• Page 29 • • some girls were over 18, some were under, and the identity of a given masseuse on a given day depended entirely on who was available or who was brought to Mr. Epstein home, unsolicited, by a friend. There was, in short, no deliberate effort to target underage girls; to the extent any underage girls visited Mr. Epstein's home, it was pure happenstance, made possible only because the girls themselves deceived Mr. Epstein in order to gain access to his property. Nor is there any evidence that Mr. Epstein or his assistants acted with knowledge that the minors would "be caused to engage in a commercial sex act." Again, Mr. Epstein's massages did not invariably lead to sexual contact (and often did not lead to sexual contact), see supra at part II.A.3.c., which makes it impossible to prove that the girls were recruited by someone "knowing" that those girls would "be caused to engage in a commercial sex act." After all, one cannot be said to have "known" that something "would" happen if it did not actually happen. Perhaps more important, the statute's use of the term "be caused to engage" demonstrates that Congress contemplated some use of undue influence or pressure to induce the minor to perform "a commercial sex act." When two people willingly and consensually engage in a sex act—even one that involves the exchange of money—it cannot be said that one has "be[en] caused" by the other to engage in the act. And if the statute were applied without requiring some element of undue influence, then it would apply to any act of consensual prostitution involving a willing minor, which certainly was not Congress's intent. The "knowing causation" element of the statute thus makes clear that the statute targets traditional pimps—those who recruit underage women and influence or require them to engage in sexual acts with third parties—not the third- party "Johns" who unwittingly solicit an underage prostitute acting under the influence of a pimp. Needless to say, there is no evidence whatsoever that Mr. Epstein was pimping the young women who came to his home—and there is no evidence whatsoever that Mr. Epstein wielded any undue influence over those young women in their own interactions. To the contrary, each was free to accept or reject any invitation to his home; each was free to introduce or not introduce him to their friends; each was free, if asked, to reject any escalation of a simple massage into something more. Indeed, many of the girls visited Mr. Epstein's home unsolicited—and many left messages with Mr. Epstein's assistant seeking to visit him. See supra at part I. The statute cannot plausibly be read to cover these circumstances, where there is no serious question that the masseuses chose—but were not "caused to"—perform massages on Mr. Epstein, and, occasionally, more. Finally, the statute's express requirement that there be a nexus between the inducement of a minor and interstate commerce is not satisfied in this case. That requirement makes clear that Congress intended to target commercial prostitution operations with a substantial impact on the interstate economy—i.e., those involving the coercive "trafficking" of minors across State or national boundaries as part of a commercial enterprise--rather than purely local prostitution. But that's all that was involved here. Mr. Epstein did not entice anyone located in another State or country. He did not entice anyone to cross State or national lines. None of the women in this case ever did cross State lines. Any sexual contact that occurred took place between Palm Beach EFTA00225881

• • • Page 28 knowing that force, fraud, or coercion ... will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act....(emphasis added) The text, structure, and history of this statute make clear that it was never intended to apply to a case like this one, and the Department's own policy statements and past prosecuting decisions demonstrate that applying § 1591 in this case would be unprecedented and inappropriate. 1. The Text Of The Statute Forecloses Its Application In This Case. By its plain text, the statute requires (1) the deliberate (2) obtaining or enticing (3) in interstate commerce of (4) a person (5) while "knowing that force, fraud, or coercion ... will be used to cause the person to engage in a commercial sex act," or "knowing that" the person "has not attained the age of 18 years and" (6) "will be caused to engage in a commercial sex act." 18 U.S.C. § 1591. These elements cannot be satisfied. To begin with, by no stretch of the imagination did Mr. Epstein use "force, fraud, or coercion" in connection with any of the women who came to his home. In fact, it was just the opposite. There is ample testimony that the women felt comfortable with Mr. Epstein. Those who came to his house were told before they chose to come that Mr. Epstein would request a massage and might possibly request that the masseuse remove her clothing. It was also made clear to those who came to his home, that if ever Mr. Epstein requested more from them, and they did not feel comfortable with his request, all they need do was tell him so and he would be fine with that. Each individual approached about Mr. Epstein was free to accept or reject any invitation, each was free to introduce or not introduce Mr. Epstein to their friends (as many did), each was free, if asked, to reject any request by Mr. Epstein for anything more than a simple massage and to end the massage at any time. In fact, some did reject his requests and end the massage, and they were still paid for their services. In a number of cases, even those who ended massages early returned, either to bring friends or to wait, talk and snack in Mr. Epstein's house. Still many others returned to Mr. Epstein's house time and time again to perform massages. See Summary of Testimony re No Coercion, Exhibit 31. To suggest that Mr. Epstein in any way used "force, fraud, or coercion" with these women is baseless. To the contrary, the young women's' testimony in this case clearly reflects, there is not even the slightest whiff of coercion in this case, nor any suggestion that the young women involved were lacking in the ability to make fully informed choices. The clear record that all the conduct in question was voluntary, non-violent, and non-coercive plainly demonstrates that this would be an inappropriate case in which to presume coercion. Furthermore, the evidence in this case conclusively establishes that the underage girls who visited Mr. Epstein's home have, without exception, either expressly admitted that they lied to Mr. Epstein about their age or instructed others to lie to Mr. Epstein about their age. See supra at part II.A.3.b. And the identity of the masseuses (and their ages) was purely random— EFTA00225882

• Page 27 a massage. The facts clearly will not establish that Mr. Epstein knew that whoever made the calls was engaging in an attempt to induce anything other than a massage. The facts and evidence do not establish that parties who were spoken to, were "persuaded, induced, enticed, or coerced." And the facts and evidence establish that Mr. Epstein did not know the ages of the women who came over when the phone was used, and did not at the time of the calls intend to solicit prostitution or any sexual activity chargeable under Florida law. Under these circumstances, taking a statute plainly not intended to cover this alleged conduct and stretching to accomplish something Congress never intended would be to grossly overreach—especially where State law normally covers this territory. Mr. Epstein undeniably committed State offenses. He was so indicted and has agreed, subject to the resolution of the successive federal criminal investigation, to plead guilty to that which the evidence proves— State offenses. • • Consistent with Congress's focus on sexual predators, federal prosecutors have never used § 2422(6) in this way. We have identified 199 prosecutions under § 2422(b),'0 and all of them have involved Internet predation, for-profit prostitution rings, sex tourism, or some other situation in which the defendant himself either abused the victim or aggressively induced minors over the mail, phone or Internet. Needless to say, Mr. Epstein is not a sexual predator, let alone an Internet predator. Evidence shows that Mr. Epstein did not target minors; that women were motivated by the opportunity to make money, that all sexual touching was entirely consensual; and that all of the conduct took place in Mr. Epstein's home in Palm Beach County. B. 18 U.S.C. § 1591 Section 1591 criminalizes human trafficking. It reads as follows: 18 U.S.C. § 1591. Sex trafficking of children or by force, fraud, or coercion (a) Whoever knowingly— (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, or obtains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph 10 We identified a total of 230 prosecutions under § 2422(b), but 31 of those case opinions fail to provide any information as to the facts underlying the charges. EFTA00225883

• Page 26 been trafficked by force or coercion, and that "pandering, pimping and prostitution-related offenses have historically been prosecuted at the state or local level." Id. (emphasis added); see also id. ("Furthermore, the 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.") Those observations could hardly be more apt in this case. Expanding § 2422(b) to reach a prostitution-related offense is "unnecessary and a diversion from Federal law enforcement's core anti-trafficking mission." Id at 9. In the end, federal prosecutors attempt to argue that § 2422(b) applies wherever anyone uses an interstate facility and unlawful sexual activity ensues. However, the statute clearly aims at the conduct of Internet predators, i.e., those who knowingly and intentionally target children through some means of interstate commerce. That is the natural reading of the text, and it is consistent with the statute's purpose, the rule of lenity, and principles of federalism. See Scheidler Nat'l Org. for Women, Inc., 547 U.S. 9, 16-21 (2006) (construing the Hobbs Act narrowly based on statutory text and history, as well as the need not to "federalize much ordinary criminal behavior"). On any broader interpretation, § 2422(b) would federalize nearly any sex-related crime if there were use of the telephone or Internet. If Congress had wanted to effect that sort of sea-change in the balance between federal and State power, it could and would have said so when it enacted § 2422. Florida law defines a range of prostitution and prostitution related offenses, but it treats them as misdemeanors, making it a felony for a third violation. See Fla. Stat.796.07(4). To ratchet up the punishment, by invoking the federal statute, to felony crime with a long mandatory minimum prison sentence attached, is not what Congress intended when it enacted this law, nor does the statute give fair warning that the statute made such conduct a federal criminal offense. It would work a major shift in the State-federal balance—at a time when the administration has eschewed, on federalism grounds, extending federal criminal law into areas that are primarily and historically of State concern. And it would do so where the federal (as opposed to the State) interest is minimal, assuming a federal interest exists at all. In addition, it would raise questions of the utmost seriousness under the Ex Post Facto and Due Process Clauses, since a prosecution of Mr. Epstein under § 2422(b) would require a construction of the statute that was unforeseeable when the conduct at issue occurred. See, e..g., Bouie I City of Columbia, 378 U.S. 347, 350 (1964). If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, "it must not be given retroactive effect. Id. at 354, quoting Hall, General Principles of Criminal Law 61 (2d ed. 1960). • • 5. Conclusion In sum, the facts and evidence do not fit the elements required to prove the crime. There are numerous factual and legal hurdles that must overcome to meet the key elements of this crime. Federal prosecutors will have to establish from credible evidence that Mr. Epstein used a phone to engage in the prohibited acts. To the extent others made the phone calls, there is no evidence that the phone was used to induce the young women to do anything other than provide EFTA00225884

