EFTA00229861.pdf

Memorandum SubjectDate Re: Operation Leap Year April 30, 2007 ToFrom R. Alexander Acosta, United States Attorney Jeff Sloman. First Assistant United States Attorney M a, Chief, Criminal Division MAUSA, Northern Region , Chief, Northern Region 1. Introduction This memorandum se sairoval for the attached indictment charging Jeffrey Epstein, a/k/a JEGE Inc., and Hyperion Air, Inc. The proposed indictment contains 60 counts and seeks the forfeiture of Epstein's Palm Beach home and two airplanes. aF The FBI has information regarding Epstein's whereabouts on May 16th and May 19th and they would like to arrest him on one of those dates. Epstein is considered an extremely high flight risk and, from information we have received, a continued danger to the community based upon his continued enticement of underage girls. For these reasons, we would like to present a sealed indictment to the Grand Jury on May 15, 2007 , and we would like the presentation of that indictment and the status of the investigation to remain confidential. The investigation initially was undertaken by the City of Palm Beach Police Department in response to a complaint received from the parents of a 14-year-old girl, "Jane Doe #2," from Royal Palm Beach. When Jane Doe #2 and another girl began fighting at school because the other girl accused Jane Doe #2 of being a prostitute, one of the school principals intervened. The principal searched Jane Doe #2's purse and found $300 cash. The principal asked Jane Doe #2 where the money came from. Jane Doe #2 initially claimed that she earned the money working at "Chik-Fil-A," which no one believed. Jane Doe #2 then claimed that she made the money selling drugs; no one believed that either. Jane Doe #2 finally admitted that she had been paid $300 to give a massage to a man on Palm Beach Island. Jane Doe #2's parents approached the Palm Beach Police Department ("PBPD") about pressing charges. PBPD began investi atin the recipient of the massage, Jeffrey Epstein, and two of his assistants, and . PBPD identified 27 girls who went to Epstein's house to perform "massage services" (not including one licensed massage therapist). The girls' ages ranged from 14 years' old to 23 years' old. Some girls saw Epstein only once and some saw him dozens of times. The "massage services" performed also varied. Some girls were fully clothed while they massaged Epstein; some wore only their underwear; and some were fully nude. During all of these massages, Epstein masturbated himself and he would touch the girl performing the massage, usually fondling their breasts and touching their vaginas - either over their clothing or on their bare skin. Epstein often used a vibrator to masturbate the girls and digitally penetrated a number of them. For the girls who saw him more often, E stein duated to oral sex and vaginal sex. Epstein sometimes brow ht his assistant/girlfriend, into the sexual activity. One of the girls described as Epstein's "sex slave." On October 18, 2005, PBPD obtained a search warrant with the assistance of the Palm Beach County State Attorney's Office ("PBSAO"). By this time, PBSAO had already been contacted by Epstein's cadre of lawyers. When PBPD arrived at Epstein's home two days later (10/20/05) to execute the search warrant, they found several items conspicuously missing. For example, computer monitors EFTA00229861 and keyboards were found, but the CPUs were gone. Fz Similarly, surveillance cameras were found, but they were disconnected and the videotapes were gone. Nonetheless, the search did recover some evidence of value, including message pads showing messages from many girls over a two-year span. The messages show girls returning phone calls to confirm appointments to "work." Messages were taken by . and . F3 The search also recovered numerous photos of Epstein sifting with naked girls whose ages are undetermined. Photographs taken inside the home show that the girls' descriptions of the layout of the home and master bedroom/bathroom area are accurate. PBPD also found massage tables and oils, the high school transcript of one of the girls, and sex toys. In sum, the PBPD investigation showed that girls from a local high school a would be contacted by one of Epstein's assistants to make an appointment to "work." Up to three appointments each day would be made. The girls would travel to E stein's home in Palm Beach where they would meet Epstein's chef and Epstein's assistant—usually in the kitchen. The assistant normally would escort the girls upstairs to the master bedroom/bathroom area and set up the massage table and massage oils. The girl sometimes was instructed to remove her clothing. The assistant would leave and Epstein would enter the room wearing a robe or a towel. He would remove the clothing and lie face down and nude on the massage table. Epstein would then instruct the girl on what to do and would ask her to remove her clothing. After some time, Epstein would turn over, so that he was lying face up. Epstein would masturbate himself and fondle the girl performing the massage. When Epstein climaxed, the massage was over, and the girl was instructed to get dressed and to go downstairs to the kitchen while Epstein showered. Epstein's assistant would be in the kitchen and the girl would be paid—usually $200- and if it was a "new" girl, the assistant would ask for the girl's phone number to contact her in the future. Fs Girls