We bring these difficult and delicate matters of misconduct to your attention not to 
require any disciplinary action or review by the Office of Professional Responsibility. Although 
we have been told that some of this misconduct has been self-reported (only after we raised these 
complaints in writing), we feel confident that not all the facts were adequately presented. Rather, 
we believe that they are highly relevant to your decision whether to authorize a federal 
prosecution in this case. This pattern of overzealous prosecutorial activity strongly suggests 
improper motives in targeting Jeffrey Epstein, not because of his actions (which are more 
appropriately the subject of state prosecution), but, rather, because of who he is and who he 
knows. We also bring this pervasive pattern of misconduct to your attention because we believe 
it taints any ongoing federal prosecution. The misconduct pervades the evidence in this case. 
The offers of financial inducement to witnesses, improperly encouraged by the government, 
make their potential testimony suspect. The reliance on tainted evidence gathered by the state 
will require a careful sorting out of poisonous fruits. 
10 
HOUSE OVERSIGHT 012169 
KIIUCLAND &ELLIS LLP 
Most important, however, is that the extraordinary nature of this misconduct, so unusual 
in ordinary federal prosecutions, raises the gravest of concerns about why prosecutors would go 
to such lengths in a case already being prosecuted by the State and with so little, if any, federal 
concern. Accordingly, we ask you to conduct your own investigation of these matters, because 
we believe that what we have provided you may constitute only the tip of a very deep iceberg. 
Without the power of subpoena, which we currently lack, we are unable to dig deeper. We 
strongly believe that there is far more exculpatory evidence that has not been disclosed, more 
leaks that we have not yet uncovered and more questionable behavior. This is a case that cries 
out for a deeper investigation than we are capable of conducting, before any decision to 
prosecute is permitted. 
11 
HOUSE OVERSIGHT 012170 
RESPONSE TO 
FAUSA 
SLOMAN'S LETTER 
HOUSE OVERSIGHT 012171 
KIRKLAND & ELLIS LLP 
Response to Letter by FAUSA Sloman Dated May 19, 2008 
In a May 19, 2008 letter to Jay Lefkowitz (See Tab 1), SDFL First Assistant U.S. 
Attorney Jeffrey Sloman provided what purported to be a summary of the events that have 
occurred during the investigation of Mr. Epstein. Mr. Sloman's letter is fraught with 
inconsistencies, false and misleading characterizations and outright falsehoods. The comparison 
below between the false assertions in Mr. Sloman's letter and what actually transpired is only the 
tip of the iceberg. We respectfully submit that Mr. Sloman's letter alone demonstrates the 
degree to which the record of facts have been distorted and these distortions have permeated this 
unprecedented investigation. 
1. "INDEPENDENT" AND "DE NOVO" REVIEW. 
Mr. Sloman's Letter: 
• "[W]e obliged your request for an independent de nova review of the investigation and 
facilitated such review at the highest levels of the Department of Justice. " Tab 1, May 
19, 2008 Letter from J. Sloman, p. 5, 1 3. 
The Truth: 
• CEOS' review, concluded in May 2008, was neither independent nor de nova. 
o CEOS' review was not "independent:" 
• Drew Oosterbaan, who conducted the review on behalf of CEOS, had 
already reviewed the prosecution memo on this matter eight months 
earlier. During a meeting with defense counsel at the United States 
Attorney's Office in Miami (the "USAO") in September of 2007, he 
opined that he so believed in the prosecution that he "would try the case 
myself." 
• Indeed, Mr. Sloman acknowledges that Mr. Oosterbaan had previously 
opined on this matter, stating: 
This particular attack on this statute [18 U.S.C. § 2242(b)] 
had been previously raised and thoroughly considered and 
rejected by . . . CEOS prior to the execution of the 
[Deferred Prosecution] Agreement [in September 2007]. 
Id., p. 5 (emphasis added). 
• The statute Mr. Sloman referred to (§ 2422(b)) lies at the heart of the 
Epstein investigation. Thus, according to Mr. Sloman, Mr. Oosterbaan 
was tasked with reviewing his own prior decision regarding applying the 
key statute under which the SDFL proposed prosecuting Mr. Epstein. 
HOUSE OVERSIGHT 012172 
KIRKLAND & ELLIS LLP 
• The defense immediately raised concerns regarding the non-independence 
of the review when told that it would be Mr. Oosterbaan tasked with 
providing the review, but was told that when Mr. Oosterbaan rendered his 
prior opinion, "he was not really up to speed on the facts" 
o CEOS' review was not de novo: 
• By letter dated May 15, 2008 (four days before Mr. Sloman's letter), Mr. 
Oosterbaan advised Mr. Lefkowitz that CEOS reviewed the matter only 
for abuse of discretion: 
[T]he question we sought to answer was whether U.S. 
Attorney Acosta would abuse his discretion if he 
authorized prosecution in this case. 
See Tab 38, May 15, 2008 Letter from D. Oosterbaan, p. 1 (emphasis 
added). See also, id., p. 2 ("Mr. Acosta would not be abusing his 
discretion if he decided to pursue such a course of action."); and p. 5 
("Mr. Acosta would not be abusing his prosecutorial discretion should he 
authorized federal prosecution of Mr. Epstein."). 
• For the factual record of its "abuse of discretion" review, CEOS relied on 
the very same prosecution memo that it had already reviewed in rendering 
its prior opinion, stating: 
As you know, our review of this case is limited, both factually and 
legally. We have not looked at the entire universe of facts in this 
case. 
See Id., p. 1 (emphasis added). 
• Nor did CEOS review any facts related to the irregular provisions in the 
Deferred Prosecution Agreement or the numerous complaints of 
prosecutorial misconduct, both of which are inextricably intertwined with 
the impropriety of the investigation. Id. at 1. 
2. NOTIFICATION OF WITNESSES. 
Mr. Sloman's Letter: 
• Mr. Sloman dismissed the totality of the defense's objections to the inappropriate 
notification the SDFL proposed to send to its witnesses, stating merely that: 
"[Y]ou objected to victims['] being notified of time and place of Epstein's 
state[-]court sentencing hearing." 
2 
HOUSE OVERSIGHT 012173 
KIRKLAND & ELLIS LLP 
See Tab 1, May 19, 2008 Letter from J. Sloman, p. 4, 'ff 1. 
The Truth: 
• The defense engaged in days of negotiation and made 14 separate substantive objections 
to the unprecedented notification letter that Mr. Sloman threatened to send to an 
undisclosed list of "victims." The eventual transmission of this highly misleading letter 
was only halted by an appeal to AAG Fisher. Among those substantive objections 
(which related to far more than the "time and place" of the state's sentencing hearing) 
were: 
o Sending the letter would contravene the government's commitment to take no 
position regarding potential claims of government witnesses. See Tab 39, 
November 28, 2008 Email from J. Lefkowitz to J. Sloman. 
o The letter cited to an inapplicable statute (the Justice for All Act of 2004) as its 
justification for being sent. Id. AUSA Acosta later conceded that the citation to 
this statute as a justification was wholly incorrect. 
o The letter wrongly advised all recipients that Mr. Epstein would be required to 
register as "a sexual predator for the remainder of this life." 
o The letter amounted to an invitation to civil litigation against Mr. Epstein, 
advising recipients that they had the right to seek civil damages from Mr. Epstein, 
and in an underlined instruction, stated that if they chose an attorney other than 
the one chosen by the government they would be required to pay his fees, but if 
they chose the government's choice, Mr. Epstein would be required to pay the 
fees. 
3. MISCHARACTERIZATION OF OUR ARGUMENTS. 
Mr. Sloman's Letter: 
• Mr. Sloman's letter misleadingly characterizes our substantive defense of the 
government's investigation as, "the investigation merely produced evidence of relatively 
innocuous sexual conduct with some minors who, unbeknownst to Mr. Epstein, 
misrepresented their ages." 
See Tab 1, May 19, 2008 Letter from J. Sloman, p. 2. 
