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CONFIDENTIAL SUBMISSION TO
CHILD EXPLOITATION AND OBSCENITY SECTION
RE JEFFREY EPSTEIN
EFTA01080591
KIRKLAND & ELLIS LLP
AND AOILIARD PARTNUSIIIIS
Kenneth W. Starr
To
Facsimile:
ksta cam
www.klrkland.com
March 28, 2008
BY RAND DELIVERY
Honorable Sigal P. Mandelker
De ut Assistant Attorney General
Dear Ms. Mandelker and Mr. Oosterbaan:
Enclosed, please fmd our submission as discussed at the meeting. This submission
includes a brief executive summary; an analysis of the relevant federal statutes and their
application to the facts in this matter; a discussion of the Petite Policy, and an appendix, which
includes significant documentary evidence including testimony by witnesses that was obtained
after the Deferred Prosecution Agreement was signed. For the reasons we discuss in the
submission, we do not believe this is an appropriate case for federal prosecution.
I want to call your attention to the recent statements made under oath by some of the
alleged victims. As we have previously explained, the United States Attorney's Office has
refused to disclose the identities of the alleged victims, and First Assistant United States
Attorney has made the unusual demand that Mr. Epstein's defense team make no
effort to discover their identities or contact any of them. See November 5, 2007 Letter from J.
M g Exhibit 1. However, due to a procedure available under state law, and folloilite
wave of recent lawsuits that have been filed against Mr. Epstein (ironically by Mr.
former law partner), we have been able to engage in discovery and take sworn statements from
several of the alleged victims. These statements, which would never have been obtained under
the First Assistant's directive, are extremely important for two reasons. First, because this new
testimony post-dates the state investigation, all discussions regarding plea negotiations, the
execution of the federal Deferred Prosecution Agreement, and the drafting of any prosecution
memos, no federal or state prosecutor has ever reviewed this material.' Second, and without
I However, in connection with Ms. statement, which was taken by the FBI, she may have been
debriefed by either the FBI or a federal prosecutor.
Chicago Hong Kong London Munich New York San Francisco Washington.
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exception, the new evidence strongly supports the conclusion that this is not a case offederal
concern.
This recent testimony can be found in its entirety. See Exhibits 2-7. This evidence
clearly calls into serious doubt the notion that the alleged conduct constitutes a federal crime.
For example, one of the alleged victims adamantly states that she "never had sex with [Mr.
Epstein]" and that she did not know him and had absolutely no contact with him—be it through
Internet chatrooms, email, or phone—prior to her coming to his home. (deposition)
at 24, 30, Exhibit 3. The same woman stated that she was not persuaded, induced, enticed or
coerced by anyone to engage in any sexual activity. Id. at 31. This woman, who was described
as the "lynchpin" of the federal prosecution particularly due to her age at the time of the alleged
conduct, expressly admits to lying to Mr. Epstein about her age. Id. at 37. Another alleged
victim made similarly exculpatory statements to the FBI. She stated that not only did she always
make sure she had a fake ID with her and lie to Mr. Epstein by telling him she was 18 but that
she also had conversations with other women in which these women hoped that didn't
find out [their] age[s]." Tr. at 45, Exhibit 2. When this alleged "victim" was asked if Mr.
Epstein ever "pulled [her closer to him in a sexual way," she responded, "I wish. No, no, never,
ever, ever, no, never. is an awesome man, no." Id. at 21. Yet another alleged victim
stated that Mr. Epstein "never touched [her] physic," and that all she did was "massage[ ] his
back, his chest and his thighs and that was it." Tr. at 12-13, Exhibit 4. Finally, another
alleged victim stated in no unclear terms that there was never any discussion over the phone
about her coming over to Mr. Epstein's home to en a e in sexual activity: "The only thing that
ever occurred on any of these phone calls [with or another assistant was, `Are you
willing to come over,' or, `Would you like to come over and give a massage." Tr. at 15,
Exhibit 5A. And as each of these women confirmed, this woman stated: "[Mr. Epstein] never
tried to force me to do anything." Id. at 12.
We believe that these transcripts are of critical importance because they clearly indicate
that not only did no intercourse take place with these women, but that any sexual activity that
took place was unplanned and consensual. Furthermore, these women corroborate the fact that
there was no pattern of luring or enticing these women to do more than give a massage, and that
any activity that went beyond the massage was by no means forced upon them. We would urge
you to review these particular sworn statements in their entirety both because this is new
evidence that post-dates the Deferred Prosecution Agreement and because it discloses critical
information about the true facts and circumstances of this case.
Importantly, at your request, we have limited the scope of the submission. Thus, this
submission does not focus extensively on our concerns relating to the principles of federalism,
abuse of power, prosecutorial misconduct, or many of the improper tactics used by federal
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prosecutors? Notwithstanding that, we think it important that you be made aware of the types of
actions that have caused us serious concern, and have influenced the process and distorted the
facts:
• Federal involvement in a state criminal prosecution without any communication with
state authorities;
• The issuance of subpoenas and letters requesting documents whose subject matter had
no connection to the conduct at issue including medical records and tax returns (for
example, subpoenas were issued to an agent of Mr. Epstein's counsel without
following guidelines provided in the United States Attorneys' Manual which ask for:
"All documents and information related to the nature of the relationship between (the
agent] and Mr. Epstein, including all third party contacts had on behalf of Mr.
Epstein all agreements not limited to, retainer agreements; employment agreements;
billing statements . .. telephone logs . . . appointment calendars/datebooks . ..");
• The use of threats of expanding the investigation to include money transmittin• . .
g and
money laundering, though none of the mandatory prerequisites could be described
(for example, the federal prosecutors referred to the following litany of federal
statutes in a letter to a potential grand jury witness as the universe of relevant federal
violations: "including but not limited to, possible violations of Title 18, United States
Code, Sections 2, 371, 1512, 1591, 1952, 1956, 1960, 2421, 2422, and 2423.") nor
was any specific unlawful activity, which is the predicate act for a money laundering
charge, ever identified;
• The nomination of an individual closely associated with one of the Assistant United
States Attorneys involved in this case for the highly lucrative position of independent
attorney demanded for the alleged victims;
• The insistence on a victims notification letter, which invited all alleged victims to
make sworn statements at Mr. Epstein's state sentence even though there was no basis
for inviting alleged victims of federal crimes to make statements in a state
proceeding;
2 The relevant documents for each of these propositions are available for your review upon request.
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• Clear violations of ethics rules by discussing specific details of the case and
negotiations with a New York Times Reporter, and
• The relationship between the law firm representing several of the alleged victims in
civil suits against Mr. Epstein and the First Assistant United States Attorney from the
Southern District of Florida.
We believe these concerns are significant and that they should have bearing on the
reliability and integrity of the investigation. We respectfully reserve our right to raise our
concerns in the future.
Furthermore, our submission is guided by an overarching principle: Federal authority
should not be stretched to override the considered judgment of a duly elected state official who,
guided by a highly professional prosecutorial staff, carefully assessed the actual facts (not a
sensationalized, fictionalized version of them), applicable state law, and fundamental principles
of fair treatment as embodied in the practical experience of that highly respected State's
Attorney's Office. A career state prosecutor looked the witnesses in the eye, evaluated the facts,
and took this matter before a state grand jury, and thereafter invoked the judicial process of the
State of Florida to bring about a just and fair resolution consistent with that Office's experience.
The record is clear and undisputed: This matter began as a state matter in Palm Beach County; it
was treated with professionalism and thoroughly investigated by the State's Attorney's Office;
then, in an affront to principles of comity in our federal republic, disgruntled local police
officials seeking to subvert the thoughtful judgment of state officials aired their disagreement
publicly to an eager press and summoned the FBI. This should not be. But that is the undisputed
genesis of a federal investigation that, in view of Congress' intent embodied in the statutes that
we will closely analyze in this submission, should never have been commenced.
Federal authorities in this case have brushed aside federalism-inspired methods of
professional conduct, stretched both law and facts, and emphasized the importance of financial
gain -- not only to individual women but to private attorneys who stood to benefit financially
from the federal authorities' involvement. The result has been that many of the witnesses who
swore under oath that there was no inappropriate conduct whatever (much less a crime), have
now been inspired by the beguiling prospect of financial gain and have, filed civil complaints
demanding $50 million each. This should not be. There is no justification for stretching federal
law, stretching the facts, and then bringing the power of the federal government to tear apart
what the State of Florida has determined is a just and fair resolution -- namely, a felony
conviction under criminal statutes duly passed by the Florida legislature. That considered
judgment—grounded in law and in principles of fair treatment of all persons, regardless of the
wealth or station in life—should be respected in the finest traditions of federalism and comity.
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We hope that your office and the Department will consider all of the evidence included in
the submission and exhibits we put forth today, as well as the areas of concerns on which we did
not focus extensively, because as we believe that all aspects of reconsideration in this case fall
squarely within the overseeing responsibilities of the Department of Justice. We greatly
appreciate your time and consideration of this matter.
Sincerely,
Kenneth W. Starr
EFTA01080596
SUBMISSION TO THE UNITED STATES DEPARTMENT OF JUSTICE IN THE
MATTER OF E. EPSTEIN
This submission addresses (i) whether existing federal statutes, 18 U.S.C. §§ 2422(b),
1591 and 2423, apply to the conduct at issue; and (ii) whether the circumstances of this case
overcome the significant hurdles established by the Department's Petite Policy against dual and
successive prosecution. As explained below, existing statutes do not apply to Mr. Epstein's
conduct, and the Petite Policy's bar against successive prosecution has not been surmounted.
