EFTA01080591

Page 35 
As with § 2422(b), § 2423 requires that there be a concurrence of (a) interstate travel for 
(b) the purpose of having illicit sexual conduct, as defined in 18 U.S.C. § 2246, with a minor. 
Mr. Epstein's routine of traveling to and from Palm Beach—to or from his home—for purposes 
other than illicit sex take this case outside of the paradigm of prior 2423(b) prosecutions, see the 
Table of § 2423 Cases, Exhibit 30, and make this case more like Hansen v. Hoff, 291 U.S. 559 
(1934), and Mortensen v. United States, 322 U.S. 369 (1944). In Hansen, the Supreme Court 
rejected charges against a woman traveling back to her home in the United States to "continue 
her irregular and improper conduct," concluding that "her entry [into the United States] cannot 
be said to be with the purpose `only that she might live in a state of concubinage.'" 291 U.S. at 
562. And in Mortensen, the Court likewise held that two women who took a trip from their 
home, returned home, and then resumed their illegal prostitution business did not violate federal 
law—explaining that "[t]he return journey under the circumstances of this case cannot be 
considered apart from its integral relation with the innocent round trip as a whole. There is no 
evidence of any change in the purpose of the trip during its course." 322 U.S. at 375. 
As in Mortensen, Mr. Epstein would fly from Palm Beach with the intention, documented 
by his regular practice as reflected in flight logs provided to the United States Attorney's Office, 
to return home. Those regular trips were motivated by a myriad of ordinary motives: family, 
medical, social, business, and a common love of the area and his long-owned home. To the 
extent that upon arriving home he "resumed [his] immoral practices," like Mortensen defendants, 
id. at 375, this resumption "does not, standing alone, operate to inject a retroactive illegal 
purpose into the return trip to [Palm Beach]." Id. Mr. Epstein's commission of State offenses at 
his residence in Palm Beach is indistinguishable from the facts in Mortensen and well outside the 
demands of federal law that an interstate trip be significantly motivated or have as its "important 
purpose," United States v. Hoschouer, 2007 WL 979931 (11'h Cir. 2007), an illegal sex act with a 
person known to be a minor. 
Second, there was no intent to engage in "illicit sexual conduct" under the statute. 
Section 2423(f) defines "illicit sexual conduct" as any sexual act set forth in 18 U.S.C. § 2246 
that would be in violation of Chapter 109A of the United States Code.12 Section 2246 sets forth 
vaginal, oral, and anal intercourse; genital or anal penetration; and genital touching of a minor 
that does not occur through clothing, while Chapter 109A defines a minor as a person under the 
age of 16. Here, there was no intent to engage in "illicit sexual conduct" at the time Mr. Epstein 
was traveling to Florida. Thus, even if, once in Florida, Mr. Epstein purposefully engaged in a 
proscribed act under the statute, which he did not, that purpose arose long after his travel to 
Florida was complete, while a particular massage with a particular masseuse was in progress. 
Indeed, there is no evidence that Mr. Epstein had knowledge that he would see anyone at all once 
he arrived in Palm Beach, let alone knowledge that he would see any person for the specific 
12 Section 2423(t) also defines "illicit sexual conduct" with reference to 18 U.S.C. § 1591, but that statute in turn 
refers to 18 U.S.C. § 2246. 
EFTA01080631

Page 36 
purpose of engaging in intercourse, penetration, or skin-to-skin touching with someone under the 
age of 16. Moreover, Section 2423(g) makes it an affirmative defense if Mr. Epstein reasonably 
believed, based on a preponderance of the evidence, that the women involved were at least 16 
years old. As discussed earlier, sworn testimony shows that Mr. Epstein reasonably believed the 
women involved were at least 18 years old. 
The inapplicability of Section 2423(b) is confirmed by its legislative history and 
prosecutorial practice. Section 2423(b) is part of the Mann Act, which was originally enacted in 
1910 to prevent the transportation of women and girls across State lines for immoral purposes. 
See 36 Stat. 825 (1910). That portion of the Mann Act is now codified at Section 2423(a). In 
1994, Congress added Section 2423(6) to address the increasing problem of international sex 
tourism. See Pub. L. 103-322, § 16000I(g)(2). Thus, Sections 2423(a) and (b) together address 
those persons who transport minors across State lines, or who themselves travel across State 
lines, in order to engage in unlawful sexual activity. Again, Mr. Epstein traveled to Palm Beach 
because he had a residence there; any sexual activity was merely incidental. 
Consistent with Congress's focus on sex tourism, federal prosecutors have never used 
Section 2423(b) in this way. We have identified 177 prosecutions under Section 2423(b),13 and 
all of them are readily distinguishable. In 129 prosecutions, the defendant's primary purpose of 
travel was to engage in sexual activity with a minor. The vast bulk of those cases were sting 
operations in which the defendant was arrested either while traveling to or upon arriving at the 
hotel where he and the minor had specifically prearranged a meeting prior to travel for the sole 
purpose of having sexual intercourse. In 26 prosecutions, the defendant either traveled with the 
minor across the State lines, or intended for (and provided the means for) the minor to travel 
across State lines for sex. In the remaining 22 prosecutions, the defendant traveled or planned to 
travel internationally in order to engage in sexual activity with a minor. As with the other 
statutes, that is a far cry from what allegedly occurred in this case. 
