EFTA00079409.pdf

LAw 0.74=1 or GERALD B. Lnrcounr, P.C. A PROFeSSIONAL CORPORATION 1493 CAST TB" STREET NEW YORE, NEW YORK 10021 GERALD B LEFCOURT TELEPHONE la 1E)7370400 m ailman SHERYL E. REICH riBlialloROWEWN:orn RENATO C. STABILE altRINBIeBoustar tom rainy July 25, 2007 BY HAND Chief of the Criminal Division The United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, Florida 33132 Jeffiry Epstein Dear• Mr. Menthe': We have previously provided you with a memo as to why we believ e no charge under 18 U.S.C. §2422(b) could or should be brought against Jeffrey Epste in, even assuming the specific conduct that you have alleged actually occurred. In that memo , we detailed Congress's intent in enacting this statute. We also posited that the language of the statute would have to be stretched beyond recognition to fit the particular facts ofMr. Epstein's ease.' Enclosed is data that strongly supports the arguments we previously made. We have thoroughly analyzed every prosecution brought under the statute for which data could be obtained. Based on that analysis, we submit that the prosecutions actually brought under the statute overw helmingly confirm the limits to prosecution we have previously identified.2 For several months, we have also been consulting on this matter with Stephanie Thacker, former Principal Deputy Chief, Department of Justice, Child Exploitation & Obscenity Section. Ms. Thacker supports our position without reservation that this is not a matter upon which the federal statues should be brought to bear. Ms. Thacker would also welcome any questions or concerns you would like to raise with her. Please note that the enclosed chart amends the one provid ed to you earlier this week by adding additional details recently located. EFTA00079409  LAW orricts er GERALD B. Lnrcount. P.C. sup Chief of the Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 2 For example, of the 184 prosecutions in whi ch at least one count alleges a violation of §2422(b), in the overwhelming majority of those cases — 160, or over 85% — the "means" interstate communication was the Internet and of involved the classic "Internet trolling" — different from the behavior alleged here. Of far that subset, the vast majority -- 113 -- were operations involving "children" (actually, agen "sting" ts) said to be between 2 and 14 years of age. government in each of those instances took The every precaution to verify that the defenda were undertaken "knowingly". nt's actions the extent we can determine the facts, it case being brought, in each instance mul appears that prior to a tiple explicit (and recorded) conversations there could be no question as to when the indu were had, so cement was attempted, whether the indu was of explicit unlawful sexual activity, or cement what the defendant's belief was as to the age . victim. Again, this has no applicability of the to the facts alleged here. The data is informative in other ways, as well . Though there are a handful of cases in which the telephone is one of a multiple of means of interstate communications alleg only two such cases, both far different from edly used, in the facts here,[ was the use of the telephon means of the wrongdoing alleged. In the rem e the sole aining telephone cases, the §2422(b) coun one of several amongst various charges t is only of possession of child pornography, viol like. ence , and the The data from the chart also establish that in the vast majority of the cases brou sexual activity was actually consummated. ght, no That confirms that prosecutions under focused on protecting the federal interest in 42422(6) are preventing the means of interstate from being used to commit crimes, particul communication arly with respect to activities that are trad difficult for the state to prosecute. A prosecut itionally ion predicated on an incidental telephon as a "hook" to trigger federal jurisdiction in e call used order to punish a defendant for the underly activity is well out of, not only the mainstr ing sexual eam of 42422(6) prosecutions, but all §24 that have ever been brought. Here, the state 22(b) cases is fully able to prosecute the conduct