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KIRKLAND & ELLIS LLP 
Jay P. LefAcrwilz. P.0 
To Call Wnter Dimay.
(212) 446-4920 
iolkowdzOkoktoni CUM 
VIA FACSIMILE (30$) 530-6444 
Honorable 
United States Attorney 
United States Attorney's Office 
Southern District of Florida 
99 NE 4th Street 
Miami. Pl. 33132 
pear Alex: 
AND AltIllAltft 
Ci90rmrp Confer 
153 Cold 53n1 Shutt 
NOV York. NOw Ymk 10022.4611 
vnwrcluikland.com 
December 21. 2007 
Re: Jeffrey Epstein 
lacturiuto. 
(212) 446.4900 
We again extend our appreciation for meeting with us on December 14 and for morally 
considering the issues we have raised both at that meeting and in our submissions to your Office. 
I laving received your letter ol' December 19. we can see that you have made a significant effort 
to address our concerns regarding the * 2255 portion of the non-prosecution agreement (the 
"Agreement"). and we recognize that you have proposed some subsituttiad and important 
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 as quickly u.s possible. 
As we have all discovered. the problem of integrating in an unprecedented manner what 
is at its core a $1511.000 minimum lump sum damage federal civil statute (§ 2255 in its current 
torn) info a federal deferredrnomprosecution agreement that requires pleas of guilty to state 
criminal offenses (lint are correlated to state criminal restitution statutes but not to a disparate 
federal civil non-restitution statute has proved very challenging. The concomitant problem of 
how birly to implement the § 2255 portions of the iNgretanent so that real victims, if any. who in 
bet suffered -personal injury as a result of Ethel violation-  
if any of specified federal 
criminal statutes such as 1X U.S.C. § 2422(h) are placed in the same position as if there had been 
a trial and conviction also requires serious and carelid consideration. In this letter. I want to 
highlight some specific concerns. Sec rasa Whitley Opinion. 
First, your proposal regarding the § 2233 remedy provisions continues to ask us to 
!amine that each and every woman not only was a victim tinder § 2255. hut that the facts alleged 
could have been proven to satisfy each element of-either § !422(b) (the Internet luring statute) 
( 
or § 2423 (the sex-tourism statute). within § 2255 of Title IR. Although we have been denied the 
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Chicago 
Hong Komi 
London 
Los Angeius 
Munich 
San Francisco 
Washington, D C 
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list of alleged "victims" (and lack definitive inlbrmation as to which federal statutes would serve 
as a predicate for each particular alleged victim). or even a lino number as to how many you 
suggest there are, we strongly believe that the proroble conduct of Mr. Epstein with respect to 
these individuals fails to satisfy the requisite elements of either I8 USC § 2422(b) (which we 
understand ft 
prior discussions to be the principal predicate offense upon which the § 2255 
provisions rely) or 18 USC § 2423(b) (another predicate of § 2255 that has been the subject of 
discussions between the parties). See Stern Opinion. We believe that the problem arises from 
the incongruity that exists when attempting in lit a federal civil remedies statute into a criminal 
plea agreement. Again. I note that this problem could have been avoided had the government 
opted instead fora restitution hind as we suggested. 
Our knowledge of the "list" of alleged victims is limited However a prototypical 
example or a witness whom the government has requested we compensate and we believe is 
inaccurately labeled as a "victim" or a federal crime is 
whom we have been told 
remains on the government's "list"). The transcript or •r interview with the Palm Beach Police 
over a year before the EMI became involved in any investigation shows that Ms. 
admitted to lying about. her age, that she did not engage in sexual intercourse with Mr. .pssetn. 
and that she was never induced over the telephone. 
comp
uter
i
 or any other means of 
etumuunication required by 
2422(b). In fact. M. 
me to Mr. Epstein's home on 
only one occasion. She testified that she was inliirme a nu
 opportunity to give a massage 
to Mr. Epstein not on a telephone. computer or any other facility of interstate commerce. hut 
rather in a face-to-face discussion with a third party who was her friend (Ms. 
and who 
told her to lie to Mr. Epstein about her age. As such. it is simply impossible t 
ii ehom this 
conduct into any of the above-discussed federal statutes. 
In addition. Mr. Epstein did not know of Ms. 
 
 did not induce or persuade her to come 
• hoe, 
before
illipeak
 to 
her 
at 
all 
by 
phone 
prior
 
she actually came to his
 
to her visit, did not induce or persuade Ms. 
to bring an underage girl to his residence, 
and did not otherwise violate either the Cede . 
e § 2422(b) nor the travel for the purpose 
statute § 2423(b). Indeed. in her statement. Ms. 
twilled: 
laley told me to say I was 
lit because IlaMy said . . . if you're not then he :Ram won't really let you in his house. So I 
said I was 18." 
Epstein expected an us
e 
erage girl to visit him prior to his regular travel to Florida. his home of 
filleen years. Thus the travel could not have been Ibr the purpose of having illegal sexual 
contact and § 2423(b) is no snore available as a predicate for § 2255 recovery than is 2422(h). 
