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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. § 9-2.031A. 
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 II.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 federa 
ses.I4 There i 
Mr. Epstein was aware that either of 
the other two girls 
Gonzales and 
was underage. Ms. 
has 
openly acknowledged that she lied to Mr. Epstein a 
ut er age, and other girls ave tes ified 
that Ms. 
told them to lie about their ages because Mr. Epstein did not want underage 
14 
18 U.S.C. §2243(a) (the agc 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). 
• 
EFTA00225872

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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 not 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-
2.031 A (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. Lefkowitz 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: 
[Flirst, 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 
EFTA00225873

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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, § 160001(gX2). 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(b) 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. 
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• 
• 
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 
f
other than illicit sex take this case outside of the paradigm of prior 2423(b 
rosecutions, see the 
Table of § 2423 Cases, ixhibit 30, and make this case more like Hansen 
Half, 291 U.S. 559 
(1934), and Mortensen 
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 hip 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 Vat an interstate trip be significantly motivated or have as its "important 
purpose," United States I. Hoschouer, 2007 WL 979931 (11th 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(f) 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. 
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Page 34 
States, 322 U.S. 369, 374 (1944) (intention to engage in proscribed conduct must "exist before 
the conclusion of the interstate journey and rust be the dominant motive of such interstate 
movement.") (emphasis added); United States 
Hoschouer, 224 Fed. Appx. 923, 924 (11th Cir. 
2007) (affirming jury instruction that "the Government must show that the Defendant's criminal 
purpose was not merely incidental to the travel"); id. at 927 ("By requiring that the jury find that 
Defendant's illicit sexual conduct was more than 'merely incidental' to his purpose in 
traveling..., the district court effectively required that Defendant's illicit purpose be an 
important purpose of the travel.") (emphasis added); United States t Tylcarsky, 446 F.3d 458, 
471 (3d Cir. 2006) ("[T)he relationship between the mens rea and 
e actus reus required by 
§ 2423(b) is neither incidental nor tangential. § 2423(b) does not simply prohibit traveling with 
an immoral thought, or even with an amorphous intent to engage in sexual activity with a minor 
in another state."). 
Instead, Mr. Epstein spent at least 100 days a year in Palm Beach for family purposes, 
business purposes, and social purposes, and to maintain a home that he has owned in Palm Beach 
since 1991—more than a decade before the incidents giving rise to this investigation. In fact, 
Mr. Epstein's longstanding ties to the Palm Beach community led him to establish a residence 
there nearly 20 years ago. While in Palm Beach, he routinely visits family members and close 
friends, has seen his primary care physician for checkups and prescribed tests in the Palm Beach 
area, and until her death in May of 2004, regularly saw his mother who was hospitalized and 
then convalesced in south Florida. Any massages he may have received in Palm Beach were 
entirely incidental to these regular trips home. 
Flight records previously provided to the United States Attorney's Office show that in 
2003, Mr. Epstein traveled to and from his Palm Beach home on 31 occasions, and spent 29 
multi-day weekends at the residence. In 2004, Mr. Epstein traveled to and from his Palm Beach 
home on 37 occasions, 36 of which included a multi-day weekend stay. In the first 9 months of 
2005 the pattern continued: 24 multi-day trips to Palm Beach including 21 multi-day stays over 
weekends. From 2003 through 2005 there was no month when Mr. Epstein did not spend at least 
one weekend in Palm Beach. In fact, the Palm Beach area is the home base for his flight 
operations, for maintenance of his aircraft, and for periodic FAA inspections. Additionally, Mr. 
Epstein's pilots and engineers all resided in Florida. Mr. Epstein's gun license, until recently, 
was a Florida license. He has given generously to charities in Florida. He has met business 
associates at his Palm Beach residence. 
• 
In short, the evidence is indisputable that Palm Beach was where Mr. Epstein spent most 
of his discretionary time, and that his travels to Palm Beach were trips returning to his home—
not the escapades of a sex tourist off to some destination inextricably intertwined with the 
significant or dominant purpose of having "illicit sexual conduct." Epstein's trips to Palm Beach 
were simply those of a business person traveling home for weekends or stopping over on his way 
to or from New York and St. Thomas. 
• 
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• 
• 
Conversely, Mr. Epstein was not involved in any kind of human trafficking, enslavement or 
commercial prostitution enterprise. 
We have attached sworn testimony that shows that 
Mr. Epstein solicited, received, and paid for massages which included, on some occasions, 
consensual sexual touching from local women in his Palm Beach home. Some of these women 
were under 18 at the time of the conduct, but they systematically lied to Mr. Epstein about their 
age. These facts are nothing like any of the prior cases in which the Department has initiated a 
§ 1591 prosecution. 
At bottom, Mr. Epstein's conduct was purely local; it did not involve "trafficking of 
women or children in the sex industry" and was not part of a phenomenon that, in the aggregate, 
had an economic impact on interstate or foreign commerce. Extending the statute to local 
customers who seek prostitution services, even on a regular basis, would collide with the limits 
imposed by Evans, by the history of a statute that is premised on the Thirteenth Amendment, by 
the statute's placement in Chapter 77 of the Title 18 (titled 'Peonage, Slavery, and Trafficking in 
Persons"), and by the Department's own representations that prostitution is properly reserved for 
State and local prosecution absent its featuring commercial sex trafficking of children. Mr. 
Epstein simply is not a "trafficker" by any stretch of language, policy or imagination. Therefore, 
prosecution under § 1591 should not be authorized. It has never before been approved on facts 
like this, and no reported precedent encompasses Epstein's conduct within the ambit of a viable 
§ 1591 prosecution. See Table of § 1591 Cases, Exhibit 29. 
C. 
18 U.S.C. § 2423(b) 
Section 2423(b) criminalizes domestic and international sex tourism. It reads as follows: 
18 U.S.C. § 2423. Transportation of minors 
(b) Travel with intent to engage in illicit sexual conduct—A person who 
travels in interstate commerce or travels into the United States, or a United States 
citizen or an alien admitted for permanent residence in the United States who 
travels in foreign commerce, for the purpose of engaging in any illicit sexual 
conduct with another person shall be fined under this title or imprisoned not 
more than 30 years, or both. 
