Esptei Itr 5 19

(USAFLS) From: 'ent: fo: Subject: Esptei Itr 5 19 08. pdf r..on a a 2U00613A5FADS4)PM Epstein EFTA00225672 sure I do everything within my power to obviate a need for trial through a reasonable alternative resolution. Although it is clear that CEOS is not directing a prosecution here, and has stated only that you have the authority to commence such a prosecution, I am well aware that the decision whether to proceed, subject to any further process in Washington, is now within your discretion. I think the new facts should greatly influence your decision and accordingly, I hope you will agree to meet with me, both to discuss the new evidence and to discuss a resolution to this matter once and for all. I am available to meet with you at your earliest convenience subject to our mutual availability. Respectfully, Jay 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. It is the property of Kirkland 6 Ellis LLP or Kirkland 6 Ellis International LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail or by e-mail to [email protected], and destroy this communication and all copies thereof, including all attachments. 3 EFTA00225673 following the initiation of multiple civil lawsuits, Mr. Epstein's counsel was able to take limited discovery of certain women in this matter. The sworn statements provided by these women all confirm that federal prosecution is not appropriate in this case. isten of witnesses such as , and , and the civil complainan an eir a rneys, confirm the following key points: First, there was no telephonic communication that met the requirements of § 2422(b). For example, as many other witnesses have stated, Ms. unclear terms that there was never any discussion over the phone abou Mr. Epstein's home to e ual activity: "The only thing that ever occurred on any of these phone calls [with or another assistan , 'Are you willing to come over,' or, 'Would you like to come over an give a massage.'" Tr. A at 15. Second, the underage women who visited Mr. Epstein have testified t a ey lied about their age in order to gain admittance into his home and women who brought t nderage friends to Mr. Epstein counseled them to lie ab ages as well. Ms. stated the following: "I would tell my girlfriends just like approached me. a e sure you tell him you're 18. Well, these girls that I brought, I nowt at they were 18 or 19 or 20. And the girls that I didn't know don't know if they were lying or not, I would say make sure that you tell him you're 18." Tr. at 22. Third, there was no routine or h gesting an intent to transform a massage into an illegal sexual act. For instance, Ms. stated that Mr. Epstein "never touched [her] physically" at all she did was "massage ] his back, his chest and his thighs and that was it." Tr. at 12-13. Finally, as you are well aware, there was no force, coercion, fraud, vio ence, drugs, or even alcohol present in connection with Mr. Epstein's encounters with these women. testified in no er coming over to The civil suits confirm that the plaintiffs did not discuss engaging in sexually -related activities with anyone prior to arriving at Mr. Epstein's residence. This reinforces the fact that no telephonic or Internet persuasion, inducement, enticement or coercion of any kind occurred. Furthermore, Mr. Herman, the attorney for most of the civil complainants, was quoted in the Palm Beach Post as saying that "it doesn't matter" that his clients lied about their ages and told Mr. Epstein that they were 18 or 19. In short, the new evidence establishing that the women deliberately lied about their age because they knew Mr. Epstein did not want anyone under 18 in his house directly undercuts the claim that Mr. Epstein willfully blinded himself as to their ages. Willful blindness is not a substitute for evidence of knowledge nor is it a negligence standard. It requires proof beyond reasonable doubt of deliberate intent and specific action to hide one's knowledge. There is absolutely no such evidence of that here, so it is not even a jury issue. Furthermore, willful ignorance cannot constitute the required mens rea for a crime of conspiracy or aiding and abetting. Through the recent witness statements, we have also discovered another serious issue that implicates the integrity of the federal investigation. We have learned that FBI Special Agent Kurkendayl attempted to convince these adult women, now in their twenties, that they were in fact "victims" even though the women themselves strongly disagreed with this characterization. This conduct, once agailles to the heart of the integrity of the investigation. In a sworn statement, Ms. was highly critical of the overreaching by federal law enforcement officers in this case. She testified—in no uncertain terms—that she does not, and never did, feel like a "victim," despite the fact that the FBI repeatedly tried to convince her otherwise. I am mindful of the fact that we have a state court date of July 8 on which either to enter a plea or to commence trial. As I review the trial options with Mr. Epstein, I certainly want to make 2 EFTA00225674 Acosta, Alex (USAFLS) From: Jay Lefkowitz Sent: Monday, May 1 , To: Acosta, Alex (USAFLS) Subject: confidential communication Attachments: Letter from CEOS.TIF Dear Alex: I am writing to you because I have just received the attached letter from Drew Oosterbaan. In light of that letter, and given the critical new evidence discussed below, I would like to request a meeting with you, mindful of our July 8 deadline, at your earliest opportunity. Given your personal involvement in this matter to date, and the fact that at this juncture it is clear that CEOS has referred the matter back to you, I