12/26/2007 14:45 FAX KIRKLANDSELLIS 002/006 KIRKLAND & ELLIS LLP AND APTILIATED PARTNERSHIPS Citigroup Center 153 East S3rd Sveet New York, New York 10022-4611 Jas P_ Lefkowitz, P.C, . wrrw.kirkiand.com December 26, 2007 VIA FACSIMILE Honorable R. Alexander Acosta United States Attorney United States Atiorney’s Office Southern District of Florida ©9 NE 4th Street Miami, FL 33132 Re: Jeffrey Epstein Dcar Alex: I write to address the questions you posed to me during a conversation we hud late last week. Specifically, you requested a clarification of our position on two issues: (1) our view on your latest proposal regarding notification to the alleged victims under 18 U.S.C. § 3771; and (2) our response to your proposed language regarding the 18 U.S.C. § 2255 component of the deferred-proscculion agreement (the “Agreemcnt”). Before | tum to these questions, | would like to reiterate that this letter responds to your invitation to discuss proposed modifications to Uxe Agreement and should not be construed in any way as a breach of thc Agreement. With that 51id, I must tell you that the more I look into thesc issues, the more difficulties I see in trying to tic the resolution of a federal criminal matter with a federal civil mattcr involving minors, and this is even further complicated when the premisc of the resolution is a deferred federal prosecution conditioned on a plea to specific statc offenses with a specific sentence pre- determined and required to be imposed by the state court, without consideration of the fact that the State view of this case differs dramutically from yours. With that in mind, I turn to each of your questions below. First, although we appreciate your willingness to modify your Office’s § 3771 notice, which is embodicd in your latest proposal, we must still object to aspects of your proposal on the ground that notice under § 377] is per se inapplicable to this case under the Attorney General's own guidclines, becausc the alleged victims are not “crime victims” under § 3771. The Attorney Ceneral Guidclines for Victim and Witness Assistance defines “crime victim” as follows: For the purpose of enforcing the rights cnumerated in article 1.B, a victim is ‘a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia’ (18 U.S.C. § 3771(e)) if the offense is charged in Federal district court, If a victim is under 18 years of age, incompetent, incapacitated, or Chicago Hong Kong London Los Angeles Munich San Francisco Washington, D.C. EFTA00221312

--=PAGE_BREAK=--

12/26/2007 14:45 FAX KIRKLAND&ELLIS 003/006 iJeccmber 26, 2007 Page 2 deceased, a family member or Icgal guardian of the victim, 2 representative of the victim's estate, or any other person so appointed by the court may exercise the victim's rights, but in no cyent shall the accused serve as a guardian or representative for this purpose. (18 U.S.C. § 3771(e)). The Attorney Genera] Guidelines for Victim and Witness Assistance, at 9 (emphasis added). Iferc, the women are clearly not “crime victims” under the Attorney General Guidelines definition. To be a “crime victim”, 4 person or entity must be harmed by an offense that has heen charged in Federal district court. See U.S. | Guevara-Toloso, 2005 WL 1210982 at *2 (€.D.N.Y. May 23, 2005) (noting that § 3771's refercnce lo “the crimc” suggests “a focus only on the crime with which a defendant is charged in the case in which a victim seeks to assert her statutory rights.") (emphasis added) Since there has been no offense charged in Federal district court in this mattcr, the identified individuals necessarily do not qualify as “crime victims”. In addition, the Attorncy General Guidelines further defines a “crime victim” as “a person that has suffered dircct physical, emotional, or pecuniary harm as a resull of the commission of a crime. (2 U.S.C. § 10607(e)(2))” Jd. As you know, we bclicve we have shown that at Icast sume (if not all) of the identificd individuals did not suffer any injury at al! in connection with Mr. Epstein’s alleged conduct.' In addition, under the Attorncy General Guidelines, notification musi be balanced against aiy action that may impinge on Mr. Epstein’s duc process rights. The Attorncy General Cuidelincs clearly call into question “the wisdom and practicality of giving nolice” to a “possible witness in the case and the effect that relaying any information may have on the defendant's right tea fair trial.” The Attomey General Guidclines for Victim and Witness Assistance, at 30. The Attorney General Guidclines caution federal prosccutors from providing notice to potential witnesses in instances where such notice could compromise the defendant’s due process rights. This is particularly true, as herc, if the notice includes confidential information, including the cunditions of a confidential deferred-prosecution agreement or non-prosecution agreement. In light of these concems, we respectfully request that you reconsider sending notices to the alleged victims pursuant to § 3771. Our objection to § 377] notwithstanding, we do not object (as we made clear in our letter last week) that some form of notice be given to the alleged victims. To that end, we requcst an O)portunity to review the notification before it is sent in order to avoid any confusion or misunderstandings. We believe, however, that any and all notices with respect to thc alleged victims of stale offenses should be sent by the State Attomey rather than your Office, and we See for example, our prior submissions regardiog [i MN =< EFTA00221313

