EFTA01729480.pdf

LAW OFFICES or Ginalian B. Lifrocienrc, P.G. A PROFESSIONAL CORPORATION NEW TORK,ITEW YORIT.100SII. GER •ELE.T., FACSIMILE SNERY RENA FAITH July 25, 2007 BY HAND of of the Criminal Division The United States Attorney's Office Southern Distri ofFlorida tams, on a 3132 Jeffrey Epstein Dear Mr. We have previously provided you with a memo as to why we believe no charge under 18 U.S.C. §2422(b) could or should be brought against Jeffre y Epstein, even assuming the specific conduct that you have alleged actually occurred. In that memo , we detailed Congress's intent in enacting this statute. We also posited that the langua ge of the statute would have to be stretched beyond recognition to fit the particular facts ofMr. Epste in's case! Enclosed is data that strongly supports the arguments we previously made. We have thorou ghly analyzed every prosecution brought under the statute for which data could be obtained. Based on that analysis, we submit that the prosecutions actually brought under the statute overw helmingly confirm the limits to prosecution we have previously identified.2 For several months, we have also been consulting on this matter with Principal Deputy Chief, Department of Justice, Child Exploitation former & isllection. supports our positio • ervation that this is not a matter upon which the federal statues be brought to beat should would also welcome any questions or concerns you would with her. like to raise 2 Please note that the enclosed chart amend s the one provided to you earlier this week by adding additional details recently located. EFTA01729480  LAW OFFICES OF GERALD B. LEPCOURT. PC. Chiefof Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 2 • For example, of the 184 prosecutions in which at least one count alleges a violation of §2422(b), in the overwhelming majority of thos e cases — 160, or over 85% — the "means" of interstate communication was the Internet and involved the classic "Internet trolling" —far different front the behavior alleged here. Of that subset, the vast majority — 113 -- were "stin operations involving "children" (actually, agen g" ts) said to be between 2 and 14 years of age. government in each of those instances took The every precaution to verify that the defendant's were undertaken "knowingly". To the extent actions we can determine the facts, it appears that prio case being brought, in each instance multiple r to a explicit (and recorded) conversations were had, there could be no question as to when the indu so cement was attempted, whether the inducement was of explicit unlawful sexual activity, or wha t the defendant's belief wasas to the age of . victim. Again, this has no applicability to the the facts alleged here. The data is informative in other ways, as well. which the telephone is one of a multiple of mea Though there are a handful of cases in ns of interstate communications allegedly used only two such cases, both far different from the , in facts here,; was the use of the telephone the sole means of the wrongdoing alleged. In the rem aining telephone cases, the §2422(b) coun one of several amongst various charges of poss t is only ession of child pornography, violence, and the like. The data from the chart also establish that in the vast majority of the cases brought, no sexual activity was actually consummated. Tha t confirms that prosecutions under §2422(b focused on protecting the federal interest in ) are preventing the means of interstate commun from being used to commit crimes, particularly ication with respect to activities that are traditionally difficult for the state to prosecute. A prosecution predicated on an incidental telephone call used as a "hook" to trigger federal jurisdiction in orderto punish a defendant for the underly activity is well out of, not only the mainstr ing eam of §2422(b) prosecutions, but all §2422(b sexual that have ever been brought. Here, the state ) cases is fully able to prosecute the conduct alleg ed. We understand that the government believes it possesses proof that on various occasion telephone calls were allegedly made on Mr. s Epstein's behalf by other persons who alleg edly 3 As detailed in the introductory section to the char pimps who conceded that their businesses t, among the differences are that those cases hinged on the use of telephones. Moreover, it involve that the arrangements being made are for sexu is unequivocal al activity with underage women. EFTA01729481  LAW OYrICCS or