EFTA00226396

toes Or e•CES 0• 
GERALD B. LEPCOURT. P.C. 
those who deliberately, knowingly, and intentionally target and exploit children through 
the Internet. 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 Statute", 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 Internet. See 
H.R. Conf. Rep. No. 104.458, at 193 (1996), quoted in United States' Searcy, 418 I3d 
1193, 1197 (11ih Cir. 2005); see also K. Seto, "Note: How Should Legislation Deal with 
Children and the Victims and Perpetrators of Cyberstalking?" 9 Cardozo Women's L.J. 67 
(2002). 
In enacting the statute, Congress recognized that young people were using the 
Internet in ever-increasing numbers, and it was proving to be a dangerous place. 
According to a DOJ study, one in five youths (aged 10 to 17) had received a sexual 
approach or solicitation over the Internet 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, 0 VC Bulletin," Internet Crimes Against Children" (12/2001); 
www.oip.usdoi.gov/ove/publications/bulletons/intemet "2 2001/intemet _2_01 6.html. 
Congress saw that, with so many children online, the Internet created a new place 
— cyberspace — where predators could easily target children for criminal acts. Use of the 
Internet. 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 difficult for any local jurisdiction to 
tackle. The mandatory 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. 
EFTA00226756

• WI 
VICC• Dr 
GERALD B. LEECOURT. P.C. 
§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.;
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). 
I 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. When first enacted, the maximum 
sentence it permitted was ten years. Pub.L. 104-104, Title V, 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). 
4 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. 
EFTA00226757

LAW OrrICCO or 
GERALD B. LEFCOURT. PC. 
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 those laws, and the societal pressures 
operating in the area, 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 
entirc 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 U.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 he 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 
(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 were, 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 
EFTA00226758

LAW OIIICCS or 
GERALD B. LEPCOURT. P.C. 
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. I 
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, overbrcadth, 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 er seq., 
'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 cases (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/NewsEventServlet?LanguageCountry--en... 6/28/2007. 
EFTA00226759

tat °ryas or 
GERALD B. LEPCOLTRT. P.C. 
§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-facc 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(b) defines a crime of communication, not of contact. It makes 
unlawful 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-face 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 
use to do the persuading or inducing. As the 
Court wrote in United States v. 
165 3d 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 peisuade, induce, entice or coerce, as well as 
the other elements. See also United States 
Bolen, 136 Fed. Appx. 325, 2005 WL 
1475845 (I I d' Cir. 2005). 
EFTA00226760

OI/ICCIS Of 
GERALD B. LEMOURT. PC. 
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 arc 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. 
EFTA00226761

LAW or 
'g[• or 
GERALD B. LEFCOURT. P.C. 
the mail, phone, etc., would be an unnatural and 
grammatically inaccurate reading of the language. 7
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 a defendant being prosecuted under §2422(b) where he has used the intemet 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 intemet (or occasionally the text messaging on a 
phone) as the vehicle of the inducement. See, e.g., United Stares' Murrel, 368 I3d 
1283, 1286 (11th Cir. 2004) (government must ... prove that Murrell, 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 Southem 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.' 
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 intemet predators to continue to 
pursue young people whom they first contact on the intemet. 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 modern life, especially 
7 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. 
Annexed at Tab "B" is a chart in which each of the cases and its relevant facts are listed. 
EFTA00226762

Ortati 
OF 
GERALD B. LEFCOUBT. PC. 
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 I2d 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 Commerce Clause power as the Supreme Court presently construes it. In 
United States' 
514 U.S. 549 (1995), the Supreme Court struck down the Gun-
Free School Zones ct, 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 are few and defined, and that this 
"constitutionally mandated division of authority was adopted by the Namers to ensure 
protection of our fundamen I 
rties." Id at 552, quoting Gregory' Ashcroft, 501 
U.S. 452, 458 (1991). The 
majority concluded that the statute before the Court 
"upsets the federal balance to adegree 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 
five years later, in 
United States v Morrison, 529 U.S. 598 (2000), the Court strucR 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. 
EFTA00226763