Third, receiving massages even topless massages is not a criminal objective. Section 
2423(6) requires that the travel be for "illicit sexual conduct" i.e. conduct that was not the norm 
and was not expected by Epstein to be a consequence of any specific scheduled massage during 
any interstate travel, conduct that was not a causative factor in his regular returns to Palm Beach. 
III. 
PETITE POLICY 
The Department of Justice's Petite Policy ("Petite," or the "Policy") precludes federal 
prosecution in this matter. Petite establishes a baseline of a single prosecution for any given 
conduct, akin to the principles of double jeopardy. It is codified in the United States Attorney 
13 We identified a total of 203 prosecutions under § 2423(b), but 26 of those case opinions fail to provide any 
information as to the facts underlying the charges. 
EFTA01080632

Page 37 
Manual ("U.S.A.M."), and establishes strict prerequisites that must be met before federal 
prosecutors may pursue a successive federal prosecution based on conduct already addressed by 
a State or local prosecution. Significantly, the Policy does tot merely set forth internal 
Executive guidance; rather, it reflects a longstanding principle under which "Congress expressly 
has provided" that "a state judgment of conviction, plea agreement, or acquittal on the merits 
shall be a bar to any subsequent federal prosecution for the same act or acts." U.S.A.M. § 9-
2.03IA (emphasis added). The purpose of this Policy is "to vindicate substantial federal interest 
through appropriate federal prosecutions, to protect persons charged with criminal conduct from 
the burdens associated with multiple prosecutions and punishments for substantially the same 
act(s) or transaction(s)." Id. To that end, Petite "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 transaction(s) involved in a prior 
state or federal proceeding." Id. 
There is no dispute that the Policy applies here. The State of Florida and Palm Beach 
County already prosecuted Mr. Epstein for sexual misconduct and agreed to a plea, thereby 
triggering Petite. In drafts of the Deferred Prosecution Agreement, federal prosecutors openly 
acknowledged the application of the Policy. A draft of the Deferred Prosecution Agreement 
stated: "after an investigation of the offenses and Epstein's background, that the interest of the 
United States pursuant to the Petite policy will be served by the following procedure [contained 
in the Deferred Prosecution Agreement]." See e.g., September 17, 2007 email from M. Villafana 
to J. Leflcowitz attaching draft Deferred Prosecution Agreement, Exhibit 32. 
The draft 
agreement further stated: "Epstein understands that it is his obligation to undertake discussion 
with the State Attorney's Office to ensure compliance with these procedures, which compliance 
will be necessary to satisfy the United States' interest pursuant to the Petite Policy." Id. 
However, after Mr. Epstein's counsel conveyed to the prosecutors the fact that they had appeared 
to ignore the prerequisites of Petite references to the Policy were inexplicably removed from the 
final draft of the agreement after weeks of acknowledgement that the Petite issue was an 
important consideration for federal prosecution and resolution of this case. See Executed 
Deferred Prosecution Agreement, Exhibit 33. When asked why the Petite references were 
removed, Ms. Villafana stated flatly, "it is none of your concern." 
Federal prosecutors undoubtedly feared that a subsequent federal prosecution of this 
matter failed to clear the substantive hurdles set forth under Petite. The "three substantive 
prerequisites" are as follows: 
[F]irst, the matter must 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 
EFTA01080633

Page 38 
offense, and that the admissible evidence probably will be sufficient to obtain 
and sustain a conviction by an unbiased trier of fact.... 
U.S.A.M. § 9-2.03IA. 
Even if these prerequisites are satisfied, however, the Department retains substantial 
discretion to decline prosecution. As the Policy explains, "[s]atisfaction of the three substantive 
prerequisites does not mean that a proposed prosecution must be approved or brought. Even 
then, the traditional elements of federal prosecutorial discretion continue to apply." Id. Finally, 
the Policy underscores that successive State and federal prosecutions are supposed to be rare, by 
requiring federal prosecutors "as soon as possible" to "consult with their state counterparts to 
determine the most appropriate single forum in which to proceed." Id. 
None of Petite's "three substantive prerequisites" were satisfied here, and the Department 
further failed to satisfy Petite's requirement that it coordinate its prospective enforcement efforts 
with State prosecutors in order to establish a "single forum" in which to proceed. In fact, in Mr. 
Epstein's case, no consultation or coordination has ever taken place. 
A. 
There Is No Substantial Federal Interest In This Case. 
The Petite Policy requires that the matter involve a substantial federal interest. That 
threshold is not met in this case. Mr. Epstein's alleged conduct was wholly local. It was neither 
interstate nor international. Each alleged act took place in his Palm Beach home. All the women 
alleging sexual misconduct resided in Florida (indeed, in Palm Beach County) at all relevant 
times. By their own admissions, none traveled across State lines for the purpose or intention of 
engaging in illicit sexual behavior. In addition, only a deeply attenuated nexus exists between 
the conduct alleged and interstate instrumentalities. Mr. Epstein neither used the statutorily 
defined means to induce a known minor into illegal sexual activity; nor did he travel to Palm 
Beach for the purpose of engaging in unlawful sexual activity. See supra at part lI.C. 
A federal prosecutor's broadly defined federal interest of protecting children from 
exploitation does not constitute a proper ground for discerning a substantial federal interest with 
the facts at hand. With two exceptions, those facts demonstrate that all of the women involved in 
this case were at least 16 years old at the time of the alleged conduct, and that is the effective age 
of consent for federalioses." There is no evidence that Mr. Epstein was aware that either of 
the other two girls ( 
and 
EMI) 
was underage. Ms. 
has 
openly acknowledged that she lied to Mr. Epstein about her age, and other girls have testified 
that Ms. 
told them to lie about their ages because Mr. Epstein did not want underage 
14 18 U.S.C. §2243(a) (the age of consent in the federal maritime and territorial jurisdiction is 16). In 39 States 
and the District of Columbia, the age of consent is 16 or younger. See W. Eskridge & N. Hunter, Sexuality, 
Gender, and the Law 1021-1022 (1997). 