were encouraged to find other girls to bring with them. If a girl brought another girl to perform a "massage," each girl would receive $200. The PBPD investigation consists primarily of sworn taped statements from the girls. When PBPD began having problems with PBSAO, they approached the FBI. The investigation was formally presented to FBI and to me after PBSAO "presented" the case to a state grand jury and that grand jury returned an indictment charging Epstein with three counts of solicitation of prostitution. Once I determined that there were federal statutes violated, FBI, ICE, and I opened files. The federal investigation has focused on the interstate nexus required for all of the federal violations, so a number of grand jury subpoenas were issued for telephone records, flight manifests, and credit card records. The federal agents also re-interviewed some of the girls, but limited their questions to "new" topics, such as the specific means of contact, to avoid creating inconsistent Jencks materials. The agents also delved into Epstein's history and interviewed others and obtained records to corroborate the girls' stories. FBI also interviewed girls who came forward after the PBSAO indictment was reported in the papers, and additional girls identified through those interviews. I will first address the different crimes with which Epstein can be charged, setting forth the elements of those offenses and the types of evidence that I intend to use to satisfy those elements. Second, I will summarize the evidence related to each girl who has been identified as a potential victim in this case. Following the discussion of the girls' statements and evidence, there is a discussion of the evidence from other witnesses, including corroborating evidence and information related to Epstein's background. The last section discusses forfeiture. II. The Law of the Offenses Charged Epstein's conduct violates a number of federal statutes, all of which are discussed herein. None of the statutes or their penalties changed during the time period charged (early 2004 through mid-2005), although many have changed since then. I use the language of the statutes as they appeared while Epstein was committing the offenses. EFTA00229862  In addition to conspiracy charges, there are five statutes related to sexual activity that have been violated. First, Epstein traveled in interstate commerce with the intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Second, Epstein and his assistants used a facility of interstate commerce to induce or entice minors to engage in prostitution and sexual activi for which any person can be charged, in violation of 18 U.S.C. § 2422(b). Third, Epstein transported in interstate commerce with the intent that engage in sexual activity for which a person can be charged, in violation of 18 U.S.C. § 2421. For these three offenses, knowledge of the victim's age does not need to be proven, although a reasonable belief that a person is over 18 is an affirmative defense to a limited portion of § 2423(b). In those instances where Epstein and/or the assistants knew the ages of the girls (or had reason to know their ages but willfully blinded themselves to that knowledge), they can be char ed with sex traffickin , in violation of 18 U.S.C. § 1591(a)(1). In such instances, and also can be charged with benefitting from their participation in a venture engaged in human sex trafficking, in violation of 18 U.S.C. § 1591(a)(2). Epstein and his assistants also can be charged with causing a money transmitting business to transmit funds intended to be used to promote or support unlawful activity, in violation of 18 U.S.C. § 1960(a). A. Violations of the Mann Act: 18 U.S.C. §§ 2421-2423 1. Knowledge of Age Is Not Required. The Mann Act criminalizes traveling in interstate commerce to engage in "illicit sexual conduct," (§ 2423(b)), using a facility of interstate commerce to entice a minor to engage in sexual activity or prostitution (§ 2422(b)), and transporting a person to engage in sexual activity (§ 2421). Sections 2423(b) and 2422(6) require a minor victim, but they do not require that the defendant know that the victim is a minor. For example, in December, the Fourth Circuit issued its opinion in United States v. Jones , 471 F.3d 535 (4th Cir. 2006). Jones was charged with transporting a minor across state lines for sexual purposes, in violation of Section 2423(a), which reads: A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years. Jones argued that the term "knowingly" in that section required the Government to prove that Jones knew the age of the victim. The Fourth Circuit soundly rejected the argument, citing the other circuits reaching the same conclusion. Jones , 471 F.3d at 538-39 (citing United States v. Griffith , 284 F.3d 338, 351 (2d Cir. 2002); United States v. Taylor , 239 F.3d 994, 997 (9th Cir. 2001); United States v. Scisum , 32 F.3d 1479, 1485-86 (10th Cir. 1994); United States v. Hamilton , 456 F.2d 171, 173 (3d Cir. 1982)). Instead, the court concluded that the Government need only prove that the defendant "knowingly transported" someone. The Government must also prove that the person transported was, in fact, a minor, but need not prove that the defendant was aware of her minority. In conducting its analysis, the Jones Court relied upon cases interpreting sections of Title 21 relating to the distribution of drugs to a minor. See Jones at 540. Those