respectfully request that you not shunt me off to one of your staff. You and I have both spent a great deal of time on this matter, and I know that we both would like to resolve this matter in a way that bestows integrity both on the Department and the process. In our prior discussions. you expressed that you werebot unsympathetic" to our various federalism concerns, but stated that because you serve within the "unitary Executive," you believed your hands were tied by Main Justit,c You were also extremely gracious in stating that you did not want the United States to b unfair". Although CEOS limited its assessment to the federal statutes your Office had brought forth and to the application of those laws to the facts as presented, it is abundantly clear from Drew's letter that Main Justice is not directing this prosecution. In fact, CEOS plainly acknowledged that a federal prosecution of Mr. Epstein would involve a "novel application" of federal statutes and that our arguments against federal involvement are "compelling." Moreover, the language used by Drew in his concluding paragraph, that he cannot conclude that a prosecution by you in this case "would be an abuse of discretion" is hardly an endorsement that you move forward. Moreover, as you know, Drew made clear that the scope of his review did not extend to the other significant issues we have raised with you, such as the undo interest by some members of your staff with the financial and civil aspects of this matter, or with the inappropriate discussion one member of your Office had with a senior reporter at the New York Times. (In fact, I have met with that reporter and have reviewed copious notes of his conversation with Mr. Weinstein). At stage, we have no alternative but to raise our serious concerns regarding the issues Drew refused to address with the Deputy or, if necessary, the Attorney General, because we believe those issues have significantly impacted the investigation and any recommendation by your staff to proceed with an indictmenDThat being said, it would obviously be much more constructive and efficient if we could resolve this matter directly with you in the advance of further proceedings in Washington. Because it is clear that national policy, as determined by Main Justice, is not driving this case, the resolution of this matter is squarely, and solely, your responsibility. I know you want to do the right thing. and it is because you have made clear to me on several occasions that you will always look at all of the relevant and material facts that I call the following to your attention. ew information that has come to light strongly suggests that the facts of this case cannot possiblyp implicate a federal prosecutorial priority. Due to established state procedures and EXHIBIT B-35 EFTA00225675 (USAFLS) From: Vil!Mena, Ann Marie C. (USAFLS) Sent: Friday, June 13, 2008 2:45 PM To: Atkinson, Karen (USAFLS) Subject: RE: Call Hi Karen -- Not today. I am going to meet with Bob about the indictment. Original Message From: Atkinson, Karen (USAFLS) Sent* ' 2:23 PM To: (USAFLS) Subject: RE: Ca Are you coming back home? Original Message From: Villafana, Ann Marie C. (USAFLS) Sent: Friday, June 13, 2008 11:56 AM To: Atkinson, Karen (USAFLS) Subject: Call Hi karen. We had a good call with the dag's chief of staff. They seem ready to greenlight us. Strangely, just an hour later roy black called jeff to propose a "final solution" (his words not mine). Jeff told him to call me. (Imagine that). So are you free later for a conf call if he actually calls? 956 EFTA00225676 Villafana, Ann C. (USAFLS) From: (USAFLS) Sent: 1,9111 1,112:52PM To: AffiMson,Kamn(USAFLS) Subject: RE: Call One week. We told the DAG that we need his decision by end of next week so we can indict on July 1st before the July 7th state trial. Original Message From: Atkinson, Karen (USAFLS) Sent* 2:51 PM To: (USAFLS) Subject: RE: How long after the final decision --if there is such a thing--does he have before we indict? From: (USAFLS) Sent: Fr ay, June 1 , :45 PM To: Atkinson, Karen (USAFLS) Subject: RE: Call Hi Karen -- Not today. I am going to meet with Bob about the indictment. Original Message From: Atkinson, Karen (USAFLS) Sent: Friday, June 13, 2008 2:23 PM To: Villafana, Ann Marie C. (USAFLS) Subject: RE: Call Are you coming back home? From: (USAFLS) Sent: Fr a ly, June 13, 1:56 AM To: Atkinson, Karen (USAFLS) Subject: Call Hi karen. We had a good call with the dag's chief of staff. They seem ready to greenlight us. Strangely, just an hour later roy black called jeff to propose a "final solution" (his words not mine). Jeff told him to call me. (Imagine that). So are you free later for a conf call if he actually calls? 955 EFTA00225677 (USAFLS) From: (USAFLS) Sent: Fn 4, une PM To: Atkinson, Karen (USAFLS) Subject: RE: Call Hi Karen -- Not today. I am going to meet with Bob about the indictment. Original Message From: Atkinson, Karen (USAFLS) Sent: Friday, June 13, 2008 2:23 PM To: Villafana, Ann Marie C. (USAFLS) Subject: RE: Call Are you coming back home? Original Message From: Villafana, Ann Marie C. (USAFLS) Sent: Friday, June 13, 2008 11:56 AM To: Atkinson, Karen (USAFLS) Subject: Call Hi karen. We had a good call with the dag's chief of staff. They seem ready to greenlight us. Strangely, just an hour later roy black called jeff to propose a "final solution" (his words not mine). Jeff told him to call me. (Imagine that). So are you free later for a conf call if he actually calls? 