EFTA00208767.pdf

U.S. Department of Justice Washington, D.C. 2053U June 23, 2008 Jay Lefkowitz, Esq. Kenneth Starr, Esq. Kirkland and Ellis LLP Gentlemen: This Office has completed a thorough review of the U.S. Attorney's handling of the matter involving your client, Jeffrey Epstein. We have received and reviewed your letters of May 19, June 3 and June 19, 2008, the attachments to the June 19 letter, as well as your submissions to the Criminal Division and the U.S. Attorney's Office. Additionally, we have reviewed an extensive set of materials provided by the U.S. Attorney's Office and conferred with a number of highly experienced Department attorneys about this matter. The Deputy Attorney General has also been briefed. As you know, the Department of Justice vests considerable discretion in its U.S. Attorneys, and the Deputy Attorney General will intervene in only the most unusual of circumstances. We do not believe such intervention is warranted here. Even if we were to substitute our judgment for that of the U.S. Attorney, we believe that federal prosecution of this case is appropriate. Moreover, having reviewed your allegations of prosecutorial misconduct, and the facts underlying them, we see nothing in the conduct of the U.S. Attorney's Office that gives us any reason to alter our opinion. Sincerely, John Roth Senior Associate Deputy Attorney General cc: Alex Acosta EFTA00208767  LAW OFFICES ALLEN GUTHRIE MCHUGH & THOMAS, PLLC MALL REBECCA EN& OETS ROAVIO RODGERS ElS.THOMAS TgOnSe JAMES DAVID ARNOLD J.HARDY WM.SCOTT PAMELA WICHLINEL CJJAPSEL PAMELA J.C.COMBS PHILIP DEEM STEPHANI BRYANT J. 0.THACKER SPANN E TERESA DEBRAC.K.PRJCE 1HOMPSCN CIIRISTOP CHRISTOP D.SPENCE ARNOLD HER HER PETERG ZACBARY MARKHAM MAZEY June 19, 2008 OPCOUVSEL THOMAS E.MeHLOGH Mr. John Roth Senior Associate Deputy Attorney General Office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Mr. Roth: I write to offer my reaction to the May 15, 2008 correspondence from the United States Department of Justice Child Exploitation and Obscenity Section ("CEOS") regarding the federal investigation of Jeffrey Epstein by the United States Attorney's Office for the Southern District of Florida (`USAO").1 I will refrain from recounting Mr. Epstein's arguments in detail here, but, rather, will highlight salient points responsive to the CEOS letter. In particular, I write from a background well familiar with child exploitation cases and victim/witness issues. As the CEOS letter points out (CEOS letter at p. 3), I was a member of CEOS. In fact, I served as a federal prosecutor for twelve years; five years as an Assistant United States Attorney for the Southern District of West Virginia, and seven years at CEOS. I began working as a trial attorney for CEOS in 1999, and was promoted to Deputy Chief for Litigation in 2002, and ultimately to Principal Deputy Chief for the Section in 2004. As those who have worked with me know, I have a history of working diligently on behalfof victims of crime. While at the United States Attorney's Office for the Southern District of West Virginia, I was a part of the prosecution team that prosecuted the first case in the country under the federal Violence Against Women Act. United States v. Bailey, 112 F.3d 758 (4th Cir.), cert denied, 522 U.S. 896 (1997). The case went to trial and the defendant was sentenced to life in prison. l also spearheaded the domestic violence and federal criminal child support prosecution efforts for that office, prosecuting some of the first cases in the country under the federal Child Support Recovery 1 Citations to the May IS, 2008 correspondence will be referenced herein as "CEOS letter at p. WES EFTA00208768  •••• • • •••• US. Department of Justice Office of the Deputy Attorney General 4J IkPUIY InEPPY Generni %Wart D.C. 205.10 June 3. 