cases have held that the Government must prove only that the defendant knowingly distributed the narcotics to someone who happened to be underage. While the Eleventh Circuit has not addressed the question posed by Jones , it has addressed 21 U.S.C. § 861(a)(3) and has reached the same conclusion in approving the district court's instructions to the jury: Section 845 of 21 U.S.C.A. provides that anyone who knowingly or intentionally distributes controlled substances to a person under twenty-one is subject to enhanced EFTA00229863  penalties. . . . [T]he court instructed the jury that it is not an essential element of the crime that the person who distributes be knowledgeable that the person to whom he distributes is under twenty-one years old; it is the distribution that must be knowing, although it is an essential element that the person to whom the distribution is made is under twenty-one. United States v. Pruitt , 763 F.2d 1256, 1261 (11th Cir. 1985). In reaching this decision, the Eleventh Circuit relied upon the Third Circuit's Hamilton decision, supra : There is, however, a precise analogue to this statute, 18 U.S.C.A. § 2421 et seq. (White Slave Traffic Act), which prohibits the interstate transportation of persons in order to engage in immoral practices including prostitution, and which provides enhanced penalties for the knowing transportation of persons under the age of eighteen years. Under this statute, knowledge of the victim's age is not an element of the crime; the "knowing" component applies to the transportation itself. Id. at 1262 (citing Hamilton ). See also United States v. Williams , 922 F.2d 737, 739 (11th Cir. 1991) (using same rationale to decide that Government need not prove knowledge of age for a charge of knowingly employing, using, persuading, inducing, enticing, or coercing a person under eighteen years of age in the commission of a drug offense). In United States v. Taylor , 239 F.3d 994 (9th Cir. 2001), the Ninth Circuit addressed a defendant's assertion that knowledge of minority is required to convict him of transporting a minor for purposes of prostitution. The Ninth Circuit held that the "more natural reading of the statute, however, is that the requirement of knowledge applies to the defendant's conduct of transporting the person rather than to the age of the person transported." Id. at 997. In Taylor , the defendant argued that the court should analogize the statute to the transportation of hazardous waste, which requires a showing that the defendant knew the waste was hazardous. The Ninth Circuit rejected that suggestion: in contrast, the transportation of any individual for purposes of prostitution or other criminal sexual activity is already unlawful under federal law. 18 U.S.C. § 2421. Under 18 U.S.C. § 2423(a), the fact that the individual being transported is a minor creates a more serious crime in order to provide heightened protection against sexual exploitation of minors. As Congress intended, the age of the victim simply subjects the defendant to a more severe penalty in light of Congress' concern about the sexual exploitation of minors. Cf. United States v. Figueroa , 165 F.3d 111, 115 (2d Cir. 1998) (noting that, if a criminal statute's language is unclear, its scienter requirement is presumed to be met once an individual forms the requisite intent to commit some type of crime). . . . Ignorance of the victim's age provides no safe harbor from the penalties in 18 U.S.C. § 2423(a). If someone knowingly transports a person for the purposes of prostitution or another sex offense, the transporter assumes the risk that the victim is a minor, regardless of what the victim says or how the victim appears . Id. (emphasis added; additional internal citations omitted). Cf. United States v. Wild , 143 Fed. Appx. 938, 942 (4th Cir. 2005) (the parties agreed that, to prove a violation of § 2423(a), the United States had to show that (1) the defendant transported the victim in interstate commerce; (2) the defendant did so knowingly and with the intent that the victim engage in prostitution; and (3) the victim was under the age of 18 at the time she was transported). This reading finds additional support in the Mann Act itself using the doctrine of "expressio unius est exclusio alterius" (to express or include one thing implies the exclusion of the other). Section 2423(g) creates an affirmative defense to one portion of a violation of Section 2423(b). For purposes of that subsection alone, a defendant may raise an affirmative defense, which he must prove, that the defendant "reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years." 