GERALD B. LEITCOURT. P.C. Esq. R ifilriminal Division The United States Attorney's Office Southern District ofFlorida July 25, 2007 Page 3 spoke directly or indirectly to women who were under 18. As the message books taken (unlawfully, in our view) during the search of Mr. Epstein's home clearly show, many women initiated the interactions by repeatedly calling to schedule massages. If the calls on which the government might seek to rely were merely "ret urn" calls, certainly any alleged "inducemen would be far from unambiguous. And of cour t" . se, the woman who called would have to have known by Mr. Epstein to be under 18, and furth been er, Mr. Epstein would have to have known and intended that a specific sexual activity unlawfu l under Florida law was being induced. Thus, contrary to there being unambiguous pro of of the required elements of a 42422(b) violation in this case, at least the following defe cts exist: First, it is hardly the case that every massage resulted in sexual activity. Thus, merely because there was a telephone call, even one that might have "induced" a massage (which dispute), such telephone call is not tantamount we to the use of a telephone in violation-of the statute. Second, even where a particular massage invo touching of a woman, we dispute that any such lved masturbation by Mr. Epstein or the conduct is a violation of any applicable Flor law. ida We u focused on the evidence which reflects the example, sworn statement of, for who told state investigators that she was aske 18 and 20 who would provide Mr. Epstein d to find women between with topless massages and which sometimes their being touched. Fla. Stat. Ann. §796.07 involved , a general statute which proscribes "prostitution and "lewdness", regardless of whether an adu " lt or minor is involved, is of very limited applicability here. That statute's definition of "prostitution" excludes conduct of which may be evidence, specifically, a man masturb there ating himself while touching the breasts of Section 796.07(1Xa) defines "prostitution another. " as the giving or receiving ofthe body for activity for hire. "Sexual activity" is defined sexual to include "the handling or fondling of organ of another for the purpose ofmasturb the sexual ation". Thus, "sexual activity" appears to situations where a woman is paid to masturb cover ate a man but excludes the situation whe masturbates himself in the presence of a wom re the man an. Any other reading of this statutor would raise constitutional problems of fair war y language ning, vagueness and lenity. EFTA01729482  lAW O•IKCS OP GERALD B. LEFCOURT. P.C. sq. ire o • e Criminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 4 We are, of course, mindful of the fact that, unbeknownst to Mr. Epstein, some of the women were in fact not yet 18. It is certainly not clear that any state statutes were viol Mr. Epstein's conduct with any of these ated by women, either. Florida law criminalizes sexual activity with persons between the relat ively little ages of 16and 18. For example, it is not a the laws regulating sexual activity to receive violation of a massage from a person between 16 and topless or even naked. See Fla. Stat. Ann 18 who is . §800.04 (lewd and lascivious conduct with between the age of 16 and 18). Nor does a child that statute make h a crime to touch the brea other private areas of someone between 16 sts or and 18. Id. And, of course, even if a state committed, which we surely do not concede, crime was that does not make out a federal crime, unle could be proven that the defendant knowin ss it gly induced an illegal aet over the telephon e. Moreover, at best, the proof would show that only a small minority of massages'res in what may possibly be characterized as ulted sexual activity with a woman under the even where a massage involved sexual activ age of 18. But ity with a woman under 18, to the extent did not know the woman was under 18, Mr. Epstein or the telephone call did not induce the activ Epstein did not intend the sexual activ ity, or Mr. ity at the time the telephone call arrangin the person arranging the massage did not g the massage, or intend the sexual activity, there would be- additional battlers to a successful prosecut multiple ion. Further, putting aside whether there is suff icient proof that Mr. Epstein knew (and merely that he "should have" surmised) not that any of the women were in fact und facts hypothesized above hai never befo er 18, the set of