• • • Page 25 (1995) (quoting United States' Enmons, 410 U.S. 3%, 411-12 (1973)). In Enmons, the Court refused to accept the Government's "broad concept" of the Hobbs Act, because it would have rendered all manner of minor actions subject to federal prosecution and stringent federal punishment, covering even "the worker who threw a punch on a picket line, or the striker who deflated the tires of his employer's truck." Enmons, 410 U.S. at 410-11 ("Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work ... such an unprecedented incursion into the criminal jurisdiction of the States."). The same rationale applies here. The crime of engaging in underage criminal sexual activity (or underage prostitution) is traditionally considered within the State's historic police power. It is well-settled law that if Congress had wanted to f eralize such crimes, it needed to y say so with unmistakable clarity in § 2422(b). See, e.g., Will Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the 'usual constitutional balance between in the language of the statute.") (quoting Atascadero State Hospital Scanlon, 473 U.S. 234, the States and the Federal Government,' it must make its intention to io so 'unmistakably clear 242 (1985)); id. at 65 (Congress "should make its intention 'clear and manifest' if it intends to pre-empt the historic powers of the itates') (quoting Rice' Santa Fe Elevator Corp., 331 U.S. 218 (1947)); see also United States Drury, 344 F.3d 1089, 1101 (11th Cir. 2003) (recognizing that in the absence of "unmistakably clear" language signaling Congress's intent to alter the federal-State balance, courts should interpret the statute in the manner "that does not impute an intention upon Congress to invoke its full commerce power to regulate conduct traditionally controlled by the States"). Needless to say, Congress did not say with unmistakable clarity in § 2422(b) that it wanted to federalize historically State crimes. Quite the opposite: Congress criminalized only "using" an interstate facility to "knowingly persuade" or "induce[]" a minor to engage in unlawful sexual activity. Again, the most natural reading of that language is that § 2422(b) creates a crime of communication across an interstate facility. That is why most of the reported prosecutions under § 2422(b) involve sting operations in which the criminal sexual activity never actually took place; it was enough that a defendant knowingly attempted to induce such behavior via the telephone or Internet. In any event, there is no sign in § 2422(b)—much less an unmistakable sign—that Congress intended to federalize a host of State crimes like underage solicitation or prostitution. The more narrow reading of § 2422(6) is consistent with the position recently articulated by the Department of Justice in a similar context. See November 9, 2007 DOJ letter to the Judiciary, at 8-9, Exhibit 15. In reviewing proposed changes to human trafficking statutes like 22 U.S.C. § 2151, the DOJ opposed removing the requirement that a defendant have knowledge of a minor's age. The DOJ argued that eliminating the knowledge-of-age requirement would "run[] counter to the criminal law goal of punishing culpable states of mind" and would create an unusual strict liability crime with a harsh mandatory minimum sentence. Id. at 8, 1 17. Likewise, the DOJ opposed expanding the Mann Act to include cases "affecting" interstate commerce. It reasoned that federal law already adequately covers crimes in which victims have EFTA00225885

• Page 24 While the Government apparently believes that there may be evidence that Mr. Epstein was told the ages of a small subset of the masseuses, there is no evidence that the other required elements of proof could be established—namely that the phone was used to induce sexual activity, rather than schedule a massage, and that at the time of the call, Mr. Epstein had the specific intent required to violate the statute (i.e. that he knew who the assistant was calling, that he authorized the assistant to persuade or induce or entice over the phone, that he had actual knowledge or belief that the person called was a minor, and that he was directing the call with the specific intent to have illegal sexual activities with the minor, as defined by Florida law). Again, the evidence here conclusively shows that any sexual activity that followed from a scheduled massage was in fact random, not part of a consistent pattern or practice, and resulted from the spontaneity of the post-telephone person-to-person contact that alone is subject to State prosecution. e. There Is No Evidence Of A Conspiracy. • • The requirements of § 2422 or the other two federal statutes for that matter, cannot be diluted or circumvented merely by resorting to a conspiracy charge. Conspiracies require a meeting of the minds of the essential elements of the criminal object which in this case would be a violation of §§ 2422(b), 2423(b), or 1591. Elements such as the use of the interstate facility to knowingly persuade, induce, entice, or coerce in § 2422(b), or the purpose to have illicit sex with a minor while engaged in interstate travel in 2423(b), see infra part II.C, are not jurisdictional hooks but instead are the essence of the federal crime. A conspiracy must include an agreement to each such element. These federalizing elements cannot be diminished or made irrelevant by resort to a conspiracy—they are the necessary object of any federal conspiratorial agreement and are unproven as to Mr. Epstein and equally unproven as anyone directly employed by him. f. There Is No Basis For A Prosecution Under 4 2422(b). Given all of this, there is no basis for prosecuting Mr. Epstein under § 2422(b). Mr. Epstein did not place telephone calls inviting underage women to his house. The vast majority of women who came to Mr. Epstein's house were 18 or over. Those who were under 18 were told to lie about their age and did. Mr. Epstein's assistant did not know that the women she called were in fact under 18. Mr. Epstein did not direct his assistant to use the phone to induce underage women to engage in illicit sexual activity with him. And Mr. Epstein's assistant did not use the phone to induce underage women to engage in illicit sexual activity with him. 4. Clear Statement Rule To the extent there is any ambiguity about the statutory requirements, it should be resolved against a prosecution of Mr. Epstein. Under our federal system, the "States possess primary authority for defining and enforcing the criminal law." Brecht' Abrahamson, 507 U.S. 619, 635 (1993). Accordingly, as the Supreme Court has stated, "[w]hen Congress criminalizes conduct already denounced as criminal by the States, it effects the sensitive relation between federal and state criminal jurisdiction."' United States 514 U.S. 549, 561 n.3 EFTA00225886

• Page 23 • • examined. See Table of § 2422 Cases, Exhibit 28. A great majority of § 2422(b) cases are brought under the attempt theory where the charged defendants believed the target of their inducement was 18 but where they were in fact communicating with a law enforcement agent conducting a "sting" operation. In such cases, the intent element is proven by repeated explicit Internet communications evidencing both the defendant's belief of age (the nom► is for the "sting" to fabricate an age significantly under the statutory limit) and the defendant's unambiguous intent to engage in sexual intercourse, oral sex, or other conduct squarely within the heartland of "illegal sexual activities". Importantly, in these cases, the age of the victim is typically 14 or under. Further, the give and take of express communications in these cases (generally via e-mail, instant messenger, or postings in chatrooms) provide explicit proof of a knowing inducement, persuasion, enticement or more. These communications are replete with explicit sex talk, multiple explicit sexual propositions and specific sexual requests, making clear both the perpetrator's intention to induce as well as the illicit sexual activity intended to be induced. Most other non-sting cases feature explicit inducements, often the sending or receiving of graphic photos from which age can be readily deduced, and unambiguous references to targeted illegal sexual objectives. None of the reported decisions rest alone on communications by a third party aimed at "scheduling" or at inquiring whether someone is available to work at a specific time or on responsive messages merely communicating availability to work—i.e. give a massage—all without an express and knowing inducement, express evidence of knowledge of age, or any agreed objective of an illegal sexual activity as it is defined by Florida statute. The bottom line here is that there is no proof that any given call arranged for (or was intended to arrange for) sexual activity, and thus no proof that the phones were used to lure, induce, entice, persuade, or coerce someone to engage in such activity. Without a predicable pattern linking illegal sexual activity to each visit, there is no viable implication that any given communication was intended to yield sexual activity. And such an implication would in any event be contrary to fact, since all of the evidence in this case demonstrates that the decision to engage (or not engage) in sexual conduct was made on the spur-of-the-moment it was "solicited" during the face-to-face encounter rather than over the phone. d. There Is No Vicarious Liability. There is no evidentiary basis for initiating a prosecution based on calls made by Mr. Epstein's assistant: She did not know the women's ages, lacked knowledge that any criminal sexual activity was intended, and never used the phone to persuade or induce anyone to visit Mr. Epstein except for the purpose of providing a massage. Without these elements, Mr. Epstein's assistant cannot be proven to be a co-conspirator or abettor, and without evidence that Mr. Epstein specifically directed his assistant to call a specific witness who Mr. Epstein then knew to be under 18 and with whom Mr. Epstein at that time specifically intended to engage in a criminal sexual activity, Mr. Epstein cannot be held criminally liable for the phone calls made by his assistant. EFTA00225887

• Page 22 • that the offense would be committed by a person other than one ready to commit it . . " Nevertheless, "evidence of the government's mere suggestion of a crime or initiation of contact is not enough ... Instead, ... inducement requires an element of persuasion or mild coercion... . [l]nducement coasts of opportunity plus something like excessive pressure or manipulation.. . ." United States Brown, 43 F.3d 618, 625 (11th Cir.), cert. denied, 516 U.S.917 (1995). Likewise, a telephone call that merely initiates contact or sets up an opportunity for something inappropriate to occur, without pressure or manipulation, cannot amount to inducement. Nor can it amount to persuasion, enticement, or coercion, which are variations on the same theme. The theme that money was the implied inducement or enticement would also fail to meet the communication as crime element e variability of payments counter any sort of pattern. See Police Report at 78, Exhibit 17 I received amount of $100 per hour); Tr. at 10, Exhibit 25 (received amounts of $D I • 200); Thomas Tr. at 10, Exhibit 26 ed $200); Gonzalez Tr. at 26, Exhibit 10, (received amounts of $300); ■ Tr. at 11, 20 (received amounts of $300, $400, $500 and $600). The fact that (i) the amounts given for massages were akin to set amounts for other persons (e.g., chiropractors and facialists who came to the house after receiving a similar call ("are you available") and (ii) payments were often decoupled from even a massage, see Hall Tr. at 15, Exhibit 19, and certainly from illegal sexual conduct, negates any notion that an enticement to have illegal sexual activity could be implied from the mere fact that Mr. Epstein and the masseuse each would expect there to be payment for a massage. Any additional agreement would occur, if at all, randomly, and only in person i.e. would not be known at the time of the communication in question. The requirement of a "knowing" inducement or enticement requires more. Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement. Rather, inducement refers to government c duct that persuades a person to turn "from a righteous path to an iniquitous one." United States I Gifford, 17 F.3d 462, 468 (15` Cir. 1994) (citations omitted). Inducement entails some semblar of "arm-twisting," pleading, or coercive tactics. See id. Florida law is similar. See Marreel State, 841 So.2d 600, 603 (Fla. App. 4th Dist. 2003) ("Inducement cannot be found by prompting or creating an opportunity: Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement.") In this case, there was no unwillingness at all. Young women who visited Mr. Epstein's home more than once did so willingly and of their own volition. Whatever activity these women engaged in while there was also entirely uninduced by any antecedent phone call. A compilation of messages from message pads seized by the State during a search of Mr. Epstein's Palm Beach property clearly reflects that if there was a regular pattern it was of women calling Mr. Epstein's home or his assistants to determine whether they could be scheduled to come to his residence to give a massage rather than providing evidence that Epstein's assistant would knowingly use the phone to induce or entice or persuade or coerce as required by § 2422(b). See Message Pad Entries, Exhibit 8. Additionally, any reliance on implication or routine would require a theory of criminal liability that stands in stark contrast to the heartland of the reported precedents we have EFTA00225888