(Emphasis added.) Section 2423(b) thus provides up to 30 years of imprisonment for anyone 
who travels across State lines (i) for the purpose of engaging in (ii) illicit sexual conduct with a 
minor. Neither of those elements is satisfied here. Mr. Epstein did not travel to Palm Beach for 
the purpose of engaging in sexual activity with a minor, and whatever sexual activity did occur 
was not "illicit sexual conduct" within the meaning of the statute. 
First, Mr. Epstein's trips to Palm Beach were not undertaken "for the purpose of 
engaging" in sexual activity, much less for the purpose of engaging in "illicit sexual conduct." 
To the contrary, the prospect that Mr. Epstein might engage in sexual activity in Florid was not 
the dominant motive—or even a significant motive—for his travel. See Mortensen I United 
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Federal prosecutors have never used § 1591 in a case involving facts like these. We have 
identified 21 prosecutions under § 1591," and all of them have involved international sex 
trafficking; for-profit prostitution rings, usually involving minors and fo ible coercion; or 
forcible rape or physical abuse and intimidation. See, e.g., United States 
Norris, 188 Fed. 
Appx. 822, 2006 WL 1889654 (11th Cir. 2006) (prosecution of several men for conspiracy to 
hold young women in eonage, and to traffic them for commercial sex acts, involving force and 
threats); United States 
Sims, 161 Fed. Appx. 849, 2006 WL 14581 (11th Cir. 2006) (defendant 
picked up young woman, transported her over State lines, ordered her to prostitute herself, and 
took money from her). 
• 
• 
Moreover, in the cases enforcing the statute, the victim is typically 14 and under. See 
Table of § 1591 Cases, Exhibit 29. Therefore, witnesses under 18 years old in this case are not 
the "children" in respect of whom trafficking cases have historically been enforced. With two 
has given multiple sworn statements 
' 1 sex act occurred (and thill 
' s, all such witnesses were 16 years old or over. Of the two exceptions, one, 
lied to Mr. Epstein about her age). The other, 
, who has a history of criminal 
misconduct and drug addiction, has sought to co ec monetary remuneration from Mr. Epstein in 
a civil suit and her era,' ' ' ' 
'tied beyond any reasonable reliance. Importantly, other girls 
have testified that Ms. 
told them to lie about their ages ecause Mr. Epstein did not 
want underage girls in s ome. This strongly suggests that Ms. 
herself lied to Mr. 
Epstein about her own age. 
It is little wonder, then, that the courts have made clear that § 1591 simply is not intended 
to cover the kind of alleged conduct at issue here. Thus, as the Eleventh Circuit has explained, 
"Section 1591 does not criminalize all acts of prostitution (a vice traditionally governed by state 
regulation)." 
Rather, its reach is limited to sex traffi ing that involves children or is 
I
accomplished by force, fraud, 
coercion." United States 
Evans, 476 F.3d 1176, 1179 n.1 
i
(2007); see also United States 
Sims, 161 Fed. Appx. 84 , 2006 WL 14581 at *3 (11th Cir. 
2006) (to "establish Sims's guil on the sex trafficking of a minor count, the government had to 
show that Sims benefited financially from Owen's sexual activity and that Sims knew that (a) 
force or coercion would be used to cause Owens to engage in a criminal sex act or (b) that 
Owens was under the age of 18." (emphasis added). The Eleventh Circuit's interpretation of the 
statute makes perfect sense: were § 1591 not limited in that fashion, it would threaten to 
criminalize a host of localized behavior that has nothing to do with human trafficking. 
In these respects, Mr. Epstein's case hardly could differ more from the typical § 1591 
case, like Evans—where a stereotypical pimp enticed an AIDS-inflicted 14 year-old into 
prostitution for commercial purposes and essentially held her in bondage. 476 F.3d at 1176-78. 
11 We identified a total of 25 prosecutions under § 1591, but 4 of those case opinions fail to provide any 
information as to the facts underlying the charges. 
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that Congress was addressing the evils of human trafficking by targeting Johns. Instead, the 
clear Congressional focus was on traffickers—that is, those who participate and engage in a 
modem day form of slavery, by using force, fraud, or coercion to exploit the unwitting. See, e.g., 
Legal Options To Stop Human Trafficking: Hearing Before The Subcomm. on Human Rights and 
the Law of the S. Comm. on the Judiciary, 110th Cong. 15 (Mar. 26, 2007) (statement of Deputy 
Assistant Attorney General Grace Chung Becker) ("Human trafficking is really about force, 
fraud or coercion, and that is the key element that describes human trafficking."); Report on 
Activities to Combat Human Trafficking, U.S. Department of Justice, Civil Rights Division 
Web. 24, 
2006), 
available 
at 
http://149.101.1.32/crt/crim/trafficking_report_2006.pdf 
("[T]rafficking is the modern-day form of slavery. It requires the use of force, fraud or coercion 
by a trafficker to compel a person, or hold someone in an employment situation in which he or 
she will be criminally exploited."). 
Again, there is no evidence that Mr. Epstein's conduct or that of his associates resembles 
the kind of conduct at which this statute was aimed. To the contrary, the evidence shows again 
and again that the young women involved in this case were willing participants: they lied about 
their age because they knew Mr. Epstein was not interested in minors; they called the home 
seeking to make their own appointments with Mr. Epstein; many returned to the home on 
multiple occasions; and they were free to stay or leave on whatever terms they desired. Congress 
plainly did not intend § 1591 to cover these circumstances. 
4. 
The Department's Own Policy Statements Regarding The Ts/PA 
Foreclose The Application Of & 1591 In This Case. 
The Department's own policy statements on prostitution-based cases underscores that 
§ 1591 cannot and should not be distorted to include the conduct at issue in this case. As the 
Department has explained, "Federal law prioritizes crimes in which victims have been trafficked 
as a result of force, fraud, or coercion, including the sex trafficking of children in which coercion 
is presumed i.e. crimes that fall under the Thirteenth Amendment's prohibition on slavery and 
involuntary servitude, and commercial sex involving transportation in interstate commerce." See 
November 9, 2007 DOJ letter to the Judiciary, at 8, Exhibit 15. The Department's position 
further opposes the federalization of "prostitution-related offenses" as an unnecessary "diversion 
fiom Federal law enforcement's core anti-trafficking mission," and expresses the view that State 
and local authorities are more than capable of addressing such offenses. Id. at 8-9. 
