EFTA00213048.pdf

Exhibit 1 EFTA00213048  U.S. Department of Justice United States Attorney Southern District of Florida 500 East Broward Boulevard. 7th Floor Fort Lauderdale, FL 33394 (954) 660-5946 Facsimile. (954) 356-7230 June 15, 2009 DELIVERY BY ELECTRONIC MAIL Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Roy Black, Esq. Black Srebnick Kornspan & Stumpf P.A. 201 S. Biscayne Blvd, Suite 1300 Miami, FL 33131 Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, P.A. One Clearlake Centre, Suite 1400 250 Australian Ave S. West Palm Beach, FL 33401-5015 Re' Jeffrey Epstein Dear Messrs. Lefkowitz, Goldberger, and Black: I write to confirm my conversation with Mr. Lefkowitz of June 12, 2009. As I mentioned during that conversation and during the hearing with Judge Marra, the U.S. Attorney's Office is not a party to any of the civil suits against Mr. Epstein pending in the U.S. District Court or any state court and takes no position regarding those lawsuits. The U.S. Attorney's Office is not advising or requiring that Mr. Epstein take any action regarding those lawsuits, rather, Mr. Epstein should proceed as he sees fit. The U.S. Attorney's Office will continue to exercise its independent judgment and proceed in accordance with its rights under the Non-Prosecution Agreement. My statements during our conversation and during the court proceeding contained no promises and did not alter or modify the Non-Prosecution EFTA00213049 JAY P. LEFKOWITZ, ESQ. ROY BLACK, ESQ. JACK GOLDBERGER, ESQ. JUNE 15,2009 PAGE 2 OF 4 Agreement. I would like to address what appears to be a continuing pattern in this matter. There have been several instances of breaches by Mr. Epstein of the letter and spirit of the Non- Prosecution Agreement, including the implied duty of good faith and fair dealing. As soon as Notice is provided by the United States, we are told that Mr. Epstein "was relying on his lawyers" and had not intended to willfully breach the Agreement. Mr. Epstein, through those same lawyers, then undertakes a perfunctory "cure" and continues to enjoy the benefit of his bargain until he decides to breach yet again. Notifications of breach have been provided on several occasions in the past. From the start, and as mentioned in extensive correspondence in October and November 2007, Mr. Epstein did not use his "best efforts" to enter his guilty plea and be sentenced within the time frame set by the Agreement. After several appeals were made throughout the Department of Justice resulting in a nine-month delay, the U.S. Attorney's Office had to remind Mr. Epstein of his obligation to provide a copy of the plea agreement with the State Attorney's Office prior to his entering into that agreement. Despite numerous requests, the proposed state plea agreement and notice of the state change of plea were not provided until I sent our first Notice of Breach letter at 3:15 p.m. on the last business day before the plea. Thereafter, I received a copy of the proposed state agreement, which contained language that directly contradicted the Non-Prosecution Agreement. A second Notice of Breach had to be prepared and sent to bring the state plea agreement into compliance. After Mr. Epstein entered his guilty plea and was sentenced, another set of problems arose. First, Mr. Epstein's counsel obstructed our ability to abide by our obligations to notify the victims of the outcome of the federal investigation. Second, Mr. Epstein refused to fulfill promptly Mr. Epstein's obligation to secure the services of an attorney representative for the victims. Third, Messrs. Goldberger and Tein approved the dissemination of a victim notification letter that Messrs. Leflcowitz and Epstein contended contained incorrect information. Fourth, Mr. Epstein's counsel informed the Court that a motion to quash subpoenas was still pending, despite the Non-Prosecution Agreement's requirement that Mr. Epstein withdraw that motion. Extensive correspondence and telephone conferences were required to resolve each of these situations. For example, on July 17, 2008, the United States had to issue a third Notice of Breach, instructing Mr. Epstein's counsel: If, in fact, your position is that the federal criminal action is still pending, then EFTA00213050 JAY P. LEFKOWITZ,ESQ. ROY BLACK,ESQ. JACK GOLDBERGER,ESQ. JUNE 15,2009 PAGE 3 OF 4 the Office proposes that we seek the prompt resolution of the Motion to Quash, so that the computer equipment can be analyzed and the investigation can continue, including the identification of additional victims. If, instead, Mr. Epstein intends to continue performing his obligations under the Non-Prosecution Agreement, then the investigation will remain closed, and no federal criminal action will be pending. Please advise whether you would like to proceed on the Motion to Quash or, if not, please correct the representations to the Court regarding the status of the federal investigation. In November, more issues arose when we learned—not from Mr. Epstein or his attorneys—that