The Truth: 
• We never made such a claim. To the contrary, we argued that sworn statements we have 
taken of the alleged victims demonstrate that law enforcement has presented versions of 
their testimony that are necessarily sensationalized and fictionalized. We presented 
3 
HOUSE OVERSIGHT 012174 
KIRKLAND & ELLIS LLP 
evidence that Mr. Epstein routinely and daily receives massages from adults. Only a 
small percentage of the masseuses turned out to be minors. The majority of those minors 
interviewed by law enforcement admitted to lying directly to Epstein about their ages 
(not "unbeknownst to Epstein"), and inventing further false details to substantiate their 
lies. Indeed, the civil attorney for several of these women admitted at his recent press 
conference that they lied to Mr. Epstein about their ages. Numerous witnesses testified 
that Mr. Epstein asked that all masseuses be over the age of 18. Further, the evidence is 
undisputed that Mr. Epstein's assistants scheduled the massages and Mr. Epstein did not 
know which masseuses his assistants had scheduled on a particular day, until the massage 
took place. We admitted that there was sexual conduct, and argued—not that it was 
"innocuous" as Mr. Sloman alleges—but that it was mostly Mr. Epstein's own self-
pleasuring, which did not satisfy the requisite federal element of criminal sexual conduct 
(which is, in turn, defined by state law). These are important distinctions and show that 
Mr. Sloman has misrepresented the record about the most basic part of our defense. 
4. SLOMAN DEMANDS AN UNREALISTIC DEADLINE TO COMPLY WITH AN 
AGREEMENT HE UNILATERALLY MODIFIES. 
Mr. Sloman's Letter:  
• "Unless [Mr. Epstein] complies with all of the terms and conditions of the [Deferred 
Prosecution] Agreement, as modified by the United States Attorney's December 19, 
2007 letter to Ms. Sanchez by close of business on Monday, June 2, 2008, the SDFL will 
elect to terminate the Agreement." Id., p.1 
The Truth:  
• The Deferred Prosecution Agreement was never modified by U.S. Attorney Acosta's 
December 19, 2007 letter. Oddly, Mr. Sloman acknowledges this on page 4 of his May 
19 letter, where he writes that Mr. Acosta "proposed" this modification and that "[Mr. 
Lefkowitz] rejected these proposals." Thus, Mr. Sloman is threatening to terminate the 
Deferred Prosecution Agreement, unless Mr. Epstein complies with a unilateral 
modification that Mr. Sloman concedes was never agreed to by defense counsel. 
• Orchestrating the information, plea and sentencing requirements of the Deferred 
Prosecution Agreement within the extremely limited two-week timeframe imposed by 
Mr. Sloman's June 2, 2008 deadline would have been difficult enough. 
• More importantly, as explained below, the SDFL has refused to provide the defense with 
information it requires to enable Mr. Epstein to comply with the additional plea and 
sentencing requirements of the Deferred Prosecution Agreement (let alone, by the June 2 
deadline arbitrarily imposed by Mr. Sloman). 
o The Deferred Prosecution Agreement requires Mr. Epstein to plead guilty to and 
be sentenced for an additional offense which requires that he be registered as a 
sex offender. In different places in his May 19, 2008 letter, Mr. Sloman 
4 
HOUSE OVERSIGHT 012175 
KIRKLAND & ELLIS LLP 
describes the additional charge to which Mr. Epstein is required to plead guilty 
under the Deferred Prosecution Agreement as "procurement of minors to engage 
in prostitution" or "solicitation of minors to engage in prostitution." The former 
is an offense for which Mr. Epstein would be required to register, but one for 
which the state has no evidence to charge Mr. Epstein and the SDFL refuses or is 
unable to provide evidence that it claims it has. The latter requires no 
registration, but it is the offense which, over and over again, Ms. Villafana 
insisted upon including in the Deferred Prosecution Agreement, and is one which 
the State believes is appropriate. The inconsistency between the description of 
the offense required by the SDFL, the elements of an offense that can be justified 
on the facts of this case and the SDFL's requirement that the offense be a 
registrable one has created substantial confusion. 
o As a result of this confusion, in December 2007, both the defense and the state 
requested that the SDFL provide the factual allegations to enable Mr. Epstein and 
the State to create a truthful factual recitation of a registrable offense required by 
the Deferred Prosecution Agreement, but, to date, the SDFL has failed to do so 
without any explanation. 
• Mr. Sloman refuses to provide the requested factual allegations, which the State cannot 
furnish, and now demands a two week deadline to comply. Thus Mr. Sloman has 
unreasonably imposed a deadline with which he himself has made it impossible for Mr. 
Epstein to comply. 
5. WAIVER OF APPEAL TO ASSISTANT ATTORNEY GENERAL FISHER. 
Mr. Sloman's Letter: 
• "[T]he SDFL provided you with 30 days to appeal the decision to the Assistant Attorney 
General of the United States Alice Fisher" and "you chose to forego an appeal to AAG 
Fisher." 
Id., p. 2. 
The Truth: 
• Mr. Acosta tolled an August 17 deadline, acknowledging that there were "serious issues" 
about the case that needed to be discussed, and scheduled a meeting with the defense for 
September 7, 2007. At the September 7, 2007 meeting, with Drew Oosterbaan in 
attendance, the government dismissed the defense's objections and set a September 21, 
2007 deadline to finalize a non-prosecution agreement or the defense would face an 
already-drafted 53-page indictment, purportedly identifying 40 minors, with a guideline 
range of 188 months. 
• Facing Ms. Villafana's threatened draconian indictment, without the claimed offer of the 
right to raise objections in an appeal to AAG Fisher, the defense chose to negotiate an 
5 
HOUSE OVERSIGHT 012176 
KIRKLAND &ELLIS LLP 
Agreement to Defer Prosecution to the State, an agreement without precedent and fraught 
with substantial practical and legal hurdles to its implementation. 
6. THE SDFL DID NOT DEFER TO THE STATE. 
Sloman's Letter: 
• "[T]he SDFL indicated a willingness to defer to the State the length of incarceration." 
Id., p. 2. 
The Truth: 
• The SDFL neither deferred to the State, nor even discussed with the State, the length of 
Mr. Epstein's incarceration. In a letter to the defense, Criminal Division Chief, Matthew 
Menchel rejected the sentence contemplated by the State's plea agreement, writing that 
"the federal interest will not be vindicated in the absence of a two-year term of state 
imprisonment." See Tab 40, August 3, 2007 Email from M. Menchel. Of course, this 
position is contrary to Section 9-2031D of the U.S. Attorney's Manual (indicating that 
the "result" of a state prosecution is "presume[d]" to have vindicated the federal interest). 
It is understandable, therefore, that Mr. Sloman might want to retreat from it now. 
Indeed, the final Deferred Prosecution Agreement (DPA) restricts the state-court judge 
from exercising any of his rightful discretion and to specifically prohibit the judge from 
offering probation, community control or any other alternative in lieu of incarceration. 
DPA, 2(a). 
7. SUGGESTION OF ADDITIONAL STATE PLEA 
Mr. Sloman's Letter: 
• The parties considered: "as suggested by [the defense], a plea to state charges 
encompassing Epstein's conduct." See Tab 1, May 19, 2008 Letter from J. Sloman, p.2, 
I 2. 
The Truth: 
• It was the government, and not the defense, that suggested a plea to state charges to 
resolve the federal investigation. Andrew Lourie proposed declining prosecution in favor 
of the state. Although Mr. Epstein and the State Attorney's Office had already reached 
a plea agreement, in August 2007, Mr. Sloman and AUSA Marie Villafana warned that 
they intended to prosecute Epstein federally unless his counsel (i.e., not the U.S. 
Attorney's Office) sought more stringent conditions to the State's proposed plea 
agreement. These stringent conditions included, among other things, the two-year prison 
term demanded by Mr. Menchel (discussed above) and a charge requiring him to register 
as a sex offender. 
6 
HOUSE OVERSIGHT 012177 
KIRKLAND & ELLIS LLP 
8. ALL IDENTIFIED VICTIMS BE PUT IN SAME POSITION AS IF EPSTEIN 
HAD BEEN TRIED. 