2008 Mr. Kenneth Stan Kirkland & Ellis 777 South Figueroa Street Los Angeles. CA 900017 NI r. Joe D. Whitley Alston & lurch 950 1: Street. NW Washingtun IX' 20004 Gentlemen: I ant in receipt of your letters to the Deputy Attorney General dated Mav 19 and May 27. The Deputy has asked me to take a look at these issues. We will get hack to you in the near future. I can he reached at 202-307-2090 should you need to get in touch with me. Sincerely. John Roth Senior Associate Deputy Attorney General cc: 4/ lex Acosta •'1 Attorney. SDFL. EFTA00208769 05/28/2008 09:05 FAX 2026161239 DOJ/ODAC e003/013 06/27/2008 12' 18 FAX UUe 'UV° Kenneth W. Starr Inc I). Whilltn May 27, 2008 VI A FACSIMILE (2021 513-11467 COMIDENTIA L Ittotorahle Mark filip t)I !se,. thc :norney I •Illit.tti Sc:acs nglarittltalt tl: ittl4Ite? "fin PCIII:NYIValttat A‘ tattle. N.V... WaShIlVititt. ;Lc. 70510 Item iiitlye Fihlr 'Ibis letter briellk supplements our pi im submission to you dated May 19. 21)(1S. In dial coMmunication. we urgently requeNied that your Unice conduct an independent review of the proposed ledcral prey .:Minn of our clion. .lei(rey Epstein. The dual reasons for our request that you review this mailer arc (i) the bedrock: need For integrity in the enloreement of IcLicral c: !aws. and in) the pnifinind questions raised in the unprecctli•sited cstension ilf federal iaw by lure t *lined States Attorticy's °Ilia in Miami tthe "liSAO- I to a girl:mown: publie at ho Ic•s close tics ii former President Clinton. -Hie need for review is now all the more exigent. On Monday. May 19. 2008. lost Ass:stan; Jen', ey Slosnan of the 1.;SAO responded in an email from Jay I cfloo.ii, mformin I ' S :Won't!. Alex Acosta that VW %timid he seekint vow thrice's review Mr SItimait's ovhielt imposed a deadline of June 2, 2008 to comply with all the terms ill the e uncut Non- Pracectoinn k tntement (the "Attreement- ). plus new unilateral modifications. tin pain of heiw2 deemed in l'Ireach of :hat Agreement. appears 10 have been deliberately designed to deprite us of an adequate opportunity to Sal. yam- Offices ;c'. icy in this matter. the 1:SA(Is desire to loCceltiSc a complete revte!% is iiiiileistandablc. :he Child I.Npini:atit+n alai Obscenity Section ("CLOS- ) has already dea:mimed I that ow ..O,,nian't inguments I. : archon; why a kdvral prosecution \1r. Ipstein IN 2114 %%on-anti:11 vn:- lowever. iii contradiction to Mr. Slinnan s assertion that C.D.'S hail provickd an independent. Sc' now/ review. CEOS made clear that it did not tin so. indeed. ( .1-USde.:littert to examine several of the more troublint" aspect". of the investi.4"ition of Mr Epstein. inclutlain• the deliberate leak to the New York Tune! of mine s highly talltrielettti.il apt:CtS ill' the investigation and licLsiiialiiins het to een the p:mies as %veil as tile recei): coin tit eit it I.w. sun. tiled Mr. 1-pstein by Mr Shiites liarmer law partner. The unnecessary and arbitrarily imposed deadline set by site I )NA( %%;:s ChM': withrull any vespeet fur the minim, funetionitit" and scheduling of state judicial matters. It require: ihn! Mr. Ereaein's counsel persuade the Suitt: Attorney of Patin Reach to issue a ennii11:11 inhumation PAG'Ec EFTA00208770 05/38/2000 09:07 FAA 2025161239 DOJ/ODAG N9000/013 05. 10/0A NON 13:22 FAA 1 213 680 8500 KIRKLAN08XLLTS I.LP 10092 so Kenneth W. Starr Joe D. Whitley • VIA FACSIMILE (2021 514-0467 May 19. 2008 in CONFIDENTIAL Iionorable Mark Filip Office of the Deputy Attorney General United States Department ofJustice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Judge Film: In his confirmation hearings last fail, Judge Muka sey admirably lifted up the finest traditions of the Department of Justice in assuring the United States Senate, and the American people, of his solemn intent to ensure fairness and integr ity in the administration ofjustice. Your own confirmation hearings echoed that bedrock determination 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 ow client , Jeffrey Epstein. While we are well aware of the rare instances in which a review of this sort is justified, we arc confident that the circumstances at issue warrant such an 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, are at issue. Recently, the Criminal Division concluded a very limited review of this matter at the request of U.S. Attorney Alex Acosta. Critically, 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 admission. the CEOS review was "limited, both own factually and legally." Part of the self-imposed limitation was CEOS's abstention from addre ssing our `allegations of professional misconduct by federal prosecutors"—even though