EFTA00192754.pdf

547/4 SrfraSsiissioN To met" EFTA00192754 06/02/08 ICON 14:58 FAX 305 530 6440 EXECUTIVE OFFICE Q001 U.S. Department of Justice United States Attorney Southern District ofFlorida UNITED STATES ATTORNEY'S OFFICE SOUTHERN DISTRICT OF FLORIDA 99 NE 474 STREET MIAMI, FLORIDA 33132-2111 Jeffrey H. Sloman First Assistant U.S. Attorney 305 961 9299 Cyndee Campos Staff Assistant 305 961 9461 305 530-6444 fax FACSIMILE TRANSMISSION COVER SHEET DATE: June 2, 2008 TO: Marie Villafana FAX NUMBER: (561) 820 8777 SUBJECT: Epstein NUMBER OF PAGES, INCLUDING THIS PAG E: 9 Message/Comments: This facsimile contains PRIVILEGED AND CONFIDENT IAL INFORMATION intended only for the use of Addressee(s) named above. If you are not the intended recipie the nt of this facsimile, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or coping of this facsim is strictly prohibited. If you have received this facsimile error, ile in please immediately notify us by telephone and return the original facsimile to us at the above address via the U.S. Postal Service. Thank you. EFTA00192755  06/02/08 .. M0N 14 . 58 FAX 305 530 8440 'run tucOLuteaY EXECUTIVE OFFICE QD002 48/27/2(ina 12 19 Sf.5‘ VOJ/ODAG r&oalli ? IS:eat/will W. Starr jot: I). Windt-% kirk-land 141.11 ANina Cc Hint I.LP j:. %malt iirsh•nia Ninyi 9:1e17 .58M .inc:a. A.:I. I late. 1 4c.serHir.: ik.i.lnacani. :N.: i 171. ..4:4:::444.1181, trl: MIL irklinIJA ur:. F44 4‘ rivtristdrYfrJa..II:Igai May 27, 2008 fn rACS1M(.11:: <2021 514-0467 CONNOKA177.4/. I lottomhle Mark Filip ( /like blthe l)epiity adarnincy General I initial States Department °rho:lice Q50 Pennsylvania Avenue, N.V.'. WaShi!Wien. D.C. 7.0531) Dear Judge This ytrer briefly supplements our prior submission ut you dated May IQ. 2001. In that communication. we urgently requested that your orrice • Itita an independent reviv%. of the PrnPosed federal pro...win:on of our Client, Jell-icy The dual reasons nil' vu!' request that you review tins mailer are (1) the bedrock need ror integrity in the eitrinecment o;' federal criminal laws. and fill the prOrmind oucsti onS raised by Mc unpreecilemed e•aensiiiii (*WIC:rill ;:4W by the lathed Slates Attorney's Office in hlirnti Jibe "liSACY1 to a pan/mi.-1,m public ligure who lots cliKe to thriller President Climuo. The need lix review is nnw all the mon: exige nt. Ost Monday. May 19. 200K. Assistant Azirrey Rloinan of the (iSAC) responded rn an email fruen Ja; it,. informing Attorney Alex Aecixtu that we would he seekin g your Offices review. Mr. Straw:ifs letter. which intprisvtl a ti,:adline of June 2. 2U0S toe mply with all (Itu lerme of the ‘ur; on Non- Prosecution Agreement (the - Agreement. ). plus new unilateral modifieations, on pain of heing deemed in brutieb af that Agreement. appea rs to have been deliberately designed it: depriv us an adequate a)pontinity ti• seek your e or Office's review in this enruter. The I.ISAn's desire to fl recluse a comp lete revien is undersiand,tble. given ibm the Child I:solidi:Moo und Obseonity Sectio n ("CliON- 1has already determined dim our sultstanube arguments regarding why a federal prose cution of Mr. h.pinein is not nu:timed "compelling.- I Inwever. in euniradielion In were independent. de unto review. CMS; made Mr. Sloman's assertion that CliQS had provided an clear that it did nol. du sit. indeed. C1'.O5 declin uNteiiiille seven! of the more ed In troubling inspects of the investigation Or Mr. U.pslem. delibenne balk in the New Fork Times the of numerous highly criniidemial aspec invesiigatitm and Tit:god:diem: between the ts O1. Ilis panie$ as well us die I Ceelll aril'. ni coil Ian Snits !lied apinil Mr. Fpstein by Mr. Slumn ot's forme: law partner. The and arbitrarily imposed deadline set by the I/SAt resport for (he nurmill ruttedeeee i llg ;mid / win; done without any scheduling or stale judicial nmitcrs. It retildr Mr. 141:acin's counsel persuade es that the Slide All4tney of Palm Death to issue u crimin al inliimiation EFTA00192756 semit, MON. %tue s% 530 6440 EXECUTIVE OFFICE UW/UVAU 2003 4g004/013 Vine:1200R 1? te Ho, lej tg IIntime& Mark Ma> 27. ;MM rage ta, a a.:harge Mat the State A itorney hus not. despite a tv.O year ito•estLatigio. tlavttisitIZU in hl; appropriait.