EFTA00175949.pdf

54748 Srat Sy...41554N To ME AAA EFTA00175949 08/02/08 MON 14:58 FAX 305 530 8440 EXECUTIVE OFFICE Q001 U.S. Department of Justice United Stoics Attorney Southern District of Florida UNITED STATES ATTORNEY'S OFFICE SOUTHERN DISTRICT OF FLORIDA 99 NE 4TH STREET MIAMI, FLORIDA 33132-2111 Jeffrey H. Sloman First Assistant U.S. Attorney 305 961 9299 Cyndee Campos Staff Assistant 305 961 9461 305 530-6444 fax FACSIMILE TRANSMISSION COVER SHEET DATE: June 2, 2008 TO: Marie Villafana FAX NUMBER: (561) 820 8777 SUBJECT: Epstein NUMBER OF PAGES, INCLUDING THIS PAGE: 9 Message/Comments: This facsimile contains PRIVILEGED AND CONFIDENT IAL INFORMATION intended only for the use of the Addressee(s) named above. If you are not the intended recipient of this facsimile, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notifie d that any dissemination or coping of this facsimile is strictly prohibited. If you have received this facsimile in error, please immediately notify us by telephone and return the original facsimile to us at the above address via the U.S. Postal Service. Thank you. EFTA00175950  00/02/08 19/..1.1:,81, FAX 22A. pip, 8440 EXECUTIVE OFFICE DOJ/ODAG la 002 05.177,2002 12 19 I- A:: )003/0la kg, line • UV.) Kenneth \.V. Siarr l). %little% Kirkland St. tattle 1.1.1' A team Bird I.LP •vrevi .-maa, NW ‘c..,•hiacson. t .Alt. ....V-7;n•I i F.1%• I i (;SC LM:IfriLkift: in:, low ..14. Maill27, 2008 u1,\ FACSIMILE (1(I2 514.0367 COM.'I IMAtti F. I honorable Mark Filip (Melee O1 the Deputy Attorney General I jailed Staes Department ice t)5() reansybmnia Avenue. N.W. Washingten. 7.053() Dear lady.: This later briefly supplements our prior submission to you dated May I 9. 2008. In That co0 munication. we ine0lly requested that your (Mice c loci an independent review of the ProPosed federal presemItinn of our client. Jefficy Nistein. The dual reasons (Mr request that yau review this mailer arc III the bedrock need kir integrity in the enli.rceinem of criminal laws. and in) the profound questions raked by the unprecedented a:sit:mann taw by the lathed States Attorney's Ofticc in Miumi ;he "I ESAO- 1 to a ..r tederai premment public lititurc %Au, leis close ties thriller President Clinton. 'the need for review is III all the more exigent. On Mominy. MT: 10. 2008. lost Assistant Jeffrey Sloinan or the litiAO responded to an email from la; f.cllamiht. iulitrming Attorney Alex Acosta that we would be secking lair Offices review. Mr. Sloinan.:: letter. which imposed a deadline of June 2. 2008 to comply with all the terms of the ‘uncut Non- PrOgceinion Agreement (the - Agreement.). plc% new unilateral modi0crunls, on pain O1' being deemed in breach of ghat Agreement. appears to have been deliberately designed to deprive as or an adequate opportunity II, seek your Offices review iu this minter. lice LISAO's desire to etveclose :t Complete review is tmclersiamtible. yivew than the Child Fsploitation and Obscenity Section ("CLOS- ) has already determined dun our !:tilistain:ve arguments regarding why a lederal prosecution of Mr. bpsicin is not warranted were - compelling.- I however. in contoidiclion to Mr. 51nm:in's acsertion that CLOS had provided an independent. Jr 1111111 reVICW. CEOS made clear that it did not do so. indeed. est.:C.)5 declined to es:Amine several ofthe more troubling aspects ne dic investigation of Mr. Lipstein. in,:ladiar the deliberate kick to the 1V,',r York Times of numennts highly contidemial aspects u' Ilse inn:Sligatitin Iler.011:111011:: heitcec,, Ihe panics as well as ane leceni crap il l end lzwisolh: fl ied Frettein by Mr. SIornan' s limner law partner. The •cessary and arbitrarily imposed deadline set by the I )SAO was done without any respect tor (he ourinnl • J and scheduling of suite judicial limiters. It require: that Mr. Epstria's counsel persuade the State Attorney of Palm f3each to issue a criminal Main-tit:awn EFTA00175951 96,cortt YON FAaX 530 6440 EXECUTIVE OFFICE LIVJ/UVAG 0003 141004/01.3 6.4,-S.:2606 1? It.: Alt W.1:≥ Ifiv.i • . I lonorable Mark Filip Vitt 27. 