## KIRKLAND & ELLIS LLP

## SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL

## IN THE MATTER OF JEFFREY E. EPSTEIN

Jeffrey Epstein, a successful businessman and noted philanthropist with no prior criminal record, has been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b). Since the limited review conducted by CEOS, two Supreme Court decisions—one authored by Justice Scalia and the other by Justice Thomas—have revitalized the bedrock principles that federal criminal statutes must be narrowly construed, that they may not be stretched to federalize conduct not clearly covered by their prohibitions, and that whenever there are two plausible constructions of a criminal statute, the narrower construction (hich safeguards liberty) rather than the broader construction (which expands the federal prosecutor's arsenal) controls under the venerable rule of lenity.

Mr. Epstein's conduct—including his misconduct—falls within the heartland of historic state police and prosecutorial powers. Absent a significant federal nexus, matters involving prostitution have always been treated as state-law crimes even when they involve minors. Mr. Epstein's conduct lacks any of the hallmarks that would convert this quintessential state crime into a federal one under any of the statutes prosecutors are considering.

Mr. Epstein lived in Palm Beach, and his interstate travel was merely to go home. My
sexual conduct that occurred after he arrived was incidental to the purposes for his travel. Even
CEOS admitted that applying § 2423(b) to a citizen traveling home would be "novel." In fact, it
would be both unprecedented and in conflict with Supreme Court cases that have withstood the
test of time for over 60 years.

Moreover, Mr. Epstein did not use the intemet (either via email or chatrooms) to communicate with any of the witnesses in this investigation. Indeed, he did not use any other facility of interstate commerce, including the phone, to knowingly persuade, entice, or induce anyone to visit his home—the "local" locus of all the incidents under investigation—much less to persuade, entice, or induce a known minor to engage in prohibited sex acts, as § 2422(b) requires. Nor did anyone on his behalf "persuade" or "induce" or "entice" or "coerce" anyone as these words are ordinarily understood and as the new Supreme Court decisions mandate they be applied: narrowly, without stretching ordinary usage to conform to a prosecutor's case-specific need for a broad (and in this case unprecedented) application. In addition, as will be shown below, § 2422(b) requires that the object of the communication be a state law offense that "can be charged." Yet because the state of Florida's statute of limitations is one year for the first prostitution offense and three years for other targeted offenses, and because all or virtually all of the offense conduct at issue in the federal investigation occurred prior to June 20, 2005, those acts can not be charged by the State, and thus cannot meet this essential clement of federal law.

Finally, Mr. Epstein neither coerced, nor enslaved, nor trafficked, nor derived any profit from his sexual conduct. He was an ordinary "John," not a pimp. But § 1591 is directed only against those who engage in force or fraud or coercion or who are in the business of commercial

1

EFTA00013811

## KIRKLAND & ELLIS LLP

sexual trafficking. The statute has never been applied to a "John," and only a highly and impermissibly selective prosecution could stretch § 1591 to reach conduct like that at issue in this case.

In short, without "novel" interpretive expansions—a description used by CEOS itself—it cannot be shown that Mr. Epstein violated any of the three federal statutes identified by prosecutors. As the Supreme Court's recent decisions in Santos and Cuellar make clear, federal law may not be stretched in that manner, and the current federal investigation relies, as its foundation, on impermissibly elastic stretches of each statute beyond any reported precedent; beyond the essential elements of each statute; well outside the ordinary construction of each statute's limitations; and on a selective, extraordinary, and unwarranted expansion of federal law to cover conduct that has always been exclusively within the core of state powers.

At this point in time, the need for Departmental oversight is critical. We appreciate this opportunity to submit our assessment of the key facts in this case and review of the pertinent federal statutes, and respectfully request that the Office of the Deputy Attorney General end federal involvement in this matter so that the State of Florida may resolve this case appropriately.

## Summary of the Facts

Mr. Epstein has maintained a home in Palm Beach, Florida for the past 20 years. While there, he routinely conducted business, received medical attention, socialized with friends, and helped care for his elderly mother. Mr. Epstein also had various women visit his home to perform massages. He did not personally schedule the massage appointments or communicate with the women over the phone or the Internet. Rather, Mr. Epstein's personal assistants scheduled many types of appointments, personal trainers, chiropractors, business meetings and massages. The phone message pad taken from his house and in the possession of the government confirmed that in many cases, the women themselves contacted Mr. Epstein's assistants to inquire about his availability—rather than vice versa.

The majority of the massages were just that and nothing else. Mr. Epstein often would be on the telephone conducting business while he received his massage. At times, the masseuses would be topless, and some sexual activity might occur—primarily self-masturbation on the part of Mr. Epstein. On other occasions, no sexual activity would occur at all. There was no pattern or practice regarding which masseuse would be scheduled on a particular day—if one would be scheduled at all—or whether any sexual activity might occur. Indeed, Mr. Epstein almost never knew which masseuse his assistants had scheduled until she arrived. See Tab 3, Toll Records.

Mr. Epstein specifically requested that each masseuse be at least 18 years old. The vast majority of the masseuses were in fact in their twenties, many accompanied to Mr. Epstein's home by friends or even other family members. Furthermore, most of the women who have testified that they were actually under 18 have specifically admitted tbrimatically lying to Mr. Epstein about their age. See Tab 4 Tr. at 38-39; Tab 5, Tr. at 16; Tab 6,

2

EFTA00013812

## KIRKLAND & ELLIS LLP

[REDACTED] Tr. at 6, 8, 22, 45; Tab 7,
[REDACTED] Tr. 13; Tab 8 [REDACTED] Tr. at 8; Tab 9,
[REDACTED] Tr. at 5; and
Tab 10, [REDACTED] Tr. at 14-15 (excerpts from these transcripts are included below). Furthermore,
the women who visited Mr. Epstein's home all visited voluntarily and many willingly returned several times.

