12/11/2007 11:37 FAX @ 002/039 KIRKLAND & ELLIS LLP ADH AER LATEY PAM RAL IEEE 777 South Fiquerna Street Lue Angeles, Cattiurng 90077 Kenneth W. Starr To Call Writer Owectly: (213) 680-8400 haccunde. (213) Gep-u440 (213) 660-6500 kslarr@pkirkiand com were hirkiand com December 11, 2007 VIA_FACSIMILE (305) 530-6444 Honorable R, Alexander Acosta United States Artorney United States Atiorney’s Office Southern District of Florida 99 NE 4th Street Miami. FL 33132 Re: Jetlrey Epsicin Deur Alex: As we discussed during our telephone conversations on both [riday and Monday (yesterday), we are submitting two scparate Ictters that address our broad arcas of deep concern in this matter; First, the cluster of fundamental policy issues surrounding the use and implementation of 2255, a richly policy-laden but uncharted area of federal law: and second. our profound concerns as to the background and conduct of the investigation. Consistent with our conversations, we submit these letters with the assurance and understanding that our doing so in ho manner constitutes a breach of the Non-Prosecution Agreement or unwinds that Agreement. We are grateful for your courtesy in agrecing tv receive and consider these submissions, and then to meet lo discuss them. As you undertake your study and reflection, kindly allow me to make this pivotal point: In the combined 250 years expericnee of Jeffrey's defense team, we have together and individually concluded that this case is not only extraordinary and unprecedented, it is deeply and uniquely troubling. ‘Uhe constellation of issues. large and small. renders Jellrey's matter entirely su/ generis, We say this not lightly. Indeed, as you will glean [rom our two Ictters, we are gravely coneerned thal, in addition to its odd conceptualization and genesis, the matter in its day-to-day implementation has been handled in a manner that raises deeply troubling questions with respect to both federal policy and individual judgment in a system that is, at its best. assiduously devoted to the rule of law, The latest episodes involving 2255 notification to the alleged victims put illustratively in bold relie! our concerns that the ends of justice. time and again, are nol being served, By way of illustration, but it is only one among a cascading list of grave concerns, we now understand that the Assistant United States Attorney whose conduct has troubled us from day one has quite recently reached out to the atomey for anc Chicago Hong Kong London Munich Now York San Mranctsco Washington, D.C. EFTA00214291

--=PAGE_BREAK=--

12/11/2007 11:37 FAX @ 003/089 KIRKLAND & ELLIS LLP Honorable KR. Alexander Acosta December 11, 2007 Page 2 provided oral notification of the victim notification letter, This notification, as we have stated time and agctin. is profoundly unfair, But quite apart from our substantive concerns, which are abiding and which had prompted our appeal to the Assistant Atlormey General in the first instance, we had thought that the notilication process had been held in abeyance until completion of our ongoing discussions with respect to that process. ‘That appears not to be se. This latest in a baleful line of prosecutorial actions is dripping with irony. We respectfully call your attention to the transeript of the interview with a and guide you -- as the duly confirmed Executive Branch official charged with making judgments consistent with our constitutional order -- to the telling fact that | not in any manner view herself as a victim, Quite to the contrary. She is not alone. We draw attention to this episode as but a recent indication of the deepening need for your thoughtful and independent review. And for your agreeing to provide that review, our defense team is very gratcful. Respectfully Submitted, Ait Wz thin Kenneth W, Starr EFTA00214292

--=PAGE_BREAK=--

12/11/2007 11:37 FAX @004/039 KIRKLAND & ELLIS LLP AND AtHHLIATED FARINEFDETE™ Citigroup Center 153 Eust 531d Stroot A611 Jay P 1 atkowltz, P.C New York, Now Yurk 10022-46 Fassundo: < Pe onenene worw hithland com December 11, 2007 VIA FACSIMILE (305) §30-6444 Honorable KR. Alexander Acosta United States Attomcy United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami. FL. 33132 Re: Jeffrey Epstein Dear Alex: ! appreciate the opportunity you have provided lo review some of the issues and concerns of Mr. Epstein’s defense team. Importantly, | appreciate your agreement that this submission would neither be understood by you us constituting a breach of the Non-Prosecution Agreement (“Agreement™) nor result in any unwinding of the Agreement by your Office. Implicit in this agreement is the understanding that | can share with you our concems and request a review on the basis for these concerns. while at the same lime assure my client that this submission will not in any respect result in formal or informal repercussions or attempts by any member of the prosecution or investigative team to involve themselves lo Mr, Epstein’s detriment in any matter related to the Agreement, particularly in the state prosecution, ‘This letter is intended to support our assertion to you that the manner in which both the investigation of allegations against Mr. Fipstein and the resolution thercof were highly irregular and warrant a full review, We appreciate your willingness to consider the evidence. We respectfully request that you review Judge Stern's letter to Alan Dershowitz. faxed to you on December 7, 2007. in connection with the concerns we set forth in this submission. I FEDERAL INVESTIGATORS RELIED UPON * We have serious concerns thal the summurics of the evidence that have been presented to you have been materially inaccurate. As you may know, the principal witnesses in this case were lirst interviewed by Detective lf of the Palm Beach Police Department (the “PBPID") and other state law enforcement officers. These interviews (the “witness statements”) were oflen tape-recorded thus providing a verbatim and detailed rceord of the recollections of the witnesses ato point in time prior to any federal involvement. Unfortumately, the police report authored by Detective and certain affidavits executed by hirn contained both material misstatements Chicago Hong Kong london Los Angeles Munich San Francisco Washington, D.C. EFTA00214293

--=PAGE_BREAK=--

12/11/2007 11:37 FAX @005/o033 KIRKLAND & ELLIS LLP K. Alexander Acosta December 11. 2007 Page 2 regarding the specifies of what he was told by his witnesses and also contained omissions of critical and often exculpatory information that was recorded verbalim during the taped interview sessions. The federal investigation involve jews with many of the same witnesses. We are aware that at least one federal interview ( ) was recorded, We understand that Detectiv provided his police report and certain affidavits to the federal authorities but did not provide the actual witness statements of the taped interviews to your Office or to the FBI. ‘These witness statements constitute the best evidence available (they are verbatim and earlicr in time to the federal interviews), and they contain statements that are highly exculpatory to Mr. Epstein, Because understanding the compromised nature of the “evidence” against Mr. Epstcin is key to a proper view of this case. we summarize it in detail below. A. The Witness Statements Establish That Mr. Epstein, Did Not Target Masseuses Under 18. Indeed, the witness statements demonstrate that the opposite is ir hat_ the many of t _ r. Lipstein’s home, Also, there is substantial evidence, found in the sworn statements of the women themselves, which indicate that. to the extent others were in fact under the age of eighteen, many allirmatively lied about her age. herself told the PBPD: : told me to say | was 18 because P not then he [Epstcin| won't really let you in his house. So | said | was 18". Detective . however, largely ignored these critical admissions in his Police Report and Probable Cause Allidavit, ' Q: At any time, did he speak to you and does he know how old you are? Did he know how old you were? A:.. Asa mater of fact, PY told me to say | was [8 because || said tell him you're 18 because if you're nol. then he won't really let vou in his house. So I said ] was 18. As 1 was giving him a massage. he's like, how ald are you? And then | was like 18. But 1 kind of said it really fast because | didn’t want to make it sound like | was lying or anything. (Sworn Statement of 3/15/05). Q: Did he ask you your aye? A: Yeah, | told him I was 18. (Sworn Statement of 10/05/05). EFTA00214294

--=PAGE_BREAK=--

12/11/2007 11:38 FAX @ 006/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 3 (: Did he know your age? A: | don't think -- | think he did. Downstairs A was like oh, well if they ask you how old are you just say you're 18 but he never asked me how old [| wus. | thought you had to be 18 to give a massage (inaudible). (Sworn Statement of 12/13/05) ' A: We were supposed to say we were 18. Q: Who told you that, to say that? CO (Sworn Statement of 11/8/05). A: l told him | was 18. (Sworn Statement of 10/3/05). Well with | | don’t know how old she is because she lied about her age. She lied to me when | first met her, When | was 18 she told me she was 18. (Inaudible.) Well she left her purse at my house and she told me to make sure that | didnt look in her purse. When | went through her purse | found her state license that said she was 16 so she licd to me about her ave. (Sworn Statement of 10/03/05).! Q: Now. how old were you when you first started going there’? A: Eighteen. I'm 19 now this last March.” (Sworn Statement of 10/12/05), ‘a Q: And all this occurred when you were 18 though? ' In addition to giving a sworn statement at the PRPD Station Fs conversations with Detective while being transported to and from the station were also recorded. This excerpt is taken from the recording of traveling, from the station EFTA00214295

--=PAGE_BREAK=--

12/11/2007 11:38 FAX @007/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1, 2007 Page 4 A: Uh-huh, | had been 18 for like 8 months, nine months already. My birthday is in June so | had been 18 for a while. (Sworn Statement of 2/3/05). : Q: Okay. How old are you now? You're A: Pm 20 Q: You're 20, Soa couple months ago you would have been what, 19” A: Uh-huh. Q: Alright. So July, August you would have been 19, 20. On the verge of 20? A: Uh-huh. (Sworm Statement of 11/4/05) We believe that other witnesses have similarly told the FBI that Mr, Epstein attempted to monitor the ages of the masscuses who came to his home. We further belicve that these transcripts would show that the federal interest in prosecuting Mr. lipstein for paradigmatic state offenses was far less compelling than the inaccurale police reports suggest. B. Jetective Made Crucial Misstatements in the Police Report and Proba ‘ause Affidavits. We have reviewed the sworn and recorded witness statements of many of the individuals who were interviewed (conducted in person or by telephone) as well as a number of the controlled calls cited in the Police Report, ‘Time aller time, we found statements in the Police Report attributed to statements made in the swom recordings that cither simply were nol said. or in some instances, are Matly contradicted. by the witness who purportedly made the statement. In fact. they often stand in stark contrast lo representations made by Detective —: both the official Police Report and in alfidavits signed by him under oath . We highlight the most significant ones identified to date; ° . Not Report that Epstein Told Her to Lic About her Age ‘The Probable Cause Affidavit indicates that during her swom statement “BBB advised that during her frequent visits Epstein asked for her real age. HB stated she was sixteen [and that] Epstein advised her not to tell anyone her real age.” Arrest Probable Cause Affidavit at 11. That statement appears nowhere in i: swom statement. EFTA00214296

