EFTA00605403.pdf

STERN & KILCULLEN, LLC COUNSELORS AT LAW LING LAU 76 UVINGSTON AVENUE DE HERBERT J. STERN MELISSA L. NIGLIO GELA 0 ROSELAND, NEW JERSEY 0706 SHAUN T. HUGHEY KEVIN M. KILCUU-EN JEFFREY SPEISER NATHAN J. STEIN JOEL M. SILVERSTEIN MICHAEL DINGER EOWARO 5. NATHAN BRIAN J. DEBOER PASQUALE J. RUFOLO HOWARD B. TAT JOHN P. INGLESINO EDUARDO J. JIMENEZ LINDA A. ELFENBEIN N TERRY L. TRANTINA RICHARD EDWARD HAMILTO OF COUNSEL JOHN P. WYCISKALA ALAIN WOMAN November 19, 2007 LISA 0. TAYLOR MARK W. RUFOLO STEVEN D. GORELICK Alan Dershowitz, Esq. Hari Re: Jeffrey Epstein Dear Mr. Dershowitz: edures and methods employed by the You have asked me to review the proc thern District of Florida in injecting itself into United States Attorney's Office for the Sou ion of your client, Jeffrey Epstein. the State of Florida investigation and prosecut th herein, my review indicates that In short, and as will be set forth at greater leng the lved themselves in the investigation by the federal authorities inappropriately invo ular and coercive tactics to override the state authorities and employed highly irreg r es as to the appropriate disposition of thei judgment of state law enforcement authoriti nst arly unusual here is that the allegations agai case against your client. What is particul of and traditionally investigated and disposed Mr. Epstein are the type that are routinely es only rarely, if ever, retains jurisdiction. by state authorities and which the United Stat obvious purpose of the federal authorities to What is even more extraordinary here is the EFTA00605403 ..Alan Dershowitz, Esq. November 19, 2007 Page 2 stances of limited, if not actually dictate the outcome of a state proceeding under circum nonexistent federal interest. My Background al justice both on the I have extensive experience in the administration of crimin ant District Attorney in New state and on the federal level. I was employed as an Assist One of the investigations I was York County from February 1962 until October 1965. until 1969 I was employed by responsible for was the death of Malcolm X. From 1965 as a trial attorney in the organized the United States Department of Justice in Washington I was assigned to investigate crime and racketeering section of the Criminal Division. government and in the trade and to prosecute cases involving wrongdoing in municipal the United States Attorney for union movement bi 1969 I became the Chief Assistant to acting United States Attorney the District of New Jersey. From 1970 to 1971, I was the 1973, I was the United States for the District of New Jersey. From 1971 through ons I personally conducted or Attorney for the District of New Jersey. In these positi and federal level as well as supervised trials of numerous public officials on both the state law enforcement officials at a myriad of other federal crimes, and worked closely with a United States District Judge the local and state levels. From 1973 through 1987, I was al trials and proceedings. In for the District of New Jersey and presided over many crimin State to be the United States 1979 I was selected by the United States Department of who allegedly highjacked an Judge for Berlin to preside over a trial of individuals 1987, I have been in the private airplane from East Germany to West Berlin. Since EFTA00605404 Alan Dershowitz, Esq. November 19, 2007 Page 3 practice of law and have represented clients in various jurisdictions who have been investigated by federal and state authorities. Attached is a copy of my resume. Thus, I am very familiar with the operation of the criminal justice system both on the federal and state levels, as well as the factors used by federal and state prosecutors in charging defendants. The Allegations Mr. Epstein is alleged to have had improper sexual contact, solely in Florida, with women who were under the age of 18. Mr. Epstein maintained residences both in New York and Florida and would repeatedly fly from New York to Florida where his primary residence was located. It is alleged that before he would travel to Florida, Mr. Epstein would ask his assistant to make various arrangements, including appointments with physicians, business meetings and the like. He would also have her arrange for women to come to his home to provide him with massages, for which they were paid. Mr. Epstein says that he specifically directed his assistant that be wished the masseuses to be young, but that they should all be over 18 years of age. There are allegations that during the massage, Mr. Epstein would occasionally masturbate, and with the woman's consent, would on occasion ask to touch her. There are also disputed allegations that on occasions there may have also been penetration. What does not seem to be in dispute is that there are no claims that Mr. Epstein transported any minors in interstate commerce, nor did he troll the internet or use the EFTA00605405 Alan Dershowitz, Esq. November 19, 2007 Page 4 intemet to identify or lure any minor to engage in any