956 EFTA00225678 (USA FLS) From: Sloman, Jeff (USAFLS) Sent: — 6:15 PM To: (USAFLS) Subject: : peen) Sorry, forgot to cc you. From: Sloman, Jeff (USAFLS) Sent: Friday, June 13, 2008 6:09 PM To: Roth, John (ODAG) (SMO) Cc: Senior, Robert (USAFLS) Subject Epstein John, Epstein is facing trial on a felony charge of solicitation of prostitution. This does not resemble the charges that Epstein agreed to plead guilty to in the September 24th Agreement nor what he would face federally. That case is set for trial on Monday July 7. If we are given the go ahead from the DAG's office, we would give Epstein one final chance to comply with the September 24th Agreement. In that regard, it would be most preferable to have a decision by next week. That would give us the opportunity to seek an indictment on Tuesday July if Epstein fails to comply with the September 24th Agreement by Monday June 30th. The reason this timetable is important is to address our concern that Epstein may continue to keep us in a holding pattern if he pleads to the pending state solicitation of prostitution charge before a federal indictment is returned. In that scenario, I anticipate Epstein's counsel raising petit policy issues, thus throwing another possible monkey wrench in the process. Although I don't believe that the petit policy would be affected, I can imagine someone calling a timeout until the issue is vetted. That's why I would prefer being able to seek an indictment before Epstein pleads to the pending charge and after he has repudiated the September 24th Agreement. Thanks, Jeff 951 EFTA00225679 (USAFLS) From: (USAFLS) Sent: 8 10:43 AM To: (USAFLS) Cc: Senior, Ro erl SAFLS) Subject: Draft Indictment Hi Cyndec — Bob called and said that Jeff needed a copy of this. The first copy has a "draft" watermark on it, and the second is exactly the same except that the watermark is removed. 080429 revised ndictment with... Thanks! 080429 revised ndictment with... A. VillafaHa Assistant U.S. Attorney 500 S. Australian Ave, Suite 400 West Palm Beach, FL 33401 Phone 561 209-1047 Fax 561 820-8777 Tracking: 982 EFTA00225680 (USAFLS) From: Senior, Robert (USAFLS) Sent: 8 3:25 PM To: (USAFLS); Sloman, Jeff (USAFLS) Cc: t inson, aren LS) Subject: RE: Epstein Marie, are you back ? We need to spend some time together on the indictment. I was planning on Monday because I thought you were back that day but if you're already back let me know. By the way, Jeff and Alex have been very clear that we are not negotiating with this guy any more in any way. Thx. Bob Original Message From: Villafana, Ann Marie C. (USAFLS) Sent: Tuesday, May 27, 2008 2:54 PM To: Sloman, Jeff (USAFLS); Senior, Robert (USAFLS) Cc: Atkinson, Karen (USAFLS) Subject: Epstein Hi jeff. Karen sent me an email about epstein wanting to do less time. I hope that his request will be denied. The original deal was supposed to be 2 years so he has already gotten a big break. Plus we have identified more victims since we agreed to the 18 months. Please keep me posted. Thanks. 1014 EXHIBIT B-34 EFTA00225681 g9N-1 5in -Lri.ID 'OS WIN 13:20 FAX I 21a 0a0 $500 EMAGIVE OFFICE IIVJIUD OT KIRK, AND&10 L I S Quiz 013/013 et 00U Honorable Mark Filip May 19. 2008 Page 8 prosecution is fair and appropriate has been placed, once again, in U.S. Attorney Acosta's hands. in light of the foregoing, we respectfully ask that you review this matter and discontinue all federal involvement so that the State cam appropriately bring this matter to closure. We would greatly appreciate the opportunity to meet With you to discuss these important issues. Such it meeting would provide the Department with an opportunity to review the paramotun issues of federalism and the appearance of selectivity that are generated by the unprecedented attempts to broaden the ambit of federal statutes to places that they have never before reached. We sincerely appreciate your attention to this matter. ttespeetililly submitted, Kenneth W. Starr Kirkland & Ellis LLP Joc D. Whitley Alston & Bird LIP EFTA00225682 tAVULfUO WAN £O:VL CAA OU0 0001 OGSV otp. in • n8 WIN 13:211 PAX 1 213 080 8500 well namvullro urrimx, 1®012/01a ........ I KLANUSLE1.1.1 S I.LJ WOOS Honorable Mark Filip May 19, 2008 Page 7 Government's confidential "list of victims." Most of these lawsuits seek S50 million in money damages" • Assistant U.S. Attorney David Weinstein spoke about the case in great detail to Landon Thomas, a reporter with the New York nines, and revealed confidential information about she Government's allegations against Mr. Epstein. The Assistant U.S. Attorney also revealed the substance of confidential plea negotiations. • When counsel for Mr. Epstein complained about the media leaks, First Assistant Stomata responded by assening that "Mr. l'homas was given, pursuant to his request, non-case specific information concerning specific federal statutes." Based on Mr. Thomas' contemporaneous notes. that assertion appears to be false. For example, Mr. Weinstein told Mr. Thomas that federal authorities believed that Mr. Epstein had hired girls over the telephone and traveled in interstate corn incite for the purpose of engaging in underage sex. lie recounted to Mr. Themes the USAO's theory of prosecution against Mr. F Lein, replete with an analysis of the key statutes being considered. Furtherm after Mr. Epstein's defrost team complained about the leak to the USAO, . Weinstein, in Mr. Thomas' own description, then admonished him for talking to the defense, and getting him in trouble, Mr. Weinstein further told him not to believe the "spin" of Mr, Epsteites "high-priced attorneys,' and then, according to Mr. Thomas. Mr. Weinstein forcefully "reminded" Mr. Thomas - that all prior conversations were merely hypothetical. We are constrained to conclude that the actions of federal officials in this case strike at the heart of one of the vitally