EFTA00176147.pdf

12-1WD 1 Leittsuita i-t Aogic., EFTA00176147  KIRKLANDSELLIS 01002/008 12/26/2007 14:45 FAX KIRKLAND & ELLIS LLP AND AINLIATIft PASYNDMIIPS Cinema Cantor 163 Ent SSW Street New York, New York 10022-1411 Jar P. Lofkowitx, P.C. Facsimile: To O Willis Directly: (M 446.4800 le 446-4000 446-497o logo kiddand.com vnicklitlend.com December 26, 2007 VIA FACSIMILE (305) 530-6444 Honorable R. Alexander Acosta I Minx] States Attorney linited States Attorney's Office 1.outhern District ofFlorida (...9 NB 4th Street Miami, FL 33132 Re: Jeffrey Epstein Dear Alex: I write to address the questions you posed to me during a conversation we had late last week. Specifically, you requested a clarification of our position on two issues: (I) our view on your latest proposal regarding notification to the alleged victims under 18 U.S.C. § 3771; and (2) our response to your proposed language regarding the 18 U.S.C. § 2255 component of the deferred-prosecution agreement (the "Agreement"). Before 1 turn to these questions, I would like to reiterate that this letter responds to your invitation to discuss proposed modifications to the Agreement and should not be construed in any way as a breach of the Agreement. With that s lid, I must tell you that the more I look into these issues, the more difficulties I see in trying to tic the resolution of a federal criminal matter with a federal civil matter involving minors, and this is even further complicated when the premise of the resolution is a deferred federal prosecution conditioned on a plea to specific state offenses with a specific sentence pre- determined and required to be imposed by the state court, without consideration of the fact that the State view of this case differs dramatically from yours. With that in mind, I turn to each of your questions below. First, although we appreciate your willingness to modify your Office's § 3771 notice, which is embodied in your latest proposal, we must still object to aspects of your proposal on the ground that notice under § 3771 is per se inapplicable to this case under the Attorney General's own guidelines, because the alleged victims are not "crime victims" under § 3771. The Attorney General Guidelines for Victim and Witness Assistance defines "crime victim" as follows: For the purpose of enforcing the rights enumerated in article 1.9, a victim is 'a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia' (18 U.S.C. § 3771(e)) if the offense is charged in Federal district court. If a victim is under 18 years of age, incompetent, incapacitated, or Chicago Hong Kong London Los Angeles Munich San Francisco Washington. D.C. EFTA00176148 12/26/2007 14:45 FAX KIRKLANDSELLIS l 003/006 December 26, 2007 Page 2 deceased, a family member or legal guardian of the victim, a representative of the victim's estate, or any other person so appointed by the court may exercise rho victim's rights, but in nn event shall the accused serve as a guardian or representative for this purpose. (18 U.S.C. § 3771(e)). The Attorney General Guidelines for Victim and Witness Assistance, at 9 (emphasis added). Ikre, the women are clearly not "crime victims" under the Attorney General Guidelines definition. To be a "crime victim", a person or entity must be harmed by an offense that has peen charged in Federal district court. See U.S. Guevara•Tofoso, 2005 WL 1210982 at +2 (E.D.N.Y. May 23, 2005) (noting that § 3771's re crevice to "the crime" suggests "a focus only on the crime with which a defendant is charted in the case in which a victim seeks to assert her statutory rights.") (emphasis added) Since there has been no offense charged in Federal district court in this matter, the identified individuals necessarily do not qualify as "crime victims". In addition, the Attorney General Guidelines further defines a "crime victim" as "a person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime. (42 U.S.C. § I0607(e)(2))" Id. As you know, we believe we have shown that at least some (if not all) of the identified individuals did not suffer any injury at all in connection with Mr. Epstein's alleged conduct.' in addition, under the Attorney General Guidelines, notification must be balanced against a w action that may impinge on Mr. Epstein's due process rights. The Attorney General Guidelines clearly call into question "the wisdom and practicality of giving notice" to a "possible u itness in the case and the effect that relaying any information may have on the defendant's right h. a fair trial." The Attorney General Guidelines for victim and Witness Assistance, at 30. The Attorney General Guidelines caution federal prosecutors from providing notice to potential i litncsses in instances where such notice could compromise the defendant's due process rights. his is particularly true, as here, if the notice includes confidential information, including the conditions of a confidential deferred-prosecution agreement or non-prosecution agreement. In li;lit of these concerns, we respectfully request that you reconsider sending notices to the alleged victims pursuant to § 3771. Our objection to § 3771 notwithstanding, we do not object (as we made clear in our letter last week) that some form of notice he given to the alleged victims. To that end, we request an opportunity to review the notification before it is sent in order to avoid any confusion or misunderstandings. We believe, however, that any and all notices with respect to the alleged victims of state offenses should be sent by the State Attorney rather than your Office, and we See for example, our prior aubmissions regarding Stage and EFTA00176149 12/26/2007 14:46 FAX KIRKLAND&ELLIS l 004/006 December 26, 2007 l'age 3 gree that your Office should defer to the discretion of the State Attorney regarding all matters iiith regard to those victims and the state proceedings. Second, the more we work to resolve our mutual concerns regarding the § 2255 component