tsw °evicts, or 
G 
LE, B. LEI/COURT. P.C. 
To the extent that §2422(b) criminalizes the use of the Internet (or telephone) by a 
sexual predator to target a vulnerable minor and to convince, or to try to convince, her to 
engage in conduc roscribed by law, the statute may not be unconstitutional on its face. 
See United States
 Tykarsky, 446 I3d 458, 470 (3d Cir. 2006) (both §§ 2422(b) and 
2423(b) "fall squarely 
Congress's power to regulate the first two categories of 
activities described in 
). The statute would, however, be plainly unconstitutional if 
it were applied to situationslike Mr. Epstein's, where neither the telephone nor the 
internet was used in that fashion, and where the use of the telephone was, at most, a 
tenuous link in a chain of events that may, or may not, have preceded or followed sexual 
contact with a minor.9 In other words, if the instrumentality of commerce is not the 
vehicle used to facilitate the harm Congress is trying to address, but is simply a 
"jurisdictional hook," the hook is too weakly connected to the problem (sexual crimes 
against minors) to sustain the statute as a proper exercise of Commerce Clause power. 
Questions about the nature of federalism, and, specifically, just how far the 
federal government may go into matters of traditionally state concern, will continue to 
arise and vill be answered case-by-case. As Justice O'Connor said in her dissent in 
Gonzales 
Raid:, 545 U.S. I, 47 (2005), "... the task is to identify a mode of analysis 
that allows Congress to regulate more that nothing . . . ancliess than everything. .." 
(O'Connor, J. dissenting). United States I Ballinger, 395 I3d 1218 (1 1 th Cir. 2005), 
illustrates the difficulty of the task. In that case, the deeply split en bane Court 
considered whether and to what extent the Commerce Clause authority included the 
power to punish a church arsonist who had traveled in interstate commerce to commit his 
arsons. 
Though clearly not settled, what is clear is that Congress's specification of a 
jurisdictional element such as the use of an instrumentality or channel of interstate 
9 As can be readily noted on the chart at Tab "B", to the extent discernable, every case brought 
under §2422(b) in this district includes use of the internet. There are only four reported cases in 
the Eleventh Circuit involving use of the phones only: three of them concern telephone calls to 
travel agencies advertising overseas underage sex tours and involved explicit talk of sexual 
activity with known minors. A fourth is United States v. Evans, 476 F.3d 1176 (11th Cir. 2007) 
(1Ith Cir, 2007). But there, in facts far different from those presented here, the defendant 
admitted using both a cellular telephone and a land-line telephone to entice Jane Doe to engage 
in prostitution" (emphasis added). That admission makes Evans no precedent for a prosecution 
here, since there is no evidence the phones were used "to entice". 
EFTA00226764

Law OP.CCIP. or 
GERALD B. LEFCOURT. P.C. 
commerce does not, in and of itself, end the inquiry. Where the use of such 
instrumentality is far removed from the conduct being targeted (in the case of §2422(b), 
sexual exploitation of children), the lack of any basis for federal jurisdiction presents 
itself squarely. 
In Mr. Epstein's case, since the crime being considered (as Congress intended) is 
the use of the intemet by intemet predators to target and lure vulnerable children to 
engage in illicit sex, the law is arguably within Congress' Commerce Clause powers. But 
Mr. Epstein's conduct would he outside the law's scope. If you were to contend that any 
use of the telephone which is connected in any fashion to an act of sexual misconduct 
with a minor is within the statute's scope, Congress would then have reached well into 
traditional state spheres, and there is a powerful argument that Congress would have been 
acting in excess of its Commerce Clause authority. 
Elimination of Constitutional uncertainty regarding §2422(b) depends upon 
confining it to situations where an instrumentality of interstate commerce has itself been 
used for an immoral or injurious purpose. Statutes must be read to eliminate serious 
doubts as to Constitutionality, as I ng as such a reading is not plainly contrary to the 
intent of Congress United States 
X-Citement Video, Inc., 513 U.S. 64, 78 (1994), 
citing Edward." DeBartolo Corp. 
Florida GulfCoast Building & Constr. Trades 
Council, 485 U.S. 568 (1988). At e least, to eliminate questions as to its 
constitutionality, §2422(b)'s reach must be limited to situations where there is a very 
close connection between the use of an instrumentality of interstate commerce and the 
persuasion or attempted persuasion that the statute makes a crime. 
Moreover, even if, arguendo, the expansive reading of the statute would not 
violate the Commerce Clause — which current case law strongly suggests it would —
nevertheless the federal interest in prosecuting sexual offenses involving minors where 
the facility or means of interstate commerce was not the vehicle for committing the crime 
is so attenuated that no such federal prosecution should be brought. 
Here, there is no evidence that Mr. Epstein himself ever persuaded, induced, 
enticed, or coerced anyone under the age of 18 over the telephone or Internet to engage in 
prostitution or other illegal conduct. Any prosecution would therefore have to be 
predicated on a theory that he was criminally culpable for a telephone call made by a 
third party. Such a theory of vicarious liability requires proof beyond a reasonable doubt 
that the person making the telephone call and Mr. Epstein shared the same criminal intent 
EFTA00226765