--=PAGE_BREAK=--

12/11/2007 11:38 FAX @ 008/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 Page 5 ® FY Did Not State that Epstein Photographed Her Having Sex Iso reports s claiming that “Epstein would photograph and her naked and having sex and proudly display the photographs within the home.” /d@. at 12. Again, this statement is not in HEs sworn statement Vo the contrary, the transcript reflects that stated: “1 was just like. it was me standing in front of a big white marble bathtub . . . in the guest bathroom in his master suite. And it wasn’t like T was you know spreading my legs or anything for the camera, | was like. | was standing up. 1 think | was standing up and | just like, it was me kind of looking ever my shoulder kinda smiling. and that was that.” Sworn > Statement of 10/1 1/05 at 35.2 bd | Epstein Did Not Touch Her tnappropriately Detective | recounts that HE «'visec that “Epstein grabbed her buttocks and pulled her close to him.” Probable Cause Allidavit at 6, See alsa, Police Report (10/07/08) at 30 (same). [fpever made this statement. Jn fact, when Detective lEEhsked. “He did not touch you inappropriately?” J responded. “No.” Sworn Statement of 10/04/05 at 11. ° ae Not Sixteen When She First When to Epstein’s Ilome. Detective EE states: * also stated she was sixtcen years old when she first went to Lpsicin’s house’. Incident Report at 52. Tlowever. affirmatively stales that she was seventeen when she first went to [pstein’s home: “Q: Okay. How old were you when you first went there? A: Seventeen. Q: Seventeen. A: And | was 17 the last time | went there too. | turned 18 this past June”, Sworn Statement of 11/14/05. . ae 3. Detective Reearcy that Epstein Did Not Vake out Sex Toys. the Probable Cause Allidavit indicatcs thal sisted, “Epstein would use a massager/vibrator. which she described as while in color and a large head. Epstein would rub the vibrator/massager on her vaginal area as he would masturbate.~ Probable Cause Alfidavit at 14: see alyo Police Report (11/10/05) at 49 (“Lipstein would use a massager/vibrator, which she described as while in color with a large head, on her.*). ‘This statement appears nowhere in the transcript of [Ps swom : || was interviewed by DecctivelEE wv ice, once by telephone, and once in person. The portions of the Police Keport to which we refer specifically cite the in-person interview of as the source for the information reported, We hive reviewed the recording of that interview wad base the comparison on that review, We have never heard a recording of the telephone interview, EFTA00214297

--=PAGE_BREAK=--

12/11/2007 11:39 FAX @ 009/099 KIRKLAND & ELLIS LLP December 11, 2007 Page 6 statement. In fact. when DetectivellEE asked whether Mr. Epstein had “ever take[n] out any woys, EZ responded, “No.” Sworn Statement of 11/08/05 at 17. ad a Not Recall Mr. Epstein Masturbating Detective oy that “advised she was sure [Mr. Epstein] was masturbating hased on his hand movements going up and down on his penis area.” Probable Cause Affidavit at 8. See alse Police Report (10/07/05) at 35 (sume). Detective IRs account is in direct contradiction to true statement, specilically: Q: Okay did he ever take of) did he ever touch himsel!’? A:T don’t think so. Q: No. Did he ever masturbate himself in front of vou? A: 1 don’t remember him doing that. He might have but | really don’t remember. (Sworn Statement of 10/05/05 at 7). . BE s:.:.« that Only One Girl Looked Young Police Report at 57: stated that towards the end of his employment. the masscuses were younger and younger”. However, he said no such thing: Q: Did they seem young to you? A. No, sir, Mostly no, We saw onc or two young ones in the last year, Before that, it was all adults... | remember one girl was young. We never asked how old she was, It was notin my job... Bul | imagine she was 16, 177. (Sworm Stuement of 11/21/05) C, Detective In addition to the misstatements in the Police Report and Probable Cause Atlidavit as to the evidentiary record, there were also material omissions. both of facts Known to the PBPD and alsy of facts not known to the PBPD, though known by the State Attorney. In the latter instance. the lack of knowledge was the result of the PBPD’s refusal to receive the exculpatory evidence. In fuet, they refused tu atiend a mecting called by the State Attorney specifically to provide the relevant evidence. Thus, the Police Report and Probable Cause Affidavil only olTer a skewed view of the facts material to this matter. Examples follow 1. The Video Surveillance Equipment Located in Mr. Epstein's Office and Garage. Both the Police Report (at 43) and the Probable Cause Affidavil (at 18) make EFTA00214298

--=PAGE_BREAK=--

12/11/2007 11:39 FAX 010/033 KIRKLAND & ELLIS LLP December 1} 1, 2007 Page 7 particular mention of the “discovery” of video surveillance equipment (or “covert cumeras™ as they ure called) in Epstein’s garage and library/office. Inclusion of this information insinuates ¢ Seeuipment and the events at issue: in the tates, “on the first floor of the | Epstein] Probable Cause Affid residence | [Detective found two covert cameras hidden within clocks. One was located in the garage und the other located in the library arca on a shell behind Lipstein’s omputer’s hard drive was reviewed which showed several images of and other witnesses that have been interviewed, All of these images appeared to come from the camera positioned behind Lpstein’s desk”. See Probable Cause AlYidavit at 18. Clearly omitted from both the Police Report and the Probable Cause Affidavit is the fact that the PBPD. and specitically Detective Recarey. knew about the cumeras since they were installed in 2003. with the help of the PBPD, ww address the theft of cash from Epstein'’s home. ‘This fact ix detailed in a Pulm Beach Police Report prepared in October 2003 detaibipe tbe ibslis, the installation of video equipment. the video recording em Epsicin’s then house manager) “red handed”. and the incriminating statements made by fvhen he was confronted al the time. See a Police Report at §. 8. The contemporaneous police report confirms the fact that the video footage was turned over to Detective himself, wv Polygraph Examination and Report. On May 2. 2006. Mr. Epsicin submitted to a polygraph examination by George Slattery. a highly respected polygraph cxaminer who is regularly uscd by the State Atlorney, The examination was done al a time ao told that the sole Jocus of the investigation was the conduct i whether he way threaten|ed| (c) whether he was told by that she was 18 years old”: and (d) whether he “believed as 18 years old”, As set forth in the Report of the examination, the term xual contact™ was given an extremely broad meaning in order to capture any anppapente conduct that could have occurred.) The results of the examination uch conduct occurred: (ii) Mr. Epstein never threatened told Mr. Epstein she was 18 years old: and (iv) Mr. Epstein was 18 years old. Mr. Epstein was asked (a) whether he * Phe defimtion included: “sexual intercourse. oral sex acts (penis in mouth or mouth on vagina). linger penetration of the vagina, f penetration of the anus, touching of the vagina for sexual gratification purposes, touching of the penis for sexual gratification purposes, masturbation by or to another, touching or rubbing of the breasts, or any other physical contact involving sexual thoughts and‘or desires with another person”. EFTA00214299

--=PAGE_BREAK=--

12/11/2007 11:39 FAX @o11/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 8 3 Broken “Sex Toys” in Mr. Epstein's Trash. Ube Volice Report details the police finding in Mr. Epstein’s trash what is described as broken pieces of a “sex toy” and that this “discovery” purportedly corroborated witness statements. Omitted from both the Police Report and the Probable Cause Affidavit is the fact that during the course of executing the search warrant in Epstecin’s home, the police discovered the other picce of that key “sex toy” und realized it was in fact only the broken handle of a salad server. ‘Though “sex toys” play a prominent role in the Police Report and Probable Cause Affidavit. the Police Report was never amended to reflect the discovery of this new and highly relevant evidence. 4. Failure to Consider Excnulpatory or Impeaching Evidence. Other exculpatory and impeaching evidence known by the PBPD was omitted from the Police Report and Probable Cause Aflidavit by, in our view, manipulating the date the investigation was allegedly closed. According to the Police Report (at 8&5). Detective “explained |to ASAI that the PBPD had concluded its case in December of 2008”. That assertion, which is false. conveniently resulted in the omission of all information adduced subsequent to that daic. Thus, though the Police Report in fact contains information obtained afier December 2008, the PBPD purported to justify its refusal to consider, or even to include, in the Police Report, the Probable Cause Allidavit or what it released to the public, all the exculpatory and evidence impeaching the witnesses submitied on behalf of Mr, Epstein, most of which was provided alicr December 2008. That evidence is listed below. S. Unreported Criminal Histories and Mental Uealth Problems of the Witnesses Relied on in the Police Report and Probable Cause Affidavit. Cvideuce obtained conceming the witnesses relied upon to support the Probable Cause Affidavit casts significant doubt on whether these witnesses are sufficiently credible to support a finding of probable cause, let alone to sustain what would be the prosecution's burden of proof at a trial. Though such evidence was submitted to the PBIP’D, none of it was included in the Police Report or the Probable Cause Affidavit. © EE while the Police Report (at $7) and the Probable Cause Allidavit (at 21) contain assertions by IEE which allegedly support bringing a criminal charge. the evidence revesling evident mental instability; prior criminal conduct against Epstein: and bias towards [Epstein is notably omitted. As detailed above, in 2003 BEE was filmed taking money from Lpsiein’s home. Afler being caught on videotape unlawfully entering Epstein’s home and stealing cash from a brielcase, * While we have never intended to and do not here seck to gratuitously cast aspersions un any of the witnesses, in Previously ashing the State and now asking you to evaluate the strength of this cuxe, we have been constrained to point out the fact that the alleged - -_ | to present themselves to the world through MySpace profiles with self-selected monikers such as wn! “EEE or with nude photos. EFTA00214300

