EFTA00224786.pdf

5/obb Sow See issioN To ME 1* EXHIBIT 8-33 EFTA00224786 06/02/08 1ION 14:58 FAX 305 530 6440 EXECUTIVE OFFICE cool U.S. Department of Justice United States Attorney Southern District of*Florida UNITED STATES ATTORNEY'S OFFICE SOUTHERN DISTRICT OF FLORIDA 99 NE 41" STREET MIAMI, FLORIDA 33132-211 1 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 PAG E: 9 Message/Comments: This facsimile contains PRIVILEGED AND CONF IDENTIAL INFORMATION intended only for the use of the Addressee(s) named above. If you are not the intended recipie nt 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. EFTA00224787  06/02/08 :skla FAX 305° ,521 6440 EXECUTIVE OFFICE ra 002 :15/27/2006, 12 19 !TA!! DO.I/OOAC 1g1 0034013 , • . *I 'm e • too.> liZenttrth SA'. Starr Kirkland & E1Iie i.1.1' Jne soca: Flit:gene, It twi A Winn C.:. Bird ttttt Thr triV17.:IC:cr net) l .9:ett . NW :!1-6:44.1•Stb.% “ I'•rDerplfil : ; .%)..•1 4 •:: 04 ray :1; 6%0 SSL's ii.. —......7•7;11.11.V.• Lmarrnlarldaihkt sue ::?Z•hi.i.irti rw %Otis lin.viFtl .I.ol :seise May 27, 2008 VIA F&CSIMILI:: (2021 514-(14(10 CO.N7•7OAN77.4/. I lonor.tole Mark Filip H 40: 01 the Udtul y Attorney General t inilcrt Sties l)epartntent or)ma ice ti50 PelifegyiVania Avenue. N.W. 1(153t/ Vear wipe Fi ip: This letter briefly supplements our prior submission to you dated May I'7.20(18. In Mat communication. we urgently requested that your °like conduct an independent review of the proposed federal proceeution or our Okla Jefficy fipsiein. The dual reallons fur our request that you review this mailer are 0; Ow bedrock need fur inlew ity in the enlcireement of Raba al criminal laws. and lift tlw profinind questions raised by the unpreetalenh,d k:•:lcusinn ier (*edema by the t :idled States Attortwy*> Orrice in Minmi (the "t ISAO Min liks ehme ties le Winner President - i to a premment figure annum The need for review is III all the more exigent. On Mond Assistant Jefliey Shogun of the litiAO responded ay. May It 200K. first tn an email from Jay l.ellow.im inuirming1I.S Attorney Alex AtoNla (11.3t would be. Seekirc your oirme sS revici l air. SIOnleicS which imposed a deadline or June 2. 2008 to ;timid), with all the termh of the cur; cot Non. Prosecution Agreement (the 'Agreement.). plus new unilateral modifications, on pain of heing deemed in breach of that Agreement. uppear:4 to have been deliherately designed to deprive or an adequine opportunity RP Neck your Offices review in tut this mot ter. The USW!: desire to 'brut:lose a complete revieu is understandablc. given that Child i'vpinitation and Obscenity Section the ("Cl S") has already determined that our arguments regarding why a federal prose Substantive cution of Mr. 149nein is not unrranied - compelling.- I Inwever. in contradiction to were Mr. Sloinairs acsenion that CLOS had provid independent. dr ;uwn review. CFOS made clear ed an that it did not tin so. indeed. rlift5t declined examine several of the more troubling aspec u. ts of the hwestigation or Mr. ...I:psi...In. indutlinr the deliberate balk in the rod Times of numerous highly confidential aspec ts or the investigation anti riettraialitms between the parties as well us the icon crop of coil filed againit Mr. Epstein by Mr. Sloma lawsuits n's roam: law partner. The untweesgary and arbitrarily imposed deadl respeo tor (he normal ine set by the I /SAC) ustaz done without ' and sehedurny or shoe judicial matte any Mr. filutitin . b couns rs. II require:. that el persuade the Sute Attorney nt Palm beach to issue a criminal inthrmation EFTA00224788  06/02/08 MON 14:59 FAX 305 530 6440 EXECUTIVE OFFICE 0003 . 