EXECUTIVE SUMMARY
Jeffrey Epstein, a successful self-made businessman with no prior criminal history,
should not be prosecuted federally for conduct that amounts to, at most, the solicitation of
prostitution. To prosecute Mr. Epstein federally based upon the facts presented by this case
would be an unprecedented exercise of federal power and use of federal resources. It would
effectively represent the adherence to a novel legal theory never before sanctioned by federal
law. As described more fully below, Mr. Epstein did not engage in any conduct covered by any
of the three federal criminal statutes being considered for federal prosecution, namely 18 U.S.C.
§§ 2422(b), 2423(b), and 1591. Moreover, the new evidence obtained through the use of a State
discovery statute and in connection with the civil lawsuits that have been filed confirms that
federal involvement in this matter is inappropriate. We highlight this evidence for you because it
has never been reviewed by the federal or state prosecutors overseeing this matter. See Exhibits
2-7.
Mr. Epstein has had a home in Palm Beach, Florida for the past 20 years. As a routine
part of Mr. Epstein's activities while at his residence in Florida, which included attending to
business, socializing, visiting his elderly mother, and attending to doctors' appointments, Mr.
Epstein often had masseuses come to his residence to provide him massages following his
exercise. Mr. Epstein did not personally schedule the massage appointments or communicate
with the women who provided massages to him, either over the telephone or otherwise, prior to
the time they arrived at his residence. Rather, all these appointments were scheduled by his
assistants. Often it was the masseuse who contacted Mr. Epstein's assistant inquiring about Mr.
Epstein's availability rather than vice versa, the message pads reflecting incoming calls to Mr.
Epstein's house, which were improperly seized during the execution of a State search warrant
(actions for which the State later apologized) are replete with requests by masseuses to return to
Mr. Epstein's residence to provide massages.' See Message Book Entries, Exhibit 8.
The majority of the massages were just that—massages and nothing else. Mr. Epstein
would routinely be on the telephone conducting business while he received his massage. At
times, the masseuses would be topless, and some sexual activity might occur, primarily self-
We are including some but not all examples of this pattern of behavior but are open to sharing more examples
won request
EFTA01080597
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masturbation on the part of Mr. Epstein. On other occasions, no sexual activity would occur at
all. There was no particular pattern or practice as to which masseuse would be scheduled ort any
particular day—if at all—or whether any sexual activity might occur. Indeed, many times Mr.
Epstein would not know which masseuse his assistants had scheduled until that individual
showed up. See =Toll Records, Exhibit 9. Mr. Epstein requested the individual be over
the age of 18. The vast majority of the masseuses were in fact 18 or over, and the testimony
available to us in this case demonstrates that those under the a e of 18 have admitted to
s
I iii matically
T lying to Mr. E ein about their age. See at 38-39, Exhibit 10;
r. at 9, Exhibit 4- r. at 6, 8, 22, 45, Exhibit 2, Tr. 13, Exhibit 11;
Tr. at 12, Exhibit 12; Tr. at 5, Exhibit 13; arr. at 1415, Exhibit 14.
In light of these facts, the case against Mr. Epstein lacks any of the hallmarks that typify
federal prosecution under the identified statutes. Not only did all of the conduct take place in
Mr. Epstein's home in Palm Beach, there was no commercial for-profit enterprise; no interstate
component; no use by Mr. Epstein of an instrumentality of interstate commerce; no violence; no
force; no alcohol; no drugs; and no child pornography.
An objective review of the facts should make clear that this is not a federal case. Indeed,
Mr. Epstein's counsel have reviewed every case involving 18 U.S.C. §§ 2422(b), 2423(b), and
1591 and have not found a single case suggesting that federal prosecution can be brought under
these facts. Instead, as the State Attorney's Office determined, and still believes, Mr. Epstein
was a customer, a "John," for whom prosecutions are best left to the State to address. Notably,
the Department of Justice has repeatedly recognized the predominant State role in such
prosecutions, even as recently as November 9, 2007.2
Besides lacking the facts necessary to support a federal prosecution, the federal
prosecutors responsible for this case have employed a process rife with prosecutorial
misconduct, abuse and profound lack of respect for the State Attorneys of Florida. First,
following the imposition of a State charge against Mr. Epstein, the local police chief, who
disagreed with the decision of both the State Attorney's Office and the Grand Jury, took actions
that undermined the credibility of everything that followed in the federal investigation; he
referred the matter to the FBI and at the same time released the police reports containing raw
allegations to the press. Significantly, these reports, when compared to the actual transcripts
of sworn taped interviews of witnesses, are demonstrably inaccurate. They contain both
glaring misquotes and omissions offact
2 See November 9, 2007 DOJ letter to the Judiciary, Exhibit 15 ("[P]rostitution-related offenses have historically
been prosecuted at the state or local level. This allocation between state and Federal enforcement authority does
not imply that these crimes are less serious, but rather reflects important structural allocations of responsibility
between state and Federal governments . . . the Department is not aware of any reasons why state and local
authorities are not currently able to pursue prostitution-related crimes such that Federal jurisdiction is
necessary.").
EFTA01080598
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The intentional release of the police reports to the press not only shaped how the
prosecutors in the United States Attorney's Office viewed the case, but more importantly,
influenced many of the witnesses who would later be interviewed by the FBI. Indeed, multiple
civil lawsuits have recently been filed Mr. Epstein (many by the former partner of First
Assistant United States Attorney MIE; and those suits contain word-for-word
narratives taken directly from the publicly released police report, narratives that are factually
inaccurate when compared to the actual transcripts.
Many of Mr. Epstein's alleged victims and other witnesses have recently given sworn
statements establishing that (i) Mr. Epstein was only interested in women over 18; (ii) they lied
and told Mr. Epstein they were 18 when they were not; (iii) there was no interstate travel; (iv)
there was no use of the Internet or telephone to communicate with Mr. Epstein; (v) there was no
inducement over any instrumentality of interstate commerce; (vi) there was no force or coercion
by anyone. See Herman Public Statement, Exhibit 16.
The facts—as opposed to the deeply flawed press reports—were carefully assessed by
experienced State prosecutors who aggressively enforce State criminal laws. Following an
extensive 15-month State investigation by the Florida State Attorney's Office in Palm Beach, led
by the chief of the Sex Crimes Division, Mr. Epstein was indicted by a State Grand fury on a
single felony count of solicitation of prostitution. During the investigation, the State prosecutor
exhaustively reviewed the evidence, met face-to-face with many of the alleged victims,
considered their credibility—or lack thereof—and considered the extent of exculpatory evidence,
including a psychosexual evaluation of Mr. Epstein and a polygraph examination demonstrating
that Mr. Epstein genuinely believed at the time of the alleged conduct that the State's key
witness was over the age of 18. Then, after months of negotiations, the State reached what it
believed was an appropriate resolution of the case. Importantly, this resolution was consistent
with that of cases involving other defendants who had engaged in similar conduct.
Implementation of the State resolution of the case was held in abeyance, however, due to the
unexpected commencement of the successive federal criminal investigation.
After many months of attempting, to no avail, to fit this case into its vision of what it
initially believed (based upon the inaccurate police reports) to be a wide-spread commercial
trafficking ring targeting minors, the United States Attorney's Office for the Southern District of
Florida agreed to defer prosecution to the State. Notably, however, the Agreement also
contained many unorthodox requirements, including requiring Mr. Epstein not only to blindly
agree to pay an undisclosed list of alleged victims a minimum of $150,000 each, but also to pay
for an attorney to represent such unidentified victims if any chose to bring civil litigation
against him. The United States Attorney's Office also represented at the time the Agreement
was signed that it had identified, on a list, up to 40 alleged minor victims of federal crimes, and
to bolster the claim that they were minors suggested that they required a guardian ad litem. This
is all untrue. In fact, it was later firmly established that only one girl on the list was still a minor,
and the other women on the list, after examining their testimony, could in no way qualify as
"victims." There is now also a sworn statement to the effect that the FBI attempted to persuade
EFTA01080599
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at least one of these women that she was in fact a "victim" of federal crimes when she herself
edly confirmed that she was not. See, e.g.
rig Tr. at 9-12, Exhibit 5A; =Tr. at 7, Exhibit 5B.
Tr. at 10, 19-22, 31, 57-58, Exhibit 2;
Beyond that, because the United States Attorney's Office had not, and still has not, made
any effort to coordinate with its State counterpart about the case. Thus, the Deferred Prosecution
Agreement put Mr. Epstein in the extraordinary position of requiring him, not the federal
authorities, to convince the State Attorney's Office to impose a more severe charge and
punishment than the State Attorney's Office (and the State grand jury) had determined to be
appropriate.
As a result, Mr. Epstein, and the United States Attorney's Office—which has insisted that
its prosecutorial decision in this case was mandated by policy decisions in Washington, D.C.—
has now asked the Department of Justice to review whether a federal prosecution is warranted.
Respectfully, a federal prosecution of this matter should be declined because (1) it is not
supported by the facts; (2) it would require an unprecedented interpretation of the federal statutes
in question; (3) it would unnecessarily result in an expansion of federal powers into an area
properly reserved to the States; and (4) it would require an unequal application of the law.