EFTA01080634

Page 39 
girls in his home. The conduct herein was not what Congress had in mind when it broadened the 
relevant federal statutes to include ten year minimum sentences for federal sex-related crimes 
(namely, faceless predators hiding their identities in Cyberspace while preying on children). 
Moreover, this case does not implicate the important national prosecutorial priority in favor of 
protecting minors that has heretofore animated the Child Exploitation and Obscenity Section—
specifically, crimes involving Internet luring; sex trafficking of minors; profiting from 
prostitution as a commercial enterprise with the use of some element of force or violence in 
connection with prostitution; international sex trafficking; transportation of minors for the 
purposes of prostitution; or interstate distribution of child pornography. 
The conduct in question has been accurately characterized by a grand jury as solicitation 
of prostitution, a quintessential State law concern. See United States v. Evans, 476 F.3d 1176, 
n.1 (1Ith Cir. 2007) (federal law "does not criminalize all acts of prostitution (a vice traditionally 
governed by state regulation)"). 
And as the Department has recognized, in instances of 
prostitution where the "John" is the defendant, states are more than well equipped to handle these 
cases. See November 9, 2007 DOI letter to the Judiciary, at 8-9, Exhibit 15. 
B. 
The State Prosecution Has Left No Federal Interest Demonstrably 
Unvindicated. 
Petite permits a successive federal prosecution only where the prior state prosecution 
leaves a substantial federal interest "demonstrably unvindicated," U.S.A.M. § 9-2.031A, 
(emphasis added), and further compels the Department to presume that a prior State prosecution 
has vindicated the relevant federal interest. Id. § 9-2.031D ("[T]he Department will presume 
that a prior prosecution, regardless of the result, has vindicated the relevant federal interest.") 
(emphasis added). That presumption controls except in certain narrow circumstances, like when 
the prior State prosecution was tainted by corruption or incompetence, or where the Department 
finds both that the prior state sentence is "manifestly inadequate in light of the federal interest," 
and that "a substantially enhanced sentence—including forfeiture and restitution as well as 
imprisonment and fines—is available through the contemplated federal prosecution." Id. 
(emphasis added)." None of these conditions have been met. 
15 The Petite Policy also provides that the presumption may be overcome "in those rare casts where three 
conditions are met: 
first, the alleged violation involves a compelling federal interest, particularly one 
implicating an enduring national priority; second, the alleged violation involves egregious conduct, including 
that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the 
functioning of an agency of the federal government or the due administration of justice; and third, the result in 
the prior prosecution was manifestly inadequate in light of the federal interest involved." 
U.S.A.M. § 9-
2.031D. As discussed in text, this case involves local conduct that does not implicate a compelling federal 
interest, and the state result is not "manifestly inadequate." 
EFTA01080635

Page 40 
As a threshold matter, there is no evidence that the State's prosecution of Mr. E stein 
was in any manner tainted by corruption, incompetence, or undue influence. 
the 
deeply respected Palm Beach County State Attorney, has served in that office, elected, reelected, 
and reelected yet again, for 12 years. MEM, 
the lead State prosecutor in this matter, is 
a career prosecutor who has over a decade of experience prosecuting sex-related crimes and was 
a founding member of the Child Abuse Protocol, which establishes operational procedures for 
the investigation of child abuse reports in Florida. These highly respected State prosecutors 
responsible for this case are seasoned professionals, and they devoted significant time and vast 
resources to this case. They oversaw an extensive 15-month State investigation by State 
authorities, and brought their case to a successful conclusion by securing a felony indictment of 
Mr. Epstein and reaching a strict plea agreement that included terms the State has never 
previously imposed on a first-time offender like Mr. Epstein. 
There is no indication whatsoever that the State prosecution somehow left any federal 
interest demonstrably unvindicated. 
Following its own rigorous investigation into the 
allegations against Mr. Epstein, the State Attorney's Office carefully considered the evidence. 
That evidence included a psycho-sexual evaluation, lie detector test results showing that Mr. 
Epstein believed that 
, one of the two alleged victims, was over 18, and MySpace 
pages proving that Ms. 
regularly falsely represented her age to the general public as at 
least 18. Ms. 1.1.1=1 also found the testimony of one of the main witnesses interviewed by 
the police incredible. Indeed, it was Mr. Epstein's counsel--not the police—that brought to the 
attention of the State prosecutors the key fact that one of the key witnesses had been arrested for 
drug possession and was in the midst of negotiating a reduction of that charge at the time she 
gave her statement to police regarding Mr. Epstein. 
The State Attorney's Office decided to put its witnesses to the test by convening a grand 
jury. Subpoenas were issued and the case was presented. 
, a key witness, refused 
to appear. The State grand jury returned an indictment o one count of solicitation of a 
prostitute. After months of contentious negotiation and following the grand jury indictment, a 
State plea agreement was agreed to by the State Attorney's Office and Mr. Epstein. 'The 
sentence available to the State was a maximum five-year term of incarceration and a restitution 
fund specifically tailored to prostitution. See Fl. Stat §§ 796.07 and 775.082. 