200s I age to a charge that the State Attorney has not. despite a tam, year invesiiewiam. del:rimmed to be. llinwuPriale. Elk:kiln counsel must also successfully expedite a plea of to this charge on a date prior in July S. 200N. which is the dim: presently set hy the state court Judge. Further. the unnecessary deadline is even more problematic hccause Mr. I:r5feill•5 effort ta reconcile the state charge auul sentence with the terms of the Agreement re:guiles an unusual and unprecedented threatened application of federal law. Thus. it places Mr Epstein m the einumal position of baying to deinand that the tutu acquiesce to a more se% e punishment than it kid already determined war appropriate. \Ve have attempted to resolve these and other issues throtigh the t'ti:\( and CEOS, Me(edMg raising our wise:erns about the IfSAC's inappropriate conduct will: respect to this matter. nut thew aVellUCti have now been shut down. tvIr. Sheinan'c linter pUrrinITS to prohibit any further contact between Mr. F.restein's defense warn and :.S. Attorney Acosta. and instead requires us to communicate .vith the USA() only though Mr. Muntan's subordinates. While it pains us to say this, this misguided pueseention nionu the outset tals s the appearance tirt b may have been Feline-ally motivated Mr. Epsteio is :e highly stn.:we:ltd. self• made businessman and nhitinthropist who entered the public ar.rnit on inne of hk claw personal asseciation with former President Bill Clinton. There is link doubt m u::r minds that the USA() never would have contemplated a prosecution in this ease it' Mr. Epstein tror: jos; menher "John." I. Attorney Acosta previously has mated that he is - sympathetic- to our federalism. related concerns. but he has taken the position that his authority is lintitial by enforcement pelICICX gel ibrib hi Washington. I ).C'. As expresser! in our prior communicatinn tea you. we believe that a complete and independent appraisal and resolution or this case most appropriately would he undertaken by your Office beginning with the rescission of the arbitrary. unEair, and imprceedented deadline that Mr. Sluman demands to have imposed in this enur. Alt die yery least. klit: would appreciate a Wiling of ihe arbitrary timeline imposed on our client by the I SAO in order In allow time for your office itu consider sitt tvimest that vit: undertake a rna lei of this case. .111211.1k ylal for your time rind attention. It:spanfully submitted. P --.1trosehlinedg, Kenneth W. Starr Joes I) Kirkland & I.LP Almon 4: Bird EFTA00175952 06/02/08 MON 14:59 FAX 305 530 6440 EXECUTIVE OFFICE litj004 tin/VIIZQUIS UU: 06 FAX 202O61239 D0.I/0DAG 0o5/s13 ;di WIN 13:21 FAN I 21:1 Gthi ts 500 tit rdiuND&ELLi S KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street sb? e_ciej 714/ es Los Angeles, California 00017 Phone. (213) 680-9400 Fax: (213) 680-8500 Please notify us immediately U any pages are not received. THE INFORMATION CONTAINED IN Tills COMMUNICATION IS CONFIDENTIAL. BE. ATTORNEY -CLIENT PRIVILEGE MAY D. MAY CONSTITUTE INSIDE INFORMAT IS INTENDED ONLY FOR THE USE OF ION. AND THE ADDRESSEE UNAUTHORIZED DISCLOSURE OR COPYING IS STRICTLY PROH USE. IBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMM UNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (213) 680-8400. To: Company: Fax Direct ft: Honorable Mark Filip Office of the Deputy Attorn ey Gene oflus iiccral United States Department (202) 514-0467 (302) 514 -?10 From: Date: Pages witoylv: Fax Direct #: KcAncch W. Stan- May 19, 2008 9 (213) 680.8500 (213) 680-8440 Message' EFTA00175953 00/02cutan /08 NON 14:59 FAX 305 530 0440 EXECUTIVE OFFICE R005 Hami vv:uf nu. zuZamil2a8 DO.T/ODAt; 141106/013 of.. I /1 •ilti MD?' 13:22 FAX I 213 RAO 8.51)0 1.1.1* LCnnc Kenneth W Starr Kirkland & Ellis LLP Joe D. Whitley 777 South Fisneroa Street Alston & Bird LI.P Los Angeles: CA _90017-5800 The Atlantic Building Phone: 2s3-680-8440 950 I" Street, NW Pax: 213-680-8500 Washington, DC 20004-1404 kstarnakirkland.com Ph: 202-756-3189 Fax: 202-654.4889 joe.Whilleygraiston.com May 19. 