EFTA00221321.pdf

T-OBB P.001/004 F-276 Dec-07-01 04:53se Fron-fowler -White Burnett LAW OP ECU FOWLER WHITE BURNETT EDIMut SANTO Piam 1395 BfuCKELL AVENUE, 1411i FLeat Mintm • 3 1-3302 FAX TRANSMITTAL DATE: December 7, 2007 NUMBER OF PAGES: 3 (Excluding transmittal page) Alex Acosta FROM: Lilly Ann Sanchcz FAX NUMBER: TELEPHONE NUMBER: MATTER NO: 71200 REMARKS: please see attached. Original documents will O will not O follow by mail. TIME OF TRANSMITTAL: a.m./p.m. TRANSMITTED BY: Photocopy should he token of this IMIWItillift41 (fit is to be retained sincefacsimile paper has limited storage life. THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE (IF LONG DISTANCE, PLEASE CALL COLLECT) AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE u.S. POSTAL SERVICE. THANK YOU. PLEASE NOTIFY US IMMEDIATELY BY CALLING IF THERE IS ANY PROBLEM. EFTA00221321  T-966 P.002/004 F-976 Dec-07-07 04:64F4 From-Fowler-Whits Burnett SNAO MAIA FOWLERWHITE frOJWIA3Crit FLO001 I ape EWICARI. AVOlUt ATTORNEYS AT LAW M.A 11.. raMICIA 33 i 3 I Way • Fogrcla BURNETT • Werrimulaleacm • ST.PETERSOURO December 7, 2007 First Assistant United States Attorney United States Attorney's Office Southern District of Florida 500 South Australian Avenue. Suite 400 West Palm Beach, Florida 33401 Re: Jeffrey Epstein Dear Jeff: Pursuant to your letter dated December 6, 2007, attached is a signed Affirmation of the Non-Prosecution Agreement and Addendum to same dated October 30. 2007 (collectively "Agreement" signed by my client Jeffrey E Epstein (see attached). Moreover, pursuant to the tenns of the Agreement, please note that the plea and sentencing hearing have been scheduled foe Mowry 4, 2008 at 8:30 am. before Judge Sandra McSorley (please see attached notice of hearing). In addition. as expressed in my voicemail message to you earlier, I would request that tho Office hold off on sending any victim notification letters until we can further discuss the contents therein. Plane call me at your earliest convenience. Sincerely, Lilly Ann Sanchez cc. Alex A. Acosta Judge Kenneth Star UmAillealMOLBITIMIrkommUJURI1144311) FOWLAR Win &SWETT PA. EFTA00221322  3057609201 T-966 P 003/004 F-976 Doc-B7-07 04:55m Froe-fowlsr -Whits Burnett Affirms Oars I. Jeffrey B. Epstein do hereby re-affum the Noo-P:o see=on Ayer:lac it acid Ack.letatra to tune dined October 30, 2007. J7/1) 44- Du, EFTA00221323  T-011 P.004/004 F-076 Dee-07-0T 04:846 From-Fowler-White Burnett IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, N AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2006CF009454A3DC STATE OF FLORIDA vs. JEFFREY EPSTEIN, Defendant NOTICE OF HEARING PLEASE TAKENOTICE that the undersigned hes called up for hewing the following: JUDGE: Sandra MeSorley DATE: January 4, 2008 TIME: 8:30 a.m. PLACE: Roan 11F, Palm Beach County Courthouse MATTER: Plea Comfit:re:ice I HEREBY CERTIFY that a copy of the foregoing has been furnished by mall m Loma Belohhwelt, Esquire, State Attorneys Ones, 401NorthDixie Highway, West Palm Beach,Florida 33401 this 7e day of December, 2007. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South Suite 1400 West Flori • 33401 IA LDBERGER, ESQUIRE Fl Bar No. co: The Honorable Sandra MeSorley EFTA00221324 12/07/07 FRI 15:31 FAX 1 KIRKLAND&ELLIS LLP Z001 KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street Los Angela 017 Phone Fax Please notify us Immediately If any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONSTITUTE INSIDE INFORMATION. AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE UNAUTHORIZED USE. DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NO IFY IATELY AT: To: Company: Fax N: Direct N: United States Attorney's Office lion. R. Alexander Acosta Southern District of Florida From: Rues Date: Fax N: Direct SI: votes: Kenneth W. Starr December 7, 2007 34 Message EFTA00221325 12. 07.07 FRI 13:31 FAX 1 KIRKIAND&F.I.LIS 00 2 KIRKLAND & ELLIS LLP AND AJP1LIA, ,D MUMS 11/401, 777 South Figueroa Sent Loa Angeles. Callernie 00017 Kennel W. Starr To Call Wier Dime*: Facaimiit kriarrSgldrkland.corn www.likkiandoom December 7, 2007 VIA FACSIMILE (3051530-6444 Honorable R. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Re: Jeffrey Epstein Dear Alex: As we discussed by phone earlier today, we will be providing submissions with respect to (i) concerns regarding the implementation of Section 2255, which raises, in our view, serious policy issues and (ii) concerns regarding the conduct and background of the investigation. We propose to have both submissions to you by no later than 3:00 PM on Monday December 10. In the meantime, we are furnishing herewith the independent ethics opinions of Judge Herbert J. Stern and Joe D. Whitley regarding the federal investigation of this matter, and the Section 2255 component of the Agreement, respectively. Please note that these opinions are in the process of being revised and updated. However, we send these opinions to you now to meet the tight deadline to which the parties have agreed upon. We will follow up with you by phone regarding our submissions before the close of business on Monday. As we discussed earlier today, these submissions will not be viewed as a breach of the Agreement. We, like you, are eager to achieve finality in this matter. QT1 Kenneth W. Starr cc: Honorable Alice Fisher, Assistant Attorney General Jeffrey H. Sloman, First Assistant U.S. Attorney Chicago Hong Kong London Munith New Ycst Sr Francesco Washington, D.0 EFTA00221326 12/07/07 FRI 15.31 FAX 1 K IRKLANDISELL I S 1,I,P 003 Privileged and Confidential Attorney-Client Work Product ALSTON&B1RD UT Jay P. Letkowitz FROM: Joe D. Whitley DATE: December 5, 2007 RE: Jeffrey Epstein I have been asked to offer my views regarding the case of Jeffrey Epstein ("Mr. Epstein"), who entered into a Deferred Prosecution Agreement ("the Agreement") with the United State's Attorney's Office for the Southern District of Florida ("USAO") to resolve state and federal criminal investigations relating to his actions involving numerous young women. I am writing because the Agreement entered into by Mr. Epstein raises a variety of significant legal and policy issues that I believe merit further consideration by the Department of Justice ("the Department"). Please note that I only recently became involved in this matter. I was provided with the following documents by Mr. Epstein's defense counsel: the Agreement and the addendum thereto; the USAO's letter of Crime Victims' Rights —Notification of Resolution of Epstein Investigation; Jay Lefkowitz's letter to R. Alexander Acosta dated October 10, 2007; Jay Lefkowitz's letter to R. Alcor Acosta dated October 23, 2007; R. Alexander Acosta's letter to Judge Edward B. dated October 25, 2007; Jay telkowitz's letter to Jeffrey Sloman dated November 8, 2007; Judge Kenneth Starr's letter to Alice Fisher dated November 28, 2007; Jay Lefkowitz's letter to R. Alexander Acosta dated November 29, 2007; and R. Alexander Acosta's letter to Jay Letkowitz dated November 30, 2007. My opinion is based on my background and experience, a review of these documents, and independent legal re search. PROCEDURAL HISTORY It is my understanding that Mr. Epstein entered into the Agreement with the USAO in order to resolve dual state and federal investigations into his alleged criminal conduct. As a condition of the Agreement, and to avoid federal indictment, Mr. Epstein was required to waive jurisdiction and liability for any monetary claims brought under 18 U.S.C. § 2255 by any member of a group of alleged victims who would later be identified to Mr. Epstein by the USAO. In addition, Mr. Epstein was required to waive the right to contest damages up to the statutory minimum in settling each of those claims. The Agreement does not provide for Mr. Epstein to conduct an independent inquiry to determine whether any colorable bases for any claims claim exist once he learns the identities of the alleged victims. Nor does it provide for any other mechanism for such a review. Atlanta • Ourimte • Dallas • New York • Research Triangle • Washington, D.C. www.dslon.com EFTA00221327 12/07/07 FRI 15:32 FAX 1 K I RKLANDSELLI5 LLP Z004 Jeffrey Epstein Privileged & Confidential December 5, 2007 Attorney-Client Work Product Page 2 ANALYSIS It has long been recognized that it is both appropriate and desirable for a federal prosecutor to require a criminal defendant to make restitution to his victims in order to satisfy the conditions of a plea agreement. Indeed. the United States Attorney's Manual specifically authorizes federal prosecutors to take restitution into consideration in making charging decisions. This case presents the more novel question of whether and in what circumstances the government may condition a plea agreement on a defendant's willingness to waive the right to contest civil liability for claims by his or her alleged victims. To my knowledge, this is a case of first impression because settlement of civil claims under 18 § 2255 has never been required as a condition precedent to the satisfaction of a criminal plea agreement prior to the Agreement of Mr. Epstein. Use of 18 U.S.C. § 2255 in the manner outlined in the Agreement as a proxy for traditional criminal restitution in the Agreement raises a number of significant legal and policy