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CONFIDENTIAL SUBMISSION TO
THE OFFICE OF THE DEPUTY
ATTORNEY GENERAL
RE J. EPSTEIN
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KIRKLAND & ELLIS LLP
AND AFFILIATED PARTNERSHIPS
Kenneth W. Starr
To Call Writer Directly: Facsimile:
777 South Figueroa Street
Los Angeles, California 90017
www.kirkland.com
June 19, 2008
John Roth, Esq.
Principal Associate Deputy Attorney General
Office of the Deputy Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W., Room 4115
Washington, D.C. 20530
Dear Mr. Roth:
Dir. Fax:
I again want to thank you for this opportunity to explain why we believe that a federal
prosecution of Jeffrey Epstein is unwarranted. I appreciate your having informed us that you
already have our May 19 and May 27 communications to the Deputy Attorney General, as well
as our prior written submissions to CEOS and to the Southern District of Florida.
In light of the significant volume of our prior submissions and to facilitate your review,
we have drafted four supplemental submissions that will provide a roadmap for your
investigation of this matter. Given the bulk of these documents and their appended supporting
attachments, you will receive this packet by messenger tomorrow. A brief description of each of
the four submissions follows. First, I have included a succinct summary of the facts, law and
policy issues at hand. This document sets forth a basic overview of the issues and summarizes
our principal contentions as to why federal prosecution of this matter is neither appropriate nor
warranted.
The three other submissions include: a summary of the irregularities and misconduct that
occurred during the federal investigation; a letter from former CEOS attorney Stephanie Thacker
that responds to CEOS's assessment of its limited review of Mr. Epstein's case; and a point-by-
point rebuttal to First Assistant United States Attorney Jeffrey Sloman's recent letter which we
believe contains factual inaccuracies typical of our correspondence from the United States
Attorney's Office in Miami (the "USAO"). Also, for your reference, the package you receive
tomorrow will contain a binder including all documentation to which we refer in our
submissions. Finally, we will be providing a detailed checklist of each submission or substantive
communication to the USAO. Our intention is that you have copies of each such document to
enhance your review. If there are any that you have not received from the USA() or CEOS,
please advise and we will fedex them to you without delay.
Chicago Hong Kong London Munich New York San Francisco Washington, D.C.
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John Roth, Esq.
June 19, 2008
Page 2
As you are likely aware, the Department's prior review of this matter was incomplete
and, by its own admission, not "de novo." See Tab 38, May 15, 2008 Letter from A. Oosterbaan.
Without considering the Non Prosecution Agreement that left this matter to be resolved in the
State or any of the misconduct, CEOS reviewers, tasked with reviewing some of their own
previously expressed opinions, assessed only whether the United States Attorney would "abuse
[his] discretion" if he pursued this case. While we appreciate CEOS 's willingness to examine
these limited issues, its conclusion that a prosecution would not be an "abuse of discretion" rings
particularly hollow in light of CEOS's admirably candid concessions that we have raised
"compelling" objections and that a prosecution on these facts would require "novel" applications
of federal law. Indeed, even a brief review of CEOS's own mission statement reveals how
inapposite a federal prosecution is to the facts in this case.
Importantly, we note that the CEOS review was conducted prior to the Supreme Court's
very recent decisions in Santos and Cuellar, which we believe—illuminating as they do the
Court's interpretive methodology when it comes to federal criminal law—powerfully
demonstrate the substantive vulnerability of the USAO's unprecedented employment of three
federal laws. That Office's interpretation would never pass muster under the Supreme Court's
recent pronouncements and should not be countenanced. That is all the more true under the
circumstances where the duly appointed U.S. Attorney opined that, in effect, the "unitary"
Executive Branch was driving this prosecution. We now know that is not so.
What I respectfully request, and what I hope you will provide, is a truly "de novo"
review—that is, an independent assessment of whether federal prosecution of Mr. Epstein is both
necessary and warranted in view of the legal and evidentiary hurdles that have been identified,
the existence of a State felony plea and sentence that have been advocated by the State Attorney
for Palm Beach County, and the many issues of prosecutorial misconduct and overzealousness
that have permeated the investigation. I also request that you provide us with the opportunity
during your review to meet with you in person to answer any questions you may have and to
elucidate some of the issues in our submission.