We urge the Department of Justice to review the transcript and then all of
the new evidence in this case. On February 20, 2008, —the alleged victim upon
which this entire investigation was initially launched3—was deposed. Under oath, Ms.
reiterated that she "swore on her mother's grave" that she and Mr. Epstein did not engage in sex
of any kind. See (Deposition) at 24, Exhibit 3. She also reaffirmed that she lied to
Mr. Epstein about her age because it was her understandiri,f she was not over 18, Mr.
Epstein would not let her in his house. See id. at 32. Ms. further repeatedly explained
that prior to the time she went to Mr. Epstein's house (she went there only once), nobody ever
tried to coerce her to engage in sexual activity with Mr. Epstein, not over the Internet, not over
the telephone, not at all, period. See id at 31. No federal prosecution should proceed on these
facts.
Among the attachments appended to this submission are several new depositions and
sworn statements of persons whom the prosecutors have alleged are "victims" of Mr. Epstein's
conduct, as well as copies of recent civil lawsuits, several for $50 million dollars, brought by the
victim/witness-claimants. Each of these attachments (even the allegations in the civil complaints
3 The Policetgirt indicates that the originating complainants in the investigation were and
father and stepmother. See Police Report at 11, Exhibit 17. Nollihe Police Report or
the search warrant affidavit) omits are the fact that both Mr. and Mrs. have prior federal
felony fraud convictions.
EFTA01080600
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themselves) negates thepredicates for a federal prosecution.° The consistent representations of
witnesses such as a and the
la and
civil complainants and their attorneys, confirm the following key points: first, there was no
telephonic communication that met the requirements of § 2422(b); second, the underage women
who visited Mr. Epstein lied about their age in order to gain admittance into his home; third, any
women who brought their underage friends to Mr. Epstein counseled them to lie about their ages
in order to gain admittance into his home; fourth, there was no routine or habit suggesting an
intent to transform a massage into an illegal sexual act. Finally, there was no force, coercion,
fraud, violence, drugs, or even alcohol present in connection with Mr. Epstein's encounters with
these women.
Mr. Epstein's counsel believe that further depositions, sworn statements, or interviews
would, if permitted to occur prior to a final determination on the viability of any federal
prosecution, would establish that the facts simply do not fit within any proper construction of any
of the federal criminal statutes under consideration.
4 First Assistant United States Attorney sought to preclude Mr. F. stein or his agents from
communicating with the alleged "victims. See November 5, 2007 Letter from .1. Exhibit 1. Due to
established state procedures and following the initiation of the civil lawsuits, Mr. Epstein's counsel was able
to
take limited discovery of certain women in this matter.
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I. BACKGROUND
This case involves conduct that, although prosecutable under State law (and indeed is
being prosecuted under State law), will not support a federal conviction. Thefacts simply do not
meet the elements of any federal offense, and in particular not those required for a
prosecution under 18 U.S.C. § 24220). This case is not about using the telephone, the Internet,
or any other facility of interstate commerce to lure, induce, entice, persuade or coerce
unsuspecting women to Mr. Epstein's residence to engage in unlawful sexual activity. It is not
about traveling in interstate commerce to engage in unlawful sexual activity. Nor does it involve
a commercial sex enterprise. It is certainly not the quintessential sting case involving children.
Instead, this case is about fiends who spoke to friends (in person) and brought them to
Mr. Epstein's residence to perform massages on Mr. Epstein. To the extent sexual activity
prohibited by State law occurred (which we deny), any inducement, enticement, and/or
persuasion necessary to make out a violation of federal law took place during a face-to-face
encounter and involved spur-of-the-moment decisions. It is, furthermore, a case about young
women who sought to provide Mr. Epstein massages either by calling his assistants or through
fiends who they knew could introduce them to Mr. Epstein. It is a case where, in instance after
instance, these young women have testified that they lied or otherwise concealed their ages and
counseled others to do the same. It is a case in which Mr. Epstein and his assistants routinely
were unaware of the identities of many of these young women before they arrived and, in fact,
some visited Mr. Epstein's home only once. Finally, it is a case about purely local activity,
involving local actors, and affecting local interests and thus, should be handled by local
authorities.
The suggestion that calling to schedule massage appointments satisfies the elements of an
offense under 18 U.S.C. § 2242 is belied by the evidence in this case, which establishes (i) that
most of the masseuses were over 18, and that they were scheduled depending on their
availability, and not on any instructions from Mr. Epstein either as to a particular young woman
or a particular set of qualifications (e.g., underage); (ii) Mr. Epstein would not have known at the
time the phone call was made that any particular masseuse was being scheduled and therefore
that any underage masseuse was being scheduled; (iii) Mr. Epstein's "directive" to all the women
was to refer only other young women who were at least 18 years of age; (iv) Mr. Epstein would
not know the identities of the masseuses until after they were scheduled and in many instances
until they arrived, and, therefore, under no circumstances would he have known their ages; (v)
there were many occasions where the masseuse who was called and agreed to visit (or herself
called and asked to visit) was not the young woman who actually provided the massage, but
rather, a friend; (vi) decisions as to the type of conduct Mr. Epstein would request that the young
women engage in during any particular massage were made in the massage room, while the
massage was being conducted, in a face-to-face encounter—never in advance and never over the
phone; and (vii) many appointments resulted in massages that did not involve unlawful sexual
activity, where the masseuses were of age or no sexual activity was engaged in at all, or even no
massages were performed. These facts are repeatedly corroborated by the actual transcripts.
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Under such circumstances, it cannot be reasonably said that when Mr. Epstein purportedly
caused his assistants to arrange the massage appointments (directly or indirectly), he did so with
the intent to lure, induce, entice, persuade, or coerce unlawful sexual activity with minors.
Nor can it be said that the scheduling calls to "repeat" masseuses can be considered an
inducement based on claims that many of the young women previously engaged in unlawful
sexual activity with Mr. Epstein. Not every call, even to "repeat" masseuses, resulted
in
unlawful sexual activity. And as such, calling to schedule an appointment, without more, is not
tantamount to luring, inducing, enticing, persuading, or coercing someone to engage in such
activity. In this regard, to the extent a masseuse visited Mr. Epstein's home on more than one
occasion, there is no evidence that Mr. Epstein or the macs use knew what would occur during
the next massage, let alone that they would engage in unlawful sexual activity. As many stated
in sworn statements: during the course of a massage Mr. Epstein would at times request and/or
offer them additional money to engage in activities in which they had never previously engaged,
and some of them on some occasions would accept while others would not. See, e.g.,
'Fr. at 7, Exhibit 18; In Tr. 1 at 6, 7, 20, 21, 24-25, Exhibit 19; Tr. at 9, 18, Exhibit
20; Tr. at 4, Exhibit 13. Further, no two massages with the same woman could be
predicted to be the same. Thus, a call arranging a second or third visit from the same woman did
not ever mean, implicitly or explicitly, "more of the same".
Further, Mr. Epstein would not ask his assistants to schedule a particular masseuse for a
particular visit, let alone an underage masseuse; rather, he either asked his assistants to schedule
massages while he was in Palm Beach or, more regularly, the assistants took it upon themselves
to schedule the appointments. As a result, Mr. Epstein never knew who the individual would be
until after the massages were scheduled. He requested that the masseuses be at least 18 years of
wand expected them to be so and in fact most were). See Tr. at 12, Exhibit 12;
Tr. at 13, Exhibit 11; at 38-39, Exhibit 10; Tr. at 13, 22, Exhibit 2;
Tr. at 9, 22, 23, Exhibit 5A; and Tr. at 16-17, 18, Exhibit 4.
Specifically, there is no evidence that Mr. Epstein targeted minors as his assistants called
various masseusesS many of whom were clearly o
to
determine who was available and wished to come to Mr. Epstein's residence and provide a
massage. This fact is readily confirmed by the assistant's toll records. Mr. Epstein's assistant.
The decision of whom to call was not guided by instructions from Mr. Epstein, had nothing to do
with the age of the masseuse, nothing to do with the identity of the masseuse, and most
particularliiithing to do with the conduct that would occur (except, of course, a massage).
See, e.g., Tr. at 14-16. Exhibit 5A. The identity of the individual who ultimately provided
a massage was simply a matter of who expressed an interest, or was brought by a friend. In the
latter circumstance, neither Mr. Epstein nor his assistants knew who the masseuse would be,
other than by name (if even by name), let alone knew her age or the conduct in which she and
Mr. Epstein would ultimately engage on any particular occasion. See, e.g., . at 3, 19,
Exhibit 10; Tr. at 19-20, 23-24, Exhibit 2; see also Message Book Entries, Exhibit 8.
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In many cases, the young women themselves, without any prompting by Mr. Epstein or
his assistants, would leave a message seeking to visit Mr. Epstein at his home. See,
Tr. at 6, Exhibit 21; see also Message Book Entries, Exhibit 8. The proactive step of calling to
request to provide a massage is the antithesis of having been lured, induced, enticed, persuaded
or coerced. It demonstrates that these women sought to engage in the conduct alleged, even
assuming these women had been to the house before and engaged in such activities. Indeed, as
word of the opportunity s read amongst groups of friends, others sought out thaportunity
through friends. See Tr. at 15, Exhibit 14; Ti. at 45, 57, Exhibit 2; Tr. at 22,
Exhibit 19; Tr. at 13, Exhibit 22; Police Report at 24, Exhibit 17.
