly regarded lawyers, entered into a Non-Prosecution Agreement (“the Agreement”) with the United States Attorney’s Office for the Southern District of Florida (“SDFL”). The crux of the Agreement was that the SDFL would defer federal prosecution of Mr. Epstein for illicit sexual conduct by Mr. Epstein involving minor victims in exchange for his guilty plea to solicitation of prostitution (FI. Stat. Section 796.07) and an offense that requires him to register as a sex offender, that is, soli i of minors to engage in prostitution (FI. Stat. Section 796.03). The Agreement also required him to serve a30. month }— sentence - 18 months’ in county j re Bidpbashke the Gis purs ant to U.S.C. Section 2255 just as if this matter had been successfully prosecuted federally. After the Agreement was executed, you and, subsequently, Dean Starr began taking issue with the implementation of the 2255 provision. In response, | offered, in my opinion, numerous and various reasonable modifications and accommodations. These are well documented and do not need to be recounted here. Suffice to say, these modifications and accommodations were not satisfactory to your client. At our December 15, 2007 meeting, counsel for Mr. Epstein announced, inter alia, that it was a “profound injustice” to require Mr. Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. Section 2422(b), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuading or inducing. As you know, this attack on the theory of federal prosecution had been previously raised! and th be considered and rejected by the SDFL and’Child Exploitation and Obscenitc OS) in Washington, D.C. prior to the execution of the Agreement. In addition to your continued attack on the contemplated federal statutes, your December 17" correspondence claimed, for the first time since the execution of the Agreement, that Mr. Epstein’s conduct does not meet the requirements of solicitation of minors to engage in prostitution (Fl. Stat. Section 796.03). This combined with your December 26" correspondence, wherein you state that “we have reiterated in previous submissions that Mr. Epstein does not believe he is 'See July 6, 2007 letter from Gerald B. Lefcourt, Esq. and Alan Dershowitz. EFTA00176153

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12/28/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE joo2 guilty of the federal charges enumerated under section 2255”, clearly prevents Mr. Epstein from fulfilling the material terms and conditions the Agreement. As you know, this is not, and has never been, an Alford plea situation (see North Carolina }. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970)). Your reference to requiring “Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense” is inapplicable here. EFTA00176154

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12/28/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE Dear Jay, On September 24, 2007, your client, Jeffrey Epstein and two of his lawyers, Gerald Lefcourt, Esq. and Lily Ann Sanchez, Esq., in consultation with numerous other experienced and highly regarded lawyers, entered into a Non-Prosecution Agreement (“the Agreement”) with the United States Attomey’s Office for the Southern District of Florida (“SDFL”). The crux of the Agreement was that the SDFL would defer federal prosecution of Mr. Epstein for illicit sexual conduct by Mr. Epstein involving minor victims in exchange for his guilty plea to solicitation of prostitution (FI. Stat. Section 796.07) and an offense that requires hii to register as a sex offender, that is, solicitation of minors to engage in prostitution (Fl. Stat, Section 796.03). The Agreement also required him to serve a 30 month sentence - 18 months’ in county jail - and to compensate the victims pursuant to 18 U.S.C. Section 2255 just as if this matter had been successfully prosecuted federally. After the Agreement was executed, you and, subsequently, Dean Starr began taking issue with the implementation of the 2255 provision. In response, I offered, in my opinion, numerous and various reasonable modifications and accommodations. These are well documented and do not need to be recounted here. Suffice to say, these modifications and accommodations were not satisfactory to your client. At our December 15, 2007 meeting, counsel for Mr. Epstein announced, inter alia, that it was a “profound injustice” to require Mr. Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. Section 2422(b), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuading or inducing. As you know, this attack on the theory of federal prosecution. had been previously raised’ and thoroughly considered and rejected by the SDFL. and Child Exploitation and Obscenity (CEOS) in Washington, D.C. prior to the execution of the Agreement. In addition to your continued attack on the contemplated federal statutes, your December 17" correspondence claimed, for the first time since the execution of the Agreement, that Mr. Epstein’s conduct does not meet the requirements of solicitation of minors to engage in prostitution (Fl. Stat. Section 796.03). This combined with your December 26" correspondence, wherein you state' that “we have reiterated in previous submissions that Mr. Epstein does not believe he is EFTA00176155 oo.

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12/28/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE (a o02 guilty of the federal charges enumerated under section 2255”, clearly prevents Mr. Epstein from fulfilling the material terms and conditions the Agreement. As you know, this is not, and has never been, an Alford plea situation (see North Carolina fh}. Afford, 400 U.S. 25, 91 S.Ct. 160 (1970)). Your reference to requiring “Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense” is inapplicable here. EFTA00176156