We believe that an independent review will confirm our strong belief that federal
prosecutors would be required to stretch the plain meaning of each element of the enumerated
statutes, and then to combine these distorted elements in a tenuous chain, in order to convict Mr.
Epstein. Indeed, just this week (and after two years of federal involvement in this matter),
Assistant United States Attorney Villafana re-initiated the federal grand jury investigation—in
direct contravention of the parties' Non Prosecution Agreement—and issued yet another
subpoena seeking evidence in this case. See Tab 19, Subpoena to In the
subpoena, AUSA Villafana directs to appear on July 1, 2008 to give testimony
and produce documents to FGJ 07-103 West Palm Beach. The attachment to the subpoena seeks
documents such as photographs, emails, telephone billing information, and contact information
that relate to Mr. Epstein as well as specific other people who received protection from federal
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John Roth, Esq.
June 19, 2008
Page 3
prosecution as a result of Mr. Epstein's having entered into the September 24, 2007 Non
Prosecution Agreement with the USAO.
Notably, the Non Prosecution Agreement contains the following agreed condition:
Further, upon execution of this agreement and a plea agreement with the State Attorney's Office,
the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury
subpoenas will be held in abeyance unless and until the defendant violates any term of this
agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to
quash certain grand jury subpoenas.
See Tab 21, September 24, 2007 Non Prosecution Agreement. It also guarantees that persons
identified in the Grand Jury subpoena such as , and Leslie Groff
and others will not be prosecuted. The new Grand Jury subpoena clearly violates the Non-
Prosecution Agreement. Although Mr. Epstein has exercised his rights to appeal to the
Department of Justice with the full consent and knowledge of the USAO, he has not breached the
Agreement. The re-commencing of the Grand Jury is in violation of the Agreement.
But further, the new investigation, which features a wide-ranging, fishing-expedition type
to search in New York does nothing to satisfy the very essential elements of federal statutes that
are lacking despite the intensity of an over two-year investigation in the Palm Beach area.
Absent evidence of Internet luring, inducements while using the phone, travel for the purpose,
fraud or coercion, the subject of the New York investigation is as lacking in the essential basis
for converting a state case into a federal case as is the remainder of the Florida investigation.
The reaching out to New York to fill the void emanating from the failures of the Florida
investigation compellingly demonstrates the misuse of federal resources in an overzealous, over-
personalized, selective and extraordinary attempt to expand federal law to where it is has never
gone. This last-ditch attempt by Ms. Villafana reinforces our belief that the USAO does not have
facts that, without distortion, would justify a prosecution of Mr. Epstein.
In view of the prosecution's often-verbalized desire to punish Mr. Epstein, we believe
that the prosecution summary suffers from critical inaccuracies and aggregates the expected
testimony of witnesses so as to reach a conclusion of guilt. Our contention is reinforced by the
fact that key prosecution witnesses have provided evidence and testimony that directly
undermines the prosecution's misleading and inaccurate summary of its case. Indeed, we now
have received statements from three of the principal accusers- __________________1(through a state
criminal deposition (through a• federal FBI-USAO sworn and transcribed
interview), and (through a defense—generated sworn transcribed interview).
Each of these witnesses categorically denies each essential element that the prosecution will have
to prove in order to convert this quintessential state-law case into a federal matter.
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John Roth, Esq.
June 19, 2008
Page 4
It thus is especially troubling that the USAO has not provided us with the transcript of
Ms. federal interview, nor the substance of the interviews with Ms. or Ms.
nor any information generated by interviews with any of the approximately 40 alleged
witnesses that the prosecution claims it has identified. Because the information provided by
these women goes directly to the question of Mr. Epstein's guilt or innocence, it is classic Brady
information. We understand that the U.S. Attorney might not want to disclose impeachment
information about their witnesses prior to a charge or during plea negotiations. But we firmly
believe that when the Government possesses information that goes directly to a target's factual
guilt or innocence, the target should be informed about such heartland exculpatory evidence.
