EFTA00224636.pdf

U.S. Department of Justice United States Attorney Southern District of Florida First AuLstant U.S. 4liortrty 99 NE thStreti Miam& FL 31132 DELIVERY BY FEDERAL EXPRESS June 3, 2008 Honorable Mark Filip Office of the Deputy Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Re: Jeffrey Epstein Dear Judge Filip, Jeffrey Epstein was a part-time resident of Palm Beach County, Florida.' In 2006, the Federal Bureau of Investigation began investi tin alle ations that over a two-year period, Epstein paid approximately 28 minor females to come to his house for sexual favors? In July 2006, the matter was presented to AUSA of our West Palm Beach branch office to pursue a formal criminal investigation. That investigation resulted in the discovery of approximately one dozen additional minor victims. Over the last several months, approximately six more minor victims hive been identified. AUSA has been ready to present an indictment to a West Palm Beach federal grand jury since May 2007. The prosecution memorandum and proposed indictment have been extensively reviewed and re-reviewed by Southern District of Florida (SDFL) Deputy Chief of the Criminal 'Epstein has not resided in Palm Beach since he learned of the instant investigation. 2 Epstein's sexual conduct with the victims included: instructing them to massage and pinch his nipples, masturbating in their presence, digitily penetrating them, using a vibrator on their vaginas, engaging in oral sex with them, having the victims perform oral sex on Epstein's adult girlfriend, and engaging in sexual intercourse, all in exchange for money, ranging from $200 to $1,000 per session. Confidential sod Privileged — Attorney Work Product EXHIBIT B-123 EFTA00224636 Division hi f o the Criminal Division , First Assistant United States Attorney , United States Attorney R. Alexander Acosta as well as various members of the Child Exploitation e i Sectio (CEOS) at the Department of Justice including, but not limited to its Chief, . Many of these legal and factual issues have been discussed roved by Deputy Assistant Attorney General for the Criminal Division (DAAG) and the Assistant Attorney General for the Criminal Division (AAG) Alice S. Fisher, as well as the Criminal Division's Appellate Section and the Office of Enforcement Operations regarding the petit policy. By May 2007, AUSA be an seekin approval from her supervisors to indict Epstein. Her immediate supervisor was . Mr. had served as the Chief of the Public Integrity Section at DOJ as well as in several supervisory positions in the SDFL. By mid- 2006, he had returned to his position as the. Deputy Chief of the Criminal Division in West Palm Beach (head of the West Palm Beach branch office), after serving as the interim Chief of the Public Integrity Section at DOJ at the request of AAG Fisher. By October 2007 Mr. would leave the SDFL to become AG Fi her's Chief of Staffs Above Mr. in the SDK's chain of command were Criminal Division Chief, First Assistant USA and finally, U.S. Attorney Acosta. Prior to seeking approval to return an indictment, Epstein's legal team had been actively working to convince this Office that such action was not warranted. For example, at the end of 2006, former Ill Attorney and EOUSAExecutiveiiirr Guy Lewis contacted former colleagues AUSA and, later Deputy Criminal Chief when he learned that they were handling or involved in supervising the federal investigation of Epstein. In December, former SDFL AUSA Lilly Ann Sanchez and court also contacted AUSA to set a meeting. In advance of that meeting, AUSA requested documents but that request was refused. Ms. Sanchez then contacted AUSA , who agreed to meet with M hez and Mr. Lefcourt. On February 1, 2007, Ms. Sanchez and Mr. Lefcourt met with AUSAs and . as well as a member of the FBI, and presented defense counsel's view of the case and promised a willingness to assist in the investigation. The SDFL was unpersuaded by their presentation and the investigation continued. By the late Spring and early Summer, the focus of the investigation shifted from investigating the facts of the victims' claims to Epstein's background, his asserted defenses, co-conspirators, and possible witnesses who could corroborate the victims' statements. The investigation also began to look into financial aspects of the case, requiring the issuance of several subpoenas. At the time, Mr. Lefcourt began leveling accusations of improprieties with the investigation and sought a meeting 'Mr. resigned for private practice on August 3, 2007 and was replaced by 'Although I, am writSthis letter, I will continue to refer to myself as "First Assistant USA ' or "FAUSA ' to help reduce any confusion. replaced Mr. as the Deputy Chief of the Criminal Division. Confidential and Privileged — Attorney Work Product EFTA00224637 with Criminal Division Chief that time, the proposed initial indictment package had been reviewed and approved by Mr. in West Palm Beach and by attorneys with CEOS; however, it awaited review by Mr. and FAUSA . The SDFL deferred presenting the indictment to the grand jury to accommodate the Epstein legal team's request for a meeting. We also agreed to wait several weeks for that meeting to occur to allow four of Epstein's attorneys to be present and also provided counsel with a list of the statutes that were the subject of the investigation. On June 26, 2007, Mr. Mr. M, AUSA and FAUSA—, and two FBI agents met with Alan Dershowitz, Roy Black, Gerald Lefcourt, and Lilly Ann Sanchez. During that meeting, Professor Dershowitz and other members of the defense