Finally, many massages involved conduct which even if engaged in with an underage
masseuse is not proscribed by federal law, either because the masseuses were of age and the calls
thus resulted in conduct between two consenting adults; or because conduct with underage
masseuses only involved topless massages, massages in undergarments, or naked massages.
These points are made over and over in the record before you, as the following sampling
illustrates:
the youngest woman involved in this case, and the catalyst for and
subject of the State prosecution, came to Mr. Epstein's house by way of Mille —the
same who swore under oath that Maiin wanted women between the ages of
18 and 20 to perform massages. It was who approached (in
person), not Mr. Epstein and not one of Mr. Epstein's assistants. And, it was who
spoke to Mr. Epstein's assistant to arrange an appointment for Ms. to orm a
massage. Neither Mr. Epstein nor his assistants were given information about
Nor were details of the massa c discussed over the phone. The appointment was simply
scheduled for a "friend" of presumably one who met the directive of being between 18
and 20 years of age, to provide Mr. Epstein with a massage. The only fact about Ms.
that Mr. Epstein or any assistant knew was her name (but not age), and they learned of her name
only after she first visited Mr. Epstein's home. Indeed, it was not until the State investigation
that it became known to Mr. Epstein that Ms. was underage. Ms.
constructed an elaborate back story to make her claim of being 18 credible and stuck to the story.
Ms. provided one massage and never returned to Mr. Epstein's residence. Thus, there
is no factual basis from which to claim that any federal law was broken here.
The relevant circumstances of encounters with Mr. Epstein are
different, but they lead to the same conclusion. A review of the phone Message Book Entries
obtained from Mr. Epstein's residence, as a result of seizure during the execution
of a questionable search warrant, is telling. Ms. like many of the other young women
involved in this case, actively sought to participate in the activities in which she engaged with
Mr. Epstein. She, like many others, did so by making unsolicited telephone calls to Mr.
Epstein's assistants looking for a chance to provide Mr. Epstein with a massage. Ms. MIE,
like others, left messages to the effect: "do you have work for me." Message Book Entries,
EFTA01080604
Page 9
Exhibit 8 (the following entries are also included: "was wondering if she can work. . ." and "I'd
like to work for him today"). Again, these facts do not support a federal case.
The conduct o is likewise illustrative of why this is not a federal case. In
the same way Ms. as referred to Mr. Epstein and brought to his home without having
been introduced or acquainted with Mr. E stein or his assistants in any manner, Ms. = too,
was referred by someone el who told her to lie to Mr. Epstein about r age,
which she did. =Tr. at 8-9 Exhibit 5A. Ms. = too, admits that she lied to Mr. Epstein
about her age. And, Ms. ME like so many others, called Mr. Epstein's residence seeking the
opportunity to provide Mr. Epstein a massage and leaving messages such as: "Please call her."
See Message Book Entries, Exhibit 8. FinailMs. =confirmed that there was absolutely no
element of coercion or force involved. Tr. at 9-10, 13, Exhibit 5A ("And like I said, he
also, you know, reassured if I wasn't comfortable with anything, then just tell him ...").
And, there are other young women who left similar messages (see Message Book Entries,
Exhibit 8); who were introduced to Mr. stein in a similar fashion see Tr. at 2-3,
Exhibit 23; Tr. at 3, Exhibit 19; =MR. at 4, 6, Exhibit 20; r. at 2, Exhibit
22; 3, Exhibit 11; MMTr. at 2-3, Exhibit 24; at 3, Exhibit 25; Tr.
at 3, Exhibit 13; air. at 3, Exhibit 26); who visited the residence only once and prior to
that were unknown to Mr. Epstein and his staff (see Tr. at 10, Exhibit 26; 1.Tr. at
11, Exhibit 11;al Tr. at 5-6, Exhibit 4; 1 Tr. at 7-8, Exhibit 27); who only ormed
laves (see Tr. at 4, 5, 6-7, 9, 11, Exhibit 13; NTL at 4, 5, 6, 10, Exhibit 24;
Tr. at 7, Exhibit 25); who never en aged in unlawful sexual activity or any sexual activity
for that matter (id. ienerak; Tr., Exhibit 20; INTr., Exhibit 27; Police Report at
78, Exhibit 17; Tr., Exhibit 24, Tr., Exhibit 26; and Tr., Exhibit 2); or,
who lied and counseled others to lie about their ages (see j at 38-39, Exhibit 10;
Tr. at 16, Exhibit 4; Tr. at 6, 8, 22, 45, • bit 2, Tr. 13, Exhibit 11;
Tr. at 12, Exhibit 12; iTr. at 14-15, Exhibit 14).
These facts do not support a federal conviction. There was no use of the phones to lure,
induce, entice, persuade or coerce another to engage in unlawful sexual activity. There was no
travel for the purpose of engaging in such activity. And, no commercial enterprise from which
Mr. Epstein derived a financial benefit. To conclude that merely scheduling a massage under
these circumstances, or returning an uninitiated call would support a federal prosecution under
§ 2242 stands in stark contrast to that which would support a conviction under the statute.
Nor do the facts of this case meet the requirements for a conviction under 18 U.S.C. §
2423(b). As discussed in greater detail below, the amount of time Mr. Epstein spent at his home
in Florida, and the extensive list of his Florida-based activities clearly undermines the contention
that he was a New York resident, government filing also corroborate this fact, and defeats the
notion that his purpose in traveling to Florida was to engage in illicit sexual conduct. On the
contrary, Mr. Epstein returned to Florida to engage in the routine activities of daily living.
EFTA01080605
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Finally, as will be explained, this case does not involve the quintessential conduct present
in prosecutions under the commercial sexual enterprise statue: there is no trafficking; no "force,
fraud or coercion"; no threats; no sexual servitude; no financial venture; no profit from a
financial venture; no forced work in the commercial sex industry; and no transporting of children
from underdeveloped countries to the United States or even within the United States across state
lines. Nor was there any conduct, whatsoever, which could be considered so extremely abusive
or violent, that an expansion of the statutes beyond their intended purpose would be warranted.
In short, the facts of this case fail to support a charge under any of the statutes identified.
At its worst, the conduct violates Florida State law and should be prosecuted as such—which it
has been, by the State authorities.
IL STATUTORY ANALYSIS
Federal prosecutors have identified three statutes under which Mr. Epstein might be
charged: 18 U.S.C. §§ 1591, 2422, and 2423. None of these statutes applies to this matter.
Instead, as their plain text and history indicate, these statutes were designed to address problems
that are truly national and international in scope: human trafficking in § 1591; telephone or
Internet sexual predation in § 2422; and sex tourism in § 2423. Unlike the alleged conduct at
issue here, those problems unquestionably present multi -jurisdictional problems that States and
localities cannot confront effectively on their own. But Mr. Epstein's conduct was purely local
in nature, and the State of Florida and Palm Beach County are effectively prosecuting and
punishing that conduct.
Any attempt to federalize Mr. Epstein's case would require prosecutors to stretch these
statutes far beyond prior precedent—and well beyond their text and purposes. Indeed, Mr.
Epstein's alleged conduct involves quintessentially State and local offenses that never before
have been thought to fall within the purview of federal law. Mr. Epstein's alleged conduct was
non-violent—there was absolutely no force, coercion or fraud. Mr. Epstein's alleged conduct
occurred at his home—he did not travel to other locations (much less cross State lines) for
surreptitious meetings with known minors. Mr. Epstein's alleged conduct did not involve the use
or reliance on the Internet, email, or on faceless chat room meetings. No drugs were involved.
Mr. Epstein did not profit from any underage sex. And the young women's own testimony
confirms that their alleged meetings with Mr. Epstein lacked any semblance of violence or
predation. Most of the women were 18 or over, and those minors who have testified
acknowledge that they falsely represented themselves to be at least 18. Many of the young
women telephoned Mr. Epstein's residence and left messages on seized documents seeking to
give massages; some even came to Mr. Epstein's residence bringing friends or their boyfriends.
None was explicitly induced or persuaded to have illegal sex during phone conversations, as
federal law would require in order to convert this State-law solicitation case into a federal matter.
Finally, we have examined the hundreds of federal prosecutions under §§ 2422, 1591 and
2423. See Table of § 2422 Cases, Exhibit 28; Table of § 1591 Cases, Exhibit 29; Table of
§ 2423 Cases, Exhibit 30. Not one resembles this case; a federal prosecution on these alleged
EFTA01080606
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facts would be entirely unprecedented. There is simply no reason for the Department to strain
these statutes to achieve that result. This is a State and local matter, and State authorities have
actively, competently, and thoroughly addressed it.
A. 18 U.S.C. § 2422(b)
Section 2422(b) reads as follows:
Whoever, using the mail or any facility or means of interstate or foreign
commerce ... knowingly persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a criminal offense, or attempts
to do so, shall be fined under this title and imprisoned not less than [5] years or
for life.