The State fully considered the facts of this case and determined that incarceration should 
be held in abeyance. The factors the State considered in making this determination were: (i) Mr. 
Epstein had no prior criminal record; (ii) each encounter with the women in question was 
consensual; (iii) strong evidence that the women admitted to lying about their ages; (iv) Ms. 
who interviewed some of the witnesses herself, stated that given their lack of 
crime 1 ray and the fact that they clearly were seeking money from Mr. Epstein, they were 
"hardly victims" and she believed it would border on the unethical to use them as witnesses; and 
(v) this case was, according to Ms. 
own words, a typical "sex for money case," the 
type for which the State historically did not require jail time. 
EFTA01080636

Page 41 
In reaching this determination, State prosecutors took great care in abiding by the policy 
of "horizontal equality," a policy United States Attorney Acosta also has stated dictates his 
prosecutorial decisions. Under this policy, the State determined that Mr. Epstein should be 
charged or given a punishment of no less or no more than anyone else under the same facts. The 
only reason the plea agieement was not filed with the court was the unexpected initiation of the 
federal investigation. Nevertheless, the Petite Policy was triggered once the State Attorney's 
Office and Mr. Epstein came to an agreement on the terms of the State plea. 
Despite the pending resolution between State prosecutors and Mr. Epstein, in early 
August 2007, after a year of conducting their own investigation with cooperation from the FBI, 
federal prosecutors began discussing their own proposal to defer prosecution to the State with 
Mr. Epstein's counsel. 
During these discussions, federal prosecutors represented to Mr. 
Epstein's counsel that they had identified up to forty alleged "victims" of federal crimes that 
qualified for inclusion under 18 U.S.C. § 2255, a civil remedy, and that they intended to 
federally prosecute Mr. Epstein unless he and his counsel, not the federal government, sought 
more stringent conditions to the State's proposed plea agreement, including a two-year term of 
incarceration and a more severe charge. Despite the awkward an unprecedented position in 
which this placed Mr. Epstein—namely, to be forced to have his counsel request that the State 
impose harsher penalties than the State itself believed were warranted—he attempted to comply 
with federal prosecutors' request and came to a new agreement with the State Attorney's Office. 
The new agreement provided for two years of supervised custody (including various other strict 
conditions), followed by two years of incarceration, which may have been rescinded upon 
successful completion of the supervised custody portion of the sentence. See August 2, 2007 
letter to 
Exhibit 34. Under this agreement, if Mr. Epstein failed to comply with the 
terms of the supervised custody, incarceration would commence immediately. Upon completion 
of his sentence, Mr. Epstein would thus serve two additional years of reporting probation (which 
also included mandatory and special conditions). 
Indeed, if anything, the sentence provided for by the State plea agreement went too far. 
Proposed as a result of the federal demand, that sentence was considerably harsher than others 
meted out to first-time offenders convicted of similar conduct in Palm Beach County. In fact, the 
State Attorney's Office had never before prosecuted a case involving this type of conduct as a 
felony, unless the victim was exceedingly young, especially vulnerable, or in a trust relationship 
with the perpetrator—facts plainly not present here. 
Moreover, supervised State custody (and its intrusive monitoring conditions) is not the 
norm for first-time offenders. And it is highly questionable whether the harsh conditions of Mr. 
Epstein's State plea agreement should have been proposed at all. Over the course of negotiations 
with federal prosecutors, counsel for Mr. Epstein learned that the United States Attorney's 
Office, despite trumpeting newly-learned facts resulting from the federal investigation, had 
included on their list of "victims," women who could in no way qualify, either as a result of their 
own testimony or by statute. See 
Tr. at 21, Exhibit 2. Indeed, after numerous discussions 
with federal prosecutors over several months, it became evident that the federal prosecutors had 
EFTA01080637

Page 42 
a much smaller list—a list that still has not been disclosed to either the State Attorney's Office or 
Mr. Epstein's counsel. The landscape was dramatically changed yet again as a result of several 
alleged victims on the government's list each filing a $50 million dollar lawsuit against Mr. 
Epstein. Each publicly now stating they had lied about their ages , and knew nothing about any 
sex activity whatsoever before they arrived. See Herman Public Statement, Exhibit 16. The 
initial discovery precipitated by this lawsuit undeniably supported Mr. Epstein's continued 
assertions that the women lied to him about their ages. See 
(Deposition) at 37, 
Exhibit 3. These recent facts, along with other new evidence confirms that the conduct in 
question was purely local and should be treated as such. These facts have been obtained under a 
State discovery statute and it was over vigorous objection of the federal prosecutors. 
The federal prosecutors, while clearly acknowledging that this matter fell within the 
ambit of the Petite Policy, continued to assert, without substantiation, that the proposed State 
plea awe 
• "
vindicate the federal interest. On August 3, 2007, Assistant U.S. 
Attorney 
rejected the State's new proposed plea agreement. He flatly stated 
that "the federal interest will not be vindicated in the absence of a two year term of state 
imprisonment." See August 3, 2007 letter from 
Exhibit 35.16 This letter openly 
acknowledged that the Petite Policy applied to this matter, and also highli 
ted the steps federal 
prosecutors were taking in order to circumvent its restrictions. Mr. 
articulation of the 
purported federal interest misrepresents the Petite Policy on two grounds. First, 
position that the federal interest could not be vindicated in the absence of a jail term for Mr. 