team presented legal and factual arguments against a federal indictment. Counsel for the defense also requested the opportunity to present written arguments, which was granted. The arguments and written materials provided by the defense were examined by the SDFL and rejected. On July 31, 2007, Mr. Mr. =, AUSA , and FAUSA , and two FBI agents met with Roy Black, Gerald Lefcourt, and Lilly Ann Sanchez. On that date, the SDFL presented a written sheet of terms that would satisfy the SDFL's federal interest in the case and discussed the substance of those terms. See Tab A. One of those terms was: Epstein agrees that, if any of the victims identified in the federal investigation file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the U.S. District Court for the Southern District of Florida over his person and the subject matter. Epstein will not contest that the identified victims are persons who, while minors, were victims of violations of Title 18, United States Code, §§ 2422 and/or 2423. During that meeting, the focus was on Mr. Epstein's unwillingness to spend time in prison, and various suggestions were raised by defense counsel, including the proposal that he could serve a sentence of home confinement or probation. This was repeatedly mentioned by counsel for Epstein as being equivalent to a term of imprisonment in a state or federal prison. Epstein's counsel mentioned their concerns about his safety in prison, and the SDFL offered to explore a plea to a federal charge to allow Epstein to serve his time in a federal facility. Counsel were also presented with a conservative estimate of the sentence that Epstein would face if he were convicted: an advisory guideline range of 188 - 235 months' incarceration with a five-year mandatory minimum prison term, to be followed by lifetime supervised release. Counsel was told that Epstein had two weeks to accept or reject the proposal. It is critical to note that Ms. Sanchez, one of Epstein's local lawyers, seized upon this method of restitution as a condition of deferring federal prosecution. In referring to the 18 U.S.C. § 2255 method of compensation, Ms. Sanchez stated: [t]his would allow the victims to be able to promptly put this behind them and go forward with their lives. If given the opportunity to opine as to the appropriateness Confidential and Privileged —Attorney Work Product -3- EFTA00224638  of Mr. Epstein's proposal, in my extensive experience in these types of cases, the victims prefer a quick resolution with compensation for damages and will always support any disposition that eliminates the need for trial. See attached Tab B, August 2, 2007 letter from Lilly Ann Sanchez to SDFL Criminal Division Chief p.2, fn 1. Ironically, it is Epstein's "national" attorneys who are now representing to the Deputy Attorney General of the United States in their May 19, 2008 letter that: Perhaps most troubling, the USAO in Miami, as a condition of deferring prosecution, required a commingling of substantive federal criminal law with a proposed civil remedy engineered in a way that appears intended to profit particular lawyers in private practice in South Florida with personal relationships to some of the prosecutors involved. Not only did Epstein's lawyers like the idea of using 18 U.S.C. § 2255 to compensate the victims but, they also sought to make their non-incarcerative state proposal even more attractive by offering payments to "a charitable organization benefitting victims of sexual assault," "law enforcement investigative costs" and "Court and probationary costs." Id. at p. 2. Epstein's counsel, still dissatisfied with the Office's review of the case, demanded to meet with U.S. Attorney Acosta and to have the opportunity to meet with someone in Washington, D.C. To accommodate Roy Black, the meeting was put off until September 7, 2007, de ite the fact that the indictment was ready for prefer o t h grand jury. In the interim, AUSA and the investigators met withtltiwC f to review, yet again, the evidence an ega theories of prosecution. Chief strongly supported the proposed indictment and even offered to join the trial team and provide additional support from CEOS. On September 7, 2007, U.S. Attorney Acosta met with Kirkland & Ellis partners hi Lefkowitz rd. Ken Starr and Ms. Sanchez, along with Chief and AUSAsNigga and FAUSA "Messrs. Starr and Lefkowitz present arguments regarding the sufficiency of the federal interest in the case and other legal and factual issues. We discussed those legal arguments and the unanimous opinion of all of the attorneys present was in favor of prosecution. During that meeting, Mr. Lefkowitz also offered a plea resolution. His offer, in essence, was that Epstein be subjected to home confinement at his Palm Beach home, using private security officers who would serve as his "wardens," if necessary. Mr. Lefkowitz expressed the belief that such a sentence would be particularly appropriate because, as a wealthy white man, he may be the subject of violence or extortion in prison. Finally, Messrs. Starr and Lefkowitz expressed the belief that Epstein's extensive philanthropy should be considered in our prosecution decision. U.S. Attorney Acosta summarily rejected these proposals, and indicated that the 24-month offer presented previously by the SDFL stood. 