• Page 21 persuade, or coerce underage women to visit Mr. Epstein's home with the purpose of engaging in unlawful sexual activity. Instead, to the extent any unlawful sexual activity ever occurred—which we deny—it was solicited during a face-to-face encounter with Mr. Epstein at his house, after the massage had been scheduled. The masseuses' own testimony makes this clear. As many have stated: during the course of the massage Mr. Epstein would at times offer them additional money to engage in activity in which they had never previously engaged—some would accept and others would not, with Mr. Epstein invariably respecting the decisions made "on the scene" by the masseuse in question. But the prior telephone conversations simply involved determining when and if a masseuse was available to come to Mr. Epstein's residence—for a massage, and nothing else. In short, the testimony, evidence and facts do not make out the elements of a federal crime, i.e. the necessary showing that a scheduling call itself was specifically intended to produce sexual activity with a minor at the time of the call.9 • • Nor is it possible to prove that Mr. Epstein intended the scheduling calls to induce sexual activity based on the fact that sexual contact occurred during an earlier massage. The fact that a call may have preceded a visit by a young woman who had, on one or more previous occasions, engaged in activity of a sexual nature with Mr. Epstein is not sufficient to establish that the next call included a knowing attempt to "persuade[], induce[], entice[] or coerce[]." At most, such a call might be a link in a causal chain that may or may not end in proscribed sexual activity—but it cannot be characterized as an attempt to persuade, induce, entice or coerce. Those, after all, are verbs that suggest a level of unwillingness on the part of the person at the other end of the communication, and that certainly is not the case with respect to repeat visitors (many of whom contacted Mr. Epstein themselves about the possibility of a return visit). In any event, courts have repeatedly held (in the context of entrapment) that neither mere solicitation nor the creation of opportunities to commit an offense errises inducement, even if it creates a risk that an offense will occur. See, e.g., United States Sanchez-Berrios, 424 F.3d 65, 76-77 (1st Cir. 2005), cert. denied, 546 U.S. 1125 (2006). The Eleventh Circuit has stated in entrapment cases that government inducement may be shown by a defendant's producing any evidence sufficient to raise a jury issue "that the government's conduct created a substantial risk 9 Section 2422(b) also requires that the objective of the interstate communication be "to engage in prostitution or any [illegal) sexual activity". The statute looks to State law for whether sexual activity is unlawful, which defines unlawful sexual activity as: "Oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes." FL. Stat. &796.07(IXd). "Prostitution" as defined by Florida law requires "the giving or receiving of the body for sexual activity for hire", FL. Stat. &796.07(IXa). The prostitution offense is predicated on the definition of "sexual activity" cited above. It bears mentioning that masturbation, by itself, is not considered illegal sexual activity under Florida law. EFTA00225889

a, Page 20 was sporadic and consensual. Id. at 16 ("just random things, but not sex"); Id. at 17 ("he would never make me do anything"); Id. at 17. Ms. met Mr. Epstein through See Tr. at 6, Exhibit 4. She went to Mr. Epstein's residence on one occasion, ut no communication of any sort with Mr. Epstein before going to his house, nor with any assistant or employee of Mr. Epstein. Id. at 5-7. She was never r. Epstein or anyone on his behalf after the massage. Id. at 15. She was told by , who drove her to Mr. Epstein's, to lie about her age—and she did. telling Mr. Epstein s e was 19. Id. at 16. There was no prior phone contact between Ms. and anyone associated with Mr. Epstein. • • ii. A Federal Case Cannot Proven With Circumstantial Evidence, Because Sexual Activity Did Not Invariably Follow The Scheduling Of A Massage Over The Phone. There is overwhelming evidence that the phone was not used to induce women to engage in sexual activity. Mr. Epstein did not knowingly engage in a routine or habit of sexual activity with minors, and therefore did not understand that the use of the phones was intended knowingly to induce minors to engage in prohibited conduct. Taped interviews from the State investigation demonstrate conclusively that there was no governing pattern or practice with respect to Mr. Epstein's massages. Sometimes the women were over 18, sometimes they were not; some visits resulted in massages, some did not; some massages were topless, some were not; sometimes Mr. Epstein masturbated during the massage, sometimes he did not; sometimes the massages would lead to other sexual activity, sometimes they did not. There is no pattern or practice evident here. When scheduling calls were made (by people other than Mr. Epstein), there is no evidence that Mr. Epstein had any knowledge of which masseuse had been scheduled; whether she was a minor; whether any massage would be given; and whether any sexual activity would occur. What happened during any massage depended entirely on face-to-face interaction with Mr. Epstein at the time, not on any prior telephone call or Internet communication. Indeed, many females testified that they visited Mr. Epstein's house and never even gave 'rage; many times, they simply watched television or sat by the pool or ate food. See, e.g., Tr. at 15, Exhibit 19 ("Sometimes...he would have to work and he'd be sitting at his desk or something and I'd just be naked there watching television or reading a book...sometimes he wanted to just watch TV or read...that's it, not touch him or anything and I'd get paid three hundred dollars...sometimes he'd just invite me over for breakfast or dinner, or just to use the swimming pool, and I'd get paid for that too...I'd get paid just to hang out with him. That's it."). Moreover, the evidence shows that Mr. Epstein's assistants scheduled everything in his life, from doctor's appointments and business meetings to haircuts, dinners, and massages. They knew no more about what would occur during a massage—or the real ages of the masseuses— than they did about a sensitive business meeting. They were simply "schedulers" or "appointment makers," rather than knowing participants in a scheme to lure, induce, entice, EFTA00225890

• Page 19 coerce a minor into sexual activity. Instead, the evidence in this case demonstrates that the use of the phone was entirely incidental to the conduct at issue in this case. Consider the following examples: • • • Ms. testified during her recent sworn deposition that she never had any Internet or telephone conversation with Mr. Epstein or any of his employees, and that she was not persuaded, induced, coerced, or enticed to o to Mr. Epstein's home as a result of any c or Internet communication. See Tr. (deposition) at 24-25, Exhibit 3. Ms. has been described by prosecutors as e ynchpin of their case but, according to her own testimony, she was brought to Mr. Epstein's house by and informed that the purpose of her visit was to give a massage; did not ever discuss any sexual activity with Mr. or persuaded to see Mr. Epstein over had no contact whatsoever with Mr. massages, but the p or coerce. See e.g., close in a sexual way Ms. guy." the phon with Ms. Id. at 10. Ms Epstein over the Internet or phone; and was neve the phone or Internet. Id. at 24-25. In fact, Ms. Epstein or any of his employees prior to arriving at pstein's residence. Id. at 29-30 Mr. Epstein never had any kind of conversation or communica s. before her single visit to his home, nor had he ever e-mailed Ms. or engag in Internet communication of any kind with her. Id. at 29. Ms. M, like Ms. was introduced to Mr. Epstein by a third person without any prior ph mmunications with Mr. Epstein or his employees preceding the first visit. See Tr. at 8, Exhibit 2. Afterward, it was who gave Mr. Epstein her number and said "any time you want me to give you a massage again, I'll be more than welcome to." Id. Mr. Epstein's assistant would thereafter call arding appointments. niiii Id. at 14. Seized message pads further reflect incoming calls from and others seeking to return to Mr. Epstein's residence. As to this group of women, not o y i ir Mr. Epstein not know their age, and not only was sexual activity not the predictable or routine outcome of the used at most to schedule, and never to persuade or induce or entice Tr. at 21, Exhibit 2 (she testifies that Mr. Epstein never pulled her Is. was introduced to Mr. Epstein by her friend that Mr. Epste ould pay for a massage and "that he was a .r . li spec I ti Tr. at 5, Exhibit 5A. Ms. extended this offer to Ms. in person, not over temet. Id. at 6-7. Nei er r. Epstein nor anyone on is half communicated ail, or fax, or text messy or to her going to Mr. Epstein's residence. was 17 at the time, and Ms. told Ms. to lie about her age. Id. at 8 ("she told me to say that I was was ask . On one occasion, Ms. was asked her age and she lied. Id. at 9. Ms. was never forced or coerced to en a e in sexual activity with Mr. Epstein. Id. at 11-12. o ow-up visits were scheduled by who would call and "ask me if I would like to come over and give a massage, because e wou in town." Id. There was never a suggestion of any sexual objective during the call. Id. at 14-15. Ms. never spoke to Mr. Epstein over the phone, only Ms. or another assistant. Id. at 15. And she has testified that what occurred thereafter was not p armed or discussed in advance, but EFTA00225891

• Page 18 21. In other cases, the identity of a particular masseuse resulted from who had returned telephone calls and was available, or who was brought by a friend. Indeed, there were instances where neither Mr. Epstein nor his assistants knew the masseuse who was corning for a particular appointment other than by name (if even by name), let alone knew her age e conduct in which they would engage. See generally, Gonzalez Tr. at 3, 19, Exhibit 10; Tr. at 19-20, 23-23-24, Exhibit 2. The key point here, however, is that the haphazard na e scheduling calls—and readily apparent randomness of the masseuses on any given day—prove that Mr. Epstein and his assistants did not deliberately target minors.8 c. Mr. Epstein Did Not Use Anjpterstate Instrumentality To Induce Proscribed Sexual Activity. • • § 2422(b) also requires that the interstate communication be used to "persuade[], induce[], entice[], or coerce[]" minors "to engage in prostitution or any [illegal] sexual activity." The evidence in this case demonstrates that Mr. Epstein did not use the interstate instrumentalities to induce illegal sexual activity because (i) many of the masseuses were not contacted over the phone at all and/or have testified that they were not induced to engage in sexual contact over the phone, and (ii) Mr. Epstein did not in any event consistently engage in sexual activity with them, making it virtually impossible to prove even circumstantially that the phone was used to induce the women to engage in illicit sexual conduct. i. The Evidence Shows That Mr. Epstein Did Not Use The Phone To Induce His Masseuses To Engage In Illicit Sexual Activity. The facts and evidence do not show that Mr. Epstein (or his assistants) used an instrumentality of interstate commerce to induce sexual activity, because many of the masseuses were never contacted over the phone at all or have testified that they were not induced to engage in sexual activity over the phone. There was no Internet communication with anyone under 18, and there were no phone calls where anyone said anything that went beyond simply scheduling a massage. There are no emails—or tapes of phone conversations—which could directly or even circumstantially show that the content of any communication was to induce, persuade, entice, or 8 Even if there are claims that (a) Mr. Epstein knew a given masseuse was a minor, (b) and that Mr. Epstein had someone contact her to schedule a massage after a prior incident of sexual activity, those allegations would not make out a claim under § 2242(b) because Congress clearly required the "knowing" inducement to be communicated during the use of the interstate facility, and again, without proof that sexual activity routinely resulted from the ges, it is well-nigh impossible to prove that the calls included such an inducement. The transcript of Ms. interview, for instance, claims only that there were occasional, random acts of sex, and that in some cases, s did not even provide Mr. Epstein with a massage, let alone ge in sexual activity. See Hall Tr. at 15, Exhibit 19. On other occasions, communications with Ms. resulted only in her introducing someone new to Mr. Epstein—an event that again fails to reflect that . tein had the requisite knowledge of the prospective masseuse's age, much less that sexual activity was likely (or, indeed, inevitable). EFTA00225892