concerns including: (I) the potential for entanglement of the federal government in a private civil suit, including the use of governmental resources and potential for improper influence on such a suit; (II) the due process implications of requiring a defendant to waive the right to contest jurisdiction, civil liability, and damages in future suits by as yet unnamed plaintiffs; and (III) the risk that the promise of uncontested damages may compromise victim testimony thereby undermining the legitimacy of the federal investigative inquiry. Given the significance of the issues implicated by the Agreement in this case, the Department would be well-served to make a high-level policy decision about whether and in what circumstances a federal prosecutor could properly require a waiver of the right to contest liability under 18 U.S.C. § 2255 and other civil statutes as a proxy for traditional victim restitution. I. Excessive entanglement It is well-settled that the federal government should not ordinarily use its power or resources to influence the outcome of private civil litigation. This is so because unnecessary entanglement of the government in such cases and the use of federal resources could improperly influence such cases and create the appearance of impropriety. Thus, any criminal plea agreement that causes the government to have a direct impact in the outcome of a private civil suit should be carefully scrutinized by the Department to avoid even the specter of such impropriety. The Agreement of Mr. Epstein. and similar plea agreements conflating civil liability with more traditional criminal restitution, are certainly cases that would warrant such Department-level review. This is so for several reasons. First, requiring a defendant to waive the right to contest civil liability as a condition of satisfying a plea agreement could give the appearance that a federal prosecutor was using the threat of the government's criminal enforcement power simply to extract private civil settlements from a defendant. Second, in order to ensure that a defendant settled the civil suits as required, the government would have to provide continuing oversight of the settlement process thus further enmeshing it in a purely ADMIXT0I6;491.2 EFTA00221328 _ _ ltilr1/.07 FRI 15:33 FAX 1 K I RKLAND&ELLI S LU' litoo5 Jeffrey Epstein Privileged & Confidential December 5, 2007 Attorney-Client Work Product Page 3 private civil suit. Third, depending on the breadth of the waiver of liability demanded, a plea agreement of the sort entered into by Mr. Epstein could force a defendant to settle otherwise merit-less civil claims in contravention of the government's fundamental mandate to promote justice. Thus, inherent in a criminal plea agreement conditioned on thc defendant waiving the right to contest civil liability for claims brought by alleged victims is the risk of excessive government influence in private civil matters. Therefore, the Department of Justice should seriously consider whether the use of such conditions in criminal plea agreements is appropriate at all, and if so, what restrictions and oversight should be in place to prevent undue entanglement. II. Due process Plea agreements of the sort entered into by Mr. Epstein may also have significant due process implications. In legislating and applying the principles of restitution in the criminal justice context, Congress and the courts have been concerned with several aspects of due process. To wit, they have uniformly required a factual and temporal nexus between the victims who arc to be compensated and the crimes charged When incorporating these principles of restitution into a deferred or non-prosecution agreement, the same care should be taken to ensure a proper nexus exists between the crimes charged and the victims to be compensated. This correlation between crime and punishment is one of the hallmarks of justice. When a plea agreement requires a defendant to waive his or her right to contest civil liability for future claims that may be brought by as yet unnamed plaintiffs whose bases for suit are unknown to the defendant, careful consideration should be given to ensure that proper safeguards arc in place. These due process considerations are even more pronounced when, as in this case, the defendant is required to waive the right to contest liability for suits filed under 18 U.S.C. § 2255. Under IK U.S.C. § 2255, if a defendant is found liable for violation of one of the predicate crimes, an injured minor victim is entitled to recover at least the statutorily prescribed minimum amount in damages. Thus, a plea agreement that requires a defendant to