Never having reached the threshold violations enumerated under of § 2255. Ms. 
would 
still have to rove that she suffered a personal injury. Further, unknown to Ite r. .pstem at the 
time. Ms. 
•presented herself to be 18 not only to him but also to the public on her web 
page where site pinieel a nude photo clearly hooking at least IS years old. 
'worn Statement at 38-39). In fact. there is no evidence that Mr. 
At the December 14 meeting. we also discussed Tatum Miller as emblematic of our 
concerns surrounding 11w government's selection or "victims," As you are aware. Ms. Miller 
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was identified in previous correspondence as a person who remained on the Covenunent's list of 
"victims- even after (at least according to Ms. Villafana's letter) the list was subjected to careful 
multi-party review. Ms.. Miller's sworn 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 
comnsual; 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 lime; and there was never 
any inducement over the telephone, computer or through any other means of interstate commerce 
We ask that you consider the must relevant highlights front her testimony offered below: 
• Consent 
A: I said. I told Jeffrey. 1 heard you like massages topless. And he's like, yeah, he 
said. Inn you don't have to do anything that you don't feel comlintable with. And 
said okay. hut I willingly took it oft (Miller Sworn Statement at II)) 
• 
Lied About tier Age 
A: . . . I had a fake II) anyways. saying that I was 1/2. And she just said make sure 
you're 18 because Jeffrey doesn't want any underage girls. (Miller Sworn Statement 
at 8) 
ki*kk 
A:. .. of course. he thought I was 18... (Miller Sworn Statement ac I 1) 
• 
Instructed Others to Lie About Their Ages 
A: . .. I would tell my girlfriends just like 
pproached me. Make sum you 
tell him you're It Well, these girls that I 
know that they were IR or 19 or 
20. And the girls that I didn't know and I don't know if they were lying or not. I 
would say make sure that you tell him you're I R. (Miller Sworn Statement at 22) 
• 
No Sexual Contact 
O: I Ic 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. 
(Miller Sworn Statement at 21) 
• 
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  
re than welcome to. (Miller Sworn Statement at 8) 
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A: Every girl that I brought to Jeffrey. they said they were line with it. And like. for 
instance. Courtney — Courtney Wild. a lot of girls begged me to bring them back. 
They wanted to come back for the money. And as far as I know, we all had him there. 
(Miller Sworn Statement at 45) 
The sworn testimony of Tatum Miller contains explicit denials from the alleged "victim" 
herself that she suffered any physical. emotional, or personal injury as required by she express
language of § 2255. Further, the sworn testimony of Ms. Miller 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(h). 
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 events. traveled to Palm Beach lin 
a myriad of legitimate reasons ranging from medical appointments to business appointments 
having nothing to do with a sexual objective, and could not be legally charged with traveling to 
his own home particularly in the absence of any provable nexus between the travel and a 
dominant impose m engage 
illicit sexual conduct. Although Ms. 
infilmed us 
during the December 14 meeting that she had a telephone toll record showing an out-of-state call 
to or from Ms. Miller's phone to a phone number associated with Mr. Epstein. such a record fails 
to prove the content of the call. the identity of the communicators. whether the call discussed or 
resulted in a plan fur Ms. Miller to visit Mr. Epstein's residence, whether any inducement 
occurred on the nut of stale call or. more importantly for purposes of the sex tourism statute. 
whether any travel was planned to Florida or resulted from the phone call. Ms. Miller's 
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 of prostitution is unnaturally expandtx1). A complete transcript orate federal interview 
of Ms. Miller has previously been provided to you. 
Your wish to put these women in the same position as they would have been had them 
been a federal conviction assumes they arc each legitimate victims of at least one of the two 
specific federal crimes enumerated under § 2255. We respectfully have to disagree with that 
assumption. and even your current formulation of § 7255 would prejudice Mr. Epstein in this 
regard. 
Second. your proposal also effectively deprives Mr.. Epstein of his opportunity to lest the 
validity of these woolens' claims claims that would have been extensively tested at trial. In 
light of what we have already learned about 
and Tatum Miller. it is inappropriate 
to deny Mr.. Epstein and his counsel the right to test the merits of each of these womens cases. 
in order to verify that they in fact suffered "personal injury" as required by § 2255 and to assess 
whether they are in Fun victims of any violations of § 2422(b) or § 2423(b) as also required by 
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§ 2255. Given your Offices informing us that I 
remained on a reduced list of federal 
- victims" and given our understanding that Ms. 
as well was one of those who is also 
on the list of persons the Utivernment contends were Mc MIN 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 elan application to 
recover SI50.000. 