Mr. Epstein was spending more than twelve hours each day outside the Palm Beach County Stockade. Mr. Epstein's release prior to the Office's notification of that release, resulted in accusations from victims that the Office had violated its statutory victim notification obligations. Our investigation of Mr. Epstein's application for the work release program demonstrated that Mr. Epstein made several false statements in his application and made threatening statements to the Palm Beach Sheriff's Office about legal repercussions if he was not admitted to the program. I also discovered—again, not from Mr. Epstein or his attorneys—that Judge McSorley had modified Mr. Epstein's judgment motc pro tune to an "Order of Community Control I," which directly contradicted the terms of the Non- Prosecution Agreement. This required a fourth Notice of Breach and another claim that there was no "intended breach" followed by a meaningless "cure." During my conversation with Mr. Lefkowitz of June 12th regarding our fifth written Notice of Breach, and during the proceeding before Judge Marra, I heard again that Mr. Epstein had no intent to breach the Non-Prosecution Agreement but was merely relying on his attorneys. In light of the fact that Mr. Epstein is highly intelligent and experienced with the law, and is reportedly spending more than twelve hours a day at his attorney's office working on nothing but the litigation pending against him, this excuse will not be accepted. This letter is being provided to all three of you with the recommendation that you circulate it to any attorney who is acting on Mr. Epstein's behalf. Importantly, while Mr. Epstein has continued to receive the benefit of his bargain by not facing federal prosecution, our Office has not received the benefits of finality, savings of resources, or the punishment and victim restitution terms envisioned by the Non- EFTA00213051 JAY P. LEFKOWD7,ESQ. ROY BLACK,ESQ. JACK GOLDBERGER,ESQ. JUNE IS, 2009 PAGE 4 OF4 Prosecution Agreement. As I mentioned in our telephone call, I have asked Mr. Josefsberg to provide me with the correspondence that he referenced during the hearing before Judge Marra. That will be reviewed to determine if there has been yet another breach by Mr. Epstein. As I stated, and as mentioned in the Notice Letter served upon Mr. Goldberger, notice of any breaches that we discover will be provided as required by the Non-Prosecution Agreement. Our Office also will review the new pleading in the Jane Doe 101 matter that Mr. Lefkowitz mentioned, prior to deciding what, if any, remedies we will pursue for /vit. Epstein's breach. However, I note that, while the U.S. Attorney's Office is required to provide notice of any breach, there is no requirement that Mr. Epstein be allowed the opportunity to cure any breach. The pattern of behavior described above will be factored into the Office's decision on what remedies it will pursue in connection with this most recent breach and any future violations. Sincerely, Jeffrey H. Sloman Acting United States Attorney By: Assistant United tares Attorney cc: EFTA00213052 Exhibit 2 EFTA00213053 IN RE: INVESTIGATION OF JEFFREY EPSTEIN NON-PROSECUTION AGREEMENT IT APPEARING that the City of Palm Beach Police Department and the State Attorney's Office for the 15th Judicial Circuit in and for Palm Beach County (hereinafter, the "State Attorney's Office") have conducted an investigation into the conduct of Jeffrey Epstein (hereinafter "Epstein"); IT APPEARING that the State Attorney's Office has charged Epstein by indictment with solicitation of prostitution, in violation of Florida Statutes Section 796.07; IT APPEARING that the United States Attorney's Office and the Federal Bureau of Investigation have conducted their own investigation into Epstein's background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around September 2007, including: (1) knowingly and willfully conspiring with others known and unknown to commit an offense against the United States, that is, to use a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 371; (2) knowingly and willfully conspiring with others known and unknown to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females, in violation of Title 18, United States Code, Section 2423(b); all in violation of Title 18, United States Code, Section 2423(e); (3) using a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution; in violation of Title 18, United States Code, Sections 2422(b) and 2; (4) traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(O, with minor females; in violation Page 1 of 7 EFTA00213054  of Title 18, United States Code, Section 2423(b); and (5) knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act as defined in 18 U.S.C. § 1591(c)(1); in violation of Title 18, United States Code, Sections 1591(a)(1) and 2; and IT APPEARING that Epstein seeks to resolve globally his state and federal criminal liability and Epstein understands and acknowledges that, in exchange for the benefits provided by