EFTA00731232

KIRKLAND & ELLIS LLP 
AND MILIATED PARTNERSHIPS 
601 Lexington Avenue 
New Yak, New Yak 10022 
Jay P. Lefkowitz, P.C. 
To Call Writer Directly: 
(212) 4464970 
www.kindand.com 
October 26-,a 2010 
By E-mail and By Hand 
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 feu 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 transcript excerpts and other evidence, the Board's 
purported"calculation'-' is also unsupportable baseel-en-the-aeinal-evidenee-eoneerning-the 
Chicago 
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Washington, D.C. 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
October 265a 
2010 
Page 2 
ellegetiens-thet-tiefleppinned-MerEpstein1/2 -eenvietienunder the applicable "clear and 
convincing evidence" standard. 
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. § 796.03i --
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 exceris rom M.'s November 8, 2005 interview with Palm Beach 
Detective Joseph Recarey, 
she-was certainly 17 by the time events "escalated" from 
massages to sexual conduct: 
• 
Exhibit A.
 Tr. 2:5-15 
stating that her date of birth is 
would have made her 
interviewed by Det. Recarey on November 8, 2005). 
when she was 
which 
• 
Exhibit A, 
Tr. 3:15-20 (Ell. stating that she first heard about Epstein from a friend 
"about a year ago"). 
• 
Exhibit A, 
Tr. 5:14-23 
(
M
.
 
stating that after meeting Epstein for the first time, she 
"didn't go again for about two months or so"). 
• 
Exhibit A, 
Tr. 6:13-22 (,
. 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: 
• 
Exhibit A.
 Tr. 8:17-9:23 (M. stating that she engaged in sexual intercourse with 
Epstein only once, when she was nearly 18 years old). 
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)(f), (4Xc), which is not a registerable offense under 
Florida or New York law. See Fla. Stat. § 943.0435; N.Y. Correction Law § I 68-a(2)(a). 
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• EibibitSIM  Tr. 15:12-17 (M. stating that all of her conduct with Epstein was 
consensual and that Epstein never used any force).2
• 
See also rxhibit B.  Recarey Dep. 418:14-419:5 (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: 
• 
Exhibit A, 
Tr. 12:12-13:12 (M. stating the last time that she saw E stein -- which, 
based on testimon cited above, was the time they had sex --
and further statin that the one time she was with the female 
friend was shortly before th 
). 
All of this conduct involving M. would have constituted, at most, a non-registerabk 
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 
Det. Recarey mischaracterized M.'s claims to manufacture registerable conduct with respect to 
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, Del. 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. 
3 
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 a 
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(2XaXi) (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. 
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M. For example, M. could not provide firm or even approximate dates for her earliest 
interactions with Mr. Epstein: 
• 
Exhibit C, MI Tr. 2:24-27 (M. stating that her date of birth is 
which would have made her nearly 19 years old when she was interviewed by Det. Recarey 
on October 11, 2005). 
• 
Exhibit C,-
 Tr. 3:11-20 (M. estimating that her contact with Epstein lasted 
somewhere between a year and a half and two years). 
• 
Exhibit C, MI 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). 
• 
Exhibit Cal
 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: 
• 
Exhibit C, MI 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 Exhibit B.  Recarey Dep. 407:4-411:9 (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 Mr. 
stein (both sexual and non-sexual), as 
well as her sexual interactions with a female named ' 
," as consensual and entirely 
self-interested: 
• 
Exhibit C, M 
Tr. 15:1-21 (M. 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). 
• 
Exhibit C, MI 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). 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
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• Fxhibit C.
 Tr. 19:13-23 
. describing how she made the choice on her own to 
shop with another female (") 
to buy sex toys for Epstein). 
• 
rxhibit C. 
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). 
• 
Exhibit C. 
Tr. 13:28-41 (M. stating that even after speaking to police, she "didn't 
want to burn [her] bridges" with Epstein because she viewed him as a "spectacular 
connection" and she used him for money and other benefits). 
• 
Exhibit C, 
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: 
• 
Exhibit D,  Palm Beach Police Report #1-05-001263, fo 
(Sept. II, 2005). 
Furthermore, shortly after speaking to police, 
. was terminated from a job 
as a result of stealing merchandise from 
and another store: 
• 
I
In short, S 
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: 
• Exhibit±,A= 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 
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Jennifer Gaffney, Esq. and Patrick Egan, Esq. 
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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"). 
• pxhihit G, 
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"). 
• 
Exhibit H. 
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 enly-touched 
her vagina-with his bend ands fss nnnosed to "snmethinr else"L refuting a claim in the 
Recarey Probable Cause Affidavit that "on occasion, Epstein would use a 
massager/vibrator on her"). 
• 
Exhibit I, 
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) 
Exhibits
Tr. 4:10-11, 11:4-7 (woman statin that her date of birth is 
hich would have made her 
Id during her sole contact with
Epstein in November 2004, 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). 
• Exhibit K. 
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: 
• Exhibit B,  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). 
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• 
Exhibit Bs  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," 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." 
• 
Exhibit B,  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). 
• 
Exhibit B,  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: 
• 
Exhibit F. 
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). 
• 
Exhibit J, 
Dep. 15:25-17:2 (woman testifying that she was told by 
that she 
had to be over 18 to massage Epstein, so she lied and claimed to be 19 because she wanted 
to make money). 
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• 
Exhibit G, 
Tr. 5:5-8 (woman telling police that Epstein did not know her age). 
• Exhibitsa 
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). 
• 
Exhibit M, 
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 she was 18 and went to Wellingtenr  net4igha different school). 
• 
Exhibit
 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). 
• 
Exhibit
 Tr. 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, E., theiole 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: 
• 
Exhibit
 P. 
P 
MySpace Page (shewi  
rtr in 
t be age-of 18 in March 2006, 
when she was actually 15, and exhibiting 
. posing forin suggestivel sexually- graphic 
photos). 
• 
Exhibit M. 
Dep. 68:12-69:18 (M. testifying that she lied about being 18 on her 
MySpace page). 
• 
Exhibit M. 
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). 
• 
Exhibit M, 
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 asAlithig 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 
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ehafttetefizatiemischaracterfratiott 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 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 by "clear and convincing evidence" 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 
II, 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 evette4maintained a vacation home in New 
York since that time: {double-eheekf 
• 
Exhibit Q,  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 -- de aet-ree, •
subject to that jurisdiction's lowest reporting obligations or that he is not required to register at 
all. Yet even in New Mexico, where he is not required to register, given-the,shost-temperary 
violtsgte-makes-te-those-statesr ihettgh Mr. Epstein has chosen to maintain his registration-in 
those-states, again, to ensure his compliance with federal law. As-pre*iessly-detailedr  all-ef these 
tioder-the-state1/2 -sex-effender--vegistFatien-sehenter Because it is our view that Jeffrey Epstein 
should not be required to register in New York at all, given theshort temporary_visitsizeinakes_to 
the state,  should he be designated as anything other than a Level 1 offender, we would likely be 
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 
Sex Offender Monitoring Unit (SOMU) since May 20, 2010. 
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compelled to challenge the initial determination of the Board concerning his obligation to register 
in New York in  the first instance inky filing 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-melon imprecise 
analysis of a flawed presentation of allegations. The evidence that we have presented reveals 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 ifratiencilunfounded recommendation of the Board of 
Examiners which cannot be supported by clear and convincing evidence,  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 
EFTA00731241