important, enduring values in this country: the honest enforcement of federal law, free of political considerations and free of the taint of personal financial motivations on the part of federal prosecutors that, at a minimum, raise the appearance of serious impropriety. We were told by U.S. Attorney Acosta that as part of the retie he requested, the Department had the authority, and his consent, to make any determination it tried appropriate te regarding this matter, including a decision to decline federal prosecution. Yet, CEOS's only conclusion, based on its limited review of the investigation, is that U.S. Attorney Acosta would not abuse his discretion by proceeding against Mr. Epstein. Thus, the decision of Ithother As recently as two months ago. Mr. Women Was still lined publicly os t pan of his former law firm. While wv assume this was an oversight, Mr. Stoma identification as pan or the firm raises the appearance of impropriety. EFTA00225683 06/02/08 MON 15:02 FAX ol3/28/201:18 00:10 FAX 202 • ps, LION IA:Z5 FAA 1 =13 ONO 8500 EXECUTIVE OFFICE b0.1/00AC KIRKIANDMILLTS 1d1010 gtolvols 4g u87 Honorable Mark Hip May 19, 2008 Page 6 • Federal prosecutors made the unprecedented demand that Mr. Epstein pay u minimum of 5150,000 per person to an unnamed list of women they referred to as minors and whom they insisted required representation by a guardian ad them. Mr. Epstein's counsel later established that all but one of these individuals were actuully adults, not minors. Even then, though demanding payment to the women, the USAO eventually asserted that it could not vouch for the veracity of any of the . claims that these women might make. • Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fees of a civil gamey chosen by the prosecutors to represent these alleged "victims" should the choose to bring any civil litigation against him. They also proposed t sending a ties to the alleged "victims," stating, in an underlined sentence, that should they choose their own attorney, Mr. Epstein would not be required to pay their tees. The prosecutors fitrther demanded that Mr. Epstein Waive his right to challenge any of the allegations made by these "victhns." • The Assistant U.S. Attorney involved in this matter recommended for the civil attorney, a highly lucrative position, an individual that we later discovered was closely and personally connected to the Assistant U.S. Attorney's Own boyfriend. • Federal prosecutors represented to Mr. Epstein's counsel that they had identified (and later rechecked and re-identitied) several alleged -victims" of federal crimes that qualified for payment under 18 U.S.C. § 2255, a civil remedy designed to provide financial benefits to victims. Daly through state discovery previsions did we later learn that many of the women on the rechecked "victim list" could not possibly qualify under § 2255. The reason is that they, themselves, testified that they did not suffer any type of harm whatsoever, a prerequisite for civil recovery under § 2255. Moreover, these women stated that they did not, no or in the past, ti consider themselves to-be victims. • During the last few months, Mr. Mennen, First Assistant Sloroan's former law partner, has tiled several civil lawsuits against Mr. Epstein on behalf of the alleged "victims." ft is our understanding that each of Mr. Herman's clients arc on the EFTA00225684 UO/V4IV9 sun CAA OVO 00V O1%V 05/28/20 08 00:09 FAX 2026161230 DA VON 13:24 KAX 1 :13 660 6500 LSGVUAAVD UrrAteta DOJ/ODAC K I RKI.AND&ELI- 1 S 1.1-P Wt",O 490Oi/013 Ciijurni • Honorable Mark Filip May 19. 2008 Page 5. In fact, recent testimony of several alleged "victims" contradicts claims made by federal prosecutors during the negotiations of a deterred prosecution agreement. The consistent representations of key Government wimesses (such as Tatum Miller. Brittany Beak, Saige Gonzalez. and Jennifer Laduke) confirm the following critical points: First, there was no communication, telephonic or otherwise, that meets the requirements of § 2422(b). Par instance. Ms. Gonzalez confirmed that Mr. Epstein never entailed, text-messaged, or used any facility of interstate commerce whatsoever. before or after her one (and. only) visit to his home. Gonzalez Tr. (deposition) at 30. Second, the women who testified admitted that they lied to Mr. Epstein about their age in order to gain admittance into his home. Indeed. the women who brought their underage friends to Mr. Epstein testified that they would counsel their friends to lie about their ages as well. Ms. Miller stated the following: "I would tell my girlfriends just like Carolyn approached me. Make sure you tell hint you're. 18. Well, these girls that I brought, i know that they were 18 or 19 or 20. And the girls that !didn't !mow and I don't know if they were lying or not, 1 would say make sure that you tell him you're 18." Miller Tr. at 22. Third, there was no routine or habit of improper cotrununication expressing an intent to transfomi a massage into an illegal sexual act. In bet, there was often no sexual activity at all daring the massage. Ms. Miller testified that "(s)ometimes [Mr. Epstein) just wanted his feet massaged. Sometimes he just wanted a back massage." Miller Tr. at 19. Jennifer Laduke also stated that Mr. Epstein "never touched (her) physically" and that all she did was -massage( ) his back. his chest and his thighs and that was it." Laduke Tr. at 12-13. Finally, there was no force, coercion, fraud:violence, drugs, or even alcohol present in connection with Mr. Epstei 'S encounters with these women. Ms. Beak stated that "[Mr. Epstein) never tried to force me to u anything." Bale Tr. A at 12. These accounts are far from the usual