Mr. Sloman's Letter: 
• "The Agreement provides for a method of compensation for the victims such that they 
would be placed in the same position as if Epstein had been convicted of one of the 
enumerated offenses set forth in Title 18, United States Code Section, 2255." 
Id. 
The Truth: 
• Mr. Sloman continues to mischaracterize the highly irregular provisions of the Deferred 
Prosecution Agreement. The SDFL did not merely attempt to preserve the compensation 
rights of those it identified as victims; it attempted to create compensation rights for those 
it identified, without imposing on them the burden of proving that they were in fact 
victims under § 2255. 
o In the Deferred Prosecution Agreement, the SDFL required Mr. Epstein to waive 
the right to contest liability under 18 U.S.C. § 2255 as to a list of individuals that 
the SDFL would not disclose to Mr. Epstein until after he was sentenced and to 
pay for an attorney to secure compensation under § 2255 for those undisclosed 
individuals, or if they decided to sue Mr. Epstein. 
o § 2255 ordinarily provides individuals with a right to recover minimum guaranteed 
damages of $150,000, without having to prove actual damages, only if: (1) they 
were victims of an enumerated federal offense, including offenses under 18 U.S.C. 
§§ 2422 and 2423, (2) they were minors at the time of the offense, and most 
importantly (3) they were personally injured as a result of the offense. 
o The defense has confirmed examples of women who testified that they were not 
victims of Mr. Epstein and suffered no personal injury. These women were, 
nevertheless, on the list of "victims" identified by the government.. In fact, when 
confronted with the testimony of a women who denied both being a victim and 
incurring personal injury, Ms. Villafana actually acknowledged such testimony. 
To justify inclusion of that woman on the government's list, however, Ms. 
Villafana then challenged her own witness's credibility. 
• For this reason, it is false to state that these "identified" individuals are in the same 
position that they would have been had Epstein been convicted at trial. Had there been a 
trial, Mr. Epstein would have had a right to confront these individuals through cross-
examination. Any individual that did not establish that she was a minor victim of conduct 
that satisfied each element of an enumerated statute under § 2255,or that she suffered 
personal injury, would not qualify for any treatment under § 2255. However, under the 
Deferred Prosecution Agreement, as an "identified individual" on the government's list, 
7 
HOUSE OVERSIGHT 012178 
KIRKLAND &ELLIS LLP 
this same individual would nevertheless be entitled to engage an attorney paid for by Mr. 
Epstein to recover $150,000 of damages from Mr. Epstein under § 2255 without ever 
alleging any injury. In fact, the defense was told that the only question Mr. Epstein 
would be permitted to ask before paying the girls is " have you ever met Epstein.". Thus, 
the Deferred Prosecution Agreement places identified individuals in a far better position 
than they would be in if Mr. Epstein were convicted at trial. 
9. ASSIGNMENT OF RIGHT TO SELECT LEGAL REPRESENTATIVE. 
Mr. Sloman's Letter: 
• "Prior to any issues arising concerning the implementation of the 2255 provision, the 
SDFL unilaterally agreed to assign its responsibility to select the attorney representative 
for the alleged victims to an independent third-party." 
See Tab 1, May 19, 2008 Letter from J. Sloman, p. 4, f.3. 
The Truth: 
• That such an assignment was the SDFL's "unilateral" decision is false. Before the 
SDFL decided to assign selection of the "attorney representative" to an independent third 
party, AUSA Marie Villafana had already proposed an "attorney representative." She 
had proposed local products-liability lawyer, Humberto Ocariz, and claimed he had been 
recommended by a "good friend in the Appellate Division." Ms. Villafana's account was 
misleading, as it omitted that this "good friend" was her live-in boyfriend, and that Mr. 
Ocariz was his former law-school roommate. When we discovered this independently, 
we objected. Only then did the SDFL propose assigning the selection process to an 
independent special master and agree to amend the Deferred Prosecution Agreement. 
Thus, while it may be true that the SDFL assigned its selection responsibility to avoid the 
appearance of favoritism, it did not do it "unilaterally," but, rather, only after Epstein 
uncovered the Office's misleading disclosure and apparent conflict-of-interest. 
10. TIMETABLE FOR MOVING FORWARD. 
Mr. Sloman's Letter: 
• "On February 25, 2008, I sent you an e-mail setting forth a timetable for moving forward 
in the event that CEOS disagreed with your position. That time is now." 
Id. , p. 6. 
The Truth: 
• Mr. Sloman provides only part of the history of this case in order to justify his improper 
actions. He had stated he would close the investigation if CEOS told him to. However, 
CEOS at our very first contact said that under no circumstances did they see that as their 
8 
HOUSE OVERSIGHT 012179 
IURKLAND &ELLIS LLP 
role. They said they would only advise on an abuse of discretion standard. Making the 
outcome a foregone conclusion. Furthermore, in response to the February 25 e-mail, 
which attempted to establish a schedule to limit the entire review process (the defense has 
repeatedly suggested that the misconduct was intertwined with the investigation and 
would therefore seek higher review), Mr. Lefkowitz e-mailed Mr. Acosta directly. On 
February 29, 2008, Mr. Sloman responded to Mr. Lefkowitz's e-mail to Mr. Acosta, 
stating that Mr. Sloman was acting out of frustration, but "[p]lease be assured that it has 
not, and never has been, this Office's intent to interfere or restrict the "review process" 
for either Mr. Epstein or CEOS. I leave it to you and CEOS to figure out how best to 
proceed and will await the results of that process." As stated above, CEOS determined 
that it would not review many of the defense's objections and as to the remainder of those 
objections, its review would be limited (contrary to Mr. Acosta's assurances), which left 
the need, supplemented by the defense's subsequent request, for a more thorough review 
of critical issues by others at the Department of Justice. Mr. Sloman's re-imposition of 
the (albeit modestly extended) timetable was an obvious attempt, in violation of his 
February 29 agreement, to thwart the request made by the defense to the Deputy Attorney 
general, to complete the review process that Mr. Acosta had promised. 
11. "DELAY." 
Mr. Sloman's Letter: 
• In a section entitled "Delay," Mr. Sloman states that "the SDFL again agreed to 
accommodate Epstein's request to appear in state court for plea and sentencing on 
January 4, 2008." 
Id.,p. 3. 
The Truth: 
• Curiously, Mr. Sloman fails to mention correspondence from the U.S. Attorney stating 
that delay of that date would be "inevitable" as the defense has raised "serious questions" 
about the propriety of the prosecution. Strikingly, in that same section, Mr. Sloman 
claims that "the Agreement did not contemplate a staggered 'plea and sentencing," 
despite quoting, three sentences earlier, from the Agreement's staggered requirement 
that Epstein plead and be sentenced by October 26, and "begin serving his sentence not 
later than January 4, 2008." 
We are, like most attorneys seeking Depai___Luient review, without access to the USAO 
prosecution summaries or other submissions to the Department. Given the substantial issues that 
have been raised in this and other submissions, we request that you conduct a de novo review 
that goes beneath the face of any conclusions being advocated by the USAO; instead, we seek a 
review that is based on the transcripts of witness testimony themselves so that the reviewer can 
9 
HOUSE OVERSIGHT 012180 
KIRKLAND &ELLIS LLP 
make an independent decision not adversely affected by conclusions that over and over have 
proven, witness by witness, allegation by allegation, to be inaccurate and unwarranted and not an 
appropriate basis for the exercise of federal prosecutorial authority. 