18 U.S.C. § 2423(g). The inclusion of that affirmative defense EFTA00229864 shows that Congress considered the issue and decided that the United States does not have to make an initial showing of knowledge of age for violations of 2423(b). Congress likewise considered the same issue for the other portions of the Mann Act and reached the same conclusion. If Congress had intended to place the burden of proving age on the United States — or if it had decided that it should create an affirmative defense to those charges — it could have done so. Congress' use of similar offense language for the other sections of the Mann Act shows that Congress likewise did not intend to require proof of knowledge of age to violate those sections either. See Gustafson v. Alloyd Co., Inc. , 513 U.S. 561, 570 (1995) (noting the "normal rule of statutory construction" that "identical worth used in different parts of the same act are intended to have the same meaning"). In United States v. Scott , 999 F.2d 541, 1993 WL 280323 (6th Cir. 1993), the defendant argued that the Mann Act was unconstitutional for failing to include a requirement that the Government prove the defendant's knowledge of the age of the minor. The Sixth Circuit rejected the argument. First, it found that "[k]nowledge that a girl is under 18 years of age when transported interstate is not part of the proof required of the government in order to sustain a conviction under 18 U.S.C. § 2423. The government proved, as it must, that [the victim] was in fact a minor at the time of the interstate transportation . . . The Mann Act does not require more." Id. , 1993 WL 280323 at *6 (citation omitted). The Sixth Circuit then stated: it does not offend due process for Congress to draft a statute that does not require the prosecution to show that a defendant believed the victim to be under the age of 18 when she was transported interstate, because the law has traditionally afforded minors substantial protection from others. . . . Similarly, the Constitution does not require that a defendant be provided a defense of mistake of age when accused of a Mann Act violation involving a minor. Id. (citations omitted). This approach is consistent with the law of statutory rape, which generally holds that a defendant's good faith mistake as to the victim's age is no defense. In United States v. Ransom , 942 F.2d 775 (10th Cir. 1991), the Tenth Circuit addressed a federal statutory rape provision, which provides: "Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both." Id. at 775 (quoting 18 U.S.C. § 2241(c)). The defendant asserted that a "reasonable mistake as to age defense" should be read into the statute or, alternatively, that the statute was unconstitutional for failing to include such a defense. The Tenth Circuit rejected the arguments, noting that "the majority of courts that have considered the issue have rejected the reasonable mistake of age defense to statutory rape absent some express legislative directive." Id. (citations omitted). Further, the "Supreme Court has recognized that the legislature's authority to define an offense includes the power `to exclude elements of knowledge and diligence from its definition.'" Id. (quoting Lambert v. California , 355 U.S. 225, 228 (1957)). The Tenth Circuit also agreed with the legislative history, finding that the statute "protects children from sexual abuse by placing the risk of mistake as to a child's age on an older, more mature person who chooses to engage in sexual activity with one who may be young enough to fall within the statute's purview." Id. at 777 (citing Nelson v. Moriarty , 484 F.2d 1034, 1035 (1st Cir. 1973)). The Ninth Circuit addressed similar arguments in United States v. Juvenile Male , 211 F.3d 1169 (9th Cir. 2000), and reached the same conclusions. As discussed in Ransom , Epstein and his assistants were the "older, more mature person[s]" who chose to engage in sexual activity and prostitution with young girls. The risk of mistake regarding the ages of those victims should lie with the targets. 2. Coercion and Enticement: 18 U.S.C. § 2422 [Counts 5 to 161 Whoever, using the mail or any facility or means of interstate . . . commerce, . . . knowingly persuades, induces, [or] entices . . . any individual who has not attained the age EFTA00229865  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 and not more than 30 years. 18 U.S.C. § 2422(b). The United States must show either: First: That the Defendant knowingly used a facility of interstate commerce to persuade, induce, or entice a person to engage in prostitution; and Second: That the person so persuaded was under the age of 18; or First: That the Defendant knowingly used a facility of interstate commerce to persuade, induce, or entice a person to engage in sexual activity; Second: That the person so persuaded was under the age of 18; and Third: That the Defendant could have been charged with a criminal offense under the law of Florida based upon the sexual activity. aa The statute does not define "facility or means of interstate commerce" or "prostitution." a. A telephone is a "facility of interstate commerce." The Eleventh Circuit has ruled that evidence of the use of a telephone satisfies the element of using a facility or means of interstate commerce. United States v. Drury , 396 F.3d 1303, 1311 (11th Cir. 2005) (the term "facility of interstate commerce . . . establishes federal jurisdiction whenever any "facility of interstate commerce" is used in the commission of [the] offense, regardless of whether the use is interstate in nature ( i.e. , the telephone call was between states) or purely intrastate in nature ( i.e. , the telephone call was made to another telephone within the same state)."). In Drury , the defendant used his land-line telephone to call an undercover agent's cellular telephone. Although both the defendant and the agent were in Georgia, the signals to the agent's cell phone had to pass through VoiceStream's Jacksonville, Florida switching center. The defendant argued that he did not know or intend that the call pass in interstate commerce. The Eleventh Circuit was unpersuaded: The calls were not accidentally or incidentally placed, but rather were made knowingly