EFTA00723419

KIRKLAND & ELLIS LLP 
AND AFFILIATED PARTNERSHIPS 
601 Lexington Avenue 
New York. New York 10022 
Jay P. Lefkowitz, 
To Call Writer Directly: 
(212) 446-4800 
Facsimile: 
(212)446-4970 
October 26, 2010 
By E-mail 
CONFIDENTIAL 
Jennifer Gaffney, Esq. 
Deputy Bureau Chief, Sex Crimes Unit 
New York District Attorney's Office 
One Hogan Place 
New York, NY 10013 
Patrick Egan, Esq. 
Assistant District Attorney, Sex Crimes Unit / Trial Bureau 40 
New York District Attorney's Office 
One Hogan Place 
New York, NY 10013 
Re: 
SORA Determination for Jeffrey E. Epstein, NYSID # OSI909, Supreme 
Court Case #30129-2010 
Dear ADA Gaffney and ADA Egan: 
As you know, we represent Jeffrey E. Epstein, who is scheduled to appear in New York 
Supreme Court, Part 66, on Tuesday, November 9, 2010 for a hearing before the Honorable Ruth 
Pickholz pursuant to New York's Sex Offender Registration Act (SORA), Correction Law § 168 
et seq.. 
To follow up to our conversation in your office on October 13, and as you have 
requested, we are providing you with a select sampling of materials that we believe expose the 
stark contrast between the inflammatory, speculative case summary presented by the Board of 
Examiners in its recommendation for Mr. Epstein, and the actual evidence that exists concerning 
the alleged conduct for which New York seeks to require Mr. Epstein to register under SORA. 
We hope and expect that these materials will validate our position that Mr. Epstein should most 
appropriately be designated as a Level 1 offender. Not only is the Board's Level 3 
recommendation absurd, given that the offense triggering the registration requirement would 
most likely have been a non-registerable misdemeanor if committed in New York instead of 
Florida, but as laid bare by the attached sampling of excerpts, the Board's purported 
"calculation" is also unsupportable based on the actual evidence concerning the allegations that 
underpinned Mr. Epstein's conviction. 
Chicago 
Hong Kong 
London 
Los Angeles 
Munich 
Palo Alto 
San Francisco 
Shanghai 
Washington. M. 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 2 
First, as we attempted to explain during our meeting with you, the specific conduct which 
formed the basis of Mr. Epstein's conviction requiring registration under Florida law -- a 
conviction for Procuring a Person Under 18 for Prostitution, in violation of Fla. Stat. § 796.03' --
was a consensual arrangement in which Mr. Epstein received massages and engaged in sexual 
touching in exchange for money with M., a young woman who was over New York's age of 
consent when the offense cited in the Information allegedly occurred. And as made abundantly 
clear by the attached excerpis rom M.'s November 8, 2005 interview with Palm Beach 
Detective Joseph Recarey, M. she was certainly 17 by the time events "escalated" from 
massages to sexual conduct: 
• 
Tr. 2:5-15 
M
.
 
stating that her date of birth is October 10, 1987, which would 
have made her two da s short of 18 ears and one month old when she was interviewed 
by Det. Recarey on 
• 
Tr. 3:15-20 (M. stating that she first heard about Epstein from a friend "about a 
year ago"). 
• 
Tr. 5:14-23 ( 
. stating that after meeting Epstein for the first time, she "didn't go 
again for about two months or so"). 
• 
Tr. 6:13-22 
(
M
.
 
telling Recarey that she saw Epstein approximately 15 times in 
total, and "things escalated" as time went on). 
Furthermore, the record is undisputed that M. was at least 17 and over New York's age of 
consent during the one time that she engaged in consensual sexual intercourse with Mr. Epstein: 
• 
Tr. 8:17-9:23 (M. stating that she engaged in sexual intercourse with Epstein 
only once, when she was nearly 18 years old). 
• 
Tr. 15:12-17 
M
.
 
stating that all of her conduct with Epstein was consensual and 
that Epstein never used any force).2
As previously noted, Jeffrey Epstein concurrently pleaded guilty to an Indictment charging him with one 
count of Felony Solicitation for Prostitution, Fla. Stat. § 796.07(2)0), (4Xc), which is not a registerable offense 
under Florida or New York law. See Fla. Stat. § 943.0435; N.Y. Correction Law § I68-a(2Xa). 