The State Attorney's Office (the "SAO") has vast experience prosecuting sex crimes and conducted an exhaustive, 15-month investigation of Mr. Epstein. A Grand Jury has concluded that Mr. Epstein was merely a local "John," guilty of soliciting prostitution in violation of state law. Notably, Florida law distinguishes soliciting from procuring and compelling prostitution if minors are involved. Indeed, soliciting is a misdemeanor except for the commission of a third subsequent offense, turning it into a felony. The SAO, therefore, sought and obtained an indictment charging Mr. Epstein with felony solicitation of prostitution. Mr. Epstein is prepared to plead guilty and accept a sentence for that offense—a sentence that, notably, is far more severe than that meted out to other "Johns" convicted of violating Florida's solicitation laws for cases in which sexual activity was alleged.

Though CEOS points out its admirable goal of "protecting children," a moniker that engenders high emotions, the conduct alleged here involves women over 16, which is the age of consent in 38 states and supplies the effective federal age of consent. The young women were by no means the target of high-school trolling; they were individuals who, with friends, visited Mr. Epstein's house—a home full of friends and staff. The civil complaints filed against Mr. Epstein reiterate the fact that the individuals who visited Mr. Epstein would visit with their friends. And Mr. Epstein never spoke to or had any contact with these women before they arrived at his house. And again, the State is handling this matter appropriately.

We respectfully submit that that should be the beginning and the end of this matter. As you know, the Department's Petite Policy precludes successive federal prosecutions after a State has acted: "[A] state judgment of conviction, plea agreement [here held in abeyance solely as a result of the federal investigation], or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts." U.S.A.M. § 9-2.031A (emphasis added). Consistent with that principle, and of particular relevance to this case, the Department itself just recently observed the following:

[P]rostitution-related offenses have historically been prosecuted at the state or local level. This allocation between state and Federal enforcement authority does not imply that these crimes arc less serious, but rather reflects important structural allocations of responsibility between state and Federal governments.... [T]he Department is not aware of any reasons why state and local authorities are not currently able to pursue prostitution-related crimes such that Federal jurisdiction is necessary.

See Tab 11, November 9, 2007 Letter from Justice Department Principal Deputy Assistant Attorney General Brian Benczkowski to the House Committee on the Judiciary, p. 8-9.

3

EFTA00013813

## KIRKLAND & ELLIS LLP

## Summary of the Law

We have reviewed every reported case under 18 U.S.C. §§ 1591, 2422(b), and 2423(b), and cannot find a single one that resulted in a conviction on facts akin to the ones here. In some respects, it is not surprising that no precedent supports federal prosecution of a man who engaged in consensual conduct, in his home, that amounts to solicitation under State law. After all, prostitution, even when the allegations involve minors, is fundamentally a State concern, United States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (noting that federal law "does not criminalize all acts of prostitution (a vice traditionally governed by state regulation)"), and there is no evidence that Palm Beach County authorities and Florida prosecutors cannot effectively prosecute and punish the conduct. See also Batchelder v. Gonzalez, No. 4:07-cv-00330-SPMAK, 2007 WL 5022105 (N.D. Fla. Oct. 19, 2007). In fact, the opposite is true—the state-elected officials, cognizant of the local mores of the community, have a lauded history of just such prosecutions.

In any event, and as set forth below, none of the federal statutes in this case remotely supports a prosecution on the facts of this case without each and every element being stretched in a novel way to encompass the behavior at issue. We begin with first principles. Courts in this country have "traditionally exercised restraint in assessing the reach of federal criminal statutes, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207 (1985), and out of concern that `a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed!" Arthur Andersen LLP v. United States, 544 U.S. 696, 703 (2005) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)) (citation omitted).

Two recent Supreme Court decisions dramatically underscore these principles and help to highlight why federal prosecution in this case would be improper as a matter of both law and policy. See United States v. Santos, No. 06-1005 (June 2, 2008); Cuellar v. United States, No. 06-1456 (June 2, 2008). Though they both address the interpretation and application of the federal money laundering statute, 18 U.S.C. § 1956, the principles they set forth are equally applicable here. In Santos, the Court held that the statutory term "proceeds" means "profits" rather than "receipts," and thus gave the statute a significantly narrower interpretation than what the government had urged. In his plurality opinion, Justice Scalia emphasized that where a statutory term in a criminal statute could support either a narrow or broad application, the narrow interpretation must be adopted because "[A/c interpret ambiguous criminal statutes in favor of defendants, not prosecutors." Slip op. at 12. As his opinion explained, the rule of lenity "not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly proscribed. It also places the weight of inertia upon the party that can best induce

4

EFTA00013814

## KIRKLAND & ELLIS LLP

Congress to speak more clearly and keeps courts from making criminal law in Congress's stead." Slip op. at 6.'

In Cuellar, the Court examined the link between the money-laundering statute's mere rea requirement and the underlying elements of the offense. After a careful textual analysis of the statute and its structure, the Court ruled that the defendant's conviction could be sustained only if he knew that the transportation of funds to Mexico was designed to conceal their nature, location, source, ownership or control—not merely that the defendant knew that the funds had been hidden during their transportation to Mexico. Slip op. at 10-17.