this agreement, he agrees to comply with its terms, including undertaking certain actions with the State Attorney's Office; IT APPEARING, after an investigation of the offenses and Epstein's background by both State and Federal law enforcement agencies, and after due consultation with the State Attorneys Office, that the interests of the United States, the State of Florida, and the Defendant will be served by the following procedure; THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below. If the United States Attorney should determine, based on reliable evidence, that, during the period of the Agreement, Epstein willfully violated any of the conditions of this Agreement, then the United States Attorney may, within ninety (90) days following the expiration of the term of home confinement discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has violated, and shall initiate its prosecution on any offense within sixty (60) days' of giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph °hall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulfilling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. Page 2 of 7 EFTA00213055 Terms of the Agreement I. Epstein shall plead guilty (not nob contendere) to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf-009495AXX3IMB) charging one (1) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In addition, Epstein shall plead guilty to an Information filed by the State Attorney's Office charging Epstein with an offense that requires hint to register as a sex offender, that is, the solicitation of minors to engage inprostitution, in violation of Florida Statutes Section 796.03; 2. Epstein shall make a binding recommendation that the Court impose a thirty (30) month sentence to be divided as follows: (a) Epstein shall be sentenced to consecutive terms of twelve (12) months and six (6) months in county jail for all charges, without any opportunity for withholding adjudication or sentencing, and without probation or community control in lieu of imprisonment, and (b) Epstein shall be sentenced to a term of twelve (12) months of community control consecutive to his two terms in county jail as described in Term 2(a), supra. 3. This agreement is contingent upon a Judge of the 15th Judicial Circuit accepting and executing the sentence agreed upon between the State Attorney's Office and Epstein, the details of which are set forth in this agreement. 4. The terms contained in paragraphs 1 and 2, supra, do not foreclose Epstein and the State Attorney's Office from agreeing to recommend any additional charge(s) or any additional term(s) of probation and/or incarceration. 5. Epstein shall waive all challenges to the Information filed by the State Attorney's Office and shall waive the right to appeal his conviction and sentence, except a sentence that exceeds what is set forth in paragraph (2), supra. 6. Epstein shall provide to the U.S. Attorney's Office copies of all Page 3 of 7 EFTA00213056  proposed agreements with the State Attorney's Office prior to entering into those agreements. 7. The United States shall provide Epstein's attorneys with a list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. 8. If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person andtor the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255, as set forth in paragraph (8), supra, neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein are to be construed as admissions or evidence of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the list provided by the United States. 11. Epstein shall use his best efforts to enter his guilty plea and be Page 4 of 7 EFTA00213057  sentenced not later than October 26, 2007. The United States has no objection to Epstein self-reporting to begin serving his sentence not later than January 4, 2008. 12. Epstein agrees that he will not be afforded any benefits with respect to gain time, other than the rights, opportunities, and benefits as any other inmate, including but not limited to, eligibility for gain time credit based on standard rules and regulations that apply in the State of Florida. At the United States' request, Epstein agrees to provide an accounting of the gain time he earned during his period of incarceration. 13. The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure. Epstein understands that the United States Attorney has no authority to require the State Attorney's Office to abide by any terms of this agreement. Epstein understands that it is his obligation to undertake discussions with the State Attorney's Office and to use his best efforts to ensure compliance with these procedures, which compliance will be necessary to satisfy the United States' interest. Epstein also understands that it is his obligation to use his best efforts to convince the Judge of the 15th Judicial Circuit to accept Epstein's binding recommendation regarding the sentence to be imposed, and understands that the failure to do so will be a breach of the