2 
Notably, in a Probable Cause Affidavit which he signed under oath and filed with the court in order to 
obtain an arrest warrant for Jeffrey Epstein, Det. Recarey, in discussing allegations involving M., omitted the 
material fact that M. clearly stated that her decision to engage in intercourse with Epstein was consensual. 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 3 
• 
See also Recarey Dep. 418:14419:5 (Recarey testifying that M. told him in November 
2005 that she had consensual sex with Epstein shortly before their interview, when M. 
was 17 and nearly 18). 
Moreover, contrary to a characterization in the Board of Examiner's Case Summary, M. was 
clear in her testimony that she voluntarily kissed "a female friend" 3 in front of Epstein when she 
was well over 17 and nearing her 18th birthday: 
• 
Tr. 12:12-13:12 (M. stating the last time that she saw Epstein -- which, based on 
testimony cited above, was the time they had sex -- was the week before 
M.'s 18th birthday], and further statin that the one time she was with the female 
friend was shortly before that, aroun 
All of this conduct involving M. would have constituted, at most, a non-registerable 
misdemeanor if committed in New York instead of Florida. See P.L. § 230.04, McKinney's 
Penal Law § 230.04 (2004).4 Because it cannot be proven by "clear and convincing evidence" 
(or indeed, by any credible evidence) that Mr. Epstein engaged in sexual conduct with M. 
specifically during the time that she was under 17, Mr. Epstein is not guilty of any registerable 
offense under New York law. See Correction Law § 168-a(2)(a)(i). 
A brief look at the evidence concerning •., 
another woman who appears to play a 
significant role in the Board's recommendation, similarly demonstrates that both the Board and 
Det. Recarey mischaracterized ff .'s claims to manufacture registerable conduct with respect to 
M. For example, M. could not provide firm or even approximate dates for her earliest 
interactions with Mr. Epstein: 
• 
Tr. 2:24-27 (M. stating that her date of birth in 
which would 
have made her nearly 19 years old when she was interviewe 
y et.Recarey on 
1 
Again, the transcript of M.'s interview with Det. Recarey reveals significant prejudicial inaccuracies in 
Recarey's Probable Cause Affidavit. For example, Recarey swore that M. claimed that Epstein had M. and the 
other female "kiss and fondle each other around the breasts and buttocks," whereas-. expressly denied that the 
female touched her buttocks or vagina at all, and instead noted only a "very brief' touch of her breasts that M. 
thought may have been "accidental." See 
Tr. 10:25-11:25, 12:12-17. 
4 
Significantly, the Florida charge to which Mr. Epstein pleaded guilty criminalizes the prostitution of a 
person who is under the age of 18 (i.e. 16 and 17 years old), see Fla. Stat. § 796.03, but under New York law, 
patronizing a prostitute is only a registerable offense where the prostitute is under the age of 17, whether under 
2004 law or the broader scope of P.L. § 230.04 in effect today. See Correction Law § 168-a(2)(a)(i) (stating that 
Patronizing a Prostitute in the Third Degree, P.L. § 230.04, is a registerable offense "where the person patronized is 
in fact less than seventeen years of age"). 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 4 
• 
Tr. 3:11-20 (M. estimating that her contact with Epstein lasted somewhere 
between a year and a half and two years). 
• IM Tr. 4:12-23 (M. guessing about the timing of her first meeting with Epstein and 
stating that she does not know whether she was 16 or 17). 
• 
Tr. 11:42-12:4 (M. saying that she cannot keep track of specifically when different 
events with Epstein took place). 
While M. could not say with certainty when she first met and massaged Mr. Epstein, M. 
stated definitively and unambiguously that she was 17 years old during their single instance of 
brief sexual intercourse, when she claimed that Mr. Epstein momentarily penetrated her, before 
immediately withdrawing and apologizing, in the midst of other consensual sexual conduct: 
• 
Tr. 17:21-33 (M. saying that she was "definitely" 17 when she had sex with 
Epstein, but that she could not recall the specific date of when that took place). 
• 
See also Recarey Dep. 407:4411:9 (Recarey testifying that he understood that M. was 
17 or 18 during the momentary "sex," for which she could provide no specific date). 