Both decisions relied on the ordinary meaning of the statutory terms Congress chose. And both rejected attempts to broaden those words to cover conduct not clearly targeted by Congress. Taken together, these decisions reject the notion that prosecutors can take language from a narrowly drawn federal statute—especially one that itself federalizes the prosecution of conduct traditionally within the heartland of State police powers—and convert it into a license to reach additional conduct by ignoring, rewriting or expansively interpreting the law. Both cases additionally rejected the notion that statutes should be broadly construed in order to facilitate prosecutions or to in anyway diminish the burden on prosecutors to prove each essential element of a federal charge in conformity with Congress's determinations as to what is within the federal criminal law and what is not. The conflict between the Santos and Cuellar decisions and CEOS's grant of effectively unlimited discretionary authority to the USAO to take federal law to "novel" places where they have never reached before could not be starker.

These lessons have no less force in the context of Executive Branch decision-making than they do in the context of Judicial interpretation. As you are aware, when federal prosecutors exercise their discretion, they bear an independent constitutional obligation to faithfully interpret the law as written—not to broaden its scope beyond the limits endorsed by both Congress and the President. There is no support for CEOS's view that the courts or a jury should ultimately decide whether a "novel" construction of the law is correct. Instead, the Executive Branch itself has a non-delegable obligation not to exceed its authority; the power of other branches to check or remedy such usurpation does not legitimize executive action that exceeds its bounds. See Tab 12, November 2, 1994 Memorandum from Assistant Attorney General Walter Dellinger to the Hon. Abner J. Mikva, Counsel To The President, on Presidential Authority To Decline To Execute Unconstitutional Statutes, available at http://www.usdoj.gov/olc/nonexcut.htm.

In this case, the text, structure, and history of the relevant federal statutes unambiguously indicate that these statutes were designed to address problems of a national and international

Justice Stevens, in his concurring opinion, also acknowledged the rule of lenity, calling the plurality opinion's
discussion of that rule "surely persuasive." United States v. Santos, No. 06-1005, slip op. at 5 (June 2, 2008)
(Stevens, J., concurring).

5

EFTA00013815

## KIRKLAND & ELLIS LLP

scope—not the local conduct that is alleged here—and each of these statutes requires proof of the defendant's actual knowledge that simply is not present in this case. Any attempt to stretch the language of these statutes to cover this case would be a misuse of the law and contrary to express legislative intent. In short, the elements under each federal statute-18 U.S.C. §§ 1591, 2422(b) and 2423(b)—are not satisfied here.

## 1. 18 U.S.C. & 2422(b1

18 U.S.C. § 2422(b) requires the government to prove beyond a reasonable doubt that the defendant engaged in communications over an interstate facility (e.g., the Internet or phone) with four concurrent intentions: (I) to knowingly (2) persuade, induce, entice or coerce, or attempt to persuade, induce, entice, or coerce (3) a minor (4) to engage in prostitution or criminal sexual activity for which the person can be charged. Mr. Epstein's conduct does not satisfy the elements of § 2422(b). Each element must be individually stretched, and then conflated in a tenuous chain to encompass the alleged conduct with any individual woman.

As the statute makes clear, the essence of this crime is the communication itself—not the resulting act. The Court of Appeals for the Eleventh Circuit, in Murrell, underscores the point:

The defendant in Bailey contended that attempt under § 2422(b) 'requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to commit sexual acts." Id. at 638. In response, the court held '[w]hile it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.'

United States v. Murrell 368 F.3d 1283, 1287 (11th Cir. 2004) (citing United States v. Bailey, 228 F.3d 637, 638-39 (6th Cir.2000)). Thus, the targeted criminal conduct must occur through the interstate facility, not thereafter, and the scienter element must be present at the time of the call or Internet contact.

In this case, however, Mr. Epstein did not use an interstate facility to communicate any illegal intention in this case; the phone calls were made by his assistants in the course of setting up many other appointments. Neither a conspiracy charge nor a charge of aiding and abetting can fulfill the mens rea requirement here. Indeed, neither Mr. Epstein nor his assistants knew whether sexual activity would necessarily result from a scheduled massage. And certainly, no such activity was ever discussed on the phone by either Mr. Epstein or his assistants. Instead, as the record in this case makes clear, many appointments resulted in no illegal sexual activity, and often, as confirmed by the masseuses' own testimony, several individuals who were contacted by phone visited Mr. Epstein's house and did not perform a massage at all. Where sexual activity

6

EFTA00013816

## KIRKLAND & ELLIS LLP

did result, it was mainly self-pleasuring masturbation and not necessarily illegal, but spontaneous and resulted from face-to-face conversations during the massage. Thus, the fact that Mr. Epstein later may have persuaded any particular masseuse to engage in unlawful activity during the massage does not work retroactively to render the earlier scheduling phone call an offense under § 2422(b). Nor is there any evidence that women who returned to Mr. Epstein's home time and again were somehow coerced or induced over a facility of interstate commerce to do so.

The first essential element of § 2422(b) that "[w]hoever, using the mail or any facility or means of interstate or foreign commerce," by its plain language, requires that the communication, which is the essence of the crime and its actus reus, take place during the use of the facility of interstate commerce (in this case, unlike the vast majority of Internet chat room sting operations, a telephone). The statute is not ambiguous. It requires that the criminal conduct occur while the defendant is "using" (i.e. engaged in the communication), not thereafter.