% :th. I ipstein's counNel must also successailly expedite a pied or _,vil:!• to dus eltarve on :a date prior In inly S, 2005. which k chue presently set hy tic Nunc court indg.. i:urther. the tomccessary deadline is even more problematit heeause Mr. hpsteiti"s &on tr«, feCORCile the suite charge tuul sentence with the terms or the Aereemenc requitea an noueux' und unpreca:clonted threatened application ni retlend lav. nus. n places Mr lipstein in the Intdily apaisai:d position or flavine in demand that the Statu aCquiesix to a mon: se‘eic punishment titan it.had alresuly determinecl WaS appropriait. We have attempted to resolve these and other iNstic.s amatie the t:S:\( l and CF.OS, including raisin; our coteverns about the USAt.l's inappropriate etanduct with respect to (lais matte. But thoNe avenues have now heen shut d . Mr. Sloman's lette• t'atriums to proldhit any limiter comma betwetn Mr. Epstein:1e dentnsc tealt and t:.\. Attorney Aeosta. anal ansieati rcquires us to communia:lite with the USA() only though Mr. Slornan's subtirdinatea. White it pains us ta say this, this mistsided proseention nom the mise: Id vus the appearantc Mat it niny have been I ralitically inotivanel Mr. lipstein as a hienly sut:ces:am, selj• made businessman and philanthropist %sahib entered the publie arena t. loue of hic dom: persenal assecieliun with fumier President Bill elintun. tionln ua u::r minds thai the 1!S.\() nevet %muid have contemplated a pmseuution in this Mr. Epstein wet,e jus; another "John.- U.S. AitorneY .koeau previnusly has st»wd thai lu; is -sympailunic- to our lederalisin• rektied contents, but lac has takcn the position thai his authoriiy is limited cnroreement ',n'ides set Rink in Washington. U.C. As expressed in our prior communic ation ro >ion. we hellave that a complets; and independeni :mortaisai and restitution or Ibis case motu appropriatel) would he undertaken by your Orliee btginning with the rottassion or the arbitntry. unrair. and Ilnpnnetionicei Jcadtinc thot Mr. S'ornait clentnnds to have impcsed in this case. At 0:6: mcv leaSt. %“: WOUld tif dit:arbitra! thnelinc hnposed on our client by the t :SAO in enfer allow titnit Ior gour Office Io tai:eider sein rennes: lhal vat: undurrake u retieu omhis env. Thauk yuu for ycur time and attention. zspect rully etibmiited. ' jvilaV ie-Lani te Kenneth W. Siam f .10/5 _. I) Whitley K irkland &I d1k I.11' Bird EFTA00192757 06/02/08 MON 14:59 FAX 305 530 8440 EXECUTIVE OFFICE la 004 os/zer/svus et): oft FAX 2uetifal239 DOJ/00AC @op:S/013 03 I II at; NON l3:21 VAS 1 213 680 h500 KTRKLAND&ELLIS I.I.I KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street SP? euiti*e:c. Los Angeles, California 90017 Phone. (213) 680-8400 Fax: (213) 680-8500 Please notify us immediately If any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL • BE ATTORNEY -CLIENT PRIVILEGE MAY D. MAY CONSTITUTE INSIDE INFORMAT IS INTENDED ONLY FOR THE USE ION. AND OF THE ADDR DISCLOSURE OR COPYING IS STRICTLY PROH ESSEE UNAUTHORIZED USE. IBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMM UNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (213) 680-8400. To: Company: Fax #: Direct #: Honorable Mark Filip Office of the Deputy Attorney General United States Department offusticc (202) 514-0467 (202) 514-2101 From: Date: Pagersinetovel Fax #: Direct it: Kenneth W. Starr May 19, 2008 9 (2/3) 680.8500 (213) 680-8440 Message' EFTA00192758 08/02/08 MON 14 FAX 305 530 6440 EXECUTIVE OFFICE 0(15 golativo t8& ZUVIII3I.Z39 no.r/OuAu Winne/0u OILIO:ON MON IA:22 IPAX I 213 880 8500 K I RKI.Atilukiiii.15 1.1.1* MI MIX Kenneth W. Starr Kirkland & Elkis LLP Joe D. Whitley 777 South Riney)! Street Alston & Bird LI.P Los Angeles; C.A 90017-5800 The Atlantic Building Phone: 213-6am-844o 950 F Si reet,KW Fax: 31348o-830o waslaington, DC souo4-1404 1:starrdlirldand.eom Ph: 202-7.56-3189 Fag: 202.654.4889 joc.whitleytitiaistencom May 19.2008 V1A FACSIMILE (202) 514.4467 CONFIDENTIAL Honorable Mark Filip office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Judge Fillip: In his confirmation hearings last WI, Judge Mukascy traditions of the Department of Justice in assuring admirably lifted up the finest the United States Senate, and the American people, of his solemn intent