testimony in sex slaver Internet stings and sex tourism cases previously brought. The women in actuality were not younger than 16, which is the age of consent hi most of the 50 states, and the sex activity was in'egular and in large parr. consisted of solo self-pleasuring. The recent crop of civil suits brought against Mr. Epstein confirm that the plaintiffs did not discuss any sexually-related activities with anyone prior to arriving at Mr. Epstein's residence. This reinforces our contention that no telephonic or Internet persuasion, inducement, enticement or coercion of a minor, or of any other individual, occun'ed. In addition, Mr. Jeffrey Merman, the former law partner of one of the federal prosecutors involved in this matter and the attorney fyq most of the civil complainants (as described in derail below), was quoted in the Palm Beach Pe). as saying that "k doesn't matter" that his clients lied about their ages and told Mr. 1 Epstein the''{{ they were 18 or 19. Not only is a federal prosecution or this matter unwarranted, but the irregularity of conduct by prosecutors and the unorthodox terms of the deferred prosecution agreement. arc beyond any reasonable interpretation of the scope of a.prosecutor's responsibilities. The list of improprieties includes, but.is not limited to, the following facts: EFTA00225685 06/02/08 MON 15:01 FAX EXECUTIVE OFFICE 05/28/2008 00:09 FAX 202 1 39 DOVODAC in.na. NOS 1312A VAN : 213 680 A500 KIRKLANDWILIS 1.11' 10 008 ei 009/013 CO 005 Honorable Mark Fi I ip May 19, 2003 l'age 4 These statutes are intended to tuna 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 § 2473 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 I3 U.S.C. §§ 1591, 2422(b), and 2423(b), we found that not a single cast involves facts or a scenario similar to the situation at hand. Our review of each precedent reflects that there have been no reported prosecutions un r § 1591 of a 'john' whose conduct with u minor lacked force. coercion_ or fraud and who as not profiling from commercial sexual trafficking. There have likewise been no eases undo • 2422(b)—a crime of communication —where th c was no sus inducing use: of the Internet. and where the content of phone communications did not contain ri or enticing of a minor to have illegal sexual activity as expressly required by the language of the statute. l'urtherniore, the Government's contention that "routine and habit" can fill the factual and legal void created by the lack of evidence that such a communication ever occurred sets this case apart from every reported case brought under § 2422(6). Lastly, there arc no reported eases of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to his own home.3 Although these matters were within the scope of the CEOS review, rather than cunsideting whether federal prosecution is appropriate, CEOS only determined that U.S. Attorney Acosta "would not be abusing his prosecutorial discretion should he authorize. federal prosecution" iu this case. The "abuse of discretion" standard constitutes an extremely low bar of evaluation and while it may be appropriate when the consideration of issues are exclusively factual in nature, this standard fails to address concerns particular to 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 in. his borne that amounted (0, at most, the *elicitation of prostitution. is unprecedented. Since prostitution is fundamentally a suite concern. (sek United Slights it Evan; 476 F.3d I 176, r..l (nth Cir. 2001) (federal law "does not criminalize all acts of prostitution (a vice traditionally governed by state regulations)). and thoro is no evidence that Palm Beach County authorities and Florida prOSocutors cannot cifectively prosecute and punish the conduct, there is no reason why this matter should be extracted from the hands ornate prosecutors in Florida. EFTA00225686 EXECUTIVE OFFICE 00J/OD5C lalthEAND&ELL.15 1.1.P ID 007 fsbo08/0.1.3 0114 06/02/08 VON 15:00 FAX 05/28/2008 09:05 PAX 202 ,'05 JO;08 80‘ 13:23 FAN I 213 080 8500 . , Honorable Mark lip May 19, 2008 Page 3 private practice in South Florida wit sonal relationships to some of the prosecutors involved. Federal prosecutors then leaked hi sensitive information about the case to a New York Times reporter.' The immediate re f this confluence of extraordinary circumstances is an onslaught of civil lawsuits, all save one brought by the First Assistant's former boutique law Jim in Miami. The facts in this case all revolve around the classic state crime of solicitation of prostitution? 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. That is where, in our federal republic, this matter should rest. Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason the Suite has not resolved this matter is that the federal prosecutors in Miami have continued to insist that wt, Mr. Epstein's counsel, approach and demand from the State Attorney's Office a harsher charge and a more 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 are 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 he conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike that imposed on other defendants within rho jurisdiction 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 confines of paten Beech County, Florida, we have asked ourselves why the Department of Justice is involved. Regrettably, we are unable to suggest'any appropriate basis for the Department's involvement. Mr. Epstein has no criminal histo whatsoever. Also, Mr. Epstein has never been the subject of general media interest until a few ears ago. after 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 statutes that have been identified by prosecutors -1S U.S.C. 1591.2422(b), and 