Tird, the Agreement. even if modified in accord with your December 19 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. Had there been a conviction, these women would have been thoroughly cross-
examined. Ibr the veracity of their statements. their, credibility and the foundations. if any. fir 
claiming personal injury. Also. Mr. Epstein would have received, pursuant to either Brady or 
Jencks. material in tlx: form of prior inconsistent statements made by these women before they 
learned of any financial benefit that may be available to them—evidence that should he 
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 facie ease that she was a victim of a violation by Mr. Epstein of § 2422(b) or 
any other federal statute—a denial of his rights that would insulate potential claimants such as Ms. 
and Ms. 
from any challenge on this clement even if tinder other circumstances a 
challenge wind rest t m a summary judgment in Mr. Epstein's favor under Fed. 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 are itht amongst the predicates enumerated by 
§ 2255 and do not. without more, result in the basis fl r 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 tholnote. 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-iii 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, but have no real knowledge as to the timing of 
events. Furthermore, your letter also suggests that our objection to your Olfiee's proposed 
victims notification letter was that the women identified as victims of federal crimes should not 
be notified of the state proceedings. Ilan 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 
are in fact not victims us defined in the Attorney General's 2000 Victim Witness Guidelines—u 
status requiring physical. emotional or pecuniary injury of the defendant—it was and remains our 
position that these women may be notified of such proceedings but since they arc neither 
witnesses nor victims to the state prosecution of this matter, they should not he inlimned of 
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fictitious "rights" or invited to make sworn written or in-court testimonial statements against Mr. 
Epstein at such pmceedings. as Ms.. Villalana 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 witressi.s after the exceutiun of the 
Agreement should finally come to an end. 
We agree, however. with your December 19 
modification of the previously drafted federal notification teller and agree that the decision as to 
who can be heard at a state sentencing is. amongst many other issues, properly within the aegis 
of state decision making. 
Your December 19 Mier references Professor Dershowitz's position on the 
inapplicability of Florida Statute § 796.03. Professor Dershowitz made such ary.uments in the 
context at' saying that he had been unable to discern, tiller great °Min. and supported by years of 
experience, any basis for the application of § 2422(b) or other federal sex statutes to Mr. 
Epstein's conduct and that the federal statutes required more of a stretch to lit the facts than the 
proposed stile statute to which Ms. Villafana wanted Mr. Epstein to plead. 
Pmkssor 
Dershowitz also slated that Ms. Villafnna hod 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 *7.96.03 (which the panics understood to he the state charge of soliciting a minor. as 
Ms. Yalta-ma's last letter clearly states). Only last week we learned for the first time that Ms. 
did not realize that the charge was actually lbr "procuring" nut "soliciting". The 
charge (a pimp statute) of procuring a prostitute for a third party for financial gain is one for 
which Ms. Villatana now states she does not have the them 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 "11111 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 Office, we have always proceeded in a timely manner and made several efforts 
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 stall' that you hold Mr. Epstein in breach of the 
Agreement by his failure to pica and he sentenced on October 26, 2007 is directly contradicted 
by Mr.. Simian's e-mail to me dated October $1 in which he states. "Your understanding from 
Jack Goldberger con:hems tomy understanding that Mr.. Epstein's plea and sentence will take 
place un the same day. I understand that the plea and sentence will occur on or before the 
January 4th date." 'this has been our common understanding for sonic time. which we have now 
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reiterated several times. With that said. please be advised that we arc working for a quick 
resolution and do not seek to delay the proceedings. 
Thank you again for your time and consideration. We look lbrward to your response to 
the concerns we have raised that have not yet been addressed. 
wish you a very happy and a healthy new year. 
Sincerely. 
v . Lefkojitz 
cc : 
Honorable Alice Fisher. Assistant Attorney General 
Jeffrey II. Sloman. First Assistant U.S. Attorney 
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KIRKLAND & ELLIS LLP 
Jo; P. Lotkowin, P.C. 
To 
W 
y: 
log *Me 
nd.00rn 
VIA FACSIMILE (305) 530-6444 
Honorable 
tInital States Attorney 
United States Attorney's Office 
1.,outhern District of Florida 
99 NE 4th Strcct 
Miami, FL 33132 
Dear M. 
I write to address the questions you posed to me during a conversation we had late last 
week. Specifically, you requested a clarification of our position on two issues; (1) our view on 
your latest proposal regarding notification to the alleged victims under 18 U.S.C. § 3771; and (2) 
our response to your proposed language regarding the 18 U.S.C. § 2255 component of the 
deferred-prosecution agreement (the "Agreement"). Before 1 turn to these questions, I would 
like to reiterate that this letter responds to your invitation to discuss proposed modifications to 
the Agreement and should not be construed in any way as a breach of the Agreement. With that 
slid, 1 must tell you that the more 1 look into these issues, the more difficulties I see in trying to 
tic the resolution of a federal criminal matter with a federal civil matter involving minors, and 
this is even further complicated when the premise of the resolution is a deferred federal 
prosecution conditioned on a plea to specific state offenses with a specific sentence pre-
determined and required to be imposed by the state court, without consideration of the fact that 
the State view of this case differs dramatically from yours. With that in mind, 1 turn to each of 
your questions below. 