waive thc right to contest liability under this provision could leave a criminal defendant open to liability for claims with no factual merit by purported plaintiffs who suffered no actual injury. Indeed, the Agreement in Mr. Epstein's case requires him to waive the right to contest jurisdiction, liability, and damages as to an unnamed group of alleged victims who will only later he identified to Mr. Epstein by the USAO. Thus, because Mr. Epstein did not know the identities of the alleged victims identified by the government, he had absolutely no opportunity to conduct even a cursory ADMINICOM910 EFTA00221329 12107/07 FRI 15:33 FAX 1 K RKIANDAELLI LLP 006 Jeffrey Epstein Privileged & Confidential December 5, 2007 Attorney-Client Work Product Page 4 inquiry to ensure that an alleged plaintiff has a legitimate claim under 18 U.S.C. § 2255 prior to waiving his right to contest liability.' Mr. Epstein's case highlights the potential problems inherent in allowing federal prosecutors unfettered authority to condition a criminal plea agreement on a waiver of the right to contest civil liability. Indeed, given the fundamental prosecutorial mandate to do justice, one can query whether the government should ever accept a waiver of the right to contest liability from a defendant without providing him or her with sufficient information to at least identify the potential claimant and the basis for his or her claim. Thus, it is apparent that there is a need for the Department to establish clear and well- reasoned policies to guide federal prosecutors in determining if and under what circumstances civil liability waiver provisions in plea agreements such as the one used in the Agreement of Mr. Epstein are appropriate and, if appropriate, what safeguards should be employed. III.Compromising witness reliability and undermining the federal investigative process Plea agreements that require the defendant to waive the right to contest civil liability for claims of alleged victims also pose a risk of compromising the reliability of victims' testimony and undermining the legitimacy of the federal criminal investigative process. As already noted, the terms of Mr. Epstein's agreement require him to settle civil suits filed under 18 U.S.C. § 2255 by any alleged victim identified by the USAO without providing him with any opportunity to determine whether there is even a colorable factual basis for the individual's claim. Thus, to the extent that a witness is informed of this fact during an investigation, there is a risk that the witness' claims might be colored by the prospect of a guaranteed monetary settlement without any adversarial vetting process. This heightened risk that a witness might make false or misleading claims could thus undermine both thc actual and perceived legitimacy of the federal investigative process. Given the inherent risk involved when a potential victim learns that he or she could obtain a substantial monetary settlement, the Department has a significant interest in protecting the perceived integrity of federal investigations in cases involving plea agreements of the sort entered into by Mr. Epstein. Thus, the Department should consider developing processes and procedures to ensure that the investigative process is insulated from such risks. Indeed, given that the Agreement in this case is apparently a matter of first impression, it seems appropriate fix both Mr. Epstein's counsel and the USAO to agree not to contact the alleged victims directly from this point forward and for thc Department to conduct a thorough, independent inquiry to confirm that any alleged In fact, based on the documents I reviewed, it appears that at least one of the alleged victim, is now 24 years-old. This suggests that the victim was either not a minor at the time of the alleged events or that the events fall outside of the timeframe of the charged crimes. ADMIN/20i69493•2 • EFTA00221330 12/07/07 FRI 15:34 FAX 1 K I RKLANDLELL I LLP ch 007 Jeffrey Epstein Privileged & Confidential December 5, 2007 Attorney-Client Work Product Page 5 victims were not improperly influenced, even if unwittingly, during the course of the federal investigation of Mr. Epstein. CONCLUSION There is no doubt that a federal prosecutor can and should consider restitution to victims as a factor in determining the appropriate plea agreement in a federal criminal case. It is unclear, however, whether and in what circumstances a federal prosecutor can properly condition a criminal plea agreement on the requirement that a defendant waive the right to contest civil liability and damages for a claim brought by an alleged victim. Indeed, it