Needless to say, Mr. Epstein is not a "trafficker" of children. He derived no profit from 
any prostitution business. And the testimony of the women is clear and uncontroverted: Mr. 
Epstein did not exercise force, fraud, or coercion over any female—in fact, quite the opposite. 
See Summary of Testimony re No Coercion, Exhibit 31. Therefore, there is no basis for 
presuming coercion here, given the clear record that the conduct in question was voluntary, non-
violent, and non-coercive. 
5. 
The Department's Prosecution History and Existing Case Law Foreclose 
The Application Of & 1591 In This Case. 
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residents in Palm Beach. And any impact that the private, consensual activities at issue in this 
case could have had on interstate commerce was far too attenuated to sustain the application of 
this statute to Mr. Epstein's alleged conduct—not least of all because there is no evidence 
whatsoever that Congress intended § 1591 to target the sort of purely local conduct at issue here 
(as opposed to the interstate or transnational trafficking of minors). Needless to say, application 
of the statute inder these circumstances would raise grave constitutional concerns, see, e.g., 
United States 
Morrison, 529 U.S. 598 (2000); United States I 
514 U.S. 549 (1995), 
and given the absence of any basis in the text, structure, or history o 
e statute for thinking that 
Congress intended to reach such purely local conduct, it should not be stretched to apply here. 
2. 
The Structure Of The Statute Forecloses Its Application In This Case. 
The broader structure of the statute likewise makes clear that § 1591 was never intended 
to apply to the sort of conduct at issue in this case. § 1591 was enacted in 2000 as part of the 
Trafficking Victims Protection Act (TVPA), which is a comprehensive legislative scheme aimed 
at the problem of human trafficking. That statute created four new offenses, each of which 
unquestionably is directed at coercive human trafficking, rather than simple solicitation of 
prostitution: Section 1589 addresses forced labor; section 1590 addresses trafficking with respect 
to peonage, slavery, involuntary servitude or forced labor; § 1591 addresses trafficking of 
children or by force, fraud, or coercion; and section 1592 addresses the concealment or 
confiscation of another person's passport or identification in the course of violating the 
preceding trafficking provisions. And the TVPA goes on to provide for the civil and criminal 
forfeiture of trafficking proceeds. 
In every respect, then, the TVPA is directed at interstate and international human 
trafficking, particularly of women and children (and involving forced labor and sex). Each 
section of the statute plainly targets the operators of trafficking regimes, not their "Johns." 
Reading the statute to apply to simple prostitution, which is all this case involves, would wrench 
§ 1591 from its surrounding context, and strain it to apply here—where there is not even a whiff 
of coercion, and no evidence whatsoever that the young women involved in this case were 
incapable of making their own choices. 
3. 
The History Of The Statute Forecloses Its Application In This Case. 
The legislative history of § 1591 and the TVPA further makes clear that Congress 
intended the statute only to cover human trafficking offenses, not mere solicitation. See 114 Stat. 
1464 § 102 (Oct. 2000) (purpose of § 1591 is "to combat trafficking in persons, a contemporary 
manifestation of slavery"); id. ("Trafficking in persons is a modem form of slavery, and it is the 
largest manifestation of slavery today. At least 700,000 persons annually, primarily women and 
children, are trafficked within or across international borders. Approximately 50,000 women 
and children are trafficked into the United States each year."). 
None of the stated goals of the TVPA in general, and of § 1591 in particular, apply to 
acts of solicitation of prostitution. Nothing in the legislative history states or any way suggests 
EFTA00225880

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• 
• 
some girls were over 18, some were under, and the identity of a given masseuse on a given day 
depended entirely on who was available or who was brought to Mr. Epstein home, unsolicited, 
by a friend. There was, in short, no deliberate effort to target underage girls; to the extent any 
underage girls visited Mr. Epstein's home, it was pure happenstance, made possible only because 
the girls themselves deceived Mr. Epstein in order to gain access to his property. 
Nor is there any evidence that Mr. Epstein or his assistants acted with knowledge that the 
minors would "be caused to engage in a commercial sex act." Again, Mr. Epstein's massages 
did not invariably lead to sexual contact (and often did not lead to sexual contact), see supra at 
part II.A.3.c., which makes it impossible to prove that the girls were recruited by someone 
"knowing" that those girls would "be caused to engage in a commercial sex act." After all, one 
cannot be said to have "known" that something "would" happen if it did not actually happen. 
Perhaps more important, the statute's use of the term "be caused to engage" demonstrates that 
Congress contemplated some use of undue influence or pressure to induce the minor to perform 
"a commercial sex act." When two people willingly and consensually engage in a sex act—even 
one that involves the exchange of money—it cannot be said that one has "be[en] caused" by the 
other to engage in the act. And if the statute were applied without requiring some element of 
undue influence, then it would apply to any act of consensual prostitution involving a willing 
minor, which certainly was not Congress's intent. The "knowing causation" element of the 
statute thus makes clear that the statute targets traditional pimps—those who recruit underage 
women and influence or require them to engage in sexual acts with third parties—not the third-
party "Johns" who unwittingly solicit an underage prostitute acting under the influence of a 
pimp. 
Needless to say, there is no evidence whatsoever that Mr. Epstein was pimping the young 
women who came to his home—and there is no evidence whatsoever that Mr. Epstein wielded 
any undue influence over those young women in their own interactions. To the contrary, each 
was free to accept or reject any invitation to his home; each was free to introduce or not 
introduce him to their friends; each was free, if asked, to reject any escalation of a simple 
massage into something more. 
Indeed, many of the girls visited Mr. Epstein's home 
unsolicited—and many left messages with Mr. Epstein's assistant seeking to visit him. See 
supra at part I. The statute cannot plausibly be read to cover these circumstances, where there is 
no serious question that the masseuses chose—but were not "caused to"—perform massages on 
Mr. Epstein, and, occasionally, more. 