2008 VIA FACSIMILE (2021 _14-0467 CONFIDENTIAL Honorable Mait Filip Office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue, NAV. Washington, D.C. 20530 Dear Judge Finite In his confirmation hearings last fall, Judge Mukasey admirably lifted up the finest uaditions of the Department of Justice in assuring the United States Senate, and the American people, of his solemn intent to ensure fairness and integrity in own confirmation hearings echoed that bedrock the administration of justice. Your determination to assure that the Department conduct itself with honor and integrity. especially in the enforcement of federal criminal iaw. We come to you in that spirit and respectfully ask for a review of the federal involvement in a quintessentially state matter involving our client , Jeffrey Epstein. While we are well aware of the tare instances in which a review of this sort is justified, we are confident that the circumstances at issue %valiant such an examinatio n. Based on our collective experiences, as well n those of other former senior Justice Department officials whose advice we have sought, we have never before seen a case more appro priate for oversight and review. Thus, while neither of us has previously made such a request. we do so now in the recognition that both the Department's reputation. as well as the due proce ss rights of our client, are at issue. Recently, the Criminal Division concluded a very limite request of U.S. Attorney Alex Acosta. Critically, d review of this matter ai the however, this review deiiberately excluded many important aspects of this case. Just this past Friday, on May 16, 2008, we received a letter from the head of CEOS informing us that CF.OS had conducted a review of this case. By its own admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed limitation was CEOS's abstention from addre ssing our "allegations of professional misconduct by federal prosecutorr•—even though such misco nduct was, as we contend it is, inextricably intertwined with the credibility of the accusations being made against Mr. Epstein by the United States Attorney's Office in Miami ("USAO"). More over: CEOS did not assess the terms of the Deferred Prosecution Agreement now in effect, nor did CEOS reviet the federal prosecutors' inappropriate efforts to implement those terms. We detail this point be ow. EFTA00175954 ,Avsys itaN,A5A0, FAX 305 530 6440 EXECUTIVE OFFICE DUJellU AG VI006 10007/0;3 ,05- 19.ph MON 13:22 FAX 1 213 Win 8500 KINELAND&CLL111 LIP . . , Honorable Murk Rip May 19. 2008 Page 2 By way of background. we were informed by Mr. would be conducting a review to determine wheth Acosta that, at his request, CEOS er federal prosecution was both appropriate and, in his words. "fair$ That is not what occur red. Instead, CEOS has now acknowledged that we had raised "many compelling arguments" against the USAO's suggested "novel application" of federal law in this matter. Even so. CEOS concluded. in minimalist fashion. that "we do not see anything that says to us categorically that a federa l case should not be brought" and that the U.S. Anoint) "would not he abusing his prosecutor ial discretion should he authorize federal prosecution of Mr. Epstein" thus delegating back to Mr. Acosta the decision of whether federal prosecution was warranted (emphasis added). Rather than assessing whether prosecution would be appropriate, CEOS. using a low baseline for its evalu ation, determined only that "it would not be impossible to prove . . ." certain allegations made agains t Mr. Epstein. The CEOS review failed to address the significant problems involving the appearance of impermissible selectivity that would necessarily result from a federal prose cution of Mr. Epstein. We respect CEOS's conclusion that its autho rity to review -misconduct" issues was preluded by Criminal Division practice. We further respe ct CF.OS's view that it understood its mission as significantly limited. Specifically, the contemplated objective was to determine whether the USAO would he abusing its discretion by bringi ng a federal prosecution rather than making its own de novo recommendations on the appro priate reach of federal law. However, we respectfully submit that a full review of all the facts is urgently needed at senior levels of the Justice Department. In an effort to inform you of the nature of the federal investigation against Mr. Epstein, we summarize the aims and circumstanc es of this matter below. The two bast-level concerns we hold arc that (1) warranted based on the purely-local conduct federal prosecution of this matter is not and the unprecedented application of federal statutes to facts such as these and (2) the actions of federal authorities are both highly questionable and give rise to ern appearance of subst antial impropriety. The issues that we