Most importantly, aside from whether the Department believes Brady obligates
disclosure to a target of a federal investigation prior to the target's formal accusation, no such
limit should apply to a Department review. Accordingly, we request that you go beneath the face
of any summary provided to you by the USAO and instead review the actual witness transcripts
and FBI 302s, which are essential for you to be able to make a truly independent assessment of
the strength and wisdom of any federal prosecution.
After careful consideration of the record, and as much as it pains me to say this, I simply
do not believe federal prosecutors would have been involved at all in this matter if not for Mr.
Epstein's personal wealth and publicly-reported ties to former President Bill Clinton. A simple
Internet search on Mr. Epstein reveals myriad articles and news stories about the former
President's personal relationship with Mr. Epstein, including multi-page stories in New York
Magazine and Vanity Fair. Mr. Epstein, in fact, only came to the public's attention a few years
ago when he and the former President traveled for a week to Africa (using Mr. Epstein's
airplane)—a trip that received a great deal of press coverage. I cannot imagine that the USAO
ever would have contemplated a prosecution in this case if Mr. Epstein lacked this type of
notoriety.
That belief has been reinforced by the significant prosecutorial impropriety and
misconduct throughout the course of this matter. While we describe the majority of these
irregularities in another submission, two instances are particularly troubling. First, the USAO
authorized the public disclosure of specific details of the open investigation to the New York
Times—including descriptions of the prosecution's theory of the case and specific terms of a plea
negotiation between the parties. Second, AUSA Villafana attempted to enrich friends and close
acquaintances by bringing them business in connection with this matter. Specifically, she
attempted to appoint a close personal friend of her live-in boyfriend to serve as an attorney-
representative for the women involved in this case.
It also bears mentioning that actions taken by FAUSA Sloman present an appearance of
impropriety that gives us cause for concern. Mr. Sloman's former law partner is currently
pursuing a handful of $50-million lawsuits against Mr. Epstein by some of the masseuses.
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John Roth, Esq.
June 19, 2008
Page 5
Finally, as you know, Mr. Epstein and the USA° entered into an agreement that deferred
prosecution to the State. In this regard, I simply note that the manner in which this agreement
was negotiated contrasts sharply with Mr. Sloman's current representation that "[T]he SDFL
indicated a willingness to defer to the State the length of incarceration . . . " See Tab 1, May 19,
2008 Letter from J. Sloman, p. 2. This statement is simply not true. Contrary to Mr. Sloman's
assertion, federal prosecutors refused to accept what the State believed to be appropriate as to
Mr. Epstein's sentence and instead, insisted that Mr. Epstein be required serve a two-year term of
imprisonment (which they later decreased to 18 months plus one year of house arrest). Federal
prosecutors have not only involved themselves in what is quintessentially a state matter, but their
actions have caused a critical appearance of impropriety that raises doubt as to their motivation
for investigating and prosecuting Mr. Epstein in the first place.
At bottom, we appreciate your willingness to review this matter with a fresh—and
independent—set of eyes. To facilitate your review, I once again request the opportunity to
make an oral presentation to supplement our written submissions, and we will promptly respond
to any inquiries you may have.
cc: Deputy Attorney General Mark Filip
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MAIN SUBMISSION
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SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL
IN THE MATTER OF JEFFREY E. EPSTEIN
Jeffrey Epstein, a successful businessman and noted philanthropist with no prior criminal
record, has been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b).
Since the limited review conducted by CEOS, two Supreme Court decisions—one authored by
Justice Scalia and the other by Justice Thomas—have revitalized the bedrock principles that
federal criminal statutes must be narrowly construed, that they may not be stretched to federalize
conduct not clearly covered by their prohibitions, and that whenever there are two plausible
constructions of a criminal statute, the narrower construction (hich safeguards liberty) rather than
the broader construction (which expands the federal prosecutor's arsenal) controls under the
venerable rule of lenity.