Finally, the statute's express requirement that there be a nexus between the inducement of 
a minor and interstate commerce is not satisfied in this case. That requirement makes clear that 
Congress intended to target commercial prostitution operations with a substantial impact on the 
interstate economy—i.e., those involving the coercive "trafficking" of minors across State or 
national boundaries as part of a commercial enterprise--rather than purely local prostitution. But 
that's all that was involved here. Mr. Epstein did not entice anyone located in another State or 
country. He did not entice anyone to cross State or national lines. None of the women in this 
case ever did cross State lines. Any sexual contact that occurred took place between Palm Beach 
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Page 28 
knowing that force, fraud, or coercion ... will be used to cause the person to 
engage in a commercial sex act, or that the person has not attained the age of 
18 years and will be caused to engage in a commercial sex act....(emphasis 
added) 
The text, structure, and history of this statute make clear that it was never intended to 
apply to a case like this one, and the Department's own policy statements and past prosecuting 
decisions demonstrate that applying § 1591 in this case would be unprecedented and 
inappropriate. 
1. 
The Text Of The Statute Forecloses Its Application In This Case. 
By its plain text, the statute requires (1) the deliberate (2) obtaining or enticing (3) in 
interstate commerce of (4) a person (5) while "knowing that force, fraud, or coercion ... will be 
used to cause the person to engage in a commercial sex act," or "knowing that" the person "has 
not attained the age of 18 years and" (6) "will be caused to engage in a commercial sex act." 18 
U.S.C. § 1591. These elements cannot be satisfied. 
To begin with, by no stretch of the imagination did Mr. Epstein use "force, fraud, or 
coercion" in connection with any of the women who came to his home. In fact, it was just the 
opposite. There is ample testimony that the women felt comfortable with Mr. Epstein. Those 
who came to his house were told before they chose to come that Mr. Epstein would request a 
massage and might possibly request that the masseuse remove her clothing. It was also made 
clear to those who came to his home, that if ever Mr. Epstein requested more from them, and 
they did not feel comfortable with his request, all they need do was tell him so and he would be 
fine with that. Each individual approached about Mr. Epstein was free to accept or reject any 
invitation, each was free to introduce or not introduce Mr. Epstein to their friends (as many did), 
each was free, if asked, to reject any request by Mr. Epstein for anything more than a simple 
massage and to end the massage at any time. In fact, some did reject his requests and end the 
massage, and they were still paid for their services. In a number of cases, even those who ended 
massages early returned, either to bring friends or to wait, talk and snack in Mr. Epstein's house. 
Still many others returned to Mr. Epstein's house time and time again to perform massages. See 
Summary of Testimony re No Coercion, Exhibit 31. 
To suggest that Mr. Epstein in any way 
used "force, fraud, or coercion" with these women is baseless. To the contrary, the young 
women's' testimony in this case clearly reflects, there is not even the slightest whiff of coercion 
in this case, nor any suggestion that the young women involved were lacking in the ability to 
make fully informed choices. The clear record that all the conduct in question was voluntary, 
non-violent, and non-coercive plainly demonstrates that this would be an inappropriate case in 
which to presume coercion. 
Furthermore, the evidence in this case conclusively establishes that the underage girls 
who visited Mr. Epstein's home have, without exception, either expressly admitted that they lied 
to Mr. Epstein about their age or instructed others to lie to Mr. Epstein about their age. See 
supra at part II.A.3.b. And the identity of the masseuses (and their ages) was purely random—
EFTA00225882

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Page 27 
a massage. The facts clearly will not establish that Mr. Epstein knew that whoever made the 
calls was engaging in an attempt to induce anything other than a massage. The facts and 
evidence do not establish that parties who were spoken to, were "persuaded, induced, enticed, or 
coerced." And the facts and evidence establish that Mr. Epstein did not know the ages of the 
women who came over when the phone was used, and did not at the time of the calls intend to 
solicit prostitution or any sexual activity chargeable under Florida law. 
Under these circumstances, taking a statute plainly not intended to cover this alleged 
conduct and stretching to accomplish something Congress never intended would be to grossly 
overreach—especially where State law normally covers this territory. Mr. Epstein undeniably 
committed State offenses. He was so indicted and has agreed, subject to the resolution of the 
successive federal criminal investigation, to plead guilty to that which the evidence proves—
State offenses. 
• 
• 
Consistent with Congress's focus on sexual predators, federal prosecutors have never 
used § 2422(6) in this way. We have identified 199 prosecutions under § 2422(b),'0 and all of 
them have involved Internet predation, for-profit prostitution rings, sex tourism, or some other 
situation in which the defendant himself either abused the victim or aggressively induced minors 
over the mail, phone or Internet. Needless to say, Mr. Epstein is not a sexual predator, let alone 
an Internet predator. Evidence shows that Mr. Epstein did not target minors; that women were 
motivated by the opportunity to make money, that all sexual touching was entirely consensual; 
and that all of the conduct took place in Mr. Epstein's home in Palm Beach County. 
B. 
18 U.S.C. § 1591 
Section 1591 criminalizes human trafficking. It reads as follows: 
18 U.S.C. § 1591. Sex trafficking of children or by force, fraud, or coercion 
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special 
maritime and territorial jurisdiction of the United States, recruits, entices, 
harbors, transports, provides, or obtains by any means a person; or 
(2) benefits, financially or by receiving anything of value, from participation 
in a venture which has engaged in an act described in violation of paragraph 
10 We identified a total of 230 prosecutions under § 2422(b), but 31 of those case opinions fail to provide any 
information as to the facts underlying the charges. 
EFTA00225883

• 
Page 26 
been trafficked by force or coercion, and that "pandering, pimping and prostitution-related 
offenses have historically been prosecuted at the state or local level." Id. (emphasis added); see 
also id. ("Furthermore, the Department is not aware of any reasons why state and local 
authorities are not currently able to pursue prostitution-related crimes such that Federal 
jurisdiction is necessary.") Those observations could hardly be more apt in this case. Expanding 
§ 2422(b) to reach a prostitution-related offense is "unnecessary and a diversion from Federal 
law enforcement's core anti-trafficking mission." Id at 9. 