to ensure fairness and integrity in the administration of justice. Your own confirmation hearings echoed that bedrock deter mination to assure that the Department conduct itself with honor and integrity, especially in the enforcement of federal criminal law. We come to you in that spirit and respectfully ask for a review of the federal involvement in a quintessentially state matter involving our client, Jeffre y Epstein. While we are well aware of the rare instances in which a review of this sort is justified, we are confident that the circumstances at issue warrant such tut examinatio n. Based on our collective experiences, as well as those of other former senior Justice Department officials whose advice we have sought, we have never before seen a case more appro priate for oversight and review. Thus, while neither of us has previously made such a request. we do so now in the recognition that both the Department's reputation. as well as the due proce ss rights of our client, arc at issue. Recently, the Criminal Division concluded a very request of U.S. Attorney Alex Acosta. Critically, limited review of this matter at the however, this review deliberately excluded many important aspects of this case. Just this past Friday, on May 16, 2008, we received a letter from the head of CEOS informing us that CEOS had conducted a review of this case. By its own admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed limitation was CEOS's abstention from addressing our "allegations of professional misconduct by federal prosccutors".—even though such misconduct was, as we contend it is, inextricably intertwined with the credibility of the accusations being made against Mr. Epstein by the United States Attorney's Office in Miami ("USAO"). Moreover, CEOS did not assess the terms of the Deferred Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors' inappropriate effbrrs to implement those terms. We detail this point below. EFTA00192759  08/02/08 tom _1;5 iati FAX 305 6440 EXECUTIVE OFFICE DUJ/QUAG Qhoos 4Doonots i bA.I9.po MON 13:22 FAX 1 213 GIO 8500 I atil.A6oart s toun3 Honorable Mark Pilip May 19, 2008 Page 2 fly way of background. we were informed by Mr. Acost would be conducting a review to determine whether federa a chat, at his request, CEOS l prosecution was both appropriate and, in his words. That is not what occurred. we had raised "many compelling arguments" again instead, CEOS has now acknowledged that st the USAO's suggested "novel application" of federal law in this mutter. Even so. CEOS concluded. in minimalist fashion. that "we do not see anything that says to us categorically that a federa l mite should not be brought" and that the G.S. Amine) "would not be abusing his prosecutor ial discretion should 1w authorize federal prosecution of Mr. Epstein!' thus delegating back to Mr. Acosta the decision of whether federal pmsecution was warranted (emphasis added). Rather than assessing whether prosecution would he appropriate, CEOS. using a low.baseline for its evalu ation, determined only that "it would not be impossible to prove . . ." certain allegations made again st Mr. Epstein. The CEOS review failed to address the significant problems involving the appearance of impermissible selectivity that would necessarily result from a federal prose cution of Mr. Epstein. We respect CEOS's conclusion that its authority to review precluded by CrinUnal Division practice. We hardier respec "misconduct" issues was t CROS's view that it understood its mission as significantly limited. Specifically, the conte mplated objective was to determine whether the USAO would benbusing its discretion by bringing a federal prosecution rather than making its own de novo recommendations on the appropriate reach of federal law. However. we respectfully submit that a full review of all the facts is urgently needed at senior levels of the Justice Department. In an effort to inform you of the nature of the federal investigation against Mr. Epstein, we suntmarize the facts and circumstance s of this matter below. The two bast-level concerns we hold are that (1.) federal prosecution of this matter is not warranted based on the purely-local conduct and the unprecedented application of federal statutes to facts