In addition to establishing that M. was 17 during her interactions with Mr. Epstein (and 
therefore, Mr. Epstein's conduct toward her is not reportable), M.'s statements to Recarey 
further reveal that M. viewed her interactions with Mrifiein (both sexual and non-sexual), 
as well as her sexual interactions with a female named 
," as consensual and entirely self-
interested: 
• 
Tr. 15:1-21 
telling Recarey that Epstein would pay her money to spend time 
with him, relax by the pool, and eat meals, without any sexual activity, and she did that to 
get paid). 
• 
Tr. 20:13-20 (M. describing that she would not let Epstein touch her unless he paid 
her an extra one hundred or two hundred dollars). 
• 
Tr. 19:13-23 
. describing how she made the choice on her own to shop with 
another female (") 
to buy sex toys for Epstein). 
• 
Tr. 20:35- 46 (M. describing how she and 
once decided on their own to buy 
sex toys and engage in sex with each other as a "birthday gift" to Epstein). 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 5 
• 
Tr. 13:28-41 (M. stating that even after speaking to police, she "didn't want to 
bum [her] bridges" with Epstein because she viewed him as a "spectacular connection" 
and she used him for money and other benefits). 
• 
Tr. 27:12-27 (M. stating that she acted "crazy, promiscuous, whatever you want to 
call it," in order to receive money and gifts from Epstein). 
The enclosed excerpts should make clear that M. -- inaccurately described in the Board's 
recommendation as the "16-year old victim" who went to Epstein's home "at least 100 times" --
was not, in fact, a victim of any reportable criminal conduct by Jeffrey Epstein, but rather, was 
an opportunistic young woman who, at 17 and 18 years of age, repeatedly made conscious 
decisions to engage in promiscuous behavior that she believed was entirely in her own self-
interest. Indeed, other evidence demonstrates that M. regularly acted in her own self-interest. 
M. only agreed to speak to police about Jeffrey Epstein following her own September 2005 
arrest for marijuana possession in an attempt to curry favor with law enforcement officials: 
• 
Palm Beach Police Report #1-05-001263, for A. 
(Sept. 11, 2005). 
Furthermore, shortly after speaking to police, 
. was terminated from a job al 
as a result of stealing merchandise fro 
and another store: 
• 
is
In short, 
. was not a victim of Jeffrey Epstein, and accordingly, Mr. Epstein's conduct 
involving 
. should not factor into the SORA assessment at all. 
In fact, transcripts of police interviews with numerous other women who are cited in the 
police reports and in the Recarey Probable Cause Affidavit reveal numerous other troubling 
inaccuracies and exaggerations in the police paperwork on which the Board apparently blindly 
relied in reaching its unsupportable Level 3 recommendation. The following are just a few 
examples of several such egregious misstatements and material omissions in the police 
paperwork: 
• 
Tr. 11:25-12:21 (M., who introduced Epstein to several women, telling police 
that Epstein liked girls who were "between the ages of like 18 and 20" -- a qualification 
that appears to have been deliberate) omitted from Recarey's statement in the Probable 
Cause Affidavit that Epstein told M., "The younger, the better"). 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 6 
• 
Tr. 5:18-23, 11:6-22 (17-year-old woman stating to police that Epstein did not 
touch her inappropriately, did not try to touch her, and did not masturbate while she gave 
him a massage, despite allegations in the Recarey Probable Cause Affidavit that Epstein 
"grabbed her buttocks and pulled her close to him"). 
• 
Tr. 2:25-3:12, 18:7-20 (woman stating that she was 17 when she first met 
Epstein and telling police that Epstein never used any sex toys on her and only touched 
her vagina with his hand, refuting a claim in the Recarey Probable Cause Affidavit that 
"on occasion, Epstein would use a massager/vibrator on her"). 
• 
Tr. 12:6-12 (woman telling police that she was 17 when she first met Epstein, in 
contradiction to the Recarey Probable Cause Affidavit which states that this same woman 
was only 16 when she first met Epstein) 
• 
Tr. 4:10-11, 11:4-7 (woman stating that her date of birth is 
which would have made her 17 years and 9 months old during her sole contact with 
Epstein a, 
and testifying that her interaction with Epstein was entirely 
consensual, despite claim in the Recarey Probable Cause Affidavit that she had "just 
turned seventeen" and suggestion that she was coerced or tricked into interacting with 
Epstein). 
• 
Tr. 3:18-4:1, 5:6-15 (clarifying that woman was 19 or 20 years old during her 
sole encounter with Epstein, and therefore, any sexual conduct with him described in the 
police report and Recarey Probable Cause Affidavit should not be scored under SORA 
and was not even criminal or reportable under the applicable Florida law). 
