EFTA00211482.pdf

12/21/2007 11:55 FAX la 001/008 KIRKLAND & ELLIS LLP Fax Transmittal Ctligroup Center 153 Cast 53rd Street New York. New Y rk 1602 -4611 Phone: Fax Please notify us immediately if any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL. MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONS 7ITUTE INSIDE INFORMATION, AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE. UNAUTHORIZED USE. DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: To: Company: Fax ft: Direct I: R. Alexander Acosta US Altorney's Mice 305-530-6444 305-961-91(8) CC: Company: Fax 0: Oliva 0: 305-530+144 305-961-9299 Alin k: 1:;..1...•, IN ,.4. I,,, ., • 202-514-9.112 202-514-2601 From: Date: Paps wtsww: Fax Direct 0: Jay P. Lelkowity. December 21. 2007 8 M-446-6460 Message: Please see attached. EFTA00211482 12/21/2007 11 55 FAX 002/008 KIRKLAND & ELLIS LLP ANO ANN IA1M PAROVCRANO% Ciaoroup Cantor 153 Coal 53W Slowl Jay P. LekOlvaa. New York. Now York 1002:•4611 To Call Wrier Dernelly. lelkowda M L I Iamicorri www.kakinnO corn not:ember I , 2007 VIA FACSIMILE (305) 530-6444 I lonnrable It. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami. Fl. 33132 Re: Jeffrey Epsicin Ikar Alex: We again extend our appreciation for meeting with us on December 14 and for carefully considering the issues we have raised both at that meeting and in our submissions to your Office. I laving received your Idler of December 19. we can see that you have made a significant %Mint to address Our concerns regarding the § 2255 portion of the non-prosecution agreement (the "Agreement"), and we recognize that you have proposed some substantial and imporumt modifications. Respectfully, however. I would suggest that your proposal raises several troubling questions that require careful consideration. We arc authoring this letter to respond to your request that we set forth our position regarding §§ 2255 and 3771 us quickly us possible. As we have all discovered. the problem of integrating in an unprecedented manner what is at its core a $150,000 minimum lump sum damage federal civil statute (* 2255 in its current Mon) into a federal deferred/non-prosecution agreement that requires pleas of guilty to state criminal offenses that arc correlated to stale criminal restitution statutes but not to a disparate federal civil non-restitution statute has proved very challenging. The concomitant problem of bow fairly to implement the § 2255 portions or Ilw Agreement so that real victims. if any. who in fact sulkrcd "personal injury UN a result of [the] violation" if any of specified federal criminal statutes such as I It U.S.C. § 242201) arc placed in the same position as if there had been a trial and conviction also requires serious and careful consideration. In this letter, i want to highlight some specific concerns. See also Whitley Opinion. First, your proposal wording the § 2235 remedy provisions continues to ask us to assume that each and every woman not only was a victim under § 2255. hut that the facts alleged could have been proven to satisfy each element of either § 2422(b) (the Internet luring statute) or § 2423 (the sex-tourism statute). within § 2255 of Title IR. Although we have heen denied tlx: Chicago 'long Kong London Los Angeles Munich San Francisco Workington, D.C. EFTA00211483 12/21/2001 11:55 FAX la 003/009 KIRKLAND & ELLIS LLI' R. Alexander Acosta December 21. 2007 Page 2 list of alleged "victims" (and lack definitive information as to which federal statutes would serve as a predicate for each particular alleged victim). or even a firm number as to how many you suµest there are, we strongly believe that the provable conduct of Mr. Epstein with respect to these individuals fails to satisfy the requisite elements of either IS USC § 2422(b) (which we understand from prior discussions to be the principal predicate offense upon which the #2255 provisions My) or IS USC § 2423(b) (another predicate of § 2255 that has ham the subject of discussions between the parties.). Sec Stem Opinion. We believe that the problem arises from the incongruity that exists when attempting to lit a federal civil remedies statute into a criminal plea agreement. Again. I note that this problem could have ball avoided had the government opted instead for a restitution fund as we suggested. Our knowledge of the "list" of alleged victims is limited However a prototypical example of a witness whom the government has requested we compensate and we believe is inaccurately labeled as a - victim" or a federal crime is lisiamilesoknimitun we have been told remains on the government's "list"). The transcript or her interview with the Palo over a year before the EIJI became involved in any investigation shows that admitted to lying about her age. that she did nut engage in sexual intercourse with Mr. Epstein. and that she was never induced over the te e • matter