• Page 17 A: Correct. Gonzalez Tr. (deposition) at 36, Exhibit 3. • • In fact, Ms. told Mr. Epstei she was 18 years old, and confirmed this fact with Palm Beach Police. age was also unknown to Mr. Ep she went to his home. who w ed to Mr. Epstein by Ms. testified in her federal sworn interview that Ms. told her to lie to Epstein. See Tr. at 8, Exhibit 2 ("she just said ma ou're 18 because Jeffrey doesn't underage girls, (emphasis added). Ms. testimony strongly suggests that Ms. ail lied to Mr. Epstein about her own age as well. Moreover, in addigaimismbeving a substantial financial interest in the outcome of any federal prosecution, Ms. is not a credible witness. She has a documented history of addiction and criminal conduct that included being involuntarily committed by her mother for "prostituting herself for crack." Palm Beach County Probate Court Case #05MH1667. She also self represented that she worked at a local erotic massage parlor that presumably required a minimum age. In addition to Mr. Epstein's lack of knowledge that certain women were under the age of 18, there is certainly idence that Mr. Epstein exhibited a habit or pattern of targeting underage girls. The toll records and seized message pads—two documentary sources examined during the State investigation (and presumably the successive federal investigation)— underscore the critical fact that there was no routine and pattern of targeting underage girls. To the contrary, Mr. Epstein's assistants called an array of potential masseuses—many of whom were over the a e of 18 and some whom w n127, for instance, calls were made at 9:02 AM to and at 9:03 AM to Mc Rrahnn wac over 18 at On May 6, ere were calls made one minute apart to On the afternoon of July 2, calls were made to Ms. and as well as others. Finally, on September 18, 5 calls were made to 5 females within 6 minutes including Sjoberg and Brabon (each over 18). See Toll Records, Exhibit 9. These records reflect that no one associated with Mr. Epstein deliberately targeted known minors, and further reflect the improbability that either the caller or Mr. Epstein even knew who would answer the phone, who would schedule a visit, what their age was at the time of the assistant's call, and what intention Mr. Epstein might have—other than to have his assistant try to schedule a massage for a given time on a given day. A sampling of the message pads reflects an identically haphazard course of communication that hardly suggests a targeted attempt to knowingly communicate an inducement to a known minor to engage in sexual activities with Mr. Epstein. See Message Book Entries, Exhibit 8. Indeed, in many cases, the identity of a particular masseuse on a particular day was simply the result of which masseuse had left a message for Mr. Epstein—without any prompting by Mr. Epstein or his assistants. See e.g., Tr. at 3, 4-5, Exhibit 25; Tr. at 6, Exhibit EFTA00225893

• Page 16 • • target minors (much less that he did so at the time of any telephone communication between Mr. Epstein's assistants and the young women). Mr. Epstein also took several steps to ensure that no minors entered his ho notably, by affirmatively asking the women whether they were actually 18. See e.g., Tr. at 38-39, Exhibit 10. That fact—which many of the potential witnesses have con. . -. sworn interviews—strongly indicates that Mr. Epstein specifically intended to preclude anyone ' IIII from giving him a massage. That fact is confirmed by, among other things, Ms. testified that "he likes the girls that are between the ages of like 18 and 20 . . ." Tr. at 12, Exhibit 12. Many of the young women who were aged 16 and 17 visited Mr. Epstein's residence only once or twice, and the evidence strongly shows that they lied to Mr. Epstein about their age. And while a few of those aged 16 and 17 visited Mr. Epstein's residence more frequently, and the government claims that Mr. Epstein either knew or should have known their true age, there is not a shred of evidence that Mr. Epstein (or anyone associated with Mr. Epstein) ever attempted to persuade, induce, entice, or coerce them over the telephone (or over the Internet). See infra part II.A. Two girls, Gonzalez and , were 14 or 15 at the time the met Mr. Epstein. Given that each has brought a civil lawsuit against Mr. Epstein, with Ms. and her family seeking $50 million from Mr. Epstein, their testimony against Mr. Epstem is per se suspect. The lawyer representing the "victims" made a public statement conceding that they had lied about their ages and then dismissed this critical fact. See Herman Public Statement, Exhibit 16. A copy of each lawsuit is appended as Exhibits 6 and 7. But, despite their ob "incentive to harm Mr. Epstein, their to actually confirms his innocence. Ms. for instance, has testified that Ms. who introduced her to Mr. Epstein—express y o her to lie to Mr. Epstein about her age: Q: And Hayley told you that if you weren't 18 Epstein wouldn't let you into his house, right? A: That's - - yes, yes. Tr. (deposition) at 32, Exhibit 3. Q: You didn't want Mr. Epstein to know that you were lying about your age, right? A: Correct. Q: You didn't want Mr. Epstein to know that you were not 18 yet, right? EFTA00225894

• • • Page 15 Moreover, it is black-letter law that the mens rea must exist when the actus reus is committed; the two must coincide in time. Actus non facit reum, nisi mens sit rea: the act alone does not amount to guilt; it must be accompanied by a guilty mind. In short, the Government must prove that Mr. Epstein had the specific intent to target a known minor at the time of the call. See Offense Instructions 80, Eleventh Circuit Pattern Jury Instructions-Criminal, (2003), see supra part H.A.I. ("The Defendant can be found guilty of that offense only if . . . the Defendant believed that such individual was less than eighteen (18) years of age ...') Based on all of the evidence collected during a 15-month State investigation and a successive 15-month federal investigation, it is clear that the conduct in this case is exclusively a matter for State prosecution 7 es that the ma. rit of the ses—suc and rg, Cheri e, were 18 or o er. s. Ms. Ms. Brabon, and Ms. each gave reco ed interviews to the State in w is each attested that they were over 18 on every occasion they went to Mr. Epstein's residence. The dates reflected in the messa e pads of incoming calls to Mr. Epstein's home as well as cellular toll records of phone confum this fact. Other masseuses, who were actually 16 or 17 years old, have in sworn, taped interviews with both federal and State authorities admitted that they represented themselves to Mr. ew aned d ' cludpilz tlJyenn coinfer at i iii ii these women either told Mr. Epstein at ey were 18 or to o ers who they were introducing to Mr. Epstein to tell him that they were 18. For instance, Ms. introduced several 16 or 17 year-old women to Mr. Epstein, and, as confirmed in their sworn testimony and Ms. own, she routinely advised each to tell Mr. Epstein that they were 18. See Ro 2 at 6, 8, 12, 22, 45, Exhibit 12 ("most of the girls lied when they go in there . . ."). Ms. introduced others, many over 18, some under 18, to Mr. Epstein. She testified in a sworn interview conducted by the United States Attorney's Office and FBI that: "these girls that I brought, I know that they were 18 or 19 or 20. And the girls that I didn't know an 't know if they were lying or not, I would say make sure that you tell him you're 18." Tr. at 22, Exhibit 2. These witnesses' testimony that they commonly instructed their friends to deceive Mr. Epstein about their age in order to gain admittance to his house will make it exceptionally difficult to prove that Mr. Epstein intended to 7 The defense is in possession of both police reports and transcripts of taped interviews conducted largely by Detective Recarey of the Palm Beach police. These transcripts were not intended to generate exculpatory testimony; instead they are replete with leading and suggestive questioning designed to elicit accusations inculpatory to Epstein. Nonetheless, when examined in the light of the requisites of federal law, they are filled with facts that help demonstrate that a federal prosecution is unwarranted. EFTA00225895

• Page 14 Internet chatroom or email. Congress's target was online predators who lure unsuspecting minors into dangerous and unlawful sexual activity—a crime that is difficult to monitor or regulate. Subjecting Mr. Epstein's conduct (and apparent lack of use of the Internet, email, or phone) to § 2422(b)'s harsh mandatory minimum sentence is a far cry from what Congress intended. 3. Inability To Satisfy Elements As discussed above, § 2422(b) makes it a crime for a defendant (1) to use an instrumentality of interstate commerce (2) to knowingly (3) induce or entice, or attempt to induce or entice (4) a minor (5) to engage in unlawful sexual activity. The Government will have great difficulty establishing that any of these elements is satisfied in this case, let alone all of them. a. Mr. Epstein Did Not Use An Interstate Instrumentality. • • As set forth above, the actus reus of § 2422(b) is the use of an interstate facility in order to persuade, induce, entice, or coerce a finor to engage in a proscribed sexual act—rather than the sexual act itself. See United States Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004) ("The underlying criminal conduct Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself.'). But that element plainly is not satisfied here, because Mr. Epstein did not himself use an interstate facility to contact any of the women—let alone use an interstate facility to persuade or induce a minor to engage in unlawful sexual activity. That fact alone takes this case well outside the heartland of a § 2422(6) offense.6 See generally, Table of § 2422 Cases, Exhibit 28. b. Mr. Epstein Did Not Target Minors. § 2422(b) er requires that the defendant specifically intended to target a minor. See, e.g, United States Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) ("[T]o prove an attempt the government must t prove that [defendant], using the internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful sex.") (emphasis added). After all, § 2422(b) expressly requires that the crime be committed "knowingly," and that requisite mental element for each element o the crime. United States X-Citement Video, Inc., c i States Root, 296 F.3d 1222, 1227 (11th tr. 2002); United States 228 F.3d 637, 638- 513 Uf. 64, 68-69 (1994); United States Meek, 366 F.3d 705, Cir. 2004); United 639 (6th Cir. 2000). 6 Mr. Epstcin's assistants maintain his schedule, and he often is not involved at all. See infra part H.A.3.d. EFTA00225896