In fact, in a deposition, Det. Recarey himself acknowledged that there were certain other 
damning allegations contained in his police reports that he failed to correct, to the detriment of 
Mr. Epstein: 
• 
Recarey Dep. 423:1-425:17 (Recarey testifying that he knew that Epstein had purchased 
covert cameras near his desk on the first-floor of his Palm Beach home following a 
burglary in 2003, a fact that Recarey failed to mention in his police report when noting 
that Recarey "found" a covert camera located in that very location). 
• 
Recarey Dep. 458:8-460:18 (Recarey testifying that he knew that certain objects 
recovered from Epstein's garbage, which had been incorrectly identified as "anal wands," 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 7 
were in fact broken eating utensils (not sex toys), and noting that he made no amendment 
in his police report to reflect that correction). 
Recarey also admitted in his deposition that the prosecutor handling the Epstein matter, whom 
Recarey acknowledged to be an experienced prosecutor specializing in sex crimes cases 
involving children, expressed her view to Recarey that, "There are no real victims here." 
• 
Recarey Dep. 484:21-485:13 (Recarey conceding that the Florida prosecutor handling the 
Epstein case told Recarey that there were no victims in this case). 
• 
Recarey Dep. 506:18-507:21 (Recarey acknowledging that the Florida prosecutor 
handling the Epstein case had been with the State Attorney's office for approximately 
twenty years and specialized in sex crimes cases involving underage children) 
Indeed, the state prosecutor herself investigated and evaluated the allegations of the numerous 
women cited in Det. Recarey's 86-page police report and apparently discounted most of them, 
determining that the only charge that could be indicted was one count of Felony Solicitation for 
Prostitution, Fla. Stat. § 796.07 (which, as previously noted, is not a registerable offense under 
Florida law, see Fla. Stat. § 943.0435). No charge of rape or sexual contact with a minor was 
ever prosecuted in connection with any allegations made against Jeffrey Epstein, a fact that, in 
itself and by the terms of the SORA Guidelines, is compelling evidence that such offenses did 
not occur. See Sex Offender Registration Act Risk Assessment Guidelines and Commentary, 
Commentary (2006) at 5, ¶ 7. Accordingly, Jeffrey Epstein should not be scored for such alleged 
conduct that was squarely rejected by the prosecutor and/or grand jury. 
The evidence also makes abundantly clear that Jeffrey Epstein did not know that certain 
of the woman whom he hired to give him massages were underage, due in large part to the fact 
that these women lied outright and sought to deceive Mr. Epstein about their ages: 
• 
Tr. 12:13-21 (M. telling police that she lied to Epstein and told him that she 
was 18 when she was only 17, and further reporting to police that "most of the girls lied" 
to Epstein about their ages). 
• 
Dep. 15:25-17:2 (woman testifying that she was told by M. that she had to be 
over 18 to massage Epstein, so she lied and claimed to be 19 because she wanted to make 
money). 
• 
Tr. 5:5-8 (woman telling police that Epstein did not know her age). 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 8 
• 
Tr. 38:21-39:18 (M. telling police that she told Epstein that she was 18 and in 
twelfth grade because M. told her that Epstein would not allow her in his house if she 
was under 18). 
• 
Dep. 32:17-19, 35:19-38:7 (M. testifying that she was told that Epstein would 
not allow her into his house if she was under 18, and so she lied to Epstein and told him 
that was 18 and went to Wellington, not high school). 
• 
Dep. 6:11-20, 7:24-8:8 (woman testifying that she was instructed to tell Epstein 
that she was 18 if she wanted to give him a massage for money, and since she had a fake 
ID she decided to go). 
• Mfr. 
13:16-22 (woman telling police that Epstein never knew her age, but she was 
instructed to tell Epstein that she was 18 because women had to be a certain age to 
massage him). 
In fact, M., the 14-year-old cited in the Board's write-up, had a history of lying about her age 
and representing herself to be much older than she was, and engaging in sexual activity while 
underage: 
• 
MyS_pe Page (showing age of 18 in March 2006, when she was actually 15, and 
exhibiting M. posing for suggestive sexually-graphic photos). 
• 
Dep. 68:12-69:18 (M. testifying that she lied about being 18 on her MySpace 
page). 