04./2.:12006 1? IS fAX uuJIWA U ktitiovot.3 tel1:3“».04 linnet:Mk: Mark »lin 27.200a Page 2 to a chage that the State Attorney hus not. despite a (v.o year invest's:[[ 44 da ...3 I »Wed Ill be approprimu. Mr. Hp:titbits counsel must also successfully espedite a plea of guilty to this charge on a date prior to July S. 200X. which is the date presently set hy the sink coon Judge. Further, tbc unnecessary deadline is even more problematic beeausc Mr. Ipsteiifs etton tu reconcile the state charge turd sCIlIC/ICC with the terms or the Agreement requites an unusual and unprecedented threatened application of federal law. Thus. it places Mr Epstein In dn• untested oosith in of having to demand that the $talc acquiesce to a own; >net.: pnnisltntenl Iltan it had already determined g•as appropriate. We have attempted to resolve these and other issues through the h:SA<1 and CF.ON, um:twilit, raising our uomurn.4 about the tismrs inappropriate condttet with rotpool to Orb manes. run those avenues have now been shut donna. Mr. Shuman's letter purports to prohibit any further cantata between Mr. lipskirrk defense learn and U.S. Attorney Acosta. and instead requires us to communicate with the IJSAO only though Mr. Sloman's subordinatcx. While it pains us to say this, this misguided proscouion lion, the ukase! gives (he appearance that il may have been politically motivantd Mr. Epoch] is a biOly suceessaul. self• made iNnsineSsnian and philanthmpist who entered the public arena only 1» % irrur Oi lic elow personal association with former President Bill Clintutt. There is link doubt oar minds that the 1!S:10 nevi!' would have contemplated a prosecution in this case it Mr. Epstein teer: just anodler U.S. Attorney Acosta previously has slued that Ile is - Sympathetic:" 1(1 our rederalisio. Mated contents. but be has taken the position that his authority is finilied bt ciffinvensem policieS Set pooh in Washington. D.C. As expressed in our prior enmenunication to you, We believe that a complete and independent appraisal and resolution of this case most approprisicly would he undertaken by your Office beginning with the rescission nr the arhiirary. unrair• and unprinedemed deadline that Mr, Slaman demands to have imposed in this ease. At the very kW would appreciate a tolling, of the arhitrac timeline imposed on our client by the I:SAO ill (II(IVE U. allow dint: for your office to consider out lUtilleql that yin: ontlerudo: a re'. ten Of this ease. 'not:A yeti ter your time and attention. It zspcei fully submitted. r C), -7 ,471.442, „.".• Kenneth I. Starr Whitley er.1 (...,0 il) 4 Kirldielal 4K: KIHS Alston Bird IL EFTA00224789 06/02/08 MON 14:59 FAX 305 530 8440 EXECUTIVE OFFICE g1004 on/46/2uoa 69:06 FAX 2026161239 D0VODAG 05 10 hn 330N I3:21 VAS 1 233 08(1 hhoo 56605/013 KTRKLANIAELLIS Lit twit), KIRKLAND & ELLIS LLP Fax Transmittal 777 South Figueroa Street 5117 Cuej e:s• Los Angeles, California 90017 Phone. (213) 680-8400 Fax: (213) 680-8500 Please notify us immediately If any pages are not recolved. THE INFORMATION CONTAINED IN Tills COMMUNICATION IS CONFIDENTIAL. SE ATTORNEY -CLIENT PRIVILEGED. MAY MAY CONSTITUTE INSIDE INFORMAT IS INTENDED ONLY FOR THE USE ION. AND OF THE ADDRESSEE UNAUTHORIZEO USE. DISCLOSURE OR COPYING IS STRICTLY PROH IBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMM UNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (213) 680-8400. ro: Company: Fax II: Direct It: Honorable Mark Filip Office of the Deputy Attorney General United States Department ofJustiet (202) 514-0467 (202) 514-2101 From: Date: Pages 'stover: Fax U: Direct ft: Kenneth W. Starr May 19, 2008 9 (313) 680.8500 (213) 680-8440 Message. EFTA00224790  MON 14.; 59 FAX 305 EXECUTIVE na /08 agave utnui •Ile AON OA. III tit& 530 644 0 Z UZ6 id I.:439 DOJiODAU OFFICE KI RKI,AN0019.1 3 S lm 006n013 005 IQI II U 13:22 FAX I 213 680 8500 lit' • Kenneth W. Starr Kirkland & Ellis LLP Joe D. Whitley 777 South Figueroa Street . -4Jstora & Bird LI.P Los Angeles: CA _90017-5800 The Atlantic Building Phone: ats-rglo-844o 95o P Street, NW Pax: 213-680-8300 Washington, DC 20004-1404 listarro,kirkland.com Ph: 2o2-7 6-3189 Fax: 202-654.4889 4'aiston.com May 19, 2008 VIA FACSDALInallik&LU CONFIDENTIAL honorable Murk Filip Office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue; N.W. Washington, D.C. 20530 Dear Judge Flap: In his confirmation hearings .last WI, Judge Mukascy admir traditions of the Department of Justice in assuring the Unite States ably lifted up the finest d Senate, and the American people, of his solemn intent to unsure fairness and integrity in the administration of justice. Your own confirmation hearings echoed that bedrock determ ination to assure that the Department conduct itself with honor