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LAW OFFICES or 
GERALD B. ince -ant, P.C. 
A 
, Esq., Assistant United States Attorney 
Andrew Lourie, Esq., Deputy Chief, Northern Region 
Office of the United States Attorney 
Southern District of Florida 
February 1, 2007 
Pitge 21 
internet to lure minors to engage in prohibited sexual activity, child pornography, or trafficking. 
The conduct in which Epstein is alleged to have engaged fits nowhere in these categories. Given 
its essentially stet generic character, its prosecution would have little or no general deterrent 
effect. 
If prosecuted under statutes designed to address far more serious conduct and far more 
dangerous offenders, lie would be subject to punishment that is grossly disproportionate to his 
alleged behavior. Even though society has a legitimate interest in preventing and punishing 
sexual exploitation of minors, under our federal system, that interest is one that is shared 
between the federal government and the states, and one in which there is a division of 
responsibility. Under our system of federalism, the states, and only the states, act where the 
concern is local, and the federal government only where there is a federal interest at stake. This 
is just as true with respect to sexual activity involving minors as it is with respect to murder, 
which can be prosecuted, federally, only in special circumstances where there is a genuine 
federal interest to be served. 
Most importantly, there is no identifiable federal interest to be served by prosecuting the 
conduct at issue in this case. The federal interest lies in addressing the problem of internet 
predators, a problem of uniquely federal interest. As the Director of the Office for Victims of 
Crime of the DOJ has stated, ". . .the nature of Internet crimes presents complex new challenges 
for law enforcement agencies and victim service providers with regard to investigating crimes, 
collecting evidence, identifying and apprehending offenders, and assisting child victims and their 
families." U.S.D.O.J., Office of Justice Programs, OVC Bulletin, Internet Crimes Against 
Children, December 2001. Federal lawmakers recognized that while the internet presents 
wonderfid opportunities for young people, at the same time "criminals are also using modem 
technology — to prey on innocent victims." Id. 
That should be sufficient to end the matter, as Epstein's case has nothing whatever to do 
with internet predation, or the type of predators to which the legislation is addressed. 
After all, it is a first principle th t the Constitution creates a federal government of 
enumerated powers. See United Slates'. Lopez, 514 U.S. 549, 552 (1995) ("Just as the 
separation and independence of the coordinate branches of the Federal Government serve to 
prevent the accumulation of excessive power in any one branch, a healthy balance of power 
between the States and the Fede I Government will reduce the risk of tyranny and abuse from 
either front.") (quoting Gregory'. Ashcroft, 501 U.S. 452, 458 (1997)). Thus, Congress's power 
to legislate in this area is constrained by the Commerce Clause. As Lopez demonstrates, the 
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LAW OFFICES OF 
GERALD B. Th3t0COURT, P.G. 
A. W
oillafiula, Esq., Assistant United States Attorney 
Andrew 
urie, Esq., Deputy Chief, Northern Region 
Office of the United States Attorney 
Southern District of Florida 
February 1, 2007 
Page 22 
Clause imposes real limitations on Congress's power to criminalize essentially local behavior. 
See United States' Morrison, 529 U.S. 598 (2000) (Violence Against Women Act exceeded 
Congressional power under the Commerce Clause or § 5 of the Fourteenth Amendment). 
Lopez, of course, recognizes Congress's power to regulate "the use of the channels of 
interstate commerce" and "to keep the channels of interstate commerce free from immoral and 
injurious uses." Lopez, 514 U.S. at 558. But this confirms that the legitimate federal interest is 
in the misuse of instrumentalities or channels of interstate commerce. This suggests that, in 
defining and weighing the federal interest, the focus should be on the use of interstate travel, and 
not upon the sexual conduct itself. Clearly, Epstein's interstate travel can be of no legitimate or 
significant federal interest. I•le spent a great deal of his time in Florida because he has owned a 
home there for seventeen years and has many professional, social and personal interests centered 
there, none of which has anything to do with sexual conduct. Given the attenuated relationship 
between sexual conduct with any person under 18 and interstate travel, the federal interest in this 
matter is negligible. 
The conduct at issue is not an example of a widespread or growing phenomenon that in 
general crosses state or international lines (like Internet sexual predators or sex tourism) that is 
difficult to police or prosecute and that the United States has a special interest in eliminating. It 
does not involve the special targeting of children. It does not involve organized prostitution, sex 
trafficking, or organized crime. It does not involve violence or the threat of violence, nor 
physical harm or threat of harm. It does not involve child pornography. Indeed, the 
circumstances of this case are so idiosyncratic that its pursuit would not significantly advance the 
protection of minors. Instead, the conduct at issue here is precisely the conduct that is primary 
interest to the state. And it is the state that has the authority, and the right, to establish and rely 
on reasonable criteria for deciding which cases to bring and which to forego. 