• Page 13 already in place or even merely intended; the only requirement is that a phone call be made at any point "for the purposes of executing" the fraud. It does not matter whether the phone call is made before, during, or after the fraud itself. The use of the telephone serves only to bring the fraud—the primary criminal act—within the purview of federal law. Without the phone call that uses the interstate wires, the fraud might well be merely a State crime. That is clearly not the case under § 2422. 2. Legislative History • • The legislative history of § 2422(b) confirms that it was not intended to apply to cases like this one. Congress enacted § 2422(b) as part of the Telecommunications Act of 1996 to combat sexual predators who solicit minors over the Internet. See H.R. Conf. Rep. No. 104-458, at 193 (1996) (expressing "the need for Congress to tie effective action to protect children and families from online harm"); see also United States Searcy, 418 F.3d 1193, 1197 (11th Cir. 2005). Congress at that time recognized that the Internet allows anonymous predators to target children anywhere in the world, presenting unique jurisdictional problems that local law enforcement—and the existing federal statute—was ill-equipped to address. To that end, Congress purposefully targeted the use of interstate instrumentalities for the first time. Indeed, prior to 1996, § 2422 made no such provision. It simply provided that: Whoever knowingly persuades, induces, entices or coerces any individual to travel in interstate or foreign commerce . . . to engage in prostitution or any [criminal] sexual activity .. . shall be fined under this title or imprisoned not more than five years, or both. As a result, § 2422 at that time criminalized only knowing inducement to travel across interstate or international borders—which obviously did nothing to address the problem of Internet predators, whose persuasion or inducement might have nothing to do with persuading a prospective victim to engage in interstate or foreign travel, but which unquestionably corrupts an interstate instrumentality—the wires. Accordingly, when Congress added § 2422(6), it borrowed the language about knowing persuasion from the prior statute, and—given the growth of the Internet—then criminalized the use of an interstate facility to knowingly persuade a minor to engage in otherwise unlawful conduct, whether or not the minor crosses State lines. Congress, in short, was aiming at the use of interstate facilities (like the Internet) to recruit minors into unlawful sexual activity. In contrast to the mail and wire elements of the mail and wire fraud statutes, that element is central, not tangential, to Congress's clear intent in enacting § 2422(b). Finally, it is important to remember that § 2422(b) now carries a 10-year mandatory minimum sentence. Congress was addressing very serious crimes of substantial federal interest; it was not federalizing a broad swath of essentially local sexual misconduct whenever a minor was involved and there was some tangential use of an interstate facility. That is why § 2422(b) must be limited to situations where a person purposefully and knowingly communicates with a minor by means of an instrumentality of interstate commerce, generally beginning with an EFTA00225897

• • • Page 12 one believed to be a minor if the charge is attempt) to engage in illegal sexual activities at the time of the use of the interstate facility—and the inducement must in fact occur during the use itself. If the defendant forms the intent to induce criminal sexual activity at some point after such use, or if the defendant does not actually induce during the use, § 2422(b) does not apply. The Eleventh Circuit's Pattern Jury Instructions recognize as much. According to those Instructions, the Government must prove beyond a reasonable doubt: First: That the Defendant knowingly used [the mail][a computer][describe other interstate facility as alleged in indictment] to attempt to persuade, induce, entice [or coerce] an individual under the age of eighteen (18) to engage in sexual activity, as charged; Second: That the Defendant believed that such individual was less than eighteen (18) years of age; Third: That if the sexual activity had occurred, the Defendant could have been charged with a criminal offense under the law of [identify the state]; and Fourth: That the Defendant acted knowingly and willfully. Offense Instructions 80, Eleventh Circuit Pattern Jury Instructions-Criminal (2003). These instructions thus make clear that the Government must prove that the defendant used the interstate facility to knowingly persuade or induce or entice or coerce a known minor to engage in illegal sexual activity; if the persuasion or inducement is not made over the phone or via Internet, the defendant cannot be convicted under § 2422(b). In this case, phone calls allegedly made to schedule a massage for Mr. Epstein did not violate § 2422(6). While Mr. Epstein later may have persuaded a minor to engage in unlawful activity during the massage, that does not work retroactively to render the earlier phone call an offense under § 2422(b). In that respect, § 2422(b) is distinguishable from the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, where there is no temporal link between the use of the mail or wires and the scheme to defraud. With wire fraud, for instance, the essence of the crime is the underlying fraud itself: activity that constitutes fraud under State law becomes a federal crime when the defendant takes the additional step of using the wires at any point in the course of the underlying fraud, or even after the principal fraudulent conduct has been completed. But the fraud itself need not be undertaken or executed over the phone or wires; those transmissions are incidental. Moreover, the wire fraud statute does not tie the wire communication (i.e., the phone call) in any temporal way to the scheme to defraud. To the contrary, that relationship is deliberately loose in order to encompass the broader fraudulent activity. The fraud scheme can be either EFTA00225898

• Page 11 facts would be entirely unprecedented. There is simply no reason for the Department to strain these statutes to achieve that result. This is a State and local matter, and State authorities have actively, competently, and thoroughly addressed it. A. 18 U.S.C. § 2422(b) Section 2422(b) reads as follows: Whoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than [5] years or for life. (Emphasis added.)5 By its plain text, the statute thus applies only to those who "use" the "means of interstate ... commerce" to "knowingly" convince a minor to engage in prohibited sexual conduct. That is not what happened here. • • 1. Plain Language § 2422(b) criminalizes the "us[e]" of a facility or means of interstate commerce in order to induce otherwise prohibited sexual conduct, but not the sexual conduct itself. In other words, the statute criminalizes communication over the phone or Internet—not sexual contact—by unambiguously requiring that the facility or means of interstate corerce be used to induce sexual activity that is independently n . See United States Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004); United States 165 Fed. Appx. 586, 588 (10th Cir. 2006). That requirement is not merely a jurisdictional hook to federalize State crimes. Rather, using the means of interstate commerce to induce (or attempt to induce) a minor to engage in otherwise prohibited sexual conduct is itself the crime. By its plain text, then, § 2422(b) requires the government to prove beyond a reasonable doubt that the defendant engaged in conununication 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. Put differently, the caller must use the phone to induce a minor (or 5 During the events at issue, § 2422(b) carried a mandatory five-year period of incarceration. Congress raised the mandatory minimum to ten years in the Adam Walsh Child Protection and Safety Act of 2006. EFTA00225899

• Page 10 Finally, as will be explained, this case does not involve the quintessential conduct present in prosecutions under the commercial sexual enterprise statue: there is no trafficking; no "force, fraud or coercion"; no threats; no sexual servitude; no financial venture; no profit from a financial venture; no forced work in the commercial sex industry; and no transporting of children from underdeveloped countries to the United States or even within the United States across state lines. Nor was there any conduct, whatsoever, which could be considered so extremely abusive or violent, that an expansion of the statutes beyond their intended purpose would be warranted. In short, the facts of this case fail to support a charge under any of the statutes identified. At its worst, the conduct violates Florida State law and should be prosecuted as such—which it has been, by the State authorities. II. STATUTORY ANALYSIS • • Federal prosecutors have identified three statutes under which Mr. Epstein might be charged: 18 U.S.C. §§ 1591, 2422, and 2423. None of these statutes applies to this matter. Instead, as their plain text and history indicate, these statutes were designed to address problems that are truly national and international in scope: human trafficking in § 1591; telephone or Internet sexual predation in § 2422; and sex tourism in § 2423. Unlike the alleged conduct at issue here, those problems unquestionably present multi-jurisdictional problems that States and localities cannot confront effectively on their own. But Mr. Epstein's conduct was purely local in nature, and the State of Florida and Palm Beach County are effectively prosecuting and punishing that conduct. Any attempt to federalize Mr. Epstein's case would require prosecutors to stretch these statutes far beyond prior precedent—and well beyond their text and purposes. Indeed, Mr. Epstein's alleged conduct involves quintessentially State and local offenses that never before have been thought to fall within the purview of federal law. Mr. Epstein's alleged conduct was non-violent—there was absolutely no force, coercion or fraud. Mr. Epstein's alleged conduct occurred at his home—he did not travel to other locations (much less cross State lines) for surreptitious meetings with known minors. Mr. Epstein's alleged conduct did not involve the use or reliance on the Internet, email, or on faceless chat room meetings. No drugs were involved. Mr. Epstein did not profit from any underage sex. And the young women's own testimony confirms that their alleged meetings with Mr. Epstein lacked any semblance of violence or predation. Most of the women were 18 or over, and those minors who have testified acknowledge that they falsely represented themselves to be at least 18. Many of the young women telephoned Mr. Epstein's residence and left messages on seized documents seeking to give massages; some even came to Mr. Epstein's residence bringing friends or their boyfriends. None was explicitly induced or persuaded to have illegal sex during phone conversations, as federal law would require in order to convert this State-law solicitation case into a federal matter. Finally, we have examined the hundreds of federal prosecutions under §§ 2422, 1591 and 2423. See Table of § 2422 Cases, Exhibit 28; Table of § 1591 Cases, Exhibit 29; Table of § 2423 Cases, Exhibit 30. Not one resembles this case; a federal prosecution on these alleged EFTA00225900

