EFTA01247988.pdf

LAW OVINCE• or Grateap B. LErcouirr, P.0 A PROFZIISIONAL CORPORATION I•8 EAST 711`.• NEW YOBIELNEW YORK 1002E GERALD B. LEICOURT SELEFIMONC lelcougloIskourlaw.00in (2121 7370400 FACSIMILE (21210/1243122 SHERYL C. REICH mkbeslonliammon Ft CHAT° C. STAIIILE IA. FAITH A. FRIEDMAN June 25, 2007 BY HAND DELIVERY q., First Assistant United States Attorney Esq., Chief, Criminal Division The United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, Florida 33132 Deputy Chief, Northern Region Assistant United States Attorney r ... e tates Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Jeffrey E Epstein Dear As you are aware, we represent Jeffrey E. Epstein in connection with your ongoing investigation. We write to you in advance of our June 26, 2007, meeting to address some of the concerns that have been raised during our recent conversations. Although not exhaustive of all the issues we wish to discuss, or points we intend to raise, we believe this submission will facilitate a more productive meeting by giving you an overview of our position and the materials we plan to present in order to demonstrate that none of the statutes identified by you can rightly be applied to the conduct at issue here. We are prepared to discuss the issues raised herein further at tomorrow's meeting as well as to discuss additional concerns you may voice, all for the purpose of demonstrating why no federal prosecution should lie. The Federal Criminal Statutes Identified Should Not Be Applied Here It is clear from both the fundamental principles of federal criminal law and the specific statutes in question that federal law is not intended to prohibit, nor does it prohibit, all "wrongful" sexual activity. Indeed, there is no federal crime of sex with an underage person — Case No. 0840736-CV-MARRA P-008517 3501.182-094 Page I of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_000942 IS EFTA01247988  taw Of • CS 00 GERALD a Tsavors-sr, P.C. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 2 even assuming such an act took place in this case — nor could there be such a crime under the United States Constitution.' By and large, the delineation of such conduct (that is, determining what conduct is wrongful), and the prosecution for such conduct, have been delegated to the states. Such conduct is punishable under state laws, under which the age of consent varies from 14 to 18 with many states making sex with a 16 year old completely lawful regardless of the age of the other person.2 In short, the role of federal law in this area is carefully circumscribed. The legislative history of the federal "sex" statutes at issue evinces no federal concern with the prevalent local phenomenon of young adults — 16 or 17 years of age — voluntarily choosing to engage in sexual contact with anyone they desire. This is strictly a state concern, which some states have chosen to criminalize, while others have not, and some local prosecutors have chosen to prosecute, while others have not. It is not an accident that, as far as we have been able to determine, there is no federal case involving a defendant who maintains a reasonable mistake of fact defense, where that defendant reasonably believed the other person was 18 years of age. The federal statutes were not meant to apply in those circumstances as such conduct is a matter of state law. The federal statutes were intended to address those cases involving sexual activity with children. Indeed, the federal concerns intended to be redressed by these statutes, as evidenced by the legislative history; the advisory titles of the statutes; and even their sometimes broad language, are: the use of coercion and violence to lead children into a life of prostitution (12, 13, or 14 years old, or younger); sex trafficking and slavery of children; interstate or foreign travel to have sex with children (or engage in other illegal sexual activity); and trolling for children on the intemet in order to have sex with them. None of these concerns is present here.' These constitute the paradigmatic federal concerns, mainly because the states are ill prepared to deal effectively with interstate and international trafficking of children. On the other hand, the states are fully capable of deciding how to deal with entirely local matters relating to men who allegedly have inappropriate sexual contact with local young women. To disregard thcsc concerns, to ignore congressional purpose, and attempt to give the federal statutes their broadest possible interpretation would cause the undesired result of criminalizing federally virtually all acts of prostitution or sexual misconduct — a result not intended by Congress and United States v. Lopez 514 U.S. 549 (1995). 