agreement. In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal ch a • tan tg ors of E e' including but not limited or Further, upon execution of this agreement and a plea agreement with the State Attorney's Office, the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury subpoenas will be held in abeyance unless and until the defendant violates any term of this agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to quash certain. grand jury subpoenas. Both parties agree to maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued, and including certain computer equipment, inviolate until all of the terms of this agreement have been satisfied. Upon the successful completion of the terms of this agreement, all outstanding grand jury subpoenas shall be deemed withdrawn. Page 5 of 7 EFTA00213058  By signing this agreement, Epstein asserts and certifies that each of these terms is material to this agreement and is supported by independent consideration and that a breach of any one of these conditions allows the United States to elect to terminate the agreement and to investigate and prosecute Epstein and any other individual or entity for any and all federal offenses. By signing this agreement, Epstein asserts and certifies that he is aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Epstein further is aware that Rule 48(b) of the Federal Rules of Criminal Procedure provides that the Court may dismiss an indictment, information, or complaint for unnecessary delay in presenting a charge to the Grand Jury, filing an information, or in bringing a defendant to trial. Epstein herebyrequests that the United States Attorney for the Southern District ofFlorida defer such prosecution. Epstein agrees and consents that any delay from the date of this Agreement to the date of initiation of prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at his own request, and he hereby waives any defense to such prosecution on the ground that such delay operated to deny him rights under Rule 48(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of months equal to the period between the signing of this agreement and the breach of this agreement as to those offenses that were the subject of the grand jury's investigation. Epstein further asserts and certifies that he understands that the Fifth Amendment and Rule 7(a) of the Federal Rules of Criminal Procedure provide that all felonies must be charged in an indictment presented to a grand jury. Epstein hereby agrees and consents that, if a prosecution against him is instituted for any offense that was the subject ofthe grand jury's investigation, it may be by way of an Information signed and filed by the United States Attorney, and hereby waives his right to be indicted by a grand jury as to any such offense. /I/ /// /// Page 6 of 7 EFTA00213059  By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non- Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: Dated: va,_ ASSIST RNEY Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 EFTA00213060  By signing this agreement Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non- Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: ASSISTANT U.S. ATTORNEY Dated: Dated: /Lg. 07 Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 EFTA00213061  By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non- Prosecution Agreement and agrees to comply with than. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Date& BY: ASSISTANT U.S. ATTORNEY Dated: JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated:q—A Z, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 EFTA00213062 Exhibit 3 EFTA00213063  KIRKLAND & ELLIS LLP AND AITILIATLD PAPINININDS CItcroup Center 153 East 63rd Street Jay P. LottkovAtz. P.C. New York. New York 10022-4811 Facsimito: To y: AXIM www.kkidand.com November 29, 2007 VIA E-MAIL R. Alexander Acosta United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Jeffley Epstein Dear Alex: I am responding to the draft letter Marie sent to me last night, which purports to be a letter that you would sign and send to each of the individuals whom you have not even identified to us, and'about whom the government has made clear it "takes no position" as to the validity of potential claims that these individuals may have against Mr. Epstein. I cannot reconcile your commitment to "take no position" regarding these potential claims with your intention to sign such a letter, which will surely find its way almost immediately into the press, refers to these individuals as "minor victims," refers to Mr. Epstein as a "sexual predator," misstates the terms of our federal non-prosecution agreement (the "Agreement"), and invites federal witnesses to attend Mr. Epstein's state sentencing in order to give victim impact statements, although they are in most respects not state victims at all. More fundamentally, we don't understand the basis for your Office's belief that it is appropriate for any letter to be sent to these individuals at this stage — before Mr. Epstein has either entered a