• Page 9 Exhibit 8 (the following entries are also included: "was wondering if she can work. . ." and "I'd like to work for him today'). Again, these facts do not support a federal case. • • The conduct of is likewise illustrative of why this is not a federal case. In the same way Ms. was referred to Mr. Epstein and brought to his home wi ving been introduced or acquainted with Mr. Epstein or his assistants in any manner, Ms. too, d her to lie to Mr. Epstein about her age, Exhibit 5A. Ms. too, admits that she lied to Mr. Epstein about her age. And, Ms. like so many others, called Mr. Epstein's residence seeking the opportunity to provide Mr. Epstein a massage and See Message Book Entries, Exhibit 8. F. Ms. element of coercion or force involved. also, you know, reassured if I wasn't comforts which she did. was referred bysomeone el so Tr. g messages such as: "Please call her." confirmed that there was absolutely no Tr. at 9-10, 13, Exhibit 5A ("And like I said, be le with anything, then just tell him . ."). And, there are other young women who left similar messages (see Message Book Entries, Exhibit 8); who were introduced to li. -tein in a similar fashion see !treroa Tr. at 2-3, Exhibit 23; . Tr. at 3, E ; Tr. at 4, 6 it 20; Tr. at bit 22; Licata Tr. 3, Exhibit 11; Tr. at 2-3, Exhibit 24 Tr. at 3, Exhibit 25; lia ili Tr. at 3, Exhibit 13; Thomas Tr. at 3, Exhibit 26); who visited the residence only on or to that were unknown to Mr. Epstein and his staff (see Thomas Tr. at 10, Exhibit 26; Tr. at 11, Exhibit 11- Tr. at 5-6, Exhibit 4; = Tr. at bit 27); who only performed w iz (see Tr. at 4, 5, 6-7, 9, 11, Exhibit 13; Tr. at 4, 5, 6, 10, Exhibit 24; for that matter (id.• see enerally, Tr., Exhibit 20; Tr., E . . 7; Police Report at Tr. at 7, Exhibit 25); who never in unlawful sexual activity or any sexual activity 78, Exhibit 17; Tr., Exhibit 24, Thomas Tr., Exhibit 26 and Tr., Exhibit 2); or, and counse e other ta l' about their ages (see t 38-39, Exhibit 10; Tr. at 16, Exhibit 4; Tr. at 6, 8, 22, 45, Exhibit 2, Tr. 13, Exhibit 11; Tr. at 12, Exhibit 12; Tr. at 14-15, Exhibit 14). These facts do not support a federal conviction. There was no use of the phones to lure, induce, entice, persuade or coerce another to engage in unlawful sexual activity. There was no travel for the purpose of engaging in such activity. And, no commercial enterprise from which Mr. Epstein derived a financial benefit. To conclude that merely scheduling a massage under these circumstances, or returning an uninitiated call would support a federal prosecution under § 2242 stands in stark contrast to that which would support a conviction under the statute. Nor do the facts of this case meet the requirements for a conviction under 18 U.S.C. § 2423(b). As discussed in greater detail below, the amount of time Mr. Epstein spent at his home in Florida, and the extensive list of his Florida-based activities clearly undermines the contention that he was a New York resident, government filing also corroborate this fact, and defeats the notion that his purpose in traveling to Florida was to engage in illicit sexual conduct. On the contrary, Mr. Epstein returned to Florida to engage in the routine activities of daily living. EFTA00225901

• Page 8 In many cases, the young women themselves, without any prompting by Mr. Epstein or his assistants, would leave a message seeking to visit Mr. Epstein at his home. See, e.g., Tr. at 6, Exhibit 21; see also Message Book Entries, Exhibit 8. The proactive step of call, request to provide a massage is the antithesis of having been lured, induced, enticed, persuaded or coerced. It demonstrates that these women sought to engage in the conduct alleged, even assuming these women had been to the house before and engaged in such activities. Indeed, as word of the opportulikirad amongst groups a ds, others sought out the opportunity through fri Tr. at 15, Exhibit 14; Tr. at 45, 57, Exhibit 2; Hall Tr. at 22, Exhibit 19; Tr. at 13, Exhibit 22; Police Report at 24, Exhibit 17. Finally, many massages involved conduct which even if engaged in with an underage masseuse is not proscribed by federal law, either because the masseuses were of age and the calls thus resulted in conduct between two consenting adults; or because conduct with underage masseuses only involved topless massages, massages in undergarments, or naked massages. These points are made over and over in the record before you, as the following sampling illustrates: • MOM, the youngest woman involved in this case, and prosecution, came to Mr. Epstein's house by way of who swore under oath n wanted women 18 and 20 to perform massages. It was who approached person), not Mr. Epstein and not one of Mr. pstem s assistants. And, it ho spoke to Mr. Epstein's assistant to arrange an appointment for Ms. o per orm a massage. Neither Mr. Epstein nor his assistants were given information u Gonzalez. Nor were details of the discussed over the phone. The appointmen was simply scheduled for a "friend" of , presumably one who met the directive of being between 18 and 20 years of age, to prow e . pstein with a massage. The only fact about Ms. that Mr. Epstein or any assistant knew was her name (but not age), and they learned of only after she first visited Mr. Epstein's home. Index not until the State inv was underage. Ms. that it became known to Mr. Epstein that Ms. cons elaborate back story to make her claim o t 8 credible and stuck to Ms. provided one massage and never returned to Mr. Epstein's residence. Thus, there is no factual asis from which to claim that any federal law was broken here. The relevant circumstances of different, but they lead to the same cone usion. obtained from Mr. Epstein's residence, as a resu of a questionable search warrant, is telling. Ms. involved in this case, actively sought to participate in the activities in which she engaged with Mr. Epstein. She, like many others, did so by making unsolicited telephone calls to Mr. Epstein's assistants looking for a chance to provide Mr. Epstein with a massage. Ms. like others, left messages to the effect: "do you have work for me." Message Boo Andriano's encounters with Mr. Epstein are A review of the phone Message Book Entries f a questionable seizure during the execution , like many of the other young women EFTA00225902

• • • Page 7 Under such circumstances, it cannot be reasonably said that when Mr. Epstein purportedly caused his assistants to arrange the massage appointments (directly or indirectly), he did so with the intent to lure, induce, entice, persuade, or coerce unlawful sexual activity with minors. Nor can it be said that the scheduling calls to "repeat" masseuses can be considered an inducement based on claims that many of the young women previously engaged in unlawful sexual activity with Mr. Epstein. Not every call, even to "repeat" masseuses, resulted in unlawful sexual activity. And as such, calling to schedule an appointment, without more, is not tantamount to luring, inducing, enticing, persuading, or coercing someone to engage in such activity. In this regard, to the extent a masseuse visited Mr. Epstein's home on more than one occasion, there is no evidence that Mr. Epstein or the masseuse knew what would occur during the next massage, let alone that they would engage in unlawful sexual activity. As many stated in sworn statements: during the course of a massage Mr. Epstein would at times request and/or offer them additional money to engage in activities in which they had never previously and some of them on e occasions would accept while others would not. See, e.g., Tr. i hibit 18; Tr. 1 at 6, 7, 20, 21, 24-25, Exhibit 19; la Tr. at 9, 18, x 20; Tr. at 4, ibit 13. Further, no two massages with e same woman could be predicted to be the same. Thus, a call arranging a second or third visit from the same woman did not ever mean, implicitly or explicitly, "more of the same". Further, Mr. Epstein would not ask his assistants to schedule a particular masseuse for a particular visit, let alone an underage masseuse; rather, he either asked his assistants to schedule massages while he was in Palm Beach or, more regularly, the assistants took it upon themselves to schedule the appointments. As a result, Mr. Epstein never knew who the individual would be until after the massages were scheduled. He requested that the m be at least 18 years of age, and expected them to be so (and in fact most were). See Tr. at 12, Exhibit 12; ill Tr. at 13, Exhibit 11; Gonzalez Tr. at 38-39, Exhibit 10; r. at 13, 22, Exhibit 2; Tr. at 9, 22, 23, Exhibit 5A; and Tr. at 16-17, 18, E i 4. Specifically, there is no evidence that Mr. Epstein targeted mino hornom we d of age (e.g., Tory Joanna Sjoberg, an determine w o was avai a e an wished to come to Mr. Epstein's rest • enc . . . . ' de a massage. This fact is readily confirmed by the assistant's toll records. Mr. Epstein's assistant. The decision of whom to call was not guided by instructions from Mr. Epstein, had nothing to do with the age of the masseuse, nothing to do with the identity of the masseuse, and most particularlithing to do with the conduct that would occur (except, of course, a massage). See, e.g., Tr. at 14-16. Exhibit 5A. The identity of the individual who ultimately provided a massage was simply a matter of who expressed an interest, or was brought by a friend. In the latter circumstance, neither Mr. Epstein nor his assistants knew who the masseuse would be, other than by name (if even by name), let alone knew her age or the con w ich she and Mr. Epstei ultimately engage on any particular occasion. See, e.g., Tr. at 3, 19, nit Exhibit 10; Tr. at 19-20, 23-24, Exhibit 2; see also Message Book E "bit 8. EFTA00225903

• Page 6 I. BACKGROUND • • This case involves conduct that, although prosecutable under State law (and indeed is being prosecuted under State law), will not support a federal conviction. The facts simply do not meet the elements of any federal offense, and in particular not those required for a prosecution under 18 U.S.0 § 2422(b). This case is not about using the telephone, the Internet, or any other facility of interstate commerce to lure, induce, entice, persuade or coerce unsuspecting women to Mr. Epstein's residence to engage in unlawful sexual activity. It is not about traveling in interstate commerce to engage in unlawful sexual activity. Nor does it involve a commercial sex enterprise. It is certainly not the quintessential sting case involving children. Instead, this case is about friends who spoke to friends (in person) and brought them to Mr. Epstein's residence to perform massages on Mr. Epstein. To the extent sexual activity prohibited by State law occurred (which we deny), any inducement, enticement, and/or persuasion necessary to make out a violation of federal law took place during a face-to-face encounter and involved spur-of-the-moment decisions. It is, furthermore, a case about young women who sought to provide Mr. Epstein massages either by calling his assistants or through friends who they knew could introduce them to Mr. Epstein. It is a case where, in instance after instance, these young women have testified that they lied or otherwise concealed their ages and counseled others to do the same. It is a case in which Mr. Epstein and his assistants routinely were unaware of the identities of many of these young women before they arrived and, in fact, some visited Mr. Epstein's home only once. Finally, it is a case about purely local activity, involving local actors, and affecting local interests and thus, should be handled by local authorities. The suggestion that calling to schedule massage appointments satisfies the elements of an offense under 18 U.S.C. § 2242 is belied by the evidence in this case, which establishes (i) that most of the masseuses were over 18, and that they were scheduled depending on their availability, and not on any instructions from Mr. Epstein either as to a particular young woman or a particular set of qualifications (e.g., underage); (ii) Mr. Epstein would not have known at the time the phone call was made that any particular masseuse was being scheduled and therefore that any underage masseuse was being scheduled; (iii) Mr. Epstein's "directive" to all the women was to refer only other young women who were at least 18 years of age; (iv) Mr. Epstein would not know the identities of the masseuses until after they were scheduled and in many instances until they arrived, and, therefore, under no circumstances would he have known their ages; ( there were many occasions where the masseuse who was called and agreed to visit (or herse f called and asked to visit) was not the young woman who actually provided the massage, but rather, a friend; (vi) decisions as to the type of conduct Mr. Epstein would request that the young women engage in during any particular massage were made in the massage room, while the massage was being conducted, in a face-to-face encounter—never in advance and never over the phone; and (vii) many appointments resulted in massages that did not involve unlawful sexual activity, where the masseuses were of age or no sexual activity was engaged in at all, or even no massages were performed. These facts are repeatedly corroborated by the actual transcripts. EFTA00225904