2 Notably, Chapter 109A statutes, e g.. §§ 2241.2245, to which § 2423(b) inherently refers, each deal in terms of force and/or age. A review of these statues demonstrates that in each instance unless force is involved, the victim must be under 16 years old fora prosecution to lie. We understand the Office has taken the view that Mr. Epstein targeted underage high school students. This was absohnely not the case and we will be prepared to discuss at our meeting the objective evidence demonstrating no such targeting occurred. Case No. 0340736-CV-MARRA P-008518 3501.182-094 Page 2 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA 0()094216 EFTA01247989  Loa/ ocroccs a GERALD H. bLecourr, Office of the United States Attorney Southern District of Florida June 25, 2007 Page 3 unlikely to be sanctioned by the courts.4 To stretch the statutes in the unprecedented way it appears is contemplated would do just that. Although in this memo we have focused primarily on the federal sex statutes, in the same way that those statutes cannot logically be expanded to cover the conduct at issue, neither can the statutes governing monetary transactions. These latter statutes, designed to curb the use of what would appear to be otherwise innocent financial transactions to disguise proceeds ofunlawful activity and avoid internal Revenue Code requirements, have no place in this case. The ills sought to be remedied by these statutes are far removed from the conduct in which Mr. Epstein purportedly engaged. We address each statute in turn, starting with those regulating monetary transactions. 18 U.S.C. § 1956(aX3) • The Money Laundering Statute - Does Not Apply to Mr. Epstein's Alleged Misconduct No reasonable reading of the money laundering statute can countenance such a charge against Mr. Epstein, for the statute on its face, or as even applied by the courts, has absolutely no application to the alleged misconduct. Under the facts of this case, to charge Mr. Epstein with violating the money laundering statute would be both unprecedented and inappropriate. The money laundering statute was designed to be used and has been construed as a "concealment" statute, not a spending statute. See UnitedSlates v. Shepard, 396 F.3d 1116 (10th Cir.), cert. denied, 545 U.S. 1110 (2005); United States v. Hall, 434 F.3d 42 (1st Cir. 2006) (money laundering statute does not criminalize the mere spending or investing of illegally obtained assets. Instead, at least one purpose for the expenditure must be to conceal or disguise the assets). The Eleventh Circuit has held that "[tjo prove money laundering under § 1956(aX3), the government must show that the defendant (I) conducted or attempted to conduct a financial transaction (2) involving property represented to be the proceeds of specified unlawful activity, (3) with the intent (a) 'to promote the carrying on of specified unlawful activity,' (b) 'to conceal or disguise the nature, location, source, ownership, or control of property believed to be the "Section 1591 does not criminalize all acts of prostitution (a vice traditionally governed by state regulation). Rather, its mach is limited to sex trafficking that involves children or is accomplished by force, fraud, or coercion". United States v. Evans, 076 F.3d 1176, 1179 a I (II* Cir. 2007). Nor, has the Department of Justice deemed it appropriate. See. e.g. linked Stales Department of Justice Civil Rights Division Antl-Trafficking News Bulletin, August/September 2004, Vol. 1. Nos. 8 and 9. at 2 (in order to address the demand for prostitution the federal government must work with the state. as it is state law that controls). Case No. 08-80736-CV-MARRA P-008519 3501.182-094 Page 3 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA 0(1(194217 EFTA01247990  LAW Orria• OF Oman) B. InCOUBT, P.G. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 4 proceeds of specified unlawful activity,' or (c) 'to avoid a transaction reporting requirement under State or Federal law"'. United States v. Puche, 350 F.3d 1137 (II Cir. 2003);$ see also United States v. Arditti, 955 F.2d 331 (51° Cir.), reh'g denied, cert. denied 506 U.S. 998 (1992), cert. denied 506 U.S. 1054, reh'g denied 507 U.S. 967 (1993) (undercover agent's representation that he was in the cocaine business and that the initial S15,000 were the proceeds of a collection satisfied requirement for establishing basis for money laundering "sting" operations that government agent represent that property involved in the transaction was the "proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity"). Thus, it is clear that the statute unquestionably and explicitly requires (a) the use of proceeds of specified unlawful activity, or (b) cash which is or was represented to be the product of unlawful activity, with neither paradigm being applicable in the case. That this was how the statute was intended to be used and is understood is further evidenced by section 9-105 of the United States Attorney's Manual, which states: Sections 1956 and 1957 both require that the property involved in the money laundering transaction be the proceeds of specified unlawful activity at the time that the transaction reins. The statute does not define when property becomes "proceeds," but the context implies that the property will have been derived from an already completed offense, or a completed phase of an ongoing offense, before it is laundered. Therefore, as a general rule, neither § 1956 nor § 1957 should be used where the same financial transaction represents both the money laundering offense and a part of the specified unlawful activity generating the proceeds being Laundered The allegations of this case simply do not support a money laundering charge. My attempt to make such a charge would constitute inappropriate overreaching and would stretch the statute beyond its intended purpose. Unlike the typical money laundering case, Mr. Epstein did not receive money or fundsfrom any criminal conduct which he then used in a financial transaction. See, e.g., United States v. Taylor, 239 F. 3d 994 (9th Cir. 2001) (defendant charged with running an illegal escort service and using proceeds from that business to pay credit cards Instructive is Eleventh Circuit Pattern Jury Instruction 70A which states that the defendant can be found guilty of § I 956(aX3XA) only if(1) he knowingly conducted a financial transaction; (2) the transaction involved property represented to be the proceeds of specified unlawfill activity or that was used to conduct or facilitate specified unlawful activity; and (3) the defendant engaged in the uarsaction with the intent to promote the carrying on of specified unlawful activity. Case No. 08-80736-CV-MARRA P-008520 3501.182-094 Page 41 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 00094215 EFTA01247991  LAW Or r las coy Guitar, a Lzroocarr, P.G. Office of the United States Attomcy Southern District ofFlorida June 25, 2007 Page 5 used to purchase airline tickets to fly prostitutes to Las Vegas). Nor did Mr. Epstein use money he knew otherwise to be unlawfully tainted in a financial transaction designed to facilitate, conduct, or promote prostitution or other criminal conduct. Rather, to the extent the evidence may show that Mr. Epsteinpaid for sexual services, he most certainly did so with untainted, legitimately earned funds. In addition, unlike the typical "sting" case, which 1956(a)(3) was enacted to address, there is no evidence that Mr. Epstein was aware, or that government or law enforcement personnel made him aware of circumstances from which he could reasonably have inferred that the funds were from specified unlawful activity. This is not a case where large amounts of cash of questionable origin were repeatedly delivered to Mr. Epstein in small denominations in duffel bags and boxes. See. e.g., Puche, supra, 350 F. 3d 1137; see also United States v. Rahseparian, 231 F. 3d 1257 (10th Cir. 2000) (government failed to prove that defendant knew that money was obtained by mail fraud, the unlawful activity underlying money laundering count). To proceed under a view that the statute covers such behavior would lead to the unintended result ofmaking use of a credit card or wire transfer to pay for sexual services provided by a prostitute money laundering. That was surely not what Congress intended, how the courts have interpreted the language of the statute, or even how it is viewed by the Department of Justice. 