is apparent that conflating restitution with civil liability in this context has significant legal and policy implications that have yet to be adequately addressed by the Department. Given the many potential pitfalls of a plea agreement of the sort entered into by Mr. Epstein, even though it was entered into on a voluntary basis, I submit that the Department should devote its attention to the development of policies, procedures, and appropriate mechanisms for oversight of such plea agreements. Furthermore, given that no such review process currently exists, in the interest of justice, Mr. Epstein's case should be given appropriate departmental review at this time. 1 do not say this lightly, because I believe that such Department oversight should be reserved only for the exceptional case. In my view, however, the legal and policy issues implicated here arc so significant that such review is warranted. ADMP720169493v2 EFTA00221331 12/07/07 FRI 15:34 FAX 1 RIRRLAND&ELLIS LLP 4008 STERN & KILCULLEN, LLC COUNSELORS AT LAW HERBERT J STERN 75 LIVINGSTON AVENUE KEVIN M KILCULLEN ROSELAND. NEW JERSEY 07066 L. NIGLIO OCLADE JEFFREY SPEISER SHAUN T. HUGHEY JOEL M. SILVERSTEIN TEL. NATHAN J STEIN EDWARD S. NATHAN FAX: MICHAEL DINGER PASQUALE J RUFOLO BRIAN J. DEBOER JOHN P INGLCSINO HOWARD B TAT LINDA A ELFENBEIN EDUARDO J JIMENEZ TERRY L TRANTINA JOHN P. WYCISKAI A RICHARD EDWARD HAMILTON ALAIN LEIBMAN or COUNSEL LISA D. TAYLOR MARK W. RUFOLO December 7, 2007 STEVEN D GORELICK Alan Dershowitz, Esq. Harvard Law School 1563 Massachusetts Avenue Cambridge, Massachusetts 02139 Re: Jeffrey Epstein Dear Mr. Dershowitz: You have asked me to review the procedures and methods employed by the United States Attorney's Office for the Southern District of Florida in injecting itself into the State of Florida investigation and prosecution of your client, Jeffrey Epstein. In short, and as will be set forth at greater length herein, my review indicates that the federal authorities inappropriately involved themselves in the investigation by the state authorities and employed highly irregular and coercive tactics to override the judgment of state law enforcement authorities as to the appropriate disposition of their case against your client. What is particularly unusual here is that the allegations against Mr. Epstein are the type that are routinely and traditionally investigated and disposed of by state authorities and which the United States only rarely, if ever, retains jurisdiction. What is even more extraordinary here is the obvious purpose of the federal authorities to EFTA00221332 12/07/07 FRI 15:34 FAX 1 KIRRLAND&ELLIS LLI1 2009 Alan Dershowitz, Esq. December 7, 2007 Page 2 dictate the outcome of a state proceeding under circumstances of limited, if not actually nonexistent federal interest My Background I have extensive experience in the administration of criminal justice both on the state and on the federal level. I was employed as an Assistant District Attorney in New York County from February 1962 until October 1965. One of the investigations I was responsible for was the death of Malcolm X. From 1965 until 1969 I was employed by the United States Department of Justice in Washington as a trial attorney in the organized crime and racketeering section of the Criminal Division. I was assigned to investigate and to prosecute cases involving wrongdoing in municipal government and in the trade union movement. in 1969 I became the Chief Assistant to the United States Attorney for the District of New Jersey. From 1970 to 1971, I was the acting United States Attorney for the District of New Jersey. From 1971 through 1973, I was the United States Attorney for the District of New Jersey. In these positions I personally conducted or supervised trials of numerous public officials on both the state and federal level as well as a myriad of other federal crimes, and worked closely with law enforcement officials at the local and state levels. From 1973 through 1987, I was a United States District Judge for the District of New Jersey and presided over many criminal trials and proceedings. In 1979 I was selected by the United States Department of State to be the United States Judge for Berlin to preside over a trial of individuals who allegedly highjacked an airplane from East Germany to West Berlin. Since 1987, I have been in the private EFTA00221333 12/07/07 FRI 15:35 FAX 1 KIRKLAND&ELLIS I.I.P a010 Alan Dershowitz, Esq. December 7, 2007 Pagc 1 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 womcn 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 He would travel to Florida for purposes of returning