In the end, federal prosecutors attempt to argue that § 2422(b) applies wherever anyone 
uses an interstate facility and unlawful sexual activity ensues. However, the statute clearly aims 
at the conduct of Internet predators, i.e., those who knowingly and intentionally target children 
through some means of interstate commerce. That is the natural reading of the text, and it is 
consistent with the statute's purpose, the rule of lenity, and principles of federalism. See 
Scheidler 
Nat'l Org. for Women, Inc., 547 U.S. 9, 16-21 (2006) (construing the Hobbs Act 
narrowly based on statutory text and history, as well as the need not to "federalize much ordinary 
criminal behavior"). On any broader interpretation, § 2422(b) would federalize nearly any 
sex-related crime if there were use of the telephone or Internet. If Congress had wanted to effect 
that sort of sea-change in the balance between federal and State power, it could and would have 
said so when it enacted § 2422. 
Florida law defines a range of prostitution and prostitution related offenses, but it treats 
them as misdemeanors, making it a felony for a third violation. See Fla. Stat.796.07(4). To 
ratchet up the punishment, by invoking the federal statute, to felony crime with a long mandatory 
minimum prison sentence attached, is not what Congress intended when it enacted this law, nor 
does the statute give fair warning that the statute made such conduct a federal criminal offense. 
It would work a major shift in the State-federal balance—at a time when the administration has 
eschewed, on federalism grounds, extending federal criminal law into areas that are primarily 
and historically of State concern. And it would do so where the federal (as opposed to the State) 
interest is minimal, assuming a federal interest exists at all. In addition, it would raise questions 
of the utmost seriousness under the Ex Post Facto and Due Process Clauses, since a prosecution 
of Mr. Epstein under § 2422(b) would require a construction of the statute that was unforeseeable 
when the conduct at issue occurred. See, e..g., Bouie I City of Columbia, 378 U.S. 347, 350 
(1964). If a judicial construction of a criminal statute is "unexpected and indefensible by 
reference to the law which had been expressed prior to the conduct in issue, "it must not be given 
retroactive effect. Id. at 354, quoting Hall, General Principles of Criminal Law 61 (2d ed. 1960). 
• 
• 
5. 
Conclusion 
In sum, the facts and evidence do not fit the elements required to prove the crime. There 
are numerous factual and legal hurdles that must overcome to meet the key elements of this 
crime. Federal prosecutors will have to establish from credible evidence that Mr. Epstein used a 
phone to engage in the prohibited acts. To the extent others made the phone calls, there is no 
evidence that the phone was used to induce the young women to do anything other than provide 
EFTA00225884

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• 
• 
Page 25 
(1995) (quoting United States' Enmons, 410 U.S. 3%, 411-12 (1973)). In Enmons, the Court 
refused to accept the Government's "broad concept" of the Hobbs Act, because it would have 
rendered all manner of minor actions subject to federal prosecution and stringent federal 
punishment, covering even "the worker who threw a punch on a picket line, or the striker who 
deflated the tires of his employer's truck." Enmons, 410 U.S. at 410-11 ("Neither the language 
of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to 
work ... such an unprecedented incursion into the criminal jurisdiction of the States."). 
The same rationale applies here. The crime of engaging in underage criminal sexual 
activity (or underage prostitution) is traditionally considered within the State's historic police 
power. It is well-settled law that if Congress had wanted to f eralize such crimes, it needed to 
y 
say so with unmistakable clarity in § 2422(b). See, e.g., Will 
Michigan Dep't of State Police, 
491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the 'usual constitutional balance between 
in the language of the statute.") (quoting Atascadero State Hospital 
Scanlon, 473 U.S. 234, 
the States and the Federal Government,' it must make its intention to io so 'unmistakably clear 
242 (1985)); id. at 65 (Congress "should make its intention 'clear and manifest' if it intends to 
pre-empt the historic powers of the itates') (quoting Rice' Santa Fe Elevator Corp., 331 U.S. 
218 (1947)); see also United States 
Drury, 344 F.3d 1089, 1101 (11th Cir. 2003) (recognizing 
that in the absence of "unmistakably clear" language signaling Congress's intent to alter the 
federal-State balance, courts should interpret the statute in the manner "that does not impute an 
intention upon Congress to invoke its full commerce power to regulate conduct traditionally 
controlled by the States"). 
Needless to say, Congress did not say with unmistakable clarity in § 2422(b) that it 
wanted to federalize historically State crimes. Quite the opposite: Congress criminalized only 
"using" an interstate facility to "knowingly persuade" or "induce[]" a minor to engage in 
unlawful sexual activity. Again, the most natural reading of that language is that § 2422(b) 
creates a crime of communication across an interstate facility. That is why most of the reported 
prosecutions under § 2422(b) involve sting operations in which the criminal sexual activity never 
actually took place; it was enough that a defendant knowingly attempted to induce such behavior 
via the telephone or Internet. In any event, there is no sign in § 2422(b)—much less an 
unmistakable sign—that Congress intended to federalize a host of State crimes like underage 
solicitation or prostitution. 
The more narrow reading of § 2422(6) is consistent with the position recently articulated 
by the Department of Justice in a similar context. See November 9, 2007 DOJ letter to the 
Judiciary, at 8-9, Exhibit 15. In reviewing proposed changes to human trafficking statutes like 
22 U.S.C. § 2151, the DOJ opposed removing the requirement that a defendant have knowledge 
of a minor's age. The DOJ argued that eliminating the knowledge-of-age requirement would 
"run[] counter to the criminal law goal of punishing culpable states of mind" and would create an 
unusual strict liability crime with a harsh mandatory minimum sentence. Id. at 8, 1 17. 
Likewise, the DOJ opposed expanding the Mann Act to include cases "affecting" interstate 
commerce. It reasoned that federal law already adequately covers crimes in which victims have 
EFTA00225885

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Page 24 
While the Government apparently believes that there may be evidence that Mr. Epstein 
was told the ages of a small subset of the masseuses, there is no evidence that the other required 
elements of proof could be established—namely that the phone was used to induce sexual 
activity, rather than schedule a massage, and that at the time of the call, Mr. Epstein had the 
specific intent required to violate the statute (i.e. that he knew who the assistant was calling, that 
he authorized the assistant to persuade or induce or entice over the phone, that he had actual 
knowledge or belief that the person called was a minor, and that he was directing the call with 
the specific intent to have illegal sexual activities with the minor, as defined by Florida law). 