First, although we appreciate your willingness to modify your Office's § 3771 notice, 
which is embodied in your latest proposal, we must still object to aspects of your proposal on the 
ground that notice under § 3771 is per se inapplicable to this case under the Attorney General's 
own guidelines, because the alleged victims are not "crime victims" under § 3771. The Attorney 
General Guidelines for Victim and Witness Assistance defines "crime victim" as follows: 
AND AITILIATLD PAVINIItSHIPS 
Citigroup Canter 
153 Elam 53rd SWIM 
New York, Now 'font 10022.4811 
ass.saoo 
www.hlrilsnd.00m 
December 26, 2007 
Re: Jefflay Epstein 
For the purpose of enforcing the rights enumerated in article 1.13, a victim is 'a person 
directly and proximately harmed as a result of the commission of a Federal offense or an 
offense in the District of Columbia' (18 U.S.C. § 3771(e)) if the offense is cbarged in 
Federal district cowl. If a victim is under 18 years of age, incompetent, incapacitated, or 
• 
Chicago 
Hong Kong 
London 
Los Angeles 
Munich 
San Francisco 
Washinglon, D.C. 
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l'age 2 
deceased, a family member or legal guardian of the victim. a representative of the 
victim's estate, or any other person so appointed by the court may exercise the victim's 
rights, but in no event shall the accused serve as a guardian or representative for this 
purpose. (18 U.S.C. § 3771(e)). 
• 
• 
The Attorney General Guidelines for Victim and Witness Assistance, at 9 (emphasis added). 
Here, the women are clearly not "crime victims" under the Attorney General Guidelines 
definition. To be a "crime victim", a person or entity must be harmed by an offense that has 
peen charged in Federal district court. See U.S. I. Guevara-Toloso, 2005 WL 1210982 at *2 
(E.D.N.Y. May 23, 2005) (noting that § 3771's reference to "the crime" suggests "a focus only 
on the crime with which a defendant is charged in the case in which a victim seeks to assert her 
statutory rights.") (emphasis added) Since there has been no offense charged in Federal district 
court in this matter, the identified individuals necessarily do not qualify as "crime victims". In 
addition, the Attorney General Guidelines further defines a "cnme victim" us "a person that has 
sJffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime. 
(42 U.S.C. § 10607(e)(2))— Id. As you know, we believe we have shown that at least some (if 
not all) of the identified individuals did not suffer any injury at all in connection with Mr. 
Epstein's alleged conduct,' 
In addition, under the Attorney General Guidelines, notification must be balanced against 
a ry action that may impinge on Mr. Epstein's due process rights. 
The Attorney General 
Cuidelines clearly call into question the wisdom and practicality of giving notice" to a "possible 
itness in the case and the effect that relaying any information may have on the defendant's right 
h. a fair trial." The Attorney General Guidelines for Victim and Witness Assistance, at 30. The 
Attorney General Guidelines caution federal prosecutors from providing notice to potential 
witnesses in instances where such notice could compromise the defendant's due process rights. 
This is particularly true, as here, if the notice includes confidential information, including the 
conditions of a confidential deferred-prosecution agreement or non-prosecution agreement. In 
li;ht of these concerns, we respectfully request that you reconsider sending notices to the alleged 
victims pursuant to § 3771. 
Our objection to § 3771 notwithstanding, we do not object (as we made clear in our letter 
last week) that some form of notice be given to the alleged victims. To that end, we request an 
opportunity to review the notification before it is sent in order to avoid any confusion or 
misunderstandings. We believe, however, that any and all notices with respect to the alleged 
victims of state offenses should be sent by the State Attorney rather than your Office, and we 
I 
See for example, our prior submissiuns regarding 
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gree that your Office should defer to the discretion of the State Attorney regarding all matters 
%Mit regard to those victims and the state proceedings. 
Second, the more we work to resolve our mutual concerns regarding the § 2255 
component of the Agreement, the more our growing fears are realized that the implementation of 
2255 in this case is inherently flawed and becoming truly unmanageable. In the first instance, 
tie implementation of § 2255 in this matter causes manageability concerns because it appears the 
civil component of this case must be stayed until after all phases of a criminal action have been 
resolved. I8 U.S.C. § 3509(k), which codifies child victims' and child witnesses' rights, seems 
on its face to preclude any interference arising from a potential or pending civil action on a 
nilated criminal proceeding in order to protect a defendant's right to due process. The statute 
states: 
If, nt any time that a cause of action for recovery of compensation for damage or injury to 
the person of a child exists, a criminal action is pending which arises out of the same 
occurrence and in which the child is the victim, the civil action shall be stayed until the 
end of all phases of the criminal action and any mention of the civil action during the 
criminal proceeding is prohibited. As used in this subsection, a criminal action is pending 
until its final adjudication in the trial court. 
I S U.S.C. § 3509(k). See also, John Doe 1 
Francis, 2005 WL 517847, at *2 (N.D. Fla. Feb. 
1), 2005) ("the language of 18 U.S.C. § 3509(k) is clear that a stay is required in a ease such as 
this where a parallel criminal action is pending which arises from the same occurrence involving 
minor victims. See 18 U.S.C. § 3509(k). Inasmuch as Plaintiffs have offered no authority or 
evidence to the contrary, the Court finds that the stay in this case must remain in effect until final 
adjudication of the criminal case by the state court.") 