18 U.S.C. § 1960 - Prohibition of Unlicensed Money Transmitting Business Does Not Apply to Mr. Epstein's Alleged Misconduct Likewise, a prosecution under § 1960 cannot lie. 18 § 1960 is a regulatory statute that was enacted in order to combat the growing use of money transmitting businesses for the purpose of transferring large sums of illegally obtained monies and to avoid the strictures of the Internal Revenue Code, as well to fund terrorism. The type of business contemplated by Congress is one which, for a fee, accepts funds for transfer within or outside the United States. See United States v. Talebnejad 460 F.3d 563, 565 (4°' Cir. 2006); United States v. Valastegut, 199 F.3d 590 (2d Cir. 1999). Once the money transmitter receives the fee and the money from the customer, a third party at the recipient location then pays the money to the designee or the transmitter wires the money directly to the recipient These formal and informal businesses are often operated for the purpose of sending money to an individual's home country from the United States. See, e.g., Talebnejad, supra, 460 Cue M, 03407)44W.MARRA 1, 0:451I 350I. 182-094 Page 5 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA 0(1(194219 EFTA01247992  IA* °malt oe GERALD a Lzroornrr, P.G. Uthce of the United es Attorney Southern District ofFlorida June 25, 2007 Page 6 F.3d at 567 (Iranian immigrants operated money transmitting business in Maryland); Velastegui, 199 F.3d at 593 (money transferred to Mexico by unlicensed agent); United States v. Balt, 2007 U.S. Dist. LEXIS 25274 (S.D.N.Y. 2007) (defendant operated restaurant in New York which also transmitted cash overseas); United States v. Abdullah, 2006IJ.S. Dist. LEXIS 47493 (W.D.Va. 2006) (Iraqi defendant charged customers a fee for transferring money from the United States to Middle Eastern countries). However, as noted, in many instances, due to the lack of uniform regulation, these businesses have served to transfer funds which were the proceeds of illegal activity. See United States v. Valdes, 2006 U.S. Dist. LEXIS 12432 (S.D.N.Y. 2006) (defendants transmitted proceeds of drug trafficking to Colombia); see also P.L 103-325, Title IV, § 408, 108 Stat. 2252. In response to the growing concern about this improper use of these businesses, Congress enacted § 1960, in conjunction with § 5330, establishing a regulatory scheme to assist in the effective enforcement of criminal, tax, and other laws and prevent such businesses from participating in any illegal enterprises. Id. It is clear that § 1960 does not apply, and was never intended to apply, to Mr. Epstein's purported misconduct. Mr. Epstein did not own or operate a "money transmitting business" as defined in § 5330. Nor was he in the money transmitting business. Mr. Epstein was not providing check cashing, currency exchange, or money transmitting or remittance services. Nor was he issuing or redeeming money orders, travelers chocks, or other similar instruments, or acting as a person engaged as a business in the transmission of funds. Indeed, he was not carrying on a business at all through these transfers. The term "business" is defined as an "activity or enterprise for gain, benefit, advantage or livelihood" (Black's Law Dictionary (7th S. 2007)) or as "a usually commercial or mercantile activity engaged in as a means of livelihood". Merriam-Webster's Online Dictionary. The only funds transferred were Mr. Epstein's personal monies, monies he lawfully earned. He did not profit from the transmission of this money. Nor was the act of transmitting the money a means ofhis livelihood. He simply took legitimate money and used it to meet his financial obligations. At best, the evidence demonstrates that Mr. Epstein transmitted funds from personal accounts in New York to accounts in Florida in order to pay for personal expenses — food, flowers, household upkeep, etc. This cannot be viewed as anything different from giving cash to a family member, or transferring money fiom a savings or brokerage account to a checking account, in order to pay bills and expenses. Under no reading of the facts can Mr. Epstein's conduct in transferring money between his accounts constitute a "business", much less a money transmitting business. As such, a prosecution under the statute should not lie. Cast No. 09-80736-CV•MARRA P-00.8522 3501.182-094 Page 6 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00094220 EFTA01247993  LMV Of •MCI. Of GERALD B. LEPOOURT, P.C. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 7 18 U.S.C. § 1591 — The Misconduct Alleged Does Not Fall Within the Ambit of the Statute 18 U.S.C. § 1591 - "Sex Trafficking of Children or by Force, Fraud, or Coercion" — was passed as part of the Trafficking Victims Protection Act ("TVPA") to address a problem far removed from the present set of circumstances: human trafficking, in general, and human sex trafficking, in particular, involving both a commercial and coercive component. The statutory scheme was designed to prevent the organized exploitation of women and children for profit and was not intended to address the conduct alleged here: The central principle behind the Trafficking Victims Protection Act is that criminals who knowingly operate enterprises that profit from sex acts involving persons who have been brought across international boundaries for such purposes by force or fraud, or who force human beings into slavery, should receive punishment commensurate with the penalties for kidnapping and forcible rape. 147 Cong. Rec. E2179.02; see also United States Department of Justice Civil Rights Division Anti-Trafficking News Bulletin, April 2005, Vo. 2, No. 1 at ; July 2004, Vol. I, No 7. at 6; and January 2004, Vol. I, No. 1, at I, 3 (reflecting the positions of President Bush, Attorney General Gonzalez, former Attorney General Ashcroft, and former Assistant Attorney General for the Civil Rights Division Acosta that human trafficking involves force, fraud and coercion, and is a form of modern day slavery). The behavior and actions of Mr. Epstein are far removed from the human trafficking concerns addressed by Congress in enacting § 1591. Any attempt to prosecute him under this section would be unprecedented and highly irregular. Not surprisingly, the case law does not support any such prosecution. Nationwide there are relatively few appellate decisions dealing with prosecutions under § 1591. In the Eleventh Circuit, there are only a handful, several of which arc unpublished. A review of these cases reveals that the paradigmatic case for enforcement falls into one of two categories.6 The first involves defendants who have engaged in a highly predatory sort of business — prostituting underage persons, either by force, fraud, or coercion. These cases bear no relationship to the circumstance at issue here. See, e.g., United Slates v. Norris, 188 Fcd. Appx. 822 (I I a' Cir. 2006) (unpublished)(prosecution of several men for conspiracy to hold young women in peonage, and to traffic them for commercial sex acts, involving force and threats; bail issue); UnitedStores v. ° A review of the United States Department of Justice Civil Rights Division Anti-Trafficking 'News Bulletins confirms that this same pattern exists nationwide. We will be prepared to discuss these cases further at our meeting and will supply deceits about the cases upon request Case No. 01140736-CV•MARRA P-008523 3501.182-094 Page 7 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_0009422 I EFTA01247994  0, GERALD D. Lzercouter, P.C. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 8 Sims, 161 Fed. Appx. 849, 2006 WL 14581 (1I th Cir. 2006) (unpublished). See also Evans, supra, 476 F.3d 1176. The second involves sex tourism sting operations where the defendants signal up for a "Taboo Vacation," usually to go to Costa Rica to have sex with children. in these cases the state interest is relatively minimal and United States treaty obligations have made federal intervention a high priority. See, e.g., United States v. Clarke, 159 Fed. Appx. 128, 2005 WL 3438434 (11 a' Cir. 2005)(unpublished); United States v. &revel& 185 Fed. Appx. 841, 2005 WL 1697529 (11th Cir. 2006Xunpublished), cert. denied, 127 U.S. 692 (2006). No such federal interest is implicated in the purely local case of Mr. Epstein. Here, there was no trafficking — no "force, fraud or coercion"; no threats; no sexual servitude; no financial venture; no profit from a financial venture; no forced work in the commercial sex industry; and no transporting of children from underdeveloped countries to the linked States or even across state lines. Nor was there any conduct which can be considered so extremely abusive or violent, that an expansion of the statutes beyond their intended purpose would be warranted. 