(Emphasis added.)5
By its plain text, the statute thus applies only to those who "use" the "means of interstate
... commerce" to "knowingly" convince a minor to engage in prohibited sexual conduct. That is
not wha
CHILD EXPLOITATION AND OBSCENITY SECTION
RE JEFFREY EPSTEIN
EFTA01080591
KIRKLAND & ELLIS LLP
AND AOILIARD PARTNUSIIIIS
Kenneth W. Starr
To
Facsimile:
ksta cam
www.klrkland.com
March 28, 2008
BY RAND DELIVERY
Honorable Sigal P. Mandelker
De ut Assistant Attorney General
Dear Ms. Mandelker and Mr. Oosterbaan:
Enclosed, please fmd our submission as discussed at the meeting. This submission
includes a brief executive summary; an analysis of the relevant federal statutes and their
application to the facts in this matter; a discussion of the Petite Policy, and an appendix, which
includes significant documentary evidence including testimony by witnesses that was obtained
after the Deferred Prosecution Agreement was signed. For the reasons we discuss in the
submission, we do not believe this is an appropriate case for federal prosecution.
I want to call your attention to the recent statements made under oath by some of the
alleged victims. As we have previously explained, the United States Attorney's Office has
refused to disclose the identities of the alleged victims, and First Assistant United States
Attorney has made the unusual demand that Mr. Epstein's defense team make no
effort to discover their identities or contact any of them. See November 5, 2007 Letter from J.
M g Exhibit 1. However, due to a procedure available under state law, and folloilite
wave of recent lawsuits that have been filed against Mr. Epstein (ironically by Mr.
former law partner), we have been able to engage in discovery and take sworn statements from
several of the alleged victims. These statements, which would never have been obtained under
the First Assistant's directive, are extremely important for two reasons. First, because this new
testimony post-dates the state investigation, all discussions regarding plea negotiations, the
execution of the federal Deferred Prosecution Agreement, and the drafting of any prosecution
memos, no federal or state prosecutor has ever reviewed this material.' Second, and without
I However, in connection with Ms. statement, which was taken by the FBI, she may have been
debriefed by either the FBI or a federal prosecutor.
Chicago Hong Kong London Munich New York San Francisco Washington.
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KIRKLAND & ELLIS LLP
March 28, 2008
Page 2
exception, the new evidence strongly supports the conclusion that this is not a case offederal
concern.
This recent testimony can be found in its entirety. See Exhibits 2-7. This evidence
clearly calls into serious doubt the notion that the alleged conduct constitutes a federal crime.
For example, one of the alleged victims adamantly states that she "never had sex with [Mr.
Epstein]" and that she did not know him and had absolutely no contact with him—be it through
Internet chatrooms, email, or phone—prior to her coming to his home. (deposition)
at 24, 30, Exhibit 3. The same woman stated that she was not persuaded, induced, enticed or
coerced by anyone to engage in any sexual activity. Id. at 31. This woman, who was described
as the "lynchpin" of the federal prosecution particularly due to her age at the time of the alleged
conduct, expressly admits to lying to Mr. Epstein about her age. Id. at 37. Another alleged
victim made similarly exculpatory statements to the FBI. She stated that not only did she always
make sure she had a fake ID with her and lie to Mr. Epstein by telling him she was 18 but that
she also had conversations with other women in which these women hoped that didn't
find out [their] age[s]." Tr. at 45, Exhibit 2. When this alleged "victim" was asked if Mr.
Epstein ever "pulled [her closer to him in a sexual way," she responded, "I wish. No, no, never,
ever, ever, no, never. is an awesome man, no." Id. at 21. Yet another alleged victim
stated that Mr. Epstein "never touched [her] physic," and that all she did was "massage[ ] his
back, his chest and his thighs and that was it." Tr. at 12-13, Exhibit 4. Finally, another
alleged victim stated in no unclear terms that there was never any discussion over the phone
about her coming over to Mr. Epstein's home to en a e in sexual activity: "The only thing that
ever occurred on any of these phone calls [with or another assistant was, `Are you
willing to come over,' or, `Would you like to come over and give a massage." Tr. at 15,
Exhibit 5A. And as each of these women confirmed, this woman stated: "[Mr. Epstein] never
tried to force me to do anything." Id. at 12.
We believe that these transcripts are of critical importance because they clearly indicate
that not only did no intercourse take place with these women, but that any sexual activity that
took place was unplanned and consensual. Furthermore, these women corroborate the fact that
there was no pattern of luring or enticing these women to do more than give a massage, and that
any activity that went beyond the massage was by no means forced upon them. We would urge
you to review these particular sworn statements in their entirety both because this is new
evidence that post-dates the Deferred Prosecution Agreement and because it discloses critical
information about the true facts and circumstances of this case.
Importantly, at your request, we have limited the scope of the submission. Thus, this
submission does not focus extensively on our concerns relating to the principles of federalism,
abuse of power, prosecutorial misconduct, or many of the improper tactics used by federal
EFTA01080593
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March 28, 2008
Page 3
prosecutors? Notwithstanding that, we think it important that you be made aware of the types of
actions that have caused us serious concern, and have influenced the process and distorted the
facts:
• Federal involvement in a state criminal prosecution without any communication with
state authorities;
• The issuance of subpoenas and letters requesting documents whose subject matter had
no connection to the conduct at issue including medical records and tax returns (for
example, subpoenas were issued to an agent of Mr. Epstein's counsel without
following guidelines provided in the United States Attorneys' Manual which ask for:
"All documents and information related to the nature of the relationship between (the
agent] and Mr. Epstein, including all third party contacts had on behalf of Mr.
Epstein all agreements not limited to, retainer agreements; employment agreements;
billing statements . .. telephone logs . . . appointment calendars/datebooks . ..");
• The use of threats of expanding the investigation to include money transmittin• . .
g and
money laundering, though none of the mandatory prerequisites could be described
(for example, the federal prosecutors referred to the following litany of federal
statutes in a letter to a potential grand jury witness as the universe of relevant federal
violations: "including but not limited to, possible violations of Title 18, United States
Code, Sections 2, 371, 1512, 1591, 1952, 1956, 1960, 2421, 2422, and 2423.") nor
was any specific unlawful activity, which is the predicate act for a money laundering
charge, ever identified;
• The nomination of an individual closely associated with one of the Assistant United
States Attorneys involved in this case for the highly lucrative position of independent
attorney demanded for the alleged victims;
• The insistence on a victims notification letter, which invited all alleged victims to
make sworn statements at Mr. Epstein's state sentence even though there was no basis
for inviting alleged victims of federal crimes to make statements in a state
proceeding;
2 The relevant documents for each of these propositions are available for your review upon request.
EFTA01080594
KIRKLAND & ELLIS LLP
March 28, 2008
Page 4
• Clear violations of ethics rules by discussing specific details of the case and
negotiations with a New York Times Reporter, and
• The relationship between the law firm representing several of the alleged victims in
civil suits against Mr. Epstein and the First Assistant United States Attorney from the
Southern District of Florida.
We believe these concerns are significant and that they should have bearing on the
reliability and integrity of the investigation. We respectfully reserve our right to raise our
concerns in the future.
Furthermore, our submission is guided by an overarching principle: Federal authority
should not be stretched to override the considered judgment of a duly elected state official who,
guided by a highly professional prosecutorial staff, carefully assessed the actual facts (not a
sensationalized, fictionalized version of them), applicable state law, and fundamental principles
of fair treatment as embodied in the practical experience of that highly respected State's
Attorney's Office. A career state prosecutor looked the witnesses in the eye, evaluated the facts,
and took this matter before a state grand jury, and thereafter invoked the judicial process of the
State of Florida to bring about a just and fair resolution consistent with that Office's experience.
The record is clear and undisputed: This matter began as a state matter in Palm Beach County; it
was treated with professionalism and thoroughly investigated by the State's Attorney's Office;
then, in an affront to principles of comity in our federal republic, disgruntled local police
officials seeking to subvert the thoughtful judgment of state officials aired their disagreement
publicly to an eager press and summoned the FBI. This should not be. But that is the undisputed
genesis of a federal investigation that, in view of Congress' intent embodied in the statutes that
we will closely analyze in this submission, should never have been commenced.
Federal authorities in this case have brushed aside federalism-inspired methods of
professional conduct, stretched both law and facts, and emphasized the importance of financial
gain -- not only to individual women but to private attorneys who stood to benefit financially
from the federal authorities' involvement. The result has been that many of the witnesses who
swore under oath that there was no inappropriate conduct whatever (much less a crime), have
now been inspired by the beguiling prospect of financial gain and have, filed civil complaints
demanding $50 million each. This should not be. There is no justification for stretching federal
law, stretching the facts, and then bringing the power of the federal government to tear apart
what the State of Florida has determined is a just and fair resolution -- namely, a felony
conviction under criminal statutes duly passed by the Florida legislature. That considered
judgment—grounded in law and in principles of fair treatment of all persons, regardless of the
wealth or station in life—should be respected in the finest traditions of federalism and comity.
EFTA01080595
KIRKl_AND & ELLIS LLP
March 28, 2008
Page 5
We hope that your office and the Department will consider all of the evidence included in
the submission and exhibits we put forth today, as well as the areas of concerns on which we did
not focus extensively, because as we believe that all aspects of reconsideration in this case fall
squarely within the overseeing responsibilities of the Department of Justice. We greatly
appreciate your time and consideration of this matter.
Sincerely,
Kenneth W. Starr
EFTA01080596
SUBMISSION TO THE UNITED STATES DEPARTMENT OF JUSTICE IN THE
MATTER OF E. EPSTEIN
This submission addresses (i) whether existing federal statutes, 18 U.S.C. §§ 2422(b),
1591 and 2423, apply to the conduct at issue; and (ii) whether the circumstances of this case
overcome the significant hurdles established by the Department's Petite Policy against dual and
successive prosecution. As explained below, existing statutes do not apply to Mr. Epstein's
conduct, and the Petite Policy's bar against successive prosecution has not been surmounted.