To the extent that the federal statutes in this area are broadly drafted, this is to confer on 
the authorities sufficient leeway to exercise their discretion and "get the bad guys" who do 
exploit minors, often on a massive scale or for financial rewards. The very breadth of the 
statutory language places on federal prosecutors the weighty responsibility of insuring that their 
discretion is exercised thoughtfully. Certainly, the fact that conduct arguably falls within the 
broad scope of a broadly worded federal criminal statute cannot itself establish that a substantial 
federal interest is at stake. 
Nor does the statutory breadth mean that prosecutors should strive to test the statutes' 
outer boundaries. This is particularly true here, where private conduct is at issue; where the 
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LAW OFFICCS or 
GERALD B. Luxecourrr, P.C. 
Esq., Assistant United States Attorney 
Andrew Lourie, Esq., Deputy Chief, Northern Region 
Office of the United States Attorney 
Southern District of Florida 
February 1, 2007 
Page 23 
federal statutes, broadly read, would criminalize sexual conduct that state law may permit; and 
where the question of' whether fedgral legislation in this area exceeds Commerce Clause 
authority, in light of United Stator. Lopez, supra, remains unresolved by the Supreme Court. It 
is well to remember that hard cases make bad law - for the government as well as for its citizens. 
Indeed, if the use of a handgun that trayeled in interstate commerce does not allow a federal 
prosecution by invocation of the Commerce Clause, as the Supreme Court ruled in Lopez, then 
surely purely local sexual activity would not, either. 
B. 
Petite Policy 
In addition to the factors discussed above, the Petite Policy (regarding dual and 
successive prosecutions), a limitation on prosecutorial authority, may also stand as a bar to 
federal prosecution. If it is arguable whether the policy applies, the policy itself may require that 
Justice Department authorization to proceed be obtained. 
The Policy, which takes its name from Petite" United Stales, 361 U.S. 529 (1960), is set 
forth in the USAM at 9-2.031. The Petite Policy "establishes guidelines for the exercise of 
discretion by appropriate officers of the Department of Justice in determining whether to bring a 
federal prosecution based on substantially the same act(s) or transactions involved in a prior state 
or federal proceeding." 
The purpose of the policy "is to vindicate substantial federal interests through appropriate 
federal prosecutions, to protect persons charged with criminal conduct from the burdens 
associated with multiple prosecutions and punishments for substantially the same acts or 
transactions, to promote efficient utilization of Department resources, and to promote 
coordination and cooperation between federal and state prosecutors." USAM 9-2.031(A). 
Though the Policysioes not create any substantive or procedural rights enforceable by law, see, 
e.g., United Stalest Snell, 592 F.2d 1083 (9th Cir. 1979), it nevertheless provides a valid basis 
for arguing against the institution of charges in this matter. 
The crux of the Policy is this: 
This policy precludes the initiation or continuation 
of a federal prosecution, following a prior state or 
federal prosecution based on substantially the same 
act(s) or transaction(s) unless three substantive 
prerequisites are satisfied: first, the matter must 
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LAW 0IfICC5 or 
GERALD 13. I-MC.OOAT, P.C. 
A. W
oillafafla, Esq., Assistant United States Attorney 
Andrew 
urie, Esq., Deputy Chief, Northern Region 
Office of the United States Attorney 
Southern District of Florida 
February 1, 2007 
Page 24 
involve a substantial federal interest; second, the 
prior prosecution must have left that interest 
demonstrably unvindicated; and third, applying the 
same test that is applicable to all federal 
prosecutions, the government must believe that the 
defendant's conduct constitutes a federal offense, 
and that the admissible evidence probably will be 
sufficient to obtain and sustain a conviction by an 
unbiased trier bf fact. 
In addition, there is a 
procedural prerequisite to be satisfied, that is, the 
prosecution must be approved by the appropriate 
Assistant Attorney General. 
Satisfaction of the three substantive prerequisites 
does not mean that a proposed prosecution must be 
approved or brought. The traditional elements of 
federal prosecutorial discretion continue to apply. 
Whether the matter involves a substantial federal interest is a determination to be made 
on a case-by-case basis, applying the considerations applicable to all federal prosecutions. The 
second prerequisite is that the prior prosecution must have left that substantial federal interest 
"demonstrably unvindicated." "In general, the Department will presume that a prior torosecution, 
regardless of result, has vindicated the relevant federal interest." USAM 9-2.031(D). I8
The presumption may be overcome when the prior prosecution resulted in a conviction if 
the prior sentence was manifestly inadequate in light of the federal interest involved or if the 
choice of charges in the prior prosecution was affected by certain inappropriate or irrelevant 
factor such as "incompetence, corruption, intimidation, or undue influence." 