such misconduct was. as we contend it is, inextr intertwined with the credibility of the accusations icably being made against Mr. Epstein by the United States Attorney's Office in Miami C'USAO"). Moreover. CEOS did not assess the terms of the Defened Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors' inappropriate efforts to implement those tenns. We detail this point below. EFTA00208771  KIRKLAND & ELLIS LLP SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL IN THE MATTER OF JEFFREY E. EPSTEIN Jeffrey Epstein, a successful businessman and noted philanthropist with no prior criminal record, has been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b). Since the limited review conducted by CEOS, two Supreme Court decisions—one authored by Justice Scalia and the other by Justice Thomas—have revitalized the bedrock principles that federal criminal statutes must be narrowly construed, that they may not be stretched to federalize conduct not clearly covered by their prohibitions, and that whenever there are two plausible constructions of a criminal statute, the narrower construction (hich safeguards liberty) rather than the broader construction (which expands the federal prosecutor's arsenal) controls under the venerable rule of lenity. Mr. Epstein's conduct—including his misconduct—falls within the heartland of historic state police and prosecutorial powers. Absent a significant federal nexus, matters involving prostitution have always been treated as state-law crimes even when they involve minors. Mr. Epstein's conduct lacks any of the hallmarks that would convert this quintessential state crime into a federal one under any of the statutes prosecutors arc considering. Mr. Epstein lived in Palm Beach, and his interstate travel was merely to go home. Any sexual conduct that occurred after he arrived was incidental to the purposes for his travel. Even CEOS admitted that applying § 2423(b) to a citizen traveling home would be "novel." In fact, it would be both unprecedented and in conflict with Supreme Court cases that have withstood the test of time for over 60 years. Moreover, Mr. Epstein did not use the intemet (either via email or chatrooms) to communicate with any of the witnesses in this investigation. Indeed, he did not use any other facility of interstate commerce, including the phone, to knowingly persuade, entice, or induce anyone to visit his home—the "local" locus of all the incidents under investigation—much less to persuade, entice, or induce a known minor to engage in prohibited sex acts, as § 2422(b) requires. Nor did anyone on his behalf "persuade" or "induce" or "entice" or "coerce" anyone as these words are ordinarily understood and as the new Supreme Court decisions mandate they be applied: narrowly, without stretching ordinary usage to conform to a prosecutor's case-specific need for a broad (and in this case unprecedented) application. In addition, as will be shown below, § 2422(h) requires that the object of the communication be a state law offense that "can be charged." Yet because the state of Florida's statute of limitations is one year for the first prostitution offense and three years for other targeted offenses, and because all or virtually all of the offense conduct at issue in the federal investigation occurred prior to June 20, 2005, those acts can not be charged by the State, and thus cannot meet this essential clement of federal law. Finally, Mr. Epstein neither coerced, nor enslaved, nor trafficked, nor derived any profit from his sexual conduct. He was an ordinary "John," not a pimp. But § 1591 is directed only against those who engage in force or fraud or coercion or who are in the business of commercial 1 17 PACES EFTA00208772  KIRKLAND & ELLIS LLP SUMMARY OF MISCONDUCT ISSUES IN THE MATTER OF JEFFREY E. EPSTEIN The manner in which federal prosecutors have pursued the allegations against Mr. Epstein is highly irregular and warrants full review by the Department. While we repeatedly have raised our concerns regarding misconduct with the United States Attorney's Office in Miami (the "USAO"), not only has it has remained unwilling to address these issues, but Mr. Epstein's defense counsel has been instructed to limit its contact to the very prosecutors who are the subject of this misconduct complaint. For your review, this document summarizes the USAO's conduct in this case. Background I. In March 2005, the Palm Beach Police Department opened a criminal investigation of Palm Beach resident, Jeffrey E. Epstein. The press has widely reported that Mr. Epstein is a close friend of former President Bill Clinton. 