Mr. Epstein's conduct—including his misconduct—falls within the heartland of historic
state police and prosecutorial powers. Absent a significant federal nexus, matters involving
prostitution have always been treated as state-law crimes even when they involve minors. Mr.
Epstein's conduct lacks any of the hallmarks that would convert this quintessential state crime
into a federal one under any of the statutes prosecutors are considering.
Mr. Epstein lived in Palm Beach, and his interstate travel was merely to go home. Any
sexual conduct that occurred after he arrived was incidental to the purposes for his travel. Even
CEOS admitted that applying § 2423(b) to a citizen traveling home would be "novel." In fact, it
would be both unprecedented and in conflict with Supreme Court cases that have withstood the
test of time for over 60 years.
Moreover, Mr. Epstein did not use the internet (either via email or chatrooms) to
communicate with any of the witnesses in this investigation. Indeed, he did not use any other
facility of interstate commerce, including the phone, to knowingly persuade, entice, or induce
anyone to visit his home—the "local" locus of all the incidents under investigation—much less
to persuade, entice, or induce a known minor to engage in prohibited sex acts, as § 2422(b)
requires. Nor did anyone on his behalf "persuade" or "induce" or "entice" or "coerce" anyone as
these words are ordinarily understood and as the new Supreme Court decisions mandate they be
applied: narrowly, without stretching ordinary usage to conform to a prosecutor's case-specific
need for a broad (and in this case unprecedented) application. In addition, as will be shown
below, § 2422(b) requires that the object of the communication be a state law offense that "can
be charged." Yet because the state of Florida's statute of limitations is one year for the first
prostitution offense and three years for other targeted offenses, and because all or virtually all of
the offense conduct at issue in the federal investigation occurred prior to June 20, 2005, those
acts can not be charged by the State, and thus cannot meet this essential element of federal law.
Finally, Mr. Epstein neither coerced, nor enslaved, nor trafficked, nor derived any profit
from his sexual conduct. He was an ordinary "John," not a pimp. But § 1591 is directed only
against those who engage in force or fraud or coercion or who are in the business of commercial
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sexual trafficking. The statute has never been applied to a "John," and only a highly and
impermissibly selective prosecution could stretch § 1591 to reach conduct like that at issue in
this case.
In short, without "novel" interpretive expansions—a description used by CEOS itself—it
cannot be shown that Mr. Epstein violated any of the three federal statutes identified by
prosecutors. As the Supreme Court's recent decisions in Santos and Cuellar make clear, federal
law may not be stretched in that manner, and the current federal investigation relies, as its
foundation, on impermissibly elastic stretches of each statute beyond any reported precedent;
beyond the essential elements of each statute; well outside the ordinary construction of each
statute's limitations; and on a selective, extraordinary, and unwarranted expansion of federal law
to cover conduct that has always been exclusively within the core of state powers.
At this point in time, the need for Departmental oversight is critical. We appreciate this
opportunity to submit our assessment of the key facts in this case and review of the pertinent
federal statutes, and respectfully request that the Office of the Deputy Attorney General end
federal involvement in this matter so that the State of Florida may resolve this case appropriately.
Summary of the Facts
Mr. Epstein has maintained a home in Palm Beach, Florida for the past 20 years. While
there, he routinely conducted business, received medical attention, socialized with friends, and
helped care for his elderly mother. Mr. Epstein also had various women visit his home to
perform massages. He did not personally schedule the massage appointments or communicate
with the women over the phone or the Internet. Rather, Mr. Epstein's personal assistants
scheduled many types of appointments, personal trainers, chiropractors, business meetings and
massages. The phone message pad taken from his house and in the possession of the
government confirmed that in many cases, the women themselves contacted Mr. Epstein's
assistants to inquire about his availability—rather than vice versa.