2423(b). (Inv of the other members of Mr. Epstein's defense team, Jay Letkowitz, has personally reviewed tho reporter's contemporaneous news. Although some of the women alleged to he involved were 16 arid 17 years of age, several of these women openly admitted to lying to Mr. Epstein about their age in their recent sworn statement:. EFTA00225687 VV/ 4/VO nun tO;VV 'MA ova coy ••• 1/40,0•0 .,et • •40 4 ran auceinAcJv ,b3.19•SIN NOS t3:22 PAX I I.113 can 4500 AADVLIAATZ UltrAtoG IMJ,UVAG HXLANII&EIJ.IS 1.1? WA LW In007/013 4L1"3 Honorable Murk Pilip May 19. ZOOS Page 2 By way of background. we were informed by Mr. Acosta that, at his request, CEOS would be conducting a review to determine whether federal prosecution was both appropriate and, in his words. --fair." That is not what occurred. instead, CEOS has now acknowledged that we had raised "many compelling arguments" against the USAO's suggested "novel application" of federal law in this matter. Even so. CEOS concluded. in minimalist fashion. that "we do not see anything that says to us categorically that a federal case should not be brought" and that the C.S. Anoint) "would no he abusing his prosecutorial discretion should he authorize federal prosecution of Mr. Epstein!' thus delegating back to Mr. Acosta the decision of whether federal prosecution was warranted (emphasis added). Rather than assessing whether prosecution would he appropriate, CEOS. using a lowbaseline for its evaluation, determined only that "it would not be impossible to prove . . ." certain allegations made against Mr. Epstein. The CEOS review failed to address the significant problems involving the appearance of impermissible selectivity that would necessarily result from a federal prosecution of Mr. Epstein. We respect CEOS's conclusion that its authority to review "misconduct" issues wes precluded by Criminal Division practice. We further respect CEOS's view that it understood its mission as significantly limited. Specifically, the contemplated objective was to determine Itether the I.:SAO would he.abusing its discretion by bringing a federal prosecution rather than eking 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 fcder investigation against Mr. Epstein, we summarize the facts and circumstances of this matter bolo The two base-level concerns we hold are Ihat (1) 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 of substantial 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. 1In a. precedenr-shattering investigation of Jeffry Epstein that raises important policy questions—and serious issues as to the fair and honor le enforcement of federal law—the USAO in Miami is considering extending federal law beyond the bounds of precedent and reason. Federal prosecutors stretched the underlying facts in ways that raise fundamental questions of basic professionalism. Perhaps most troubling, the USAO in Miami, as a condition of deferring prosecution, required a commingling of substantive federal criminal law with a proposed civil remedy engineered in a way that appears intended to profit particular lawyers in EFTA00225688 na,4 Piz VUo Ile, I *ON • • win 14:0V rAA 000 04U 044U VW: u / resa ZUZ0 1 U I Za NON 1:1:22 PAS I 218 tc$o 85o0 tsr.'AuS1rc urr . sun DOJ/ODAu xl iaii.ANDV.I.I. 1 5 In' III IMO klionarn13 4000 Kenneth W. Starr Kirkland & Ellis LLP 777 South Fisncrou Street LOR A11,50lia t LA _90017..5800 Phone: 21.3-ette 8440 Fax: :au- 680-8500 kstarrekirkiand.com VIA FACST/tell...? (2021 51441467 I lonorable Mark Filip Office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue, N,W. Washington, D.C. 20530 May 19. 2008 Joe D. Whitley Alston & Bird LIP The Atlantic Building 95o 17 Street, NW Washington, DC aotiottacit Ph: 202.756-3189 Fax: 2W-654.48149 joc.whillty@aiXtmeum CONFIDENTML DearJudgeFiliee In his confirmation hearings Jest dill, Judge Mukascy admirably lifted up rim finest traditions of the Department of Justice in assuring the United States Senate, and the American people, of his solemn intent to ensure fairness and integrity in the administration of justice. Your own confirmation hearings echoed that bedrock determination to assure that the Department conduct itself with honor and integrity, especially in the enforcement of federal criminal law. We come to you in that spirit and respectfully ask for a review of the federal involvement in a quintessentially stale matter involving our client, Jeffrey 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 such au examination. Based on our collective experiences, as well as those of other former senior Justice Department officials whose advice we have sought, we have never before seen a case 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 review of this matter tit the request of U.S. Attorney Alex Acosta. Critically, however, this review deliberately excluded many important aspects of this ease. Just this past Friday, on May 16, 2008, we received a tenet- from the head of CEOS informing us that CF-OS had conducted a review of this case. By its own admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed limitation was CEOS's abstention from addressing our "allegations of professional misconduct by federal prosecutors". —even though such misconduct was, as we contend it is, inextricably intertwined with the credibility of the accusatio being made against Mr. Epstein by the United State:: Attorney's Office in Miami ("USAO"). oreover, CEOS did not assess the terms of the Deferred Prosecution Agreement now in effect or did CEOS review the federal prosecutors' inappropriate efforts to implement those tenns. We detail this point below. EFTA00225689 06/02/08 MON 1459 FAX nafieti/zutnr ou:os FAX 20 05 19 OR MON 13:21 FAX 1 '113 88e 8508 EXECUTIVE OFFICE DU/08AG KIRKLANORALLIS LLF td)004 46ouS/013 KIRKLAND & FILLS LLA Fax Transmittal 777 South Figueroa Street Los Angeles, California 00017 Phone, (213) 680-8400 Fax: (213) 680-8500 Please notify us Immediately If any pages aro not r000lved. 511? gw310 es. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL. MAY 13E 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 NOTIFY US IMMEDIATELY AT: (213) 680-8400. To: Honorable Mark Filip From: Kenneth W. Stun-Company: Office of the Deputy Attorney General United States Department oflusticc Date: May 19, 2008 Pages vetoven Fax II: Direct It: (202) 514-(1467 (202) 514-2101 Fax g: Direct #: 9 (313)680.8500 (213) 680-8440 Message. EFTA00225690 • ona wh;27,200R 1? II! AX . UVJ I VOM: 0004/013 is vin/ uvs I fortnrahle Mark »bly 27. 200.1i Page 2 tu a charge thai the State .• nonie)• hus not. despiic a lera yxar vesiigalion. tijiemitut;41 ett eec approprime. Mr. I ipStein's enunrcl must also strecessfully espediteg pka of y lo this charuc • on :e date prior in dirly S. 20024. which ie lite date pre enly set hy tbc siste enurt Judge. i:tirther, the unnecessary deadline is ewn more Fobi:made because Mr, itgejn"s cffnn tu real:lede the state charge mul seneene with the terms of Mc A:tm:entent requitea an tmustral und unprecedented threatened application of federal IZW:. Thi;. it place,. Mr Pitstein in the I eilddy ueittate:ol position of havinp to thanand thai the State :amok:see to a mon; set etc punishmeni ;han •Itad alrendy delermined was approprime. We hatt attempted to resolve Mest: tu id ca I eur i>sues thrkettgl i die USA0 avd (EON, ruising our eorreernx ahnut the LISAC's inappropritue eunduel will: respeet lo (hi) maltet. not Omse avenue; have now been shut dumt. Mr. Slontan'n letter purpnns to prohihit ann lurdur contael hetween Mr. Papskin' S defense team mul :.S. Anomi:y Aerma. and insieart repures us ta eommunicate with the USA° only thouph Mr. ..Chennta s stihrirdinmen. 11 'hi it pain:: tis In :my this, this mis)tuided proseention fi om Ilie omse: gives the alme:trance thai it may havt helst poliiiesilly intiriwired Mr. Rpercin is :e highiy surxeS:dni. Sel r,made businessman and philanihropist who entered the public- ansrui oniy inne of hk ck..? personal as:mej:diam with former President Bill Clinton. nerv is litile dt. tt! Il; uur minds thai the IN-N() nevet would hatt conrempiated a proNecution in this case if Mr. Epstein teer:: just anm her lolla.- t AltnnieY Aeosin previnusly has slated thai hr is "sympatin:lie - lo om Federalism• related eoneents. but he has token the position that his audtority is lintiicd bt enfon:ement policirx set inritt in Washington. D.C. As expresse4 in our prior conumenicatinn oml. tve helieve i hat a crunrilele and independent apprnisul and n:solution of this case most appropriateb would be undertaken by your Office heginniny with the reseission of the arhirrury. unfair. and improeedenred deadline that Mr, ~Inman demands to have iinpn.sed in this At die verv leas(. etc would apprcciate a killing of the arbitnm, timeline impost:d till our ciiew hy the I :SA() in order to allow tisne: for your office to soplider eau: Amnesi Ittel klit: Ill itteriake te ryt len of th is cam;. Titank you for your time and attention. gaspeelfully sulunicted. Kenneth W. Starr K iddand I .LP CrV-1\-7, .106 I) WhitiCy Alslup Bird IL EFTA00225691 08/OP/08 YON r5n8a MOEN n5127/26(4 12 18 b).8 EXECUTIVE OFFICE UOJIODAG 12002 lä003/.0i 3 tomp,"liva. Kenneth W. Starr Kirkland tV hill i 1.1.1' ; , NI :vet ‘nrolue.....:.^. 901/4:17 .3kirr n •IIV. 4:13. tS;Kt‘ .7;1 -1O A:•. rItAne. S 1 e'.5(11-46".: 11.e•• :1 ; (NC $/:f.t: baarraktrkl.ta.kom VIA r kcst (2021 $14-040 I loatmtble Mark Filip )I lice OI the Dupnly Attorney General (haled titates Department tif Just ice 050 Pennsylvania Avenue, N.W. Washington. 0.4'. 70530 Dc.ir Judy.: Filip: May :7, 2008 Pk 0. I: it /c., & Bird LLP The t dated Kidder: '19. 1 .mteet. NW *.e .!:“;;;;;Pti. ; ":5‘4 rdh -i1P"-; pv who lin.w.d.e. y 1 .1 C'ONI•%p/::'\'7'/..11. •_ • 'Ibis letter briefly supplements ttttt prior submission to u dated May I.1. 2008. OW! conirmaneation. we urgently requested that your Office etualuel an independent 'reeitm the moused federal pro•annitIon of our client. Miley Epstein. The dual Iti:INONIS Jill' that you review this newer am lit the bedrock need fin integrity in the enfiteentrat flitfe: ud ell "'MI laws. and iiil the prOfteind questions raised hy the unprecedented eKlcumeem id' federal taw by the t Siats Attorney> Office in Mimed (the ESAU') tu a preminem public figurewho •:h1µ Iles 11, 'boner President 'Mc need for review is now all the more eNigent. Ou Monday. MaY 19. 2008. Assistant JetTrey Shaun af the t ;SAO responded m an email from JD) I.elkowiitittfintuitu; k Attorney Alex Aeostu that we wnuld he seekinG your Oilliee's review. Mr. Slonew's letter. tvhkh improa:d a deadline of June 2. 2008 to comply with all the terms of the k.ue: cm von. Prosecution Agreement (die -Ago:emu:tn. pies new unilateral modifications, an pain of being deemed in breach Mat Agreement. ;Appeal, lo hove been deliberately designed to deprive UN Of an adequate opportunity Iu aret. your Office's review in ibis minter. (.!SAO'S desire to foreclose a complete revielk is widerstancLible. give!) den ibe Child Esplibitation and Obscenity Section retiON.3 has already delenemed that our subsiaite arg.1111148118 retarding WilY a ((:terot prosecution of mr. upsigin is not warranted were • nelling.