10 
HOUSE OVERSIGHT 012181 
THACKER 
RESPONSE TO 
CEOS'S LETTER 
HOUSE OVERSIGHT 012182 
GEORGE G. GUTHRIE 
ROBERT B. ALLEN 
REBECCA A. BETTS 
R. TERRANCE RODGERS 
DAVID B. THOMAS 
JAMES S. ARNOLD 
DAVID J. HARDY 
WM. SCOTT WICKLINE 
PAMELA L. CAMPBELL 
PAMELA C. DEEM 
PHILIP J. COMBS 
STEPHANIE D. THACKER 
BRYANT J. SPANN 
TERESA K. THOMPSON 
DEBRA C. PRICE 
CHRISTOPHER S. ARNOLD 
CHRISTOPHER D. PENCE 
PETER G. MARKHAM 
ZACKARY B. MAZEY 
OF COUNSEL 
THOMAS E. McHUGH 
LAW OFFICES 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
P. 0. BOX 3394 
CHARLESTON, WEST VIRGINIA 25333-3394 
500 LEE STREET, EAST, SUITE 800 
CHARLESTON, WEST VIRGINIA 25301 
June 19, 2008 
Mr. John Roth 
Senior Associate Deputy Attorney General 
Office of the Deputy Attorney General 
United States Department of Justice 
950 Pennsylvania Avenue, N.W. 
Washington, D.C. 20530 
Dear Mr. Roth: 
FACSIMILE 
WRITERS DIRECT DIAL 
e-mail: I 6 
I write to offer my reaction to the May 15, 2008 correspondence from the United States 
Department of Justice Child Exploitation and Obscenity Section ("CEOS") regarding the federal 
investigation of Jeffrey Epstein by the United States Attorney's Office for the Southern District of 
Florida ("USAO").1 I will refrain from recounting Mr. Epstein's arguments in detail here, but, 
rather, will highlight salient points responsive to the CEOS letter. 
In particular, I write from a background well familiar with child exploitation cases and 
victim/witness issues. As the CEOS letter points out (CEOS letter at p. 3), I was a member of 
CEOS. In fact, I served as a federal prosecutor for twelve years; five years as an Assistant United 
States Attorney for the Southern District of West Virginia, and seven years at CEOS. I began 
working as a trial attorney for CEOS in 1999, and was promoted to Deputy Chief for Litigation in 
2002, and ultimately to Principal Deputy Chief for the Section in 2004. 
As those who have worked with me know, I have a history of working diligently on behalf of 
victims of crime. While at the United States Attorney's Office for the Southern District of West 
Virginia, I was a part of the prosecution team that prosecuted the first case in the country under the 
federal Violence Against Women Act. United States v. Bailey, 112 F.3d 758 (4th Cir.), cert denied, 
522 U.S. 896 (1997). The case went to trial and the defendant was sentenced to life in prison. I also 
spearheaded the domestic violence and federal criminal child support prosecution efforts for that 
office, prosecuting some of the first cases in the country under the federal Child Support Recovery 
1 Citations to the May 15, 2008 correspondence will be referenced herein as "CEOS letter at p. ." 
HOUSE OVERSIGHT 012183 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 2 
Act. Later, while at the Department of Justice, I co-authored the Department's Federal Child 
Support Prosecution Handbook. 
My work at CEOS permitted me to continue my efforts on behalf of vulnerable victims of 
crime. While there, for example, I was part of the prosecution team in United States v. Dwight York, 
428 F.3d 1325 (1 1thCir. 2005), cert denied, 548 U.S. 908 (2006). York was the leader of a pseudo 
religious organization, and systematically molested countless children, some as young as six years 
old. The case went to trial and York was sentenced to 135 years in prison. As part of that trial team, 
I was awarded the Attorney General's Award for Distinguished Service. Additionally, at CEOS I 
was one of the architects of the Innocence Lost Initiative, a nationwide initiative designed to combat 
child prostitution. For this, I was awarded an Assistant Attorney General's Award for Outstanding 
Victim/Witness Service. Likewise, I was awarded a subsequent Assistant Attorney General's Award 
for Special Initiative in connection with a nationwide sex tourism prosecution initiative I helped to 
develop. 
I say all this not for any boastful purpose, but, rather, to make clear that I am fully cognizant 
of victim issues, and that I am no pushover in terms of prosecution standards. I am also very well 
aware of the good work of CEOS, and the outstanding credentials of those who toil in that office. 
With all due respect to CEOS, however (and recognizing that their review of this case was 
quite limited), given the facts and circumstances of this investigation, a federal prosecution of Mr. 
Epstein simply should not be countenanced. In my view, such prosecution would be counter to the 
important mandate of the Department of Justice as emblazoned on its seal, "Qui Pro DominaJustitia 
Sequitur," referring to the Attorney General"who prosecutes on behalf of justice." 
As you well know, it is fundamental to that mandate that, as the representative of the people 
of the United States, the duty of a federal prosecutor is not simply to seek conviction as at any cost, 
but, rather, to seek justice. Berger v. United States, 295 U.S. 78, 88 (1935). ("The United States 
Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose 
obligation to govern impartially is as compelling as its obligation to govern at all.") While it is true 
that Berger was decided at the post-trial, as opposed to the pre-indictment, stage of the case, the 
bedrock principle contained in the above quote should transcend the entire investigation and 
prosecution process. Indeed, it is arguably most imperative at the investigation stage, at which point 
law enforcement is dealing with a presumptively innocent citizen. 
In summary, we understand the allegations against Mr. Epstein to be that Mr. Epstein paid 
individuals to find friends and acquaintances, certain of whom were under the age of 18, to provide 
topless massages to him at his Palm Beach home in exchange for money. Mr. Epstein's assistants 
allegedly scheduled these massages for him over the telephone at the direction of Mr. Epstein, 
allegedly including some scheduling calls to underage women. However, the evidence contradicts 
these allegations. First, Mr. Epstein did not ask that the masseuses be under the aca To the 
contrary, he specifically asked that they be 18 or older. As one witness commented, said tell 
HOUSE OVERSIGHT 012184 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 3 
them you're 18 because if you're not, he won't let you in his house." Ir. at 38-39. 
Second, Mr. Epstein himself did not schedule such appointments. Third, Mr. Epstein would not 
know who would be providing a massage at any particular time. Fourth, and importantly, Mr. 
Epstein's assistants were not directed to contact underage women, and were not aware of the true 
ages of the women they contacted. In fact, more often than not, the masseuses themselves, or the 
individuals who introduced the masseuses, made the initial contact. As a result, Mr. Epstein and his 
assistants were routinely unaware of the identities of many of these young women before they 
arrived. 
The allegations further include the assertion that Mr. Epstein engaged in unlawful sexual 
conduct with certain underage women who arrived at his house to provide a massage. At times, 
during these massages, Mr. Epstein masturbated, engaged in some sexual touching, and a small 
number of alleged acts of penetration. However, most of the women who performed massages on 
Mr. Epstein were over the age of 18. Many of the young women have sworn under oath that they, in 
fact, told Mr. Epstein that they were 18 or older, and that they did so because they knew that if they 
were not 18 years old, they would not be allowed into Mr. Epstein's home. In fact, Mr. Epstein has 
passed a polygraph examination to this effect relative to the government's primary, and youngest, 
alleged victim, Indeed, many of the women also worked at local massage parlors, 
which presumably had a requirement that the masseuse have reached the age of majority. To the 
extent there are allegations that Mr. Epstein should have been alerted to certain underage women 
based on conversations he allegedly had with them, those conversations would have taken place in 
person and at his home, thereby precluding any prior scheduling with knowledge of their true ages. 
As explained below, any factual allegations of repeat massages with such persons would lack 
necessary elements required for a federal nexus to such conduct. 
All of the alleged activity occurred in Mr. Epstein's home in Palm Beach, Florida. Many of 
the massages allegedly involved conduct which, even if engaged in, is not proscribed by federal law, 
either because the masseuses were of age, or because conduct with underage masseuses only 
involved topless massages, massages in undergarments or naked massages. To the extent prohibited 
sexual activity occurred, any inducement, enticement, and/or persuasion used would have taken 
place during a face-to-face encounter—thus eliminating the possibility for the commission of a 
federal crime, which requires the existence of a communication through a facility of interstate 
commerce in which the defendant persuades or entices the minor to engage in illegal sexual activity. 
Furthermore, any prohibited sexual activity that did occur based on the facts on the record is best left 
to the state to address because the facts of this case do not fall comfortably within the federal 
domain. 