The majority of the massages were just that and nothing else. Mr. Epstein often would be
on the telephone conducting business while he received his massage. At times, the masseuses
would be topless, and some sexual activity might occur—primarily self-masturbation on the part
of Mr. Epstein. On other occasions, no sexual activity would occur at all. There was no pattern
or practice regarding which masseuse would be scheduled on a particular day—if one would be
scheduled at all—or whether any sexual activity might occur. Indeed, Mr. Epstein almost never
knew which masseuse his assistants had scheduled until she arrived. See Tab 3, Toll
Records.
Mr. Epstein specifically requested that each masseuse be at least 18 years old. The vast
majority of the masseuses were in fact in their twenties, many accompanied to Mr. Epstein's
home by friends or even other family members. Furthermore, most of the women who have
testified that they were actually under 18 have specifically admitted to systematically lying to
Mr. Epstein about their age. See Tab 4 MIME Tr. at 38-39; Tab 5, =Err. at 16; Tab 6,
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at 6, 8, 22, 45; Tab 7, Jr.M 13; Tab 8 Tr. at 8; Tab 9, Tr. at 5; and
Tab 10, Tr. at 14-15 (excerpts from these transcripts are included below). Furthermore,
the women who visited Mr. Epstein's home all visited voluntarily and many willingly returned
several times.
The State Attorney's Office (the "SAO") has vast experience prosecuting sex crimes and
conducted an exhaustive, 15-month investigation of Mr. Epstein. A Grand Jury has concluded
that Mr. Epstein was merely a local "John," guilty of soliciting prostitution in violation of state
law. Notably, Florida law distinguishes soliciting from procuring and compelling prostitution if
minors are involved. Indeed, soliciting is a misdemeanor except for the commission of a third
subsequent offense, turning it into a felony. The SAO, therefore, sought and obtained an
indictment charging Mr. Epstein with felony solicitation of prostitution. Mr. Epstein is prepared
to plead guilty and accept a sentence for that offense—a sentence that, notably, is far more
severe than that meted out to other "Johns" convicted of violating Florida's solicitation laws for
cases in which sexual activity was alleged.
Though CEOS points out its admirable goal of "protecting children," a moniker that
engenders high emotions, the conduct alleged here involves women over 16, which is the age of
consent in 38 states and supplies the effective federal age of consent. The young women were by
no means the target of high-school trolling; they were individuals who, with friends, visited Mr.
Epstein's house—a home full of friends and staff. The civil complaints filed against Mr. Epstein
reiterate the fact that the individuals who visited Mr. Epstein would visit with their friends. And
Mr. Epstein never spoke to or had any contact with these women before they arrived at his
house. And again, the State is handling this matter appropriately.
We respectfully submit that that should be the beginning and the end of this matter. As
you know, the Department's Petite Policy precludes successive federal prosecutions after a State
has acted: "[A] state judgment of conviction, plea agreement [here held in abeyance solely as a
result of the federal investigation], or acquittal on the merits shall be a bar to any subsequent
federal prosecution for the same act or acts." U.S.A.M. § 9-2.031A (emphasis added).
Consistent with that principle, and of particular relevance to this case, the Department itself just
recently observed the following:
[P]rostitution-related offenses have historically been prosecuted at the state or
local level. This allocation between state and Federal enforcement authority does
not imply that these crimes are less serious, but rather reflects important structural
allocations of responsibility between state and Federal governments.... [T]he
Department is not aware of any reasons why state and local authorities are not
currently able to pursue prostitution-related crimes such that Federal jurisdiction
is necessary.
See Tab 11, November 9, 2007 Letter from Justice Department Principal Deputy Assistant
Attorney General Brian Benczkowski to the House Committee on the Judiciary, p. 8-9.
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Summary of the Law
We have reviewed every reported case under 18 U.S.C. §§ 1591, 2422(b), and 2423(b),
and cannot find a single one that resulted in a conviction on facts akin to the ones here. In some
respects, it is not surprising that no precedent supports federal prosecution of a man who engaged
in consensual conduct, in his home, that amounts to solicitation under State law. After all,
prostitution, even when the allegations involve minors, is fundamentally a State concern, United
States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (noting that federal law "does not
criminalize all acts of prostitution (a vice traditionally governed by state regulation)"), and there
is no evidence that Palm Beach County authorities and Florida prosecutors cannot effectively
prosecute and punish the conduct. See also Batchelder v. Gonzalez, No. 4:07-cv-00330-SPM-
AK, 2007 WL 5022105 (N.D. Fla. Oct. 19, 2007). In fact, the opposite is true—the state-elected
officials, cognizant of the local mores of the community, have a lauded history of just such
prosecutions.