--=PAGE_BREAK=--

12/11/2007 11:40 FAX @012/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 9 HB scmnittes to the PBPD that he entered the house unlawJully on numerous occasions, stealing cash and attempting to steal Epstein’s licensed handgun to commit suicide, Although this information was known by DetcctivelEEht the time the Police Report and Probable Cause Affidavit were prepared. and is clearly material to uny determination of credibility, it was omitted. was the source of the vast majority of the serious allegations made against Epstein. While the Police Report and Probable Cause Affidavit rely on assertions, there are (wo significant problems with that reliance. First there is no mention of certain critical admissions made by during her interview, as well as on her MySpace webpage (discovered by defense investigators and turned over to the State Auorney). Second. BB but omitted from the Police Report is any reference to the facts knewn about her by the PBPD. specifically, that at the tim: was making these assertions she had heen arrested hy the PBPD and was heing prosecuted for possession of marijuana and drug paraphernalia, We take cach in tur, . | Voluntary Sexual Conduct With Epstein, Refuses to Disclose the Disposition of the Monies She Earned, and Lies About Being “Given” a Car by Epstein: Deteciive ll tailed to inelude in the Police Report edmission that on one occasion she engaged in sexual conduct with Epstcin’s girlfriend as her birthday “gilt” to Epstein. Nor docs Detective BEE clic the fact tha flatly refused to discuss with him the disposition of the thousands of dollars she said she was given by Epstein. or that she falscly claimed that she did not use drugs. despite her MySpace entrics in which she exclaims “I can't wait to buy some weed! !{1r, Detective was aware the car had been rented. not purchased. and only if was only leased on a monthly basis for two months. While fanciful claim that she was given a car appeurs in the Police Report, it is never corrected, . ae: Arrested for Possession of Marijuana and Drug ‘arapheraaha. As noid. on September 11, 2005, was urrested for possession of marijuana and drug paraphernalia. In response to this arrest, Ilall “came forward™ (as the Probable Cause Affidavit implies at 10-11), claiming she had knowledge of “sexual activity taking place” at Hpstein’s residence and misconduct by Epstein, (This “coming forward” appears no where in the Police Report.) Thus, it becomes clear that | fer of misconduct by Epstein were motivated by a desire to avoid the repercussions of her own criminal conduct, which should have been taken into account when assessing her credibility as a witness. EFTA00214301

--=PAGE_BREAK=--

12/11/2007 11:40 FAX @013/0399 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 10 ° a Steals From a Victoria's Secret Store, An investigation by private investigators working for the defense revealed that in late 2005 was employed at a Victoria's Sceret store in Florida, ‘Shree days alter her mgugdigana case was terminated, [J was caught by « slure manager mn | attempted to leave the store with merchandise in her purse, the security tag still attached, Seeing the manager EEF aimed “someone is trying to set me up”, Mollowing an internal investivation. which disclosed additional thefis [rom both the store and a customer, she was fired. In a recorded interview. admitted to stealing and asserted that her reason for doing so was that “she was not getting paid enough”. This information and supporting documentation was presented to the PBPD, but was never included in the Police Report or Probable Cause Affidavit. - Ee is on MySpace About Victoria’s Secret Store Termination, Also uncovered by delense investigators is dissembling version of the Victoria’s Sceret debacle on her “MySpace” webpage, There, Jfannounced that she “. . . forgot to let everyone know I quit my job at V.S. ‘They said they suspected me of “causing losses to their company’ — which by the way is bullshit. | as “by the book’ on EVERYTHING!!! . . . | got so fed up in that office that | handed the Loss Prevention lady back my keys and walked out”. This information and supporting documentation was provided by the defense to the PBPD, but was not included in the Police Report or Probable Cause Affidavit, ° fF Lies on her Victoria's Secret Joh Application. Additional information on I MySpace webpage casts further doubt on her credibility. For example. she boasts to having engaged in a fraudulent scheme to get hired by Victoria's Secret, explaining. “Oh, it was so funny | used [my boylriend| as one of my references for fi job and the lady called me back and told me that gave me such an outstanding reference that she did not need to call anyone else hack... . he got me the job! Just like that . .. | lied and said he was the old stock manager at Holister she bought it... Vhis information and supporting documentation was provided by the defense to the PRPD, but was not included in the Police Report or Probable Cause Affidavit. ° ae -.... About Her Marijuana Use. Also on her ySpace webpage can be found admissions of purchasing and using marijuana and marijuana paraphermatlia. Specifically States she “can’t wail to buy some weed!!! .. 2 T can’t wait!!! ... (Hold on: EFTA00214302

--=PAGE_BREAK=--

12/11/2007 11:40 FAX 014/039 KIRKLAND & ELLIS LLP R. Alexander Acosta December ||, 2007 Pape 11 let me say that again) | can“t wail to buy some weed!!!... | also want to gel a vaporizer so | can smoke in my room because apparently there are “nares” everywhere ise posted a photograph of a marijuana cigarette and labeled it “what heaven looks like to me”, This information and supporting documentation was provided by the defense to the PBPD, was not included in the Police Report or Probable Cause Affidavit (although there is both a fleeting reference in the Police Report ‘ of marijuana with her boylriend (at 67) and in the Probable Cause Affidavil to marijuana arrest (at 10- 11)). ° PF While the Police Report and Probable Cause Affidavit contain numerous assertions intended to mantis taped admission that she clearly lold Epstein she was 18, omitled from these documents is reference to MySpuce webpage. presented to the State Atlorney’s Office, where . in no connection to this case, she affirmatively represented to the world that she was 18, thereby corroborating her li¢ to Epstein. Also omitted is any reference to her long history of run-ins with law enforcement. Among those are multiple runaway complaints by her parents and her assignment to a special high school for drug abusers. ¢ ERE MySpace Webpage States She Drinks, Uses Drugs, Gets into Trouble, Has Beaten Someone Up, Shoplifis, Has Lost her Virginity, Earns $250,000 and Higher, and Contains Naked and Provocative Photographs. Vhe first image seen on MySpace webpage, the photo [I chose to represent her. is that of a naked woman proyocatively Iving on the beach. Ihe illuminating webpage also contains Yn that of all her body parts. she “love[s| her ass“. she drinks to excess. uses drugs, “pets into trouble”, has beaten someone up. has shoplifted “lots”, “already lost” her virginity, and carns “$250,000 and higher”, As with the other impeaching information, this material. vital to determining credibility, was provided hy the defense to the PBPD but was never included in the Police Report or Probable Cause Affidavit. ° Prior Record ~ Drugs, Alcohol, Running Away From Home. has a history of running away/turning up missing from her parents’ various homes; of using druys and alcohol; and of associating with individuals of questionable judgment. For example, a Palm Beach County Sheriffs Office Report details how only two days after she returned to Florida to live with her father, on March 31, 2006. police were called to the home in response to her father’s report that she and her twin sister were missing. The Police Report describes her as “under the influence of a narcotic as |she| could barely stand up, EFTA00214303

--=PAGE_BREAK=--

12/11/2007 11:41 FAX 015/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 12 |her] eves were bloodshot. and [her] pupils were diluted |sic|". It further documents thay had staved out all night and were returned home by a “drug dealer”. This event coincided with HE having been found at an “inappropriate location” by Georgia police in response to a call — en Although this information, material to determining credibility. was provided by the defense and Known to the PBPD. it was never included in the Police Report or Probable Cause Affidavit. - arrears While the Police Report_and Probable Cause - lavit_rcly on statements of his federal hank traud conviction, whic icicnsc investigators discovered and turned over to the PBPID during the course of the investigation, was omitted, served 21 months in federal prison for his offense. . a «- the Police Report and Probable Cause Alfidavit rely on statements o stepmother, omitted is state convichon lor idenuty fraud, This information. uncovered by defense investigators, was also turned over to the PBPD during the course of the investigation. dD. A Fulsome Review In Light Of The Compromised Nature Of The Evidence. Should Be Conducted. hese tainted and inaccurate reports compromised the federal investigation.* As you may know, the PBPD took the unprecedented and highly uncthical step of releasing these reports to the media as well, ‘hese reports spread across the Internet, and were undoubtedly read by the other individuals who were later interviewed by the FBI for giving Mr. Epstein massages. As we have shown, these reports contain multiple fabrications, omixsions. and outright misstatements of fact. Moreover. the evidence and the allegations were undeniably misrepresenicd to the FBI, with no inclusion of the evidence exposing the dcliciencies of the “proof” and the exculpatory evidence upon which the State relied. Furthermore. it should be noted that many of these same individuals were also interviewed by the FBI after their state interviews bul prior to Mr. Epstein’s counsel providing the government with the transcripts of the recorded interviews. ‘he * Although we have been informed that the FBI identified and then interviewed additional potential witnesses, many of them discoveries are believed to have emanated from message pads containing contact information that were seized from Mr Lpstein's home pursuant to a state search warrant that was deeply and constitutionally flawed by misstaicments and omissions as well ax other facial deficicncies. EFTA00214304