EXECUTIVE SUMMARY
Jeffrey Epstein, a successful self-made businessman with no prior criminal history,
should not be prosecuted federally for conduct that amounts to, at most, the solicitation of
prostitution. To prosecute Mr. Epstein federally based upon the facts presented by this case
would be an unprecedented exercise of federal power and use of federal resources. It would
effectively represent the adherence to a novel legal theory never before sanctioned by federal
law. As described more fully below, Mr. Epstein did not engage in any conduct covered by any
of the three federal criminal statutes being considered for federal prosecution, namely 18 U.S.C.
§§ 2422(b), 2423(b), and 1591. Moreover, the new evidence obtained through the use of a State
discovery statute and in connection with the civil lawsuits that have been filed confirms that
federal involvement in this matter is inappropriate. We highlight this evidence for you because it
has never been reviewed by the federal or state prosecutors overseeing this matter. See Exhibits
2-7.
Mr. Epstein has had a home in Palm Beach, Florida for the past 20 years. As a routine
part of Mr. Epstein's activities while at his residence in Florida, which included attending to
business, socializing, visiting his elderly mother, and attending to doctors' appointments, Mr.
Epstein often had masseuses come to his residence to provide him massages following his
exercise. Mr. Epstein did not personally schedule the massage appointments or communicate
with the women who provided massages to him, either over the telephone or otherwise, prior to
the time they arrived at his residence. Rather, all these appointments were scheduled by his
assistants. Often it was the masseuse who contacted Mr. Epstein's assistant inquiring about Mr.
Epstein's availability rather than vice versa, the message pads reflecting incoming calls to Mr.
Epstein's house, which were improperly seized during the execution of a State search warrant
(actions for which the State later apologized) are replete with requests by masseuses to return to
Mr. Epstein's residence to provide massages.' See Message Book Entries, Exhibit 8.
The majority of the massages were just that—massages and nothing else. Mr. Epstein
would routinely be on the telephone conducting business while he received his massage. At
times, the masseuses would be topless, and some sexual activity might occur, primarily self-
We are including some but not all examples of this pattern of behavior but are open to sharing more examples
won request
EFTA01080597
Page 2
masturbation on the part of Mr. Epstein. On other occasions, no sexual activity would occur at
all. There was no particular pattern or practice as to which masseuse would be scheduled ort any
particular day—if at all—or whether any sexual activity might occur. Indeed, many times Mr.
Epstein would not know which masseuse his assistants had scheduled until that individual
showed up. See =Toll Records, Exhibit 9. Mr. Epstein requested the individual be over
the age of 18. The vast majority of the masseuses were in fact 18 or over, and the testimony
available to us in this case demonstrates that those under the a e of 18 have admitted to
s
I iii matically
T lying to Mr. E ein about their age. See at 38-39, Exhibit 10;
r. at 9, Exhibit 4- r. at 6, 8, 22, 45, Exhibit 2, Tr. 13, Exhibit 11;
Tr. at 12, Exhibit 12; Tr. at 5, Exhibit 13; arr. at 1415, Exhibit 14.
In light of these facts, the case against Mr. Epstein lacks any of the hallmarks that typify
federal prosecution under the identified statutes. Not only did all of the conduct take place in
Mr. Epstein's home in Palm Beach, there was no commercial for-profit enterprise; no interstate
component; no use by Mr. Epstein of an instrumentality of interstate commerce; no violence; no
force; no alcohol; no drugs; and no child pornography.
An objective review of the facts should make clear that this is not a federal case. Indeed,
Mr. Epstein's counsel have reviewed every case involving 18 U.S.C. §§ 2422(b), 2423(b), and
1591 and have not found a single case suggesting that federal prosecution can be brought under
these facts. Instead, as the State Attorney's Office determined, and still believes, Mr. Epstein
was a customer, a "John," for whom prosecutions are best left to the State to address. Notably,
the Department of Justice has repeatedly recognized the predominant State role in such
prosecutions, even as recently as November 9, 2007.2
Besides lacking the facts necessary to support a federal prosecution, the federal
prosecutors responsible for this case have employed a process rife with prosecutorial
misconduct, abuse and profound lack of respect for the State Attorneys of Florida. First,
following the imposition of a State charge against Mr. Epstein, the local police chief, who
disagreed with the decision of both the State Attorney's Office and the Grand Jury, took actions
that undermined the credibility of everything that followed in the federal investigation; he
referred the matter to the FBI and at the same time released the police reports containing raw
allegations to the press. Significantly, these reports, when compared to the actual transcripts
of sworn taped interviews of witnesses, are demonstrably inaccurate. They contain both
glaring misquotes and omissions offact
2 See November 9, 2007 DOJ letter to the Judiciary, Exhibit 15 ("[P]rostitution-related offenses have historically
been prosecuted at the state or local level. This allocation between state and Federal enforcement authority does
not imply that these crimes are less serious, but rather reflects important structural allocations of responsibility
between state and Federal governments . . . the Department is not aware of any reasons why state and local
authorities are not currently able to pursue prostitution-related crimes such that Federal jurisdiction is
necessary.").
EFTA01080598
Page 3
The intentional release of the police reports to the press not only shaped how the
prosecutors in the United States Attorney's Office viewed the case, but more importantly,
influenced many of the witnesses who would later be interviewed by the FBI. Indeed, multiple
civil lawsuits have recently been filed Mr. Epstein (many by the former partner of First
Assistant United States Attorney MIE; and those suits contain word-for-word
narratives taken directly from the publicly released police report, narratives that are factually
inaccurate when compared to the actual transcripts.
Many of Mr. Epstein's alleged victims and other witnesses have recently given sworn
statements establishing that (i) Mr. Epstein was only interested in women over 18; (ii) they lied
and told Mr. Epstein they were 18 when they were not; (iii) there was no interstate travel; (iv)
there was no use of the Internet or telephone to communicate with Mr. Epstein; (v) there was no
inducement over any instrumentality of interstate commerce; (vi) there was no force or coercion
by anyone. See Herman Public Statement, Exhibit 16.
The facts—as opposed to the deeply flawed press reports—were carefully assessed by
experienced State prosecutors who aggressively enforce State criminal laws. Following an
extensive 15-month State investigation by the Florida State Attorney's Office in Palm Beach, led
by the chief of the Sex Crimes Division, Mr. Epstein was indicted by a State Grand fury on a
single felony count of solicitation of prostitution. During the investigation, the State prosecutor
exhaustively reviewed the evidence, met face-to-face with many of the alleged victims,
considered their credibility—or lack thereof—and considered the extent of exculpatory evidence,
including a psychosexual evaluation of Mr. Epstein and a polygraph examination demonstrating
that Mr. Epstein genuinely believed at the time of the alleged conduct that the State's key
witness was over the age of 18. Then, after months of negotiations, the State reached what it
believed was an appropriate resolution of the case. Importantly, this resolution was consistent
with that of cases involving other defendants who had engaged in similar conduct.
Implementation of the State resolution of the case was held in abeyance, however, due to the
unexpected commencement of the successive federal criminal investigation.
After many months of attempting, to no avail, to fit this case into its vision of what it
initially believed (based upon the inaccurate police reports) to be a wide-spread commercial
trafficking ring targeting minors, the United States Attorney's Office for the Southern District of
Florida agreed to defer prosecution to the State. Notably, however, the Agreement also
contained many unorthodox requirements, including requiring Mr. Epstein not only to blindly
agree to pay an undisclosed list of alleged victims a minimum of $150,000 each, but also to pay
for an attorney to represent such unidentified victims if any chose to bring civil litigation
against him. The United States Attorney's Office also represented at the time the Agreement
was signed that it had identified, on a list, up to 40 alleged minor victims of federal crimes, and
to bolster the claim that they were minors suggested that they required a guardian ad litem. This
is all untrue. In fact, it was later firmly established that only one girl on the list was still a minor,
and the other women on the list, after examining their testimony, could in no way qualify as
"victims." There is now also a sworn statement to the effect that the FBI attempted to persuade
EFTA01080599
Page 4
at least one of these women that she was in fact a "victim" of federal crimes when she herself
edly confirmed that she was not. See, e.g.
rig Tr. at 9-12, Exhibit 5A; =Tr. at 7, Exhibit 5B.
Tr. at 10, 19-22, 31, 57-58, Exhibit 2;
Beyond that, because the United States Attorney's Office had not, and still has not, made
any effort to coordinate with its State counterpart about the case. Thus, the Deferred Prosecution
Agreement put Mr. Epstein in the extraordinary position of requiring him, not the federal
authorities, to convince the State Attorney's Office to impose a more severe charge and
punishment than the State Attorney's Office (and the State grand jury) had determined to be
appropriate.
As a result, Mr. Epstein, and the United States Attorney's Office—which has insisted that
its prosecutorial decision in this case was mandated by policy decisions in Washington, D.C.—
has now asked the Department of Justice to review whether a federal prosecution is warranted.
Respectfully, a federal prosecution of this matter should be declined because (1) it is not
supported by the facts; (2) it would require an unprecedented interpretation of the federal statutes
in question; (3) it would unnecessarily result in an expansion of federal powers into an area
properly reserved to the States; and (4) it would require an unequal application of the law.