plea or been sentenced. We respectfully disagree with your view that you are required to notify the alleged victims pursuant to the Justice for All Act of 2004. First, 18 U.S.C. § 2255, the relevant statute under the Agreement for the settlement of civil remedies, does not have any connection to the Justice for All Act The Justice for All Act refers to restitution, and § 2255 is a civil remedy, not a restitution statute. We also believe that the draft letter could not diverge more dramatically from your statement last week that your Office would not intervene in the state process from this point forward, and that you would merely monitor it Indeed, the letter as currently drafted invites federal witnesses to become participants in a state proceeding, thus federalizing the state plea and sentencing in the same manner as would the appearance and statements of a member of your Office or the FBI. Chicago Hong Kong London Los Angeles Munich San Francisco Washington, D.C. EFTA00213064  KIRKLAND & ELLIS LLP R. Alexander Acosta November 29, 2007 Page 2 With that said, I respectfully identify below the specific objections we have with the proposed letter. First, it states that "Mr. Epstein has agreed that he will not contest jurisdiction or liability if [the alleged victims] elect to seek damages from him ..." This language implies that Mr. Epstein has agreed to concede jurisdiction and has waived liability whether or not each individual identified by the government as a "victim" of federal crimes ultimately settles her claim pursuant to the Agreement. The letter as drafted invites the witnesses to whom it is sent to believe that they can litigate their claims without Mr. Epstein being able to contest jurisdiction or liability — a construction of the Agreement that is in direct conflict with its terms. The Agreement we entered makes clear that Mr. Epstein's waiver of jurisdiction and liability is limited to those instances where the identified individual settles with him pursuant to Sections 7 through 8 of the Agreement and Addendum. As you are well aware, Mr. Epstein has no obligation or intention to concede jurisdiction or liability in any claim for damages — by an enumerated "victim" or anyone else — where that party fails to settle her claims pursuant to the terms of the Agreement. Second, there is no basis to refer to Mr. Epstein as a "sexual predator." Pursuant to the terms of the Agreement, Mr. Epstein will be required to register as a "sexual offender," not a "sexual predator." Those are very different categories under Florida law. Mr. Epstein has agreed to enter a plea of guilty to two counts of violation of Florida Statutes §§ 796.03 and 796.07. Under Florida law, those charges do not classify him as a sexual predator. See Florida Statute § 775.21(4)(a). Rather, he is only a sexual offender as defined by Florida Statute § 943.0435(1)00. To identify Mr. Epstein as a sexual predator, in this letter or elsewhere, is inaccurate and would irreparably harm him. Third, we find no basis in law that provides the identified individuals with either a right to appear at Mr. Epstein's plea and sentence, or to submit a written statement to be filed by the State Attorney. According to Florida Statutes §§ 960.001(k) and 921.143(1), the sentencing court permits only "the victim of the crime for which the defendant is being sentenced ... to [a]ppear before the sentencing court for the purpose of making a statement under oath for the record; and [s]ubmit a written statement under oath to the office of the state attorney, which statement shall be filed with the sentencing court" Florida Smut, § 960.001(k) citing § 921.143(1) (emphasis added). Here, Mr. Epstein is pleading guilty to, and being sentenced for, state offenses, not the federal offenses under which the government has recognized these identified individuals as "victims." The state charges for which Mr. Epstein will be sentenced are not coextensive with the federal investigation. Under Florida law, only those persons identified as victims of the state offenses may make a statement at the hearing or submit a written statement EFTA00213065  KIRKLAND & ELLIS LLP R. Alexander Acosta November 29, 2007 Page 3 With respect, encouraging these individuals to participate in the state sentencing will have the effect of creating a media frenzy that will surely impact the sentence Mr. Epstein receives — precisely what your Office promised to avoid. Such an intrusion into state affairs, when the identified individuals are not even victims of the crime for which Mr. Epstein is being sentenced is highly inappropriate. The federal investigation of Mr. Epstein has been concluded, and witnesses or civil claimants identified as purported victims of federal offenses have no place in the state proceeding. We also think it will likely promote spurious civil litigation against Mr. Epstein, a result that would be highly irresponsible to encourage. Fourth, we take serious issue with the assertion in the letter that the government