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did result, it was mainly self-pleasuring masturbation and not necessarily illegal, but spontaneous
and resulted from face-to-face conversations during the massage. Thus, the fact that Mr. Epstein
later may have persuaded any particular masseuse to engage in unlawful activity during the
massage does not work retroactively to render the earlier scheduling phone call an offense under
§ 2422(b). Nor is there any evidence that women who returned to Mr. Epstein’s home time and
again were somehow coerced or induced over a facility of interstate commerce to do so.
The first essential element of § 2422(b) that “[w]Jhoever, using the mail or any facility or
means of interstate or foreign commerce,” by its plain language, requires that the
communication, which is the essence of the crime and its actus reus, take place during the use of
the facility of interstate commerce (in this case, unlike the vast majority of Internet chat room
sting operations, a telephone). The statute is not ambiguous. It requires that the criminal
conduct occur while the defendant is “using” (i.e. engaged in the communication), not thereafter,
Given the utter lack of direct evidence against Mr. Epstein, prosecutors have signaled that
they intend to offer a purely circumstantial case if this matter proceeds to trial—essentially
arguing that “routine and habit” evidence could substitute for actual proof that an interstate
facility was used to solicit sex from minors. Thus, despite the fact that the calls themselves were
not made by Mr. Epstein and did not contain the necessary explicit communication to knowingly
induce minors to provide sexual favors for money, prosecutors are seeking to turn the phrase “are
you available”——-the same phrase used with friends, chiropractors, and trainers—into a ten-year
mandatory prison sentence. In any case, the prosecution’s attenuated argument regarding
“routine and habit” will also not fit the facts of this case. The witness testimony at issue makes
clear that there was no clear “routine or habit” with respect to the interactions at issue. And in
those unpredictable instances where sexual contact resulted, it was a product of what occurred
after the benign phone communication, not during the call itself.
The prosecution’s theory of liability—that a call to a person merely to schedule a visit to
the defendant’s residence followed by a decision made at the residence to engage in prohibited
sexual activity is sufficient—cannot survive either a “plain language” test or the rule of lenity as
they have been authoritatively construed in the recent Santos and Cuellar cases. The statute
cannot be read otherwise. As the Cuellar decision makes clear, a proper interpretation of a
federal criminal statute is guided “by the words of the operative statutory provision,” not by
outside objectives, such as those facilitating successful prosecution. See Cuellar, supra, Slip op.
at 7. As Justice Alito stated in his concurring opinion, the government must prove not just the
“effect” of the secretive transportation, but also that “petitioner knew that achieving one of these
effects was a design (i.e. purpose) of the transportation” of currency. Cuellar v. United States,
supra, 553 U.S., Slip op. At 1 (Alito, J. concurring). Similarly, it is not enough that one effect of
a communication scheduling a visit between Mr. Epstein and a minor was that there might be
subsequent face-to-face inducement. Instead, the statute, as drafted, defines the crime as the
communication and demands that far more be proven than that the use of an interstate facility
resulted in a later meeting where even an inducement (as opposed to a solicitation) was made.
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