aad integrity, especially in the enforcement of federal criminal law. We come to you in that spirit and respectfully ask for a in a quintessentially state matter involving our client, Jeffre review of the federal involvement y Epstein: While we arc well aware of the rare instances in which a review of this sort is justified, we arc confident that the circumstances at issue warrant such an examination. Based on our collective experiences, as well as those of other former senior Justice Depa rtment officials whose advice we have sought, we have never before seen a ease more appropriate 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 process rights of our client, are at issue. Recently. the Criminal Division concluded a very limited request of U.S. Attorney Alex Acosta. Critically, review of this matter at the however, this review deliberately excluded many important aspects of this case. Just this past Frida y, on May 16, 2008, We received a letter from the head of CEOS informing us that CEOS had conducted * review of this case. By its own admission, the C13OS 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 intenwined with the credibility of the accusations being made against Mr. Epstein by the United States Attorney's Office in Miami ("USAO"). Moreover, CEOS did not assess the terms of the Deferred Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors' inappropriate efforts to implement those terms. We detail this point below. EFTA00224791  06/02/08 NON 15:00 FAX 305 530 6440 DuJEXECUTIVE OFFICE la006 yleiblOsiWWWWA. W4 CAA itioAc 143007/0t3 ,na. ts.pts MO' 13:22 PAX 1 213 G80 8500 x I 8NLAND&EIJ.1s 1.1.P to Cilia • • • Honorable Mark Rip May 19, 2008 Page 2 By way of background. we were informed by Mr. Acost would be conducting a review to determine wheth a that, at his request, CEOS er federal prosecution was both appropriate and, in his words. - fair." That is not what occurred. we had raised "many compelling argum Instead, CEOS has now acknowledged that ents" against the IJSAO's suggested "novel application" of federal law in this mutter. Even so. CF.OS concluded. in minimalist fashion. that "we do nor see anything that says to us categorically that a federa cafe l should not be brought" and that the U.S. Anoint) "would nor be abusing his prosecutorial discre tion should he authorize fedentl prosecution of Mr. Epstein!" thus delegating back to Mr. Acosta the decision of whether federal prosecution was warranted (emphasis added). Rather than assess ing whether prosecution would he appropriate, CUOS, using a low.baschne for its evaluation, determined only that "it would not be impossible to prove . . ." certain allegations made again Mr. st Epstein. The CEC)S review failed to address the significant problems involving the appearance of impermissible selectivity that would necessarily result from a federal prosec ution of Mr. Epstein. We respect CEOS's conclusion that its authority to review precluded by Criminal Division practice. We further respec -misconduct" issues was t CF.OS's view that it understood its mission as significantly limited. Specifically, the contemplated objective was to determine whether the USAO would be Abusing its discretion by bringi ng a federal prosecution rather than making its own de novo recommendations on the appropriate 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 facts and circumstance s of this matter below. The two base-level concerns we hold are that (t) federal prosecution of this matter is not warranted based on the purely-local conduct 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 an appearance substa of ntial 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 mistakes 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. precedent-shattering investigation of Jeffrey questions—and serious issues as to the fair and Epstein that raises important policy honorable enforcement of federal law—the USA() in Miami is considering extending federal law beyond the bounds of precedent and reason. Federal prosecutors stretched the under lying facts in ways that raise fundamental questions of basic prOfessionalism. Perhaps most troubl ing, the USAO in Miami, as a