improper conduct. There is no credible evidence that Mr. Epstein specifically targeted young children for sexual activity of any sort or that he is a sexual predator who preys on children, although it later turned out that some of the women were younger than 18. Nor are there any plausible claims that Mr. Epstein used force or threats against anyone or that be profited financially. The matter came under investigation by the State officials in Florida. After Mr. Epstein learned of the allegations, he fully cooperated with the State authorities. The investigation revealed what is stated above - - no violence was ever used, there was no targeting of minors, there was no coercion, financial gain etc. - - and, importantly, there were serious creditability problems with many of the witnesses, at least one of whom refused to comply with a grand jury subpoena to testify. Accordingly, after a 13 month investigation, the State offered Mr. Epstein a plea to aggravated assault with a sentence of 5 years probation. The State also agreed that it would not be necessary for Mr. Epstein to plead to an offense that would require him to register as a sex offender with state authorities, since state prosecutors did not regard him as posing a danger to children or others. After a disgruntled local police officer complained of the terms of the plea agreement between Mr. Epstein and the State of Florida, the United States Attorney's office interjected itself in the disposition of this case, conducted an investigation, and advised Mr. Epstein that he must consent to a plea with the State of Florida that would require: a) at least an 18 month jail sentence, b) that he register as a sex offender, c) that EFTA00605406 Alan Dershowitz, Esq. November 19, 2007 Page 5 he agree, without even knowing their names, that women who claimed they provided him with massages - - as many as 40 persons - - be allowed to sue him, d) that he would not contest jurisdiction or the facts of those suits, e) that each woman be entitled to 5150,000 in damages (or an amount agreed to by the parties), and that the United States Attorney's office select the attorney for the women (a business colleague of the boyfriend of the Assistant United States Attorney handling the case was initially chosen). Mr. Epstein was threatened that upon a failure by him to comply with all of these demands, the United States Attorney would bring additional charges against him for violations of federal law, specifically 18 U.S.C. § 2422(c)(Enticement of a Minor to Engage in Sexual Activity) and/or 18 U.S.C. § 2423(b) (Travel with Intent to Engage in Illegal Sexual Conduct) and perhaps money laundering, 18 U.S.C. § 1956(aX3). These threats, if implemented, would have exposed Mr. Epstein to a period of incarceration of approximately 180 months (15 years) under the Sentencing Guidelines. I have reviewed the submissions made on behalf of Mr. Epstein to the United States Attorney's office in the Southern District of Florida, which concluded that the cited federal statutes are inapplicable to the allegations made against Mr. Epstein and therefore, as a matter of substantive federal law, it was inappropriate for the United States Attorney's office to threaten such a prosecution. In my professional opinion, these EFTA00605407 Alan Dershowitz, Esq. November 19, 2007 Page 6 conclusions are correct. I will first address those statutes and explain why I believe the conclusions reached in the prior submissions were appropriate. 18 U.S.C. 6 2422(b) (Enticement of a Minor) Section 2422(b) provides: Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States 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 and not more than 30 years. Section 2422(b) was added to the Mann Act ten years ago, as part of the Telecommunications Act of 1996, in order to combat intemet predators. As the Eleventh Circuit has recognized: (T)his particular sub-section was included in Title V of the Telecommunications Act, which is the section titled 'Obscenity and Violence,' after the Senate Judiciary Committee held a hearing regarding child endangerment via the intemet. So United Sates v. Searcy, 418 F.3d 1193, 1197 (11) Cir. 2005) (citing H.R. Rep. No. 104-458, at 193 (1996) (Conf.Rep.)). See also K. Seto, Note: How Should Legislation Deal with Children and the Victims and Perpetrators of Cyherstallcine?, 9 Cardozo Women's L.J. 67 (2002). In enacting subsection (b), Congressional concerns were focused on a particular and recent phenomenon. Young people were using the Internet in ever-increasing EFTA00605408 Alan Dershowitz, Esq. November 19, 2007 Page 7 numbers, and it was proving to be a dangerous place. According to a DOJ study, one in five youths (ages 10 to 17) had received a sexual approach or solicitation over the intemet in the previous year. One in 33 had received an "aggressive sexual solicitation," in which a predator had asked a young person to meet somewhere, called a young person on the phone, and/or sent the young person correspondence, money, or