It appears that any attempt to resolve the civil component of this case (be it through 
structured settlements or civil litigation) may be precluded by § 3509(k) insofar as all phases of 
e criminal action have not yet been resolved, To allow for a civil cause of action while a 
related criminal action remains pending can unduly bias the witnesses who could be improperly 
ircentivized by a potential monetary recovery. The prevention of such a result is precisely the 
reason that § 3509(k) was enacted. Indeed, there can be no such resolution of "all phases of the 
criminal action" here, until Mr. Epstein's state sentence is concluded and all opportunity for the 
initiation of a federal prosecution is foreclosed. 
In addition, we have reiterated in previous subtnissions that Mr. Epstein does not believe 
hi: is guilty of the federal charges enumerated under § 2255. For this reason, we believe that 
your proposed language regarding an appropriate § 2255 procedure unfairly asks Mr. Epstein to 
agree that each and every alleged victim identified by the Government is a victim of an 
enumerated federal offense under § 2255 and should, therefore, be placed in the same position 
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she would have been had Mr. Epstein been convicted of such an offense. As we discussed last 
week, it is this requirement that makes your § 2255 proposal so problematic. As much as we 
ppreciate your willingness to revisit the § 2255 issues, we cannot accept your language as 
proposed, because we believe that the conduct of Mr. Epstein with respect to these alleged 
ictims fails to satisfy the requisite elements of any of the enumerated offenses, including 18 
II.S.C. § 2422(b) or 18 U.S.C. § 2423(6). In light of the information we have presented to you 
regarding the two alleged victims whom we understand appear on your list, we hope you 
t nderstand why your language presents us with these concerns. Essentially, you are asking us to 
help put these women in a position that may not he warranted. 
In short, your proposed language regarding § 2255 states that Mr. Epstein should be 
treated "as if he had been convicted" of an enumerated federal crime. This requires Mr. Epstein 
to in essence admit guilt, though he believes he did not commit the requisite offense. The United 
States Attorney Manual ("USAM") 9-27.440, Principles of Federal Prosecution, sets forth a clear 
requirement when a defendant tenders a plea of guilty but subsequently denies committing the 
offense to which he has offered to plead. Specifically, 9-27.440 provides, in part! 
• 
• 
In a case in which the defendant tenders a plea of guilty but denies committing the 
offense to which he/she offers to plead guilty, the attorney for the government should 
make an offer of proof of all facts known to the government to support the conclusion 
that the defendant is in fact guilty. See also USAM 9-16.015. 
To date, your Office has refused our requests to share such information with us. For the 
exposes of attempting to resolve the * 2255 issue, we once again request that your Office make 
this proof available. 
Specifically, your Office has represented that liability exists under 
§ 2422(b) and § 2423(b), as well as the state offense, Florida Statute § 796.03. We would 
elcome this previously sought information at your earliest convenience to enable us to resolve 
tl.is matter in a timely fashion. 
Finally, I would like to address your request that we provide revised language to your 
Office regarding the appropriate § 2255 procedure. Given the inherent complexities described 
above, we have not been able to find language that comports with the Agreement and your stated 
goals, especially given your insistence that the women be placed in the same position as if Mr. 
E )8k-in "had been convieted".2 However, if you so choose — and keeping in mind that we 
2 
In addition, we remind yoµ that wholly and apart from the judicial stay that appears to be required under 
§ 3509(k), we behove that the minimum damages amount referenced in § 2255 (S150,000) is subject to tut ex-
post facto motion, as the statutory minimum was $50,000 at the time of the alleged conduct and the statute is 
being implemented in a deferred-prosecution agreement. 
• 
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intend to abide by the Agreement — we would he willing at you earliest convenience to discuss 
possible alternatives. 
Thank you for your time and consideration. We remain available to work with you to 
resolve these difficult issues in a constructive manner, and we look forward to your response to 
1he concerns we have raised that have not yet been addressed by your Office. 
s' 
Sincerely, 
Ja P. Lelkowftz 
cc: 
Jeffrey H. M, 
First Assistant U.S. Attorney 
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K I HKI.ANIMPI.1.1 5 
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Kenneth W. Starr 
Kirkland & Ellis LLP 
777 South Fixi ores Street 
Loa Angeles, l
_90027-580o 
Phone: ata-aatto-8440 
Fax: 223-680450o 
Icearrekirldand.coin 
May 19. 2008 
VIA FACSIMILE (202) 514.0467 
lionorable Mark Filip 
Office of the Deputy Attorney General 
United States Department of Justice 
950 Pennsylvania Avenue, N. w. 
Washington, D.C. 20530 
Joe D. Whitley 
Alston & Bird LIP 
the Atlantic Building 
950 I' Street, NW 
washinglun, DC aoun4-1404 
Ph: 202.756-3189 
Fax: 202.654.4889 
joe.whitlengialston.cum 
CONFIDENTIAL 
Dear Judge Filip: 
in his continuation hearings last fall, Judge Mukascy admirably lifted up the finest 
traditions of the Department of Justice in assuring the United States Senate, and the American 
people, of his solemn intent to ensure fairness and Integrity in the administration of justice. Your 
own confirmation hearings echoed that bedrock determination to assure that the Department 
conduct Itself with honor and integrity, especially in the enforcement of federal criminal law. 