to further a scheme. . . . Accordingly, whether Drury knew or intended that they would travel across state lines is immaterial. Id. at 1313. In Drury , the Eleventh Circuit did not address whether the district court erred by instructing the jury that telephones are "facilities in interstate commerce." In an unpublished decision from last year, the Eleventh Circuit wrote, in dicta , that there was no error in instructing a jury that "the telephone system was a facility of interstate commerce." United States v. Roberts , 2006 WL 827293 n.1 (11th Cir. Mar. 30, 2006). See also United States v. Strevell , 2006 WL 1697529, *3 (11th Cir. June 20, 2006) (finding that a defendant's placing of "numerous phone calls from Philadelphia to Miami in order to arrange his sexual encounter" was sufficient to prove the use of a facility and means of interstate and foreign commerce). Earlier this year, the Eleventh Circuit found that the United States adequately proved the jurisdictional element of § 2422(b) when evidence was introduced that the defendant used both a cellular telephone and a land-line telephone to entice a minor to engage in prostitution, even though no evidence was introduced that the calls were routed through interstate channels. United States v. Evans , 476 F.3d 1176, 1180 (11th Cir. 2007). The Eleventh Circuit then held: Telephones and cellular telephones are instrumentalities of interstate commerce. Evans's use of these instrumentalities of interstate commerce alone, even without evidence that the calls he made were routed through an interstate system, is sufficient to satisfy § 2422(b)'s interstate-commerce element. Id. at 1180-81 (citations omitted). b. "Prostitution" EFTA00229866  As noted above and discussed more thoroughly below, almost none of the girls engaged in traditional sexual intercourse with Epstein. The common activity included allowing Epstein to fondle the girl while he masturbated himself, Epstein's digital penetration of the girl, and Epstein's use of a vibrator on the girl while he masturbated himself. It is clear that this activity was done in exchange for money, but the defense will likely argue that some of the activity was not "sexual enough" to qualify as "prostitution." Title 18 carries no definition of "prostitution." In United States v. Prince , the Fifth Circuit approved of the generic definition "sexual intercourse for hire" where the West Virginia statues also lacked a definition. Prince , 515 F.2d 564, 566 (5th Cir. 1975). F9 In 1946, the Supreme Court defined prostitution as the "offering of the body to indiscriminate lewdness for hire." Cleveland v. United States , 329 U.S. 14, 17 (1946). Black's Law Dictionary contains several definitions of prostitution: Prostitution: Act of performing, or offering or agreeing to perform a sexual act for hire. Engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person. Includes any lewd act between persons for money or other consideration. Within meaning of statute proscribing prostitution, comprises conduct of all male and female persons who engage in sexual activity as a business. Black's Law Dictionary (6th Ed. 1990) at 1222. The term "lewd" is especially broad, and probably covers all of the acts described below. The district court may decide to limit the term to the definition contained in Florida law. The Florida Statutes define prostitution as "the giving or receiving of the body for sexual activity for hire . . ." Fl. Stat. § 796.07(1)(a) (2004). _FIO Sexual activity, in turn, means "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 . . ." Fl. Stat. § 796.07(1)(d). If this definition is used, those instances where the girls remained clothed and where Epstein did not fondle the girls' vaginas would probably fall outside the definition of "prostitution." Fil c. "Any sexual activity for which any person can be charged with a criminal offense" Section 2422 outlaws both the use of a facility of interstate commerce to entice a minor to engage in prostitution and the use of that facility to entice a minor to engage in "any sexual activity for which any person can be charged with a criminal offense." According to the Eleventh Circuit Pattern Jury Instruction, the determination of what sexual activity is criminal is governed by Florida law. Florida law bars a person from procuring anyone under the age of 18 to engage in prostitution or to cause a minor to be prostituted. Fl. Stat. § 796.03 (2004). Florida also defines four categories of lewd or lascivious offenses that criminalize behavior between adults and children under the age of 16 : 1. "Lewd or lascivious battery" occurs when an adult le]ngages in sexual activity -FI2 with a person 12 years of age or older but less than 16 years of age." Fl. Stat. § 800.04(4)(a) (2004). 2. "Lewd or lascivious molestation" occurs when an adult "intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator." Fl. Stat. § 800.04(5)(a) (2004). 3. "Lewd or lascivious conduct" occurs when a person intentionally touches a person under 16 years of age in a lewd or lascivious manner or solicits a person under the age of 16 to commit a lewd or lascivious act. Fl. Stat. § 800.04(6)(a) (2004). 