re provided a legally sufficient predicate prosecution under §2422(b) - or under any for a other federal statute. The enclosed chart clearly and compell ingly demonstrates that every charge alleging a violation of §2422(b) is char brought acterized by direct (not circumstantial speculative) evidence of the defendant and certa inly not himself (not others on his behalf) using interstate communication to commun the means of icate an unambiguous inducement to underage or in the case of a sting, repr a person known to be esented to be underage (or a person thou behalf of such person) during the very ght to be acting on communication that constitutes the requ federal jurisdiction. ired basis for EFTA01729483  LAW OFTICCit kW GERALD B. LEPCOURT, P.C. Esq. to of t eCriminal Division The United States Attorney's Office Southern District of Florida July 25, 2007 Page 5 To our knowledge, the current investigatio n lacks any direct (or even.ciretunstantial) proof that an inducement was made by Mr. Epstein during the pivotal communication the very heart of any potential §2422(b) that is at charge. Even if the government contend Epstein induced unlawful sexual activity s that Mr. at some point, face to face, after a telephon separation of the communication and the e call, the inducement takes Mr. Epstein's alleged misc outside the ambit of federal prosecution. It onduct would be unprecedented (and unprincipled), chart demonstrates, to prosecute Mr. Eps as the tein under §2422(b) absent proof beyond doubt both that he knew the age of the pers a reasonable on and that he intended in that communicati induce sexual activity that is unlawful unde on to r Florida law. It would also be unpreced prosecute Mr. Epstein under §2422(b) base ented to d on a telephone call made by a third part direct proof that Mr. Epstein intended that y without telephone call to induce unlawful sexual acti vity. For all of these reasons, as well as those asserted at the meeting of June 26 and in follow up letter dated July 6, 2007, as wel our l as our earlier letter of June 25, we submit charge under 18 U.S.C. §2422(b) can be that no brought. If you have any questions or wou discuss this further, we are available. ld like to Very truly yours, Gerald B. Le court Alan M. Dershowit.c- Ad vD144 cc: Lilly Ann Sanchez, Esq. EFTA01729484  JEFFREY EPSTEIN 18 U.S.C. §2422(b) CASE ANALYSIS CHART A nationwide search of all cases listing charges under 18 U.S.C. §2422(b) underscores the undeniable fact that this statutory provision has been used almost exclusively to apply to situations involving Internet "trolling" by sexual predators. Out of a total of 184 cases listed in the chart below, the overwhelming majority — 144 cases•— involves communications using the Internet. Of those cases, 115 involve the classic "Internet Sting" operations where either the government or a private organization has focused its investigative efforts on the use of the Internet to lure infants and minors, 3-14 years-old. Of those 115 cases, 71 involved the use of Internet chat rooms. As the chart reflects, the circumstances under which this statute has been applied invariably involved communications containing an explicit inducement — if not many — to the minor to engage in sex, and reflect the defendant's clear knowledge of the age of the minor. Notably out of the184 cases, only 2 cases involve the use of only the telephone. Both of those cases involve charges against pimps using phones to arrange appointments for prostitutes. addition, both of those cases involve violence and pimps who admitted to using phones to further their business ventures. Moreover, in both cases many other factors, including the distribution of narcotics, use of force and possession of firearms were present. See U.S. v. Evans, 476 F.3d 1176 (11th Cir. 2007); U.S. v. Phillips,165 Fed. Appx. 677 (10th Cir. 2006). In addition, the telephone and not the Internet served as the "facility or instrument" of interstate commerce in 4 foreign travel sting operation cases geared towards "sex tourism". Out of the 184 cases listed below, only 17 involved actual sexual activity, 6 of them by use of force. It is also clear that in no case — other than U.S. v. Howard, 2006 U.S. Dist. LEXIS 67214 (W.D.N.C. 2006) (co-conspirator pimps in prostitution ring) — was there a successful charge of conspiracy based on §2422(b). See, e.g., U.S. v. Pisman, 443 F.3d 912 (76 Cir. 2006) (2423(b) Conspiracy); U.S. v. Pipkins, et al., 378 F.3d 