alleg ed. We understand that the government beli eves it possesses proof that on various telephone calls were allegedly made on occasions Mr. Epstein's behalf by other persons who allegedly As detailed in the introductory section to the pimps who conceded that their businesse chart, among the differences are that those case s hinged on the use of telephones. Moreove s involve that the arrangements being made are for sexu r, it is unequivocal al activity with underage women. EFTA00079410  LAW OFFICCS Of Gam•*n B LEPcourr. P.C. afialninal Division The United States Attorney's Office Southern District ofFlorida July 25, 2007 Page 3 spoke directly or indirectly to women who were under 18. As the message books take (unlawfully, in our view) during the search n of Mr. Epstein's home clearly show, many initiated the interactions by repeatedly calli wom en ng to schedule massages. If the calls on whic government might seek to rely were merely "ret h the urn" calls, certainly any alleged "inducemen would be far from unambiguous. And of cour t" se, the woman who called would have to have known by Mr. Epstein to be under 18, and been further, Mr. Epstein would have to have kno intended that a specific sexual activity unlawfu wn and l under Florida law was being induced. Thus, contrary to there being unambiguous proo f of the required elements of a §2422(b) violation in this case, at least the following defects exist: First, it is hardly the case that every massage resulted in sexual activity. Thus, merely because there was a telephone call, even one that might have "induced" a massage (which dispute), such telephone call is not tantamo we unt to the use of a telephone in violation statute. of the Second, even where a particular massage involved masturbation by Mr. Epstein touching of a woman, we dispute that any such or the conduct is a violation of any applicable law. Florida focused on the evidence which reflects the exampl sworn statement of, for told state investigators that she was aske 18 and d to find women between Me Mr. Epstein with topless massages and their being touched. Fla. Stat. Ann. §79 whic h sometimes involved 6.07, a general statute which proscribes "pro and "lewdness", regardless of whether an adu stitution" lt or minor is involved, is of very limited applicability here. That statute's definitio n of"prostitution" excludes conduct of whic may be evidence, specifically, a man masturb h there ating himself while touching the brea Section 796.07(1Xa) defines "prostitution" sts of another. as the giving or receiving of the body activity for hirc. "Sexual activity" is defi for sexual ned to include "the handling or fondling organ of another for the purpose of masturb of the sexual ation". Thus, "sexual activity" appears situations where a woman is paid to mas to cover turbate a man but excludes the situatio masturbates himself in the presence of a n where the man woman. Any other reading of this statutor would raise constitutional problems of fair y language warning, vagueness and lenity. EFTA00079411  LAW o•ICCS or GERALD 13. LEVCOURT. PC Chiefo the Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 4 We are, of course, mindful of the fact that, unb eknownst to Mr. Epstein, some of the women were in fact not yet 18. It is certainly not clear that any state statutes were violated Mr. Epstein's conduct with any of these wom by en, either. Florida law criminalizes relatively sexual activity with persons between the ages of little 16 and 18. For example, it is not a violatio the laws regulating sexual activity to receive n of a massage from a person between 16 and 18 who topless or even naked. See Fla. Stat. Ann. §80 is 0.04 (lewd and lascivious conduct with a chil between the age of 16 and 18). Nor does that d statute make it a crime to touch the breasts or other private areas of someone between 16 and 18. Id. And, of course, even if a state crime committed, which we surely do not concede, was that does not make out a federal crime, unless could be proven that the defendant knowingl it y induced an illegal act over the telephone. Moreover, at best, the proof would show that in what may