Given the utter lack of direct evidence against Mr. Epstein, prosecutors have signaled that they intend to offer a purely circumstantial case if this matter proceeds to trial—essentially arguing that "routine and habit" evidence could substitute for actual proof that an interstate facility was used to solicit sex from minors. Thus, despite the fact that the calls themselves were not made by Mr. Epstein and did not contain the necessary explicit communication to knowingly induce minors to provide sexual favors for money, prosecutors are seeking to turn the phrase "are you available"—the same phrase used with friends, chiropractors, and trainers—into a ten-year mandatory prison sentence. In any case, the prosecution's attenuated argument regarding "routine and habit" will also not fit the facts of this case. The witness testimony at issue makes clear that there was no clear "routine or habit" with respect to the interactions at issue. And in those unpredictable instances where sexual contact resulted, it was a product of what occurred after the benign phone communication, not during the call itself.

The prosecution's theory of liability—that a call to a person merely to schedule a visit to the defendant's residence followed by a decision made at the residence to engage in prohibited sexual activity is sufficient—cannot survive either a "plain language" test or the rule of lenity as they have been authoritatively construed in the recent Santos and Cuellar cases. The statute cannot be read otherwise. As the Cuellar decision makes clear, a proper interpretation of a federal criminal statute is guided "by the words of the operative statutory provision," not by outside objectives, such as those facilitating successful prosecution. See Cuellar, supra, Slip op. at 7. As Justice Alito stated in his concurring opinion, the government must prove not just the "effect" of the secretive transportation, but also that "petitioner knew that achieving one of these effects was a design (i.e. purpose) of the transportation" of currency. Cuellar v. United States, supra, 553 U.S., Slip op. At 1 (Alito, J. concurring). Similarly, it is not enough that one effect of a communication scheduling a visit between Mr. Epstein and a minor was that there might be subsequent face-to-face inducement. Instead, the statute, as drafted, defines the crime as the communication and demands that far more be proven than that the use of an interstate facility resulted in a later meeting where even an inducement (as opposed to a solicitation) was made.

7

EFTA00013817

## KIRKLAND & ELLIS LLP

The prosecution has never represented to counsel that they have evidence that would prove that the inducement or enticement to engage in illegal sexual acts occurred over the phone (or Internet). The prosecution's references to "routine and habit" evidence that would substitute for the explicit communications usually found in the transcripts from chat rooms or sting operations is tenuous at best. In essence, the prosecution would be alleging communications understood, but not spoken, by two people, one of whom was usually a secretary or assistant. Separating the actus reus and the mens rea, however, and premising criminal liability on persuasion that might occur after the communication, or on the existence of a specific intent to engage in illegal sex with a minor that arises after the communication would violate the bedrock principle of criminal law that predicates liability on the concurrence of the act and the criminal state of mind. Even if, arguendo, the communication and mens rea could be separated (a premise which is at odds with the requirement of concurrence), Mr. Epstein denies that the factual proof demonstrates such a pattern or practice. Instead, the evidence compellingly proves that there was no regularity or predictability to the content of the communication or in what occurred at meetings that were telephonically scheduled (including those that are the subject of this investigation).

A second essential element of 2422(6) requires that the defendant "knowingly" induce, persuade, entice or coerce a person believed to be a minor. " .. . [K]knowingly . . . induces . .." requires the Court to define inducement so it is consistent with its ordinary usage and so the term is not so broad that it subsumes the separate statutory terms of "entices" and "persuades." Inducement has a common legal meaning that has been endorsed by the government when it operates to narrow the affirmative defense of entrapment. Inducement must be more than "mere solicitation;" it must be more than an offer or the providing of an opportunity to engage in prohibited conduct. See, e.g,. United States v. Sanchez-Berrios, 424 F.3d 65, 76-77 (ls' Cir. 2005); United States v. Brown, 43 F.3d 618, 625 (11th Cir. 1995). The government cannot fairly, or consistent with the rule of lenity, advocate a broader definition of the same term when it expands a citizen's exposure to criminal liability than when it limits the ambit of an affirmative defense to criminal conduct. If the term is ambiguous, absent clear Congressional intent on the issue, the Court's decision in Santos requires that the narrower rather than the broader definition be used.

The facts simply do not prove Mr. Epstein's culpability for knowingly inducing or persuading minors. First, in the case of masseuses who agreed or even sought to return to see Mr. Epstein on successive occasions, there is no evidence that there was any inducement, persuasion, enticement or coercion over the phone. And, for masseuses seeing Mr. Epstein for the first time, there was generally no telephone contact with Mr. Epstein and there was no knowledge that any third party at Mr. Epstein's specific direction was inviting them to Mr. Epstein's home over the phone rather than in face-to-face meetings. The women who visited Mr. Epstein's home were all friends of friends. Contrary to the facts in this case, § 2422(b)'s knowing inducement element is essential to federal liability and, given its hefty minimum mandatory punishment, it should not be interpreted as a strict liability statute.

8

EFTA00013818

## KIRKLAND & ELLIS LLP

There is insufficient evidence that Mr. Epstein targeted minors, as required. The evidentiary pattern does not even establish willful blindness since Mr. Epstein took steps to ensure his visitors were over 18—and certainly took none to avoid knowing. But, even if the government contends that it possesses evidence that could demonstrate that Mr. Epstein knew or should have known or suspected that a small number of the masseuses were underage, that would still not make this an appropriate case for federal, rather than state prosecution. The federal statutes were not intended to supersede state prosecutions involving isolated instances of underage sex. Instead, the federal statutes were intended for large-scale rings or for an individual who was engaged, while using interstate facilities such as the Internet, with the willful targeting of minors.