has identified each recipient of the letter as a "minor victim." The term "minor victim" is notably absent from the Agreement. Section 7 of the Agreement states only that the government will provide a list of individuals "whom it has identified as victims, as defined in 18 U.S.C. § 2255." Indeed, you have told us that at least one identified individual is currently 24 years old, and thus would appear not to have been a minor at the time of the alleged conduct (and therefore is presumably not eligible to settle her claims under the Agreement). To confer on these women the imprimatur of a government "finding" is both incendiary and unwarranted. Fifth, your letter mischaracterizes the nature of Mr. Epstein's liability under the 18 U.S.C. § 2255 provisions of the Agreement. Your letter states that every individual who receives the letter is a victim of "certain offenses, including travel in interstate commerce to engage in prostitution with minors and the use of facilities of interstate commerce to induce minors to engage in prostitution." This construction implies that these individuals are all victims of both offenses (travel in interstate commerce to engage in prostitution with minors and the use of facilities of interstate commerce to induce minors to engage in prostitution.) Clearly that is not the case. Consequently, the language should be revised to reflect that the identified individuals may be victims of certain offenses, but not necessarily both offenses. Additionally, for the sake of fairness and candor, we believe the same language contained in your letter to Judge Davis, stating that "[t]he United States takes no position as to the validity of any such claim under this statute," should be included in any proposed letter. Sixth, your letter states that Mr. Podhurst and Mr. Josefsberg may "represent" the identified individuals. Since we have not yet had the opportunity to speak with Mr. Podhurst or Mr. Josefsberg (though we hope to do so this week), we do not know that they will even agree to serve in this capacity. Since I believe the role you are casting for these attorneys creates a significant ethical problem, specifically the conflict between counseling the clients to settle for the statutory amount and rewarding the attorneys for litigating rather than settling their claims, I would not assume that they, or any ethical attorney, would agree to accept this assignment as you define it. Whether that will mean that other attorneys will have to be sought, or you will realize that the role is untenable as described, either result will require modification of the letter. EFTA00213066  KIRKLAND & ELLIS LLP R. Alexander Acosta November 29, 2007 Page 4 Seventh, the identified individuals should not contact lawyers in your Office or agents of the FBI. To encourage these individuals to contact federal law enforcement officials is entirely inconsistent with your promise that there will be no further federal involvement in this case. Moreover, such contact can only invite the possibility for impermissible or partial communications. Recently, you asked the defense not to contact potential witnesses in this matter in part because the Agreement contemplated the selection of an attorney representative. For the same reason there should be no continuing invitation for the witnesses to remain in contact with either your Office or the FBI. Any questions these individuals may have regarding their rights under the Agreement should be answered by Judge Davis or the attorney representative. Eighth, this letter should be mailed rather than delivered by hand. We see no reason for hand delivery, and mailing will ensure that there are no impermissible or partial communications made to the identified individuals upon delivery of the letter. If your Office insists on hand delivery of any such letter, however, it should only be made by a third party service, not by law enforcement agents. Finally, as you know, Judge Starr has requested a meeting with Assistant Attorney General Fisher to address what we believe is the unprecedented nature of the § 2255 component of the Agreement. We are hopeful that this meeting will take place as early as next week. Accordingly, we respectfully request that we postpone our discussion of sending a letter to the alleged victims until after that meeting. We strongly believe that rushing to send any letter out this week is not the wisest manner in which to proceed. Given that Mr. Epstein will not even enter his plea for another few weeks, time is clearly not of the essence regarding any notification to the identified individuals. Sincerely, ilyjt a i . Lefko 'tz EFTA00213067 Exhibit 4 EFTA00213068 12/04/07 TUE 16:46 FAX 305 530 6440 EXECUTIVE OFFICE 0002 U.S. Department of Justice United States Attorney Southern District of Florida R. ALEXANDER ACas-rn 99 N.E. 4 Ewen UNITED STATES ATTORNEY Afloat Ft 33132 1303) 961-9100 - Telephone (305)330-W4 - Vookelle DELIVERY EY FACSIMILE Kenneth W. Starr, Esq Kirkland & Ellis LLP 777 South Figueroa