condition of deferring prosecution, required a comm ingling of substantive federal criminal law with a proposed civil remedy engineered in a way that appea rs intended to profit particular lawyers in EFTA00224792  06/02/08 MON 15:00 FAX 305 530 6440 EXECUTIVE OFFICE 0 007 05/24/200a 09:08 PAX 20.26161239 DOJ/ODAC 42006/013 (Fog pm( 13:23 FM 1 213 080 8600 IcilthLAMEU1S IJ.I' Gaoll4 , • , Honorable Mark Filip May 19, 2008 Page 3 private practice in South Florida with personal relationships to some of the prosecutors involved. Federal prosecutors then leaked highly sensitive inform ation about the case to a New York Times reporter.' The immediate result of this confluence of extraordinary circumstances is an onslaught of civil 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 classic state crime of solicitation of prostitution:I The State Attorney's Office in Palm Beach County had conducted a diligent investigation, convened a Grand Jury 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 oniy reason the State has not resolved this matter is that the federal prosecutors in Miami have continued to insist that we, Mr. Epstein's counsel, approach and dema nd from the State Attorney's Office harsher charge and a inure severe punishment than that Office believes are appropriate under the circumstances. Yet despite the USAO's refusal to allow the State to resolve this matter on the terms the State has determined arc appropriate, the USAO has not made any attempt to coordinate its efforts with the State. In fact, the USAO mandated that any federal agreement would be conditioned on Mr. Epstein persuading the State to criminal punishment unlike that imposed on other defendants within the jurisdiction seek a of the State Attorney for similar conduct. From the inception of the USAO's involvement in this case, which at the end of the day is a case about solicitation of prostitution within the confin have asked ourselves why the Department of Justic es of Palm Beach County, Florida, we 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, atter it was widely perceived by the public that he was a close friend of former President Bill Clinton. The conduct at issue is simply not within the purview of federal jurisdiction and lies outside the heartland of the three federal statute s that have been identified by prosecutors-18 U.S.C. § 1591. 2422(b), and 2423(h). One of the other members of Mr. Epstei n's defense team, lay Leficowitz, has personally review contemporaneous notes. ed the reporter's Although some of the women alleged to be involved were 16 and 17 years of age, several or openly admitted to lying to Mr. Epstein Mese women about their age in their recent sworn statements. EFTA00224793  06/02/08 YON 15:01 FAX 305 530 6440 EXECUTIVE OFFICE loos 05/28/2008 00:09 FAX 2029161239 DOJ/ODAG 009/013 eJ KIRKLANT&FLLis 1.1.1` 10005 1'1O ph. MOM 13:::3 rAs 1 213 SRO 8500 Honorable Mark Fi lip May 19, 2003 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 ease brought under IR U.S.C. §§ 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 § 1591 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. Punhormore, the Government's contention that "routine and habit" can fill the factual and legal void crested by the lack of evidence that such a communication ever occurred sets this case apart from every reported case brought under § 2422(b). 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 U.S. Attomes 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 this 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 uniformity. 