18 U.S.C. § 2421 — Mann Act — The Statute Was Not Intended To Address The Misconduct Alleged Here My attempt to charge Mr. Epstein under 18 U.S.C. § 2421 would violate both the spirit and purpose of the statute. Section 2421 was first enacted by Congress in 1910 to prevent the use of interstate commerce to facilitate prostitution, concubinage, or other forms of inunorality. Hoke v. United States, 227 U.S. 308 (1913); Wilson v. United States, 232 U.S. 563 (1914); Caminetti v. United States, 242 U.S. 470 (1917). The statute's primary purpose was to address the so-called commercial case of transporting females for immoral purposes. Cleveland v. United States, 329 U.S. 14 (1946) (even though the Act includes some non-commercial cases within its scope, its primary focus is commercial sexual activity); United States v Jamerson, 60 P Supp 281 (D.C. Iowa 1944). However, it has also served to protect women against conduct, whether commercial or not, that involves transportation and is exploitive or violent. See. e.g., De Vault v. United States, 338 F.2d 179, 180 (10th Cir. 1964) (applying the Act to protect girl who was raped). The Mann Act is a relatively antiquated morality statute that, despite its overly broad language, is wisely used only sparingly. Notably, the most recent reported decision in the 1 Ith Circuit involving the Mann Act was decided in 1984. United States v. Phelps, 733 F.2d 1464 (I Cir. 1984). Case No. 08-807364:V-MARRA P-00852.1 3501.182-094 Page 8 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00094222 EFTA01247995  LAW OPIUM,Or GERALD B. lawcotra-r, PL. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 9 Indeed, a nationwide search of reported prosecutions and convictions under the Act reveals that the statute has primarily been limited to cases involving prostitution rings/businesses and their owners. United States v. Holland 381 F.3d 80 (2d Cu. 2004) (woman running prostitution business convicted for recruiting and transport of prostitutes under § 2421); United States v. Footman, 215 F.3d 145 (I g Cir. 2000) (pimp who ran a prostitution ring convicted of violating § 2421). Likewise, in keeping with its purpose and tide, the statute has been used in sex trafficking cases involving the exploitation of the poor and disadvantaged from foreign countries. See, e.g., United States v. Julian, 427 F.3d 471 (71" Cir. 2005) (sex tourism operator in Mexico facilitating travel of poor Mexican boy for sexual relationship in the United States violated § 2421). On the other hand, other cases which have targeted non-owners of prostitution rings, have anther limited § 2421 prosecutions to circumstances involving egregious conduct, such as the use of force or kidnapping. See, e.g, UnitedStates v. Lowe, 145 F.3d 45 (1g Cir. 1998) (defendant transported woman across state lines against ha will and then raped her). See also Poindexter v United States, 139 F.2d 158 (8th Cir. 1943) (transportation by defendant of woman across state line with purpose of raping her violated 18 U.S.C. § 2421 since statute covers interstate transportation of woman without pecuniary motive where intent is to have illicit relations with her by force or otherwise); Brown v United States, 237 F.2d 281 (8m Cir. 1956) (the defendant violated the Act when he tricked woman into his car and drove her across state lines where he threatened, choked, struck and raped her, and then drove her back to the bus depot where he had picked her up). As we have previously pointed out, the allegations being levied against Mr. Epstein involve no such misconduct. We have found no reported decision in the past 20 years in which an individual was prosecuted under the Mann Act for simply traveling across state lines with a woman whom he paid for sexual services — even assuming the evidence shows this to be the case here. To use the Act to prosecute Mr. Epstein, where he was neither the owner nor operator of a prostitution ring, and where there are no allegations of kidnapping, force, or violence, would be unprecedented and would stretch the statute beyond what all understand is its modern day intended purpose. 18 U.S.C. § 2422(b) — The Misconduct Alleged Does Not Fall Within the Ambit of the Statute In enacting the interne trolling statute, 18 U.S.C. § 2422(b), Congressional concerns were focused on a very specific and recent phenomenon: young people using the Internet in ever-increasing numbers, and attracting sexual predators out of the woodwork. Disturbingly, computers and the intemet made it frighteningly easy for sexual predators to enter into the homes of families, undetected by parents, and prey on these children in cyberspace. As Congress recognized, with so many children online, the intemet provided predators a new place - Case No. 08-80736-CV-MARRA P-008525 3501.182-094 Page 9 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00094223 EFTA01247996  LAW OFFICES OF GERALD H. Learocitarr, P.G Office of the