Again, the evidence here conclusively shows that any sexual activity that followed from a 
scheduled massage was in fact random, not part of a consistent pattern or practice, and resulted 
from the spontaneity of the post-telephone person-to-person contact that alone is subject to State 
prosecution. 
e. 
There Is No Evidence Of A Conspiracy. 
• 
• 
The requirements of § 2422 or the other two federal statutes for that matter, cannot be 
diluted or circumvented merely by resorting to a conspiracy charge. Conspiracies require a 
meeting of the minds of the essential elements of the criminal object which in this case would be 
a violation of §§ 2422(b), 2423(b), or 1591. Elements such as the use of the interstate facility to 
knowingly persuade, induce, entice, or coerce in § 2422(b), or the purpose to have illicit sex with 
a minor while engaged in interstate travel in 2423(b), see infra part II.C, are not jurisdictional 
hooks but instead are the essence of the federal crime. A conspiracy must include an agreement 
to each such element. These federalizing elements cannot be diminished or made irrelevant by 
resort to a conspiracy—they are the necessary object of any federal conspiratorial agreement and 
are unproven as to Mr. Epstein and equally unproven as anyone directly employed by him. 
f. 
There Is No Basis For A Prosecution Under 4 2422(b). 
Given all of this, there is no basis for prosecuting Mr. Epstein under § 2422(b). Mr. 
Epstein did not place telephone calls inviting underage women to his house. The vast majority 
of women who came to Mr. Epstein's house were 18 or over. Those who were under 18 were 
told to lie about their age and did. Mr. Epstein's assistant did not know that the women she 
called were in fact under 18. Mr. Epstein did not direct his assistant to use the phone to induce 
underage women to engage in illicit sexual activity with him. And Mr. Epstein's assistant did 
not use the phone to induce underage women to engage in illicit sexual activity with him. 
4. 
Clear Statement Rule 
To the extent there is any ambiguity about the statutory requirements, it should be 
resolved against a prosecution of Mr. Epstein. Under our federal system, the "States possess 
primary authority for defining and enforcing the criminal law." Brecht' Abrahamson, 507 U.S. 
619, 635 (1993). Accordingly, as the Supreme Court has stated, "[w]hen Congress criminalizes 
conduct already denounced as criminal by the States, it effects 
the sensitive relation 
between federal and state criminal jurisdiction."' United States 
514 U.S. 549, 561 n.3 
EFTA00225886

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Page 23 
• 
• 
examined. See Table of § 2422 Cases, Exhibit 28. A great majority of § 2422(b) cases are 
brought under the attempt theory where the charged defendants believed the target of their 
inducement was 18 but where they were in fact communicating with a law enforcement agent 
conducting a "sting" operation. In such cases, the intent element is proven by repeated explicit 
Internet communications evidencing both the defendant's belief of age (the nom► is for the 
"sting" to fabricate an age significantly under the statutory limit) and the defendant's 
unambiguous intent to engage in sexual intercourse, oral sex, or other conduct squarely within 
the heartland of "illegal sexual activities". Importantly, in these cases, the age of the victim is 
typically 14 or under. Further, the give and take of express communications in these cases 
(generally via e-mail, instant messenger, or postings in chatrooms) provide explicit proof of a 
knowing inducement, persuasion, enticement or more. These communications are replete with 
explicit sex talk, multiple explicit sexual propositions and specific sexual requests, making clear 
both the perpetrator's intention to induce as well as the illicit sexual activity intended to be 
induced. Most other non-sting cases feature explicit inducements, often the sending or receiving 
of graphic photos from which age can be readily deduced, and unambiguous references to 
targeted illegal sexual objectives. None of the reported decisions rest alone on communications 
by a third party aimed at "scheduling" or at inquiring whether someone is available to work at a 
specific time or on responsive messages merely communicating availability to work—i.e. give a 
massage—all without an express and knowing inducement, express evidence of knowledge of 
age, or any agreed objective of an illegal sexual activity as it is defined by Florida statute. 
The bottom line here is that there is no proof that any given call arranged for (or was 
intended to arrange for) sexual activity, and thus no proof that the phones were used to lure, 
induce, entice, persuade, or coerce someone to engage in such activity. Without a predicable 
pattern linking illegal sexual activity to each visit, there is no viable implication that any given 
communication was intended to yield sexual activity. And such an implication would in any 
event be contrary to fact, since all of the evidence in this case demonstrates that the decision to 
engage (or not engage) in sexual conduct was made on the spur-of-the-moment it was "solicited" 
during the face-to-face encounter rather than over the phone. 
d. 
There Is No Vicarious Liability. 
There is no evidentiary basis for initiating a prosecution based on calls made by Mr. 
Epstein's assistant: She did not know the women's ages, lacked knowledge that any criminal 
sexual activity was intended, and never used the phone to persuade or induce anyone to visit Mr. 
Epstein except for the purpose of providing a massage. Without these elements, Mr. Epstein's 
assistant cannot be proven to be a co-conspirator or abettor, and without evidence that Mr. 
Epstein specifically directed his assistant to call a specific witness who Mr. Epstein then knew to 
be under 18 and with whom Mr. Epstein at that time specifically intended to engage in a criminal 
sexual activity, Mr. Epstein cannot be held criminally liable for the phone calls made by his 
assistant. 
EFTA00225887

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Page 22 
• 
that the offense would be committed by a person other than one ready to commit it . . " 
Nevertheless, "evidence of the government's mere suggestion of a crime or initiation of contact 
is not enough ... Instead, ... inducement requires an element of persuasion or mild coercion... . 
[l]nducement coasts of opportunity plus something like excessive pressure or manipulation.. . 
." United States 
Brown, 43 F.3d 618, 625 (11th Cir.), cert. denied, 516 U.S.917 (1995). 
Likewise, a telephone call that merely initiates contact or sets up an opportunity for something 
inappropriate to occur, without pressure or manipulation, cannot amount to inducement. Nor can 
it amount to persuasion, enticement, or coercion, which are variations on the same theme. 