or any other means of communication required by § 2422(b). In fact. came to Mr. Epstein's home on only one occasion. She testified that she was informed about the opportunity to give a massage to Mr. Epstein not on a telephone, computer or any other facility of interstate commerce. hut rather in a litee-to-face discussion with a third party who was her friend tM, and who told her to lie to Mr. Epstein about her age. As such, it is simply impossible to shoehorn this conduct into any of the above-discussed federal statutes. In addition, Mr. Epstein did not know ofefore she actually came to his home. did not induce or persuade her to come by phone, did not speak to her at all by phone prior to her visit, did not induce or persuade Ms. Robson to bring an underage girl to his residence. and did not otherwise violate either the federal statute ' 2422(b) nor the travel for the purpose statute § 2423(b). Indeed. in her statement. testified: "lisle), told me to say I was 18 because Haley said .. . if you're not then he (Epstein] won't really let you in his house. So I said l was 18." (Gonzalez Sworn Statement at 38-39). In fact. there is 130 evidence that Mr. Epstein expected an underage girl to visit him prior to his regular travel to Florida. his home of [liken years. Thus the travel could not have been for the purpose of having illegal sexual contact and § 2423(b) is no more available as a predicate list * 2255 move • • s 2422(b). Never having reached the threshold violations enumerated under of f 1255. would still have toprove that she suffered a personal injury. Further, unknown to Mr. Epstein at the time, represented herself to be IS not only to him but also to the public on her web page re s posted a nude photo clearly looking at least IN years old. At the December 14 meeting, we also discussed as entblen concerns surmunding the government's selection of "victims. , s you are aware. EFTA00211484 12/21/2007 11:56 FAX 0004/008 KIRKLAND & ELLIS LLP It. Alexander Acosta December 21, 2007 Page 3 was identified in previous correspondence as a .rson who remained on the Governmenis list of - victims" even after (at least according to letter) the list was subjected to careful multi-party review. swum statement clearly reflects the fact that she is not a "victim" under § 2422(b). She plainly admits that she suffered no injury; the conduct was consensual; she lied to Mr.. Epstein about her age; she instructed others to lie about their ages: there was no sexual contact between herself and Mr. Lipstein at any time; and there was never any inducement over the telephone, computer or through any other means of interstate commerce We ask that you consider the most relevant highlights from her testimony offered below: • Consent A: I said. I told Jeffrey. I heard you like massages topless. And he's like. yeah, he said, hut you don't have to do anything that you don't feel comfortable with. And I said okay. hut I willingly took it off. "tree,.. . ....... " '"' • Lied About tier Age A: . . . I bud a rake ID anyways. saying that I was 18. And she just said make sure you're 18 because Jeffrey doesn't want any underage girls. " I at 8) * * * * * A: . . . oleourse. he thought I was IS. . . • Instructed Others to Lie About Their Ages A: . . . I would tell my girlfriends just likellmlum)proached me. Make sure you tell him you're IX. Well, these girls that I brought. I know that they were I8 or 19 or 20. And the girls that I didn't know and I don't know II' they were lying or not. I would say make sure that you tell him you're IS. • No Sexual Contact Q: Ile never pulled you closer to him in a sexual way? A: I wish. No, no, never, ever, ever, no. never. Jeffrey is an awesome man, no. No Inducement A: No. I gave Jeffrey my number. And I said. you know. any time you want me to give you a massage again, I'll more than welcome to. r ''" 0' "" ' "I EFTA00211485 12/21/2007 11:56 FAX it 005/008 KIRKLAND & ELLIS LLP K. Alexander Acosta December 21. 2007 Page 4 A: Every girl that I hiought to J.:Ilk.). they said they were line with it. And like. for instance. lot of girls begged me to bring them back. lhey wanted to come hack lie the money. And as fur as I know. we all had fun there. (Miller Sworn Statement at 45) The sworn testimony or =Oa contains explicit denials front the alleged 'victim" herself that she suffered any physical. emotional, or • • nal injury as required by the express language of § 2255. Further, the sworn testimony of contains a complete disavowal that Mr. Epstein or anyone on his behalf used a facility of interstate commerce to knowingly persuade. coerce, entice. or induce her to engage in sexual offenses as required by § 2422(b). Likewise, the transcript provides no basis for a § 2423(h) violation in that Mr. Epstein had a residence in Palm Beach for over 10 years at the time of these esamts, traveled to Palm Beach for