We urge the Department of Justice to review the transcript and then all of
the new evidence in this case. On February 20, 2008, —the alleged victim upon
which this entire investigation was initially launched3—was deposed. Under oath, Ms.
reiterated that she "swore on her mother's grave" that she and Mr. Epstein did not engage in sex
of any kind. See (Deposition) at 24, Exhibit 3. She also reaffirmed that she lied to
Mr. Epstein about her age because it was her understandiri,f she was not over 18, Mr.
Epstein would not let her in his house. See id. at 32. Ms. further repeatedly explained
that prior to the time she went to Mr. Epstein's house (she went there only once), nobody ever
tried to coerce her to engage in sexual activity with Mr. Epstein, not over the Internet, not over
the telephone, not at all, period. See id at 31. No federal prosecution should proceed on these
facts.
Among the attachments appended to this submission are several new depositions and
sworn statements of persons whom the prosecutors have alleged are "victims" of Mr. Epstein's
conduct, as well as copies of recent civil lawsuits, several for $50 million dollars, brought by the
victim/witness-claimants. Each of these attachments (even the allegations in the civil complaints
3 The Policetgirt indicates that the originating complainants in the investigation were and
father and stepmother. See Police Report at 11, Exhibit 17. Nollihe Police Report or
the search warrant affidavit) omits are the fact that both Mr. and Mrs. have prior federal
felony fraud convictions.
EFTA01080600
Page 5
themselves) negates thepredicates for a federal prosecution.° The consistent representations of
witnesses such as a and the
la and
civil complainants and their attorneys, confirm the following key points: first, there was no
telephonic communication that met the requirements of § 2422(b); second, the underage women
who visited Mr. Epstein lied about their age in order to gain admittance into his home; third, any
women who brought their underage friends to Mr. Epstein counseled them to lie about their ages
in order to gain admittance into his home; fourth, there was no routine or habit suggesting an
intent to transform a massage into an illegal sexual act. Finally, there was no force, coercion,
fraud, violence, drugs, or even alcohol present in connection with Mr. Epstein's encounters with
these women.
Mr. Epstein's counsel believe that further depositions, sworn statements, or interviews
would, if permitted to occur prior to a final determination on the viability of any federal
prosecution, would establish that the facts simply do not fit within any proper construction of any
of the federal criminal statutes under consideration.
4 First Assistant United States Attorney sought to preclude Mr. F. stein or his agents from
communicating with the alleged "victims. See November 5, 2007 Letter from .1. Exhibit 1. Due to
established state procedures and following the initiation of the civil lawsuits, Mr. Epstein's counsel was able
to
take limited discovery of certain women in this matter.
EFTA01080601
Page 6
I. BACKGROUND
This case involves conduct that, although prosecutable under State law (and indeed is
being prosecuted under State law), will not support a federal conviction. Thefacts simply do not
meet the elements of any federal offense, and in particular not those required for a
prosecution under 18 U.S.C. § 24220). This case is not about using the telephone, the Internet,
or any other facility of interstate commerce to lure, induce, entice, persuade or coerce
unsuspecting women to Mr. Epstein's residence to engage in unlawful sexual activity. It is not
about traveling in interstate commerce to engage in unlawful sexual activity. Nor does it involve
a commercial sex enterprise. It is certainly not the quintessential sting case involving children.
Instead, this case is about fiends who spoke to friends (in person) and brought them to
Mr. Epstein's residence to perform massages on Mr. Epstein. To the extent sexual activity
prohibited by State law occurred (which we deny), any inducement, enticement, and/or
persuasion necessary to make out a violation of federal law took place during a face-to-face
encounter and involved spur-of-the-moment decisions. It is, furthermore, a case about young
women who sought to provide Mr. Epstein massages either by calling his assistants or through
fiends who they knew could introduce them to Mr. Epstein. It is a case where, in instance after
instance, these young women have testified that they lied or otherwise concealed their ages and
counseled others to do the same. It is a case in which Mr. Epstein and his assistants routinely
were unaware of the identities of many of these young women before they arrived and, in fact,
some visited Mr. Epstein's home only once. Finally, it is a case about purely local activity,
involving local actors, and affecting local interests and thus, should be handled by local
authorities.
The suggestion that calling to schedule massage appointments satisfies the elements of an
offense under 18 U.S.C. § 2242 is belied by the evidence in this case, which establishes (i) that
most of the masseuses were over 18, and that they were scheduled depending on their
availability, and not on any instructions from Mr. Epstein either as to a particular young woman
or a particular set of qualifications (e.g., underage); (ii) Mr. Epstein would not have known at the
time the phone call was made that any particular masseuse was being scheduled and therefore
that any underage masseuse was being scheduled; (iii) Mr. Epstein's "directive" to all the women
was to refer only other young women who were at least 18 years of age; (iv) Mr. Epstein would
not know the identities of the masseuses until after they were scheduled and in many instances
until they arrived, and, therefore, under no circumstances would he have known their ages; (v)
there were many occasions where the masseuse who was called and agreed to visit (or herself
called and asked to visit) was not the young woman who actually provided the massage, but
rather, a friend; (vi) decisions as to the type of conduct Mr. Epstein would request that the young
women engage in during any particular massage were made in the massage room, while the
massage was being conducted, in a face-to-face encounter—never in advance and never over the
phone; and (vii) many appointments resulted in massages that did not involve unlawful sexual
activity, where the masseuses were of age or no sexual activity was engaged in at all, or even no
massages were performed. These facts are repeatedly corroborated by the actual transcripts.
EFTA01080602
Page 7
Under such circumstances, it cannot be reasonably said that when Mr. Epstein purportedly
caused his assistants to arrange the massage appointments (directly or indirectly), he did so with
the intent to lure, induce, entice, persuade, or coerce unlawful sexual activity with minors.
Nor can it be said that the scheduling calls to "repeat" masseuses can be considered an
inducement based on claims that many of the young women previously engaged in unlawful
sexual activity with Mr. Epstein. Not every call, even to "repeat" masseuses, resulted
in
unlawful sexual activity. And as such, calling to schedule an appointment, without more, is not
tantamount to luring, inducing, enticing, persuading, or coercing someone to engage in such
activity. In this regard, to the extent a masseuse visited Mr. Epstein's home on more than one
occasion, there is no evidence that Mr. Epstein or the macs use knew what would occur during
the next massage, let alone that they would engage in unlawful sexual activity. As many stated
in sworn statements: during the course of a massage Mr. Epstein would at times request and/or
offer them additional money to engage in activities in which they had never previously engaged,
and some of them on some occasions would accept while others would not. See, e.g.,
'Fr. at 7, Exhibit 18; In Tr. 1 at 6, 7, 20, 21, 24-25, Exhibit 19; Tr. at 9, 18, Exhibit
20; Tr. at 4, Exhibit 13. Further, no two massages with the same woman could be
predicted to be the same. Thus, a call arranging a second or third visit from the same woman did
not ever mean, implicitly or explicitly, "more of the same".
Further, Mr. Epstein would not ask his assistants to schedule a particular masseuse for a
particular visit, let alone an underage masseuse; rather, he either asked his assistants to schedule
massages while he was in Palm Beach or, more regularly, the assistants took it upon themselves
to schedule the appointments. As a result, Mr. Epstein never knew who the individual would be
until after the massages were scheduled. He requested that the masseuses be at least 18 years of
wand expected them to be so and in fact most were). See Tr. at 12, Exhibit 12;
Tr. at 13, Exhibit 11; at 38-39, Exhibit 10; Tr. at 13, 22, Exhibit 2;
Tr. at 9, 22, 23, Exhibit 5A; and Tr. at 16-17, 18, Exhibit 4.
Specifically, there is no evidence that Mr. Epstein targeted minors as his assistants called
various masseusesS many of whom were clearly o
to
determine who was available and wished to come to Mr. Epstein's residence and provide a
massage. This fact is readily confirmed by the assistant's toll records. Mr. Epstein's assistant.
The decision of whom to call was not guided by instructions from Mr. Epstein, had nothing to do
with the age of the masseuse, nothing to do with the identity of the masseuse, and most
particularliiithing to do with the conduct that would occur (except, of course, a massage).
See, e.g., Tr. at 14-16. Exhibit 5A. The identity of the individual who ultimately provided
a massage was simply a matter of who expressed an interest, or was brought by a friend. In the
latter circumstance, neither Mr. Epstein nor his assistants knew who the masseuse would be,
other than by name (if even by name), let alone knew her age or the conduct in which she and
Mr. Epstein would ultimately engage on any particular occasion. See, e.g., . at 3, 19,
Exhibit 10; Tr. at 19-20, 23-24, Exhibit 2; see also Message Book Entries, Exhibit 8.
EFTA01080603
Page 8
In many cases, the young women themselves, without any prompting by Mr. Epstein or
his assistants, would leave a message seeking to visit Mr. Epstein at his home. See,
Tr. at 6, Exhibit 21; see also Message Book Entries, Exhibit 8. The proactive step of calling to
request to provide a massage is the antithesis of having been lured, induced, enticed, persuaded
or coerced. It demonstrates that these women sought to engage in the conduct alleged, even
assuming these women had been to the house before and engaged in such activities. Indeed, as
word of the opportunity s read amongst groups of friends, others sought out thaportunity
through friends. See Tr. at 15, Exhibit 14; Ti. at 45, 57, Exhibit 2; Tr. at 22,
Exhibit 19; Tr. at 13, Exhibit 22; Police Report at 24, Exhibit 17.