have raised, but which have not yet been addressed or resolved by the Department, are more than isolated allegations of professional mista kes or misconduct. These issues, instead, affect the appearance and administration of criminal justice with profound consequences beyond the resolution in the matter at hand. 4 • In a precedenr-shattering investigation of Jeffrey Epstein that raises important policy questions—and serious issues as to the fair and honorable enforcement of federal law—the USAO in Miami is considering extending federa l law beyond the bounds of precedent and reason. Federal prosecutors stretched the underlying facts in ways that raise fundamental questions of basic professionalism. Perhaps most troub ling, the USAO in Miami, as a condition of deferring prosecution, required a comminglin g of substantive federal criminal law with a proposed civil remedy engineered in a way that appears intended to profit particular lawyers in EFTA00175955 06/02/08 MON 16:00 FAX 305 530 6440 EXECUTIVE OFFICE 0007 05/28/2008 09:08 PAX 2026181239 DOJ/ODAC 4n008/013 t0:0$ NO\ 13:23 FAX I 213 One 8890 Ill Ithl.AND&EIA.15 fuua Honorable Mark Fe ip May 19, 2008 Page 3 private practice in South Florida with personal relatio nships to some of the prosecutors involved. Pederal prosecutors then leaked highly sensitive information about the case. to a New York Times reporter.' The immediate result of this conflu ence or extraordinary circumstances is an onslaught of (evil lawsuits, all save one brought by the First Assistant's former boutique law firm in Miami. The facts in this case all revolve around the elasei c state crime of solicitation of prostinition.2 The State Attorney's Office in Palm Beach County had conducted a diligent investigation, convened a Grand buy that returned an indictment, and made a final determination about how to proceed. Thai is where, in our federal republic, this matter should rest. Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason the Stale has not resolved rhis matter is that the federal prosecutors in Miami have continued to insist that we, Mr. Epstein's counsel, approach and dema harsher charge and a more severe punishmen nd from the State Attorney's Office a t than that Office believes are appropriate under• the eiectunsumees. Yet despite the USAO's refusal to allow the State to resolve this matter on the terrnS the Stare has determined are appropriate, the USAO has not made any at coordinate its etTorts with the State. in fact, to the USAO mandated that any federal agreement would he conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike that imposed on other defendants within rho jurisd iction of the State Attorney for similar cunduct. Frnm the inception of the USAO's involv ement in this case, which at the end of the day is a case about solicitation of prostitution within the confines of Palm Beach County, Florida, we have asked ourselves why the Department of Justic e is involved. Regrettably, we are unable to suggest any appropriate basis for the Departmen t's involvement. Mr. Epstein has no criminal history whatsoever. Also. Mr. Epstein has never been the subject of general media interest until a few years ago, after it was widely perceived by the public that he was a close friend of forme President Bill Clinton. r The conduct at issue is simply not within outside the heartland of the three federal statut the purview of federal jurisdiction and lies es that have been identified by prosecurors-18 U.S.C. e 1591. 2422(b), and 2423(h). Onu of the other members of Mr. Epstein's defens e team, lay Letkowitz, has personally review contemporaneoua notes. ed the reporter's Although some of the women alleged to be involved were 16 and 17 years of age, several of these openly admitted to lying to Mr. Epstei women n about their 328 in their recent swan statements. EFTA00175956  06/02/08 WON 15:01 FAX 305 530 6440 EXECUTIVE OFFICE elm 05/28/2008 00:0A FAX 2020161239 DOJ/ODAG iii009/013 40005 U. 111 . 