'Roy Black did not attend. Confidential and Privileged — Attorney Work Product -4- EFTA00224639  II The issue of the inclusion of a restitution-type remedy for the victims pursuant to 18 U.S.C. § 2255inoilically raised and discussed at the September meeting, and Mt Starr thanked AUSA for bringing it to his attention as a novel approach to allowing the victims to receive essentially federal restitution while allowing a plea to a state charge. After considering everything said and written by Epstein's legal team, and after conferring with Chief , U.S. Attorney Acosta informed Epstein's counsel that the SDFL still intended to proceed to indictment. Since counsel indicated a desire to appeal the matter to the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division, U.S. Attorney Acosta agreed to delay the presentation of the indictment for two weeks to allow them to speak with someone in Washington, D.C., if they so chose. Instead, Mr. Epstein elected to negotiate thearosecution A ment, and on September 12, 2007, counsel for the SDFL (AUSAs , and and counsel for Epstein (Messrs. Lefcourt, Leficowitz, and Goldber e et with Palm Beach County State Attorney Barry Krisher and Assistant State Attorney to discuss a plea to an Information in the state court that would satisfy the federal interest in the case. As noted on the term sheet of July 31" (Tab A), one of those essential terms was a guilty plea to a charge requiring sex offender registration. During that meeting, the issue of sex offender registration was raised, and Mr. Goldberger told the federal prosecutors that there was no problem, Mr. Epstein would plead guilty to the charge of procurement of minors for prostitution (Fl. Stat. 796.03), which was one of the statutes listed on the original term sheet. Although the SDFL had wanted Epstein to plead guilty to three different offenses, we agreed to this compromise' Of course, the SDFL later learned that, at the time Mr. Goldberger made that statement, he incorrectly believed, based upon a statement from ASA that Fl. Stat. § 796.03 did not require sex offender registration. The parties then began working first on a plea agreement to a federal charge and, when it was clear that there was no guarantee that Epstein would serve his sentence in a minimum security prison camp, the discussion turned to a Non-Prosecution Agreement. Both the federal plea agreement and the Non-Prosecution Agreement included references to § 2255 because neither the contemplated federal charges nor the proposed state charges encompassed all of the identified victims. If Epstein had been prosecuted under the planned indictment, the identified victims would have been eligible for restitution and damages under § 2255. As explained above, one of our interests, which had to be satisfied by the Non-Prosecution Agreement, was providing appropriate compensation to the victims. This provision of the Agreement was heavily negotiated. As Mr. Lefkowitz wrote in his November 2r e-mail to FAUSA , Epstein "offered to provide a restitution fund for the alleged victims in this matter; however, that option was rejected by [our] Office." That option was rejected for several reasons. First, the SDFL does not serve as legal representatives to the victims and has no authority to bind victims, nor could it provide a monetary figure that would represent a "loss" amount for restitution purposes. Second, there would be no legal basis for federal restitution without 7 Another significant compromise reached at the meeting was a reduction in the amount of jail time - from 24 months down to 18 months, which would be served at the Palm Beach County Jail rather than a state prison facility. Confidential and Privileged — Attorney Work Product -5- EFTA00224640 I. a a conviction for a federal offense. And, third, it was the U.S. Attorney's belief that the SDFL should not be put in the position of administering a restitution fund. Our § 2255 proposal put the victims in the same position that they would have been in if we had proceeded to trial and convicted Epstein of his crimes, with the exception that the victims were provided with counsel. The appointment of counsel was not such a benefit to the victims but, rather, was done, in part, to benefit Epstein by allowing him to try to privately negotiate a group resolution of all claims with one attorney. Epstein and his lawyers agreed with this alternative. The negotiation of the Agreement was lengthy and difficult. Mr. Lefkowitz and AUSA went through several drafts of both a federal plea agreement and a Non-Prosecution Agreement. Throughout these negotiations, when a member of the defense team was dissatisfied with the SDFL's position, it was repeatedly appealed throughout the Office. So several members of the defense team spoke with the chain of command regarding the terms of the Agreement, including the § 2255 provisions. At the eleventh hour, when Epstein's legal team realized that Fl. Stat. 796.03 would require him to register as a sex offender, they sought to change the most essential term of the agreement - a term that Messrs. Goldberger, Lefkowitz, and Lefcourt had specifically agreed to at the September 12:' meeting with the State Attorney's Office - asking to allow Epstein to plead to a charge that would not require registration. When this was rejected, several members of the defense team appealed directly to U.S. Attorney Acosta which also failed. When that failed, according to press reports, apparently Mr. Lefcourt "leaked" a letter intended for the U.S. Attorney to the press containing the reasons why he/Lefcourt did not believe Epstein should have to register. See October 9, 2007 New York Post article attached at Tab C. Prior to signing the Non-Prosecution Agreement, Mr. Epstein's defense team included Ken Starr, Jay Lefkowitz, Lilly Ann Sanchez, Alan Dershowitz, Gerald Lefcourt, Roy Black, Guy Lewis, Martin Weinberg, Jack Goldberger, Stephanie Thacker', and the associates at Kirkland & Ellis who conducted research on discrete issues. This impressive legal team reviewed the Agreement and counseled Epstein. Based upon that counsel, Epstein decided that it was in his best interest to execute the Non-Prosecution Agreement which was signed on September 24, 2007 by Mr. Lefcourt, Ms. Sanchez and Epstein. A copy of which is attached hereto as Tab D. The core principles of the Agreement are incarceration, registration as a sex offender and a method of compensation.' Furthermore, and significantly, Epstein agreed that he had the burden of ensuring compliance of the :Ms. Thacker had recently resigned from CEOS as a Trial Attorney and entered private practice. 