--=PAGE_BREAK=--

12/11/2007 11:41 FAX @016/03s3 KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1. 2007 Page 13 transcripts and tapes, which we hope to share with you in person, will likely present a very different view of those interviews taken afierwards. ‘Therefore, in the interest of truth. we ask you lo review the transcripts. compare them to the FBI reports upon which the indictment was predicated. and then determine whether the FBI summarics and the prosecution memorandum upon which the charging decisions were made overstate Mr. Epstvin’s federal culpability. Concomitant to these requests. we would ask that you determine whether the investigative team ever provided these trustworthy tapes and transcripts to those in your Office who were being usked to authorize the prosecution so that they could themselves assess the reliability of the FBI interview reports against a verbatim record of the same witness's prior statements. We believe that this request is fair und would not be unduly burdensome. I. THE! OPE AUTHORITIES. As established above. the State's charging decision. of one count of the solicitation of prostitution, was hardly irrational or irregular. Indeed, Lana Belohlavek. a Florida sex prosecutor for 13 years, concluded that the women in question were prostitutes and that “there are no victims here,” ‘There was vo evidence of violence, Joree, druys. aleohel, coercion or an abuse of a position of authority. Tach and every one of the alleged “victims” knew what to expect when they arrived at Mr. Epstein’s house and cach was paid for her services, tn fact, Mr, Lpstein’s message bouk establishes thal many of these women routinely scheduled massage sessions with Mr. Epstein themselves, without any prompting. Ms. Belohlavek also noted that many of these individuals worked cither as exotic dancers or in one of the many massage parlors dotted across West Palm Beach. Ms. Belohlavek also specifically stated that ae hot be trusted and was “only interested in money She further found that if was inappropriate for Mr. Epstein to register as a sex offender because she did not believe that he constituted # threat to young girls and because registration had not been required in similar or even more serious cases, Ms, Belohlavak thought. and still believes, that the appropriate punishment is a term of probation. OF FEDERAL Yet. the yovernment has devoted an extraordinary umount of its time and resources to prosecute Mr. Epstein for conduct the State believes amounts to a “sex for money™ case. While we are loathe lo single-out for criticism the conduct of any particular professional, we cannot escape the conclusiun that the cumulative effect of the conduct of Assistant United States Attorney ted your Office to take positions during the investigation and negotiation of this matter that has led to unprecedented federal overreaching. In fact, Judge Herbert Stern's states * . . .the federal authorities inappropriatcly involved themselves in the investigation by the siate authorities and employed highly irregular and coercive tactics to override the judement of state law enforcement authorilics as to the appropriate disposition of their case against your client.” See Judge Stern's letter faxed to you on December 7. 2007. EFTA00214305

--=PAGE_BREAK=--

12/11/2007 11:42 FAX 017/099 KIRKLAND & ELLIS LLP December 11, 2007 Page 14 A. The Petite Policy Should Haye Precluded Fedcral Involvement. As you know, prior to negotiating the terms of the Agreement, we requested that the goverment consider the Pefite Policy and the problems associated with conducting a dual and successive prosecution. We stressed to your Office, on a number of occasions, that we had reached a final negotiated resolution with the State and were only being forced to postpene the execution of that agreement for the sake of the federal investigation. We made submissions and met with your Office to present analyses of the fact that federal prosceution in this matter was in direct contlict with the requirements of the Petite Policy. It was our contention, and remains our contention, that federal prosecutors had never intervened in a matter such as this one. And because there was no deficiency in the state criminal process that would otherwise require federal intervention. the express terms of the Petite Policy precluded federal prosecution regardless of the outcome of the stale case. Since the state investigation was thorough and in no wuy inadequate and the concerns implicated by the matter all involved local issues and areas of traditionally local concern, we urged your Office to contemplate whether a federal prosecution Was appropriate. However, on August 3. 2007, EE sc icctec a proposed state plea which included that Mr. Epstcin serve two years of supervised custody followed by two vears of incarceration in a state prison, with the option of climinating incarceration upon successlul completion of the term of supervised custody. among other terms. [RRR stated that “the federal interest will not be vindicated in the absence of a two year term in state prison.” See August 3, 2007 letter. Such an orticulation of the federal interest, we believe. misunderstands the Petite Policy on bwo grounds. First, the Office's position that the federal interest would not be vindicated in the absence of a jail term for Mr. Lipstein. runs contrary to Section 9-2.031D of the United States Attorney's Manual, because this section requires the federal prosecutor to focus exclusively on the guality or process of the prior prosecution, not the sentencing outcome. Second, the state plea agreement offered was not “manifestly inadequate” under U.S.A.M. § 9- 2.031D. Indeed, the only real difference between the stale and federal plea proposals was whether Mr. Epstein served his sentence in jail or communily quarantine. We formerly believed that our Perite Policy concerns were being addressed or, at least, preserved, but we learned that only after reaching a final compromise with your Office as to the terms of the Agreement, and at the very last minute, that language regarding the Petite Policy was removed from the final version. The ovo following references to the Petite Policy had been included in the draft prosceution Agreements up until September 24, 2007, the day the Agreement was executed, al which point they were climinated by your Office: IT APPEARING, afier an investigation of the offenses and Epstein's background, that the interest of the United States pursuant to the Petite policy will be served by the following procedure . . . Epstein undersiands that the United States Attomey has no authority to require the State Attorney's Office to abide by any terms of this agreement. Hpsicin understands that it is his EFTA00214306

--=PAGE_BREAK=--

12/11/2007 11:42 FAX @018/099 KIRKLAND & ELLIS LLP December 11. 2007 Page 15 obligation to undertake discussion with the State Attorney's Office lo ensure compliance with these procedures, which compliance will be necessary Ww satisfy the United States” interest, pursuant to the Petite policy. We reiterate that this case was at heart a local matter that was being fully addressed by the state criminal justice system. The state process resulted in an appropriate resolution of this matter and would have vindicated any conceivable federal interest. Thus, there was no substantial federal interest that justified a federal prosecution, 1 has recently come to our attention that that the CEOS chiel statements may be relevant to this matter. While we welcome the opportunity to consider these statements, our extensive rescarch had found only one federal action that was remotcly similar to the federal investigation [or the prosecution of this matter, and that case has since been distinguished as well. tigation Of Mr. E Prompted An Unduly Invasive lov HE vestigation of Mr. Epstein raises serious questions. Despite the fact that she was made aware of the inaccuracies in the PBPD*s Probable Cause Affidavit. she chose to include the affidavit in a document filed with the court knowing that the public could access it, Then, BREE issucd letters requesting documents whose subject matter have no relation to the allegations against Mr, Lpstein. Notably, aller we objected to these overly broad and intrusive _. Deputy Chict EEE denied knowledge of RR sctions and commendubly sought to signilicantly narrow the list of documents requested. In a subsequent court ‘ referred to our agreement to remove these items trom her demand list as evidence of Mr, Epstein’s “non-cooperation™. Vhis was only the beginning. a subpocnacd an agent of Roy Black (without following the guidelines provided in the United States Attorncy’s Manual that require prior notification to Washington necessary to seck a lawyer's records), We once more requesicd EEE 0 ivicrvenc. Despite these efforts. EEE followed up with a subpoens for Mr. Epstein’s confidential] medical records served directly on his chiropractor (with no notice to Mr. Epstcin). HEE also made the unusual request of asking the State Attorney's Olice for some of the grand jury materials. She threatened 10 subpoena the State when she was informed that it was a violation of Florida law to release this information. After compiling this “evidence”. J) stated she would be initiating an investigation into purported violations of 18 U.S.C. $1591 (again without the required prior DOJ noulication), then broadened the scope of the investigation without any foundation for doing so by adding charges of money laundering and violations of a moncy transmitting business to the investigation. Mr. Epstein’s counsel explained that there could be no basis for these charges since Mr. Epstein did not commit any prerequisite act for a money laundering charge and has never even been engaged in a moncy transmilling business. BE cs pondca that Mr. Epstein could be charged under these statutes because he funded EFTA00214307

--=PAGE_BREAK=--

12/11/2007 11:42 FAX @019/033 KIRKLAND & ELLIS LLP — 11, 2007 Page 16 legal activities, To suggest that Mr. Epstein could violate these statutes simply by spending his legally eamed money on prostitutes is manifestly an erroneous interpretation of the law. Yo our relief after bricting PF wl a meeting regarding the spurious application of these statutcs, we were told to ignore the laundry list and that defense counsels’ focus should be turned to 18 U.S.C, §2422(b). Once Mr, Epstcin’s counsel submitted and presenied the reasons why a federal case would require stretching the relevant federal statutes beyond recognition, and that federal involvement in this maticr should be prechided based on federalism concerns, the /etite Policy, and general principles of prosecutorial discretion, the parties commenced discussions of 9 possible plea agreement. Around this time, we reeeived an e-mail [rom §sugyesting that she wanted to discuss the possibility "| : —_ federal and state resolution, We were immediately informed by your Office that did not have the authority t make any such plea proposals j i be involved in any further negotiations of a plea. Despite this | was the pnnciple negotiator of the Agreement. At our meeting en September 7. she made reference to an allegation against Mr, Epstein involving a 12 year old individual. This allegation is without merit and without foundation. Though your last letter suggests there was “no contact” between individuals in your Office and the press, we were previously told by [EEE hat the FRE was receiving “information” specifically from Connolly, a Vanity Fair reporter, and not vice versa. GCG Included Unfair Terms in the Agreement, FY took positions in negotiating this matter that stray from both stited policy and established law, a insisted that as part of the federal plea agreement. the State Alforney’s Office. without being shown new evidence, should be convinced to charge Mr. Upstein with violations of law and recommend a sentence that are significantly harsher than what the State deemed appropriate. In fact, the State Attorney viewed this matter as a straightforward prostitution case and believed that a term of probation was - and is - the appropriate sentence. At HRS jp sistence, however, Mr. Epstein was forced to undertake the highly unusual and unprecedented action of dirceting his defense team to contract the State prosecutors themselves and ask for an upward departure in both his indictment and sentence. There was no effort by the state and federal prosecutors to coordinate the prosecutions. a practice which is against the tenets of the Petite Policy, In our view. it is unprecedented to micro-manage cach and every term of Mr. Epstcin’s State plea, including the exact state charges to which Mr. Epstein plead guilty; the time-frame within which Mr, Epstein must enter that state plea and surrender to state officials: und the amount of time he must spend in county jail. This is particularly rue where the State EFTA00214308