In any event, and as set forth below, none of the federal statutes in this case remotely
supports a prosecution on the facts of this case without each and every element being stretched in
a novel way to encompass the behavior at issue. We begin with first principles. Courts in this
country have "traditionally exercised restraint in assessing the reach of federal criminal statutes,
both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207
(1985), and out of concern that 'a fair warning should be given to the world in language that the
common world will understand, of what the law intends to do if a certain line is passed.' Arthur
Andersen LLP v. United States, 544 U.S. 696, 703 (2005) (quoting McBoyle v. United States, 283
U.S. 25, 27 (1931)) (citation omitted).
Two recent Supreme Court decisions dramatically underscore these principles and help to
highlight why federal prosecution in this case would be improper as a matter of both law and
policy. See United States v. Santos, No. 06-1005 (June 2, 2008); Cuellar v. United States, No.
06-1456 (June 2, 2008). Though they both address the interpretation and application of the
federal money laundering statute, 18 U.S.C. § 1956, the principles they set forth are equally
applicable here. In Santos, the Court held that the statutory term "proceeds" means "profits"
rather than "receipts," and thus gave the statute a significantly narrower interpretation than what
the government had urged. In his plurality opinion, Justice Scalia emphasized that where a
statutory term in a criminal statute could support either a narrow or broad application, the narrow
interpretation must be adopted because "[w]e interpret ambiguous criminal statutes in favor of
defendants, not prosecutors." Slip op. at 12. As his opinion explained, the rule of lenity "not
only vindicates the fundamental principle that no citizen should be held accountable for a
violation of a statute whose commands are uncertain, or subjected to punishment that is not
clearly proscribed. It also places the weight of inertia upon the party that can best induce
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Congress to speak more clearly and keeps courts from making criminal law in Congress's stead."
Slip op. at 6.1
In Cuellar, the Court examined the link between the money-laundering statute's mens rea
requirement and the underlying elements of the offense. After a careful textual analysis of the
statute and its structure, the Court ruled that the defendant's conviction could be sustained only if
he knew that the transportation of funds to Mexico was designed to conceal their nature,
location, source, ownership or control—not merely that the defendant knew that the funds had
been hidden during their transportation to Mexico. Slip op. at 10-17.
Both decisions relied on the ordinary meaning of the statutory terms Congress chose.
And both rejected attempts to broaden those words to cover conduct not clearly targeted by
Congress. Taken together, these decisions reject the notion that prosecutors can take language
from a narrowly drawn federal statute—especially one that itself federalizes the prosecution of
conduct traditionally within the heartland of State police powers—and convert it into a license to
reach additional conduct by ignoring, rewriting or expansively interpreting the law. Both cases
additionally rejected the notion that statutes should be broadly construed in order to facilitate
prosecutions or to in anyway diminish the burden on prosecutors to prove each essential element
of a federal charge in conformity with Congress's determinations as to what is within the federal
criminal law and what is not. The conflict between the Santos and Cuellar decisions and
CEOS 's grant of effectively unlimited discretionary authority to the USA0 to take federal law to
"novel" places where they have never reached before could not be starker.
These lessons have no less force in the context of Executive Branch decision-making
than they do in the context of Judicial interpretation. As you are aware, when federal prosecutors
exercise their discretion, they bear an independent constitutional obligation to faithfully interpret
the law as written—not to broaden its scope beyond the limits endorsed by both Congress and
the President. There is no support for CEOS's view that the courts or a jury should ultimately
decide whether a "novel" construction of the law is correct. Instead, the Executive Branch itself
has a non-delegable obligation not to exceed its authority; the power of other branches to check
or remedy such usurpation does not legitimize executive action that exceeds its bounds. See Tab
12, November 2, 1994 Memorandum from Assistant Attorney General Walter Dellinger to the
Hon. Abner J. Mikva, Counsel To The President, on Presidential Authority To Decline To
Execute Unconstitutional Statutes, available at http://www.usdoj.gov/olc/nonexcut.htm.