such as these and (2) the action s of federal authorities are both highly questionable and give rise to an appearance of substa ntial impropriety. The issues that we have raised, but which have not yet been addressed or resolved by the Department, are more than isolated allegations of professional mistakes or misco nduct. These issues, instead, affect the appearance and administration of criminal justic e with profound consequences beyond the resolution in the matter at hand. In a precedent-shattering investigation of Jeffre y Epstein that raises important policy questions—and serious issues as to the fair and honorable enforcement of federal law—the lISAO in Miami is considering extending federal law reason. Federal prosecutors stretched the under beyond the bounds of precedent and lying facts in ways that raise fundamental questions of basic professionalism. Perhaps most troubl ing, the USAO in Miami, as a condition of deferring prosecution, required a comm ingling of substantive federal criminal law with a proposed civil remedy engineered in a way that appea rs intended to profit particular lawyers in EFTA00192760  06/02/08 MON 1500 FAX 305 630 8440 EXECUTIVE OFFICE 007 05/28/2008 09:05 FAX 2026161239 DOJ/ODAG 0005/013 na ta:os NW( 13:23 FAX I 213 080 8500 Kilthl.AND&Cf.1.1S 1.1.I' GO 004 . , Honorable Mark Filip May :9,2008 Page 3 private practice in South Florida with personal relationship s to some of the prosecutors involved. Federal prosecutors then leaked highly sensitive inform ation about the case to a New York Times reporter.' The immediate result of this confluence of extraordinary circumstances is an onslaught of civil lawsuits, all save one brought by the First in Assis tant's former boutique law firm The facts in this case all revolve around the classi c state crime of solicitation of prostitution? The State Attorney's Office in Palm Beach County had conducted a diligent investigation, convened a Grand Jury that return ed an indictment, and made a final determination about how to proceed. That is where, in our federal republic, this matter should rest. Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason the State has not resolved this matter is that the federa l prosecutors in Miami have continued to insist that we, Mr. Epstein's counsel, approach and demand from the State Attorney's Office a harsher charge and a more severe punishment than that Office believes are appropriate under the circumstances. Yet despite the USAO's refusal to allow the State to resolve this metier on the terms the Stare has determined are appropriate, the USA() has not made any attempt to coordinate its efforts with the State. in fact, the USAO mandated that any federal agreement would be conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike that imposed on other defendants within the jurisdiction conduct. of the State Attorney for similar From the inception of the USAO's involvement in this case, which at the end of the day is a case about solicitation of prostitution within the confines of Palm Beach County, Florida, we have asked ourselves why the Department ofJus tice is involved. Regrettably, we are unable to suggest any appropriate basis for the Depa rtment's involvement. Mr. Epstein has no criminal history whatsoever. Also, Mr. Epstein has never been the subject of general media interest until a few years ago. atter it was widely perceived by the public that he was a close friend of former President Bill Clinton. The conduct at issue is simply not within outside the heartland of the three federa the purview of federal jurisdiction and lies l statutes that have been identified by prosecutors-1S U.S.C. §§ 159 l . 