Epstein is contrary to Section 9-2.031D of the United States Attorney's Manual. This section 
requires the federal prosecutor to focus exclusively on the quality or process of the prior 
prosecution. The Policy expressly states that the prosecutor should not focus on the sentencing 
outcome unless there are indicia of impropriety by the State prosecutors. See id. ("the 
Department will presume that a prior prosecution, regardless of the result, has vindicated the 
relevant federal interest.") (emphasis added). As stated above, there are no indicia that the 
quality or process of the State prosecution was affected by "incompetence, corruption, 
intimidation, or undue influence," and thus, vindication of the federal interest must be presumed, 
regardless of the type of sentence.17
16 
17 
As stated above, federal prosecutors also acknowledged the application of the Petite Policy in drafts of the 
Deferred Prosecution Agreement. See e.g., Septwirbx.r 17, 2007 email from IA. Villafana to J. Leflcowitz 
attaching draft Deferred Prosecution Agreement, Exhibit 32. 
While federal prosecutors once suggested 
s retention of Jack Goldberger was intended to 
Digger the recusal of assistant prosecutor 
and thereby influence the outcome of the State 
prosecution, that assertion is frivolous. Mr, 
o 
ger was retained by Gerald Lefcourt after Mr. Epstein 
already had been indicted by the Grand Jury. Mr. Lefcourt had never heard the name 
when he 
hired Mr. Goldberger, and had no idea that Mr. Gold 
law partner was 
' 
sex-crimes 
prosecutor—much less that that fact would trigger Ms. 
recusal. And Ms. 
—not Ms. 
==remained in charge of the State's prosecution of Mr. Epstein before, during, and after the retention of 
(Continued...) 
EFTA01080638

Page 43 
Moreover, although the actual sentence agreed with the State Attorney's Office was less 
than the maximum available to the State, the Petite Policy indicates that this should not be a 
relevant consideration. Petite does not ask federal prosecutors to compare the sentence achieved 
in a prior State prosecution (here, two years of supervised custody with a possibility of two 
years' imprisonment) against what they hope to achieve in a successive federal prosecution 
(here, eighteen months of guaranteed imprisonment). Instead, it focuses on whether federal law 
makes "available" certain forms of punishment that were not "available" in the prior State 
proceedings—like "forfeiture and restitution," rather than mere "imprisonment and fines." 
U.S.A.M. § 9-2.031D ("The presumption may be overcome even when a conviction was 
achieved in the prior prosecution . . . if the prior sentence was manifestly inadequate in light of 
the federal interest involved and a substantially enhanced sentence . . . is available through the 
contemplated federal prosecution.") (emphasis added). As a result, the key inquiry under Petite is 
not whether federal prosecutors conceivably could do better; it is whether they can require the 
defendant to serve a sentence that was not even "available" to State prosecutors. Id. In this case, 
however, Mr. 
has not asked for anything that State prosecutors could not have obtained. 
The fact that State authorities chose—for unquestionably legitimate reasons—not to seek that 
particular sentence does not change the fact that the sentence was available to the State and 
rejected in its discretion. Therefore, Petite's presumption that the State of Florida's prior 
prosecution of Mr. Epstein has vindicated the federal interest cannot be said to have been 
overcome. 
Second, the State's proposed plea agreement was in no sense "manifestly inadequate" 
under U.S.A.M. § 9-2.031D. 
The gap between the conditions contained in the proposed 
agreement and federal prosecutors' proposal was so narrow that it cannot reasonably be 
understood as inadequate, let alone "manifestly inadequate". That federal prosecutors apparently 
believed that the purported federal interest could not be vindicated by anything less than a two-
year jail term fails to satisfy any objective reading of the Petite Policy.18 Properly interpreted, 
that Policy does not permit federal prosecution whenever prosecutors believe they might better 
vindicate the federal interest or whenever prosecutors consider the State sentence merely 
inadequate. Instead, the Policy requires that the federal interest be "demonstrably unvindicated" 
by the prior State prosecution; that the State sentence be "manifestly inadequate" to vindicate the 
federal interest; and that the successive federal prosecution offer a "substantially enhanced 
sentence." And Petite then makes clear that those words have real meaning by providing a 
telling example of an inadequate State process: "a state prosecution for assault and battery in a 
Mr. Goldberger. In short, it is bard to imagine bow the recusal of an assistant to the lead prosecutor could have 
resulted in any advantage to Mr. Epstein; more to the point, no such advantage was sought and none was 
obtained. 
18 Federal prosecutors' demand for a two-year jail term was subsequently reduced to an 18 month jail term as 
reflected in the Deferred Prosecution Agreement. The difference between this sentence and the state plea 
agreement is even narrower. 
EFTA01080639

Page 44 
case involving the murder of a federal official." U.S.A.M. § 9-2.031D. To put it mildly, that 
egregious example is a far cry from the situation at hand. 