United States Attorney Southern District of Florida June 25, 2007 Page 10 cyberspace - to target children for criminal acts. Congress enacted the internet trolling statute to combat the alarming increase in Internet predators, who were able to maintain their anonymity, while making unwanted sexual solicitations of vulnerable youngsters. The statutory language and reported decisions confirm the statute's important, but narrow, focus. Section 2422(b) does not establish any federal sex crimes with a minor, which remain a matter of state, not federal, concern. Instead, as the reported cases reveal, it defines a crime of communication, not of sexual contact. Indeed, what all of the cases have in common is that the defendant used the internet to communicate with a child or purported child (or a person with influence over such a child or purported child), and with the intent to arrange a sexual tryst with the child, with both the beliefthat the person was a child and withfull knowledge that sexual activity with an individual ofthat age was illegal - precisely the situation the statute was designed to reach. Mr. Epstein's case lies far outside those parameters, and far outside the language and intended reach of the statute. In Mr. Epstein's case, even if there were inappropriate sexual contact with one or more 16 or 17 year olds, there was no use of the Internet to lure young victims, and no danger presented by Internet predation. 18 U.S.C. § 2423(b) — No Travel For The Purpose of Engaging In Illicit Sexual Conduct, As Required By The Statute The linchpin of a prosecution under § 2423(b) is "travelfor the purpose ofengaging in .. . illicit sexual conduct". The evidence overwhelmingly demonstrates that no case can be made that Mr. Epstein ever traveled to Florida in order to engage in illicit sexual conduct. Elimination of the "purpose" requirement of the statute would undermine congressional intent, as recently expressed and re-affirmed in the Trafficking Act of 2002 and PROTECT Act of 2003.' Unlike subsections (a) and (b), § 2423(c), makes it unlawful to travel inforeign commerce and engage in illicit sexual conduct, without any proof of intent or purpose. It was enacted in response to the extraordinary difficulties the Department of Justice had faced in proving a defendant's intent or purpose in traveling when prosecuting foreign travel cases. Significantly, Congress did not amend § 2423(b), which continues to require purpose where the travel is interstate. Thus, Congress recognized the state's primary interest in proscribing illicit sexual conduct occurring within the state, unless one traveled to the state for that purpose. ' Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 108- 21, 117 SW. 650 (2003). See generally United States v. Clark, 43> F.3 1100 (96 Cir. 2006). Case No. 0840736-CV-MARRA P-008526 3501.182-094 Page 10 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00094224 EFTA01247997  IA. Orr all or GiestArn B. Lncotrn, P.G Office of the United States Attorney Southern District of Florida June 25, 2007 Page 11 Legislative intent, and concepts of federalism, would be undermined if interstate travel with only incidental sexual conduct were prosecuted. The nature and scope of Mr. Epstein's activities in Florida do not support the conclusion that any purported illicit sexual conduct was an "important" "purpose of the travel, a significant motivating factor", or in other words, more than merely incidental. See United States v. Horschauer, 2007 WL 979931 (1101 Cir. 2007) (unpublished). We understand from conversations with Ms. Yillafaila that she believes that Mr. Epstein was and is a resident of New York, and that all trips to other homes were trips "away from home," undertaken for a limited period and with a specific purpose. The evidence clearly does not support this view!' Mr. Epstein has owned a home in Florida since September, 1990 — longer than any other residence he has owned — when he purchased the property on El Brillo Way. He spent substantial amounts of money during the relevant period to improve and to maintain this home. In addition, his travel records demonstrate that during the relevant period Mr. Epstein both spent the majority of his weekends, and additional time in Florida. Although he left Florida for business and other projects, he consistently returned to Florida, weekend after weekend, year after year. Specifically, the flight logs establish that for the period 2003 - 2005 (through September)Y, there