This is a case about purely local activity, involving local actors, and affecting local 
interests and thus, should be handled by local authorities. Nonetheless, the USA() has indicated 
its intent to prosecute Mr. Epstein for purported violations of 18 U.S.C. §§ 2422, 2423, and 
1591. However, as set forth in detail in prior submissions, the facts of this case fall squarely 
outside the heartland of those statutes — in fact, in law, and in congressional intent. As their plain 
HOUSE OVERSIGHT 012185 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 4 
text and history indicate, these statutes were designed to address problems that are truly national 
and international in scope: human trafficking in § 1591; telephone or Internet sexual predation in 
§ 2422; and sex tourism in § 2423. Unlike the alleged conduct at issue here, those problems 
unquestionably present multi-jurisdictional obstacles that States and localities cannot confront 
effectively on their own. Mr. Epstein's conduct was purely local in nature, and the State of 
Florida and Palm Beach County are effectively prosecuting and punishing that conduct. 
Although CEOS asserts, "that a prosecution of Mr. Epstein might not look precisely like the 
cases that came before it is not dispositive" (CEOS letter at p. 4), the fact is this case does not look 
anything like those cases. The facts here do not carry any of the hallmarks that typify an appropriate 
federal prosecution •for child exploitation as reflected in all such prior federal prosecutions. 
Specifically, the facts here do not carry the hallmarks for a sex trafficking or child prostitution 
prosecution. Mr. Epstein did not target minors. In fact, the evidence indicates just the opposite. 
There was no travel in interstate commerce for the purpose of engaging in illicit sexual activity. 
There was no prohibited use of a facility of interstate commerce. There was no commercial for profit 
sexual enterprise. There was no force. There was no violence. There was no use of drugs or 
alcohol. There was no child pornography. 
18 U.S.C. § 1591 is clearly designed to combat organized rings of individuals who engage in 
the business of human trafficking, involving both a commercial and coercive component. As 
President Bush has noted: 
generally speaking, trafficking in persons refers to actions, often including the use of 
force, fraud or coercion, to compel someone into a situation in which he or she will 
be exploited for sexual purposes, which could include prostitution or pornography, or 
for labor without compensation, which could include forced or bonded labor . . . 
trafficking in persons is often linked to organized crime, and the profits from 
trafficking enterprises help fund other illegal activities. The growth of vast 
transnational criminal networks supported in part by trafficking in persons fosters 
official corruption and threatens the rule of law.2 
This in no way describes the case here. Yet the USA() has been unwavering in its single 
minded focus to stretch the limits of these federal statutes beyond their intended use, and beyond 
precedent, in order to prosecute Mr. Epstein. As the CEOS letter acknowledges, the legal theories 
the USAO intends to attempt to pursue against Mr. Epstein are "novel," having never before been 
sanctioned by federal law. They should not be sanctioned now. As the Supreme Court recently 
pronounced, when a statutory term in a criminal statute could support both a narrow or broad 
application of the federal criminal law, "the tie must go to the defendant." United States v. Santos, 
553 U. S .______and Cuellar v. United States, 553 U.S_____(June 2, 2008), Slip Op. at 6. 
2 February 25, 2003 Trafficking in Persons National Security Presidential Directive. 
HOUSE OVERSIGHT 012186 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 5 
A full and fair review of the facts here is critical to this analysis. Yet, it is clear that CEOS 
did not conduct such a review. In his recent letter to Jay Lefkowitz, First Assistant United States 
Attorney ("FAUSA") Jeffrey Sloman confirmed our understanding that the USA() was to have 
"facilitated" an "independent de novo review of the investigation" by the Department. (May 19, 
2008 Sloman letter at p. 5). Yet, the CEOS review was not complete, and by its own terms not de 
As CEOS itself noted, "our review of this case is limited both factually and legally. We have 
not looked at the entire universe of facts in this case. It is not the role of the Criminal Division to 
conduct a complete factual inquiry from scratch." (CEOS letter at p. 1). Indeed, entire subject areas 
relevant to the inquiry were not considered at all by CEOS. In essence, CEOS was only in a position 
to make the most cursory possible review, an "abuse of discretion" review, without considering the 
facts at the necessary level of detail, and without taking into account the many and varied issues of 
misconduct we have raised in this case. As the CEOS letter indicates, "we did not review the facts, 
circumstances, or terms included in the plea offer nor any allegations that individuals involved in the 
investigation engaged in misconduct." (CEOS letter at p. 2). All of this begs the question — if it is 
not CEOS' role to "conduct a complete factual inquiry," and CEOS did not consider any of the 
allegations of misconduct here, which at the very least have created a strong appearance of 
impropriety, and, at worst evidence an intent and effort to unfairly prejudice Mr. Epstein to the 
financial benefit of the friends and colleagues of the prosecution team in the USAO, then where and 
when can justice ever hope to be served in this case? This is a prosecution burden that cannot, and 
should not, be brushed aside. 
We contend the limited nature of the CEOS review deeply affected its conclusions. For 
example, CEOS most likely did not review original documents, such as transcripts, and instead relied 
on the summaries of federal prosecutors and FBI agents, against whom we have raised serious 
concerns regarding misconduct. If the summary memos from the USA() are as flawed as other 
USAO communications have been, and which we have been able to show are misleading and 
inaccurate, the CEOS abuse of discretion review is likely flawed as well. Moreover, although the 
USAO expected, and personally promised to us, an independent review, FAUSA Sloman's letter also 
makes clear that our pivotal legal challenge to the use of 18 U.S.C. § 2422(b) had already "been 
previously raised and thoroughly considered and rejected by . .. CEOS prior to" the recent CEOS 
review. (May 19, 2008 Sloman letter at p. 5). The fact that CEOS had to evaluate its own decision 
with respect to some of the allegations against Mr. Epstein prevents its subsequent review and 
opinion from being truly independent. 
Following this most recent CEOS review "limited both factually and legally," and with no 
citation to any case law relative to the statutes in question, CEOS concludes merely, "federal 
prosecution in this case would not be improper or inappropriate (CEOS letter at p. 5);" in essence, 
that the United States Attorney could bring this case in the exercise of his federal discretion should 
he so choose ("we conclude that U.S. Attorney Acosta could properly use his discretion to authorize 
prosecution in this case."). (CEOS letter at p. 2). However, CEOS drew the conclusion that the 
HOUSE OVERSIGHT 012187 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 6 
federal prosecution of Mr. Epstein would not be "improper or inappropriate" absent any review at all 
of the misconduct here, and absent a full review of the facts and law. The facts, the law, and the 
alleged misconduct are each necessarily inextricably intertwined with the question of whether or not 
this is a viable federal prosecution. These imposed limits flawed the review from the outset. In any 
event, CEOS concedes that the defense team makes "many compelling arguments." (CEOS letter at 
p. 5). In the end, then, one is left with the impression that the CEOS review and opinion, although 
concluding that the USA() could push forward at its own discretion, is a much qualified one. 
The federal prosecution of Mr. Epstein has been a moving target from the inception. Each 
time the allegations, the witnesses or the applicable law is subject to a searching inquiry, we have 
found that the allegations have been misrepresented, the law does not apply to the actual facts here, 
and the USA() prosecution theory falls apart. Yet, in the face of the voluminous evidence we have 
submitted in this regard, while acknowledging that the theories are "novel," and that our arguments 
against federal prosecution are "compelling," CEOS concluded, "Mr. Acosta could rightfully 
conclude that this federal issue is best resolved by a jury" and that "the USA° has a good faith basis 
to fully develop the facts on this issue and brief the law to permit a court to decide whether the law 
appropriately reaches such conduct." With all due respect, and recognizing that CEOS may be— and 
apparently was — limited in its authority, it should not be the prerogative of the prosecution arm of 
the United States government to simply roll the dice, and let the court system just sort it out when 
dealing with the life and liberty of a United States citizen. The Department of Justice should not be 
so cavalier when labeling someone as a child molester. While it may be within the discretion of the 
USA() to do so, it is not in accord with the principles of justice. 