9 Specifically, the Agreement mandates, inter alia, (I) a guilty plea in Palm Beach County Circuit Court to solicitation of prostitution (Fl. Stat. § 796.07) and procurement of minors to engage in prostitution (Fl. Stat. § 796.03) (an offense that requires him to register as a sex offender); (2) a 30- month sentence including 18 months' incarceration in county jail; (3) a methodology to compensate the victims identified by the United States utilizing 18 U.S.C. Section 2255 such that they would be placed in the same position as if Epstein had been convicted of one of the enumerated offenses set forth in Title 18, United States Code, § 2255; (4) entry of the guilty plea and sentence no later than October 26, 2007; and (5) the start of the above-mentioned sentence no later than January 4, 2008. Confidential and Privileged —Attorney Work Product -6- EFTA00224641 Agreement with the Palm Beach County State Attorney's Office and the Judge of the I5°' Judicial Circuit and "that thefailure to do so will be a breach ofthe agreement' (emphasis added). To this day, the SDFL has never divulged its evidence to Epstein's lawyers. Within a week of the execution of the Agreement, the SDFL unilaterally proposed to divest its right to select the attorney representative for the victims. Contrary to Messrs. Starr and Whitley's recent assertion that this was "engineered in a way that appears intended to profit particular lawyers in private practice in South Florida with personal relationships to some ofthe prosecutors involved," it was done to avoid even the appearance of favoritism in the selection ofthe attorney representative. As a result, the parties executed an addendum which documented the SDFL's right to assign the selection ofan attorney representative to an independent third-party. A copy ofthe October 29,2007 Addendum is attached hereto as Tab E. The parties subsequently agreed that retired Federal District Court Jude Edward B. should be that independent third-pasty/special master. Ultimately, Judge selected Robert C. Josefsberg of the law firm ofPodhurst, Orseck, Josefsberg, et a1.10 During this same time frame, Epstein lawyer Jay Lefkowitz sought to delay the entry of his guilty plea and sentence. After the SDFL accommodated his request (from October 26"' to November 20th), Mr. Starr began taking issue with the methodology of compensation, notification to the victims, and the issues that had been previously considered and rejected during negotiations, i.e., that the conduct does not require registration and the contemplated state and federal statutes have no applicability to the instant matter. In response to Mr. Starr's protests, the SDFL offered numerous and various reasonable modifications and accommodations whichultimately resulted in U.S. Attorney Acosta's December 19, 2007 letter to Lilly Ann Sanchez. See attached Tab F. In that letter, U.S. Attorney Acosta tried to eliminate all concerns which, quite frankl the SDFL was not obligated to address, let alone consider. In consultation with DAAG Mr. Acosta proposed the following language regarding the 2255 provision: "Any person, who while a minor, was a victim of a violation of an offense enumerated in Title 18, United States Code, § 2255, will have the same rights to proceed under § 2255 as she would have had, ifMr. Epstein been tried federally and convicted of an enumerated offense. For purposes of implementing this paragraph, the United States shall provide Mr. Epstein's attorneys with a list of individuals whom it was prepared to name in an Indictment as victims ofan enumerated offense by Mr. Epstein. My judicial authority interpreting this provision, including any authority determining which evidentiary burdens if any a plaintiff must meet, shall consider that it is the intent of the parties to place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less." I° Due to the subsequent objections raised by Epstein's counsel, Mr. Josefsberg was never given the opportunity to become the attorney representative. Confidential and Privileged — Attorney Work Product -7- EFTA00224642  Mr. Starr also objected to the SDFL's intention to notify the victims pursuant to 18 U.S.C. § 3771. In response to Mr. Starr's concerns, USA Acosta again consulted with DAAG who advised him to make the following proposal: "[w]e will defer to the discretion of the State Attorney regarding whether he wishes to provide victims with notice of the state proceedings, although we will provide him with the information necessary to do so if he wishes." These proposals were immediately rejected by Epstein in Mr. Leflcowitz's December 26, 2007 correspondence to USA Acosta. At our December 14, 2007 meeting at the U.S. Attorney's Office in Miami, counsel for Epstein articulated that it was a "profound injustice" to require Epstein