The government's evidence, even when stretched to the limit, will not show a pattern of targeting underage persons for illegal sexual activity. A federal prosecution should not become a contest between the prosecution and defense over whether the defendant knew, suspected or should have known whether a particular person was or was not over age. The history of cases brought under this statute make crystal clear that knowledge of the defendant regarding the age of the women is required—either by admission or by incontrovertible transcripts of conversations (i.e. stings operations which require repeated acknowledgment of the defendant's awareness of the victims' age). Even states with absolute liability about mistake regarding age rarely prosecute cases where definitive proof is lacking (Palm Beach County rarely does and when it does, it imposes house arrest sentences). This is a matter for the exercise of state prosecutorial discretion and not federal mandatory minimum statutes that were not intended to cover such conduct.

A third essential element of § 2422(b) is the requirement that the government prove that the defendant actually believed that the person being persuaded (coerced, etc.) was a minor at the time of the communication. See e.g., Offense Instruction 80, Eleventh Circuit Pattern Jury Instructions-Criminal (2003) ("The defendant can be found guilty of that offense only if...the defendant believed that such individual was less than (18) years of age..."); United States v. Murrell,368 F.3d 1283, 1286 (11th Cir. 2004) (§ 2422(b) requires that the defendant knowingly target a minor). Importantly, then, all the elements must be proven with respect to a specific person. However, we arc told that the majority of proof is no more than toll records, not recorded conversations or Internet chat transcripts, but toll re-cords and perhaps a memory of what was said years ago on a particular call for a particular request from a particular person acting at Mr. Epstein's direction.

Two final points bear special emphasis here. The statute, which according to Santos and Cuellar must be narrowly construed, also requires that the inducement be to engage in prostitution or sexual activity "for which [the defendant] can be charged." 18 U.S.C. § 2422(b). However, simple prostitution is not defined (or made punishable) in the U.S. Code, and state law thus supplies the appropriate reference point. Under Florida law, "prostitution" entails the "giving or receiving of the body for sexual activity for hire," Fla. Stat. § 796.07(1)(a), and the term "sexual activity" is limited to "oral, anal, or vaginal penetration by, or union with, the

9

EFTA00013819

## KIRKLAND & ELLIS LLP

sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation." Fla. Stat. § 796.01(1Xd). Also, the Florida Supreme Court jury instructions define prostitution as involving "sexual intercourse." As a result, topless massages—even ones for hire that include selfmasturbation—fall outside the ambit of the state-law definition of prostitution. Absent proof beyond a reasonable doubt that, at the critical time of the communication, Mr. Epstein had a specific intent to persuade another to engage in prostitution or "sexual activity," as defined by Florida law, he cannot be guilty of an offense under § 2422(b).

As important, the plain language of the phrase "for which any person can be charged" necessarily excludes acts as to which the state's statute of limitations has run. Under Florida law, prostitution and prostitution-related offenses are misdemeanors in the second degree for a first violation.2 See Fla. Stat.. § 796.07(4)(a). The limitations period for a misdemeanor in the second degree is one year, and there is no tolling provision based upon the victim's age. See Fla. Stat. § 775.15(6). Even as to allegations of third degree felonies, the statute of limitations is three years. Thus, any conduct alleged to have occurred before mid-June 2005 cannot be charged as a matter of state law and thus cannot be a predicate for a § 2422(b) offense—even if the federal statute of limitations has not run on any given § 2422(b) offense because of the lengthier statute codified in 18 U.S.C. § 3282. Thus, no prosecution under § 2422(b) can be brought based upon inducement of prostitution or sexual activity for which Florida's statute of limitation has run. Furthermore, in Florida, the statute of limitations does not simply give rise to an affirmative defense. On the contrary, statute of limitations "creates a substantive right which prevents prosecution and conviction of an individual after the statute has run." See State v. King, 282 So. 2d 162 (Fla. 1973); Tucker v. State, 417 So. 2d 1006 (Fla. 3d D.C.A. 1982) (citing cases).

Given the one-year statute of limitations, any conduct that might amount to prostitution or other chargeable sexual activity that occurred before one year from today is not conduct for which any person can be charged with a criminal offense. Also, given the three year statute of limitations for third degree felonies, any allegations of illegal state criminal conduct that is classified as a third degree felony cannot be charged in the state and, concomitantly, cannot be the basis for a federal charge under § 2422(b), to the extent that it occurred-as did almost all of the pivotal allegations (e.g., the allegation which was made in March of 2005) prior to mid-June of 2005.

## 2. 18 U.S.C. 4 1591

2 The offense is a felony of the third degree only for a third or subsequent violation. Fla. Stat. § 796.07(4)( c).

10

EFTA00013820

## KIRKLAND & ELLIS LLP

18 U.S.C. § 1591, a sex trafficking statute, provides up to 40 years' imprisonment for anyone (1) who recruits or obtains by any means a person in interstate commerce (ii) knowing that the person is under 18 and (iii) knowing that the person will be caused to engage in a commercial sex act. The most heinous of crimes, described on the CEOS website, fall within this statute and include the buying and selling of children and the forced servitude of third-world immigrants brought to this country to be enslaved. Mr. Epstein's behavior is nowhere near the heartland of this statute. This statute has also been previously reserved for prostitution rings involving violence, drugs and force. In stark contrast, there is no jurisdictional hook that brings Mr. Epstein's conduct within the ambit of the statute, and securing a prosecution on these facts would require a court to set aside both reason and precedent to convict a local `John' with a sexslavery crime. It can not be said that Mr. Epstein engaged in trafficking and slavery nor did he knowingly recruit or obtain underage women with knowledge that they would be caused to engage in a commercial sex act. Thus, prosecuting him under this statute would expand the law far beyond its scope.