Indeed, as noted, just a few weeks ago, the Supreme Court underscored this point in Santos 
and Cuellar. The Court made clear that prosecutorial discretion does not provide the USA() cart 
blanche to expand criminal statutes as they seek to do here with complete disregard for congressional 
intent. The Court rejected speculation as a basis of determining the scope of a criminal statute; 
"probability is not a guide which a court, in construing a penal statute, can safely take." Slip op. at 7, 
quoting United States v. Wiltberger, 5 Wheat. 76,105 (1820). "We interpret ambiguous criminal 
statutes in favor of defendants, not prosecutors." Slip op. at 12. 
Based on my experience, I believe that the facts here do not warrant a federal child 
exploitation prosecution. At its core, this case is quintessentially a state concern as opposed to 
implicating any federal interest. Indeed, the Florida State Attorney's Office ("SAO"), led by the 
chief of the Sex Crimes Division, thoroughly investigated this matter, and presented it to the grand 
jury. The facts, as opposed to the deeply flawed press reports, were carefully assessed by 
experienced State prosecutors who aggressively enforce State criminal laws. Following an extensive 
15-month State investigation, Mr. Epstein was indicted by a State grand jury on a single felony count 
of solicitation of prostitution. 
During the investigation, the State prosecutor exhaustively reviewed the evidence, met face-
to-face with many of the alleged victims, considered their credibility — or lack thereof — and 
HOUSE OVERSIGHT 012188 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 7 
considered the extent of exculpatory evidence, including a psychosexual evaluation of Mr. Epstein 
and a polygraph examination demonstrating that Mr. Epstein genuinely believed at the time of the 
alleged conduct that the State's key witness was over the age of 18. Then, after 
months of negotiations, the State reached what it believed was an appropriate resolution of the case. 
Importantly, this resolution was consistent with that of cases involving other defendants who had 
engaged in similar conduct. Implementation of the State resolution of the case was held in abeyance, 
however, due to the unexpected commencement of the successive federal criminal investigation. 
While it is true, as CEOS points out, (CEOS letter at p. 3) that many criminal prosecutions 
turn on issues of credibility of witnesses, to which many members of the defense team can attest 
(having had decades of federal criminal litigation experience among us), this does not serve to divest 
the prosecutor of his/her duty to make a searching inquiry of the facts before using the power of 
prosecution, and the weight of the United States government, to level serious accusations. CEOS 
likewise acknowledges as much, "the prosecutors are in the best position to assess the witnesses' 
credibility." (CEOS letter at p. 3). 
Since the CEOS letter also singles me out as someone who should be familiar with witness 
issues, I feel compelled to note that, of course, I am well aware that it is not uncommon for witnesses 
to give conflicting statements. I am also fully aware that the credibility of key government witnesses 
may be strongly impacted by the $50 million incentive provided via the civil lawsuits at play, and 
encouraged by the goverrunent here. 3 I have also read many of the conflicts between witness 
testimony and Detective ReCarey's own rendition of that testimony in his reports and/or search 
warrant affidavit. Detective ReCarey apparently formed a view early on as to the purported 
criminality of Mr. Epstein's conduct regardless of the mountain of evidence to the contrary. For a 
prosecutor that has had an opportunity to review the full facts, and to meet with the witnesses, 
however, "conflicting statements" cross the line to a "lack of credibility" that simply can not sustain 
a prosecution. That is where an appropriate application of prosecutorial discretion must be brought 
to bear. 
Again, CEOS was not itself in the position to exercise such discretion. By its own admission, 
CEOS did not make a full review of the witness statements here, and CEOS certainly did not sit 
down across the table and speak to these witnesses. We understand that was apparently not its 
perceived role. But, CEOS should recognize that at least one prosecutor in this case — the Chief of 
the SAO Sex Crimes Division has done so. Lana Belohlavek not only met with and interviewed 
these witnesses during the course of the 15-month state investigation prior to any federal 
involvement, but she again sat across the table from many of them in connection with recent civil 
3 It is important to note here that this investigation was launched not upon the complaint of any alleged victim, but, 
rather, upon the complaint of ather, , and her stepmother, More 
notable still is the fact that has been convicted of federal bank fraud, an has a state 
conviction for identify fraud. Hardly pillars of credibili. Yet, the USAO did not supply this information to the 
defense. Even more telling is the fact that filed a $50million lawsuit purportedly on behalf of his 
daughter without her authority or knowledge. 
HOUSE OVERSIGHT 012189 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 8 
0 
depositions in this matter. Ms. Belohlavek, and the SAO, is likewise well familiar with the breadth 
of the federal investigation, and has integrated that knowledge into the current enhanced state 
sentencing recommendation. The SAO remains firm in the position that the proposed state resolution 
is a sound one, and that there was no child exploitation here. Notably, however, not once during the 
pendency of the federal investigation has the USA() ever reached out to its state prosecutive 
counterpart that initiated this investigation in the first place to discuss the issues or to thoroughly 
ferret out the facts or the witness credibility issues. 
In the eight lines the CEOS letter accords to the topic of witness credibility CEOS asserts, 
"there are multiple mutually-corroborating witnesses," (CEOS letter at p. 3). However, the CEOS 
letter does not highlight a single one. In contrast, we have put forth numerous "mutually 
corroborating" witness statements. Far from supporting a federal prosecution, these statements 
instead corroborate that 1) the alleged victims lied to Mr. Epstein about their age; 2) there was no use 
of a facility of interstate commerce by Mr. Epstein; 3) there was no inducement or coercion; 4) there 
was no commercial enterprise; and 5) there was no illicit sexual conduct. 
Indeed, Mr. Epstein took several steps to ensure that no minors entered his home, most 
notably, by affirmatively asking the women whether they were actually 18. See e.g. 'I'r. At 
38-39. That fact — which many of the potential witnesses have confirmed in sworn interviews — 
strongly indicates that Mr. Epstein specifically intended to preclude anyone under 18 from giving 
him a massage. That fact is confirmed by, among other things, testimony that "he 
likes the girls that are between the ages of like 18 and 20 . . . ." Tr. at 12. In fact, the 
evidence bears out that the majority of the women who came to Mr. Epstein's residence to provide a 
massage were over 18. 
Many of the young women who were aged 16 and 17 visited Mr. Epstein's residence only 
once or twice, and the evidence strongly shows that they lied to Mr. Epstein about their age. Two of 
these individuals,an, were 14 and 15 at the time they met Mr. 
Epstein. Given that each has brought a civil lawsuit against Mr. Epstein, with and her 
family seeking $50 million from Mr. Epstein, their testimony against Mr. Epstein is per se suspect. 
But, despite their obvious incentive to harm Mr. Epstein, their testimony actually confirms his 
innocence, for instance, has testified that who introduced her to Mr. 
Epstein, expressly told her to lie to Mr. Epstein about her age. 
Q: And told you that if you weren't 18 Epstein wouldn't let you into his house, 
right? 
A: That's — yes, yes. 
(deposition) at 32. 
Q: You didn't want Mr. Epstein to know that you were lying about your age, right? 
HOUSE OVERSIGHT 012190 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 9 
A: Correct. 
Q: You didn't want Mr. Epstein to know that you were not 18 yet, right? 
A: Correct. 
(deposition) at 36. 
In fact, Ms. told Mr. Epstein that she was 18 years old, and confirmed this fact with 
Palm Beach Police. Id. at 36. Beyond that, Ms. "swore on her mother's grave" that she 
and Mr. Epstein did not engage in sex of any kind. Tr. (deposition) at 24. She further 
repeatedly explained that prior to the time she went to Mr. Epstein's house (she went there only 
once), nobody ever tried to coerce her to engage in sexual activity with Mr. Epstein. Not over the 
telephone, not over the Internet, not at all. Ir. (deposition) at 31-32. These are not facts 
upon which a federal case can stand. 
Ms. s age was also unknown to Mr. Epstein when she went to his home. 