Instead, the federal prosecutors' disagreement with the State's plea agreement boils down 
to a dispute over where Mr. Epstein initially would be incarcerated: The State believed that a 
longer sentence of supervised custody (which is a more onerous form of house arrest) and the 
potential for a longer sentence of imprisonment is adequate punishment for Mr. Epstein, while 
federal prosecutors insisted on a shorter period of traditional imprisonment and no supervised 
custody. There was no objective basis for believing that either of those punishments was 
demonstrably better or worse than the other. And the suggestion that the proposed State plea 
agreement was "manifestly inadequate" simply because the State Attorney's Office and federal 
prosecutors disagree about the location and manner in which Mr. Epstein would be confined both 
undermines Petite's strong presumption against successive prosecutions and is inconsistent with 
the Policy's requirement that a prospective federal prosecution offer the availability of a 
"substantially enhanced sentence." In short, the specific location of a defendant's confinement—
particularly one who is not an ongoing danger to the community under the conditions of the 
proposed State agreement—does not concern any federal interest, let alone a substantial one. As 
a result, it provided no basis for pursuing a successive federal prosecution.19
The remaining points of disagreement between federal prosecutors and their State 
counterparts likewise are too insignificant (or, indeed, irrelevant) to support a successive federal 
prosecution in this matter. For instance, while federal prosecutors have expressed concern that 
the State plea agreement does not require Mr. Epstein to register as a sex offender in Florida, that 
is not an appropriate consideration under Petite. After all, the Policy focuses on the prospect of 
obtaining "substantially enhanced" forms of punishment in order to vindicate federal interests, 
and given that the federal government does not itself require "Johns" to register as federal sex 
offenders, it is hard to see how State-law sex-offender registration can fairly be characterized as 
necessary to vindicate a federal interest—much less how its absence leaves the federal interest 
"demonstrably tmvindicated." Instead, federal prosecutors have told defense counsel that the 
only reason for their insistence that Mr. Epstein register as a sex offender in Florida is to "give 
the FBI a bone" for its work on the federal investigation. Needless to say, that is not an adequate 
justification for initiating a successive prosecution under Petite. 
Moreover, State prosecutors appropriately exercised their judgment, based on years of 
experience, in determining that the evidence and the entire circumstances of this closely-
19 In rejecting the State's proposal and demanding incarceration in lieu of supervised custody one federal 
prosecutor disparagingly noted that housc arrest in Mr. Epstein's case would amount to what would be seen by 
the public as "mansion arrest". Such reasoning had no bearing on the Petite analysis and clearly violated Mr. 
Acosta's stated policy of horizontal equality. Treating Mr. Epstein differently from any other similarly charged 
individual simply because of his wealth directly contravenes this policy. 
EFTA01080640

Page 45 
examined case should not warrant sex offender registration. State prosecutors carefully assessed 
this case, including personally interviewing many of these witnesses, and they carefully 
considered Mr. Epstein's background and mitigating factors—most notably, that Mr. Epstein did 
not use coercion, alcohol, drugs, or violence; that Mr. Epstein held no position of authority in 
connection with these girls; and that Mr. Epstein passed a lie detector test and psychosexual 
evaluation. The State sentence thus reflected sound prosecutorial judgment, and was well-
grounded in the 
entire circumstances of the case and the treatment of similar first-time 
offenders. 
In short, given the local conduct at issue, and the reasoned judgment of State prosecutors 
that State sex-offender registration was not necessary, there was no basis for suggesting that the 
absence of State sex-offender registration demonstrably failed to vindicate federal interests. Not 
only was this articulation for the need for registration a violation of the Petite Policy, it was a 
clear violation of well-settled law mandating that registration cannot be used as a form of 
punishment. Kansas v. Hendricks, 521 U.S. 346, 362 (1997); Johnson v. State, 795 So.2d 82, 87 
(Fla. App. 5th Dist. 2000) ("Analogous to the cited Federal cases, the legislative intent of the 
Florida Sexual Offender notification and registration requirement is not intended to be punitive, 
but is designed to be remedial in nature..."). 
Nor can federal prosecutors' concern for compensating victims justify their intent on 
prosecuting Mr. Epstein federally. Once federal prosecutors made clear that a primary goal of 
the federal investigation was a federal compensation proposal, the defense submitted one that 
consisted of terms harsher than Mr. Epstein's conduct warranted under prior federal precedents. 
In addition to the well-established state restitution statute, the defense offered a federal proposal 
that was similar to the resolution in the Boehm case, where the conduct was far more egregious. 
There, the defendant bought and distributed crack cocaine and cocaine to underage girls; 
admitted to knowing that the girls were underage; arranged for them to have sex with other 
members of the conspiracy in exchange for drugs; and possessed illegal firearms at the time of 
the alleged conduct. The defense proposal was open-ended with no monetary cap. But the 
federal prosecutors also ruled that out. Instead, federal prosecutors pressured Mr. Epstein to 
agree to provisions in the Deferred Prosecution Agreement that seem to have been designed to 
provide financial benefits to alleged victims who cannot qualify under Section 2255, because 
they testified that they did not suffer any type of harm, nor could they be victims of violations of 
Sections 2422(b) or 2423 (a prerequisite for recovery under Section 2255). Notably, federal 
prosecutors made the unprecedented demand that Mr. Epstein pay a minimum of $150,000 to an 
unnamed list of women they referred to as minors—Mr. Epstein's counsel later established that 
all but one of these individuals were actually adults, not minors. Those same prosecutors also 
demanded that Mr. Epstein pay the attorneys' fees for these alleged victims should they choose 
to bring any further civil litigation against him. They further demanded that Mr. Epstein waive 
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his right to challenge any of the allegations of these alleged victims, restricting his right of 
discovery to a single question: "have you ever met Mr. Epstein?".20
At bottom, certain federal prosecutors disagree with minor aspects of the deal made by 
duly-authorized State prosecutors. 