To the extent there are cases where prosecutors think that Mr. Epstein should have known that certain women were underage, there is no evidence that Mr. Epstein "caused [them] to engage in a commercial sex act." The term "cause" naturally implies the application of some sort of force, coercion, or undue pressure, but there is no evidence that Mr. Epstein's interactions with the women were anything but consensual. Again, many of the women phoned Mr. Epstein's assistant themselves in order to determine whether hewanted a massage. Nor can the cause requirement be proved simply by the fact that Mr. Epstein compensated the women. After all, the statute elsewhere requires that the women "engage in a commercial sex act," which by definition means that they would have received something of value in exchange for sexual services. Interpreting the statute to authorize prosecution whenever a commercial sex act results from solicitation thus would render the term "caused" superfluous, and would make every `John' who interacts with an underage prostitute guilty of a federal crime—even where the transaction is entirely local. Read in context, then, there is no doubt that the statute targets pimps and sextraffickers who knowingly obtain underage girls and direct them to engage in prostitution. There is not a shred of evidence that Mr. Epstein (or his assistants) did any such thing, and he cannot be prosecuted under this statute.

TheCuellarand Santosdecisions also foreclose a prosecution under § 1591. Just as the federal money laundering statute did not come down to a proscription against transportation of criminal proceeds that are hidden, the sex trafficking of children statute cannot be boiled down and expanded to a federal proscription of commercial sexual activity with persons who turn out to be below the age of 18.

## 3. 18 U.S.C. 4 2423

11

EFTA00013821

## KIRKLAND & ELLIS LLP

18 U.S.C. § 2423(b), a statute enacted to prevent sex tourism, provides up to 30 years of imprisonment for anyone who travels across state lines (i) for the purpose of engaging in (ii) illicit sexual conduct with a minor. Neither of those elements is satisfied here.

Mr. Epstein did not travel to Palm Beach for the purpose of engaging in sexual activity with a minor, within the meaning of the statute. The evidence is indisputable that Palm Beach was where Mr. Epstein spent most of his discretionary time, and that his travels to Palm Beach were merely trips returning often to his home of twenty years—not the escapades of a sex tourist off to some destination inextricably intertwined with the required significant or dominant purpose of that trip to be to have "illicit sexual conduct." Epstein's trips to Palm Beach were simply those of a businessperson traveling home for weekends or stopping over on his way to or from New York and St. Thomas or to visit his sick and dying mother in the hospital for months on end. He certainly did not travel to his home in Florida for the dominant purpose of engaging in sexual conduct with a person who he knew was under 18 when he did not know, at the time he decided to travel, from whom he was to receive a massage, if he were to receive one at all.

In Cuellar, the unanimous Supreme Court linked the term "design" in the money laundering statute to the terms "purpose" and "plan," and stressed that those terms all required the defendant to "formulate a plan for; devise"; "[t]o create or contrive for a particular purpose or effect"; [carry out] "[a] plan or scheme"; or "to conceive and plan out in the mind." Slip. op. at 12 (citing dictionary definitions). The same link is present here, and it simply cannot be said that Mr. Epstein's design, plan, or purpose in traveling to Palm Beach was to engage in illicit sexual conduct with minors; his design or plan or purpose was simply to return to his home.

Any construction of § 2423(b)'s "for the purpose of language to include purposes beyond the dominant purpose of the travel would run afoul of the rule of lenity and due process principles discussed earlier. Any attempted prosecution of Mr. Epstein under a more expansive construction of the "for the purpose of language would also violate the separation of powers doctrine. Congress, which selected the "for the purpose of language signaled no clear intention to make it a federal crime whenever an actor has engaged in illicit sexual conduct following his crossing of state lines as long as it might be said that sexual activity at his destination was among the activities he pursued there. Congress well knows how to write a statute in this field which eliminates a purpose requirement. See 18 U.S.C. § 2423(c)("Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person ..."). § 2423(b) is not such a statute.

Federal court decisions watering down the "for the purpose of " requirement fly in the face of the two Supreme Court decisions addressing that element. See Hansen v. Huff, 291 U.S. 559 (1934); Mortensen v. United States, 322 U.S. 369 (1944). Santos and Cuellar speak loudly and clearly against prosecutors seeing such elasticity in federal criminal statutes, including those enacted to protect important federal interests. In cases involving the federalization of activity that is within the States' historic police power, Congress must speak with particular clarity. See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989).

12

EFTA00013822

## KIRKLAND & ELLIS LLP
Relevant Past Cases

We have not been able to find a single federal prosecution based on facts like these—but have voluminous evidence of federal prosecutors routinely declining to bring charges in cases far more egregious than this one. To take just one obvious example, federal prosecutors have selfconsciously refrained from involvement in the literally dozens of sexual cases of former priests, opting instead to allow seasoned state prosecutors (like the ones in this case) to pursue the accused former clergymen. That is so despite (1) the large number of victims, (2) the vast geographic diversity of the cases, and (3) the fact that some of these cases involve allegations that the defendant forcibly molested, abused, or raped literally dozens of children—including some as young as five years old—over a period of years. Nonetheless, federal prosecutors have not hesitated to let their state counterparts pursue these cases free from federal interference— even though the sentences meted out vary greatly on account of the fact that "[c]riminal penalties are specific to localities or jurisdictions."3 The facts of this case, which involve the solicitation of consensual topless massages and some sexual contact, entirely in the privacy of his home and almost entirely by women over the age of 18, pale in comparison to the outright sexual abuse and degradation of preteen minors in many of the priest cases.