, who was introduced to Mr. Epstein by Ms testified in her federal sworn interview 
that Ms. old her to lie to Epstein. aggm- Tr. at 8 ("she just said make sure you're 18 
because Jeffrey doesn't want any underage girls") (emphasis added). Ms. testimony 
strongly suggests that Ms. ied to Mr. Epstein about her own age as well. Ms. 
also self represented that she worked at a local erotic massage parlor that presumably required a 
minimum age. 
The conduct of is likewise illustrative of "mutually corroborating" testimony 
which supports the fact that this is not an appropriate federal case. In the same way that Ms. 
was referred to Mr. Epstein and brought to his home without having been introduced or 
acquainted in any manner, Ms. was referred by someone else, , who also told 
her to lie to Mr. Epstein about her age, which she did. =Tr. at pp. 8-9). 
CEOS seeks to buttress the USA() prosecution by asserting "it is possible to satisfy that 
element [proof of specific intent as to the age of the alleged victims] with proof that the defendant 
was deliberately ignorant of facts which would suggest that the person was a minor." (CEOS letter 
at p. 2). Such assertion is counter to the law and to the facts. Reliance on a deliberate ignorance 
standard as to any of the three statutes in issue requires the factual predicate of an intent not to learn 
of an incriminating fact. This is the antithesis of the factual context of this case where there is 
repeated proof that the minors believed that they had to lie because Mr. Epstein had an actual 
practice of attempting to verify age, and would not let them in his house if they were under the age of 
18. See United States v. Kennard, 472 F.3d 851, 857-858 (11th Cir. 2006), quoting, United States v.  
Puche, 350 F.3d 1137, 1149 (11th Cir. 2003) (An instruction on deliberate ignorance is appropriate 
only if it is shown [among other things] . . . that the defendant purposely contrived to avoid learning 
HOUSE OVERSIGHT 012191 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
Rule 19, 2008 
Page 10 
of all of the facts in order to have a defense in the event of a subsequent prosecution."). Thus, the 
facts preclude reliance on the concept of deliberate ignorance as a substitute for proof. 
The fact that the search warrant affidavit in this case is rife with mis-statements and 
omissions regarding the key element of age is critical. However, CEOS concludes with no apparent 
supporting analysis, "despite the numerous factual errors you describe, the U.S. Attorney's Office 
could still plausibly argue that the mistakes — whether inadvertent or intentional — were not material 
to the determination . . . ." (CEOS letter at p. 3). Although, as CEOS notes, there are "numerous" 
such misrepresentations, through affirmative statement or intentional omission, a focus on but one of 
those misrepresentations highlights that such misrepresentations were, in fact, material. The fact is 
that Detective ReCarey grossly misrepresented Mr. Epstein's intent as it related to the age of the 
women he permitted entry to his residence. 
In the search warrant affidavit, Detective ReCarey affirmed that claimed: 
[Mr. Epstein told her the younger the better. 
And, stated she once tried to bring a 23 year old female and Epstein stated that the 
female was too old. 
What Detective ReCarey, no doubt intentionally, omitted wafurther explanation, 
which rendered Mr. Epstein's comments innocuous: 
A: Let me put it this way, he — I tried to bring him a woman who was 23 and he didn't 
really like it. 
Q: He didn't go for it? 
A: It's not that he didn't go for it. It's just that he didn't care for it. And he likes the 
girls that are between the ages of 18 and 20. (Statement at 12) (emphasis 
added). 
Had that critical information, information that turns allegedly illegal conduct into more 
innocent conduct, been included, it would have seriously undermined the probable cause for the 
search warrant. 
Similarly, and equally problematic, Detective ReCarey did not include the many statements 
demonstrating that, when asked by Mr. Epstein, the women affirmatively misrepresented their ages 
as being 18, and/or that Mr. Epstein was not aware of their true ages. Indeed, although Detective 
ReCarey did note that Ms bid Mr. Epstein that she was 18, he omitted from the affidavit 
the key point as to why she lied: 
HOUSE OVERSIGHT 012192 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 11 
=said tell him you're 18 because if you're not, he won't let you in his house. 
So I said I was 18. As I was giving him a massage, he was like how old are you. 
And then I was like 18. But I kind of said it really fast because I didn't want to make 
it sound like I was lying or anything. at 38-39. 
Thus, consistent with the guidance provided in Franks v. Delaware, 438 U.S. 154 (1978), the 
search warrant affidavit in this case reveals knowing and reckless falsehoods and omitted material 
information. This is precisely the type the United States Supreme Court sought to guard against. 
The age of the alleged victims, and of Mr. Epstein's intent in that regard, is an element of the 
crimes that must be proven in order to sustain a conviction. In particular, § 2422(b) requires that the 
defendant specifically intended to target a minor. See, e.g., United States v. Murrell, 368 F.3d 1286 
(11th Cir. 2004) ("[T]o prove an attempt the government must first prove that [defendant], using the 
intemet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in 
unlawful sex.") (Emphasis added). Section 2422(b) expressly requires that the crime be committed 
"knowingly," and that requisite mental element applies as to each element of the crime. United 
States v. XCitement Video, Inc., 513 U.S. 64, 68-69 (1994); United States v. Meek, 366 F.3d 705, 
718 (9th Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United States v.  
Bailey, 228 F.3d 637, 638-639 (6th Cir. 2000). How, then, could the USA() "plausibly argue" that a 
misrepresentation about an element of the crime could be viewed as "not material"? If the elements 
of the alleged crime are not met, there is no probable cause to sustain the search warrant in the first 
instance. If the elements are not met, there is no federal crime. That is material. 
Moreover, it is clear from the plaint text of the statute that the statutorily proscribed act 
pursuant to 18 U.S.C. §2422(b) is the actual use of a facility of interstate commerce to persuade, 
entice, induce, or coerce. "The underlying criminal conduct Congress expressly proscribed in passing 
§2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act 
itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g., with himself or a third 
party) without then committing any sex act himself, he would nevertheless violate §2422(b)." United 
States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). See also, United States v. Bailey, 228 F.3d 
637, 639 (6th Cir. 2000) ("Congress has made a clear choice to criminalize persuasion and the 
attempt to persuade, not the performance of the sexual acts themselves."). Thus, if there has been 
sexual misconduct (which we deny) without the requisite persuasion, there is no violation of this 
federal law. 
The investigation and testimony in this case makes clear that Mr. Epstein did not use any 
facility of interstate commerce to commit any act forbidden by 18 U.S.C. § 2422(b)—to persuade, 
induce, entice, coerce—nor did he direct any of his assistants to do so. Indeed, by way of example, 
as clear on this point at her deposition during which she repeatedly testified that 
nobody—not Mr. Epstein or any of his assistants—ever used the Internet or phone in any way to try 
to persuade her to engage in sexual activity with Mr. Epstein. (deposition) at 31-32. 
Nonetheless, even assuming, arguendo, that persuasion to engage in sexual conduct occurred over 
HOUSE OVERSIGHT 012193 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 12 
the telephone (which we deny), it is black letter law that the mens rea must coincide with the actus 
reus. Thus, the government must prove that Mr. Epstein has the specific intent to target a known 
minor to engage in prohibited sexual activity at the time of the call. We have seen zero evidence of 
this. To the extent Mr. Epstein later may have persuaded a particular individual to engage in 
unlawful sexual activity during a massage, such persuasion occurred face to face, and can not work 
retroactively to render the earlier phone call an offense under the statute. 
As to the purported violation of 18 U.S.C. § 2423 for allegedly traveling in interstate 
commerce for the purpose of engaging in illicit sexual activity, CEOS does not deny that Mr. Epstein 
was returning to one of his residences when he traveled to Florida!' CEOS explicitly stated it "fully 
understand[s] our argument" (CEOS letter at p.2) that Mr. Epstein should not be charged under 
§ 2423(b) because the dominant purpose for his traveling to Palm Beach was not to engage in illegal 
sexual activity, but to simply return to one of his residences. Rather, this is apparently another 
"compelling" point of law which may be left to "a court to decide whether the law properly reaches 
such conduct." (CEOS letter at p. 2).5 Notably, implicit in this concession by CEOS is that the law 
has never before been so applied, that is, there is no precedent for a court to extend the statute as the 
USA() seeks to do here. In fact, the United States Supreme Court prohibited the criminalization of 
travel under identical circumstances over a half century ago. See Mortenson v. United States, 322 
U.S. 369, 374 (1944) (intention to engage in proscribed conduct must "exist before the conclusion of 
the interstate journey and must be the domMate motive of such interstate movement." (Emphasis 
added.) 