possibly be characterized as sexu only a small minority of massages resulted al activity with a woman under the age of even where a massage involved sexual activ 18. But ity with a woman under 18, to the extent Mr. did not know the woman was under 18, or the telep Epstein hone call did not induce the activity, or Epstein did not intend the sexual activity at Mr. the time the telephone call arranging the mas the person arranging the massage did not inten sage, or d the sexual activity, there would be multiple additional barriers to a successful prosecution. Further, putting aside whether there is suff icient proof that Mr. Epstein knew (and not merely that he "should have" surmised) that any of the women wore in fact under 18, the facts hypothesized above has never before set of provided a legally sufficient predicate for a prosecution under §2422(b) - or under any other federal statute. The enclosed chart clearly and compell ingly demonstrates that every charge brou alleging a violation of §2422(b) is characte ght rized by direct (not circumstantial and certa speculative) evidence of the defendant him inly not self (not others on his behalf) using the interstate communication to communicate means of an unambiguous inducement to a person underage or in the case of a sting, represen known to be ted to be underage (or a person thought behalf of such person) during the very• to be acting on communication that constitutes the requ federal jurisdiction. ired basis for EFTA00079412  LAW OF/PICCO OP GERALD B. LEFCOURT. P.C. FCre₹ o Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 5 To our knowledge, the current investigation lacks any direct (or even circumstantial) proof that an inducement was made by Mr. Eps tein during the pivotal communication that is the very heart of any potential §2422(b) charge. at Even if the government contends that Mr. Epstein induced unlawful sexual activity at som e point, face to face, after a telephone call, the separation of the communication and the indu cement takes Mr. Epstein's alleged misconduct outside the ambit of federal prosecution. It wou ld be unprecedented (and unprincipled), as the chart demonstrates, to prosecute Mr. Epstein under §2422(b) absent proof beyond a reasonab doubt both that he knew the age of the pers le on and that he intended in that communication induce sexual activity that is unlawful under Flor to ida law. It would also be unprecedented to prosecute Mr. Epstein under §2422(b) based on a telephone call made by a third party with direct proof that Mr. Epstein intended that out telephone call to induce unlawful sexual activ ity. For all of these reasons, as well as those asse rted at the meeting of June 26 and in our follow up letter dated July 6, 2007, as well as our earlier letter of June 25, we submit that no charge under 18 U.S.C. §2422(b) can be brou ght. If you have any questions or would like discuss this liuther, we are available. to Very truly yours, Alan M. Dershowitz cc: Lilly Ann Sanchez, Esq. EFTA00079413  JEFFREY EPSTEIN 18 U.S.C. §2422(b) CASE ANALYSIS CHART A nationwide search of all cases listing charges unde r 18 U.S.C. §2422(b) underscores the undeniable fact that this statutory provision has been used almost exclusively to apply to situations involving Internet "trolling" by sexual predators. Out of a total of 184 cases listed in the chart below, the overwhelming majority — 144 cases — involves communications using the Internet. Of those cases, 115 involve the classic "Internet Sting" operations where either the government or a private organization has focu sed its investigative efforts on the use of the Internet to lure infants and minors, 3-14 years-old. Of those 115 cases, 71 involved the use of Internet chat rooms. As the chart reflects, the circumstances under whic h this statute has been applied invariably involved communications containing an explicit inducement — if not many — to the minor to engage in sex, and reflect the defendant's clear knowledge of the age of the minor. Notably out of the184 cases, only 2 cases involve the use of only the telephone. Both of those cases involve charges against pimps using phones