Nor does this case bear any of the hallmarks that typify the cases that federal prosecutors have pursued under the federal statutes at issue here. When asked, the closest case suggested by the prosecutors was United States v. Boehm—and it hardly could differ more from Mr. Epstein's case. In Boehm, the defendant was charged with conspiracy to distribute cocaine and cocaine base to minors, in violation of 21 U.S.C. §§ 846, 84I(a)(1), and 859(a); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(I); and sex trafficking of children in violation of 18 U.S.C. §§ 371 and 1591. United States v. Boehm, Case No. 3:04CR00003 (11 Alaska 2004). Boehm's actions, unlike Mr. Epstein's, also had a strong interstate nexus: Boehm purchased and distributed large quantities of crack cocaine and cocaine that traveled in interstate commerce, and he used his home and hotels (which were used by interstate travelers) to purchase drugs and distribute them to minors while also arranging for these minors to have sex with him and others. Indeed, Boehm not only (1) purchased cocaine in large quantities; (2) distributed the drugs to minors; (3) possessed illegal firearms; (4) and arranged for the minors to have sex with other members of the conspiracy in exchange for drugs; but (5) admitted to knowing the ages of the individuals involved.4 Here, by contrast, as previous stated, all of the conduct took place in Mr. Epstein's private home in Palm Beach; there was no for-profit enterprise; no interstate component; no use by Mr. Epstein of an instrumentality of interstate commerce; no violence; no force; no alcohol; no drugs; no guns; and no child pornography.

3 See http://www.bishop-accountability.org/reports/2004_02_27_JohnJay/2004_02_27_Terry_JohnJay_3.htm
#cleric7.

4 In fact, Boehm and his co-defendants distributed drugs to approximately 12 persons between the ages of 13 and 21. Boehm also had a prior criminal history—and one that clearly showed he was a danger to society: he previously had been convicted of raping both a thirteen year-old girl and a fifteen year-old girl. (Day 7 of Sentencing hearing p. 32).

13

EFTA00013823

## KIRKLAND & ELLIS LLP

To the extent there is a similar, but more egregious, local Florida case on the books, it is that of Barry Kutun, a former North Miami city attorney accused of having sex with underage prostitutes and videotaping the sessions. Mr. Kutun pleaded guilty on May 18, 2007 in a MiamiDade County courtroom as part of an agreement with State prosecutors and he received five years probation and a withholding of adjudication with no requirement to register as a sex offender—all without a shred of involvement by federal prosecutors, who declined to prosecute him. Indeed, given the wide use of the telephone in today's society, it gives a rogue prosecutor carte blanche to turn any local crime into a federal offense. Given the federal government's decision to abstain from prosecuting that case, it is hard to understand how the federal prosecutors responsible for this case think that the State's treatment of Mr. Epstein somehow leaves federal interests substantially unvindicated. There is simply no basis for the federal prosecutors' disparate treatment of Mr. Epstein.

## Summary of the Evidence

Finally, we wish to share new evidence—obtained through discovery in connection with the civil lawsuits filed in this matter—which confirms that further federal involvement in this matter would be inappropriate. This testimony taken to date categorically confirms that (i) Mr. Epstein did not target minors; (ii) women under 18 often lied to Mr. Epstein about their ages; (iii) Mr. Epstein did not travel in interstate commerce for the purpose of engaging in illegal sexual activity; (iv) Mr. Epstein did not use the Internet, telephone or any other means of interstate communication to coerce or entice alleged victims; (v) Mr. Epstein did not apply force or coercion to obtain sexual favors; and (vi) all sexual activity that occurred was unplanned and purely consensual. The women's own statements—made under oath—demonstrate the absence of a legitimate federal concern in this matter, and highlight the serious practical difficulties an attempted federal prosecution would face.

• Mr. Epstein did not recruit or obtain these women in interstate commerce (necessary for a conviction under § 1591).

[ ] confirmed that she did not know Mr. Epstein and had absolutely no contact with him—be it through Internet, chat rooms, email, or phone—prior to their arrival at his home. See Tab 13, Tr. (deposition), p. 30.

[ ] has stated that (like many other women) she first met Mr.
Epstein when her friend, , introduced her to him. See Tab
14, Tr. A, p. 4-5.

• Mr. Epstein was told the girls were over 18.

	[ ] o Ms. ex ressly admitted to lying to Mr. Epstein about her age.
See  Tab 13, Tr. (deposition), p. 37 ("Q. So you told Jeff that you
were 18 years old, correct? A. Yes.").

		- stated that she not only always made sure she had a fake ID with her and lied to Mr. Epstein by telling him she was 18, but that she

14

EFTA00013824

## KIRKLAND & ELLIS LLP

also had conversations with other women in which these women hoped that "Jeffrey didn't find out [their] age[s]." SeeTab 6, Tr., p. 45.

[ ] Ms. also stated that she: "would tell my girlfriends just like approached me. Make sure you tell him you're 18. Well, these girls that I brought, I know that they were 18 or 19 or 20. And the girls that I didn't know and I don't know if they were lying or not, I would say make sure that you tell him you're 18." See Tab 6, Tr., p. 22.

[ ] Ms. stated that Ms. told her say that she was 18 if asked. See
Tab 14, Tr. A, p. 8.

		[ ] stated that she "told him I was 19." See Tab 5,
Tr., p. 16.

• Mr. Epstein did not know these women would be caused to engage in a sex act (necessary for a conviction under § 1591) and any sexual activity that took place was unplanned.

