Text extracted via OCR from the original document. May contain errors from the scanning process.
Mr. John Roth
June 19, 2008
Page 11
aid tell him you’re 18 because if you’re not, he won’t let you in his house.
So I said I was 18. As I was giving him a massage, he was like how old are you.
And then I was like 18. But I kind of said it really fast because I didn’t want to make
it sound like I was lying or anything. EM at 38-39.
Thus, consistent with the guidance provided in Franks v. Delaware, 438 U.S. 154 (1978), the
search warrant affidavit in this case reveals knowing and reckless falsehoods and omitted material
information. This is precisely the type the United States Supreme Court sought to guard against.
The age of the alleged victims, and of Mr. Epstein’s intent in that regard, is an element of the
crimes that must be proven in order to sustain a conviction. In particular, § 2422(b) requires that the
defendant specifically intended to target a minor. See, e.g., United States v. Murrell, 368 F.3d 1286
qi" Cir. 2004) (“[T]o prove an attempt the government must first prove that [defendant], using the
internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to engage in
unlawful sex.”) (Emphasis added). Section 2422(b) expressly requires that the crime be committed
“knowingly,” and that requisite mental element applies as to each element of the crime. United
States v. XCitement Video, Inc., 513 U.S. 64, 68-69 (1994); United States v. Meek, 366 F.3d 705,
718 (9" Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11™ Cir. 2002); United States v.
Bailey, 228 F.3d 637, 638-639 (6" Cir. 2000). How, then, could the USAO “plausibly argue” that a
misrepresentation about an element of the crime could be viewed as “not material”? If the elements
of the alleged crime are not met, there is no probable cause to sustain the search warrant in the first
instance. If the elements are not met, there is no federal crime. That is material.
Moreover, it is clear from the plaint text of the statute that the statutorily proscribed act
pursuant to 18 U.S.C. §2422(b) is the actual use of a facility of interstate commerce to persuade,
entice, induce, or coerce. “The underlying criminal conduct Congress expressly proscribed in passing
§2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act
itself. That is, ifa person persuaded a minor to engage in sexual conduct (e.g., with himself or a third
party) without then committing any sex act himself, he would nevertheless violate §2422(b).” United
States v. Murrell, 368 F.3d 1283, 1286 (11" Cir. 2004). See also, United States v. Bailey, 228 F.3d
637, 639 (6" Cir. 2000) (“Congress has made a clear choice to criminalize persuasion and the
attempt to persuade, not the performance of the sexual acts themselves.”). Thus, if there has been
sexual misconduct (which we deny) without the requisite persuasion, there is no violation of this
federal law.
The investigation and testimony in this case makes clear that Mr. Epstein did not use any
facility of interstate commerce to commit any act forbidden by 18 U.S.C. § 2422(b)—to persuade,
induce, entice, coerce—nor did he direct any of his assistants to do so. Indeed, by way of example,
as Clear on this point at her deposition during which she repeatedly testified that
nobody—not Mr. Epstein or any of his assistants—ever used the Internet or phone in any way to try
to persuade her to engage in sexual activity with Mr. Epstein ME (deposition) at 31-32.
Nonetheless, even assuming, arguendo, that persuasion to engage in sexual conduct occurred over
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