In this case, the text, structure, and history of the relevant federal statutes unambiguously
indicate that these statutes were designed to address problems of a national and international
Justice Stevens, in his concurring opinion, also acknowledged the rule of lenity, calling the plurality opinion's
discussion of that rule "surely persuasive." United States v. Santos, No. 06-1005, slip op. at 5 (June 2, 2008)
(Stevens, J., concurring).
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scope—not the local conduct that is alleged here—and each of these statutes requires proof of
the defendant's actual knowledge that simply is not present in this case. Any attempt to stretch
the language of these statutes to cover this case would be a misuse of the law and contrary to
express legislative intent. In short, the elements under each federal statute-18 U.S.C. §§ 1591,
2422(b) and 2423(b)—are not satisfied here.
1. 18 U.S.C. § 2422(b)
18 U.S.C. § 2422(b) requires the government to prove beyond a reasonable doubt that the
defendant engaged in communications over an interstate facility (e.g., the Internet or phone) with
four concurrent intentions: (1) to knowingly (2) persuade, induce, entice or coerce, or attempt to
persuade, induce, entice, or coerce (3) a minor (4) to engage in prostitution or criminal sexual
activity for which the person can be charged. Mr. Epstein's conduct does not satisfy the
elements of § 2422(b). Each element must be individually stretched, and then conflated in a
tenuous chain to encompass the alleged conduct with any individual woman.
As the statute makes clear, the essence of this crime is the communication itself—not the
resulting act. The Court of Appeals for the Eleventh Circuit, in Murrell, underscores the point:
The defendant in Bailey contended that attempt under § 2422(b) 'requires the
specific intent to commit illegal sexual acts rather than just the intent to persuade
or solicit the minor victim to commit sexual acts.' Id. at 638. In response, the
court held `[w]hile it may be rare for there to be a separation between the intent to
persuade and the follow-up intent to perform the act after persuasion, they are two
clearly separate and different intents and the Congress has made a clear choice to
criminalize persuasion and the attempt to persuade, not the performance of the
sexual acts themselves. Hence, a conviction under the statute only requires a
finding that the defendant had an intent to persuade or to attempt to persuade.'
United States v. Murrell 368 F.3d 1283, 1287 (11th Cir. 2004) (citing United States v. Bailey,
228 F.3d 637, 638-39 (6th Cir.2000)). Thus, the targeted criminal conduct must occur through
the interstate facility, not thereafter, and the scienter element must be present at the time of the
call or Internet contact.
In this case, however, Mr. Epstein did not use an interstate facility to communicate any
illegal intention in this case; the phone calls were made by his assistants in the course of setting
up many other appointments. Neither a conspiracy charge nor a charge of aiding and abetting
can fulfill the mens rea requirement here. Indeed, neither Mr. Epstein nor his assistants knew
whether sexual activity would necessarily result from a scheduled massage. And certainly, no
such activity was ever discussed on the phone by either Mr. Epstein or his assistants. Instead, as
the record in this case makes clear, many appointments resulted in no illegal sexual activity, and
often, as confirmed by the masseuses' own testimony, several individuals who were contacted by
phone visited Mr. Epstein's house and did not perform a massage at all. Where sexual activity
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did result, it was mainly self-pleasuring masturbation and not necessarily illegal, but spontaneous
and resulted from face-to-face conversations during the massage. Thus, the fact that Mr. Epstein
later may have persuaded any particular masseuse to engage in unlawful activity during the
massage does not work retroactively to render the earlier scheduling phone call an offense under
§ 2422(b). Nor is there any evidence that women who returned to Mr. Epstein's home time and
again were somehow coerced or induced over a facility of interstate commerce to do so.