• 
Dep. 108:7-110:1 (M. acknowledging that she was in a sexual relationship 
with a 22-year-old firefighter while she was still underage). 
• 
Dep. 121:3-21 (M. admitted that she was sexually active when she was 14, 
before she ever met Epstein). 
This evidence represents just a small sampling of the materials generated during the lengthy 
investigation and prosecution of Jeffrey Epstein (as well as the case's aftermath), but we believe 
it exposes the allegations cited in the Board's case summary as being unsubstantiated and utterly 
unreliable. The glaring discrepancies between the accounts of various women and the 
characterization of their claims in the police paperwork, the lack of reliable evidence that certain 
women were underage at the time of their encounters with Mr. Epstein, and the questionable 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 9 
credibility and self-interest of many of the women cited all support the conclusion of the Palm 
Beach prosecutor that there were no victims here. Moreover, these facts cannot support the 
grossly inflated SORA risk assessment calculation offered by the Board. For all of the reasons 
set forth herein and in our letter of October 11, 2010, therefore, we ask you to reject the Board's 
recommendation outright and advocate for a more reasonable Level 1 designation, in line with 
what several other jurisdictions have already done. 
Finally, on a separate but related point, we note that upon further consideration and 
investigation, our current view is that Jeffrey Epstein should not be required to register in New 
York at all.5 Mr. Epstein maintains his primary residence in the U.S. Virgin Islands and does not 
actually live, work, or attend school in New York, the three measures which determine whether 
someone needs to register under SORA. See Corrections Law § 168-a(14), (15), § 168-k. 
Indeed, the New York State Department of Taxation has not recognized Mr. Epstein as a 
domiciliary of New York since 1992, despite the fact that he has owned a vacation home in New 
York since that time: [double cheek' 
• 
State of New York Department of Taxation and Finance, 3/1/1996 Statement of 
Personal Income Tax Audit Changes, at 1. 
Mr. Epstein has already registered as a sex offender in the jurisdiction of his residence -- the U.S. 
Virgin Islands. And the other states where he owns secondary residences -- Florida (the state of 
his offense) and New Mexico -- do not require him to register, given the short temporary visits 
he makes to those states, though Mr. Epstein has chosen to maintain his registration in those 
states, again, to ensure his compliance with federal law. As previously detailed, all of these 
jurisdictions, without exception, reviewed his offenses and determined that Jeffrey Epstein was 
either subject to that jurisdiction's lowest reporting obligations or not required to register at all 
under the state's sex offender registration scheme. Because it is our view that Jeffrey Epstein 
should not be required to register in New York at all, should he be designated as anything other 
than a Level 1 offender, we would likely be compelled to challenge the initial determination of 
the Board concerning his obligation to register in the first instance in an Article 78 proceeding. 
Thank you again for meeting with us two weeks ago and for giving us the opportunity to 
provide you with these materials. We hope that these excerpts and other documents have 
demonstrated to you that the Board's recommendation was based on a hasty and imprecise 
analysis of a flawed presentation of allegations. The evidence that we have presented reveals 
Of course, as we discussed in our meeting, Jeffrey Epstein intends to register in New York under SORA, 
whether required to or not, in order to ensure his compliance with the federal Sexual Offender Registration and 
Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., and indeed, he has voluntarily been registered with the 
N.Y.P.D.'s Sex Offender Monitoring Unit (SOMU) since May 20, 2010. 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 26, 2010 
Page 10 
that the Board failed to scrutinize, or even consider individually, the allegations contained in the 
police reports, and as a consequence, the Board came up with a recommendation that deviates 
dramatically from the findings of the prosecutor who investigated and evaluated this case, as 
well as every other jurisdiction that has considered Mr. Epstein's registration obligations. For all 
of these reasons, we ask you to reject the irrational recommendation of the Board of Examiners, 
and instead, defer to the discretion of the states that have a more direct nexus to Mr. Epstein and 
his offense by designating Epstein as a Level 1 under SORA. 
We are happy to meet again or schedule a call should you require additional information 
or wish to discuss this matter further. In any event, we look forward to speaking with you about 
this matter and your position on the SORA hearing in advance of our scheduled court date on 
November 9th. 
Sincerely, 
Jay P. Lefkowitz, P.C. 
Sandra Lynn Musumeci 
JPL/slm 
Attachments 
EFTA00723428