		- o Ms. stated "sometimes [Mr. Epstein] likes topless massages, but [ ]
you don't have to do an you don't want to do. He just likes
massages." See Tab 6, Tr., p. 7.

		- o Ms. also stated "[s]ometimes [Mr. Epstein] just wanted his feet [ ]
massaged. Sometimes he just wanted a back massage." See Tab 6,
Tr., p. 19.

• Mr. Epstein did not use an interstate facility to communicate an illegal objective to the alleged victims (necessary for a conviction under § 2422(b)).

		[ ] o Ms. confirmed that Mr. Epstein never emailed texted, or chatted
in an Internet chat room with her. See Tab 13, Tr. (deposition),
p. 30.

• Mr. Epstein did not target minors (necessary for a conviction under § 2422(6))

	[ ] o Ms. stated, "I arinade sure -- I had a fake ID, anyways, saying [ ]
that I was 18. And I (who is friend who brought her to
Mr. Epstein's home)] just said make sure sire 18 because Jeffrey
doesn't want any underage girls." See Tab 6, Tr., p. 8. [ ]

• Mr. Epstein did not use the phone or the Internet to induce proscribed sexual activity (necessary for a conviction under § 2422(b)).

		- o Ms. stated that there was never any discussion over the phone about [ ]
her coming over to Mr. Epstein's home to engage in sexual activity: "The
"' thing that ever occurred on any of these phone calls [with or another assistant] was, `Are you willing to come over,' or,

15

EFTA00013825

## KIRKLAND & ELLIS LLP

`Would you like to come over and give a massage." SeeTab 14, Tr. [ ]
A, p. 15

[ ] Ms. [REDACTED] confirmed that she was informed that she was going to Mr.
Epstein's house to give him a massage and nothing else, and that no one
"said anything to [her] on the telephone [or over the Internet] about sexual
activity with Mr. Epstein." See Tab 13, [REDACTED] Tr. (deposition), p. 24-
25.

	- o Ms. also confirmed that no one associated with Mr. Epstein ever tried to call her or contact her through the Internet to try to persuade, induce entice or coerce her to engage in any sexual activity. SeeTab 13, Tr. (deposition), p. 31.

• Mr. Epstein did not travel to Palm Beach for the purpose of engaging in sexual activity with a minor (necessary for a conviction under § 2423(b)).

	- o Mr. Epstein spent at least 100 days a year in Palm Beach for family purposes, business purposes, and social purposes, and to maintain a home.

	- o While in Palm Beach, Mr. Epstein routinely visits family members and close friends, has seen his primary care physician for checkups and prescribed tests in the Palm Beach area, and until her death in April of 2004, regularly saw his mother who was hospitalized and then convalesced in south Florida.

	- o From 2003 through 2005 there was no month when Mr. Epstein did not spend at least one weekend in Palm Beach.

	- o The Palm Beach area is the home base for his flight operations, for maintenance of his aircraft, and for periodic FAA inspections.

	- o Additionally, Mr. Epstein's pilots and engineers all resided in Florida.

• Mr. Epstein's conduct did not involve force, coercion or violence and any sexual activity that took place was consensual. The witness transcripts are replete with statements such as the following:

[ ] Ms. stated that she was not persuaded, induced, enticed or coerced by anyone to engage in any sexual activity. See Tab 13, Tr.(deposition), p. 31.

- o Ms. stated: "[Mr. Epstein] never tried to force me to do anything." [ ]
See  Tab 14, Tr. A, p. 12. [ ]

- o Ms. stated, "I said, I told Jeffrey, I heard you like massages topless. [ ] [ ]
And he's like, yeah, he said, but you don't have to do anything that you

16

EFTA00013826

## KIRKLAND & ELLIS LLP

don't feel comfortable with. And I said okay, but I willingly took it off." See Tab 6, Tr., p. 10.

	- o Ms. also stated "[s mimgirls didn't want to go topless and Jeffrey [ ]
didn't mind." See Tab 6, Tr., p. 23.

• Mr. Epstein did not engage in luring.

	- o Mr. Epstein's message books show that several masseuses would regularly call Mr. Epstein's assistants, without any prompting by Mr. Epstein or his assistants, asking to visit Mr. Epstein at his home.

	[ ] o Ms. stated "a lot of girls begged me to bring them back [to Mr. [ ]
Epstein's house]."

• There was no alcohol or drugs involved, a fact that is not in dispute.

• Mr. Epstein has no prior criminal history, a fact that is not in dispute.

• These women do not see themselves as victims.

	[ ] o Ms. indicated under oath that the FBI attempted to persuade her that [ ]
she was in fact a "victim" of federal crimes when she herself repeatedly
confirmed that she was not. See Tab 14, Tr. A, p. 9-12 and Tab 15, [ ]
Tr. B, p. 7.

## Conclusion

Jeffrey Epstein, a self-made businessman with no prior criminal history, should not be prosecuted federally for conduct that amounts to, the solicitation of prostitution. A federal prosecution based on these facts would be an unprecedented exercise of federal power, a misuse of federal resources, and a prosecution that would carry with it the appearance, if not the reality, of unwarranted selectivity given the incongruity between the facts as developed in this matter and the factual paradigms for all other reported federal prosecutions under each of the three statutes being considered. It would require the pursuit of a novel legal theory never before sanctioned by federal law—and that indeed is inconsistent with each of the statutes prosecutors have identified. Accordingly, we respectfully request that you direct the U.S. Attorney's Office for the Southern District of Florida to discontinue its involvement in this matter, and return responsibility for this case to the State of Florida.

17 17

EFTA00013827