We come to you in that spirit and respectfully ask for a review of the federal involvement 
in a quintessentially state matter involving our client, Jeffrey Epstein. While we arc well aware 
of the rare instances in which a review of this sort is justified; we are confident that the 
einannstances at issue warrant such an examination. Based on our collective experiences, as 
well as those of other former senior Justice Depanment officials whose advice we have sought, 
we have never before seen a case more appropriate for oversight and review. Thus, while neither 
of us has previously made such a request. we do so now in the recognition that both the 
Department's reputution, as well as the due process rights of our client, are at issue. 
Recently, the Criminal Division concluded a very limited review of this matter at the 
request of U.S. Attorney 
Critically, however, this review deliberately excluded 
many important aspects of this case. Just this past Friday, on May 16, 2008, we received a letter 
from the head of CEOS informing us that CEOS had conducted a review of this case. By its own 
admission, the CEOS review was "limited, both factually and legally." Part of the self-imposed 
limitation was CEOS's abstention from addressing our "allegations of professional misconduct 
by federal prosecutors"—even though such misconduct was, as we contend it is, inextricably 
intertwined with the credibility of the accusations being tnade against Mr. Epstein by the United 
States Attorney's Office in Miami ("USAO"). Moreover; CEOS did not assess the terms of the 
f)eferred Prosecution Agreement now in effect, nor did CEOS review the federal prosecutors' 
inappropriate Wens to implement those terms. We detail this point below. 
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Honorable Murk Filip 
May 19. 2008 
Page 2 
By way of background. we were informed by Mr. 
that, at his request, CEOS 
would be conducting; a review to determine whether federal prosecution was both appropriate 
and, in his words. "fair" That is not what occurred. instead, CEOS has now acknowledged that 
we had raised "many compelling arguments" against the 1.18AO's suggested "novel application" 
of federal law in this matter. Even :4O. CEOS concluded. in minimalist fashion. that "wt do not 
see anything that says to us categorically that a federal cast should not be brought" and that the 
Anotney "would not he abusing his prosecutorial 
• 
ion should he authorize federal 
prosecution of Mr. Epstein" thus delegating back to Mr, 
the decision of whether federal 
prosecution was warranted (emphasis added.). Rather than assessing whether pmsccution would 
be oppropriate. CEOS, using a lowbaseline for its evaluation, determined only that "it would not 
be impossible to prove . 
." certain allegations made against Mr. Epstein. The CEOS review 
failed to address the significant problems involving the appearance of impermissible selectivity 
that would necessarily result from a federal prosecution of Mr. Epstein. 
We respect CEOS's conclusion that its authority to review -misconduct" issues was 
preeiuded by Criminal Division practice. We further respect CEOS's view that it understood its 
mission as significantly limited. Specifically, the contemplated objective was to determine 
whether the USAO would he abusing its discretion by bringing a federal prosecution rather than 
making its own de novo recommendations on the appropriate reach of federal law. However, we 
respectfully submit that a full review of all the facts is urgently needed at senior levels of the 
Justice Department. In an effort to inform you of the nature of the federal investigation against 
Mr. Epstein, we summarize the facts and circumstances of this matter below. 
The two bast-level eoneern 5. we. hold use that (1.) federal prosecution of this matter is not 
warranted based on the purely-local conduct and the unprecedented application of federal 
statures to facts such as these. and (2) the actions of federal authorities are both highl 
questionable and give rise to an appearance of substantial impropriety. The issues that we have 
raised, but which have not yet been addressed or resolved by the Department, are more than 
isolated allegations of professional mistakes or misconduct. 'these issues, instead, affect the 
appearance and administration of criminal justice with profound consequences beyond the 
resolution in the matter at hand. 
• 
in a precedent-shattering investigation of Jeffrey Epstrein that raises important policy 
questions—and serious issues as to the fair and honorable enforcement of federal law—the 
USA.° in Miami is considering extending federal law beyond the bounds of precedent and 
reason. 
Federal prosecutors stretched the underlying facts in ways that raise fundomontal 
questions of basic professionalism. Perhaps most troubling, the USA() in Miami, as a condition 
of deferring prosecution, required a commingling of substantive federal criminal law with a 
proposed civil remedy engineered in u way that appears intended to profit particular lawyers in 
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• 
Honorable Mark Filip 
May :9, 2008 
Page 3 
private practice in South Florida with persona) relationships to some of the prosecutors involved. 
Federal prosecutors then leaked highly sensitive information about the case to a New York 
Times Tenon& The immediate result of this confluence of extraordinary circumstances is an 
onslaught of civil lawsuits, all save one brought by the First Assistant's former boutique law lion 
tn 
The facts in this case all revolve around the classic state crime of solicitation of 
prostitution." The State Attorney's Office in Palm Beach County had conducted a diligent 
investigation, convened a Grand Jury that returned an indictment, and made a final determination 
about how to proceed. 