is no month when he did not spend at least one long weekend in Florida, including in the summer months, and that he spent well over half of all weekends in Florida.10 Upon returning to Florida, Mr. Epstein routinely visited with various family members and close friends, all of whom reside or have homes in Florida, saw his primary care physician for checkups and prescribed tests, and frequented movie theaters and comedy clubs. Notably, during the relevant period, Mr. Epstein's mother took seriously ill, was often hospitalized, and convalesced in Florida until she died in 2004. A principal reason for Mr. Epstein's travels to I Although the locus of one's residency for tax purposes is not conclusive on the question of where one in fact resides, on a number of occasions since 1995 the taxing authorities of New York State have determined that Mr. Epstein did not spend sufficient time in New York to be considered • resident of New York for tax purposes. Since 1999, Mr. Epstein has qualified under the applicable test as a domiciliary of the United States Virgin Islands and 4 therefore entitled to the tax advantages being a domiciliary there affords. Mr. Epstein stopped traveling to Florida beginning in October, 2005. 1e In 2003, there were 31 multi-day trips to Florida, 29 of which were for multi-day weekends; in 2004,37 multi-day nips to Florida, 36 of which were muhi-day weekends; and in 2005 (nine months), 20 multi-day trips to Florida, 21 of which were multi-day weekends. Case No. 0840736-CV-MARRA F-008527 3501.182-094 Page 11 of 19 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 EFTA_00094225 EFTA01247998  4.4w OrPia* or (.tL13 B. Ix:root:rut, P.G. Office of the United States Attorney Southern District of Florida June 25, 2007 Page 12 Florida during that time was to visit with and attend to his mother's needs, see to her funeral arrangements, and address matters relating to her estate. In recognition of the amount of time he spent in Florida, during the relevant period Mr. Epstein worked with several local real estate agents to purchase a larger home. For example, in 2004, as publicly reported, he attempted to acquire the Gosman Estate, a unique property that was eventually auctioned by the Bankruptcy Court. Similarly, due to the extensive amount of time he spent in Florida and his desire to have his pilots close by and available should a flight out of Florida be required, the home base for Mr. Epstein's flight operations was Florida. Routine maintenance of the aircraft, periodic FAA inspections, and interior refittings were all carried out in Florida. Indeed, the regular crew members — the pilots and engineer — all resided in Florida, as did the majority of contract crew members who were hired from time to time. Both Hyperion Air Inc. (legal owner of Mr. Epstein's Gulfstream G-BB), and JEGE, Inc. (legal owner ofMr. Epstein's Boeing 727), rent office space and a storage facility in Florida for the purpose of housing airplane records, including flight logs and wiring drawings, and providing the crew with a local office. The amount of time Mr. Epstein spent at his home in Florida, and the extensive list of Florida-based activities clearly undermines the contention that Mr. Epstein is a New York resident and defeats the notion that his purpose in traveling to Florida was to engage in illicit sexual conduct. On the contrary, Mr. Epstein returned to Florida to engage in the routine activities of daily living. We do not believe that the government could overcome the many substantial hurdles to be encountered when attempting to prove that a specific trip to Florida was for the required statutory "purpose" of engaging in specific "illicit sexual conduct"." Improprieties Surrounding The Search Warrant We previously referred to the many irregularities, misrepresentations and omissions which tainted the state's case. These irregularities would have a significant impact on any federal prosecution. For example, early on in any prosecution, the legality of the initial search There are, of a number of other ways in which Mr. Epstein's conduct did not violate 4 2423(b). For instance, we anticipate that it will be difficult to show wider the fens that at the time he initiated his travel to Florida, he knew the woman from whom he would later receive a massage, if at all, WAS at the time under the age of 18, or that he would engage in "illicit sexual conduct as defined by that statute. Similarly, and again assuming that it could