a myriad of legitimate reasons ranging from medical appointments to business appointments having nothing to do with a sexual objective, and could not he legally charged with traveling to his own home particularly in the absence of any provable nexus between the travel and a dominant purpose to engage in illicit sexual conduct. Although Manlbrmed us during the December 14 meeting that she had a telephone toll record showing tut out-of-state call to or from phone to a phone number associated with Mr. Epstein. such n record fails to prove the content of the call, the identity of the communicators. whether the call discussed or resulted in a plan for to visit Mr. Epstein's residence, whether any inducement occurred nn the out of state call or. more importantly for purposes of the sex tourism statute• whether any travel was planned to Florida or resulted from the phone call. testimony is that she believed that at any time she was called by Mr.. Epstein or anyone on his behalf. Mr. Epstein was already in Florida. She also testified to the absence of any sexual contact other than topless massages (topless massages are lawful in Florida at age 16, unless the definition ofprostitution is unnaturally expanded). A complete transcript of tlx: federal interview of has previously been provided to you. Your wish to pm these women in the same position as they would have been bud there been a federal conviction assumes they are each legitimate victims of at least one of the Iwo specific federal crimes enumerated under * 2255. We respectfully have to disagree with that assumption. and even your currant formulation of * 2255 would prejudice Mr. Epstein in this regard. Second. your proposal also effixlively deprives Mr.. Epstein of his opportunity to test the validity of these womens' claims claims • • • e tested at trial. In light of what we have already learned ahnu xi •• • . it is inappropriate to deny Mr.. Epstein and his counsel the right to test the merits or each of these swamis' cases. in order to verify that they in fact suffered "personal injury- as required by 2255 and to assess whether they are in fact victims of any violations of * 2422(b) or §2423(b) as also required by EFTA00211486 12/21/2007 11:57 FAX la 006/008 KIM AND & El LIS LLP It. Alexander Acosta December 21, 2007 Page 5 § 2255. Given your Offices informing us t remained on a reduced list of federal - victims" and given our understanding that as well was one of those who is also on the list of persons tlx: Government contends were victims of Mr. Epstein's alleged violation of federal law, we have a principled concern about adopting your recommended language which would leave Mr. Epstein without a basis to challenge the good faith premise of an application to recover SI 50.000. Third, the Agreement. even if modified in accord with your December tat letter would put the witnesses in a better position than if Mr. Epstein had been federally prosecuted rather than in an equal position and. in fact, encourages the witnesses to make unfounded claims with impunity. [lad there been a conviction. these women would have been thoroughly cross- examined. for the veracity of their statements, their credibility and the foundations. if any. for claiming personal injury. Also. Mr. Epstein would have received, pursuant to either Brady or Jencks. material in the lbrm of prior inconsistent statements made by these women before they learned of any financial benefit that may be available to them—evidence that should be considered in determining the credibility of their application for a substantial civil recovery. Furthermore, Mr. Epstein would be without the means to challenge whether the claimant could make out a prima lbeie ease that she was a victim of a violation by Mr. Epstein of § 24221b or an other federal statute—a denial of his rights that would insulate potential claimants such as and from any challenge on this dement even if under other circumstances a challenge would result in a summary judgment in Mr. Epstein's favor under Ped. R. Civ. P. 56. Lastly. the modified language recommended by you presupposes that Mr. Epstein would have been charged and convicted of substantive violations rather than charged and convicted of a conspiracy allegation. Conspiracy convictions arc not amongst the predicates enumerated by § 2255 and do not. without more, result in the basis for a determination of "personal injury". Since our request to view the draft indictment was rejected on December 14. we have no means to know what it contained by way of allegations. Fourth, I want to respond to several statements in your letter that we believe require immediate correction. With regard to your first Windt% I want to he absolutely clear. We do not believe for one moment that you had prior knowledge of the AUSA's attempt to require us to hire the friend of her live-in boyfriend. and pay