to arrange appo intments for prostitutes. In addition, both of those cases involve violence and pimps who admitted to using phon es to further their business ventures. Moreover, in both cases many other factors, including the distribution of narco tics, use of force and possession of firearms were present. See U.S. v. Evans, 476 F.3d 1176 (11th Cir. 2007); U.S. v. Phillips, 165 Fed. Appx. 677 (10th Cir. 2006). In addition, the telephone and not the Internet served as the "facility or instrument" of interstate commerce in 4 foreign travel sting operation cases geared towards "sex tourism". Out of the 184 cases listed below, only 17 involved actual sexu al activity, 6 of them by use of force. It is also clear that in no case — other than U.S. v. Howard, 2006 U.S. Dist. LEXIS 67214 (W.D.N.C. 2006) (co-conspirator pimps in prostitution ring) — was there a successfu l charge of conspiracy based on §2422(b). See, e.g., U.S. v. Pisman, 443 F.3d 912 (sr Cir. 2006) (2423(b) cons piracy); U.S. v. Pipkins, et al., 378 F.3d 1281 (11th Cir. 2004) (RICO conspiracy); U.S. v. Hornaday, 392 F.3d 1306 (11` " Cir. 2004) (conspiracy charge was error ); EFTA00079414  U.S. v. Jackson. 2007 U.S. Dist. LEXIS 33639 (D. Neb. 2007) (state cons piracy charge dropped because no conspiracy possible with undercover agent); U.S. v. Bianchi, 2006 U.S. Dist. LEXIS 90073 (E.D. Pa. 2006) (2423(e) conspiracy). ‘ . br( FACILITY • FAciagautgaugiN CHARGE 1" Cir. U.S. v. Dewire, Internet AOL instant message (1M) 2422(b) 271 F.3d 333 (1" Cir. communication with "12 yr-old"; 2001) sexually explicit conversation, at the end Not Consummated of which defendant arranged to meet "12 yr-old" at a restaurant. In reality Showed up for meeting communications were with an adult swim team coach who had been using the girl's computer; coach turned print out of conversation over to police who observed defendant entering and leaving the restaurant and arrested him. Sentence 13 months; appeals conviction & sentence. Affirmed. 2 EFTA00079415  /H-,?3c4,,k2iitats..t:,.‘, ;i: .f-At:. kr.,14 T,, - i‘26-0 6AulthalienT s. - --,,,,,stottra%-4,?..ite,,, 4 ,443.,,,,,,,......,,A.,. n. .-, . 4- -.'‘S...;,.qaai•! a ' . • •:). • ;'-': - t-• U.S. v. Gravenhorst, $••- . Unpublished Internet use of email by 45 yr-old male to 2006 U.S. App. LEXIS 2422(6); 32373 (1st Cir. 2006); proposition 4 16 yr-old girls& one under 1470; vacating 16 yrs-old to engage in sex with him; 14 62 377 F.3d 49 (In Cir. 2004) defendant pretended to be 19 yr-old and sent numerous graphic emails asking minors for sex; also sent sexually- No Information charged images to them — including couple engaging in sex and an erect penis. Sentence vacated in light of Booker. 2nd Cir. U.S. v. Friedman, Unpublished Internet Email communications with actual 14 yr- 139 Fed. Appx. 330 (2nd 2422(6); old; defendant arranged to meet and Cir. 2005) 2423(6) actually met 14 yr-old girl and engage d in "sexual touching"; interrupted by security guard at mall; instant messages Consummated reflected defendant's intention to pres ent himself to the upon meeting 14 yr-old in an aroused state once they met; defendant found with condoms in his car; & when arrested photos were found on his digital camera, one of which he had sent to the 14 yr-old via email. Conviction affirmed but 81 month sentence vacated to be reconsidered in light of Booker. 3 EFTA00079416  CllURT ' zettaa;pette,-.:z! • r. , .7.... CASES .1::x , CYL, "34r v * 4 , FACIMTV - FAparpvg wATioN.. ; -CUARGE. U.S. v. Weisser, Internet AOL IM chats (over 6) between 45 yr- 2422(h); 417 F.3d 336 (2nd Cir. Sting old male from San Francisco and "II yr- 2423(b); 2005) old male" in NYC; discussed in graphic 2252A(a)( I ) language the kinds of previous sexual activity he had engaged in with other Not Consummated minor males and those he planned to engage in with the "11 yr-old" ; defendant arranged to meet the "boy" at Showed up at meeting a hotel in NYC; talked on the telephone twice (calls recorded); requested photos to verify age; made detailed plan for "11 yr-old" to skip school and stay with him at hotel in NYC; defendant sent "1I yr- old" his flight and hotel information and waited for "boy" in hotel room where arrested; police found defendant with sexual paraphernalia and CD in computer containing child porn which had been created from images downloaded from defendant's computer. 