11h . M0N 13:23 FAN 1 213 630 8600 Kl itt(1_,O316F1.1.15 I.1.1` Honorable Mark Filip May 19, 2008 Page 4 These statutes arc intended to target crimes of a truly national and international scope. Specifically, * 1591 was enacted to combat human trafficking, § 2422 is aimed at sexual predation of minors through the Internet, and § 2423 deals with sex tourism. The nature of these crimes results in multi-jurisdictional problems that state and local authorities cannot effectively confront on their own. However, Mr. Epstein's conduct was purely local in nature and, thus. does not implicate federal involvement, After researching every reported case brought under I R U.S.C. jt; 1591, 2422(b), and 2423(b), we found that not a single case involves facts or a scenario similar to the situation at hand. Our review of each precedent reflects that there have been no reported prosecutions under § 1391 of a 'john' whose conduct with a minor lacked force, coercion. or fraud and who was not profiting from commercial sexual trafficking. There have likewise been no cases under § 2422(b)-a crime of communication—where there was no use of the Internet, and where the content of phone communications did not contain any inducing or enticing of a minor to have illegal sexual activity as expressly required by the language of the statute. Purtherrnore, the Government's contention that "routine and habit" can fill the factual and legal void created by the lack of evidence that Such a communication ever occurred sets this case apart from every reported case brought under § 2422(6). Lastly, there arc no reported cases of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to his own home.' Although these matters were within the scope of the CEOS review, rather than considering whether federal prosecution is appropriate, CEOS only determined that Attorney Acosta "would not be abusing his prosecutorial discretion should he authorize federal prosecution" iu this case. The "abuse of discretion" standard constitutes an extremely low bar of evaluation and while it may be appropriate when the consideration of issues are exclusively factual in nature, this standard fails to address concerns particular to ihis situation, namely the "novel application" of federal statutes. The "abuse of discretion" standard in such pure legal matters of statutory application risks causing a lack of unifortnity. The same federal statutes that would be stretched beyond their bounds in Miami have been limited to their heartland in each of the other federal districts. Also, because this case implicates broader issues of the administration of equal justice, federal prosecution in this matter risks the appearance of selectivity in its stretching of federal law to fit these facts. rcderal prosecution of a man who engaged In centennial conduct in his home that amounted to. at moss, the ,elicitation of prostitution, is unprecedented. Since prostitution is fundamentally a state concern. (rye Unita Shawl. Evans, 476 F.3d 1176, c.1 (11th Cir. 2007) (federal law - does not criminalize all acts of prostitution (a vice traditionally governed by state regulation)")). and them is ito evidence that Palm Beach County authorities and Florida prosecutors cannot effectively prosecute and punish the conduct. there is no reason why this manes should be extracted from the hands of slate prosecutors in Florida. EFTA00175957 06/ EXECUTIVE OFFICE elm02/ /zo08 MON 15:01 FAX 305 530 8440 os 011:09 VAX 202616L230 DOVOLIAC 118 009 16010/013 .n5 ;11 UK MON 13:24 FAX I 213 680 8300 K I ITELANDSEELLIS I.LI' Zo um; Honorable Mark Filip May 19.2008 Page 5 in fact, recent testimony of several alleg prosecutors during the negotiations ed "victims" contradicts claims made of by federal re resentations of key Governm a dete rred prosecution a reement. The consisten ent witnesses (such as Tatum t and Jennifer is communication, telephonic or othe confirm the following critical points: First, Brit tany i- there was no rwise, that meets the requirements of § Nis.ilialconfirmed that Mr. Eps 242 2(b) . For instance. tein never availed, text -messaged, or use interstate commerce whatsoever. d any facility of before or after her one (and only) visi Tr. (deposition) at 30. Second, the t to his home. Gonzalez women who testified admitted that they lied about their age in order to gain to Mr. Epstein admittance into his home. Indeed, the women underage friends to Mr. E stein who brought their testified that they would counsel their ages as well. Ms. stated the following: 1 would tell my friends to lie about their approached inc. NO sure you tell girlf rien ds just him you're. 18. Well, these