No such factors operated here. The negotiations between the State Attorney were 
conducted at arms length, and at times in an atmosphere of mutual hostility. At no point was 
Epstein granted any sort of break in his case due to his wealth, his political affiliations, or the 
prominence of his lawyers. If anything, those factors worked against him. The state prosecutors 
devoted enormous resources to a lengthy investigation, refused to reveal the nature of the charges 
1K All three substantive pre-requisites for approval of a prosecution governed by the Petite Policy are 
discussed in greater detail in USAM 9-2.031(D). 
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LAW OFFICES OF 
GERALD B. LEFGOURT, P.G. 
A.= 
Villafana, Esq., Assistant United States Attorney 
Andrew Lourie, Esq., Deputy Chief, Northern Region 
Office of the United States Attorney 
Southern District of Florida 
February I, 2007 
Page 25 
they were considering, refused to speak with Epstein's attorney of choice. and tried to strong-arm 
Epstein to plead guilty to a violent felony by threatening to place witnesses, whom the State 
knew were not credible, on the stand before a grand jury. 
In determinin the char es, the State Attorney took into account the fact that both of the 
principal victims 
nd 
— have serious credibility problems, 
including damaging histories of lies, illegal drug use, and crime. The State Attorney, quite 
appropriately, took into account the substantial possibility that, with witnesses 
MIS 
might not be able to make any case against Epstein at all. In fact, according to 
the State Attorney for Palm Beach County, his reason to take the case to the grand jury, rather 
than proceed by information, was to determine whether his witnesses would testify under oath, 
even without being subjected to cross-examination. Tellingly, though subpoenaed to testify at 
the grand jury, Ms.=ailed even to appear. 
The charging decision was not an act of favoritism, but a rather harsh exercise of the 
Stale Attorney's discretion. The State Attorney had never before prosecuted a case involving 
erotic touching unless the victim was exceedingly young, vulnerable, or in a trust relationship 
with the perpetrator. Cases brought by the State Attorney previously involved far more 
egregious conduct, including the videotaping of sexual activity, multiple rapes, and keeping 
minors as sex slaves, including tattooing them to indicate ownership and control over them. Any 
suggestion that Epstein received preferential treatment — or that the State prosecutors were 
corrupt — would be utterly without merit. 
For all of these reasons, we submit that no prosecution can or should be brought against 
Jeffrey Epstein, We would like to reserve the opportunity to make a further submission in which 
we address more specifically the applicable law once we have had the benefit of narrowing the 
focus at our meeting. 
cc: Roy Black, Esq. 
Lilly Ann Sanchez, Esq. 
y y UT 
Gerald B. L tb urt Qf 
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!Y1110Prativin 
09/19/200712:14 PM 
Judge Johnson has duty next week. 
Jay — I hate to have to be firm about this, but we need to wrap this up by 
Monday. I will not miss my indictment date when this has dragged on 
for several weeks already and then, if things fall apart, be left in a less 
advantageous position than before the negotiations. I have had an 
82-page pros memo and 53-page indictment sitting on the shelf since 
May to engage in these negotiations. There has to be an ending date, 
and that date is Monday. 
To °Jay Letkovalz" <JLetkowitzgaiirkiend.coi 
cc 
Subject RE: Meeting 
A. Marie Villcialla 
Assistant U.S. Attorney 
— Ori 
From: 
\(USAFLS\)" 
Sent: 09/19/2007 11:51 AM AST 
To: Jay Leflcowitz 
Subject: Meeting 
Barry is available Monday morning. Our most flexible West Palm 
Beach magistrate is on duty on Monday, so, assuming we have 
signed documents by 1:30 or so, we should be able to get Mr. 
Epstein arraigned on Monday. I doubt that we will be able to get 
everything finished up here, get down to Miami, and try to find a 
Miami mag by close of business on Monday. 
A. 
Villafaffa 
US_Atty_Cor_004 
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U.S. Department of Justice 
United States Attorney 
Southern District of Florida 
500 South Australian Ave.. Suite 400 
West Palm Beach. FL 33401 
Facsimile: 
June 7, 2007 
PELIVERY BY HAND 
Miss 
Re: 
Crime Victims' and Witnesses' Rights 
Dear Miss 
Pursuant to the Justice for All Act of 2004, as a victim and/or witness of a federal offense, 
you have a number of rights. Those rights are: 
(1 ) 
The right to be reasonably protected from the accused. 
(2) 
The right to reasonable, accurate, and timely notice of any public court proceeding 
involving the crime or of any release or escape of the accused. 
