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scope—not the local conduct that is alleged here—and each of these statutes requires proof of
the defendant’s actual knowledge that simply is not present in this case. Any attempt to stretch
the language of these statutes to cover this case would be a misuse of the law and contrary to
express legislative intent. In short, the elements under each federal statute—18 U.S.C. §§ 1591,
2422(b) and 2423(b}—are not satisfied here.
1. 18 U.S.C. § 2422(b)
18 U.S.C. § 2422(b) requires the government to prove beyond a reasonable doubt that the
defendant engaged in communications over an interstate facility (e.g., the Internet or phone) with
four concurrent intentions: (1) to knowingly (2) persuade, induce, entice or coerce, or attempt to
persuade, induce, entice, or coerce (3) a minor (4) to engage in prostitution or criminal sexual
activity for which the person can be charged. Mr. Epstein’s conduct does not satisfy the
elements of § 2422(b). Each element must be individually stretched, and then conflated in a
tenuous chain to encompass the alleged conduct with any individual woman.
As the statute makes clear, the essence of this crime is the communication itself—not the
resulting act. The Court of Appeals for the Eleventh Circuit, in Murrell, underscores the point:
The defendant in Bailey contended that attempt under § 2422(b) ‘requires the
specific intent to commit illegal sexual acts rather than just the intent to persuade
or solicit the minor victim to commit sexual acts.’ Jd. at 638. In response, the
court held ‘[w]hile it may be rare for there to be a separation between the intent to
persuade and the follow-up intent to perform the act after persuasion, they are two
clearly separate and different intents and the Congress has made a clear choice to
criminalize persuasion and the attempt to persuade, not the performance of the
sexual acts themselves. Hence, a conviction under the statute only requires a
finding that the defendant had an intent to persuade or to attempt to persuade.’
United States v. Murrell 368 F.3d 1283, 1287 (11th Cir. 2004) (citing United States v. Bailey,
228 F.3d 637, 638-39 (6th Cir.2000)). Thus, the targeted criminal conduct must occur through
the interstate facility, not thereafter, and the scienter element must be present at the time of the
call or Internet contact.
In this case, however, Mr. Epstein did not use an interstate facility to communicate any
illegal intention in this case; the phone calls were made by his assistants in the course of setting
up many other appointments. Neither a conspiracy charge nor a charge of aiding and abetting
can fulfill the mens rea requirement here. Indeed, neither Mr. Epstein nor his assistants knew
whether sexual activity would necessarily result from a scheduled massage. And certainly, no
such activity was ever discussed on the phone by either Mr. Epstein or his assistants. Instead, as
the record in this case makes clear, many appointments resulted in no illegal sexual activity, and
often, as confirmed by the masseuses’ own testimony, several individuals who were contacted by
phone visited Mr. Epstein’s house and did not perform a massage at all. Where sexual activity
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