• AW Off ICES or 
GERALD B. LEPCOURT. PC. 
and knowledge and, critically, that the shared inten an 
now e ge cx 
the communication in question. Absent proof beyond a reasonable doubt that Mr. 
Epstein had actual knowledge that the person making a telephone call would induce or 
persuade a specific underage person during the telephone call to engage in unlawful 
sexual activity or to engage in prostitution, there can be no federal crime. 
If the telephone call in question were simply to schedule a topless massage, then 
the call lacked the essential element of inducement, persuasion, enticement, or coercion. 
If the telephone call in question was to schedule a topless massage (or even more) with a 
woman whose age was not known by Mr. Epstein to be under 18, it also fails to satisfy 
the requirements of §2422(b). If Mr. Epstein had not formed the intent to engage in 
unlawful sexual activity as of the time of the communication (even if he did form the 
intent thereafter), an essential element of the federal statute is again lacking. If the 
person making the call had knowledge or a criminal intent or belief not fully shared by 
Mr. Epstein (for example, Mr. Epstein did not know the telephone call was intended to 
induce a minor to engage in unlawful activity), the essential clement of shared intent and 
shared knowledge is again lacking.10 Finally, even if there were a call to schedule a 
second meeting with someone who had previously been to the Epstein residence, this call 
lacks the necessary element of persuasion, inducement, or enticing even if the person 
receiving the call hoped or expected remuneration from the return visit. That is so 
because the statute focuses on the content of the communication, not on any quid pro quo 
that occurs thereafter at a meeting. The latter conduct is exclusively within the ambit of 
state prosecution. 
5. Other Reasons Why 4 2422(b) Does Not Apply 
As we demonstrate above, this statute is addressed to those who purposely and 
intentionally target children. Here, there was no such targeting. As the Sixth Circuit said 
in rejecting a First Amendment challenge to the statute: "The statute only applies to those 
who ' 
owingly' persuade or entice, or attempt
If
 to persuade or entice, minors. United 
States 
Bailey, 228 F.3d 637, 639 (611' Cir. 2000). See United States' Panfil, 338 I3d 
1D Indeed, this last problem is best illustrated by any calls 
may claim to have made 
to solicit persons to massage Mr. Epstein. Though Ms. 
may have known the actual ages 
of the women whom she called at the time she called, and may therefore have known that one or 
more was in fact under 18, she was clear in speaking to detectives that she never communicated 
such information to Mr. Epstein. Rather, she understood Mr. E stein wanted massages from 
women at least 18 years of age. (Video interview of 
on October 3, 2005). 
EFTA00226766