to register as a sex offender and reiterated that no federal crime, especially 18 U.S.C. § 2422(b), had been committed since the statute is only violated if a telephone or means of interstate commerce is used to do the persuading or inducing. This particular attack on this statute had been previously raised and thoroughly considered and rejected by the SDFL and CEOS prior to the execution of the Agreement. Epstein's lawyers also argued that the facts were inapplicable to the contemplated state statutes and that he should not have been allowed to have been induced into the Agreement because the facts were not what he understood them to be. To reiterate, the SDFL has never divulged its evidence to anyone on the Epstein legal team. Once counsel for Epstein failed to persuade us that federal involvement was inappropriate, they mounted an aggressive campaign to defer federal prosecution. When we refused to compromise on anything except the length of incarceration, they finally executed the Non- Prosecution Agreement. Subsequent to the December 14, 2007 meeting, the SDFL received three letters from Mr. Letkowitz and/or Mr. Starr which expanded on some of the themes announced in the December 14" meeting. Essentially, trying to portray the SDFL as trying to coerce a plea to unknown allegations and incoherent theories. In his December 17, 2007 correspondence, Mr. Letkowitz decreed that Epstein's conduct did not meet the requirements of one of the state statutes Epstein agreed to plead guilty to - procurement of minors to engage in prostitution (Fl. Stat. § 796.03); that Epstein's conduct does not require registration under Florida law in contravention of the September 241h Agreement; and the State Attorney's Office does not believe the conduct is registrable. On December 21, 2007, Mr. Lefkowitz rejected the U.S. Attorney's proposed resolution of the 2255 provision because they "strongly believe that the provable conduct of Mr. Epstein with respect to these individuals fails to satisfy the requisite elements of either 18 U.S.C. Section[s] 2422(b) ... or ... 2423(6)." In his December 26, 2007 correspondence, he stated that "we have reiterated in previous submissions that Mr. Epstein does not believe he is guilty of the federal charges enumerated under section 2255" and requiring "Mr. Epstein to in essence admit guilt, though he believes he did not commit the requisite offense." The SDFL reiterated time and time again that it had never wanted nor expected Epstein to plead guilty to a charge he did not believe he committed and repeatedly offered to dissolve the agreement to allow Epstein to contest the charges in the court system. As a result, the SDFL obliged his request for an independent de now review of the investigation and facilitated such a review at the highest levels of the Department of Justice. As you know, on May 15, 2008, after months of considering the matter, the Criminal Division considered whether there is a legitimate basis for the Confidential and Privileged — Attorney Work Product -8- EFTA00224643 SDFL to proceed with a federal prosecution of Mr. Epstein. CEOS Section Chief concluded that "federal prosecution improper or inappropriate."See attached May 15, 2008 letter from CEOS Section Chief to Jay Lefkowitz. On May 19, 2008, I notified Mr. Lefkowitz that the SDFL would give Epstein a full two weeks (close of business on Monday, June 2, 2008) to comply with the terms and conditions of the Non-Prosecution Agreement, as modified by the USA's December 10 letter to Ms. Sanchez." Therefore, despite the fact that the investigation has identified several more victims, the SDFL is still offering Epstein the opportunity to comply with the terms and conditions of the Non-Prosecution Agreement. The SDFL was recently notified that the Office of the Deputy Attorney General has agreed to consider additional allegations not considered by CEOS which were recently raised in correspondence by two former high-ranking members of the Department of Justice - Ken Starr and Joe Whitley. On May 28,2008,1 notified Mr. Letkowitz by e-mail that the SDFL has postponed the June 2, 2008 deadline until the DAG's Office has completed its review of this matter. Their correspondence to the DAG alleges that the SDFL's investigation lacks integrity because it has leaked "highly ill al aspects" of the investigation and negotiations to the New York Times and that FAUSA directed some of the victims to my former law firm. They also claim that the "unprecedented extension of federal law" by the SDFL suggests that this is politically motivated because Epstein is a prominent figure with "c ties to former President Clinton." Messrs. Starr and Whitley go on to claim that FAUSA unilaterally, arbitrarily and unnecessarily imposed a June 2, 2008 deadline in order to prevent Epstein from seeking your Office's review and that "the unnecessary deadline is even more problematic because Mr. Epstein's effort to reconcile the state charge and sentence with the terms of the Agreement requires an unusual and unprecedented threatened application of federal law." 1. The Alleged "Leak" to the New York Times. AUSA became involved in this matter in his capacity as back up for the District's Public Information Officer (PIO). While the District's PIO was on annual leave, he was the acting PIO during the first week of January 2008. The entirety of his conduct in connection with the Epstein matter began on January 2, 2008 and ended on January 7, 2008." Specifically, his contact involved five telephone conversation with Landon Thomas, a reporter for the New York