• Page 5 themselves) negates the plat , p uti n.4 The consistent resentations of witnesses such as Tatum and and the civil complainants and their attorneys, confirm the following key points: rst, ere was no telephonic communication that met the requirements of § 2422(b); second, the underage women who visited Mr. Epstein lied about their age in order to gain admittance into his home; third, any women who brought their underage fiends to Mr. Epstein counseled them to lie about their ages in order to gain admittance into his home; fourth, there was no routine or habit suggesting an intent to transform a massage into an illegal sexual act. Finally, there was no force, coercion, fraud, violence, drugs, or even alcohol present in connection with Mr. Epstein's encounters with these women. Mr. Epstein's counsel believe that further depositions, sworn statements, or interviews would, if permitted to occur prior to a final determination on the viability of any federal prosecution, would establish that the facts simply do not fit within any proper construction of any of the federal criminal statutes under consideration. • 4 First Assistant United States Attorney Jeffrey Sloman sought to preclude Mr. Epstein or his agents from communicating with the alleged "victims." See November 5, 2007 Letter from J. Sloman, Exhibit I. Due to established state procedures and following the initiation of the civil lawsuits, Mr. Epstein's counsel was able to take limited discovery of certain women in this matter. • EFTA00225905

• • • Page 4 at least one of these women that she was in fact ' "m" of federal crimes when she herself si tedly confirmed that she was not. See, e.g. Tr. at 9-12, Exhibit SA; Tr. at 7, Exhibit . Tr. at 10, 19-22, 31, 57-58, Exhibit 2; Beyond that, because the United States Attorney's Office had not, and still has not, made any effort to coordinate with its State counterpart about the case. Thus, the Deferred Prosecution Agreement put Mr. Epstein in the extraordinary position of requiring him, not the federal authorities, to convince the State Attorney's Office to impose a more severe charge and punishment than the State Attorney's Office (and the State grand jury) had determined to be appropriate. As a result, Mr. Epstein, and the United States Attorney's Office—which has insisted that its prosecutorial decision in this case was mandated by policy decisions in Washington, D.C.— has now asked the Department of Justice to review whether a federal prosecution is warranted. Respectfully, a federal prosecution of this matter should be declined because (1) it is not supported by the facts; (2) it would require an unprecedented interpretation of the federal statutes in question; (3) it would unnecessarily result in an expansion of federal powers into an area properly reserved to the States; and (4) it would require an unequal application of the law. We urge the Department of Justice to review the transcript and then all of the new evidence in this case. On February 20, 2008, the alleged victim upon which this entire investigation was initially launched3—was epos nder oath, Ms. reiterated that she " n her mother's grave" that she and Mr. Epstein did not engage in sex of any kind. See Tr. (Deposition) at 24, Exhibit 3. She also reaffirmed that she lied to Mr. Epstein about er age because it was her understan if she was not over 18, Mr. Epstein would not let her in his house. See id. at 32. Ms. further repeatedly explained that prior to the time she went to Mr. Epstein's house (she went ere only once), nobody ever tried to coerce her to engage in sexual activity with Mr. Epstein, not over the Internet, not over the telephone, not at all, period. See id at 31. No federal prosecution should proceed on these facts. Among the attachments appended to this submission are several new depositions and sworn statements of persons whom the prosecutors have alleged are "victims" of Mr. Epstein's conduct, as well as copies of recent civil lawsuits, several for $50 million dollars, brought by the victim/witness-claimants. Each of these attachments (even the allegations in the civil complaints 3 indicates that the originating complainants in the investigation were father and stepmother. See Police Report a bit 17. Notably, the o ice epo or the search warrant affidavit) omits are the fact that both Mr. and Mrs. Gonzalez have prior federal felony fraud convictions. EFTA00225906

• Page 3 • • The intentional release of the police reports to the press not only shaped how the prosecutors in the United States Attorney's Office viewed the case, but more importantly, influenced many of the witnesses who would later be interviewed by the FBI. Indeed, multiple civil lawsuits have recently been filed against Mr. Epstein (many by the former partner of First Assistant United States Attorney Jeffrey Sloman); and those suits contain word-for-word narratives taken directly from the publicly released police report, narratives that are factually inaccurate when compared to the actual transcripts. Many of Mr. Epstein's alleged victims and other witnesses have recently given sworn statements establishing that (i) Mr. Epstein was only interested in women over 18; (ii) they lied and told Mr. Epstein they were 18 when they were not; (iii) there was no interstate travel; (iv) there was no use of the Internet or telephone to communicate with Mr. Epstein; (I) there was no inducement over any instrumentality of interstate commerce; (vi) there was no force or coercion by anyone. See Herman Public Statement, Exhibit 16. The facts—as opposed to the deeply flawed press reports—were carefully assessed by experienced State prosecutors who aggressively enforce State criminal laws. Following an extensive 15-month State investigation by the Florida State Attorney's Office in Palm Beach, led by the chief of the Sex Crimes Division, Mr. Epstein was indicted by a State Grand Jury on a single felony count of solicitation of prostitution. During the investigation, the State prosecutor exhaustively reviewed the evidence, met face-to-face with many of the alleged victims, considered their credibility—or lack thereof—and considered the extent of exculpatory evidence, including a psychosexual evaluation of Mr. Epstein and a polygraph examination demonstrating that Mr. Epstein genuinely believed at the time of the alleged conduct that the State's key witness was over the age of 18. Then, after months of negotiations, the State reached what it believed was an appropriate resolution of the case. Importantly, this resolution was consistent with that of cases involving other defendants who had engaged in similar conduct. Implementation of the State resolution of the case was held in abeyance, however, due to the unexpected commencement of the successive federal criminal investigation. After many months of attempting, to no avail, to fit this case into its vision of what it initially believed (based upon the inaccurate police reports) to be a wide-spread commercial trafficking ring targeting minors, the United States Attorney's Office for the Southern District of Florida agreed to defer prosecution to the State. Notably, however, the Agreement also contained many unorthodox requirements, including requiring Mr. Epstein not only to blindly agree to pay an undisclosed list of alleged victims a minimum of $150,000 each, but also to pay for an attorney to represent such unidentified victims if any chose to bring civil litigation against him. The United States Attorney's Office also represented at the time the Agreement was signed that it had identified, on a list, up to 40 alleged minor victims of federal crimes, and to bolster the claim that they were minors suggested that they required a guardian ad litem. This is all untrue. In fact, it was later firmly established that only one girl on the list was still a minor, and the other women on the list, after examining their testimony, could in no way qualify as "victims." There is now also a sworn statement to the effect that the FBI attempted to persuade EFTA00225907

• Page 2 • • masturbation on the part of Mr. Epstein. On other occasions, no sexual activity would occur at all. There was no particular pattern or practice as to which masseuse would be scheduled on any particular day—if at all—or whether any sexual activity might occur. Indeed, many times Mr. Epstein would n w which masseuse his assistants had scheduled until that individual showed up. See Toll Records, Exhibit 9. Mr. Epstein requested the individual be over the age of 18. e vast majority of the masseuses were in fact 18 or over, and the testimony available to us in this case demonstrates that those and of 18 have admitted to rically lying to Tr. at 9, Exhi ern about their age. See Tr. at 38-39, Exhibit 10. Tr. at 6, 8, 22, bit r. 13, Exhibit 11; Tr. at 12, Exhibit 12; r. at 5, Exhibit 13; Tr. at - , Exhibit 14. In light of these facts, the case against Mr. Epstein lacks any of the hallmarks that typify federal prosecution under the identified statutes. Not only did all of the conduct take place in Mr. Epstein's home in Palm Beach, there was no commercial for-profit enterprise; no interstate component; no use by Mr. Epstein of an instrumentality of interstate commerce; no violence; no force; no alcohol; no drugs; and no child pornography. An objective review of the facts should make clear that this is not a federal case. Indeed, Mr. Epstein's counsel have reviewed every case involving 18 U.S.C. §§ 2422(6), 2423(b), and 1591 and have not found a single case suggesting that federal prosecution can be brought under these facts. Instead, as the State Attorney's Office determined, and still believes, Mr. Epstein was a customer, a "John," for whom prosecutions are best left to the State to address. Notably, the Department of Justice has repeatedly recognized the predominant State role in such prosecutions, even as recently as November 9, 2007.2 Besides lacking the facts necessary to support a federal prosecution, the federal prosecutors responsible for this case have employed a process rife with prosecutorial misconduct, abuse and profound lack of respect for the State Attorneys of Florida. First, following the imposition of a State charge against Mr. Epstein, the local police chief who disagreed with the decision of both the State Attorney's Office and the Grand Jury, took actions that undermined the credibility of everything that followed in the federal investigation; he referred the matter to the FBI and at the same time released the police reports containing raw allegations to the press. Significantly, these reports, when compared to the actual transcripts of sworn taped interviews of witnesses, are demonstrably inaccurate. They contain both glaring misquotes and omissions offact. 2 See November 9, 2007 DOJ letter to the Judiciary, Exhibit 15 ("Pirostitution-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 . . . the 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."). EFTA00225908

• • • SUBMISSION TO THE UNITED STATES DEPARTMENT OF JUSTICE IN THE MATTER OF JEFFREY E. EPSTEIN This submission addresses (i) whether existing federal statutes, 18 U.S.C. §§ 2422(b), 1591 and 2423, apply to the conduct at issue; and (ii) whether the circumstances of this case overcome the significant hurdles established by the Department's Petite Policy against dual and successive prosecution. As explained below, existing statutes do not apply to Mr. Epstein's conduct, and the Petite Policy's bar against successive prosecution has not been surmounted. EXECUTIVE SUMMARY Jeffrey Epstein, a successful self-made businessman with no prior criminal history, should not be prosecuted federally for conduct that amounts to, at most, the solicitation of prostitution. To prosecute Mr. Epstein federally based upon the facts presented by this case would be an unprecedented exercise of federal power and use of federal resources. It would effectively represent the adherence to a novel legal theory never before sanctioned by federal law. As described more fully below, Mr. Epstein did not engage in any conduct covered by any of the three federal criminal statutes being considered for federal prosecution, namely 18 U.S.C. §§ 2422(b), 2423(6), and 1591. Moreover, the new evidence obtained through the use of a State discovery statute and in connection with the civil lawsuits that have been filed confirms that federal involvement in this matter is inappropriate. We highlight this evidence for you because it has never been reviewed by the federal or state prosecutors overseeing this matter. See Exhibits 2-7. Mr. Epstein has had a home in Palm Beach, Florida for the past 20 years. As a routine part of Mr. Epstein's activities while at his residence in Florida, which included attending to business, socializing, visiting his elderly mother, and attending to doctors' appointments, Mr. Epstein often had masseuses come to his residence to provide him massages following his exercise. Mr. Epstein did not personally schedule the massage appointments or communicate with the women who provided massages to him, either over the telephone or otherwise, prior to the time they arrived at his residence. Rather, all these appointments were scheduled by his assistants. Often it was the masseuse who contacted Mr. Epstein's assistant inquiring about Mr. Epstein's availability rather than vice versa, the message pads reflecting incoming calls to Mr. Epstein's house, which were improperly seized during the execution of a State search warrant (actions for which the State later apologized) are replete with requests by masseuses to return to Mr. Epstein's residence to provide massages.' See Message Book Entries, Exhibit 8. The majority of the massages were just that—massages and nothing else. Mr. Epstein would routinely 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- We are including some but not all examples of this pattern of behavior but are open to sharing more examples upon request. EFTA00225909