LAM O, FICC• 0 ,
GERALD B. LEPCOURT. PC. 
1299 (11th Cir. 2003) (scienter requirement discourages "unscrupulous enforcement" and 
clarifies §2422(b)). Directed towards those who commit "the most serious crimes against 
children," it cannot properly be used as a trap for the unwary, sweeping within its net all 
who may - even unwittingly and unintentionally - communicate or otherwise interact 
improperly with persons who turn out to be minors. 
A prosecution of Mr. Epstein would violate the teachings of Bailey and Panfil. As 
we believe we persuaded you at the June 26th meeting, Mr. Epstein never targeted minors. 
On the contrary, what he did — at worst — was akin to putting up a sign saying to all, come 
in if you are interested in giving a massage for $200. A few among those who accepted 
the general invitation may have in fact been under 18 (though they lied about that age and 
said they were 18), but that is, at its worst, comparable to "post(ing) messages for all 
Internet users, either adults or children, to seek out and read at their discretion," which the 
courts have held does not violate §2422(b). 
Thus, for this reason as well, Mr. Epstein's case is far outside the parameters of 
the §2422(b) cases that have been prosecuted. A key factor common to cases brought 
under §2422(b) is not present here: Prosecutions under this statute have focused on a 
sexual predator who used the Internet to identify and to communicate with a child or 
purported child (or a person with influence over such child or purported child), and did so 
with the intent to arrange to engage in sexual activity with the child, with full knowledge 
that sexual activity with an individual of that age was illegal. In light of this common and 
well-accepted understanding, the cases decided under §2422(b) take as a given that its 
proper application lies only where the defendant knows or believes the person with whom 
he is interacting is a child. 
Virtually all of the prosecutions brought under §2422(b) resulting in published 
decisions have involved undercover "sting" operations, involving an essentially standard 
fact pattern in which over an extended period of time and in the course of multiple 
conversations on line an undercover agent pretends to be a young teenager. In each of the 
cases, the prosecution had, from the very words used by the defendant, an all but 
1 
irrefutable case showifg the clear 
wlcdge and intent of the defendant. A prototypical 
case is United States Farner, 251 3d 510 (5th Cir. 2001), where the defendant 
participated, over time, in instant messaging, c-mail, and follow-up telephone calls with a 
person who identified herself as 14 years old, engaged in explicit intemet conversation, 
sent her pornographic pictures, persuaded her to meet with him for sexual activity, 
arranged such a meeting, and traveled to the meeting place. The Fifth Circuit held that 
EFTA00226767

LA. Or•ICCS Or 
GERALD B. LEPCOURT. PC. 
defendant's §2422(b) attempt conviction was valid; it mattered not that the 14 year old 
was really an adult FBI agent engaged in a sting opiation, for the defendant "believed 
Cindy to be a minor and acted on that belief." 251 3d at 512. Our own survey of the 
cases brought in this district under §2422(b) confirms that prosecutions in this District 
have also been all but limited to internet sting cases. See Tab "B". 
in the context of this standard fact pattern involving the internet's use by 
predators, other Circuits, including the Eleventh, have been unanimous in holding that the 
non-existence of an actual minor was of no moment; defendant's belief that he was 
1/
aling with a minor was sufficient to make out thrrime. See nited States v. Root, 296 
t3d 1222, 1227-32 ( 1°' Cir. 2002). United States 
Sims, 428 
3d 945, 959 (10°  Cir. 
1
005); United States I Helder, 45213d 751 (8th Cir. 2006); United States !Meek, 366 
3d 705, 717-20 (9th Cir. 2004). Likewise, the Circuits have rejected void or vagueness, 
overbreadth, and First Amendment challenges to the statute, brought in the context of 
these prototypical prosecutions where the interact was the vehicle of communication and 
enticement, and the defendant demonstrated in writing his belief that he was dealing with 
a child well below the age of onsent. E.g., lifted States' 7),Icarsky, 44613d 458, 473 
(3d Cii 2006); United State' Thomas, 410 
3d 1235, 1243-44 (10h Cir. 005); United 
States 
Pang supra, 338 
3d at 1300-01 (11th Cir. 2003)." 
" There are approximately two dozen Eleventh Circuit cases that include a prosecution under 
Garrett, 190 3d 1220 (116 Cir. 
§2424(b), most of which involve the prototypical fact pattern. See, e.g., United States !Morton, 
364 I3d 1300 (I l ° Cij. 2004),judgnwru vacated for Booker consideration, 125 S. Ct. 338 
006); United States I Orrega, 363 I3d 1093 (116 Cir. 2004); United States91 Miranda, 348 
I3d 1322 (II6 Cirj003); United States' Tillman, 195 I3d 640 (I I t° Cir.' 9); United States' 
Panfil, supra, 338 I 
1299 (116 Cii 2003); United States v. 
1999); United &awl Burgess, 175 .3d r61(II.Ci 1999); United States! Rojas, 145 Fed. 
Appx. 647 (11° Cir. 2005); United States 
Root, 296 3d 1222 (11°  Cir. 200 ). 
United States! Murrell, 368 II3d 1283 (114 Cir. 2004), is in the same mold, except that, in that 
sting operation, the defendant communicated, not with the purported 13 year old girl, but with an 
undercover agent holding himself out to be the imaginary girl's father. The initial contacts 
i
between Murrell and the agent occurred in intemet chatrooms named "family love" and "Rent 
Vry Yng." Over time, Murrell sought to make arrangements with the girl's father to make his 
daughter available for sex in exchange for money. After the initial Internet communications 
concerning renting the girl for sexual purposes, further negotiations between the defendant and 
the undercover occurred via the phone, per the defendant's suggestion. The Eleventh Circuit, 
framing the issue to be whether the defendant must communicate directly with the minor or 
supposed minor to violate §2422(b), answered the question in the negative, reasoning that "the 
EFTA00226768