gifts through the U.S. Postal Service. See Office for Victims of Crime, U.S. Dep't of Justice, OVC Bulletin. "Internet Crimes Against Children" (3d prtg. 2005). Unfortunately, computers and the intemet had facilitated sexual predators who prey on children. Historically, child predators found their victims in public places where children tend to gather, such as schoolyards and playgrounds. But, as Congress recognized, with so many children online, the intemet provided predators a new place - cyberspace - to target children for criminal acts. Use of the intemet, which occurs in private, and the secrecy and deception it permits, eliminates many of the risks predators face when making contact in person, and presents special law enforcement problems that are difficult for any local jurisdiction to tackle. The statutory language and reported decisions confirm the statute's important but narrow focus. Unlike 18 U.S.C. §§ 2241 et sm, § 2422(b) does not establish any federal sex crimes with a minor. Section 2422's subject is not sex, sexual activity, or face-to-face sexual exploitation of minors. Such behavior remains a matter of state, not federal, concern. EFTA00605409 Alan Dershowitz, Esq. November 19, 2007 Page 8 Section 2422(b) defines a crime of communication, not of contact. It makes unlawful a narrow category of communication, one not protected by the First Amendment because the target is a minor, and the subject is one that enjoys no constitutional protection. Both the attempt and the substantive crime defined by § 2422 are complete at the time that communication with a minor, or purported minor, takes place; the essence of the crime occurs before any face to face meeting or any sexual activity with a minor has taken place, regardless of whether any meeting or activity ever eventuates. In sum, the statute was designed to address, and is therefore limited to situations where a person, purposefully and knowingly, targets a minor, and communicates with that minor by means of an instrumentality of interstate commerce. This conduct almost always originates in a chatroom on the Internet or by email - - to use the anonymity and opportunities for deception permitted by these media - - to persuade a person he knows or believes to be a minor to engage in sexual activity, which would constitute a crime under state law, were it to occur. The reported cases reveal that is the way federal prosecutors have understood the statute. Virtually all of the prosecutions brought under § 2422(b), resulting in published decisions, have essentially involved a standard fact pattern where an undercover agent pretends to be a young teenager on-line, and is directly solicitated. United States v. Father, 251 F.3d 510 (5ih Cir. 2001). See also United States v. Root 296 F.3d 1222, 1227- 28 (11'h Cir. 2002); United States v. Sims, 428 F.3d 945, 959 (10th Cir. 2005)• United States v. Helder, 452 F.3d 751 (8'h Cir. 2006); United States v. Meek, 366 F.3d 705, 717- EFTA00605410 Alan Dershowitz, Esq. November 19, 2007 Page 9 20 (9ib Cir. 2004). There are approximately two dozen Eleventh Circuit cases involving prosecutions under § 2422(b), most of which involve this prototypical fact pattern. See. e.g. United States v, Morton 364 F.3d 1300 (11th Cir. 2004), vacated for further consideration in liaht 21 Booker, 125 S. Ct. 1338 (2006), opinion reinstated by, 144 Fed. Appx. 804 (2005); United States v. Ortega, 363 F.3d 1093 (11h Cir. 2004); United States v. Miranda, 348 F.3d 1322 (11th Cir. 2003); United States v. Tillman 195 F.3d 640 (11th Cir. 1999); United States v.Panfil, 338 F.3d 1299 (11° Cir. 2003); United States v. Garrett, 190 F.3d 1220 (11th Cir. 1999); gintosovvsisto, 175 F.3d 1261 (11th Cir. 1999); United. States v. Rojas, 145 Fed. Appx. 647 (11th Cir. 2005); United States v. Root 296 F. 3d 1222 (11th Cir. 2002). What all of these cases have in common is that the defendant used the intemet to purposefully communicate directly with a minor or a purported minor (or a person with influence over such a minor or purported minor), with the intent to arrange a sexual tryst believing that the individual was a minor and with the knowledge that such sexual activity was illegal because of the age of the victim. This is precisely the situation the statute was designed to reach. Mr. Epstein's situation has nothing in common with the scenario Congress acted to address. In Mr. Epstein's case, even assuming for purposes of this memorandum that there was inappropriate sexual contact with minors, there was no use whatsoever of the intemet, or any other communication device, in an attempt to induce a minor. EFTA00605411 Alan Dershowitz, Esq. November 19, 2007 Page 10 The statutorily proscribed act is the use of a channel of interstate commerce to persuade, induce, entice or coerce. "The underlying criminal conduct Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate §2422(b)." United States v. Murrell 368 F.3d 1283, 1286 (111b Cir. 2004). See also