Beyond an absence of proof regarding the travel element in connection with 18 U.S.C. §2423, 
the requisite age requirement for a violation of that statute is important. 18 U.S.C. §2423, by 
reference to Chapter 109A (18 U.S.C. §2423(0(1)), specifically defines a minor for purposes of that 
statute as an individual who has not attained the age of 16. If an alleged victim is 16 years of age or 
older, a violation of this statute pursuant to 2423(f)(1) can only occur if it can be proven that force, 
threat or drugs were involved. See, 18 U.S.C. §§ 2241 et seq. There are no such allegations here. As 
a result, in order to find a violation under 18 U.S.C. § 2423, the United States would have to prove 
that Mr. Epstein engaged in one of the sexual acts defined at 18 U.S.C. § 2246(2) with an individual 
under the age of 16, and that he formed the intent and dominant purpose to do so prior to the time he 
made a return trip to Florida. Again, there is no such evidence here. has specifically 
testified that 1) she never engaged in sexual activity with Mr. Epstein; 2) she never even met or 
talked to Mr. Epstein prior to her arrival at his house; and 3) she lied about her age not only to Mr. 
Epstein, but, in fact, to the world on her MySpace page when she said that she was 18 years old. It is, 
then, also worth noting in this regard that 18 U.S.C. §§2243(c) provides an affirmative defense if 
proven by a preponderance of the evidence if Mr. Epstein reasonably believed that was 
4 In addition to his residence there, Mr. Epstein also has several businesses, and personal matters and contacts to which 
he attends in Florida. For example, beginning in 2002, Mr. Epstein visited his mother nearly every weekend in Palm 
Beach until she passed away in April, 2004. 
5 As previously set forth herein, and as more fully explained in other submissions related to this case, the recent 
Supreme Court decisions in Santos and Cuellar make this attempted stretch of the law improper. 
HOUSE OVERSIGHT 012194 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 13 
had attained the requisite legal age. Finally, although 18 U.S.C. §2423(f)(2) also defines "illicit 
sexual conduct" as any commercial sex act with a person under the age of 18, 18 U.S.C. §2423(g) 
also provides a specific affirmative defense as to that age element if proven by a preponderance of 
the evidence that Mr. Epstein reasonably believed that the young women had attained the requisite 
legal age. As we have demonstrated, time and again the women involved lied to Mr. Epstein as to 
illeir true age, representing that they were, in fact, over the age of 18. Many of them also represented 
that they worked at local massage parlors, which presumably would have imposed a legal age 
requirement. 
Lastly, in contrast to 18 U.S.C. §1591, Mr. Epstein's conduct did not involve trafficking of 
women or children in the sex industry, and was not part of any phenomenon that, in the aggregate, 
had an economic impact on interstate or foreign commerce. Additionally, Mr. Epstein did not 
benefit financially from the alleged conduct. Therefore, as the SAO determined, and still believes, 
Mr. Epstein was a customer, a "John" for whom prosecutions are best left to the State to address. 
Indeed, there is no reported precedent extending federal law to a local "John" who does not violate 
the child exploitation statutes. Indeed, CEOS does not point to a single case where federal 
prosecutors have used § 1591 in a case involving facts like these. Instead, every § 1591 prosecution 
has involved national or international sex trafficking and/or for-profit prostitution rings, involving 
the knowing use of minors and/or forcible coercion, or forcible rape, physical abuse or intimidation. 
These are the elements required by the statute, and they are not met here. 
Although CEOS could, perhaps, point to United States v. Evans, 476 F.3d 1176 (11th Cir. 
2007) as a case that, standing alone, involved wholly intrastate conduct, the facts of that case are far 
different in key respects than this one. The Evans case involved both the commercial and coercive 
components that Congress, and administration policy statements intended in 18 U.S.C. § 1591 
prosecutions. Evans, and his co-conspirators (Madison and Yearby) were not "Johns." They 
operated a for profit prostitution ring marked by control of, and extreme violence toward, the 
victims, who they knew were underage. Indeed, Evans forced one such victim, age 14 years old, to 
continue to work even after she had been hospitalized with ADDS. As part of their business, Evans 
and his co-conspirators provided the victims with cell phones, hotels, and condoms, and the victims 
were forced to give all of their money from this prostitution ring to Evans and his co-conspirators. 
None of this type of activity comes close to the facts regarding Mr. Epstein. Finally, but significantly, 
the prostitution ring in Evans was not, in fact, entirely intrastate as the companion case of one of the 
Evans co-defendants makes clear. See, United States v. Madison, 477 F.3d 1312, 1313-1314 (11th 
Cir. 2007) (Jane Doe #2 stated that she traveled to Atlanta, Georgia with Madison to work as a 
prostitute). 
Thus, courts, including the Eleventh Circuit in Evans, have underscored the point that § 1591 
simply is not intended to cover the kind of alleged conduct at issue here. "Section 1591 does not 
criminalize all acts of prostitution (a vice traditionally governed by state regulation). Rather, its 
reach is limited to sex trafficking that involves children or is accomplished by force, fraud, or 
coercion." United States v. Evans, 476 F.3d at 1179 n. 1; See also United States v. Sims, 171 Fed. 
HOUSE OVERSIGHT 012195 
ALLEN GUTHRIE MCHUGH & THOMAS, PLLC 
Mr. John Roth 
June 19, 2008 
Page 14 
Appx. 849, 2006 WL 14581 at *3 (11th Cir. 2006) (to establish Sims's guilt on the sex trafficking of 
a minor count, the government had to show that Sims benefited financially from Owen's sexual 
activity and that Sims knew that (a) force or coercion would be used to cause Owens to engage in a 
criminal sex act or (b) that Owens was under the age of 18.) (emphasis added). Again, none of these 
factors is present in this case. The Eleventh Circuit's interpretation of the statute makes perfect 
sense: were § 1591 not limited in this fashion, it would threaten to criminalize a host of localized 
behavior that has nothing to do with human trafficking, and, thus, is of no valid federal interest. 
In sum, to accord discretion to the USAO, albeit without benefit of the requested full denovo 
review, to exercise authority to pursue a prosecution which involves a "novel" application of three 
federal statutes in the face of numerous "compelling arguments" is not warranted, as it is not 
supported by the facts, the law, or justice. Echoing the admonition of the Supreme Court in the 
Berger decision, the Comment to Rule 3.8 of the Rules of Professional Conduct (Special 
Responsibilities of a Prosecutor), says it best "A prosecutor has the responsibility of a minister of 
justice and not simply that of an advocate. This responsibility carries with it specific obligations to 
see that a defendant is accorded procedural justice and that guilt is decided upon the basis of 
sufficient evidence." This is a responsibility that can not be taken for granted. The government bears 
the burden of assuring that it possesses sufficient evidence to prove each element of a crime with 
respect to some specific victim before publicly branding Mr. Epstein a child molester. In this case, 
however, the USA() has not met its burden for any victim for any of the crimes alleged. It is not 
enough to simply gloss over the required proof, and rely on the jury or the court to just sort it all out 
in the end. The stakes are too high. As a result, the USA() should not be permitted to pursue an 
unfounded federal criminal case against Mr. Epstein under the guise of prosecutorial discretion. 
Such prosecution in this case necessarily would appear to be selective to Mr. Epstein. To be 
clear, our request that Mr. Epstein should not be prosecuted federally would not permit him to go 
completely unpunished, but, rather, would simply place him in the same prosecution position as 
others similarly situated. Therefore, we continue to believe that after a complete, de novo, and 
independent review, the only appropriate conclusion will be that this case is best left to the state to 
resolve. 
STEPHANIE D. THACKER 
SDT/kdt 
Enclosures 
HOUSE OVERSIGHT 012196