--=PAGE_BREAK=--

33 12/11/2007 11:43 FAX 20/0 KIRKLAND & ELLIS LLP December | 1, 2007 Page 17 Attomey’s Office has a different view of the case and there has been no coordination with state authoritics.© In adition i required that Mr, Epstein’s sentence include « registerable offense, As you know, requiring sexual offender registration will have a significant impact both immediately and forever alter, This harsh term. which is said to be suggested by the FBI. was added despite the fact that the State believed that Mr, Epsicin’s conduct did not warrant any such registration. As you know, state officials have special expertise in deciding which offenders pose a threat to their community. Moreover, this demand places the state proscculors” credibility at issue and diminishes the force of sexual registration when it is applied to offenders who state prosecutors do not believe are dangerous or require registration. [J dccision not to permit the State Attomey to determine a matter uniquely within its province was unwarranted What is more. when negotiating the setilement portion of the Agreement. insisted that a civil settlement provision be included in the Agreement, namely, the inclusion of 18 US.C. § 2255, a negotiating term which is unprecedented in nature.? While we were reluctant and cautious about a plea agreement in which a criminal defendant gives up certain rights to contest liability for a c/vi/ settlement, ultimatums required that we ueguiesee to these unprecedented terms, For instance, when pica discussion stalled as a result of HR demands, Mr. Upsicin’s counsel received a letter from her stating as it “now appears you will not settic.~ At this point, expressed her intention to re-launch the zovernment's previously set uside money laundering investigation. She also issued a rash of subpocnas and sent target Ieticrs to Mr, Epstein’s employees. adding new [cderal charges including obstruction of justice. She then personally called Mr. Epsicin’s largest and most valued business clicnt without any basis to inform him of the investigation. In an attempt to prevent further persccution and intimidation tactics. we proposed that Mr. Epstein establish 3 restitution fund specifically for the settlement of the identified individuals” civil claims and that an impartial, independent representative be appointed to administer that fund. ‘There was no dollar amount limit discussed for the fund, but the idea was sull rejected. We then pointed out tht the state charges to which Mr. Epstein was to plead guilly aricd with it a state restitution provision that would allow “viclims™ to recover damages. owever, rejected this idea and suggested requiring a guardian ad litem, implying that © When asked whether Department of Justice polices regarding coordination with state authorities had been followed, ave ho response other than stating, “il is none of your concern.” 7in > a former deputy to a... stuted that she knew of no other case like this being proseculed by CEOS, With that in mind, we welcome the opportunity to review the extensive research that CEOS has done, as indicated by your Office EFTA00214309

--=PAGE_BREAK=--

021/033 12/11/2007 11:43 FAX @ / KIRKLAND & ELLIS LLP December 11, 2007 Page 18 the alleged “victims” in question were currently minors and needed special representation. We later learned that the government’s list of individuals included a woman as old as twenty-four, which flies in the face of prior representations (it should be noted that any person who is currently twenty four years old or older could not have been a “victiny’ under 18 U.S.C. § 2255, even if the conduct occurred in 2001). A insistence, the parties ultimately agreed to the appointment of an attorney represent: then took the position (that Mr. Epstcin should pay for the representative's fees, which clectively meant that Mr. Epstein must pay to sue himsel!® a ... proposed wholly irrelevant charges such as making obscene phone calls and violations of child privacy laws. When Mr. Lourie learned of these proposed charges he asked Mr, Epstein’s defense tcum to ignore them as they would “embarrass the f{Tive.” Dd. mterpreted The Critical crmis © Since the execution of the Agreement. a: repeatedly miseconstrucd the terms contained therein. As you know. several facets of this matter have been highly contested by the partics., We sometimes have obtained two competing views as to your willingness to compromise on specific issues that we have raised with your Office. In particular, there are times when we have reecived verbal agreement [rom you or your staff (and sometimes Lrom Ms, a herself) on a particular issuc, only to subsequently reccive a contradictory interpretation from QR that negates our prior common understanding. — Her misinterpretations uppear to be attempts to effectively change the spirit and the meaning of the Non-Prosecution Agrcement, We offer several examples of significant misinterpretations. First. despite the fact that we received several commitments from your Office that it would monitor Mr. Epstein’s state scntencing but not interfere with it in any way. sought to do just that. decision to utilize a civil remedy statute in the place of a restitution fund for the allege ims ¢liminates the notification requirement under the Justice for All Act of 2004. a federal law that requires federal authorities to notify victims us to any available restitution, not of any potential civil remedies. to which they are entitled. Despite this fact sed a Victims Notification letter to be sent to the alleged federal victims. has gone even further. alleging that the “victims” may make written statements or tesuly against Mr. Epstein at the sentencing. We lind no basis in law or the Agreement that provides the identified individuals with either a right to appear at Mr, Lipstcin’s plea and sentence or to submit a written statement to he filed by the State Attorney. Here, Mr. * This arrangement does not put these alleged “victims” in the same position as they would have been had Mr. Epstein been convicted at trial .— in fact, they are much better off, EFTA00214310

--=PAGE_BREAK=--

022/033 12/11/2007 11:44 FAX @022/ KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1. 2007 Page 19 Epstein is pleading guilty to. and being sentenced for, state offenses, not the federal offenses under which the government has unilaterally recognized these identified individuals as “victims”. The notion that individuals whose names are not even known to the charging prosecutor in a state action should somehow be allowed to speak al a proceeding is unjustifiable. Furthermore. only after obtaining the executed Agreement did fF begin insisting that the selected representative's dutics go beyond scitlement and include litigating claims for individuals. = — Victims Notification letter, she states that Mr, Podhurst and Mr. Josefsberg, the sclected attorney representatives, may “represent” the identilied individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned = which is patently incorrect, Yet, neglecting the spirit of the negotiations; neglecting the terms of the Agreement; and ncglecting commonty-held principles of ethics with respect to contlic!s, ib ontinues to improperly emphasize that the chosen attorney representative should be able to litigate the claims of individuals, In a similar fashion, | has overstated the scope of Mr. [Epsicin’s waiver of liability pursuant to the Agreement, began asserting that Mr, Epsiein has waived liability even when claims with the identified individuals are not settled just after the execution of the Agreement. Despite the fact that at that time, we obtained un agreement from you that Mr. Fpsicin’s waiver would not stretch past scttiement, J continucs to esponse this erroncous interpretation. FE. | The Settlement Process. We ure concerned that a repeatedly attempted to manipulate the process under which Mr. Epsicin has agreed to settle civil claims, First, she inappropriately attempted to nominate Humbert “Ben” Ocariz for attorney representative, despite the fact that Mr. Ocariz has a longstanding relationship with sMr. Ocariz turns out to be a very good personal fricnd and law school classmate of boylriend, a fact she assiduously kept hidden from counsel. We also learned from that she shared with Ocariz the summary of charges the government was considering against Mr. Epsicin. Even afer your Offic : that it was inappropriate for its attorneys to select the attorney representative, continued to lobby for Mr, Ocariz’s appointment. On October 19. 2007, retired Judge kdward B. Davis. who was appointed by the parties to select the attorney representative. informed Mr. Epstein’s counsel that he received a telephone call from Mr. Ocariz directly requesting that Judge Davis appoint him as the attorney representative in this matter. Furthermore, federal interference continues to plague the integrity of the implementation of the Agreement. We recently learned that despite the fact that there was no communication between state and federal authorities as to the investigation of Mr. Epstein, the FBI visited the Stale Atlomey’s Office two weeks ago to request that Mr, Epstein be disqualified to purticipate in work release even though the Ayreement mandates that Mr. Epstein be treated as any other inmate, EFTA00214311

--=PAGE_BREAK=--

12/11/2007 11:44 FAX KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 20 Il. CONCLUSIC In sum, we request thut you review the evidence supporting the prosecution of Mr. Epstcin. Such a review would serve to address similar concerns as those raised in Brody v. Maryland. which mandate the disclosure of evidence material to guilt or innocence even aficr the execution of an Agreement to enter a plea of guilty, See 373 U.S. 83 (1963). We believe “prosecution tcam™ was informed by its witnesses (including persons other ‘aa and SE who are discussed at length above) that Mr. Epstein’s practice was to seck women older than 18 rather than targeting those under 18, We would expect, for instance, that a key witness whose interview with the FBI was recorded, would have provided such exoneraling information as well as many others, We would also expect the review to uncover clear evidence that demonstrates that Mr, Epstein did not travel to Florida for the purpose of having illegal underage sex nor that he induced underage women by using the Internet or the phones. Furthermore. we ask you to consider whether there is reliable evidence not just that Mr. Epstcin had sexual contact with witnesses who were in fact underage but whether the allegations are based on trustworthy (and corroborated) evidence that (i) Mr. Epstein knew that the female(s) in question was under 18 at the time of the sexual contact. (ii) Mr, Lpstein aveled to his home in Palm Beach for the purpose of having such sexual contact to the extent the allegation charges a violation of 18 U.S.C. § 2423(b) and (c) Mr. Epstein induced such sexual contact by using an instrumentalily of interstate commerce to the extent the allegations charge a violation of 18 U.S.C. § 2422(b) (there is no evidence of internet solicitation which is the norm upon which federal jurisdiction is usually modeled under this statute), We believe that the information we provide to you in this submission will be injormative and spark a motivation to gain more information with respect to the investigation of this matter. Again, we are not secking to unwind the Agreement: we are only secking for you to exercise your discretion in directing that un impartial and respected member of your Office test the evidence upon which the drall federal indictment was based against the “best evidence,” including the transcripts of the tape recorded pre-federal involvement interviews. Finally, | would like to reiterate our appreciation for the opportunity you have provided to review some of our issues and concerns. | look forward to speaking with you shortly. Sincerely. N (ft 023/033 EFTA00214312

--=PAGE_BREAK=--

12/11/2007 11:44 FAX @024/039 KIRKLAND & ELLIS LLP ANU ABFILIATE.D PAR INL Citigroup Comur 153 Cast Sard Strect Jay P. Letkownz, PC Now York, Now York 10022-4611 To Call . Facannity (212) 446-4800 Pe lofkowiz@kirkiand com ww. kirkland com December |}, 2007 VIA FACSIMILE (305) 530-6444 Honorable K. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Re: Jefjrey Epstein Deur Alex. J thank you for the opportunity to express my concerns with the Section 2255 component of the Non-Prosecution Agreement (the “Agreement”). | provide this submission as a good faith effort (6 communicate all of our concerns on this matter. | respectfully request that you consider the issues | discuss below in conjunction with the cthics opinion of Mr. Joe D. Whitley that | faxed to your Office on December 7. Back: ad of Negotiations I believe it is important for you to be aware of the full scope and substance of our communications with your Office with respect to first, the negotiations regarding the inclusion of the Section 2255 component and second. the process of implementation of its terms, Contrary to your Office's view. we do not raise our concerns about the Section 2255 component of the Agreement at the “eleventh hour.” Sinve the very first negotiation of the Non-Prosecution Agreement between the USAO and Mr. Epstein, we have verbalized our objcetions to the inclusion of and specific language relating to Section 2255. Also. when negotiating the settlement portion of the federal plea agreement. we immediately sought an alternative to the 2255 language. In fact. for the suke of expediting any monetary settlements that were to be made and to allow for a quick resolution of the matter. we repeatedly ofVered that Mr. Epstein establish a restitution fund specifically for the settlement of the identified individuals’ civil claims and that an impartial, independent representative be uppointed to administer that fund, This aption, however, was rejected by your Olfice. Notably, while in our December 4 letter to me, you indicate that the reason for the rejection of a fund was because it would place an upper limit on Chiaage Hong Kong Lomvor Los Angeles Munich San Francisco Washington, D.C. EFTA00214313