But federal prosecution is manifestly not appropriate 
whenever reasonable minds disagree about a specific punishment. Rather, the plain text of the 
Petite Policy requires that there be a demonstrable, manifest, and substantial difference between 
State and federal outcomes in order to justify a successive federal prosecution. That is, textually, 
a daunting standard. If Mr. Epstein's sentence is manifestly inadequate and leaves the federal 
interests in prosecuting solicitation demonstrably unvindicated, then so does every other sentence 
handed out by the State on similar facts. Indeed, the conduct here can be compared to that of 
Barry Kutun, a former North Miami city attorney accused of having sex with underage 
prostitutes and videotaping the sessions. Mr. Kutun pleaded guilty on May 18, 2007 in a Miami-
Dade County courtroom as part of an agreement with State prosecutors, and he received five 
years probation and a withhold of adjudication with no requirement to register as a sex offender. 
It is unclear why federal prosecutors—who declined to federally prosecute Mr. Kutun despite the 
fact that his conduct is more egregious than that of Mr. Epstein—believe that State prosecutors' 
treatment of Mr. Epstein alone somehow leaves the federal interest substantially unvindicated. 
Given the number of sexual crime cases prosecuted in Palm Beach County, either the 
Department ought to declare the State Attorney's Office in federal receivership—or it should 
acknowledge that Mr. Epstein is being treated differently from other similar offenders. 
C. 
The Conduct At Issue Does Not Constitute A Federal Offense. 
The Petite Policy requires that the government believe that the defendant's conduct 
constitute a federal offense, and that the admissible evidence probably will be sufficient to obtain 
and sustain a conviction by an unbiased trier of fact. But a federal conviction is unlikely as a 
matter of both law and fact. As a matter of law, the identified federal statutes do not apply for 
reasons detailed above. See supra at part II. As a matter of fact, the sworn testimony of the 
witnesses in this has case has definitively refuted any basis for a federal conviction. 
D. 
Federal Prosecutors Did Not Coordinate With The State. 
Quite apart from its substantive prerequisites, the Petite Policy also requires coordination 
with State authorities. See U.S.A.M. § 9-2.031A ("federal prosecutors should, as soon as 
possible, consult with their state counterparts to determine the most appropriate single forum in 
which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to 
resolve all criminal liability for the acts in question.") 
Such consultation is particularly 
20 This despite the fact that the state restitution statute, like the state prostitution statute, fully coven the conduct 
alleged and provides a well-established method for civil recovery. 
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important in this instance as federal prosecutors and State prosecutors clearly have a different 
view of the merits of this case. 
However, there was no such consultation by federal 
prosecutors with their State counterparts. 
Federal prosecutors never contacted the State Attorney's Office, let alone attempted to 
coordinate efforts, despite the fact that the State prosecutors have over a decade of experience in 
rosecutin State matters and sex related crimes in particular.2i Federal prosecutors ignored Ms. 
view of the case, despite the fact that she interviewed many of the witnesses in 
connection with the State investigation. 
Because of a lack of communication by federal prosecutors, the State Attorney's Office 
was left to accept the Deferred Prosecution Agreement, which contained overreaching conditions 
including a mandatory period of incarceration and sex offender registration. Without a single 
meeting or phone call with State prosecutors and without ever sharing with them the evidence 
that would justify such an action, federal prosecutors insisted that the State accept that the 
charges be raised and the sentence enhanced. 
It is telling that the failure by the federal prosecutors to coordinate with the State 
Attorney's Office led to confusion of the issues as well misrepresentations regarding the 
Deferred Prosecution Agreement. Under the agreement, which was drafted without consultation 
by federal prosecutors with the State Attorney's Office, Mr. Epstein was to plead guilty to an 
indictment charging one count of solicitation of prostitution under Florida Statute § 796.07, and 
to one count of procuring a minor for prostitution under Florida Statute § 796.03. Given the 
commercial nature of the conduct generally associated with § 796.03, a defendant convicted 
under this statute must register as a sexual offender under Florida's Sex Offender Registration 
and Notification Act (the "Florida's Sex Act"). 
However, Mr. Epstein's alleged conduct did not actually meet the requirements of § 
796.03, a charge for which federal prosecutors had no facts to sir 
rt. Since inception and at 
the time § 796.03 was negotiated between the parties, Ms. 
erroneously maintained that 
a § 796.03 charge involved the solicitation—and not the procurement—of a minor. See July 31, 
2007 Draft Deferred Prosecution Agreement, Exhibit 36 ("solicitation of minors to engage in 
prostitution, in violation of Fl. Stat. 796.3 . .'). During those negotiations, Mr. Epstein's 
counsel repeatedly asked Ms 
o confirm that she possessed the requisite evidence to 
make out a this charge, to which she unwaveringly replied that she did in fact possess this 
21 
Federal prosecutors went to such great lengths to avoid coordinating with the State that they even asked Mr. 
Epstein's counsel to provide them all of the documentation provided to the State, including the transcripts of 
each witnesses' testimony. In addition, rather than consult with the State Attorney's Office directly, federal 
prosecutors effectively conscripted Mr. Epstein and his counsel to convince the State to agree to both a harsher 
charge and sentence in connection with its proposed plea agreement, both of which the State believes may not 
necessarily apply to Mr. Epstcin's alleged conduct. 
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Page 48 
evidence. But Ms. 
ater informed Mr. Epstein's counsel that solicitation of minor is 
not a registerable offense and that § 796.03 is a procurement statute that has no application to 
Mr. Epstein whatsoever. See e.g., Register v. State, 715 So.2d 274, 278 (Fla. 1st DCA 1998) 
("The Florida Legislature has designated such an act of solicitation as a less severe crime than 
exploiting a minor to engage in sexual activity with a third party, to the procurer's financial 
advantage'). 