4. "Lewd or lascivious exhibition" occurs when a person intentionally masturbates or exposes his genitals in a lewd or lascivious manner in the presence of a victim who is less than 16 years of age. Fl. Stat. § 800.04(7)(a) (2004). F13 EFTA00229867 All of these offenses are classified as second degree felonies when perpetrated by an adult. Fl. Stat. §§ 800.04, 800.04(5)(c)(2), 800.04(6)(b), 800.04(7)(c) (2004). Section 800.04 affirmatively bars two defenses to these charges. First, "[n]either the victim's lack of chastity nor the victim's consent is a defense to the crimes proscribed by this section." Fl. Stat. § 800.04(2) (2004). Second, the "perpetrator's ignorance of the victim's age, the victim's misrepresentation of his or her age, or the perpetrator's bona fide belief of the victim's age cannot be raised as a defense in a prosecution under this section." Fl. Stat. § 800.04(3) (2004). Florida law also bars "sexual activity" between adults over the age of 24 and minors who are 16 or 17 years' old. Fl. Stat. § 794.05(1) (2004). In those cases, "sexual activity" is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another." Id. With this offense, ignorance of the victim's age, misrepresentation of the victim's age, and a bona fide belief that the victim is over the age of 17 are not defenses. Fl. Stat. § 794.021 (2004). d. Charging Decisions Due to the differences in these statutes, for girls who were under the age of 16, I have charged instances of enticement to engage in sexual activity for which a person may be prosecuted and enticement to engage in prostitution. For girls who were 16 or 17 at the time, I have charged only enticement to engage in prostitution, unless the conduct with the particular girl rises to the level of "sexual activity" as defined in Fl. Stat. § 800.04(1)(a). e. Conspiracy to Violate Section 2422(b) [Count 1] Unlike most of the other statutes discussed herein, Section 2422(b) does not include its own conspiracy prohibition. Accordingly, a conspiracy to violate Section 2422(b) requires the allegation of a Section 371 conspiracy. While, generally speaking, it is nice to avoid the trouble of alleging a 371 conspiracy, in this case it actually may work to our benefit. First, it allows us to set forth in the indictment, in painstaking detail, the scope of the conspiracy. Second, it allows us to allege as "overt acts," items that might otherwise be excluded pursuant to Fed. R. Evid. 404(b). For example, if Epstein and his assistants engaged the services of an eighteen-year-old girl ("A") to perform a sexual massage on Epstein, that could not be charged as a substantive offense. But, if A was asked to bring additional girls and A later brought Epstein girls who were under eighteen, then the activities with A were overt acts in the conspiracy. Fla f. Penalties and Forfeiture The charged offenses occurred before the enactment of the Adam Walsh Act, so each count carries a sentence of 5 to 30 years in prison, supervised release of up to life, and a $250,000 fine. The current version of 18 U.S.C. § 2428 states that the Court, in imposing sentence, " shall order, in addition to any other sentence imposed . . . that such person shall forfeit to the United States — (1) such person's interest in any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of such violation[.]" Applying this language, Epstein's Palm Beach home and the two airplanes that he used to travel to West Palm Beach are subject to forfeiture. Section 2428 went into effect on January 10, 2006, so unless we can show activity continuing past that date, it will not apply. For the relevant time period (2004 to late 2005), criminal forfeiture was governed by 18 U.S.C. § 2253(a), which states: [a] person . . . who is convicted of an offense under section 2421, 2422, or 2423 of chapter 117, shall forfeit to the United States such person's interest in — . . . (3) any property, real or personal, used or intended to be used to commit or to promote the commission of such offense. This language also should apply to Epstein's Palm Beach home and the two airplanes. The charge of conspiracy to violate Section 2422 carries a penalty of only 5 years in prison because it must be charged as a Section 371 conspiracy, and there is no provision for forfeiture of the relevant property. EFTA00229868  3. Traveling with Intent to Engage in Illicit Sexual Conduct: 18 U.S.C. § 2423(6) [Counts 17 to 50] A person who travels in interstate commerce . . . for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. 18 U.S.C. § 2423(b). Thus, the United States must prove that Epstein knowingly traveled in interstate commerce and that he did so for the purpose of engaging in illicit sexual conduct, as defined below. a. Proof of intent to travel In Appendix C, Epstein's attorneys assert that Epstein's trips to Florida were not undertaken for the sole purpose of engaging in illicit sexual conduct—he traveled just to visit his home and attend meetings, etc.