(3) 
The right not to be excluded from any public court proceeding, unless the court 
determines that your testimony may be materially altered if you are present for other 
portions of a proceeding. 
(4) 
The right to be reasonably heard at any public proceeding in the district court 
involving release, plea, or sentencing. 
(5) 
The reasonable right to confer with the attorney for the United States in the case. 
(6) 
The right to full and timely restitution as provided in law. 
(7) 
The right to proceedings free from unreasonable delay. 
(8) 
The right to be treated with fairness and with respect for the victim's dignity and 
privacy. 
Members of the U.S. Department of Justice and other federal investigative agencies, 
including the Federal Bureau of Investigation, must use their best efforts to make sure that these 
rights are protected. If you have an concerns in this regard, please feel free to contact me at, 
or Special Agent 
from the Federal Bureau of Investigation at 
You also can contact the Justice Department's Office for Victims of Crime in 
Washington, D.C. at 
That Office has a website at www.ovc.gov. 
You can seek the advice of an attorney with respect to the rights listed above and, if you 
believe that the rights set forth above are being violated, you have the right to petition the Court for 
relief. 
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MISS 
JUNE 7, 2007 
PAGE 2 
In addition to these nghts, you are entitled to counseling and medical services, and protection 
from intimidation and harassment. If the Court determines that you are a victim, you also may be 
entitled to restitution from the perpetrator. A list of counseling and medical service providers can 
be provided to you, if you so desire. If ou or our family is subjected to any intimidation or 
harassment, please contact Special Agent 
or myself immediately. It is possible that 
someone working on behalf of the targets of the investigation may contact you. Such contact does 
not violate the law. However, if you arc contacted, you have the choice of speaking to that person 
or refusing to do so. If ou refuse and feel that you are being threatened or harassed, then please 
contact Special Agent 
or myself. 
You also are entitled to notification of upcoming caseevents. At this time, your case is under 
investigation. If anyone is charged in connection with the investigation, you will be notified. 
Sincerely, 
United States Attorney 
cc: 
Special Agent 
By: 
A. 
VillafaAa 
Assistant United States Attorney 
*pr..; - 
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24 
GERALD B. LETCOURT 
• 
lefeourlialecourEaw.com 
SHERYL E. REICH 
relcheNtouriewtom 
RENATO C. STABILE 
AMNI•OlitcourOnecan 
FAITH A. FRIEDMAN 
Sclulmenalefornallaw.ccor 
BY FEDERAL EXPRESS 
LAW °mete or 
Gnaw B. Lggcouic, P.C. 
A PROFESSIONAL CORPORATION 
140 EAST 7STN STREET 
NEW YORK, NEW YORK 10021 
July 6, 2007 
Jeffrey 
Esq., First Assistant United States Attorney 
Matthew 
Fsq., Chief, Criminal Division 
The United States Attorney's Office 
Southern District of Florida 
99 NE 4th Street 
Miami, Florida 33132 
Andrew Londe, Deputy Chief, Northern Region 
Assistant United States Attorney 
• The United States Attorney's Office 
District of Florida 
TELEPHONE 
CZ lE) 797.0400 
FACSIMILE 
968419E 
Jeffrey Epstein 
Dear Messrs. =, 
and Lourie and Ms. Villafafia: 
We write as counsel to Jeffrey Epstein to follow-up on our meeting on June 26, 
2007. We thought the meeting was extremely productive and appreciate your giving us 
the opportunity to engage you on the facts, law and policy that will inform any decision 
you make on how and whether to proceed. 
I. 
18 U.S.C. §2422(b) Has No Applicability to the Facts Here. 
Even assuming the facts as you believe them to be, as demonstrated below, a 
prosecution under 18 U.S.C. §2422(b) would violate the explicit terms of the statute, pose 
insurmountable constitutional barriers, and be unprecedented, unwise, and utterly 
inappropriate. This statute, with its mandatory minimum sentences was designed to reach 
The statute in effect during the events at issue carries a mandatory five-year period of 
incarceration. The current ten-year mandatory minimum was instituted in 2006. 
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LAW OPPICCO OP 
GERAIS/ B. LEPCOTJEtt PC. 
N 
Jeffrey 
Esq. 
Matthew 
Esq. 
Andrew Lourie. Esq. 
Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 2 
those who deliberately, knowingly, and intentionally target and exploit children through 
the intemet. Though the literal language may superficially apply to a wider variety of 
behaviors, we submit that the statute cannot properly be used to prosecute what have 
traditionally been viewed as state offenses, even if some facility or means, of interstate 
commerce can be said to have been used by someone at some point during the course of 
events. 
1. 