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. Federal prosecution of a man who engaged in consensual conduct inhls home that amounted to, at most, the solicitation or prostitution, is unprecedented. Since prostitution is fundamentally a state concern. cone United Sal. Evan; 476 F.3d I I 76, e.1 (11th Cir. 2007)(1-Waal law "does not aimlnalize all acts ot prostitution vice traditionally governed by state regulation)")). and there is nu evidence (a and Florida prosecutors cannot cobetively prosecute and punish the conduct,tbat Palm Beach County authorities there is no reason why this matter should he extracted front the bands ofstate prosecutors in Florida. EFTA00224794  06/02/08 IION 1501 FAX 305 530 6440 DOJEXE /ODA C IVE OFFICE CUT 1009 os/28/20os uv:08 FAX 2u26161239 0010/0) .11.: IU as MOV I 3 : FAX I 213 680 8500 AK LANDAELLI 5 I LP ;a000 Honorable Mark Filip May 19.2008 Page'S. in fact, recent testimony of several alle prosecutors during the negotiation ged "victims' contradicts claims mad e by federal s of a detbrred prosecution agreement. representations of key Government The consistent witnesses (such as Tatum Miller. Brittany Gonzalez, and Jennifer Laduke) Beale, Saige confirm the following critical points: rips!, communication, telephonic or othc there was no nvisc, that meets the requirements of § 2422(b) Ms. Gonzalez confirmed that Mr. Eps . For instance. tein never entailed, text-messaged, or interstate commerce whatsoever. befo used any facility of re or Tr. (deposition) at 30. Second, the wom after her one (and. only) visit to his home. Gonzalez en who testified admitted that they lied about their age in order to gain adm to Mr. Epstein ittance into his home. Indeed, the women underage friends to Mr. Epstein who brought their testified that they would counsel their friends ages as well. Ms. Miller stated the to lie following: "I would tell my girlfriends just shout their approached me. Make sure you tall hiin like Carolyn they were IS or 19 or 20. And the you're IR. Well, these girls that I brought, I know that girls that I didn't know and I don't know if not, I would say make sure that you they were lying or tell him you're 18." Miller Tr. at 22. Thir routine or habit of improper communicat d, there was no illegal sexual act. In fact, ther ion expressing an intent to transfonn a mas e was often no sexual activity et all duri sage into an Miller testified that "Is]ometimes (Mr ng the massage. Ms. . Epstein] just wanted his feet massage just warned a back massage." d. Sometimes he Miller Tr. at 19. Jennifer Laduke also stat "never touched Liter] physically" and ed that Mr. Epstein that all she did was "massage( ) his thighs and that was it." Laduke Tr. back, his chest and his at 12-13. Finally, there was no force, violence, drugs, or even alcohol coercion, fraud, pres women, Ms. Beale stated that "[M ent in connection with Mr. Epstein's encounters with these r. Epstein] never tried to force me to A at 12. These accounts are far do anything." Beale Tr. from the usual testimony in sex slavery, tourism cases previously brought. Internet stings and sex The women in actuality were not younge the age of consent in most of the r than 16, which is 50 states, and the sex activity was irregula consisted of solo self-pleasuring. r and in large part. The recent crop of civil suits brou not discuss any sexually-related ght against Mr. Epstein confirm that the activities with anyone prior to arri plaintiffs did residence. This reinforces our con ving at Mr. Epstein's tention that no telephonic or Internet pers enticement or coercion of a minor, uasion, inducement, or of any other individual, occurred. llerrnan, the former law partner In addition, Mr. Jeffrey of one of the federal prosecutors involved attorney for most of the civil complai in this matter and the nants (as described in detail below), Beach Post as saying that "it was quoted in the Palm doesn't matter" that his clients lied about Epstein that they were 18 or 19. their ages and told Mr. • Not only is a federal prosecution conduct by prosecutors and the of this matter unwarranted, but the unorthodox terms of the deferred prosecu irregularity of beyond arty reasonable interpretatio tion agreement arc n of the scope of a.prosecutor's respons improprieties includes, but.is not ibilities. 'the list of limited to, the following facts: EFTA00224795  06/02/08 EON 15:02 FAX 305 530 6440 EXECUTIVE OFFICE al)10 05/28/2008 00:10 FAX 2o26i61239 b0.1,0DAG QP111/011 • 1.C.,.icr. us, MON 11: FAX 1 211 nen MO KIRKI.ANOTini.1.15 kin07 Honorable Mark Filip May 19, 2008 Page 6 • Federal prosecutors made the unprecedented demand that Mr. Epstein pay minimum of $150,000 per person to an unnamed list of women they referred to ss minors and whom they insisted required representation by a