2. In July 2006, after an intensive probe, including interviews of dozens of witnesses, returns of numerous document subpoenas, multiple trash pulls and the execution of a search warrant on his residence, Mr. Epstein was indicted by a Florida Grand Jury on one count of felony solicitation of prostitution. 3. In a publicly released letter, Palm Beach Police Chief Michael Reiter criticized the Grand Jury's decision and the State Attorney's handling of the case. Shortly after the Grand Jury's indictment, the Chief took the unprecedented step of releasing his Department's raw police reports of the investigation (including Detective Recarey's unedited written reports of witness statements and witness identification information), that were later proven to be highly inaccurate transcriptions of witnesses' actual statements. The Chief also publicly asked federal authorities to prosecute the case. Becomes Involved in Mr. Epstein's Case at the Earliest Stage 4. In early November of 2006, Epstei heir initial contact with the newly assigned line federal prosecutor Although it is extremely unusual for a to participate in such a communication, was present on that very first phone call. 5. On November 16, 2006, despite that the fact that the investi ation exclusively concerned illegal sexual conduct during massage sessions, AUSA issued irrelevant official document requests seeking Mr. Epstein's 2004 and 2005 personal income-tax returns, and later subpoenaed his medical records. See Tab 16, November 16, 2006 Letter from Becomes Personally Involved in a Dispute Over Another State Sex Case 6. In March 2007, cported to local police an attempted trespass by a 17- ear- ale. claimed that the individual had attempted to enter home without invitation to make contact with his 16-year-old daughter, but he spotted the young man before the perpetrator had an opportunity to enter the house. The 11 ?AGES EFTA00208773  KIRKLAND & ELLIS LLP Response to 1..ettffl (1Ma 19, 2008 In a Ma 19 2008 letter to Jay Lefkowitz (See Tab 1), SDFL provided what purported to be a summ of the events that have occurred during the investigation of Mr. Epstein. letter is naught with inconsistencies, false and misleading characterizations an outright falsehoods. The comparison below between the false assertions in letter and what actually transpired is only the tip of the iceberg. We respectfully submit that letter alone demonstrates the degree to which the record of facts have been distorted and these distortions have permeated this unprecedented investigation. 1. "INDEPENDENT" AND "DE NOVO" REVIEW. Letter: • "[W]e obliged your request for an independent de novo review of the investigation and facilitated such review at the highest levels of the Department of Justice. " Tab 1, May 19, 2008 Letter from J. Sloman, p. 5,1 3. The Truth: • CEOS' review, concluded in May 2008, was neither independent nor de nova o CEOS' review was not "independent:" • who conducted the review on behalf of CEOS, had already reviewed the prosecution memo on this matter eight months earlier. During a meeting with defense counsel at the United States Attorney's Office in Miami (the "USAO") in September of 2007, he opined that he so believed in the prosecution that he "would try the case myself" • Indeed, acknowledges that had previously opined on t is matter, stating: This particular attack on this statute [18 U.S.C. § 2242(b)) had been previously raised and thoroughly considered and rejected by . . CEOS prior to the execution of the [Deferred Prosecution] Agreement [in September 2007]. Id., p. 5 (emphasis added). • The statute eferred to (§ 2422(h)) lies at the heart of the Epstein investigation. Thus, according to was tasked with reviewing his own prior decision regarding applying the key statute under which the SDFL proposed prosecuting Mr. Epstein. /0 ti7AGES EFTA00208774