--=PAGE_BREAK=--

12/11/2007 11:45 FAX @025/0339 KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1. 2007 Page 2 the victims’ recovery, we placed no such limit on the amount that the alleged victims could recover, Our objections regarding the Section 2255 component of the Agreement begun as carly as August 2 when, after receiving the USAO's proposed Non-Prosecution Agreement, we suggested thar the 2255 component of the Agreement could be satisfied by the creation of « restitution fund: . Mr. Epstein is prepared to fully fund the identified group of victims which are the focus of the Office — tat is, the 12 individuals noted at the meeting on July $1, 2007. This would ullow the Victims to be able to promptly put this behind them and go forwards with their lives. [I given the opportunity to opine as to the appropriateness of Mr. Fpsteto’s proposal, in my extensive experience in these types of cases. the victims prefer a quick resulution with compensation for damages and will always support any disposition that climinates the need for trial. Sve letter (rom Lily Ann Sanchez oo August 2, 2007.' For the duration of the negotiations, we then continued to cncourage the use of u restitution fund in place of civil liability under Section 2255. For example. in our draft plea agreement sent to your Office on September 16, 2007, we included the following paragraph: Epstein agrees to fund 3 Urust set up in concert with the Goverment and under the supervision of the 15 Judicial Circuit in and for Palm Beach County. Epstcin agrees that a Trustee will be appointed by the Circuit Court and that funds from the Trust will be available to be dishursed at the Trusice’s discretion to an agreed list of persons who seck reimbursement and make a good faith showing to the ‘Trustee that they suffered injury as a result of the conduct of Epsicin, Epstein waives his right to contest liability or damages up to an amount agreed to by the partics for any settlements entered into by the Trustee. Epsicin’s waiver is not to be construed as an admission of civil or criminal liahility in regards to any of those who seek compensation from the Trust. See draft proposal sent [rom Jay Lefkowitz to Andrew Lourie dated September 15, 2007. In response, demanded that the Agreement contain language considering the inclusion of a guardian ad litem in the proceedings. despite the fact that. we are now led (o believe that all but one of the women in question are in fact not minors. Interestingly. Ms. a .: only raises the same concerns that now have become issucs with respect to the implementation of the Section 2255 component, she also belicves that the creation of a trust would be in the victims" best interests, — wriles; "twas not until alice receipt of this letter that [EEE indicated to us that the scope of liability would encompass not just the 12 individuals named in the indictment, but “all of the minor girls ideutified during the federal investigation.” Sv mail to Sanchez dated August 3, 2007. EFTA00214314

--=PAGE_BREAK=--

12/11/2007 11:45 FAX @ 026/039 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 3 As | mentioned ever the telephone, | cannot bind the girls to the Trust Agreement, and | don't think it is appropriate that a state Court would administer uw trust that seeks to pay lor federal civil claims, We both wane to avoid unscrupulous attorneys andéor litigants from coming forward. and 1 knew thar your client wants to keep these matters ouside of public court filings, but | just don’t have the power tn do what vou usk. Here is my recommendation, During the period hetween Mr. Fpsicin's plea and sentencing, | make a motion for appointment of the Guardian Ad Litem. ‘the three of us sit down and discuss things, and / will fucilituty as much as 1 can getting the girls’ approval of thix procedure because, as 1 mentioned. | think tw probably in the best interests. In terms of plea agreement language, let me suggest the following, The United States agrees to make o motion seeking the appointment of a Guardian ad Litem to represent the identified victims, Vollowing the appointment of such Ciuardian, the parties aprey te work together in pood faith to develop a Trust Agreement, subject to the Court's approval, that would provide lor any damages owed to the identilied victims pursuant to 18 ULS.C. Section 2255. Then inchide the last two sentences of your paragraph 8 See email trom Letkowilz duted = 16,2007 (cmphasis added), [lowever. notably. in the draft agreement that follows, keeps the same objectionable language and only adds a portion of what was suggested in her communication to us: Epstein agrees that, if any of the victims identified in the federal investigation file suit pursuant to IS U.S.C, § 2255, Epstein will not contest the jurisdiction of the U.S. District Court for the Southern District of Florida over his person and/or the subject matter, ancl pstein will not contest that the identified victims are persons who, while minors, were victims of violations of Tithe: 18, United States Cude, Sections(s) 2422 and/or 2425. The United States shall provide Epstein’s attorneys with a list of the Wentified victims, which will not exceed forty, after Epstein hus signed this agreement and has been sentenced, The United States shall make a motion with the United States District Court for the Southern District of Florida for the appointment of a guardian ud lilem for the identified victims and Epstein's counsel may contwet the identified victims through that counsel. See draft non-prosecution agreement e-mailed fro 0 Lelkowitz dated September 17. 2007. The inclusion of a guardian ad litem, however. only served to complicate matters. We continued to reiterate our objections to the inclusion of § 2255 in the Agrecinent repeatedly, as evidenced in an email from a to myscl! on September 23, 2005 where she writes: “we have been over paragraph 6 [the then relevant 2255 paragraph] an infinite number of times.” During negotiations, it was decided that un attorney representative be appointed in the place of a guardian ad litem -- not for the sake of litigating claims. but based on the belie! that a guardian ad litem would not be appropriate for adults that are capable of muking their own decisions. Ilowever. the USAO ine into the Agreement that we pay [or the attomcy representative -- when — | stated that the representative could be paid for by us or the federal court. See e-mail from[ho Lefkowitz dated September 23. 2007. EFTA00214315

--=PAGE_BREAK=--

12/11/2007 11:45 FAX @ 027/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1, 2007 Pape 4 The final agreement was very similar to what was proposed > i. her initial drall agreement on July 31, 2007: The United States shall provide Epstein’s attorney's with a list of individuals whoen it hues identified as victims, us defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and has been sentenced, Upon the execution of this agreement, the United States. in consultation with and subject to the good faith approval of Epstein’s counsel, shall select san attorney representative for these persons, who shall be paid for by Epstein, Lpstein’s counsel may contact the identified individuals through that representative. If any of the individuals referred to in paragraph (7), sqpra, elects to Fle suit pursuant to 18 U.S.C, § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida aver this person and/or the subjcet matter, and Epstein waives his right 10 contest liability and also waives his right (o contest damages up lo an amount as agreed to between the identified individual and tpstein, so lung ax the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, und agrees to waive any other claim for damages, whether pursuant to state. federal. or common law, Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suil are not to he construed as an admission of any criminal or civil livbility. See final plea agreement. ‘The Agreement requires Mr. Epstein to waive jurisdiction and liability under 18 U.S.C, $2255 for the settlement of any monctary claims that might be made by alleged victims identified by the USAQ (the “identified individuals”). Mr. Epstein is precluded from contesting liability as to civil lawsuits secking monetary compensation lor damages for those identified individuals who clect to settle the civil claims for the statutory minimum of cither $50.000 (the amount scl by Congress as of the date of the occurrences) or $150,000 (the amount currently set by statute) or some other agreed upon damage amount. Mr. Epstein must pay for the services of the selected aflorney representative as long as they ure limited to settling the claims of the identified individuals, The implementation of the terms of the Agreement was just as contentious as was the drafting and negowation this portion of the Agreement. The first major obstacle was a dircet result of ee allempt to appoint, Mr. Bert Ocariz. a close, person friend of her boylriend’s for the role of attorney representative. We objected in the strongest terms to such an appointment due to our serious concerns regarding the lack of independence of this and the appearance of impropricty caused by this choice. As a result, the USAO draficd an addendum to the Agreement. This addendum provides for the use of an independent third party to select the attorney representative and also specifies that Mr. Epstein is not obligated to pay the cost of litigation against him. Upon the decision that we would appoint an independent party to choose the attorney representative, we were engayed in consistent and constant dialogue with your staff as to the precise language that would be transmitted fo the independent party to explain his or role, EFTA00214316

--=PAGE_BREAK=--

12/11/2007 11:46 FAX 028/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 Page 5 At cach juncture. the inclusion of a civil remedy in the Agreement has resulted in uncnding debates and disagreements with respect to the appropriate manner in which to implement the terms of the Section 225S compovent. The main issues that have arisen since the drafting and exccution of the final agreement include the process Jor the selection of an atlorney representative: the scope of Mr. Epstcin’s waiver of liability and jurisdiction: the role of the attorney representative: the language contained in various drafts of the letter to the independent third party; the correct amount of minimum damages pursuant to Section 2255; the extent and substance of communications between the witnesses and alleged victims and the USAO and the 1131, particularly with respect to the settlement process: the language contained in the letters proposed to be sent to the alleged victims: and the extent of continued federal involvement in the State procedures of Mr. Epstcin’s state plea and sentence. Notably, neither Section 2255, nor any other civil remedy statute, has been used as a pre- requisite to criminal plea agreement and it is clear that the use of these terms creates unanticipated issues. Furthennore. the waiver of rights of which the USAO insisted is also not a traditional aspect of criminal resolutions. While we were reluctant and cautious about a Non- Prosecution Agreement in which a criminal defendant gives up certain rights to contest liahility for a civil settlement, we did not believe there was room for contention given the USAO's, and specifically EE ultimatums that required that we acquiesce to these unpreecdented torms. Concerns Mr Epstein unconditionally re-asserts his intention to fulfill and not seck to withdraw from or unwind the Agreement previously entered, [le raises important issucs regarding the implementation of the 2255 provisions not to unwind the provisions or invalidate the Agreement but instead to call attention to serious matters of policy and principles that you are requested to review, As you will see below our main policy-related concems are (1) the inclusion of Section 2255. a civil remedies statutes in a criminal plea agreement, (2) the blanket waiver of jurisdiction und liability as to certain unidentified individuals to whose claims the government has asseried they Luke no position, and (3) any communications between federal authoritics, including your staff and the FBI, and witnesses and alleged victims and the nature of such communications. With respect to the interpretation of the terms of the Agreement, we do not agree with your Office's interpretation of the expansive scope of Mr. Epstein’s agreement to waive liability and jurisdiction. Nor do we agree with your Office's view of the expansive role of the attorney representative, Below. | describe first, the policy implications and the practical problems that these terms have created or will create. Sound, | deseribe points of contention as to the interpretation of various terms of the Section 2255 component of the Agreement. EFTA00214317