Congress's Purpose 
Section 2422(b), the so-called "Internet Luring StatutC addresses online 
enticement of children. The subsection was included in Title I of the 
Telecommunications Act of 1996, entitled "Obscenity and Violence", after the Senate 
Judiciary Committee held a hearing regarding child endangerment via the intemet. See 
H.R. Conf. Rep. No. 104-458, at 193 (1996), quoted in United States' Searcy, 418 F.3d 
1193, 1197 (l 
Cir. 2005); see also K. Seto, "Note: flow Should Legislation Deal with 
Children and the Victims and Perpetrators of Cyberstalkingr 9 Cardoso Women's L.J. 67 
(2002). 
In enacting the statute, Congress recognized that young people were using the 
llama in ever-increasing numbers, and it was proving to be a dangerous place. 
According to a DQJ study, one in five youths (aged 10 to 17) had received a sexual 
approach or solicitation over the intemet in the previous year. One in 33 had received an 
"aggressive sexual solicitation", in which a predator had asked a young person to meet 
somewhere or called a young person on the phone. U.S.D.O.J., Office of Justice 
Programs, OVC Bulletin," Internet Crimes Against Children" (12/2001); 
www.ohtusdoj.gov/ove/publications/bulletons/internet  " 2 2001/intemet _2_01_6.html. 
Congress saw that, with so many children online, the intemet created a new place 
— cyberspace — where predators could easily target children for criminal acts. Use of the 
interact, which occurs in private, and the secrecy and deception that acting in cyberspace 
permits, eliminated many of the risks predators face when making contact in person, and 
presented special law enforcement problems that are dif₹icult for any local jurisdiction to 
tackle. Theinandatory minimum sentence for a violation of this section was increased 
from five years to ten years in 2006, by virtue of the Adam Walsh Child Protection and 
Safety Act of 2006, which also eliminated any statute of limitations. See 18 U.S.C. 
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LAW OFFICC• OF 
‘• GERALD B. LEYCOMZT. P.C. 
Jeffrey Misq. 
Matthew 
Esq. 
Andrew Lourie Esq. 
A. =Ma 
Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 3 
§3299.2 The law was named in memory of Adam Walsh who, 25 years earlier, had been 
abducted from a department store and was later found murdered, and whose parents had 
become advocates for missing children. In his signing statement, President Bush noted 
that it increased federal penalties for crimes against children, imposing "tough mandatory 
minimum penalties for the most serious crimes against our children." 2006 
U.S.C.C.A.N. S35, 2006 WL 3064686 (emphasis added). The five-year mandatory 
minimum it replaced was itself established as part of the PROTECT Act of 2003, another 
law designed to strengthen the government's ability to deal with certain dangerous sexual 
predators who exploited children in ways the states had been unable to address fully.3
2. 
General Overview 
It must be remembered that §2422(b), by using the phrase "any sexual activity for 
which any person can be charged with a criminal offense": in some sense incorporates 
all the sex offense laws of all 50 states, in all their variety and in all their ambiguity. This 
in itself raises questions of the utmost seriousness, implicating fairness and the due 
process clause. It also constitutes an extreme example of federal pre-emption, or, more 
precisely, the wholesale annexation of the enforcement responsibility of each of the 50 
states' sex-related crime statutes — whether felony, misdemeanor or violation — wherever 
there has been use of the ever-present wires. To make every state sex "offense" involving 
a person under 18 potentially into a mandatory minimum ten-year federal felony without 
any statute of limitations is certainly not what Congress had in mind when it enacted 
§2422(b). 
2 Other federal crimes with ten-year mandatory minimum involve very serious acts, See, e.g., 18 
U.S.C. §2113(e) (bank robbery where a person is killed or kidnapped); 18 U.S.C. §924 (involving 
discharge of firearm). 
3 Section 2422(b) has always carried a substantial penalty. 
en first enacted, the maximum 
sentence it permitted was ton years. Pub.L. 104-104, Title 
Sec. 508, 110 Stat. 137. After that, 
the maximum was increased to 15 years. Pub.L. 105-314, Title I, sec, 102, 112 Stat. 2975 (Oct. 
30, 1998 to April 29, 2003). 
A phrase which, by itself, and in the context of the remainder of the statute, raises mind-
numbing questions as to what, exactly, is proscribed. 
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LAW DAVICCII or 
ALD B. LEFCOURT. PC. 
Jeffrey 
Matthew 
Esq. 
Andrew Laurie. Esq. 
 
 Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 4 
The bulk importation of complex bodies of state law is highly problematic, and 
strongly counsels that such matters should be left to the states except in those rare 
circumstances where both a federal interest is clear and weighty, and the states are for 
some reason incapable of acting. Like issues of family law, these issues are 
quintessentially of state concern within our federal system. 