LAW Off.CO 
Of 
GERALD B. LEFCOURT. EC. 
In light of this common and well-accepted understanding, the cases decided under 
§2422(b) take as a given that its proper application lies only where the facts demonstrate 
beyond dispute that the defendant knows or believes the person with whom he is 
interacting is a minor. 
The Ninth Circuit has so held. United States' Meek, 366 lid 705, 718 (9i° Cir. 
2004), held that the term "knowingly" refers both to the verbs -"persuades", "induces", 
"entices", or "coerces" - as well as to e object - "a person who has not achieved the 
i 
age of 18 years," citing United States 
X-Citement Video, Inc., 513 U.S. 64 (1994), and 
Staples v. United States, 511 U.S. 606 (1994). The Meek Court wrote: 
The statute requires mcns rea, that is, a guilty mind. The 
guilt arises from the defendant's knowledge of what he 
intends to do. In this case, knowledge is subjective — it is 
what is in the mind of the defendant." 
The very lengthy sentence under §2422(b) speaks against strict liability, 
especially since it applies in cases where there is no sexual contact at all with any 
person, let alone with a real minor. The Eleventh Circuit's decision in United States 
Murrell, supra, reflects this same understanding of the statute. The Murrell court wrote 
that, under the "plain language" of §2422(b), "to prove an attempt the government must 
efficacy of §2422(b) would be eviscerated if a defendant could circumvent the statute simply by 
employing an intermediary to 
out his intended 
to Murrell's exist in United States 
Hotnaday, 392 
dive. Id. at 1287. Fact patterns simr 
I 
6 (11" Cir. 2004); United States 
Houston, 177 Fed. Appx. 57 (11th ir. 2006); Unite 
ales 
Seamy, 418 F.3d 1193 (II' Cir. 
2005); United States 
Scott, 426 F. 3d 1324 (116 Cir. 2005 , and United States 
Bolen, 136 Fed. 
Appx. 325 (11th Cir. 
02). 
" Several Courts of Appeal have held that, in a prosecution under §2422(a), the defendant need 
not know that the individual that a defendant has persuaded, induced, enticed, or cot reed to 
travel in interstate commerce is under the age of 18. United States v. Jones, 471 I3d 535 (41h
Cir. 2006), is one of these cases, though its facts are very different, and much more egregious 
than Mr. Epstein's. Assuming Jones was correctly decided and that the government need not 
prove defendant's knowledge under §2422(a), that still does not answer the question under 
§2422(b). The two arc very different statutes, with different histories and different purposes. 
And §2422(a), unlike subsection (b), carries no mandatory minimum sentence, let alone ten years. 
EFTA00226769

LAW Ort.CCS er 
GERALD B. LEFCOURT, PC. 
F 
I 
first prove that Murrell, using the interne acted with a specific intent to persuade a 
L 
i
iinor to engage 
unlawful sex." 368 i 3d at 1286 (emphasis added)." United States 
Root, supra, 296 3d at 1227, follows this pattern, and confirms that, at the time the 
defendant induces or entices the minor, he must intend to have sexual conduct with a 
minor or one he believes to be a minor and know that such conduct is proscribed. 
("Root's statement to task force agents upon his arrest confirmed that he believed he 
would meet a 13-year- d girl for sex, which he said he knew was wrong but 'exciting"). 
See also United States 
Rojas, 145 Fed. Appx. 647 (11 
1 
th Cir. 2005) (unpublished). This 
mens rea requirement 
plies equally where the completed crime occurs.10
Finally, actus non Tacit reum, nisi mens sit rea - the act alone does not amount to 
guilt; it must be accompanied by a guilty mind. This principle of concurrence mandates 
that the actus reus and the mens revs concur in time. See Paul H. Robinson, Criminal 
Law §4.1 at 217 (1997) (concurrence requirement "means that the required culpability as 
to the element must exist at the time of the conduct constituting the offense"); LaFave, 
Substantive Criminal Law §3.11(a) (West 1986) (noting that Concurrence is a basic 
principle of criminal law and "the better view is that there is concurrence when the 
defendant's mental state actuates the physical conduct"). See also United States' Bailey, 
supra, 444 U.S. at 402. In this case, the requisite actus reus is absent; likewise the 
required mental state. Even if those two fatal defects could be set aside, nevertheless, 
there was no concurrence of guilty mind and evil act, providing an additional reason why 
a successful prosecution under §2422(b) could not be brought. 
6. Conclusion 
In Mr. Epstein's case, there was no use of the intemet to induce, etc., and, given 
the legislative history and purpose, that is itself dispositive. Nor does the case present 
any of the dangers associated with interne[ predators and cyberspace. Not surprisingly 
"Otherwise, the police could, for example, conduct a sting operation with a 17 year-old 
pretending to be an 18 year-old. Such an absurd operation is surely not intended by the statute. 
" Even the completed crime does not require any sexual activity. Arguably, one commits the 
attempt offense when the actor, on the interne!, asks a known or believed-to-be minor to have sex, 
even if she says no. The completed offense occurs when he takes an additional step, even before 
any sexual activity and regardless of whether one ever takes place. 
EFTA00226770