Finally, many massages involved conduct which even if engaged in with an underage
masseuse is not proscribed by federal law, either because the masseuses were of age and the calls
thus resulted in conduct between two consenting adults; or because conduct with underage
masseuses only involved topless massages, massages in undergarments, or naked massages.
These points are made over and over in the record before you, as the following sampling
illustrates:
the youngest woman involved in this case, and the catalyst for and
subject of the State prosecution, came to Mr. Epstein's house by way of Mille —the
same who swore under oath that Maiin wanted women between the ages of
18 and 20 to perform massages. It was who approached (in
person), not Mr. Epstein and not one of Mr. Epstein's assistants. And, it was who
spoke to Mr. Epstein's assistant to arrange an appointment for Ms. to orm a
massage. Neither Mr. Epstein nor his assistants were given information about
Nor were details of the massa c discussed over the phone. The appointment was simply
scheduled for a "friend" of presumably one who met the directive of being between 18
and 20 years of age, to provide Mr. Epstein with a massage. The only fact about Ms.
that Mr. Epstein or any assistant knew was her name (but not age), and they learned of her name
only after she first visited Mr. Epstein's home. Indeed, it was not until the State investigation
that it became known to Mr. Epstein that Ms. was underage. Ms.
constructed an elaborate back story to make her claim of being 18 credible and stuck to the story.
Ms. provided one massage and never returned to Mr. Epstein's residence. Thus, there
is no factual basis from which to claim that any federal law was broken here.
The relevant circumstances of encounters with Mr. Epstein are
different, but they lead to the same conclusion. A review of the phone Message Book Entries
obtained from Mr. Epstein's residence, as a result of seizure during the execution
of a questionable search warrant, is telling. Ms. like many of the other young women
involved in this case, actively sought to participate in the activities in which she engaged with
Mr. Epstein. She, like many others, did so by making unsolicited telephone calls to Mr.
Epstein's assistants looking for a chance to provide Mr. Epstein with a massage. Ms. MIE,
like others, left messages to the effect: "do you have work for me." Message Book Entries,
EFTA01080604
Page 9
Exhibit 8 (the following entries are also included: "was wondering if she can work. . ." and "I'd
like to work for him today"). Again, these facts do not support a federal case.
The conduct o is likewise illustrative of why this is not a federal case. In
the same way Ms. as referred to Mr. Epstein and brought to his home without having
been introduced or acquainted with Mr. E stein or his assistants in any manner, Ms. = too,
was referred by someone el who told her to lie to Mr. Epstein about r age,
which she did. =Tr. at 8-9 Exhibit 5A. Ms. = too, admits that she lied to Mr. Epstein
about her age. And, Ms. ME like so many others, called Mr. Epstein's residence seeking the
opportunity to provide Mr. Epstein a massage and leaving messages such as: "Please call her."
See Message Book Entries, Exhibit 8. FinailMs. =confirmed that there was absolutely no
element of coercion or force involved. Tr. at 9-10, 13, Exhibit 5A ("And like I said, he
also, you know, reassured if I wasn't comfortable with anything, then just tell him ...").
And, there are other young women who left similar messages (see Message Book Entries,
Exhibit 8); who were introduced to Mr. stein in a similar fashion see Tr. at 2-3,
Exhibit 23; Tr. at 3, Exhibit 19; =MR. at 4, 6, Exhibit 20; r. at 2, Exhibit
22; 3, Exhibit 11; MMTr. at 2-3, Exhibit 24; at 3, Exhibit 25; Tr.
at 3, Exhibit 13; air. at 3, Exhibit 26); who visited the residence only once and prior to
that were unknown to Mr. Epstein and his staff (see Tr. at 10, Exhibit 26; 1.Tr. at
11, Exhibit 11;al Tr. at 5-6, Exhibit 4; 1 Tr. at 7-8, Exhibit 27); who only ormed
laves (see Tr. at 4, 5, 6-7, 9, 11, Exhibit 13; NTL at 4, 5, 6, 10, Exhibit 24;
Tr. at 7, Exhibit 25); who never en aged in unlawful sexual activity or any sexual activity
for that matter (id. ienerak; Tr., Exhibit 20; INTr., Exhibit 27; Police Report at
78, Exhibit 17; Tr., Exhibit 24, Tr., Exhibit 26; and Tr., Exhibit 2); or,
who lied and counseled others to lie about their ages (see j at 38-39, Exhibit 10;
Tr. at 16, Exhibit 4; Tr. at 6, 8, 22, 45, • bit 2, Tr. 13, Exhibit 11;
Tr. at 12, Exhibit 12; iTr. at 14-15, Exhibit 14).
These facts do not support a federal conviction. There was no use of the phones to lure,
induce, entice, persuade or coerce another to engage in unlawful sexual activity. There was no
travel for the purpose of engaging in such activity. And, no commercial enterprise from which
Mr. Epstein derived a financial benefit. To conclude that merely scheduling a massage under
these circumstances, or returning an uninitiated call would support a federal prosecution under
§ 2242 stands in stark contrast to that which would support a conviction under the statute.
Nor do the facts of this case meet the requirements for a conviction under 18 U.S.C. §
2423(b). As discussed in greater detail below, the amount of time Mr. Epstein spent at his home
in Florida, and the extensive list of his Florida-based activities clearly undermines the contention
that he was a New York resident, government filing also corroborate this fact, and defeats the
notion that his purpose in traveling to Florida was to engage in illicit sexual conduct. On the
contrary, Mr. Epstein returned to Florida to engage in the routine activities of daily living.
EFTA01080605
Page 10
Finally, as will be explained, this case does not involve the quintessential conduct present
in prosecutions under the commercial sexual enterprise statue: there is no trafficking; no "force,
fraud or coercion"; no threats; no sexual servitude; no financial venture; no profit from a
financial venture; no forced work in the commercial sex industry; and no transporting of children
from underdeveloped countries to the United States or even within the United States across state
lines. Nor was there any conduct, whatsoever, which could be considered so extremely abusive
or violent, that an expansion of the statutes beyond their intended purpose would be warranted.
In short, the facts of this case fail to support a charge under any of the statutes identified.
At its worst, the conduct violates Florida State law and should be prosecuted as such—which it
has been, by the State authorities.
IL STATUTORY ANALYSIS
Federal prosecutors have identified three statutes under which Mr. Epstein might be
charged: 18 U.S.C. §§ 1591, 2422, and 2423. None of these statutes applies to this matter.
Instead, as their plain text and history indicate, these statutes were designed to address problems
that are truly national and international in scope: human trafficking in § 1591; telephone or
Internet sexual predation in § 2422; and sex tourism in § 2423. Unlike the alleged conduct at
issue here, those problems unquestionably present multi -jurisdictional problems that States and
localities cannot confront effectively on their own. But Mr. Epstein's conduct was purely local
in nature, and the State of Florida and Palm Beach County are effectively prosecuting and
punishing that conduct.
Any attempt to federalize Mr. Epstein's case would require prosecutors to stretch these
statutes far beyond prior precedent—and well beyond their text and purposes. Indeed, Mr.
Epstein's alleged conduct involves quintessentially State and local offenses that never before
have been thought to fall within the purview of federal law. Mr. Epstein's alleged conduct was
non-violent—there was absolutely no force, coercion or fraud. Mr. Epstein's alleged conduct
occurred at his home—he did not travel to other locations (much less cross State lines) for
surreptitious meetings with known minors. Mr. Epstein's alleged conduct did not involve the use
or reliance on the Internet, email, or on faceless chat room meetings. No drugs were involved.
Mr. Epstein did not profit from any underage sex. And the young women's own testimony
confirms that their alleged meetings with Mr. Epstein lacked any semblance of violence or
predation. Most of the women were 18 or over, and those minors who have testified
acknowledge that they falsely represented themselves to be at least 18. Many of the young
women telephoned Mr. Epstein's residence and left messages on seized documents seeking to
give massages; some even came to Mr. Epstein's residence bringing friends or their boyfriends.
None was explicitly induced or persuaded to have illegal sex during phone conversations, as
federal law would require in order to convert this State-law solicitation case into a federal matter.
Finally, we have examined the hundreds of federal prosecutions under §§ 2422, 1591 and
2423. See Table of § 2422 Cases, Exhibit 28; Table of § 1591 Cases, Exhibit 29; Table of
§ 2423 Cases, Exhibit 30. Not one resembles this case; a federal prosecution on these alleged
EFTA01080606
Page 11
facts would be entirely unprecedented. There is simply no reason for the Department to strain
these statutes to achieve that result. This is a State and local matter, and State authorities have
actively, competently, and thoroughly addressed it.
A. 18 U.S.C. § 2422(b)
Section 2422(b) reads as follows:
Whoever, using the mail or any facility or means of interstate or foreign
commerce ... knowingly persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a criminal offense, or attempts
to do so, shall be fined under this title and imprisoned not less than [5] years or
for life.
(Emphasis added.)5
By its plain text, the statute thus applies only to those who "use" the "means of interstate
... commerce" to "knowingly" convince a minor to engage in prohibited sexual conduct. That is
not wha