210 month sentence remanded to be reconsidered in light of U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005). 4 EFTA00079417  ."- t....7 S..• MC , yr . - VI ' ^ MiN)l h 7 A a 1‘,. - - • 1" . v. Minnici, Unpublished Internet U.S. Defendant drove 170 miles to engage in 2422(b); 128 Fed. Appx. 827 (2nd Sting sexual activities with "13 yr-old" after 2423(b) Cir. 2005) engaging in 1M chats, and telephone conversations; N chats . Defendant Not found to be in possession of graphic Consummated photographs. Defendant also engaged in IM chats with "14 yr-old" during which he expressed desire to travel to meet her; also other IM chats where defendant described "coaching" high-school girls in sexual terms; photo of grown man masturbating in front of a 2 yr-old. "Addictive" nature of Internet communications with minor warranted pre-trial detention and revocation of bond. 5 EFTA00079418 ,,,,,,,- -, , ; --, 4 rt < ts ,,2f.t t, nit 1 OVA, U.S. V. Brand, Internet Internet chat room; civilian posing as 2422(6); 467 F.3d 179 (2nd Cir. aga "13 yr-old girl" in "I Love Older Men" 2006) 2423(b) chat room; defendant proposed they meet and he "hug" her and they could fool Not Consummated. around and "do it all"; offered to "teach her" how to have sex and "how to be a Showed up at meeting woman"; civilian turned chats over to police; defendant used the telephone to plan and arrange to meet for sex; arrested when he showed up. Police found child porn on his computer and condoms in his car. U.S. v Miller, Neither, Gang members; pimp recruited underage 148 F.3d 207 (2' Cir. 2422(6); possibly cell girls for prostitution and traveled 1998) 2423(b) phone & interstate with them. beepers No Information U.S. v. Johnson. Internet Internet contact with 3 separate minor 221 F.3d 83 (2nO Cir. 2000) 2422(b); girls and traveled to engage in illegal 2423(b); sexual conduct. 2252(a)(1) & (a)(4)(B) Pled guilty to travel from MA to NY; VA to MD; & VA to MI to meet 13 yr- Consummated olds & have sex; and convincing minor to travel from MD to VA to have oral sex with him; all through the Internet. Pled guilty — 88 month sentence Affirmed. 6 EFTA00079419  :.,....,,i,. . ,, c ; rct., ....c..,--,;%...1-,,, ..p47.5,:„ : ...-; ,_„,____ A 4 4..› ,• .. .t-. :x.1.7 ..• :MINtrt Ya ..., ;Id *;`,-;-- -r ,. 1k.ii 17* - do--:4 e .- I x _F c , VS 3" Cir. U.S. v. Lee, Internet Internet chat 2252A(a)(l) & (b)( I); 315 F.3d 206 (3rd Cir. room"GirlsandOlderGuys"; 30 yr-old (a)(5)(B) & (b)(2); 2003) contacted minor in chat room; met actual 2423(b); 15 year-old in chat room; arranged to 2422(b) have her travel to meet him; they met and engaged in sexual acts. Also Consummated attempted to meet other minors online to engage in sexual activity; transmitted child porn online. Pled guilty to 2252A and 2422(b) and sentenced to 57 months; appealed sentence requiring supervised release condition requiring random polygraph testing. Affirmed. U.S. v. Awwad, Unpublished Internet Case involved typical Internet sting 2422(b); 2423(b) 184 Fed. Appx. 201 (3" sling operation. No specific facts available. . Cir. 2006) Not Consummated 7 EFTA00079420 U.S. v. Hlavac, Slip Copy No Defendant arrested for having sex with a 2422(b); 2423(b) Slip Copy, 2006 WL Not for Information 2 yr-old who was offered by the mother. 3368897 (3rd Cir. 2006) Publication Appealed 240 month sentence. Affirmed. Consummated U.S. v. Garcia, Slip Copy Internet 56 yr-old male met 14 yr-old on 2422(b); 2423(b) Slip Copy, 2007 WL Internet; traveled to meet her for sex 986874 (3'd Cir. 2007); Not for and had sex with her. Consummated see also U.S. v. Garcia, Publication Pled guilty but appealed 100 month, 5yr 2005 WL 1862409 (M.D. supervision & fines. Affirmed. Pa. 2005)(Unpublished) infra U.S. v. Tykarsky, Internet Internet chat room "Iloveoldermen2"; 2422(b); 446 F.3d 458 (3'd Cir. Sting defendant initiated IM chat with "14 yr- 2423(b) 2006) old"; indicated interest in having sex