•AW of • eCtib 
GERALD B. LEPCOURT. P.C. 
e 
then, the statutory language does not fit: Mr. Epstein did not use any facility of interstate 
commerce to do the forbidden act — to persuade, entice, induce, or coerce — nor did he 
attempt to do so. Others did use the telephone to make a variety of arrangements for Mr. 
Epstein's residence in Palm Beach, including getting the house ready for his arrival, 
checking movie schedules, and making telephone calls to schedule doctor's 
appointments, personal training, physical therapy and massages. Even if Mr. Epstein 
could be held responsible for the use of the telephone on his behalf, nevertheless, calls 
made by others regarding massages were not the statutorily proscribed persuasions or 
enticements of a known minor to do acts known to be illegal. Within his home, even if 
Mr. Epstein may arguably have persuaded or induced individuals to engage in forbidden 
conduct with him, he did not violate §2422(b). If he engaged in such persuasion or 
inducement, it occurred only face to face and spontaneously. 
If such conduct constituted a crime, it would be a classic state offense. The state 
is the appropriate forum for addressing these issues. Though in our meeting it was 
asserted that cases under §2422(b) are often brought where there was simply use of a 
telephone, and casual use at that, it would not from our survey appear to be so on either 
count — that is, use of a telephone rather than the intemet, and use of the means of 
communication remote from the enticing, etc. This is neither the defendant, nor the 
factual context, to break new ground. 
H. 
Mr. Epstein Warrants Declination to Prosecute as Exercise of Discretion. 
We believe strongly that no federal case would lie under the facts here. Moreover, 
as we discussed, there is a pending state case against Mr. Epstein which can be resolved 
in a way that vindicates the state's rights and obligations in this matter. 
In considering an appropriate disposition in a case such as this, where the 
applicability of the statute, both legally and as a matter of policy, raise serious questions, 
and both the reliability and admissibility of much of the evidence is in doubt, it is useful 
to consider how best to use the broad discretion you enjoy in choosing whether to 
prosecute. In this regard, we suggest that having a greater understanding of who Jeffrey 
Epstein is as a person may help inform how best to proceed. 
Jeffrey Epstein was raised in a middle class neighborhood in Brooklyn, New 
York, by hardworking parents. His father was a laborer and his mother a secretary. They 
lived comfortably, but were by no means well off. Mr. Epstein's parents instilled a strong 
work ethic in him, and growing up he held a variety of jobs to support himself, from 
EFTA00226771