2422(b), and 2423(b). One of the other members of Mr. Epstein.3 defens e team, Jay Leocowitz, has personally reviewed contemporaneous notes. the reporter's Although some of the women alleged to be involved ware 1E and 17 years of age, several of openly admitted to lying to Mr. Epstein these wrimen ghoul their age in their recent sworn statements. EFTA00192761  06/02/08 MON 15:01 FAX 306 530 8440 EXECUTIVE OFFICE Woolf 0s/26/2008 00:0A FAX 202018123s DOVODAG envon K I RICI-AND&EI.I. I S 4:1°05 03 4n . nit, NON 13:23 rAs 1 213 SR° &SOO Honorable Mark Filip May 19, 2003 Page 4 These statures arc intended to target critnes of a truly national and international scope. Specifically, § 1591 was enacted to combat human trafficking, § 2422 is aimed at sexual predation of minors through the Internet. and § 2423 deals with sex tourism. The nature of these crimes results in multi-jurisdictional problems that state and local authorities cannot effectively confront on their own. However, Mr. Epstein's conduct was purely local in nature and, thus. does not implicate federal involvement, After researching every reported ease brought under le §§ 1591, 2422(b), and 2423(b), we found that not a single case involves facts or a scenario similar to the situation at hand. Our review of each precedent reflects that there have been no reported prosecutions under § 1591 of a 'John' whose conduct with a minor lacked force. coercion. or fraud and who was not profiting from commercial sexual trafficking. There have likewise been no cases under § 2422(6)—a crime of communication—where there was no use of the Internet, and where the content of phone communications did not contain way inducing or enticing of a minor to have illegal sexual activity as expressly required by the language of the statute. Furthermore, the Government's contention that "routine and habit" can fill the factual and legal void created by the lack of evidence that such a communication ever occurred sets this case apart from every reported case brought under § 2422(b). Lastly, there arc no reported cases of violations of § 2123(b) of a person whose dominant purpose in traveling was merely to go to his OWI1 hortle.3 Although these matters were within the scope of the CEOS review, rather than considering whether federal prosecution is appropriate, CEOS only determined that U.S. Attornee Acosta "would not be abusing his prosecutorial discretion should he authorize federal prosecution" its this case. The "abuse of discretion" standard constitutes an :extremely low bar of evaluation and while it may be appropriate when the consideration of issues are exclusively factual in nature, this standard fails to address concerns particular to this situation, namely the "novel application" of federal statutes. The "abuse of discretion" standard in such pure legal matters of statutory application risks causing a lack of uniformity. The same federal statutes would be stretched beyond their bounds in Miami have been limited to their heartland that in each of . the other federal districts. Also, because this case implicates broader issues of the administration of equal justice, federal prosecution in this matter risks the appearance of selectivity in stretching of federal law to fit these facts. its Federal prosecution of a man who engaged in consensual conduct in his home that amounted to, at most, the solicitation of prostitution, is unprecedented. Since prostitution is fundamentally a state concern. free United Stater v. Evans, 476 F.36 3176, 1 (I lot Cir. 2007) (federal law "does not criminalize all acts of prostitution (a vice traditionally governed by state rogulationy)). and there is no evidence that Palm Beach County authorities and Florid* prosecutors cannot effectively prosecuic and punish the conduct, there is no reason why this matter should be extracted from die hands ofstate prosecutors in Florida. EFTA00192762  06/02/08 1501 FAX 305 530 6440 EXECUTIVE OFFICE ol/26/20os NON oa:os FAX 2028161239 DOJ/ODAC [2009 tJ 00/013 Mc 'ICV 13:24 FAX I 213 630 950D KIHNIANO&ELLIS LLP a4! uur Honorable Mark Filip May 19.2008 Page 5 . In fact, recent testimony of several alleg prosecutors during the negotiations of ed "victims' contradicts claims made by a federal re . resentations of ke Governm dete rred prosecutiona a reement. The con ent witnesses (such as Tatum. sistent . and in) communication, totelephonic or confirm the following critical points: First, Brittany Beak, Saige there was no otherwise, that meets the requirements of § Ms.IIIIII confirmed that Mr. Eps 2422(b). For instance. tein never emailed, text-messaged, or interstate commerce whatsoever. befo used any facility of re or after her one (and. only) visit Tr. (deposition) at 30. Second, the wom to his home. . about their age in order to gain en who test ified