1281 (11th Cir. 2004) (RICO conspiracy); U.S. v. Hornaday, 392 F.3d 1306 (11" Cir. 2004) (conspiracy charge was error); EFTA01729485  U.S. v. Jackson, 2007 U.S. Dist. LEXIS 33639 (D. Neb. 2007) (state conspiracy charge dropped because no conspiracy possible with undercover agent); U.S. v. Bianchi, 2006 U.S. Dist. LEXIS 90073 (E.D. Pa. 2006) (2423(e) conspiracy). . _ z40, . L CASESt• • " z Y-" FACILI ,FACTS/COMMIJNICATION CHARGE eus" -' - . , , • I d Cir. U.S. v. Dewire, Internet AOL instant message (IM) 2422(6) 271 F.3d 333 (1" Cir. communication with "12 yr-old"; 2001) sexually explicit conversation, at the end Not Consummated of which defendant arranged to meet "12 yr-old" at a restaurant. In reality Showed up for meeting communications were with an adult swim team coach who had been using the . girl's computer; coach turned print out of • conversation over to police who observed defendant entering and leaving the restaurant and arrested him. Sentence 13 months; appeals conviction & sentence. Affirmed. 2 EFTA01729486  -7,_ ., . cgrinT- . ., _. . - , A', -.4 ... . „...7-,..:. ic - af ':tatic. .ivitivitMetitim - , ._t•-k:,.:”..11‘•' ..L, '. .11::.‘ .>;:':,-. .;;;C_ : r.cwin U.S. V.Gravenhorst, Unpublished Internet use of email by 45 yr-old male to 2422(b); 2006 U.S. App. LEXIS proposition 4 16 yr-old girls& one under 1470; 32373 (1st Cir. 2006); 16 yrs-old to engage in sex with him; 14 62 vacating defendant pretended to be 19 yr-old and 377 F.3d 49 (1 sT Cir. 2004) sent numerous graphic emails asking minors for sex; also sent sexually- No Information charged images to them — including couple engaging in sex and an erect penis. Sentence vacated in light of Booker. 2"d Cir. U.S.. v. Friedman, Unpublished Internet Email communications with actual 14 yr- 2422(b); 139 Fed. Appx. 330 (2nd old; defendant arranged to meet and 2423(b) Cir. 2005) actually met 14 yr-old girl and engaged in "sexual touching"; interrupted by security guard at mall; instant messages Consummated reflected defendant's intention to present himself to the upon meeting 14 yr-old in an aroused state once they met; defendant found with condoms in his car; & when arrested photos were found on his digital camera, one of which he had sent to the 14 yr-old via email. Conviction affirmed but 81 month sentence vacated to be reconsidered in light of Booker. 3 EFTA01729487  ,. .. . -.• • COURS:::\ , CASES -i • „ . , CF4.Cliiiii . ..."14,:ciiikiSiiiii ' roN T. G ,...,.. . U.S. v. Weisser, Internet AOL TM chats (over 6) between 45 yr- 2422(6); 417 F.3d 336 (21.4 Or. Sting old male from San Francisco and "I I yr- 2423(b); 2005) old male" in NYC; discussed in graphic 2252A(a)(1) language the kinds of previous sexual activity he had engaged in with other Not Consummated minor males and those he planned to engage in with the "11 yr-old" ; defendant arranged to meet the "boy" at Showed up at meeting a hotel in NYC; talked on the telephone twice (calls recorded); requested photos to verify age; made detailed plan for "11 yr-old" to skip school and stay with him at hotel in NYC; defendant sent "11 yr- old" his flight and hotel information and waited for "boy" in hotel room where arrested; police found defendant with sexual paraphernalia and CD in computer containing child porn which had been created from images downloaded from defendant's computer. 210 month sentence remanded to be reconsidered in light of U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005). 4 EFTA01729488  ._,. .... . CO T1; " • s4 ',:-FACIa .1:4(-O4cpivimoicAirpN: -ci.41014, U.S. v. Minnie!. Unpublished Internet Defendant drove 170 miles to engage in 2422(6); 128 Fed. Appx. 827 (2nd Stine sexual activities with "13 yr-old" after 2423(b) Cir. 2005) engaging in IM chats, and telephone conversations; IM chats . Defendant Not found to be in possession of graphic Consummated photographs. Defendant also engaged in IM chats with "14 yr-old" during which he expressed desire to travel to meet her; also other DM chats where defendant described "coaching" high-school girls in sexual terms; photo of grown man masturbating in front of a 2 yr-old. "Addictive" nature of Internet ' communications with minor warranted pre-trial detention and revocation of bond. 5 EFTA01729489 . . , . COVET - • . CASES • •FACILITY I .%tis•ACTST.COMMUNItatOTE.