to his home. Upon his return he would ask his assistants to make various day to day arrangements including social visits, exercise appointments, appointments with physicians and the like. On numerous occasions telephone calls would be made by his assistants for women to come to his home to provide him with massages, for which they were paid. On occasions those calls were made after Mr. Epstein and his staff arrived in Florida and at other times massages were scheduled after the masseuse called Mr. Epstein's home looking for "work". Mr. Epstein preferred that the masseuses be over the age of 18 and many were, in fact, in their early to mid twenties. There are allegations that Mr. Epstein routinely masturbated and repeatedly sought to touch the masseuses. We are aware the government has alleged sexual intercourse and digital penetration in a number of instances EFTA00221334 12/07/07 FRI 15:35 FAX I KI RKI.AND&ELLI L1,13 011 Alan Denhowitz, Esq. December 7, 2007 Page 4 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 interact 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 he profited fmancially. 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, with a 3 year early termination of probation. After being preliminary accepted by Mr. Epstein's counsel, the plea was re-evaluated and ultimately rejected because of the concerns that sex offender registration could be required. During further negotiations, at which time discussions were held regarding the lack of creditability of certain key witnesses, the State Attorney decided to present the matter to the grand jury. At the grand jury presentation one of the state's key witnesses failed to appear and the grand jury returned an indictment of felony solicitation of a prostitute. EFTA00221335 12/07/07 FRI 15:36 FAX IC I RKIANDRELL IS I.I.P ®012 Alan Dershowitz, Esq. December 7, 2007 Page 5 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 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 cach woman be entitled to S150,000 in damages (or an amount agreed to by the parties), f) 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(cXEnticement 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(3)(3). These threats, if implemented, would have exposed Mr. Epstein to a period of incarceration of approximately 180 months (15 years) under the Sentencing Guidelines. • • • • Negotiations with the State Attorney thereafter never resulted in an agreed upon plea because of the ongoing federal investigation However, the State has consistently maintained its position that the conduct alleged does not warrant sex offender registration or even a jail sentence. EFTA00221336 12/07/07 FRI 15:30 FAX 1 KIRRLAND&ELLIS LLP (d1013 Alan Dershowitr, Esq. December 7,2007 Page 6 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. Epstcin 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 conclusions arc correct. I will first address those statutes and explain why I believe the conclusions reached in the prior submissions were appropriate. 18 V.S.C. & 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 IR 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 I996, in order to combat Internet predators. As the Eleventh Circuit has recognized: particular sub-section was included in Title, 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 Internet. EFTA00221337 12/07/07 FRI 15:36 FAX I KIRKLAND&ELLIS LLP [ib014 Alan Dershowitz, Esq. December 7, 2007 Page 7 See United Sates 1. Searcy 418 F.3d 1193, 1197 (11th Cir. 2005) (citing H.R. Rep. No. 104.458, at 193 (1996) (Conf.Rep.)). ace ast K. Seto, Note- How S_hould Legislation Dcal with Children and the Victims aid terpetrators of Cyberstalicina? 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 intemet in ever-increasing numbers, and it was proving to be a dangerous place. According to a DOJ study, one in five youths (ages ID to 17) had received a sexual approach or solicitation over the Internet 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. Dept of Justice OVC Bulletin, "Internet crinflinst Children" (3d prig. 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 interne provided predators a new place - cyberspace - to target children for criminal acts. Use of the Internet, 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. EFTA00221338 12/07/07 FRI 15:37 FAX 1 K I RKIAND&EI.I.I S I.I.P 015 Alan Dershowitz, Esq December 7, 2007 Page 8 The statutory language and reported decisions confirm the statute's important but narrow focus. Unlike 18 U.S.C. §§ 2241 et se_q„ § 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. 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