State laws regarding both sexual activity and the age of consent to engage therein 
are hugely varied, reflecting different histories, values, politics, and personalities. See 
Richard A. Posner & Katharine B. Silbaugh, A Guide to America's Sex Laws (1996). The 
various and shifting societal reasons underlying thoselaws, and the societal pressures 
operating in the urea, where sexual mores change over time, complicate the matter even 
further. See generally Richard A. Posner, Sex and Reason (1992). The history of the 
Mann Act confirms the caution with which the federal government should approach this 
entire area. For example, historically, the Act was used by some prosecutors in some 
jurisdictions to prosecute acts— such as a man traveling with his paramour — which, we 
submit, never implicated a legitimate federal concern. See generally D.J. Langum, 
Crossing the Lines: Legislating Morality Under the Mann Act (1994). 
Even where there is broad agreement that certain conduct should be criminalized, 
the various states treat the very same conduct differently; to apply such laws selectively 
by different federal prosecutors would undermine further what uniformity does exist. In 
New York, for example, a 50 year old man who patronizes a 15 year old prostitute is 
guilty of a Class A misdemeanor. New York Penal Law §230.04. If §2422(b) were read 
expansively, then such person would face a 10-year mandatory minimum if ho used the 
telephone to set-up his date with the young prostitute, even if the date never happened. 
And that would be so even if the prostitute were 17'/2 (and despite the fact that in New 
York the age of consent is 17, since prostitution is a "sexual offense" in New York). 
Clearly, these are applications and outcomes Congress did not contemplate when it 
enacted the law. 
Instead, these are matters best left to state law and state law enforcement. In the 
state, prosecutors and law enforcement authorities, who have far more experience dealing 
with sexual crimes, can exercise their discretion as to whom to prosecute and for what 
charges, taking into account both local attitudes and the wide range of circumstances that 
may exist when sexual offenses, or possible sexual offenses, involving minors wet; or 
may have been, committed. That is particularly so since state laws generally permit the 
exercise of sentencing discretion, allowing the punishment to fit both the crime and the 
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LAW OFFICES Of 
GERALD B. Lnrcouter. PC 
Jeffrey Miq. 
Matthew 
Esq. 
Andrew Lourie, Esq. 
A. 
Villafafia, Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 5 
• 
perpetrator. Section 2422(b), with its ten-year mandatory minimum is far too blunt a tool 
to use in any circumstances except the narrow, clear-cut, and egregious circumstances 
Congress had in mind when it enacted this law.5
Though §2422(b) is susceptible to multiple interpretations, it was designed to 
address a specific a problem with which Mr. Epstein's case has nothing in common. If 
stretched to reach beyond the core concern of the statute, a host of problems immediately 
arise. A simple reading of the words of the statute leaves any reasonable reader with far 
more questions than answers as to what is illegal. Any attempt to apply the statute to Mr. 
Epstein's situation highlights the many problems of vagueness, overbreadth, and simple 
incomprehensibility lurking in or just below the statute's text. 
3. 
The Statute's Text And Its Thrust 
Section 2422(b) currently provides: 
Whoever, using the mail or any facility or means of 
interstate or foreign commerce, or within the special 
maritime and territorial jurisdiction of the United 
States knowingly persuades, induces, entices or 
coerces any individual who has not attained the age 
of 18 years, to engage in prostitution or any sexual 
activity for which any person can be charged with a 
criminal offense, or attempts to do so, shall be fined 
under this title and imprisoned not less than ten' 
years or for life. 
The statutory language and reported decisions confirm the statute's important, but 
narrow, focus: the luring of children over the Internet. Unlike 18 U.S.C. §§2241 et seg., 
Penalties under state statutes criminalizing online enticement also vary widely. According to the 
National Center for Missing and Exploited Children, though the offense can be a felony in all 
states, 15 states permit misdemeanor sentences in some eases (generally where the victim is 14 or 
older). Nineteen states classify online enticement as a felony, but grant judges statutory 
discretion to sentence offenders to less than one year in prison 
/missingkids/servlet/NewsEventServletThanguageCountry=en... 6/28/2007. 
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24 
LAW OIPICto or 
ERALD B. LEFCOURT, P.C. 
Jeffrey Mi
sq. 
Matthew 
Esq. 
Andrew Lourie, Esq. 
A. 
Villafafia, Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 6 
§2422(b) does not establish any federal sex crimes with a minor. Section 2422's subject 
is not sex or sexual activity or face-to-face sexual exploitation of minors. Such behavior 
remains a matter of state, not federal, concern. The plain language of the statute 
mandates focus on the communication and demands that the knowing "persuasion", 
"inducement", "enticement" or "coercion" be done "using the mail or any facility or 
means of interstate . . .commerce" (emphasis added). Any other reading would violate 
constitutional principles of fair warning, notice, lenity and due process. Additionally, any 
broader reading would violate the clearly stated intent of Congress that enacted the law 
and the President who signed it. It would also exceed the authority of Congress under the 
Commerce Clause by federalizing virtually all state sex offenses involving people under 
the age of 18. 