United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) ("Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves."). The forbidden conduct is the actual or attempted persuasion, inducement, enticement, or coercion; if there has been sexual misconduct without persuasion, there is no violation of this law. Furthermore, the persuasion must be first directed at an individual known by the defendant to be younger than 18. Second, its subject must be the minor's participation in prostitution or sexual activity that would be a criminal offense under state law. Confining the statute's reach to such situations is precisely what eliminates what would otherwise be First Amendment problems. See Bailey 228 F.3d at 639 ("Defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts."). As the plain language of the statute and the legislative history shows, the use of the internet, telephone, or mail is not merely a jurisdictional "hook"; it is the very crux of the crime. Congress was not addressing face to face interactions between adults and EFTA00605412 Alan Dershowitz, Esq. November 19, 2007 Page 11 minors during which inducement might be used, but rather interactions that occurred over the Internet, sometimes followed by the phone or the mail. The statute requires that the persuasion must occur "knowingly". Thus, someone commits the offense only if (1) he knows (or believes) that person is under 18, and (2) knows that the activity he is proposing would be illegal with a person of the age he believes that person to be. Since the age of consent varies from jurisdiction to jurisdiction within the United States, and is generally 16 or 17, even an actor's knowledge that the individual he is attempting to persuade is not yet 18 does not mean that he is knowingly seeking to persuade or induce someone to engage in activity that would constitute a crime. See Richard A. Posner & Katharine B. Silbaug, A Guide to America's ex Laws 44 (Univ. of Chi. Press 1998). Accordingly, to violate § 2422(b), an actor must know that he is trying to persuade not only someone under 18, but someone who is considered a minor in the jurisdiction, and that the sexual conduct contemplated would constitute a crime. Thus, if a defendant believes he is interacting with an adult, he is not guilty of the federal crime even if he is dealing with a minor pretending to be a grown-up. See United States v. Thomas, 410 F.3d 1235 (10th Cir. 2005). Mr. Epstein did not use any facility of interstate commerce to do the forbidden act - to persuade, entice, induce, or coerce - nor did he attempt to do so. His staff used the phone to make a variety of arrangements for Mr. Epstein's stays in Palm Beach, including getting the house ready for his arrival, checking movie schedules, and making phone calls EFTA00605413 Alan Dershowitz, Esq. November 19, 2007 Page 12 ts, personal training, physical to schedule doctors' appointments, business appointmen sible for his assistant's use therapy and massages. Even if Mr. Epstein could be held respon not the statutorily proscribed of the telephone, her calls regarding massages were but simply to set up persuasions or enticements of a minor to do illegal acts appointments. forbidden conduct with Assuming Mr. Epstein persuaded individuals to engage in inducement by or on the him in his home, he did not violate the statute. There was no ple, if during a massage, Mr. telephone or on the Internet, and none is alleged. For exam hing more, and she said Epstein inquired if the masseuse was interested in doing somet without the use of any telephone or yes, the inducement, if any, occurred face to face and scheduling purposes for the internet. Any subsequent telephone call by his staff for ement, which had already another massage was for that purpose and not for an induc occurred face to face. to face, without the use of In sum, whatever sexual contact occurred, occurred face e it, and therefore, was not an instrumentality of interstate commerce to persuade or induc itted no crime within the an act proscribed by the statute. Accordingly, Mr. Epstein comm scope of § 2422(b). l Sexual Conduct) 18 U.S.C. & 2423(b) (Travel with Intent to Engage In Illega of 18 U.S.C. § 2423(b). Similarly, the facts of this case do not make out a violation Section 2423(b) provides that: the A person who travels in interstate commerce ... for sexua l condu ct with purpose of engaging in any illicit EFTA00605414 Alan Dershowitz, Esq. November 19, 2007 Page 13 another person shall be fined under this title or imprisoned not more than 30 years, or both. a person under age ["Illicit sexual conduct" means a sexual act that occurs with 16, or a commercial sex act with a person under age 18. §2423(f) and 18 U.S.C. 2243(a).] to Florida was Mr. Epstein did not violate 18 U.S.C. § 2423(b) because his travel younger than 16, nor a not for the purpose of engaging in a sexual act with a person Mr. Epstein purposefully commercial sex act with a person under 18. Assuming that his travel to Florida was engaged in a proscribed act in Florida, it