Thai is where, in mu federal republic, this matter should rest. 
Mr. Epstein faces a felony conviction in state court by virtue of his conduct, and the only reason 
the Suite has not resolved this matter is that the federal prosecutors in Miami have continued to 
insist that we, Mr. lipstein's counsel, approach and demand from the State Attorney's Office a 
harsher charge and a more severe punishment than that Office believes are appropriate under the 
circtunstanc.es. Yet despite the USAUs refusal to allow the State to resolve this meter ou the 
terms the Stare has determined are appropriate, the USAO has not made any attempt to 
coordinate its efforts with the State. in fact, the USA() mandated that any federal agreement 
would be conditioned on Mr. Epstein persuading the State to seek a criminal punishment unlike 
that imposed on other defendants within rho jurisdiction of the State Attorney for similar 
conduct. 
From the inception of the USAO's involvement in this case. which at the end of the day 
is a case about solicitation of prostitution within the confines of Palm Beach County, Florida, we 
have asked ourselves why the Department ofIustice is involved. Regrettably, we are unable to 
suggest any appropriate basis for the Department's involvement. Mr. Epstein has no criminal 
history whatsoever. Also. Mr. Epstein has never been the subject of general media interest until 
a few years ago. after it was widely perceived by the public that he was a close friend of former 
President Bill Clinton. 
The conduct at issue is simply not within the purview of federal jurisdiction and lies 
outside the heartland of the three federal statutes that have been identified by prosecutors-18 
U.S.C. ki 1591. 2422(b), and 2423(h). 
Uric 01 the other members of Mr. Epstein's defense team, Jay Lotkuwitx has personally revloWed the reporter's 
contemporanuous notes. 
Although SOinu of Olt •Avinen alleged to be involved were 16 and 17 years of age, several or these womett 
openly admitted to lying to Mr. Epstein Atm' their age in their recent sworn statements. 
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Honorable Murk Filip 
May 19, 2008 
Par 4 
These statures arc intended to target crimes of a truly national and international scope. 
Specifically, § 1591. was enacted to combat human trafficking, § 24122 is aimed at sexual 
predation of minors through the Internet. and § 2423 deals with sex tourism. The nature of !hese 
crimes results in multi-jurisdictional problems that state and local authorities cannot effectively 
confront on their own, However, Mr. Epstein's conduct was purely local in nature and, thus. 
does not implicate federal involvement. After researching every reported case brought under 18 
§§ I591, 2422(b), and 2423(b), we found that not a single case involves facts or a 
scenarto similar to the situation at hand. Our review of each precedent reflects that there have 
been no reported prosecutions under § 1591 of a 'John' whose conduct with a minor lacked 
three, coercion. or fraud and who was not profiting from commercial sexual trafficking. There 
have likewise been no cases under § 2422(b)—a crime of communication—where there was no 
use or the Internet, and where the content of phone communications did not contain any inducing 
or enticing of a minor to have illegal sexual activity as expressly required by the language of the 
statute. Furthermore, the Government's contention that "routine and habit" can fill the factual 
and legal void created by the luck of evidence that such a communication ever occurred sets this 
case apart front every reported case brought under § 2422(b). Lastly, there are no reported cases 
of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to 
his own home? 
Although these matters were within the scope of the CEOS review, rather than 
considcrinn whether federal prosecution is appropriate, CEOS only determined that U.S. 
Attorney MEM "would not be abusing his prosecutorial discretion should he authorize federal 
prosecution" iu this case. The "abuse of discretion" standard constitutes an extremely low bar of 
evaluation and while it may be appropriate when the consideration of issues are exclusively 
factual in nature, this standard fails to address concerns particular to this situation, namely the 
"novel application" of federal statutes. The "abuse. of discretion" standard in such pure legal 
matters of statutory application risks causing a lack of uniformity. The same federal statutes that 
would be stretched beyond their bounds in Miami have been limited to their heartland in each of 
the other federal districts. Also, because this case implicates broader issues of the administration 
of equal justice, federal prosecution in this matter risks the appearance of selectivity in its 
stretching of federal law to fit these facts. 
Itedcral prosecution ore man who engaged In consensual conduct in his home that amounted to, ut most, the 
aulieitation of prostitution, is unprecedented. Since prostitution is fundamentally a state concern. (see United 
Sigler v. Evans, '176 17.3d 1176, C.1 ( i I al Cir, 2007) (federal law "does not criminalize all acts of prostitution (a 
vice traditionally govumad by state regulation)")). and thaw is no evidence that Palm Beach County authorities 
and fl orid: prosecutors cannot effectively prosecute and punish the conduct, there is no reason why this emitter 
should be extracted front the bands of state prosecutors in Florida. 