— and, therefore, he lacked the requisite intent to violate Section 2423(b). The Eleventh Circuit has held that, in order to be convicted of violating Section 2423(b), the United States must prove that the defendant "had formed the intent to engage in sexual activity with a minor when he crossed state lines." United States v. Hersh , 297 F.3d 1233, 1246 (11th Cir. 2002). See also United States v. Han , 230 F.3d 560 (2d Cir. 2000) (defendant could be convicted of violating Section 2423(b) even though no sexual activity occurred and "minor" was really an undercover officer because the defendant had formed the necessary intent by developing a plan to cross state lines to engage in sexual acts with the minor); United States v. Root , 296 F.3d 1222, 1231-32 (11th Cir. 2002). Just a few weeks ago, the Eleventh Circuit addressed for the first time the issue of a "combined motive" for traveling, and approved the following instruction: the Government [] does not have to show that engaging in criminal sexual activity with a minor was the Defendant's only purpose, or even his primary purpose, but the Government must show it was one of the purposes for transporting the minor or for the travel. In other words, the Government must show that the Defendant's criminal purpose was not merely incidental to the travel. United States v. Hoschouer , F.3d 2007 WL 979931, *1 (11th Cir. Apr. 3, 2007). The decision of the Eleventh Circuit was consistent with every other circuit that has addressed the issue: It is not necessary for the government to prove that the illegal sexual activity was the sole purpose for the transportation. A person may have several different purposes or motives for such travel, and each may prompt in varying degrees the act of making the journey. The government must prove beyond a reasonable doubt, however, that a significant or motivating purpose of the travel across state or foreign boundaries was to have the individual transported engage in illegal sexual activity. In other words, the illegal sexual activity must have not been merely incidental to the trip. United States v. Hayward, 359 F.3d 631, 637-38 (3d Cir. 2004). See also United States v. Garcia-Lopez , 234 F.3d 217, 220 (5th Cir. 2000) (The district court did not err in instructing the jury that "it was sufficient for the Government to prove that one of the [the defendant's] motives in traveling was to engage in a sexual act with a minor."); United States v. Yang , 128 F.3d 1065, 1072 (7th Cir.1997); United States v. Meacham , 115 F.3d 1488, 1495 (10th Cir.1997); United States v. Sirois , 87 F.3d 34, 39 (2d Cir.1996); United States v. Campbell, 49 F.3d 1079, 1082-83 (5th Cir.1995) ("[I]t is not necessary to a conviction under the [Mann] Act that the sole and single purpose of the transportation of a female in interstate commerce was such immoral practices."); United States v. Ellis , 935 F.2d 385, 389-90 (1st Cir.1991) (jury could consider that defendant's personal motive for bringing minor on interstate family vacations and business trips was to have her available for sexual abuse even though there were other purposes for the trips); United States v. Snow , 507 F.2d 22, 24 (7th Cir.1974); United States v. Harris , 480 F.2d 601, 602 (6th Cir.1973); United States v. Cole , 262 F.3d 704, 709 (8th Cir. 2001) ("The illicit EFTA00229869 behavior must be one of the purposes motivating the interstate transportation, but need not be the dominant purpose," and a defendant's intent may be inferred from all of the circumstances) (citations omitted). As will be explained below, for each substantive count of violating § 2423(6), we have evidence that Epstein or one of his assistants called a girl a day or two before traveling to Florida, and called again while he was in Florida. The evidence consists of cell phone records for the assistants and the girls, the message pads recovered from the search of Epstein's home and from trash pulls, the flight manifests from Epstein's private planes, and testimony from the girls about how the appointments were made. b. Illicit Sexual Conduct The United States must prove that one of the purposes of the defendant's travel was to engage in "illicit sexual conduct." "Illicit sexual conduct" means: (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age. 18 U.S.C. § 2423(f). (I) A "sexual act" Title 18, United States Code, Section 2246(2) defines "sexual act" as: (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. And Chapter 109A states: "Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who — (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so" has committed a federal offense. Thus, for purposes of this case, when the victim is under the age of 16, and Epstein either digitally penetrated the girl or used a vibrator on her vagina, I have alleged that the defendant has violated Section 2423(b) when he traveled in interstate commerce for the purpose of engaging in a sexual act as defined in this statute. (ii) A "commercial sex act" "The term `commercial sex act' means any sex act, on account of which anything of value is given to or received by any person." 18 U.S.C. § 1591(c)(1). The statute does not go on to define "sex act," but the legislative history of this statute makes clear that the term is to be read very broadly. The term "commercial sex act" replaced the term "prostitution" in an earlier version of the statute. Section 1591 was enacted as part of the "Victims of Trafficking and Violence Protection Act of 2000." Pub. L. 106-384, 114 Stat. 1464. In drafting that legislation, Congress noted: "The sex industry has rapidly expanded over the past several decades. It involves sexual exploitation of persons, predominantly women and girls, involving activities related to pmstitution , pornography, sex tourism, and other commercial sexual services ." Id. at § 102(b)(2). The highlighted language shows that "commercial sexual services" is a broader term than "prostitution," and is meant to include prostitution, the creation of pornography, and other [undefined] acts. EFTA00229870  When the Sentencing Commission amended the Sentencing Guidelines to correspond with this new