of the Agreement, the more our growing fears are realized that the implementation of § 2255 in this cast is inherently flawed and becoming truly unmanageable. In the first instance, tic implementation of § 2255 in this matter causes manageability concerns because it appears the civil component of this case must be stayed until after all phases of a criminal action have been resolved. I8 U.S.C. § 3509(k), which codifies child victims' and child witnesses' rights, seems on its face to preclude any interference arising from a potential or pending civil action on a related criminal proceeding in order to protect a defendant's right to due process. The statute vales: if, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subsection, a criminal action is pending until its final adjudication in the trial court. I s U.S.C. § 3509(k). See also, John Doe II Francis, 2005 WL 517847, at 1'2 (N.D. Fla. Feb. 1), 2005) ("the language of 18 U.S.C. § 3509(k) is clear that a stay is required in a case such as this where a parallel criminal action is pending which arises from the same occurrence involving minor victims. See 18 U.S.C. § 3509(k). inasmuch as Plaintiffs have offered no authority or evidence to the contrary, the Court finds that the stay in this case must remain in effect until final adjudication of the criminal case by the state court.") It appears that any attempt to resolve the civil component of this case (be it through structured settlements or civil litigation) may be precluded by § 3509(k) insofar as all phases of ti e criminal action have not yet been resolved. To allow for a civil cause of action while a related criminal action remains pending can unduly bias the witnesses who could be improperly irecutivized by a potential monetary recovery. The prevention of such a result is precisely the reason that § 3509(k) was enacted. Indeed, there can be no such resolution of phases of the criminal action" here, until Mr. Epstein's state sentence is concluded and all opportunity for the initiation of a federal prosecution is foreclosed. In addition, we have reiterated in previous submissions that Mr. Epstein does not believe hi: is guilty of the federal charges enumerated tinder § 2255. For this reason, we believe that your proposed language regarding an appropriate § 2255 procedure unfairly asks Mr. Epstein to agree that each and every alleged victim identified by the Government is a victim of an enumerated federal offense under § 2255 and should, therefore, be placed in the same position EFTA00176150 12/26/2007 14:46 FAX KIRKLAND&ELLIS 005/008 December 26. 2007 Page 4 she would have been had Mr. Epstein bccn convicted of such an offense. As we discussed last week, it is this requirement that makes your § 2255 proposal so problematic. As much as we appreciate your willingness to revisit the § 2255 issues, we cannot accept your language as proposal, because we believe that the conduct of Mr. Epstein with respect to these alleged tictims fails to satisfy the requisite elements of any of the enumerated offenses, including 18 U.S.C. § 2422(b) or 18 U.S.C. § 2423(b). In light of the information we have presented to you regarding the two alleged victims whom we understand appear on your list, we hope you t ntlerstand why your language presents us with these concerns. Essentially, you are asking us to I-elp put these women in a position that may not be warranted. In short, your proposed language regarding § 2255 states that Mr. Epstein should be treated "as if ho had been convicted" of an enumerated federal crime. This requires Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense. The United States Attorney Manual ("USAM") 9-27.440, Principles of Federal Prosecution, sets forth a clear requirement when a defendant tenders a pica of guilty but subsequently denies committing the offense to which he has offered to plead. Specifically, 9-27.440 provides, in part: In a case in which the defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. Sac also USAM 9.16.015. To date, your Office has raised our requests to share such information with us. For the purposes of attempting to resolve the § 2255 issue, we once again request that your Office make this proof available. Specifically, your Office has represented that liability exists under § 2422(b) and § 2423(b), as well as the state offense, Florida Statute § 796.03. We would elcome this previously sought information at your earliest convenience to enable us to resolve tl.is matter in a timely fashion. Finally, 1 would like to address your request that we provide revised language to your Office regarding the appropriate § 2255 procedure. Given the inherent complexities described above, we have not been able to find language that comports with the Agreement and your stated goals, especially given your insistence that the women be placed in the same position as if Mr. Epstein "had been convicted".2 However, if you so choose — and keeping in mind that we 2 In addition, we remind you that wholly and apart from the judicial stay that appears to be required wider § 3509(k), we believe that the minimum damages amount referenced in § 2255 (5150,000) is subject to un ex- post facto motion, as the statutory minimum was 550.000 at the time of the alleged conduct and the statute is being implemented in a deferred-prosecution agreement. EFTA00176151 12/26/2007 14:47 FAX KIRKLANDAELLIS 006/006 December 26, 2007 ))age 5 intend to abide by the Agreement — we would he willing at you earliest convenience to discuss possible alternatives. Thank you for your time and consideration. We remain available to work with you to esolve these difficult issues in a constructive manner, and we look forward to your response to Ihe concerns we have raised that have not yet been addressed by your Office. Sincerely, 4 Ja P. Lellowitz c c: Jeffrey H. Sloman, First Assistant U.S. Attorney EFTA00176152 1.2/28/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE e001 Dear Jay, On September 24, 2007, your client, Jeffrey Epstein and two of his lawyers, Gerald Lefcourt, Esq. and Lily Ann Sanchez, Esq., in consultation with numerous other experienced and highly regarded lawyers, entered into a Non-Prosecution Agreement ("the Agreement") with the United States Attorney's Office for the Southern District of Florida ("SDFL"). The crux of the Agreement was that the SDFL would defer federal prosecution of Mr. Epstein for illicit sexual conduct by Mr. Epstein involving minor victims in exchange for his guilty plea to solicitation of prostitution (Fl. Stat. Section 796.9)7) and an offense that requires him to register as a sex offender, that is, saiatatten of minors to engage in prostitution (Fl. Stat. Section 796.03). The Agremet aistrequjred him o:)`serve a 39_moath sentence - 18 months' in county jail - andto cintip6islae`)the victims (pikatant to '113 U.S.C. Section 2255 just as if this matter had been successfully prosecuted federally. After the Agreement was executed, you and, subsequently, Dean Starr began taking issue with the implementation of the 2255 provision. In response, I offered, in my opinion, numerous and various reasonable modifications and accommodations. These are well documented and do not need to be recounted here. Suffice to say, these modifications and accommodations were not satisfactory to your client. At our December 15, 2007 meeting, counsel for Mr. Epstein announced, inter alit; that it was a "profound injustice" to require Mr. Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. Section 2422(b), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuading or inducing. As you know, this attack on the theory of federal prosecution ha been previously raised' and thwuzbly, considered and rejected by the SDFL ankhi Id Exploitation and ObscenitACEOS) in Washington, D.C. prior to the execution of the Agreement. In addition to your continued attack on the contemplated federal statutes, your December 17'h correspondence claimed, for the first time since the execution of the Agreement, that Mr. Epstein's conduct does not meet the requirements of solicitation of minors to engage in prostitution (Fl. Stat. Section 796.03). This combined with your December 26'h correspondence, wherein you state that "we have reiterated in previous submissions that Mr. Epstein does not believe he is 'See July 6, 2007 letter from Gerald B. Lefcourt, Esq. and Alan Dershowitz. EFTA00176153 12/28/07 FRI 14:27 FAX 305 530 8440 EXECUTIVE OFFICE e002 guilty of the federal charges enumerated under section 2255", clearly prevents Mr. Epstein from fulfilling the material terms and conditions the Agreement. As you lcnow, this is not, and has never been, an Alford plea situation (see North Carolina I. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970)). Your reference to requiring "Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense" is inapplicable here. EFTA00176154  EXECUTIVE OFFICE eon 12/28/07 FRI 14:27 FAX 305 530 6440 Dear Jay, On September 24, 2007, your client, Jeffrey Epstein and two of his lawyers, Gerald Lefcourt, Esq. and Lily km Sanchez, Esq., in consultation with numerous other experienced and highly regarded lawyers, entered into a Non-Prosecution Agreement ("the Agreement") with the United States Attorney's Office for the Southern District of Florida ("SDFL"). The crux of the Agreement was that the SDFL would defer federal prosecution of Mr. Epstein for illicit sexual conduct by Mr. Epstein involving minor victims in exchange for his guilty plea to solicitation of prostitution (Fl. Stat. Section 796.07) and an offense that requires him to register as a sex offender, that is, solicitation of minors to engage in prostitution (Fl. Stat. Section 796.03). The Agreement also required him to serve a 30 month sentence - 18 months' in county jail - and to compensate the victims pursuant to 18 U.S.C. Section 2255 just as if this matter had been successfully prosecuted federally. After the Agreement was executed, you and, subsequently, Dean Starr began taking issue with the implementation of the 2255 provision. In response, I offered, in my opinion, numerous and various reasonable modifications and accommodations. These are well documented and do not need to be recounted here. Suffice to say, these modifications and accommodations were not satisfactory to your client. At our December 15, 2007 meeting, counsel for Mr. Epstein announced, inter alia, that it was a "profound injustice" to require Mr. Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. Section 2422(b), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuadhg or inducing. As you know, this attack on the theory of federal prosecution, had been previously raised' and thoroughly considered and rejected by the SOFf, and Child Exploitation and Obscenity (CEOS) in Washington, D.C. prior to the execution of the Agreement. In addition to your continued attack on the contemplated federal statutes, your December 1711t correspondence claimed, for the first time since the execution of the Agreement, that Mr. Epstein's conduct does not meet the requirements of solicitation of minors to engage in prostitution (Fl. Stat. Section 796.0:5). This combined with your December 26th correspondence, wherein you state that "we have reiterated in previous submissions that Mr. Epstein does not believe he is 'See July 6, 2007 letter from Gerald B. Lefcourt, Esq. and Alan Dershowitz. EFTA00176155 12/26/07 FRI 14:27 FAX 305 530 6440 EXECUTIVE OFFICE QI 002 guilty of the federal charges enumerated under section 2255", clearly prevents Mr. Epstein from fulfilling the material terms and conditions the Agreement. As you know, this is not, and has never been, an Alford plea situation (see North Carolina Alford, 400 U.S. 25, 91 S.Ct. 160 (1970)). Your reference to requiring "Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense" is inapplicable here. EFTA00176156