It is obvious from federal prosecutors' first documented plea proposal that 
`solicitation of a minor' is and always has been the appropriate charge under the facts (this is 
also the State's recommended charge). What is now apparent is that federal prosecutors believed 
that solicitation of a minor was both a felony and registerable charge under Florida law. They 
were wrong. 
Had federal prosecutors coordinated with State authorities, they would 
(presumably) not have fallen into this manifest legal error.22
In addition, federal prosecutors insisted that they dictate every detail of the State sentence 
pursuant to the Deferred Prosecution Agreement. Once again, this was done without any 
coordination with the State. Federal prosecutors went so far as to demand a restriction on the 
judge not to be able to offer probation, community control or any other alternative that the judge 
might order in lieu of incarceration. See Executed Deferred Prosecution Agreement, 12(a), 
Exhibit 33. This is classic overreaching violative of the Petite Policy's imperatives. Not 
satisfied with simply dictating the terms and conditions of Mr. Epstein's incarceration, federal 
prosecutors then attempted to send a highly inaccurate Victim Notification Letter to their list of 
alleged victims of federal crimes (all except three of whom had no connection to the State 
prosecution) and encouraged them not only to attend the State plea and sentencing proceeding 
but to make public statements against Mr. Epstein before the judge. See Victim Notification 
Letter, Exhibit 37. Yet again, this was also done without consulting the State Attorney's Office. 
We understand that that Office was not given the identities of these alleged victims and had no 
idea that federal prosecutors intended to send such letters to these individuals. 
E. 
Traditional Elements Of Proper Prosecutorial Discretion Do Not Favor 
Prosecution Here. 
Even assuming that the Department could bring charges, it should decline as a matter of 
prosecutorial discretion. The relevant factors are set forth in Section 9-27.230 of the United 
States Attorney's Manual, and those factors counsel against prosecution. Mr. Epstein has no 
criminal history of any kind. Given the unique nature of any prosecution (which would be 
unprecedented as a federal matter), any general deterrent effect is likely to be minimal or 
22 
Furthermore, in the Victim Notification Letter that she intended to send to all the alleged federal victims, Ms. 
Villafana erroneously stated that under Deferred Prosecution Agreement, Mr. Epstein would have to register as 
"sexual predator" as opposed a "sexual offender" for the remainder of his life. See Victim Notification Letter, 
Exhibit 37. That is not true—under the Deferred Prosecution Agreement, Mr. Epstein nced only register as a 
sexual offender, a classification that is far less grave than that of a sexual predator and which carries far less 
onerous conditions. See Executed Deferred Prosecution Agreement, Exhibit 33. 
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nonexistent. Moreover, federal statutes that focus on sexual activity with minors focus on truly 
interstate phenomena such as child pornography, human trafficking, Internet luring, and sex 
tourism. Here, Mr. Epstein engaged in local activity that does not implicate any broader federal 
concern. Mr. Epstein faces punishment for that conduct under Florida law. There is no need to 
add additional federal penalties grossly disproportionate to his alleged behavior. 
F. 
The Petite Policy Dictates Federal Declination of This Case. 
In conclusion, we believe that the Petite Policy clearly dictates a federal declination in 
this case for the following reasons: First, the Petite Policy (which the federal prosecutors have 
acknowledged is applicable here) was triggered by the initial plea agreement with the State 
Attorney's Office, which was not executed solely because of the pending federal investigation. 
Second, there is no evidence of corruption, undue influence, or incompetence by the State's 
Attorney's Office. Third, the presumed bar to a dual prosecution has clearly not been overcome. 
Fourth, there was no coordination with State prosecutors, which led to confusion of the issues 
and a flawed and overreaching Deferred Prosecution Agreement. 
EFTA01080645

TABLE OF CONTENTS OF SUBMISSION TO CEOS RE EPSTEIN 
I 
November 5, 2007 Letter from J. IIM 
2 
Transcript 
3 
^Transcript 
(February 20, 2008) 
4 
-Transcript 
5A 
Transcript (March 21, 2008) 
5B 
=Transcript (Marcb 26, 2008) 
6 
Federal Complaints 
7 
State Complaint 
8 
Message Book Entries 
9 
Toll Records 
10 
Transcript (March 15, 2005) 
11 
Transcript 
12 
Transcript 
13 
Transcript 
14 
EnTranscript 
15 
November 9, 2007 DOJ letter to Judiciary 
16 
Herman Public Statement 
17 
Palm Beach Police Department Report 
18 
Transcript 
19 
Transcript 
20 
Transcript 
21 
Transcript 
EFTA01080646

22 
Transcript 
23 
Transcript 
24 
Transcript 
25 
Mr 
Transcript 
26 
Transcript 
27 
Transcript 
28 
Table of 18 U.S.C. § 2422 Cases 
29 
Table of 18 U.S.C. § 1591 Cases 
30 
Table of 18 U.S.C. § 2423 Cases 
31 
Summary of Testimony re No Coercion 
32 
September 17, 2007 Draft Deferred Prosecution Agreement 
33 
Executed Deferred Prosecution Agreement 
34 
August 2, 2007 Letter to 
35 
August 3, 2007 letter from 
36 
July 31, 2007 Draft Deferred Prosecution Agreement 
37 
Victim Notification Letter 
2 
EFTA01080647