--=PAGE_BREAK=--

12/11/2007 11:46 FAX @ 029/039 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11, 2007 Page 6 1. Policy Considerations The inclusion of Section 2255 in a criminal plea agreement ix unprecedented and raises significant policy-related concerns. Some of these issues can create and have ercated problems as to the ability of this component to (1) maintain the integrity and independence of the USAO, (2) serve its purpose, namely to provide fair and appropriate recovery to any victims in a prompt fashion, and (3) protect the rights of the defendant. While we appreciate your consideration of our concerns described below. we are also confident that your commitment to justice and integrity will cause you to consider any additional policy aud cthical issucs that the Section 2255 component raises. A. Government Involyement The inclusion of Section 2255. a purely civil remedy. raises the risk of excessive government interference in private. civil matters, As Mr, Whitley states in his ypinion, * . . unnecessary entanglement of the government in such cases and the use of federal resources could improperly influence such cases and create the appearance of impropriety.” It is well established that the government should refrain from getting involved in lawsuits. !lowever, lo include Section 2255 in a federal agreement inherently exacerbatcs the risk of federal involvement in civil litigation and thus far, in practice, the inclusion of this statute, as opposed to the creation of a restitution fund, has resulted in continued federal involvement in this mater, Federal criminal investigators and prosecutors should not be in the business of helping alleged victims of state crimes secure civil financial settlements as a condition precedent to entering non-prosccution or deferred prosecution agreements. This is especially true where the defendant is pleading to state crimes for which there exists a state statute allowing victims to recover damages. Sce Florida Statutes § 796.09. The fact that state law accounts for the ability of victims to recover truly eliminates the need for a waiver of liability under a federal statute. Furthermore. the vehicle for the financial settlement under the Agreement requires restitution in a lump sum without requiring proof of actual injury or loss federal authorities should therefore be particularly sensitive to avoid causing a prejudiced and unlair result. Section 2255 is a civil statute implanted in the criminal code that in contrast to all other criminal restitution statutes fails to correlate payments to specilic injuries or losses and instead presumes that victims under the statute have sustained damages of at least a minimum lump sum without regard to whether the complainants suffered actual medical, psychological or other forms of individualized harm. We presume that it is lor this reason that Section 2255 has never before been employed in this manner in connection with a non-prosccution or deferred prosecution agreement, EFTA00214318

--=PAGE_BREAK=--

12/11/2007 11:47 FAX @ 030/033 KIRKLAND & ELLIS LLP R, Alexander Acosta December | 1, 2007 Page 7 Mr. Epstein’s blanket waiver of liability as to civil claims gives the appearance of impropricty. While your Office has, on several occasions, asserted that they luke no position as lo the claims of the individuals it identifies as “victims.” the fact that they continue to promote the award of a civil settlement to these individuals is problematic. As you know, povernment contracts and plea agreement must not diminish or undermine the integrity of the criminal justice system. See U.S. v. MeGovern, $22 F.2d 739, 743 (8th Cir. 1987) (“A plea agreement, however, is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea.~). The requirement that Mr. Epstein blindly sacrifice his rights. as a civil litigant. to contest allegations made against him seem to contradict the principles of justice and fairness that are embedded in the tenets of the United States Attorney's Office, | also assert that on both a principled and practical level. the mere involvement of your Office in the matter with respect to civil settlement is inappropriate. Even though we understood from you that federal involvement in this maticr would cease after the attorney representative was selected, your Office continues to assert their obligation to be in contact with the alleged victims in this matter. Had we agreed to a restitution fund for the victims instead of the civil remedies provision, we would not have objected to your Office's communications with these individuals. Towever, because the alleged victims have the ability to recover damages based on a civil cltim pursuant to the Agreement, we are congerned with your Office's ongoing efforts to stay involved in this matter. Contact with federal authorities at this point can only invite the possibility for impermissible or partial communications, Most recently, your Ollice sent us drafis of a letter that your Office proposed to send to the alleged victims (the “victim notification letter”), While the revised draft of this letter states that victims should contact the State Aliorney’s Office for assistance with their rights, there is no phone number provided for the office and instead. the letter provides the telephone number and an invitation to contact Special _— |: the FBI. Indeed, the letter as currently dralied invites not only contact between your Office and the victims, it also asserts that federal witnesses may become participants in a state proceeding. thus federalizing the state plea and sentencing in the same manner as would the appearance and stulements of a member of your Office or the FBI 2 We arc concemed with the faet that some of the victims were previously notified, as Mr. Jefircy Sloman states in his letter of December 6 letter. In your letter of December 4, you state that you would not issuc the Victim Notification Letter until December 7. ‘Thus, it is troubling to learn that some victims were notified prior to that date. Please confirm when the victims were notified, who wis notified, the method of communication for the notification, and the individual who notified them EFTA00214319

--=PAGE_BREAK=--

12/11/2007 11:47 FAX @031/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December |), 2007 Page 8 The proposed victim notification Ictter asserts that the federal ‘victims have the right to appear at Mr, :pstcin’s plea und sentence or to submit a written statement to be filed by the State Altorncy. However, as agreed to in the federal non-prosccution Agreement, Mr, Epstein will be pleading to state charges and he will be sentenced for the commission of state offenses. Vhe “victims” the government identifies relate only to the federal charges for which Mr. Epstein was under investigation. Uhe draft victim notification letier cites Florida Statutes $§ 960.001(k) and 921.1431) as the authority for allowing the alleged victims to appear or give statements, however these provisions apply only to “the victim of the crime for which the defendant is being sentenced ... ~ ‘Thus Florida law only affords victims of state crimes to appear or submit statements in criminal proceedings and the state charges for which Mr. Epstein will be sentenced are not coextensive with the federal investigation, lurther. any questions at this point involving the charges against Mr, Epstcin or the proper state procedures under which he will plead or be sentenced are appropriately made to the State Attorney's Office. Continued sederal_involvement in this matter has led to an impropricty that was unanticipated us well. attempted to manipulate the terms of Mr, Epstein’s settlement so that persons close to her would personally profit, [EEE nappropriatcly attempted to nominate Bert Ocariz for attorney representative, despite the fact that Mr, Ocariz turns oul to be a very good personal triend of Ms, Villalana’s boyfriend, # fact she assiduously kept hidden from counsel. We requested altemate choices immediately, but were told that Mr. Ocuriz, had been informed of the charges the government would bring against Epstein and in response, he asked in an e-mail whether his fees would be capped. Needless to say. we were alarmed ‘oe would attempt to influence the settlement process on such improper grounds. And cven alter the USAO conceded that it was inappropriate Jor ils allorncys to select the attorney represcntative, EEE continucd to improperly lobby for Mr. Ocariz’s appointment, On October 19, 2007, retired Judge Edward B, Davis, who was appointed by the parties to select the attorney representative. informed Mr. Fpstein’s counsel that he received a telephone call from Mr. Ocariz directly requesting that Judge Davis uppoint him as the attorney representative in this matter, Although it is unclear how Mr, Ocariz even knows thal Judge Davis has been chosen to administer the settlement process, it can only be understood as Ms. HR t'cmpts to compromise the fairness of the settlement process. B. Integrity of the Process and the Legitimacy of the Claims ‘The waiver of liability Mr. Epstein must make in relation to Section 2255 endangers the Icgitimacy of the cluims made by the alleged victims. ‘here is a heightened risk that the alleged victims will make false and exaggerated claims once they are informed of Mr, Epstein’s waiver under Section 2255 for the settlement of claims pursuant to the Agreement, Indeed, Mr. Whitley states.“ . . .the Department [of Justice] should consider developing processes and procedures to ensure that the investigative process is insulated Irom such risks.” It is also well settled that wilnesses cannot be given any special treatment duc to the fact that it may atfect the reliability af EFTA00214320

--=PAGE_BREAK=--

12/11/2007 11:47 FAX 032/033 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 Paye 9 their testimony. Any and all communications between the federal authorities and the alleged “viclims” and witnesses in this matter has the ability to influence the reliability of the testimony obtained and the validity of the civil settlements that result. Thus, there is still a real concern that some of the statements that federal prosecutors relicd upon in its prosecution of this matier may have been tainted. An inquiry is required to contirm that at the time witness statements were given. there were no communications made by federal agents regarding potential civil remedies. The government should not provide promises of guaranteed monctary settlements to encourage cooperation because they run the risk of seriously tainting the reliability of witness statements. While we by no means are accusing your Olfice of making improper communications ut this point the fact that the award of a civil sciticment, without any requirement to prove liability. is available to the identified individuals, raises cause for concer as to the nature of all communications that are made to the *victims.” You previously stated that the USAO's main objective with respect to the Scetion 2255 component of the Agreement was to “place the victims in the same position as they would have been had Mr. Epstein been convicted ut trial.” [lowever. to accomplish this goal, your Oflice rejected using traditional terms that allow for the restitution of victims, Instead, your Office chose to insert itself into the negotiations, settlement, and potential litigation of a civil suit. With all due respect, we object to your Office's attempt to make the victims whole by requiring that Mr. Epstein deprive himself of rights accorded to him as a potential civil defendant. While we are aware one of the responsibilities of your Office is to provide for restitution for victims of crimes, this does not give the government the responsibility to cnable alleged victims to collect a civil sctilement. Despite this concern, it should alse be noted that, the Agreement, both as written snd as interpreted by your Office significantly enlarges the victims’ ability to recover from Mr. Epstein. For instanec, if the individuals attempted to litigate against Mr. Epstein, they would have been determined to be victims only after a lengthy trial, in which they would have been thoroughly deposed, their credibility tested and their statements subject to cross-examination, The defendant, under these circumstances, would not have had pay the plaintills’ legal fees. Moreover, these individuals would face significant evidentiary hurdles, unwanted publicity, and most importantly, no certainty of success on the merits. Therefore. the notion that your Office is merely attempting to restore these ~ victims” tu the same position as they would have been had Mr. Epstein been convicted at trial misunderstands the Agreement and your Office's implementation of its terms. Lom Rights of a Defendant Requiring Mr, Epstein to make a blanket waiver of liability and jurisdiction as to unidentified victims whose claims to which the government takes no position can be construed as EFTA00214321