legislation, it replaced the term "prostitution" with "commercial sex acts" in the heading of part G of Section 2 and throughout that section. The Commission gave a stated reason for the amendment: This amendment ensures that appropriately severe sentences for sex trafficking crimes apply to commercial sex acts such as production of child pornography, in addition to prostitution . . It proposes several changes to § 2G1.1 . . . to address more adequately the portion of section 112(b) of the Victims of Trafficking and Violence Protection Act of 2000 . . . The amendment proposes three substantive changes to § 2G1.1. First, this amendment broadens the conduct covered by the guideline beyond prostitution to encompass all commercial sex acts, consistent with the scope of the Act.. . . U.S.S.G. App. C, Vol II, Amendment 641 (emphasis added). The reference to child pornography is especially helpful to us, because the child pornography statutes use the term "sexually explicit conduct," which is extremely broad, and includes masturbation and the "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A). c. Charging Decisions For girls who were under the age of 16, I have charged instances of travel with the intent to engage in a "sexual act" with a girl under the age of 16 and travel to engage in a "commercial sex act" with a minor. For girls who were 16 or 17 at the time, I have charged only travel to engage in a "commercial sex act." I also have elected to treat all of these sexual massages as "commercial sex acts" regardless of whether there was any penetration. Epstein exchanged money for the opportunity to view underage girls in various states of undress and to masturbate in front of them. As described by the girls, Epstein received sexual gratification from the experience and he constantly tried to "push the envelope" to convince the girls to become more and more sexual. As . described, when a girl refused to let Epstein touch her, Epstein "down-promoted her" to become a recruiter. d. Conspiracy [Count 21 Section 2423(e) creates a separate offense for conspiring to violate Section 2423(b), so the indictment will contain a single conspiracy count, without the allegation of overt acts, for the entire period of the conspiracy. e. Additional Ancillary Offense [Count 31 The statute contains an additional ancillary offense making it illegal, for the purpose of commercial advantage or private financial gain, to arrange, induce, procure, or facilitate the travel of a person knowing that such person is traveling in interstate commerce for the purpose of engaging in illicit sexual conduct. 18 U.S.C. § 2423(c). One of job responsibilities, for which she was paid handsomely, was to arrange both the ailments with the underage girls and also to arrange Epstein's travel. Epstein's pilots testified that was the person who would call them to have them at the airport alien time and who would tell them where they would be traveling to. Accordingly, I have charged alone with a single count of violating § 2423(c). f. The Affirmative Defense Regarding Knowledge of Age Section 2423(g) provides that in "a prosecution under this section based on illicit sexual conduct as defined in subsection (O(2), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years." So, for those allegations involving commercial sex acts with 16- and 17-year-old girls, the defendant can come forward and present affirmative evidence that he reasonably believed that the girls were 18 or older. The defense cannot be asserted for the sex acts with girls under the age of 16. Congress's decision to include an affirmative defense to part of the statute shows that it has considered the issue and determined that the Government does not have to prove that the defendant EFTA00229871 knew the victims were underage for the other portions of the statute. This is consistent with the cases interpreting various sections of the Mann Act. Thus, for those instances where we know that a 16- or 17-year-old girl affirmatively told Epstein that she was 18 — and it would have been reasonable for Epstein to believe that statement — I have not charged Epstein with violating 2423(b). g. Penalties and forfeiture A violation of section 2423, including the conspiracy provision of 2423(e), has no mandatory minimum sentence, and the maximum sentence is 30 years in prison, lifetime supervised release, and a $250,000 fine. As explained above, for the relevant time period (2004 to late 2005), criminal forfeiture was governed by 18 U.S.C. § 2253(a), which also applies to violations of section 2423. 4. Transportation of an Individual to Engage in Sexual Activity: 18 U.S.C. § 2421 [Counts to 1 Whoever knowingly transports any individual in interstate or foreign commerce . . with intent that such individual engage in prostitution, or in 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 or imprisoned not more than 10 years, or both. 18 U.S.C. § 2421. This traditional "Mann Act" section can be used to charge Epstein alone with transporting his girlfriend, from New York to Florida to en age in sexual activity with one of the girls. As will be explained below, one of the victims, ., estimates that she engaged in sexual activi Epstein "hundreds of times." . reports that, at some oint, Epstein agreed to pay more money if she would enga e in sexual activity with while Epstein watched. Some of this activity occurred before . turned 18 and some occurred afterw