arose long after in progress. complete, while a massage with a particular masseuse was ct, with any person, Like § 2422(b), § 2423(b) does not criminalize sexual condu se of engaging regardless of that person's age. Rather, it criminalizes travel for the purpo F.3d 631, 638 (3d Cir. in unlawful sexual activities. United States v. Hayward, 359 (3d Cir. 2006): 2004). See also United States v. TvIcarskv, 446 F.3d 458, 471 The relationship between the mess rea and the actus reus required by § 2423(b) is neither incidental nor tangential. Section 2423(b) does not simply prohibit traveling with an to immoral thought, or even with an amorphous intent engage in sexual activity with a minor in anoth er state. The travel must be for the purpose of engaging in the unlawful sexual act. ) and Mortensen v. Unikd Stales, See also Hansen v. Huff, 291 U.S. 559, 562-63 (1934 girls shall engage in the 322 U.S. 369, 374 (1944) ("An intention that the women or the conclusion of the conduct outlawed by Section 2 must be found to exist before EFTA00605415 Alan Dershowitz, Esq. November 19, 2007 Page 14 nt.") inant motive of such interstate moveme interstate journey and must be the dom ("There was v. United States, 329 U.S. 14, 20 (1946) (emphasis added); Cleveland the dominant motive.").' evidence ... that the unlawful purpose was l for concluding that Mr. Epstein's principa Under these standards, there is no basis ned by the ge in illicit sexual conduct, as defi purpose in going to Florida was to enga en the conduct occurred while he was there. Giv statute, even if we assume that some such rise trips, the act of going there cannot itself give other purposes of his 50 or more Florida principal On the contrary, it is evident that the to any inference of improper purpose. were his Palm Beach home for reasons that purpose of his trips to Florida was to go to hing a uding to minimize his taxes by establis professional, personal and financial, incl go to Flor ida because its laws governing sexual residence. Mr. Epstein surely did not arly lax.2 conduct with young people are particul e occurred because, even assuming at som Moreover, no violation of § 2423(b) under 18 knew that the particular masseuse was point during the massages Mr. Epstein come into be illegal, such knowledge would have years old and that certain behavior could ivating him ch and could not have been a factor mot being when he was already in Palm Bea lly did not his masseuses were over 18, and he usua to go there. Since the vast majority of and compelling purpose," t sexual conduct must be: an "efficient I Some Courts have held that the illici ose," United States v , 1495 (10' Cir. 1997); a "motivating purp United States v. Meacham, 115 F.3d 1488 moti vations for taking the 1995), or "at least one of the defendant's Campbell, 49 F.3d 1079, 1083 (56 Cir. 1991 ). See alstk United States ; the first plac e," Unite d State s v Ellis , 935 F.2d 385, 389 (1' Or. trip in ) (unpublished). poschouct 224 Fed. Appx. 923 (11th Cir. 2007 . In Connecticut, it is 16 for intacoursc, Conn. Gen. Stat. varie s from state to state The age of consent Massachusetts and New act. Conn. Gen. Stat. Ann. § 53a-73a. In Ann. § 53a-71, and 15 for sexual cont Laws ch. 211§ 23; Mass. Gen. Laws ch. 272, § 35A; NJ. Stat. Jersey, the age of cons ent is i6. Mas s. Gen. consent at 17. . Penal Law § 130.05(3). Ann. § 2C: I4-2. New York sets the age of EFTA00605416 Alan Dershowitz, Esq. November 19, 2007 Page 15 a she arrived at his home, sexual contact with know who his masseuse would be until ing his trave1.3 minor could not have been a factor motivat rIng 18 U.S.C. 4 1956(a)(3) (Money Launde dering statute can countenance a charge No reasonable reading of the money laun , and as applied by the courts, has absolutely no against Mr. Epstein, for the statute on its face with er the facts of this case, to charge Mr. Epstein application to the alleged misconduct Und ld be unprecedented. violating the money laundering statute wou prove money laundering under § 1956(a)(3), The Eleventh Circuit has held that "[t3o uct a ndant (1) conducted or attemptedlo cond the government must show that the defe ified erty represented to be the proceeds of spec financial transaction (2) involving prop l 'to prom ote the carrying on of specified unlawfu unlawful activity, (3) with the intent (a) rol of re, location, source, ownership, or cont activity,' (b) 'to conceal or disguise the natu 'to avoid a of specified unlawful activity,' or (c) property believed to be the proceeds v. Puche, Stat e or Federal law',' United States transaction reporting requirement under F.2d 331 3).4 See also United States v, Arditti 955 350 F.3d 1137, 1142-43 (11th Cir. 200 (5th Cir. 1992). icable. Section (a) the othe r secti ons of 18 U.S. C. 2423 prohibiting "sex tourism" appl 3 Nor are any of sexual purposes. Section (c) ng a mino r (und er 18) in interstate or foreign commerce for proh ibits trans porti ion (d) prohibits facilitating to engage in illicit sexual conduct. Sect