Section 2422(6) defines a crime of communication, not of contact. It makes 
unlawfid a narrow category of communications, ones not protected by the First 
Amendment. Both the attempt and the substantive crime defined by §2422 are complete 
at the time when communication with a minor or purported minor takes place; the essence 
of the crime occurs before any face-to-flice meeting or any sexual activity with a minor, 
and regardless of whether any meeting or activity ever occurs. 
Turning the statute on its head by first looking at the alleged sexual activities and 
then seeking to find a mailing, a use of the wires, or the involvement of another facility or 
means of interstate commerce as a pretext for the invocation of federal jurisdiction would 
be without precedent and make a narrowly-focused statute into virtually a complete 
federalization of all state sex offenses involving minors. 
4. The Statute Is Violated Only If A Facility Or Means Of Interstate 
Commerce Is Used To Do the Persuading Or Inducing 
Though the statute raises several difficult issues of construction, on one point it is 
clear and unambiguous: To be guilty of a crime under §2422(b), the mail or a facility or 
means of interstate commerce must be used to do the perivading or inducing. As the 
Court wrote in United States I `165 
Aid Appx. 586, 2006 WL 226038 (10th Cir. 
2006), to prove a violation, the government must show "(1) the use of a facility of 
interstate commerce; (2) to knowingly persuade, induce, entice or coerce, as well as 
the other elements. See also United States' Bolen, 136 Fed. Appx. 325, 2005 WL 
1475845 (1 1 di Cir. 2005). 
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24 
LAW WIC° 
OF 
OBRALD B. LEFCOURT. P.C. 
Jeffrey 
Matthe 
, Esq. 
An 
9. 
A. 
, Esq. 
The United States Attorney's Office 
• Southern District of Florida 
July 6, 2007 
Page 7 
The statutory language can bear no other construction. The words "whoever, 
using . . . knowingly persuades . . ." necessarily requires that the "whoever" must "use" 
the interstate facility to knowingly persuade. That is, the word "using" is in the present, 
not the past, tense. Thus, the "using" must occur at the same time as the "persuading". If 
the.statute meant otherwise, it could and would have been drafted differently: "whoever 
having used the mail and knowingly persuades" or "whoever uses the mail and 
knowingly persuades". But, as it is written, the actor must use the interstate facility to 
persuade or to entice, or to attempt to do so; use of the instrumentality cannot be 
incidental or peripheral. 
Indeed, assuming, arguendo, that the grammar and structure of the statute would 
allow another interpretation — which we believe it does not — nevertheless the obvious, 
straightforward reading controls. Anything else would violate the rule of lenity, requiring 
strict construction of penal statutes, as well as the requirement of fair notice guaranteed 
by the due process clause. 6 As Thomas Jefferson put it in 1823: "Laws are made for men 
of ordinary understanding, and should therefore be construed by the ordinary rules of 
common sense. Their meaning is not to be sought for in metaphysical subtleties, which 
may make any thing mean every thing or nothing, at pleasure". 
According to one of the world's leading experts on grammar and specifically, the 
syntax and semantics of verbs, these rules of "ordinary understanding" and "common 
sense" dictate that 
. . . an English speaker, reading the statute, would naturally 
understand it as applying only to persuasion (etc.) that is 
done while "using the mail" (etc.). To understand it as 
applying to persuasion (etc.) done subsequent to the use of 
6 We note that the structure of this statute is radically different from the structure of §134I, the 
mail fraud statute. There, the statute first describes the fraud and recognizes the federal concern 
• by requiring, for purposes of executing such scheme or artifice, that the defendant use the mail. 
Section 2422(b) on the other hand defines the crime as using the mail to knowingly persuade, etc. 
The difference in the language and structure of the two crimes clearly shows that with §2422(b), 
using the mail to knowingly persuade is the essence of the crime. 
L. 
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24 
LAW OFPIcES OF 
GERALD B. LEFCOURT. BC. 
Jeffrey 
Matthew 
Esq. 
Andrew !Anne Es . 
Escl• 
e nite 
tates Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 8 
the mail, phone, etc., would be an unnatural and 
grammatically inaccurate reading of the language..?