Times. These conversations occurred on I) the morning of January 2, 2008, 2) the afternoon of January 2, 2008, 3) the afternoon of January 3, 2008, 4) the afternoon of January 4, 2008, and 5) the afternoon of January 7, 2008. " Mr. Lefkowitz was placed on notice on February 25, 2008, that in the event that CEOS disagreed with Epstein's position, Epstein would have one week to comply with the terms and conditions of the Agreement, as modified by the USA's December 19' letter to Ms. Sanchez. "AUSA has self-reported to the Office of Professional Responsibility. Confidential and Privileged — Attorney Work Product -9- EFTA00224644  A. The Morning ofJanuary 2, 2008. AUSA began his conversation with Mr. Thomas by explaining that he was the acting PIO for the week and that he had received Mr.Thomas's December 31, 2007 e-mail requesting an interview and asking for comments on the following five statements." First, "that in the summer of 2005 the palm lice de rtment referred the Epstein case to you." Second, "that the case is being overseen by , and above him, R. Alexander Acosta." Third, "that Mr. Acosta has made child pornography a focus are [sic) for your office." Fourth, "that this summer your office gave Mr. Epstein an ultimatum: plead guilty to a charge that would require him to register as a sex offender, or the government would release a 52 page indictment, charging him with crimes that could include procuring sex for a third party or engaging in sexual tourism. Both of these charges carry jail sentences of as much as 15 years." Fifth, "that your officeS. Epstein and his lawyers: we are ready to pull the trigger!" Sixth, "I also wanted to ask Mr. about his role in a case involving Jonathan Zirulnikoff and his daughter earlier this year!' At the outset, said that he could not comment on any specific pending matters and that he would do his best to answer some of his questions. Thomas said that his questions were based, in part, upon conversations that he had already had with members of Mr. Epstein's defense team, prior published reports of a pending State case against Mr. Epstein and public information available through the State Court system. refused to answer the first question. As to the second question, told him that any matter arising out of conduct in Palm Beach County, was prosecuted by our West Palm Beach branch office. He also told him that as First Assistant, the FAUSA had supervisory authority over all AUSAs throughout the District. In turn, the FAUSA answered directly to the U.S. Attorney. In response to the third discussed the difference between child exploitation and child pornography. said that federal crimes involving child exploitation were one of several focus points of our Office. He further explained that in addition to traditional federal areas of prosecution the other focus points included health care fraud and gang prosecutions. refused to answer the fourth and fifth topics but did discuss the general nature of pre-trial proceedings in federal court. He said that the SDFL does not offer ultimatums, nor are we in the business of issuing ultimatums. He explained that in cases where a party wants to plead guilty prior to indictment, we will discuss the parameters of guilty pleas and that people always have the to trial if they choose to do so and that we do not favor one resolution over the other. told Mr. Thomas that he would not discuss his specific question about Mr. Epstein's lawyer's statement that someone from our Office told them that "we are ready to pull the trigger." "After reviewing his e-mail, AUSA discussed the matter with U.S. Attorney Acosta. Pursuant to USAM 1-7.530 and the Media Relations Guide, Section Ill D2, after consultation with and prior approval from the US Attorney, he called Mr. Thomas on the morning of January 2nd. Confidential and Privileged — Attorney Work Product -10- EFTA00224645 Nor would he discuss anything about who might or might not be representing Mr. Epstein. told Mr. Thomas that he should not allow himself to be spun one way or the other in response to statements Mr. Thomas said he had received from attorneys who said that they represented Mr. Epstein. ended the conversation by telling Mr. Thomas that he would check further into his sixth and final topic and get back to him later in the day. B. Afternoon ofJanuary 2, 2008. informed Mr. Thomas that in regard to his sixth topic, the SDFL had no reason to question FAUSA judgment or integrity. He also said that this particular subject matter was a private matter that FAUSA did not want to discuss with him." Mr. Thomas told him that if he had any further questions, he would call back. C. Afternoon ofJanuary 3, 2008. This call was in response to a voice mail message that Mr. Thomas had left regarding legal issues involving specific state and federal statutes. Specifically, Mr. Thomas had some questions about the burden of proof and strict liability in some state and federal statutes that governed illegal sexual activity. Again, told him that he would not discuss any specific cases, but that he would assist him in understanding the statutes about which he had some questions. explained that some statutes contained defenses that must be proven by a defendant, while there were other statutes that did not require a defendant to affirmatively prove a defense. The discussion centered around Title 18, United States Code, § 2423(g). Once again, Mr. Thomas told that if he had any further questions, he would call back. D. Afternoon ofJanuary 4, 2008. This was another call in response to a voice mail message that