The first essential element of § 2422(b) that "[w]hoever, using the mail or any facility or
means of interstate or foreign commerce," by its plain language, requires that the
communication, which is the essence of the crime and its actus reus, take place during the use of
the facility of interstate commerce (in this case, unlike the vast majority of Internet chat room
sting operations, a telephone). The statute is not ambiguous. It requires that the criminal
conduct occur while the defendant is "using" (i.e. engaged in the communication), not thereafter.
Given the utter lack of direct evidence against Mr. Epstein, prosecutors have signaled that
they intend to offer a purely circumstantial case if this matter proceeds to trial—essentially
arguing that "routine and habit" evidence could substitute for actual proof that an interstate
facility was used to solicit sex from minors. Thus, despite the fact that the calls themselves were
not made by Mr. Epstein and did not contain the necessary explicit communication to knowingly
induce minors to provide sexual favors for money, prosecutors are seeking to turn the phrase "are
you available"—the same phrase used with friends, chiropractors, and trainers—into a ten-year
mandatory prison sentence. In any case, the prosecution's attenuated argument regarding
"routine and habit" will also not fit the facts of this case. The witness testimony at issue makes
clear that there was no clear "routine or habit" with respect to the interactions at issue. And in
those unpredictable instances where sexual contact resulted, it was a product of what occurred
after the benign phone communication, not during the call itself.
The prosecution's theory of liability—that a call to a person merely to schedule a visit to
the defendant's residence followed by a decision made at the residence to engage in prohibited
sexual activity is sufficient—cannot survive either a "plain language" test or the rule of lenity as
they have been authoritatively construed in the recent Santos and Cuellar cases. The statute
cannot be read otherwise. As the Cuellar decision makes clear, a proper interpretation of a
federal criminal statute is guided "by the words of the operative statutory provision," not by
outside objectives, such as those facilitating successful prosecution. See Cuellar, supra, Slip op.
at 7. As Justice Alito stated in his concurring opinion, the government must prove not just the
"effect" of the secretive transportation, but also that "petitioner knew that achieving one of these
effects was a design (i.e. purpose) of the transportation" of currency. Cuellar v. United States,
supra, 553 US., Slip op. At 1 (Auto, J. concurring). Similarly, it is not enough that one effect of
a communication scheduling a visit between Mr. Epstein and a minor was that there might be
subsequent face-to-face inducement. Instead, the statute, as drafted, defines the crime as the
communication and demands that far more be proven than that the use of an interstate facility
resulted in a later meeting where even an inducement (as opposed to a solicitation) was made.
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The prosecution has never represented to counsel that they have evidence that would
prove that the inducement or enticement to engage in illegal sexual acts occurred over the phone
(or Internet). The prosecution's references to "routine and habit" evidence that would substitute
for the explicit communications usually found in the transcripts from chat rooms or sting
operations is tenuous at best. In essence, the prosecution would be alleging communications
understood, but not spoken, by two people, one of whom was usually a secretary or assistant.
Separating the actus reus and the mens rea, however, and premising criminal liability on
persuasion that might occur after the communication, or on the existence of a specific intent to
engage in illegal sex with a minor that arises after the communication would violate the bedrock
principle of criminal law that predicates liability on the concurrence of the act and the criminal
state of mind. Even if, arguendo, the communication and mens rea could be separated (a
premise which is at odds with the requirement of concurrence), Mr. Epstein denies that the
factual proof demonstrates such a pattern or practice. Instead, the evidence compellingly proves
that there was no regularity or predictability to the content of the communication or in what
occurred at meetings that were telephonically scheduled (including those that are the subject of
this investigation).
A second essential element of 2422(b) requires that the defendant "knowingly" induce,
persuade, entice or coerce a person believed to be a minor. " . . . [K]knowingly. . . induces. ."
requires the Court to define inducement so it is consistent with its ordinary usage and so the term
is not so broad that it subsumes the separate statutory terms of "entices" and "persuades."
Inducement has a common legal meaning that has been endorsed by the government when it
operates to narrow the affirmative defense of entrapment. Inducement must be more than "mere