--=PAGE_BREAK=--

12/26/2007 14:46 FAX KIRKLAND&ELLIS @ 004/006 December 26, 2007 age 3 i gree that your Office should defer to the discrction of the State Atlomey regarding all matters \ith regard to those victims and the statc proceedings. Second, the more we work to resolve our mutual conccrns regarding the § 2255 component of the Agreement, the more our growing fcars are realized that the implementation of § 2255 in this casc is inherently flawed and becoming truly unmanageable. In the first instance, tic implementation of § 2255 in this matter causes manageability concerns because it appears the civil component of this casc must be stayed until aftcr all phases of a criminal action have becn resolved. 18 U.S.C. § 3509(k), which codifics child victims’ and child witnesscs’ rights, seems on its face to preclude any interfercnce urising from a potential or pending civil action on a related criminal proceeding in order to protect a defendant's right to due process. ‘The statutc siules: If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which ariscs oul of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phascs of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subscction, a criminal action is pending until its final adjudication in the wial court. 18 U.S.C. § 3509(k). See ulso, John Doe | I Francis, 2005 WL 517847, at *2 (N.D. Fla. Feb. 1), 2005) (“the language of 18 U.S.C. § 3509(k) is clear that a stay is requircd in a case such as this where a parallel criminal action is pending which arises from the same occurrence involving n:inor victims. See 18 U.S.C. § 3509(k). Inasmuch as Plaintiffs have offered no authority or evidence to the contrary, the Court finds that the stay in this case must remain in effect until final aijudication of the criminal casc by the state court.”’) It appears that any attempt to resolve the civil componcnt of this case (be it through structured settlements or civil litigation) may be precluded by § 3509(k) insofar as all phascs of te criminal action have not yet been resolved. To allow for a civil causc of action while a related criminal action remains pending can unduly bias the witncsscs who could be improperly ircentivized by a potential monetary recovery. ‘The prevention of such a result is precisely the reason that § 3509(k) was enacted. Indecd, there can be no such resolution of “all phases of the ciiminal action” here, until Mr. Epstein’s state sentence is concluded and all opportunity for the initiation of a federal prosecution is forcclosed. In addition, we have rciterated in previous submissions that Mr. Epstein does not belicve he: is guilty of the fedcral charges cnumerated under § 2255. For this reason, we believe that your proposed language regarding an appropriate § 2255 procedure unfairly asks Mr. Epstein to ajree that each and every alleged victim identified by the Government is a victim of an c1uumerated federal offcnse under § 2255 and should, therefore, be placed in the same position EFTA00221314

--=PAGE_BREAK=--

12/26/2007 14:46 FAX KIRKLAND&ELLIS @ 005/006 Jecember 26, 2007 Page 4 she would have been had Mr. Epstein becn convicted of such an offcnse. As we discussed last week, it is this requirement that makes your § 2255 proposal so problematic. As much as we ippreciate your willingness to revisit the § 2255 issues, we cannot accept your language as Proposed, becausc we belicve that the conduct of Mr. Epstein with respect to these alleged victims fails to satisfy the requisite elements of any of the enumerated offenses, including 18 U.S.C. § 2422(b) or 18 U.S.C. § 2423(b). In light of the information we have prescnted to you tegarding the two alleged victims whom we understand appear on your list, we hope you understand why your language presents us with these concerns. Esscntially, you are asking us to telp put thesc women in a position that may not be warranted. In short, your proposed language regarding § 2255 statcs that Mr. Epstcin should be treated “as if he had been convicted” of an enumerated federal crime. This requires Mr. Epstein to in cssence admit guilt, though he believes he did not commit the requisitc offense. The United States Attorney Manual (“USAM”) 9-27.440, Principles of Fedcral Prosecution, sets forth a clear requirement when a defendant tenders a plea of guilty but subsequently denies committing the offense to which he has offered to plead. Specifically, 9-27.440 provides, in part: In a case in which the defendant tnders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. See also USAM 9-16.015. To date, your Office has refused our requests to share such information with us. For the Purposes of attcmpling to resolve the § 2255 issue, we once again request that your Officc make this proof available. Spccifically, your Officc has represented that liability exists undcr § 2422(b) and § 2423(b), as well as the stale offense, Florida Statute § 796.03. We would welcome this previously sought information at your earliest convenience to enable us to resolve tlis matter in a timely fashion. Finally, 1 would like to address your request that we provide revised language lo your Office regarding the appropriate § 2255 procedure, Given the inhercnt complexities described aliove, we have not been able to find language that comports with the Agreement and your stated gvals, especially given your insistence that the women be placed in the same position as if Mr. £ stcin “had been convicted”? However, if you so choose — and kecping in mind that we 2 Im addition, we remind you that wholly and apart from the judicial stay that appears to be required under § 3509(k), we believe that the minimum damages amount referenced in § 2255 ($150,000) is subject to un cx- post facto motion, as the statutory minimum was $50,000 at the time of the alleged conduct and the statute is being implemented in a deferred-prosecution agreement. EFTA00221315

--=PAGE_BREAK=--

12/26/2007 14:47 FAX KIRKLANDAELLIS 006/006 December 26, 2007 Page 5 intend to abide by the Agrccment — we would be willing at you carliest convenience to discuss possible altcrnatives. Thank you for your time and consideration. We remain available to work with you to iesolve these difficult issues in a constructive manner, and we look forward to your response to the concerms we have raised that have not yet been addressed by your Office. Sincerely, JaY P. Lefkowitz cc: PF First Assistant U.S. Attorncy EFTA00221316