Mr. Thomas had left regarding some additional questions. prefaced the conversation by saying that he would not discuss any specific cases. The conversation centered around three specific statutes, 18 United States Code, § 2422(b), 18 United States Code, § 1591, and 18 United States Code, § 2423(b) as well as the The case involving "Jonathan Zirulnikoff" involved a March 7, 2007 early morning attempted break-in of my' house. Zirulnikoff, age 19 at the time, confessed and said that he wanted to "talk" to my daughter who was then 16. He also confessed to a prior unrelated break in which Zirulnikoff caressed the inner thigh of a 15 year old female. Zirulnikoff who had graduated from my daughter's high school in June 2006, dated my daughter's friend and had little if any contact with my daughter for over one year. Zirulnikoff negotiated a plea deal, over my objection, with the Miami-Dade State Attorney's Office to a misdemeanor trespass. That conviction resulted in a sentence of two years probation and a withhold of adjudication upon successful completion of his probationary period. Since this information ddy irrelevant to the facts and issues in the instant Epstein matter, I refused to allow Mr. 'mi to comment about this matter to Mr. Thomas. Furthermore, none of this information had been publicized and, upon information and belief, only one member of Epstein's legal team knew anything about this matter, my former colleague, Lilly Ann Sanchez. Confidential and Privileged— Attorney Work Product -11- EFTA00224646 burden of proof and the applicability of affirmative defenses. They discussed the difference between an attempt and a substantive charge pursuant to § 2422(b) and how that affected the government's burden of proof vis-a-vis the age of a child. They also discussed the fact that a charge pursuant to § 1591 required the government to prove that the defendant had actual knowledge of the age of the victim. Finally, they discussed the fact that if the government was charging a defendant with traveling to engage in prostitution, pursuant to § 2423(b), there was an affirmative defense available to the defendant regarding the reasonable belief of the defendant about the age of the victim. E. Afternoon ofJanuary 7, 2008, This final call was made after the U.S. Attorney and FAUSA bad received a call from a member of Mr. Epstein's defense team alleging that the SDFL had provided case specific information to the media. called Mr. Thomas who acknowledged that both before and after each of the above-mentioned conversations, he had also called attorneys who were representing Mr. Epstein on his pending State charges. Mr. Thomas also acknowledged that all of our prior conversations had been about general legal issu an t at never spoke about any specific case. Since the January 7, 2008 conversation, has not had any further contact with Mr. Thomas. 2. (May 5, 2001- October 1, 2001). Seven years ago, I resigned from the SDFL for private practice. Less than five months later, I resigned from the law firm and returned to the SDFL. Public records reflect the following: on May 8, 2001, articles of a ent w e fi with the Florida Division of rations to reflect that the firm name of ' ' was changed to ` ' on May 7, 2001. I joined the firm at that time and remained a non-equity partner until on or a ut October 1, 2001. At that time, 1 resigned from the firm and returned to the SDFL. Since I never had an equity interest in the firm, I never retained an interest in the firm. That was over six and one half years ago. Unbeknownst to FAUSA , on July 2, 2002, articles amen ent were filed with the Florida Division of o fl t the firm name of was changed back to " The article of amendment indicates the amen ment was adopted on July 1, 2002, without shareholder action. Although the filing was not immediate upon my departure from the law firm, it pre-dated for years any dealings with the subject case now r on i in h DF Recently, I learned that there is a reference to the law finn of ' on the Florida Bar website, under a section called "Find A Lawyer." This reference appears when Stuart Mermelstein's name and information is accessed. To reiterate, since October 2001, I have had no relationship with that law firm, financial or otherwise, and no input or control over the firm's filings with the Florida Division of Corporations and/or the Florida Bar. On 08, at approximately 1:15 pm, I received a call from Jeffrey Herman of . Herman said that he was planning to file a civil lawsuit the next Confidential and Privileged— Attorney Work Product -12- EFTA00224647 week against Jeffrey Epstein. He said that his clients were frustrated with the lack of progress of the state's investigation and wanted to know whether the SDFL could file criminal charges even though the state was looking into the matter. I told Herman that I would not answer any question related to Epstein — hypothetical or otherwise. I asked him how his clients retained him and he said that it was through another lawyer. I then specifically asked him whether the referral was the result of anyone in law enforcement contacting him and/or the other lawyer. He said "no." At the conclusion of the conversation, I reiterated and confirmed with him that I had refused to answer any questions he asked of me. I immediately documented this conversation an informed the U.S. Attorney who informed Litigation Counsel and Ethics Advisor . AUSA ■ opined that he did not see a conflict. As soon as I -became aware of these allegations, I reported myself to the Office of Professional Regulation on or about April 21, 2008. 