That the statute is so limited is also confirmed by the fact that prosecutors have 
clearly understood this limitation. After conducting extensive research, we find no case 
of d defendant being prosecuted under §2422(b) where he has used the internet or the 
telephone, and then, by some other means, such as personal contact, attempted to 
persuade, induce, or entice. On the contrary, all §2422(b) prosecutions we have reviewed 
are premised on a defendant's use of the internet (or occasionally the text messaging on a 
phone) as the vehicle of the inducement. See, e.g., United States! Murrel, 368 Rid
1283, 1286 (11th Cir. 2004) (government must ... prove that Murrel , using the intemet, 
acted with a specific intent to persuade a means to engage in unlawful sex). 
In fact, we have reviewed every indictment filed in the Southern District of 
Florida in which there is at least one allegation of a violation of §2422(b). To the extent 
the facts could be discerned from the indictment, we found no case brought where the use 
of the means of communication was remote from the persuading, coercion, etc.g
Such prosecutorial restraint is in full accord with the legislative intent, which, as 
set forth above, was to go after intemet predators who use the means of communication 
to persuade, coerce, etc. That the statute also makes reference to the mails and facilities 
or means of interstate commerce other than the intemet does not suggest that the statutory 
purpose was broader: it is a common modus operandi of internet predators to continue to 
pursue young people whom they first contact on the internet. If the statute were read to 
make it a crime to induce or persuade where the inducement or persuasion did not occur 
over the wires, the statute would sweep within it conduct that Congress had no intention 
of making a federal crime. Given the ubiquity of the telephone in modem life, especially 
To confirm our view of the "plain meaning" of the words, we asked Steven Pinker, Johnstone 
Family Professor at Harvard University's Department of Psychology and a noted linguist, to 
analyze the statute to determine the natural and linguistically logical reading or readings of the 
section. Specifically, we asked whether the statute contemplates necessarily that the means of 
communication must be the vehicle through which the persuading or enticing directly occurs. 
According to Dr. Pinker, that is the sole rational reading in the English language. See Letter 
annexed at Tab "A" at 3. 
8 Annexed at Tab "B" is a chart in which each of the cases and its relevant facts are listed. 
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Case 9:08-cv-80736-KAM Document 361-46 Entered on FLSD Docket 02/10/2016 Page 10 of 
24 
LAW OVIICCO or 
BALD B. LBECOUBT. PC. 
N 
Jeffrey 
Matthew 
, Esq. 
Andrew Lourie, Esq. 
A. 
Villafafla, Esq. 
The United States Attorney's Office 
Southern District of Florida 
July 6, 2007 
Page 9 
in the lives of young people, de-coupling the "persuasion/enticement" element from the 
"use of the interstate facility" would make virtually any sexual activity with a minor, 
chargeable under state law, a federal offense— with no statute of limitations and a 
mandatory ten-year minimum sentence. 
Indeed, given that the interstate highway system is itself an avenue of interstate 
commerce, United States' Home, 474 F.2d 1004, 1006 (7th Cir. 2007), allowing a 
prosecution wherever a means or facility of interstate commerce is used and a forbidden 
inducement later occurs, would mean that anyone who used the interstate highways, and 
then, at some other time, induced a minor face-to-face to engage in forbidden activity (or 
attempted to do so), would be subject to the mandatory ten years. The complete 
federalization of sex crimes involving children would have occurred, though there is no 
indication whatsoever that such a sea change in the federal/state balance was intended or 
is even needed. 
Moreover, such an expansive reading, even if permissible, would very likely 
exceed the Cogerce Clause power as the Supreme Court presently construes it. In 
United States Lopez, 514 U.S. 549 (1995), the Supreme Court struck down the Gun-
Free School Zones Act, holding that it exceeded Congress's Commerce Clause authority. 
In so ruling, the Court reaffirmed a set of fundamental principles, including that the 
powers delegated to the federal government arc few and defined, and that this 
"constitutionally mandated division of authority was adopted by the Framers to ensure 
protection of our fundamental liberties." Id at 552, quoting Gregory' Ashcroft, 501 
U.S. 452, 458 (1991). The Lopez majority concluded that the statute before the Court 
"upsets the federal balance to a degree that renders it an unconstitutional assertion of the 
commerce power." Id. at 580. In so ruling, the Court expressed its concern that an 
overly expansive view of the interstate Commerce Clause "would effectively obliterate 
the distinction between what is national and what is local and create a completely 
centralized government." Id at 557. 
Making it clear that the Court meant what it said in Lopez, five years later, in 
United Stalest Morrison, 529 U.S. 598 (2000), the Court struck down the civil remedy 
provision of the Violence Against Women Act of 1994, ruling that it, too, was beyond 
:Congress's Commerce Clause powers. Once again, the majority expressed concern that 
..Congress might use the Commerce Clause to completely obliterate the Constitution's 
'distinction between national and local authority." Id. at 615. 
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