l..w *Orion Or 
GERALD B. LEFCOURT. P C. 
driving a taxi cab to working as a mechanic. Any notion that he was born with a "silver 
spoon in his mouth" should be dismissed. 
Although Mr. Epstein is self-made and worked long and hard, he could not have 
achieved his successes without the personal guidance and support of others. These key 
people first identified the promise in Mr. Epstein and brought him to Bear Steams and 
Company, Inc. There, starting in 1976 at the age of 23 as a floor trader's junior assistant, 
he became in 1980 a limited partner. Among the very many benefits that his experience 
there provided was an introduction to the people who ultimately became his clients. 
Early in his professional career, Mr. Epstein realized the profound impact that 
even one person can have on the life of another. His gratitude for the assistance he 
personally received, and his sense of obligation to provide similar assistance and 
guidance to others, is in large part, the motive for the primacy of philanthropy in his life 
or his particular philanthropic interests. Mr. Epstein has devoted a substantial portion of 
his time, efforts and financial resources to helping others, both on an individual basis and 
on a more far reaching scope. Mr. Epstein gives generously, of both his time and his 
financial resources equally to individuals whom he knows personally and well and to 
those with whom he has had little or no personal contact. Just a few examples: 
Some time ago, the two year old son of an employee was diagnosed with retinal 
blastoma. When told, Mr. Epstein not only gave the employee unlimited time off to 
attend to his son and promised whatever financial support was needed, but Mr. Epstein 
made the full list of his medical and research contacts available. The employee was put 
in contact with a former colleague who was then conducting eye research at Washington 
University. Mr. Epstein organized several meetings to determine how the colleague could 
be of assistance, including by arranging for further meetings with experts at Washington 
University. Though the employee's son lost one eye, he is now an otherwise normal 
twelve year old who attends private school along with his five siblings, the expenses of 
which are borne by Mr. Epstein. 
Several years ago, a new employee with whom Mr. Epstein had little or no prior 
contact approached Mr. Epstein to request a change in his medical insurance. It was soon 
revealed that the employee and his wife were experiencing fertility problems and they 
were seeking treatments that cost nearly $15,000 per month. Mr. Epstein insisted on 
paying directly for the treatments, and did so month after month. After each 
unsuccessful cycle, Mr. Epstein sat with the employee, exploring available alternatives, 
including adoption, and encouraging the employee to continue additional cycles at Mr. 
Epstein's. Mr. Epstein referred the employee to medical experts with whom Mr. Epstein 
EFTA00226772

taw °Fria, 09 
GERALD B. LRECOURT. PC. 
was acquainted and assigned personnel to assist the employee with administrative and 
secretarial needs that arose in seeking a solution to the problem. Mr. Epstein is now the 
godfather of the employee's seven-year old twins. 
Recently, both a second employee and a consultant of Mr. Epstein each confided 
that they and their respective spouses were experiencing similar fertility problems. 
Again, Mr. Epstein offered to pay the uncovered medical costs. The consultant and his 
wife are now expecting their first child. The second employee continues with infertility 
treatments. 
Two years ago, a building workman approached Mr. Epstein with news that the 
workman's wife needed a kidney transplant and that the workman's sister-in-law in 
Colombia was a willing donor. The non English speaking workman had neither the 
financial resources nor the know-how to get the sister-in-law to the United States. Mr. 
Epstein arranged for immigration counsel to expedite a visa for the sister-in-law and 
purchased the plane tickets for the sister-in-law's visit to the United States. The surgery 
was a success and both patients recovered completely. The sister-in-law flew back to 
Colombia at Mr. Epstein's expense. 
Mr. Epstein is a devoted advocate of personal improvement through education. 
As a former board member of Rockefeller University, Mr. Epstein has made available 
academic scholarships to worthy students, most of whom he has had no prior connection 
to whatsoever. In addition, Mr. Epstein covers the tuition required to send the family 
members of his employees to nursery, private elementary, middle and secondary schools 
and colleges. He has funded and personally encouraged continuing education programs 
for his adult employees and professional consultants. 
Among his other acts: 
• On a trip to Rwanda to inspect the genocide camps, Mr. Epstein 
approached the President of Rwanda and offered to help identify and then 
to fund two worthy Rwandan students to earn undergraduate degrees in 
the United States. The students, whom Mr. Epstein did not meet until after 
their second year of studies, both are expected to graduate with honors 
from the City University of New York in 2008. Notes from each of them 
are annexed at Tab "C". 
• Even to those with less lofty goals, seeking only to advance in their chosen 
paths, Mr. Epstein freely gives of his time to provide guidance and, when 
appropriate, financial support. For example, Mr. Epstein has been meeting 
EFTA00226773