Street Los Angeles, CA 90017 Re: Jeffrey Eckstein Dear Mr. Starr: I write in response to your November 281° letter, in which you raise concerns regarding the Non-Prosecution Agreement between this Office and your client, Mr. Epstein. I take these concerns seriously. As your letter focused on the Section 2255 portion of the Agreement, my response will however. focus primarily on that issue as well. I do wish to make some more general observations, Section 2255 provides that "[alny person who, while a minor, was a victim of a violation of [enumerated sections of Title 18) and who suffers personal injury as a result of such violation . . . may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee." Thus, had this Office proceeded to trial, and had Mr. Epstein been convicted, the victims of his actions would have been able to seek to relief under this Section. The Non-Prosecution Agreement entered into between this Office and Mr. Epstein responds to Mr. Epstein's desire to reach a global resolution of his state and federal criminal liability. Under in this Agreement, this District has agreed to defer prosecution for enumerated sections of Title 18 the Mr. Epstein satisfies three general favor of prosecution by the State of Florida, provided that this plea federal interests: (1) that Mr. Epstein plead guilty to a "registerable" offense; (2) that and (3) that the Agreement include a binding recommendation for a sufficient term ofimprisonment is to place not harm the interests of his victims. This third point deserves elaboration. The intent at trial. the victims in the same position as they would have been had Mr. Epstein been convicted No more; no less. Agreement With this in mind, I turn to the language of the Agreement Paragraph 8 of the provides: If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States EFTA00213069 12/04/07 TUE 16:46 FAX 305 530 6440 EXECUTIVE OFFICE 1 District Court for the Southern District of Florida over his person and/or the subject matter,' and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified victim and Epstein, so long as the identified victim elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United Slates, Epstein's signature on this agreement is not to be construed as an admission of any criminal or civil liability other than that contained in 18 U.S.C. § 2255. Although these two sentences are far from simple, they appear to incorporate our intent to narrowly tailor the Agreement to place the identified victims in thesame position as they would have been had Mr. Epstein been convicted at trial. I would note that I have conferred with our prosecutors and have been told that Paragraph 8 was vigorously negotiated and that the final language was suggested largely by defense counsel. The concerns raised in your letter with respect to Paragraph 8 fall within several general categories. First, you raise concerns regarding the nature of Section 2255. As you note, Section 2255 is a civil statute implanted in the criminal code; in contrast to other criminal statutes, Section 2255 fails to correlate payments to specific injuries or losses. Instead the statute presumes that victims have sustained damages of at least a minimum lump sum without regard to whether the complainants suffered actual medical, physiological or other forms of individualized harm. These concerns were, I would expect, aired when Congress adopted this statute. Even if they were the not, this provision is now law. Rule of law requires now requires this District to consider victims' rights under this statute in negotiating this Agreement. Second, you raise concerns regarding the identity-of-the-victims issue. Your concerns appear based on the belief that Paragraph 8 is a blanket waiver of liability with respect to any number of unnamed and undisclosed victims. I would invite you to confer with your co-counsel regarding this matter. Although the language of Paragraph S could be so construed, our First Assistant informed Mr. Lefkowitz some weeks ago that this was not our position. As Mr. Lefkowitz has noted, were Mr. Epstein convicted at trial, the plaintiff-victims in a subsequent Section 2255 suit would still have Mr. had some burden to prove that they were "victims." It is also the case, however, that were Epstein convicted at trial, the plaintiff-vic tims would not have to show that a violation of an enumerated section of Title 18 took place. Accordingly , our First Assistant informed Mr. Lefkowitz some weeks ago that we understood that if a victim-plaintiff elects to proceed to trial, Mr. Epstein's language, I note that Although not identified as an issue by defense counsel, having reviewed this what by "subject matter." I have conferred with the AUSA who Paragraph 8 raises the question of is meant address issues of venue. This negotiated this language, and have been informed that parties Intended this to Please inform int if Office will not interpret this paragraph as any waiver of subject matter jurisdiction. defense counsel disagrees. _2-