his lees on a contingency basis to sue Mr. Epstein. We realize you corrected that irregular situation as soon as you discovered it. We thought this was precipitated by our complaint. hut hove no real knowledge as to the timing of events. Furthermore, your letter also suggests that our objection to your Office's proposed victims notification letter was that the women identified as victims of federal crimes should not be notified or the state proceedings. That is nut true, as our previous letter clearly states. Putting aside our threshold contention that many of those to whom 3771 notification letters arc intended arc in fact not victims as defined in the Attorney General's 2000 Victim Witness Guidelines—a status requiring physical. emotional or pecuniary injury of the defendant—it was and remains our position that these women may he notified of such proceedings but since they are neither witnesses nor victims to the stoic prosecution of this matter, they should not be informed of EFTA00211487 12/21/2007 11:57 FAX a 007/008 KIRKLAND & ELLIS LLP K. Alexander Acosta December 21.2007 Page 6 fictitious "rights" or invited to make sw, nen or in-court testimonial statements against Mr. Epstein at such proceedings. as Ms.. repeatedly maintained they had the right to do. Additionally, it was and remains our position that any notification should he by mail and that all proactive efforts by the FRI to have communications with the witnesses after the execution of the Agreement should finally come to an end. We agree. however, with your December 19 modification ul the previously drafted federal nalilication letter and agna: that the decision as to who can he heard at a state sentencing is. amongst many other issues. properly within the aegis astute decision making. Your December 19 letter references Professor Dershowitz's position on the inapplicability of Florida Statute f 796.03. Professor Dershowitz made such arguments in the context of saying that he had been unable to discern, alter great effort. and supported by years of experience, any basis for the application of 3 2422(b) or other federal sex statutes to Mr. Epstein's conduct and that the federal statutes regaird more of a stretch to lit the facts than the proposed state statute to w wanted Mr. Epstein to plead. Professor Dershowitz also stated that had represented that it was she who had the facts to support, both the threatened federal charges of § 2422 and/or 2423 and the proposed state charge of $ 796.03 (which the panics understood to be the state charge of soliciting a minor, as last letter clearly states). Only last week we learned for the first time that Ms. not realize that the charge was actually for "procuring" nut "soliciting". The charge (a pim statute) of procuring a prostitute for a third party for financial gain is one for which Ms. now states she does not have the facts to support. Furthermore, you suggest that we have purposefully delayed the date of Mr.. Epstein's plea and sentencing in breach of the Agreement and now seek an "11th hour appeal" in Washington. I believe we have already responded to this objection satisfactorily, both in our discussion earlier this week and in the email I sent to you two days ago in which I specifically addressed this issue. indeed. any impediment to the resolution at issue is a direct cause of the disagreements between the parties as to a common interpretation of the Agreement. and we have at all times made and will continue to make sincere efforts to resolve and finalize issues as expeditiously as possible. In fact, since the initiation of negotiations between Mr.. Epstein's counsel and your Ollice. we have always proceeded in a timely manner and made several elliirts to meet with the attorneys in your Office in person when we believed that a face-to-face meeting would facilitate a resolution. Finally, the suggestion by your staff that you hold Mr. Epstein in breach of the Agreement by his failure to plea and he sentenced on October 26. 2007 is directly contradicted by Mr.. e-mail to me dated October 31 in which he states. "Your understanding from Jack fin rger conforms to my understanding that Mr.. Epstein's plea and sentence will take place on the same day. 1 understand that the plea and sentence will occur on or beam: the January 4th date." This has been ow common understanding for some time, which we have now EFTA00211488 12/21/2007 11:57 FAX a 000/008 KIRKLAND & ELLIS LLP K. Alexander Acosta December 21. 2007 Page 7 reiterated several times. With that said. please he advised that we are working for a quick resolution and do not seek to delay the pnweedings. Thank you attain for your time and consideration. We look forward to your response to the concerns we have raised that have not yet been addressed. I wish you a very happy and a healthy new year. Sincerely. /IA . Lefkoyiitz cc: sti • • EFTA00211489