• >t ,ICIMRQt ,-, •!. U.S. v. Brand, Internet Internet chat room; civilian posing as 2422(b); 467 F.3d 179 (2nd Cir. Sting "13 yr-old girl" in "I Love Older Men" 2423(b) 2006) chat room; defendant proposed they meet and he "hug" her and they could fool Not Consummated. around and "do it all"; offered to "teach her" how to have sex and "how to be a Showed up at meeting woman"; civilian turned chats over to police; defendant used the telephone to plan and arrange to meet for sex; arrested when he showed up. Police found child porn on his computer and condoms in his car. U.S. v. Miller, Neither, Gang members; pimp recruited underage 2422(b); 148 F.3d 207 (2"d Cir. possibly cell girls for prostitution and traveled 2423(b) 1998) phone & interstate with them. beepers No Information U.S. v. Johnson, Internet Internet contact with 3 separate minor 2422(b); 221 F.3d 83 (2"d Cir. 2000) girls and traveled to engage in illegal . 2423(b); sexual conduct. 2252(a)(I) & (a)(4)(B) Pled guilty to travel from MA to NY; VA to MD; & VA to MI to meet 13 yr- Consummated olds & have sex; and convincing minor to travel from MD to VA to have oral sex with him; all through the Internet. Pled guilty — 88 month sentence Affirmed. 6 EFTA01729490  . .. .. COURT • 4. CASES ... .; .. .„, , . IT tklA Ar.WIiIiiSPIIC.A.T.IONI .:4'• ' CHAR ' _ - - • , .....4' —x,::;!.:-.:7?.:- :.;..:c..,..' n•-•,::_.• • ! :. 3 rd Cir. U.S. v. Lee, Internet Internet chat 2252A(a)(I) & (b)(1); 315 F.3d 206 (3`d Cir. room"GirlsandOlderGuys"; 30 yr-old (a)(5)(B) & (b)(2); 2003) contacted minor in chat room; met actual 2423(b); 15 year-old in chat room; arranged to 2422(b) have her travel to meet him; they met and engaged in sexual acts. Also Consummated attempted to meet other minors online to engage in sexual activity; transmitted child porn online. Pled guilty to 2252A and 2422(b) and sentenced to 57 montlis;.appealed sentence requiring supervised release condition requiring random polygraph testing. Affirmed. U.S. v. Awwad, Unpublished Internet Case involved typical intemet sting 2422(b); 2423(b) 184 Fed. Appx. 201 (3'd Sting operation. No specific facts available. . Cir. 2006) Not Consummated 7 EFTA01729491 . .. . . COURT - • i OAS .' ' , ,i F:AVILITY :.. c QM 011 4/elliI coWN • ..- . alaGE: ' ..:,-.;.,. U.S. v. Mame, Slip Copy No Defendant arrested for having sex with a 2422(b); 2423(b) Slip Copy, 2006 WL Not for Information 2 yr-old who was offered by the mother. 3368897 (3rd Cir. 2006) Publication Appealed 240 month sentence. Affirmed. Consummated U.S. v. Garcia, Slip Copy Internet 56 yr-old male met 14 yr-old on 2422(6); 2423(b) Slip Copy, 2007 WL Internet; traveled to meet her for sex 986874 (3rd Cir. 2007); Not for and had sex with her. Consummated see also U.S. v. Garcia, Publication Pled guilty but appealed 100 month, 5yr 2005 WL 1862409 (M.D. supervision & fines. Affirmed. Pa. 2005)(Unpublished) infra U.S v. Tykarsky, Internet Internet chat room "Iloveoldermen2"; 2422(b); 446 F.3d 458 (3rd Cir. Sting defendant initiated 114 chat with "14 yr- 2423(6) 2006) old"; indicated interest in having sex with her; contacted the "14 yr-old" on at Not Consummated least 8 different dates& described in explicit detail sexual acts he hoped to Showed up at meeting perform with her; asked "14 yr-old" for photo; during Internet chat defendant arranged to meet "14 yr-old" at a hotel and described sexual acts he intended to engage in with her; defendant showed up at hotel and arrested. Actual minor not required; maximum sentencing provided by PROTECT Act remanded because conduct occurred before effective date of the Act (April 30, _ 2003). 8 EFTA01729492 • ccraT ,) i 2,, • ."?:„.,).:).• a 7if:Pow ' JI & Isil`r• ^:!7 ...... tw : '. c." retaim a-).., s, , C.! 2 t : 1, ?ad.g.'.. 21: 1- ,#.;,:r;:, ' :2. ..4.-.... ., A 4ih Cir. U.S. v. Bray, Unpublished Challenge to sentence of 168 and 180 2422(b); 133 Fed. Appx. 80 (4th Cir. months for 2 counts of 2422(b) 21 USC 841 2005) conviction and 60 month conviction for (marijuana possession ) marijuana possession — all but 24 . ' months to be concurrent or alternative No Information sentence of 204 months - court affirmed sentence. U.S. v. Taylor, Slip Copy No No information. Appealed 71. month 2422(b); 2423(b) 6 Fed. Appx. 174 (4'h Cir. Information sentence. Affirmed. 2001) . Not for No Information Publication U.S. v. Kaye Slip Copy Internet Internet communications by 54 yr-old 2422(b); 2423(6) Slip Copy, 432007 WL Not for ing St . male with "13 yr-old male"; defendant 1978226 (4'h Cir. 2007) Publication by private told "13 yr-old" he was "prowling for young men" on the Internet; defendant Not Consummated