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Honorable Mark Ville 
May 19.2008 
Page 
In fact, recent testimony of several alleged "victims" contradicts claims made by federal 
prosecutors during the negotiations of a deterred prosecution agreement. 
re )resumat. 
ent witnesses (such as Tatum Miller. 
confirm the following critical points: 
WI, there was no 
T O 
CJWISC, that meets the requirements of § 2422(4 For instance. 
Ms 
confirmed that Mr. Epstein never mailed, text-messaged, or used any facility of 
interstate commerce whatsoever. before or after her one (and only) visit to his home. Gonzalez 
Tr. (deposition) at 30. Second, the women who testified admitted that they lied to Mr. Epstein 
about their age in order to gain admittance into his home. Indeed, the women who brought their 
underage friends to Mr. Epstein testified that they would counsel their friends to lie about their 
ages as well. Ms. Miller stated the following: "I would tell my girlfriends Just like 
approached me. Make sure you tell him you're IR. Well, these girls that I brought, I know t at 
they were 18 or 19 or 20. And the girls that I didn't know and 1 don't know if they were lying in 
not, 1 would say make sure that you tell him you're 18." Miller Tr. at 22. Third, there was no 
routine or habit of improper communication expressing an intent to transfomt a massage into an 
illegal sexual act, Iii fact, there was often no sexual activity at all during the massage. Ms. 
Miller testified that Isjornetimes (Mr. Epstein] j 
t massaged. Sometimes he 
just wanted a back massage." Miller Tr. at 19. 
"never touched [her] physical " 
d that all she 
nassage 
his back. his chest and his 
thighs and that was it." 
Tr. at 12-B. Finally, there was no force, coercion, fraud, 
violence, dru s or even alcohol present in connection with Mr. Epstein's encounters will t ese 
women. Ms. 
stated Mtn "[Mr. Epstein) never trled to force me to do anything." 
Tr. 
A at 12. These accounts are far from the usual testimony in sex slavery, Internet stings an sex 
tourism eases previously brought. The women in actuality were not younger than 16, which is 
the age of consent in most of the SO states, and the sex activity was irregular and in large part. 
consisted of solo self-pleasuring. 
The recent crop of civil suits brought against Mr. Epstein confirm that the plaintiffs did 
not discuss any sexually-related activities with anyone prior to arriving at Mr. Epstein's 
residence. This reinforces our contention that no telephonic or Internet persuasion, inducement, 
enticement or coercion of a minor, or of any other individual, occurred. In addition, Mr. Jeffrey 
Harmful. the former law partner of one of the federal prosecutors involved in this matter and die 
attorney for most of the civil complainants (as described in detail below), was quoted in the Palm 
Beach Post as saying that "it doesn't matter" that his clients lied about their ages and told Mr. 
Epstein that they were I8 or 19. 
Not only is a federal prosecution of this matter unwarranted, but the irregularity of 
conduct by prosecutors and the unorthodox terms of the defencd prosecution agreement arc 
beyond arty reasonable interpretation of the scope of a.proseeuror's responsibilities. The list of 
improprieties includes; hut is not limited to, the following facts: 
also stated thut Mr. Epstein 
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Honorable Mark Pilip 
May 19, 2008 
Page 6 
• 
Federal prosecutors made the unprecedented demand that Mr. Epstein pay a 
minimum of $150,000 per person to an unnamed list of women they referred to as 
minors and whom they insisted required representation by a guardian ad them. Mr. 
Epstein's counsel later established that. all but one of these incliiiduals were actuully 
adults, not minors. Even then, though demanding payment to the women, the 
USAO eventually asserted that k could not vouch for the veracity of tut} of the 
claims that these women might make. 
• 
Federal prosecutors made the highly unusual demand that Mr. Epstein pay the fors 
of a civil attorney chosen by the prosecutors to represent these alleged "victims" 
should they choose to bring any civil litigation against hint. They also proposed 
sending a notice to the alleged "victims," stating, In an underlined sentence, that 
should they choose their own attorney, Mr. Epstein would not be required to pay 
their fees. The prosecutors further demanded that Mr. Epstein Waive his right to 
challenge any of the allegations made by these "victims.-
• 
The Assistant U.S. Attorney involved in this manor recommended for the civil 
attorney, a highly lucrative position, an individual that we later discovered was 
closely and personally connected to the Assistant. U.S. Attorney's own boyfriend. 
• Federal prosecutors represented to Mr. Epstein's counsel that they had identified 
(and later rechecked and re-identified) several alleged "victims" of federal crimes 
that qualified for payment under 18 U.S.C. § 2255, a civil remedy desigueci to 
provide financial benefits to victims. Only through state discovery provisions did 
we later loam that many of the women on the rechecked "victim list" could not 
possibly qualify under § 2255. The reason is that they, themselves, testified that 
they did not suffer any type of harni whatsoever, a prerequisite for the civil recovery 
under § 2255. Moreover, these women stated that they did not, now or in the past. 
consider themselves to be victims. 
• 
During the last few months, Mr. Herman, First Assistant Sloman's thriller law 
partner, has tiled several civil lawsuits against Mr. Epstein on behalf of the alleged 
"victims." It is our understanding char each of Mr. Herman's clients arc on du: 
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