The theme that money was the implied inducement or enticement would also fail to meet 
the communication as crime element 
e variability of payments counter any sort of pattern. 
See Police Report at 78, Exhibit 17 I 
received amount of $100 per hour); 
Tr. at 10, 
Exhibit 25 (received amounts of $D I 
• 200); Thomas Tr. at 10, Exhibit 26 
ed $200); 
Gonzalez Tr. at 26, Exhibit 10, (received amounts of $300); ■ 
Tr. at 11, 20 (received amounts 
of $300, $400, $500 and $600). The fact that (i) the amounts given for massages were akin to set 
amounts for other persons (e.g., chiropractors and facialists who came to the house after 
receiving a similar call ("are you available") and (ii) payments were often decoupled from even a 
massage, see Hall Tr. at 15, Exhibit 19, and certainly from illegal sexual conduct, negates any 
notion that an enticement to have illegal sexual activity could be implied from the mere fact that 
Mr. Epstein and the masseuse each would expect there to be payment for a massage. Any 
additional agreement would occur, if at all, randomly, and only in person i.e. would not be 
known at the time of the communication in question. 
The requirement of a "knowing" 
inducement or enticement requires more. 
Neither mere solicitation nor the creation of 
opportunities to commit an offense comprises inducement. 
Rather, inducement refers to 
government c duct that persuades a person to turn "from a righteous path to an iniquitous one." 
United States I Gifford, 17 F.3d 462, 468 (15` Cir. 1994) (citations omitted). Inducement entails 
some semblar of "arm-twisting," pleading, or coercive tactics. See id. Florida law is similar. 
See Marreel 
State, 841 So.2d 600, 603 (Fla. App. 4th Dist. 2003) ("Inducement cannot be 
found by prompting or creating an opportunity: Neither mere solicitation nor the creation of 
opportunities to commit an offense comprises inducement.") 
In this case, there was no unwillingness at all. Young women who visited Mr. Epstein's 
home more than once did so willingly and of their own volition. Whatever activity these women 
engaged in while there was also entirely uninduced by any antecedent phone call. A compilation 
of messages from message pads seized by the State during a search of Mr. Epstein's Palm Beach 
property clearly reflects that if there was a regular pattern it was of women calling Mr. Epstein's 
home or his assistants to determine whether they could be scheduled to come to his residence to 
give a massage rather than providing evidence that Epstein's assistant would knowingly use the 
phone to induce or entice or persuade or coerce as required by § 2422(b). See Message Pad 
Entries, Exhibit 8. 
Additionally, any reliance on implication or routine would require a theory of criminal 
liability that stands in stark contrast to the heartland of the reported precedents we have 
EFTA00225888

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Page 21 
persuade, or coerce underage women to visit Mr. Epstein's home with the purpose of engaging in 
unlawful sexual activity. 
Instead, to the extent any unlawful sexual activity ever occurred—which we deny—it 
was solicited during a face-to-face encounter with Mr. Epstein at his house, after the massage 
had been scheduled. The masseuses' own testimony makes this clear. As many have stated: 
during the course of the massage Mr. Epstein would at times offer them additional money to 
engage in activity in which they had never previously engaged—some would accept and others 
would not, with Mr. Epstein invariably respecting the decisions made "on the scene" by the 
masseuse in question. But the prior telephone conversations simply involved determining when 
and if a masseuse was available to come to Mr. Epstein's residence—for a massage, and nothing 
else. In short, the testimony, evidence and facts do not make out the elements of a federal crime, 
i.e. the necessary showing that a scheduling call itself was specifically intended to produce 
sexual activity with a minor at the time of the call.9
• 
• 
Nor is it possible to prove that Mr. Epstein intended the scheduling calls to induce sexual 
activity based on the fact that sexual contact occurred during an earlier massage. The fact that a 
call may have preceded a visit by a young woman who had, on one or more previous occasions, 
engaged in activity of a sexual nature with Mr. Epstein is not sufficient to establish that the next 
call included a knowing attempt to "persuade[], induce[], entice[] or coerce[]." At most, such a 
call might be a link in a causal chain that may or may not end in proscribed sexual activity—but 
it cannot be characterized as an attempt to persuade, induce, entice or coerce. Those, after all, 
are verbs that suggest a level of unwillingness on the part of the person at the other end of the 
communication, and that certainly is not the case with respect to repeat visitors (many of whom 
contacted Mr. Epstein themselves about the possibility of a return visit). 
In any event, courts have repeatedly held (in the context of entrapment) that neither mere 
solicitation nor the creation of opportunities to commit an offense errises inducement, even if 
it creates a risk that an offense will occur. See, e.g., United States 
Sanchez-Berrios, 424 F.3d 
65, 76-77 (1st Cir. 2005), cert. denied, 546 U.S. 1125 (2006). The Eleventh Circuit has stated in 
entrapment cases that government inducement may be shown by a defendant's producing any 
evidence sufficient to raise a jury issue "that the government's conduct created a substantial risk 
9 
Section 2422(b) also requires that the objective of the interstate communication be "to engage in prostitution or 
any [illegal) sexual activity". The statute looks to State law for whether sexual activity is unlawful, which 
defines unlawful sexual activity as: "Oral, anal, or vaginal penetration by, or union with, the sexual organ of 
another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual 
organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide 
medical purposes." FL. Stat. &796.07(IXd). "Prostitution" as defined by Florida law requires "the giving or 
receiving of the body for sexual activity for hire", FL. Stat. &796.07(IXa). The prostitution offense is 
predicated on the definition of "sexual activity" cited above. It bears mentioning that masturbation, by itself, is 
not considered illegal sexual activity under Florida law. 
EFTA00225889

a, Page 20 
was sporadic and consensual. Id. at 16 ("just random things, but not sex"); Id. at 17 ("he would 
never make me do anything"); Id. at 17. 
Ms. 
met Mr. Epstein through 
See 
Tr. 
at 6, Exhibit 4. She went to Mr. Epstein's residence on one occasion, ut 
no communication 
of any sort with Mr. Epstein before going to his house, nor with any assistant or employee of Mr. 