--=PAGE_BREAK=--

12/11/2007 11:48 FAX @033/039 KIRKLAND & ELLIS LLP R. Alexander Acosta December 11. 2007 Page 10 violative of his Due Process rights. Furthermore, the fact that the statute at issue in this mater does not connect harm to the minimum ameunt available to the victim and simply includes a lump sum exacerbates the potential or injustice and an abridgement of Mr. lpstein’s rights, At the very least. Mr. Epsicin should be given the right to know the identity of the victiins and the evidence upon which each one was identified as « victim by the government. The USAO has provided no information us to the specific claims that were made by each identified individual, nor were we given the names or ages of the individuals or the time-frame of the alleged conduct at issue. The USAO's reluctance to provide Mr. Epstcin with any information regarding the allegations against him leaves wide open the opportunity lor misconduct by the federal investigators and eliminates the ability for Mr. Epstein and/or his agents to verily that the allegations at issue are grounded in factual assertions and real evidence. Indeed, the requirement that a target of federal criminal prosecution agree to waive his right to contest liability as © unnamed civil complainants creates al minimum an appearunce of injustice, both because of the obvious Due Process concerns of waiving rights without notice of even the identity of the complainant and because of the invelvement of the federal criminal justice system in civil settlements between private individuals, We rcallirm the right to test the veracity of the victims® claims as provided to us in the letler from you to Judge Davis dated October 25. 2007, Ii has recently come to our attention that your stall has tent o a “victim” for purposes of Section 2255 relief. ic initially i cary refused to cooperate with ederal authorities during the course of the investigation, only submitted to an interview after she was conferred with a grant of immunity, Surely this is not a demand typically made by someone whe is a crime “victim”, Morcover. sworn testimony does not suggest that she is u victim. has not only admitted that she lied to Mr. Epstein about her age claimigg she & years old. but that she counseled others to lic te Mr. Epstein in the same manner, i: states that Mr. Epstein was clear with her that he was only interested in “women” who were of age and that most of the young women she brought to his home were indeed over 18 years of age. Moreover. whi REN claims to have provided nuissages to Mr, Epstcin, she docs not allege to have engaged in sexual intercourse with Mr. Epstein: does not claim she provided him with oral sex: does not purport that Mr. Epstein penctrated her in any manner: denies Mr. lipsicin ever used a vibrator, massager, or any type of “sex toy” on her: denies he touched her breasts. buttocks, or vagina; and states that she never touched Mr. Epstcin’s sexual organs — nor w c usked to do so by Mr, lipstein. Without a right to contest the liability of as likely receive lar more in civil damages than what would be she would have had Mr. Epstein been convicted, In addition, the Agreement with the USAO only deters federal prosecution of Mr. Epstein: it docs not assert a declination to prosecute, as was lirst contemplated in the negotiation of the Agreement. Any payments made and/or settlement agreements reached with the alleged EFTA00214322

--=PAGE_BREAK=--

12/11/2007 11:48 FAX @034/0399 KIRKLAND & ELLIS LLP R. Alexander Acosta December | 1, 2007 Page 1 victims prior to the foreclosure of any future federal prosecution carries the potential of being used as evidence against Mr, Upstein. Thus. to protect his rights as a defendant. Mr. Epstein should not be required to pay any of the alleged victims until after the threat of prosecution no longer exists. il. Misinterpretations of the Agreement The contentiousness caused by the implementation of the Section 2255 portion of the Agreement has alse been caused by whut we believe are misinterpretations of the terms by your Office. These problems, which | describe below, ure a practical oulgrowth of the fact that civil settlement, as opposed to restitution, is considered in the Agreement, A. Role of the Attorney Representative The USAO has improperly emphasized that the chosen atlorney representative should be able to litigate the claims of individuals. which violates the terms, and deeply infringes upon the spirit and nature of, the Agreement, However. after the partics agreed to the appointment of un independent third purty to sclect the representative, the government announced that the criteria for choosing an appropriate attorney representative would include that they be “a plainuffs lawyer capable of handling multiple lawsuits against high profile attorneys.” ‘This interpretation of the scope of the altorney representative's role is far outside the common understanding that existed when we negotiated Mr. Epstein’s settlement with the USAO, Moreover, we have made the USAQO aware of the potential ethical problems that would arise should the selected representative be allowed to litigate and settle various claims against Mr. Epstein. The initial draft victim notification letter contained language that confirmed your Office's interpretation and indicated that Mr, Podhurst and Mr, Josefsberg, the selected attorney representatives, may “represent” the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by the USAO, which we believe is patently incorrect, To suggest this notion in a letter to victims who have limited or no knowledge of the ethical principles at issue will only lead to confusion, misunderstanding and disappointinent among the identified individuals when they learn that such representation is foreclosed, B. Scope of Mr. Epstein’s Waiver Your Olfice has taken the position that Mr. Epstein waives liability beyond the settlement of claims and that he will waive liability even in lawsuits brought by the identified individuals. However. this overstates the scope of Mr. Epsicin’s waiver pursuant to the Agreement. Mr. Epstein has only agreed that he will waive the right to contest liability and jurisdiction for the purpose of settling claims with the alleged victims pursuant to Scetions 7 through 8 of the Agreement and Addendum. Mr. Epstein has no obligation to waive this right to contest liability EFTA00214323

--=PAGE_BREAK=--

12/11/2007 11:49 FAX 035/099 KIRKLAND & ELLIS LLP R, Alexander Acosta December 11, 2007 Page 12 in any claim for damages -- by an cnumerated “victim” or anyone else — where that party fails to settle ber claims pursuant to the terms of the Agreement. The revised draft of the Jetter avoids this misinterpretation and directly quotes Paragraphs 7, 8, 9 and 10 af the Agreement. While we do not have any objection to including this portion of the Agreement in the proposed letter, we request that Paragraphs 7A, 7B. and 7C of the Addendum to the Agreement also be included because the language contained there in most clearly outlines the scope of Mr. Epstein’s obligation to pay damazes under the Agreement. Cc. Right of the Alleged Victims to Be Notified As we have expressed to you previously, we do not agree with your Office's assertion that it is cither an obligation and even appropriate for the USAO to send a victims notification letter to the alleged victims. The Justice for All Act of 2004 only contemplates notification in relation to available restitution Jor the victims of crimes. However, since Section 2255 is only one of many civil remedies. there is no requirement that the USAQO inform alleged victims pursuant to the Justice for All Act of 2004. Notably. if the USAO had agreed to include a restitution fund in the Agreement as opposed to a civil cemedy statute, the alleged victims would have the right to be notified pursuant to the relevant Act. Further. we note that the reasons you cite in lavor of issuing the proposed Victims Notification letter in your correspondence of December 4 are also inapplicable to this scenario. Vor instance, you cite 18 U.S.C. § 3771 for the proposition that your Office is obligated to provide certain notices to the alleged victims. However. 18 U.S.C, § 377122) & (3) provide: A crime victim has the following rights; ©) The right to reasonuble, uccurate, and timely notice of any public coun proceeding. or any parole proceeding, involving the crime or any release or escape of the accused, (3) The right not to be excluded from any such public court provecding, unless the court, afer receiving clear and convincing evidence, determines that testimony by the victim would be maitcrially altered if the victim beard other testimony at the proceeding. (emphasis added), Your interpretation of § 3771 is erroncous because the rights conferred by the statute indicate that these rights ure for the notification and appearance at public proceedings involving the crime for which the relevant individual is a victim. As you know, the public proceeding in this matter will be in state court for the purpose of the entry of a plea on state charges, Therefore, 18 U.S.C. § 3771 clearly does not apply to “victims” who are not stite “victims.” You additionally cite your Office's obligations under § 3771(eX 1) of the Justice for All Act of 2004, [lowever, this subsection relates back to the “rights described in subsection (a). Thus, since the rights set forth in subsection (a) only apply to the victims of the crimes for EFTA00214324

--=PAGE_BREAK=--

12/11/2007 11:49 FAX @ 036/033 KIRKLAND & ELLIS LLP KR, Alexander Acosta December 11, 2007 Page 13 which the public procecding is being held, the individuals identificd by your Office have no rights to notification or appearance under this Act. You further cite 42 U.S.C. § 10607(c\ 1 (1B) and (¢)(3) which. you state, obligates your Office to inform victims of “any restitution or other relief! to which that victim may be entitled and of notice of the status of the investigation: the filing of charges against a suspected offender: and the acceptance of a plea, Although we do not believe this applies here for the same reasons stated above. we further assert that your proposed Victims Notification letter seeks to go beyond what is prescribed under 42 U.S.C, § 10607, Indeed, there is nothing in the statute that requires your Office to solicit witness testimony or statements for the purposes of Mr. Epstein’s sentencing hearing. Furthermore, we assert that any notification obligation you belicve you have under this statute should be addressed by Judge Davis. We submit to you based on the policy concerns of including a civil remedics statute in a criminal agreement and requiring the waiver of a defendants’ rights under that agreement creates a host of problems that, in this case, have led to a serious delay in achieving finality to the satisfaction of all parties alfected. We appreciate your consideration of these issues and hope that we can find a solution that resolves our concerns. Sincerely. EFTA00214325