OF•Cl• 
or 
GERALD 13. LEFOOURT. PC. 
monthly with a teenage building workman whose expenses of vocational 
school are being paid by Mr. Epstein. Each month, Mr. Epstein reviews 
the workman's school progress and discusses career opportunities. One of 
the monthly reports is annexed at Tab "D". 
• 
In addition, Mr. Epstein blocks out time each week to meet with young 
professionals to discuss their career prospects and counsel them regarding 
appropriate next steps. 
Although Mr. Epstein is deeply committed to helping others in very personal and 
meaningful ways, he has also sought to use his good fortune to help others on a broader 
basis. Mr. Epstein has sponsored more than 70 athlete wellness programs, building 
projects, scholarship funds and community interest programs in the United States Virgin 
Islands alone. 
Moreover, Mr. Epstein has given generously to support philanthropic 
organizations across the United States and around the world, including America's 
Agenda; Robin Hood; Alliance for Lupus Research; Ovarian Cancer Research Fund; 
Friends of Israel Defense Forces; Seeds of Peace; the Jewish National Fund; the Hillel 
Foundation; the National Council of Jewish Women; and the Intrepid Fallen Heroes Fund 
-- to name only a few. 
In a feature article about Mr. Epstein in New York Magazine, former President 
Clinton aptly described Mr. Epstein as "a committed philanthropist with a keen sense of 
global markets and an in-depth knowledge of twenty-first-century science." President 
Clinton reached this conclusion during a month-long trip to Africa with Mr. Epstein, 
which Mr. Epstein hosted. The purpose of that trip was to increase AIDS awareness; to 
work towards a solution to the AIDS crisis; and to provide funding to reduce the costs of 
delivering medications to those inflicted with the disease. 
Both before and after that trip to Africa, Mr. Epstein worked hard to achieve 
improvements in people's lives on a global basis. He actively sought advancement of his 
philanthropic goals through his participation and generous support of both the Trilateral 
Commission and the Council on Foreign Relations. As you may know, the Trilateral 
Commission was formed to foster closer cooperation among core democratic 
industrialized areas of the world in the pursuit of goals beneficial to the global 
population. The Council on Foreign Relations is an independent, national membership 
organization and a nonpartisan center for scholars dedicated to increase international 
understanding of world issues and the foreign policy decisions that affect those issues. 
EFTA00226774

LAW 01•FICCS of 
GERALD B. LEPCOURT. PC. 
Mr. Epstein was part of the original group that conceived the Clinton Global 
Initiative, which is described as a project "bringing together a community of global 
leaders to devise and implement innovative solutions to some of the world's most 
pressing challenges." Focuses of this initiative include poverty, climate change, global 
health, and religious and ethnic conflicts. 
Mr. Epstein has sought to improve people's lives through active participation in 
worthy scientific and academic research projects, as well. He spent hundreds of hours 
researching the world's best scientists, and he himself studied as a Harvard Fellow in 
order to increase his own knowledge in fields that he believed could provide solutions to 
the world's most difficult problems. He is committed to helping the right researchers find 
those solutions, especially in the fields of medical science, human behavior and the 
environment. 
In the past four years alone, Mr. Epstein has made grants to research programs at 
major institutions under the supervision of some of the most highly regarded research 
professionals and scholars in their fields, including Martin Nowak, a mathematical 
biologist who studies, among other things, the dynamics of infectious diseases and cancer 
genetics; Martin Seligman, known for his work on Positive Psychology — that is to say 
the psychology of personal fulfillment; Roger Schank, a leading researcher in the 
application of cognitive learnin theory to the curricula of formal education; the renown 
physicist/cosmologist 
Krauss, and many others. Institutions funded include 
Harvard University; Penn tate University; Lenox Hill Hospital (New York); the 
Biomedical Research and Education Foundation; the Santa Fe Institute; Massachusetts 
Institute of Technology; Case Western Reserve University; and Harvard Medical School's 
Institute for Music and Brain Science. 
Moreover, Mr. Epstein has sponsored and chaired symposia that have provided a 
rare opportunity for the world's leading scholars and research professionals to share ideas 
across interdisciplinary lines. These leaders gather to discuss important and complex 
topics, including the origin of life, systems for understanding human behavior, and 
personal genomics. 
In order to expand the pool of qualified research professionals actively engaged in 
addressing the world's numerous problems, Mr. Epstein co-founded, and served as a 
trustee and actively participated in the selection committee of, the Scholar Rescue Fund. 
The Scholar Rescue Fund (SRF) is a program of the Institute of International Education, 
the group that, inter a/ia, administers the Fulbright Scholarship program. The SRF 
provides support and safe haven to scholars at risk from around the world. Over the past 
EFTA00226775