Epstein. Id. at 5-7. She was never 
r. Epstein or anyone on his behalf after the 
massage. Id. at 15. She was told by 
, who drove her to Mr. Epstein's, to lie about 
her age—and she did. telling Mr. Epstein s e was 19. Id. at 16. There was no prior phone 
contact between Ms. 
and anyone associated with Mr. Epstein. 
• 
• 
ii. 
A Federal Case Cannot Proven With Circumstantial Evidence, 
Because Sexual Activity Did Not Invariably Follow The 
Scheduling Of A Massage Over The Phone. 
There is overwhelming evidence that the phone was not used to induce women to engage 
in sexual activity. Mr. Epstein did not knowingly engage in a routine or habit of sexual activity 
with minors, and therefore did not understand that the use of the phones was intended knowingly 
to induce minors to engage in prohibited conduct. Taped interviews from the State investigation 
demonstrate conclusively that there was no governing pattern or practice with respect to Mr. 
Epstein's massages. Sometimes the women were over 18, sometimes they were not; some visits 
resulted in massages, some did not; some massages were topless, some were not; sometimes Mr. 
Epstein masturbated during the massage, sometimes he did not; sometimes the massages would 
lead to other sexual activity, sometimes they did not. 
There is no pattern or practice evident here. When scheduling calls were made (by 
people other than Mr. Epstein), there is no evidence that Mr. Epstein had any knowledge of 
which masseuse had been scheduled; whether she was a minor; whether any massage would be 
given; and whether any sexual activity would occur. What happened during any massage 
depended entirely on face-to-face interaction with Mr. Epstein at the time, not on any prior 
telephone call or Internet communication. Indeed, many females testified that they visited Mr. 
Epstein's house and never even gave 'rage; 
many times, they simply watched television or 
sat by the pool or ate food. See, e.g., 
Tr. at 15, Exhibit 19 ("Sometimes...he would have to 
work and he'd be sitting at his desk or something and I'd just be naked there watching television 
or reading a book...sometimes he wanted to just watch TV or read...that's it, not touch him or 
anything and I'd get paid three hundred dollars...sometimes he'd just invite me over for 
breakfast or dinner, or just to use the swimming pool, and I'd get paid for that too...I'd get paid 
just to hang out with him. That's it."). 
Moreover, the evidence shows that Mr. Epstein's assistants scheduled everything in his 
life, from doctor's appointments and business meetings to haircuts, dinners, and massages. They 
knew no more about what would occur during a massage—or the real ages of the masseuses—
than they did about a sensitive business meeting. 
They were simply "schedulers" or 
"appointment makers," rather than knowing participants in a scheme to lure, induce, entice, 
EFTA00225890

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Page 19 
coerce a minor into sexual activity. Instead, the evidence in this case demonstrates that the use 
of the phone was entirely incidental to the conduct at issue in this case. Consider the following 
examples: 
• 
• 
• Ms. 
testified during her recent sworn deposition that she never 
had any Internet or telephone conversation with Mr. Epstein or any of his employees, and that 
she was not persuaded, induced, coerced, or enticed to o to Mr. Epstein's home as a result of 
any 
c or Internet communication. See 
Tr. (deposition) at 24-25, Exhibit 3. 
Ms. 
has been described by prosecutors as e ynchpin of their case but, according to 
her own testimony, she was brought to Mr. Epstein's house by 
and informed that 
the purpose of her visit was to give a massage; did not ever discuss any sexual activity with Mr. 
or persuaded to see Mr. Epstein over 
had no contact whatsoever with Mr. 
massages, but the p 
or coerce. See e.g., 
close in a sexual way 
Ms. 
guy." 
the phon 
with Ms. 
Id. at 10. Ms 
Epstein over the Internet or phone; and was neve 
the phone or Internet. Id. at 24-25. In fact, Ms. 
Epstein or any of his employees prior to arriving at pstein's residence. Id. at 29-30 Mr. 
Epstein never had any kind of conversation or communica 
 
s. 
before her 
single visit to his home, nor had he ever e-mailed Ms. 
or engag 
in Internet 
communication of any kind with her. Id. at 29. 
Ms. M, 
like Ms. 
was introduced to Mr. Epstein by a third 
person without any prior ph 
mmunications with Mr. Epstein or 
his employees 
preceding the first visit. See 
Tr. at 8, Exhibit 2. Afterward, it was 
who gave Mr. 
Epstein her number and said "any time you want me to give you a massage again, I'll be more 
than welcome to." Id. Mr. Epstein's assistant would thereafter call 
arding appointments. 
niiii 
Id. at 14. Seized message pads further reflect incoming calls from 
and others seeking to 
return to Mr. Epstein's residence. As to this group of women, not o y i 
ir Mr. Epstein not know 
their age, and not only was sexual activity not the predictable or routine outcome of the 
used at most to schedule, and never to persuade or induce or entice 
Tr. at 21, Exhibit 2 (she testifies that Mr. Epstein never pulled her 
Is. 
was introduced to Mr. Epstein by her friend 
that Mr. Epste 
ould pay for a massage and "that he was a 
.r
.
li
spec 
I 
ti 
Tr. at 5, Exhibit 5A. Ms. 
extended this offer to Ms. 
in person, not over 
temet. Id. at 6-7. Nei er 
r. Epstein nor anyone on is 
half communicated 
ail, or fax, or text messy 
or to her going to Mr. Epstein's residence. 
was 17 at the time, and Ms. 
told Ms. 
to lie about her age. Id. at 8 
("she told me to say that I was 
was ask 
. On one occasion, Ms. 
was asked her 
age and she lied. Id. at 9. Ms. 
was never forced or coerced to en a e in sexual activity 
with Mr. Epstein. Id. at 11-12. o ow-up visits were scheduled by 
who would call 
and "ask me if I would like to come over and give a massage, because e wou 
in town." Id. 
There was never a suggestion of any sexual objective during the call. Id. at 14-15. Ms. 
never spoke to Mr. Epstein over the phone, only Ms. 
or another assistant. Id. at 15. 
And she has testified that what occurred thereafter was not p armed or discussed in advance, but 
EFTA00225891