3. The Alleged Unprecedented Extension of Federal Law and the Allegations of Political Motivation for the Prosecution. It is my hope that this letter has sufficiently explained how thoroughly this matter has been reviewed, how seriously the issues have been considered, and how additional delays may adversely affect the case going forward and, more importantly, the victims. I have attached the proposed draft indictment for you to consider the nature and gravity of the crimes. See Tab G. You are invited to evaluat w er I, along with U.S. Attorney A minal DivisiSiefs and, later Deputy Criminal Division Chiefs followed by and AUSA have somehow steered this investigation toward "an unprecedented extension of federal law"despite being simultaneously and/or subsequently reviewed by CEOS, DAAG , and AAG Fisher. I also hope that the reputations of the above-mentioned professional prosecutors combined with the documented layers of methodical and thorough review of all issues raised by Epstein are enough to summarily dismiss the idea that this matter is politically motivated. It seems incomprehensible how Messrs. Starr and Whitley could expectfiirther review when the due process rights of their client have been considered and reconsidered to the point of absurdity. With respect to the other allegations of misconduct leveled against investigators and prosecutors, similarly false allegations were made against the local police detective who first investigated the case. Those false allegations apparently were accepted as true and were not investigated or challenged by the State Attorney's Office and, when coupled with the immense pressure brought to bear upon the State Attorney by some of these same lawyers who represent Epstein today, resulted in a single felony charge related to only two of the more than 20 victims identified in the state investigation. Contrary to the claims of Epstein's attorneys, the SDFL is not trying to prosecute Epstein more harshly because of his political friends or his financial status; rather, the SDFL is attempting to follow Department policy by treating Epstein like all other criminal defendants — charging him with the most serious readily provable offenses. The SDFL has even continued to allow Epstein the opportunity to perform his obligations under the Non-Prosecution Agreement despite his numerous breaches of and attacks on the terms to which he already agreed. Without attempting to address each and every allegation, I would like to highlight some of the misstatements contained in counsels' letter, to provide some sense of counsels' conduct Confidential and Privileged —Attorney Work Product -13- EFTA00224648 throughout this case, particularly after their attempts at legal persuasion failed. Throughout the case, counsel have misrepresented the facts ofthe case to our Office, CEOS, and the press. For example, Epstein's counsel reference to this case as "precedent-shattering," suggests that all of the victims were at least 16 years old, and that the conduct "was purely local in nature." The SDFL has prosecuted several "sex tourism" cases where the "john" communicated via telephone with an undercover "pimp" in the SDFL to meet minor females to engage in prostitution. All were charged and convicted of violating 18 U.S.C. § 1591. The SDFL has charged and convicted a 21-year-old man ofviolating 18 U.S.C. § 2423 when he traveled to Florida to meet his 14-year-old girlfriend and later digitally penetrated her. The SDFL has prosecuted numerous violations of 18 U.S.C. § 2422 where the "facility of interstate commerce" — generally the intemet and telephones — are used by a defendant and an undercover pretending to be the parent ofa minor, to arrange for a meeting that the defendant hopes will result in sexual activity. There is nothing extraordinary about Epstein's case except the large number of victims involved. Epstein's counsel neglected to inform you that the age range of the victims includes girls as young as 14, and glosses over the fact that Epstein did not simply engage in "solo self-pleasuring" in front ofthe victims. Instead, with each visit, he pressured the victims to allow him to engage in more and more sexual activity — fondling breasts and vaginas, digital penetration, use of a vibrator on their vaginas, performing oral sex on them, having them perform oral sex on his adult girlfriend, and engaging in sexual intercourse. Counsel also neglected to inform you that many girls did affirmatively tell Epstein their true ages and he told several that he "did not care about age." Epstein's conduct was not "purely local." He and his assistants called and sent text messages to victims in Palm Beach County from other states to arrange "appointments" for his upcoming visits to Palm Beach. And, while in Palm Beach, Epstein and his assistants called victims in New York to arrange "appointments" for his return to New York. Epstein wired money to some victims and sent gifts through the mails. This case falls squarely within federal jurisdiction. Epstein also falsely claims that certain facts related to the resolution of the case were hidden and later discovered by his lawyers. For example, they complain about the proposed use of a guardian ad litem, stating that "Mr. Epstein's established that all but one of these individuals were adults, not minors." It was AUcSilli who told Epstein's counsel that all of the victims but one had already reached the age ofmajority, which was one reason why the guardian ad litem procedure proposed by Epstein's counsel would not work. Likewise, AUSA disc