KIRKLAND & ELLIS LLP • March 28, 2008 Page 5 We hope that your office and the Department will consider all of the evidence included in the submission and exhibits we put forth today, as well as the areas of concerns on which we did not focus extensively, because as we believe that all aspects of reconsideration in this case fall squarely within the overseeing responsibilities of the Department of Justice. We greatly appreciate your time and consideration of this matter. Sincerely, 2Le 12,5) Kenneth W. Starr • • EFTA00225910

KIRKLAND & ELLIS LLP • March 28, 2008 Page 4 • Clear violations of ethics rules by discussing specific details of the case and negotiations with a New York Times Reporter; and • The relationship between the law firm representing several of the alleged victims in civil suits against Mr. Epstein and the First Assistant United States Attorney from the Southern District of Florida. We believe these concerns are significant and that they should have bearing on the reliability and integrity of the investigation. We respectfully reserve our right to raise our concerns in the future. • • Furthermore, our submission is guided by an overarching principle: Federal authority should not be stretched to override the considered judgment of a duly elected state official who, guided by a highly professional prosecutorial staff, carefully assessed the actual facts (not a sensationalized, fictionalized version of them), applicable state law, and fundamental principles of fair treatment as embodied in the practical experience of that highly respected State's Attorney's Office. A career state prosecutor looked the witnesses in the eye, evaluated the facts, and took this matter before a state grand jury, and thereafter invoked the judicial process of the State of Florida to bring about a just and fair resolution consistent with that Office's experience. The record is clear and undisputed: This matter began as a state matter in Palm Beach County; it was treated with professionalism and thoroughly investigated by the State's Attorney's Office; then, in an affront to principles of comity in our federal republic, disgruntled local police officials seeking to subvert the thoughtful judgment of state officials aired their disagreement publicly to an eager press and summoned the FBI. This should not be. But that is the undisputed genesis of a federal investigation that, in view of Congress' intent embodied in the statutes that we will closely analyze in this submission, should never have been commenced. Federal authorities in this case have brushed aside federalism-inspired methods of professional conduct, stretched both law and facts, and emphasized the importance of financial gain — not only to individual women but to private attorneys who stood to benefit financially from the federal authorities' involvement. The result has been that many of the witnesses who swore under oath that there was no inappropriate conduct whatever (much less a crime), have now been inspired by the beguiling prospect of financial gain and have, filed civil complaints demanding $50 million each. This should not be. There is no justification for stretching federal law, stretching the facts, and then bringing the power of the federal government to tear apart what the State of Florida has determined is a just and fair resolution -- namely, a felony conviction under criminal statutes duly passed by the Florida legislature. That considered judgment—grounded in law and in principles of fair treatment of all persons, regardless of the wealth or station in life-should be respected in the finest traditions of federalism and comity. EFTA00225911

KIRKLAND & ELLIS LLP • March 28, 2008 Page 3 prosecutors.2 Notwithstanding that, we think it important that you be made aware of the types of actions that have caused us serious concern, and have influenced the process and distorted the facts: • Federal involvement in a state criminal prosecution without any communication with state authorities; • • • The issuance of subpoenas and letters requesting documents whose subject matter had no connection to the conduct at issue including medical records and tax returns (for example, subpoenas were issued to an agent of Mr. Epstein's counsel without following guidelines provided in the United States Attorneys' Manual which ask for: "All documents and information related to the nature of the relationship between [the agent] and Mr. Jeffrey Epstein, including all third party contacts had on behalf of Mr. Epstein all agreements not limited to, retainer agreements; employment agreements; billing statements ... telephone logs ... appointment calendars/datebooks ..."); • The use of threats of expanding the investigation to include money transmitting and money laundering, though none of the mandatory prerequisites could be described (for example, the federal prosecutors referred to the following litany of federal statutes in a letter to a potential grand jury witness as the universe of relevant federal violations: "including but not limited to, possible violations of Title 18, United States Code, Sections 2, 371, 1512, 1591, 1952, 1956, 1960, 2421, 2422, and 2423.") nor was any specific unlawful activity, which is the predicate act for a money laundering charge, ever identified; • The nomination of an individual closely associated with one of the Assistant United States Attorneys involved in this case for the highly lucrative position of independent attorney demanded for the alleged victims; • The insistence on a victims notification letter, which invited all alleged victims to make sworn statements at Mr. Epstein's state sentence even though there was no basis for inviting alleged victims of federal crimes to make statements in a state proceeding; 2 The relevant documents for each of these propositions are available for your review upon request. EFTA00225912

KIRKLAND & ELLIS LLP • March 28, 2008 Page 2 exception, the new evidence strongly supports the conclusion that this is not a case of federal concern. • • This recent testimony can be found in its entirety. See Exhibits 2-7. This evidence clearly calls into serious doubt the notion that the alleged conduct constitutes a federal crime. For example, one of the alleged victims adamantly states that she "never had sex with [Mr. Epstein]" and that she did not know him and had absolutely no contact with him—be it through Internet chatrooms, email, or phone—prior to her coming to his home. Gonzalez Tr. (deposition) at 24, 30, Exhibit 3. The same woman stated that she was not persuaded, induced, enticed or coerced by anyone to engage in any sexual activity. Id. at 31. This woman, who was described as the "lynchpin" of the federal prosecution particularly due to her age at the time of the alleged conduct, expressly admits to lying to Mr. Epstein about her age. Id. at 37. Another alleged victim made similarly exculpatory statements to the FBI. She stated that not only did she always make sure she had a fake ID with her and lie to Mr. Epstein by telling him she was 18 but that she also had conversations w conversatio other women in which these women hoped that "Jeffrey didn't find out [their] age[s]." Tr. at 45, Exhibit 2. When this alleged "victim" was asked if Mr. Epstein ever "pulled [her c oser to him in a sexual way," she responded, "I wish. No, no, never, ever, ever, no, never. Jeffrey is an awesome man, no." Id. at 21. Yet another alleged victim stated that Mr. Epstein "never touched [her] phi" and that all she did was "massage[ ] his back, his chest and his thighs and that was it." Tr. at 12-13, Exhibit 4. Finally, another alleged victim stated in no unclear terms that there was never any discussion over the phone about her coming over to Mr. Epstein's home to en a e in sexual activity: "The only thing that ever occurred on any of these phone calls [with or another assistant , 'Are you willing to come over,' or, `Would you like to come over give a massage." an Tr. at 15, Exhibit 5A. And as each of these women confirmed, this woman stated: "[Mr. Epstein] never tried to force me to do anything." Id. at 12. We believe that these transcripts are of critical importance because they clearly indicate that not only did no intercourse take place with these women, but that any sexual activity that took place was unplanned and consensual. Furthermore, these women corroborate the fact that there was no pattern of luring or enticing these women to do more than give a massage, and that any activity that went beyond the massage was by no means forced upon them. We would urge you to review these particular sworn statements in their entirety both because this is new evidence that post-dates the Deferred Prosecution Agreement and because it discloses critical information about the true facts and circumstances of this case. Importantly, at your request, we have limited the scope of the submission. Thus, this submission does not focus extensively on our concerns relating to the principles of federalism, abuse of power, prosecutorial misconduct, or many of the improper tactics used by federal EFTA00225913

KIRKLAND & ELLIS LEI' AND AFFILIATED PARTNERSHIPS 777 South Figures Street Kenneth W. Stan Los Angeles. California 90017 To . www.kirkland.com March 28, 2008 BY HAND DELIVERY Honorable Sigal P. Mandelker Deputy Assistant Attorney General Andrew G. Oosterbaan Chief, Child Exploitation and Obscenity Section Criminal Division United States Department of Justice 1400 New York Avenue, 6th Floor Washington, DC 20530 Dear Ms. Mandelker and Mr. Oosterbaan: Facsimile: (213) 680-8500 Enclosed, please find our submission as discussed at the meeting. This submission includes a brief executive summary; an analysis of the relevant federal statutes and their application to the facts in this matter; a discussion of the Petite Policy, and an appendix, which includes significant documentary evidence including testimony by witnesses that was obtained after the Deferred Prosecution Agreement was signed. For the reasons we discuss in the submission, we do not believe this is an appropriate case for federal prosecution. I want to call your attention to the recent statements made under oath by some of the alleged victims. As we have previously explained, the United States Attorney's Office has refused to disclose the identities of the alleged victims, and First Assistant United States Attorney Jeffrey Sloman has made the unusual demand that Mr. Epstein's defense team make no effort to discover their identities or contact any of them. See November 5, 2007 Letter from J. Sloman, Exhibit 1. However, due to a procedure available under state law, and following the wave of recent lawsuits that have been filed against Mr. Epstein (ironically by Mr. Sloman's former law partner), we have been able to engage in discovery and take sworn statements from several of the alleged victims. These statements, which would never have been obtained under the First Assistant's directive, are extremely important for two reasons. First, because this new testimony post-dates the state investigation, all discussions regarding plea negotiations, the execution of the federal Deferred Prosecution Agreement, and the drafting of any prosecution memos, no federal or state prosecutor has ever reviewed this material.' Second, and without ed I However, in connection with Ms. statement, which was taken by the FBI, she may have been debriefed by either the FBI or a f era . prosecutor. EXHIBIT B-28 Chicago Hong Kong London Munich New York San Francisco Washington, D.C. EFTA00225914