prohibits traveling to a foreign country gain. AU that has been ging in illicit sexual conduct for financial travel of a person for the purpose of enga ged in sexu al activities with local Epst ein trave led to his home in Florida and enga alleged is that Mr. a minor or an adult to Ther e are no alleg ation s whatsoever that he ever transported Flori da resid ents. traveled to a foreign country al purposes, or for that matter, that he another state or foreign country for sexu to engage in illicit sexual activities. t can be found Instruction 70.4 which states that the defendan transaction e is the Elev enth Circu it Patte rn Jury 1 Instructiv n; (2) the knowingly conducted a financial transactio guilty of § I956(aX3)(A) only If (1) he spec ified unlaw ful activ ity or that was used to conduct proceeds of involved property represented to be the EFTA00605417 Alan Dershowitz, Esq. November 19,2007 Page 16 proceeds of unq uestionably requires (a) the use of Thus, it is clear that the statute t of (b) cash which is or was represented to be the produc specified unlawful activity; at adigm being applicable in the ease. unlawful activity, with neither par duct which he ney or funds from any criminal con Mr. Epstein did not receive mo 994 (9th fina nci al tran sac tion . $e e. e.g . Un ited States v. Taylor 239 F. 3d then used in a using proceeds 1) (de fen dan t cha rge d wit h run ning an illegal escort service and Cir. 200 utes to pay cre dit car ds use d to pur chase airline tickets to fly prostit from that business to in a financial No r did Mr . Eps tein use mo ney he knew to be unlawfully tainted Las Vegas ). t Rather, to the extent saction des ign ed to pro mo te pro stitution or other criminal conduc tran ly did so y sho w tha t Mr . Eps tein pai d for sexual services, he most certain the evidence ma funds. with untainted, legitimately earned • • • ause there is no rea l federal interest in this case, bec Having demonstrated that there is ply attempting t the Un ited States Attorney's Office is sim no federal crime, it is apparent tha e of a state prosecutio n in which federal authorities can to dictate the procedures and outcom may be that some law enforc ement authorities in other have no legitimate interest It ly from the way ht cho ose to handle this matter different jurisdictions, state or federal, mig side , but that does not permit or even excuse their out chosen by the State of Florida interference. aged in the transaction with the intent to vity; and (3) the defendant eng or facilitate specified unlawful acti ed unlawful activity. promote the carrying on of specifi EFTA00605418 Alan Dershowitz, Esq. November 19, 2007 Page 17 sort here that could be Moreover, were there in fact a federal crime of some s of prosecutorial discretion prosecuted - - and I suggest there is none - - traditional notion case. would mitigate against such a prosecution on the facts of this Consider in The Factors That Federal Prosecutors Are Mandated To te Again st Prosecution. Determining Whether To Bring A Prosecution Milita f of Mr. Epstein which I have also reviewed the submissions made on behal d States Attorney's Manual, addressed the Petite Policy, which is set forth in the Unite basis for federal charges, those and concluded that even assuming that there is a valid opinion that conclusion was charges would be barred by that Policy. In my professional the correct one. sion regarding the Petite My review of the USAM not only supports this conclu USAM which would bar any Policy but also reveals that there are other sections of the s. federal prosecution or interference with state proceeding A. Declining To Prosecute "USAM"] sets forth when to The United States Attorney's Manual [hereinafter es, in pertinent part: initiate or decline prosecution. Section 9-27.220 provid ence or The attorney for the government should comm recommend Federal prosecution if be/she believ es that the e and that the person's conduct constitutes a Federal offens to obtain admissible evidence will probably be sufficient unless , in his/he r judgm ent, and sustain a conviction, prosecution should be declined because: be served by 1. No substantial Federal interest would prosecution; EFTA00605419 Man Dershowitz, Esq. November 19, 2007 Page 18 2. The person is subject to effective prosecution in another jurisdiction; or 3. There exists an adequate non-criminal alternative to prosecution. Mr. Epstein has been prosecuted in Florida, which considered all of the issues and determined the appropriate crime to charge him with. As shown aboVe, there is no federal interest here. Moreover, were we to assume that Mr. Epstein's conduct constitutes a federal crime that can be proved, nevertheless, no "substantial Federal interest" would be served by prosecuting him. On this question, the USAM Section 9-27.230 gives specific guidance: In determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including: 1. Federal law enforcement priorities; 2. The nature and seriousness of the offense; 3. The