- I Inwever. in contradiction w Mr. Sloman's assertion that 8ä0S luad provided an independent. dr Jew° (RÖS made clear that it did not do so. indeed. elifiR declined ut examine several of the more troubling aspgets of the investigation al' Mr. Upstem. the deliberate leak In the New York Times of mInterous highly vontidetekil aspects of the i 'west; gati un and nettothu kin:; Ect,"3.41 I he punk% US Weil US tie i«unt coll., of c kw,:'IrisK filed againu Mr. Epstein by Mr. Sloman's former law partner. The t ttttt eeessary anti arbitrarily imposed deadline set by the I /SIMI was done without any ruspee4 an' (lie turmal rum:tip ll tt and scheduling of state judicial neuters. It require< den Mr. Ep stein's counsel persuade the Slate Attorney of l'alen peach tu issue a criminal in !brit union EFTA00225692 uoiuzive AWN 14:3a /AA 305 530 6440 EXECUTIVE OFFICE (moot U.S. Department of Justice United States Attorney Southern District of Florida UNITED STATES ATTORNEY'S OFFICE SOUTHERN DISTRICT OF FLORIDA 99 NE 4Th STREET MIAMI, FLORIDA 33132-2111 Jeffrey H. Sloman First Assistant U.S. Attorney 305 961 9299 Cyndee Campos Staff Assistant fax FACSIMILE TRANSMISSION COVER SHEET DATE: June 2, 2008 TO: Villafana FAX NUMBER: (561) 820 8777 SUBJECT: Epstein NUMBER OF PAGES, INCLUDING THIS PAGE: 9 Message/Comments: This facsimile contains PRIVILEGED AND CONFIDENTIAL INFORMATION intended only for the use of the Addressee(s) named above. If you am not the intended recipient of this facsimile, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified 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 (ho U.S. Postal Service. Thank you. EFTA00225693 51z7bb SrauS...644issJoN To n 44 tXHIBIT 11 EFTA00225694 JAY P. LEFKOWITZ, ESQ. May 19, 2008 PAGE 6 OF 6 Conclusion On February 25, 2008, I sent you an e-mail setting forth a timetable for moving forward in the event that CEOS disagreed with your position. That time is now. As you know, my February 25"' email stated that I would give you one week to comply with the terms and conditions of the Agreement, as modified by the USA's December I94 letter to Ms. Sanchez. In light of the upcoming Memorial Day weekend, I have decided to extend that timetable to the close of business on Monday, June 2, 2008, which is a full two weeks. Sincerely, R. Alexander Acosta United States Attorney By: Jeffrey H. Sloman First Assistant United States Attorney cc: R. Alexander Acosta United States Attorney A. Villafana Assistant U.S. Attorney Karen Atkinson Assistant U.S. Attorney EFTA00225695 JAY P. LEFKOWITZ, ESQ. May 19, 2008 PAGE 5 OF 6 C. "Mr. Epstein Does Not Believe He Is Guilty Of The Federal Charges Enumerated Under Section 2255." At our December 14, 2007 meeting at the U.S. Attorney's Office in Miami, counsel for Epstein announced, inter alia, that it was a "profound injustice" to require Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. Section 2422(6), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuading or inducing. This particular attack on this statute had been previously raised and thoroughly considered and rejected by the SDFL and COS prior to the execution of the Agreement. You also argued that the facts were inapplicable to the contemplated state statutes and that Epstein should not have been allowed to have been induced into the Agreement because the facts were not what he understood them to be, It should be noted that the SDFL has never provided you with any evidence suppolg its investigation. This is not, and has never been, an Alford plea situation (see North Carolina Alford, 400 U.S. 25, 91 S.Ct: 160 (1970)). Ultimately, you requested an independent review. Subsequent to the above-mentioned meeting, the SDFL received three letters from you and/or Mr. Starr which expanded on some of the themes announced in the December 14th meeting. Essentially, you portrayed the SDFL as trying to coerce a plea to unknown allegations and incoherent theories. On December 17, 2007, you decreed that Epstein's conduct did not meet the requirements of solicitation of minors to engage in prostitution (Fl. Stat. Section 796.03) one of the enumerated crimes Epstein had previously agreed to plead guilty to; that Epstein's conduct does not require registration under Florida law; and the State Attorney's Office does not believe the conduct is registrable. On December 21, 2007, you rejected the USA's proposed resolution of the 2255 provision because you "strongly believe that the provable conduct of Mr. Epstein with respect to these individuals fails to satisfy the requisite elements of either 18 U.S.C. Section[s] 2422(6) ... or ... 2423(6)." In your December 26, 2007 correspondence you stated that "we have reiterated in previous submissions that Mr. Epstein does not believe he is guilty of the federal charges enumerated under section 2255" and requiring "Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense." As the SDFL has reiterated time and time again, it does not want, nor does it expect, Epstein to plead guilty to a charge he does not believe he committed. As a result, we obliged your request for an independent de novo review of the investigation and facilitated such a review at the highest levels of the Department of Justice. It is our understanding that that independent review is complete and a determination has been made that there arc no impediments to a federal prosec by the SDFL. EFTA00225696 JAY P. I.F.FKOWITZ, ESQ. May 19, 2008 PAGE 4 OF 6 B. Method of Compensation and Notification. During this same time period, you and others, including the former Solicitor General of the United States Kenneth Starr, took issue with the implementation of the methodology of compensation (hereinafter "the 2255 provision") 3 and the SDFL's intention to notify the victims under 18 U.S.C. Section 3771 (you objected to victims being notified of time and place of Epstei