girls that I brou like they were 18 or 19 or 20. And the ght, I know t at girls that i didn't know and I don't know not, 1 would say make sure that if they were lying or you tell him you're 18." al Tr. at 22. Third, there was no routine or habit of improper commun ication expressing an intent to transfor ille al sexual act. In fact, ther e was often no sexual activity at in a massage into an testified that "IsJometimes Mr. Eps all dur ing the massage just wanted a back massage." tein) just wanted his feet massaged. Som . Ms. Tr. at 19. etimes he "nevertouched ,her) physically" and t also stated that Mr. Epstein t all she di was "massage J his bac thighs and that was it." k. his chest and his Tr. at 12-13. Finally, there was no forc violence, dru• s or even alco e, coercion, fraud, to present in connection with Mr. Eps women. Ms. stated that "(Mr. Epstein) never tein 's enc ounters with these A at 12. These accounts arc tried to force me to do anything." Beak Tr. far from the usual testimony in sex slav tourism cases previously brought. ery, Internet slings and sex The women in actuality were not you the age of consent in most of nger than 16, which is the 50 states, and the sex activity was consisted of solo self-pleasuring irregular and in large part. . The recent crop of civil suits brou not discuss any sexually-relate ght against Mr. Epstein confirm that the d activities with anyone prior to plaintiffs did residence. Tis reinforces ow content arriving at Mr. Epstein's ion that no telephonic or Internet pers enticement or coercion of a min uasion, inducement, Herman. the former law partner of or, or of any other individual, occurred. In addition, Mr. Jeffrey one of the federal prosecutors involved attorney for most of the civil in this matter and the complainants (as described in detail belo Beach Post as saying that "it w), was quoted in the Palm doesn't matter" that his clients lied abo Epstein that they were 18 or 19. ut their ages and told Mr. Not only is a federal pros ecu conduct by prosecutors and the uno tion of this matter unwarranted, but the irregularity of rthodox terms of the deferred prosecu beyond any reasonable interpre tion agreement are tation of the scope of a.prosecutor's resp improprieties includes, but is not limi ons ibilities. The list of ted to, the following facts: EFTA00175958 06/02/08 NON 15:02 FAX 305 330 6440 EXECUTIVE OFFICE X010 05/25/2008 00:10 FAX 2026361230 003/00A; Z011/013 K1RKLANDAELLTS 16007 MON I it: t5 FAX I 1:12 000 6500 ILP its: 151* OS Honorable Mark Filip May 19, 2008 Page 6 • Federal prosecutors made the unprecedented demand that Mr. Epstein pay al minimum of $150,000 per person to an unnamed list of women they referred to as minors and whom they insisted required representation by a guardian ad them. Mr. Epstein's counsel later established that all but one of these individuals were actually adults, not minors. Even then, though demanding payment to the women, Ow USAO eventually asserted that it could not vouch for the veracity of an} of the claims that these women might make. • Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fees of a civil attorney chosen by the prosecutors to represent these alleged 'victims" should they choose to bring any civil litigation against him. They also proposed sending a notice to the alleged "victims," stating, in an underlined sentence, tha: should they choose their own attorney, Mr. Epstein would nor be required to pay their fees. The prosecutors further demanded that Mr. Epstein waive his right to challenge any of the allegations made by these "victims." • The Assistant U.S. Attorney involved in this matter recommended for the civil attorney, a highly lucrative position, an individual that we later discovered was closely and personally connected to the Assistant. U.S. Attorney's own boyfriend. • Federal prosecutors represented to Mr. Epstein's counsel that they had identified (and later rechecked and re-identified) several alleged "victims" of federal crimes that qualified for payment under I S U.S.G. § 2255, a civil remedy designed to provide financial benefits TO victims. Only through state discovery provisions did we later learn that many of the women on the rechecked "victim list" could not possibly qualify under § 2255. The reason is that they, themselves, testified