adm itted that they lied admittan to r. •pst ein underage friends to Mr. Epstein test ce into his home. Indeed, the women who brought their ified that they would counsel the ages as well. Ms. stated the following: "I would tell my ir friends to lie about their approached Inc. Mialli r.e you tell him girlfriends just like you're IFL Well, these girls that I brou they were 18 or 19 or 20. And the ght, I know tat girls not, 1 would say make sure that you that I didn't 'MOW and I don't know if they were lying or tell him you* 18." le Tr. at 22. Third, there was no routine or habit of improper commun ication expressing an intent to transfor ille al sexual act. In fact, there m a massage into an was often no sexual activity at all dur testified that "[s]ometimes Mr. ing the massage. Ms. just wanted a back massage." Epstein] just wanted his feet massaged. Som etimes lit Tr. at 19. IIIII also suited that Mr. Epstein - never touched [her) physically' and that all she di was - massage( ) his bac thighs and that was it." Egl k. his chest and his violence, drugs, or even alcohol i Tr. at 12-13. Finally, there was no forc e, coercion, fraud, present in connection with Mr. Epstein's women, Ms. Beale stated that "[M enc ounters with these r. Epstein) never tried to force me to A et 12. These accounts are far du anything." Tr. from the usual testimony in sex slav tourism cases previously brought. ery, Internet stings an sex The women in actuality were not you the age of consent in most of the nger than 16, which is 50 states, and the sex activity was consisted of solo self-pleasuring irregular and in large part. . The recent crop of civil suits brought not discuss any sexually-related against Mr. Epstein confirm that the plaintiffs did activities with anyone prior to arriving residence. This reinforces our con at Mr. Epstein's tention that no telephonic or Internet enticement or coercion of a min persuasion, inducement, or, or Ilcrman, the former law partner of of any other individual, occurred. In addition, Mr. Jeffrey one of the federal prosecutors involved in attorney for most of the civil this matter and the complainants (as described in detail belo Beach Post as saying that "it doe w), was quoted in the Palm sn't matter" that his clients lied about Epstein that they were I8 or l9. • their ages and told Mr. Not only is a federal pros conduct by prosecutors and ecution of this matter unwarranted, but the unorthodox terms of the deferred pros the irregularity of beyond any reasonable interpre ecution agreement arc tation of the scope of a.prosecutor's resp improprieties includes, but.is not limi onsibilities. The list of ted to, the following facts: EFTA00192763  06/02/08 NON 15:02 FAX 305 530 6440 06/28/2008 00:10 FAX 2026361230 EXECUTIVE OFFICE n0.1/0DAT: a 010 Q011/013 ir,,J Os, HON IA: r5 FM I _1i an 8500 KIRKLANDLELITS 1.12 iduoi Honorable Mark Pilip May 19, 2008 page 6 • Federal prosecutors made the unprecedented demand that Mr. Epstein pay a minimum of $150,000 per person to an unnamed list of women they referred to as minors and whom they insisted required representation by a guardian ad 'item. Mr. Epstein's counsel later established that all but one of these indivi duals were actually adults, not minors. Even then, though demanding paym ent to the women, the USA() eventually asserted that it could not vouch for the veracity of any of the claims that these women might make. • Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fees of a civil attorney chosen by the prosecutors to repres ent these alleged "victims" should they choose to bring any civil litigation against him. They also proposed sending a notice to the alleged "victims," stating, in an underlined sentence, that should they choose their own attorney, Mr. Epstein would not be required to pay their fees, The prosecutors fiuther demanded that Mr. Epstein Waive his right to challenge any of the allegations made by these "victi ms." • The Assistant U.S. Attorney involved in this matte r recommended for the civil attorney, a highly lucrative position, an individual that we later discovered was closely and personally connected to the Assistant U.S. Attor ney's own boyfriend. • Federal prosecutors represented to Mr. Epstein's couns