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Mr. John Roth
June 19, 2008
Page 6
federal prosecution of Mr. Epstein would not be “improper or inappropriate” absent any review at all
of the misconduct here, and absent a full review of the facts and law. The facts, the law, and the
alleged misconduct are each necessarily inextricably intertwined with the question of whether or not
this is a viable federal prosecution. These imposed limits flawed the review from the outset. In any
event, CEOS concedes that the defense team makes “many compelling arguments.” (CEOS letter at
p. 5). Inthe end, then, one is left with the impression that the CEOS review and opinion, although
concluding that the USAO could push forward at its own discretion, is a much qualified one.
The federal prosecution of Mr. Epstein has been a moving target from the inception, Each
time the allegations, the witnesses or the applicable law is subject to a searching inquiry, we have
found that the allegations have been misrepresented, the law does not apply to the actual facts here,
and the USAO prosecution theory falls apart. Yet, in the face of the voluminous evidence we have
submitted in this regard, while acknowledging that the theories are “novel,” and that our arguments
against federal prosecution are “compelling,” CEOS concluded, “Mr. Acosta could rightfully
conclude that this federal issue is best resolved by ajury” and that “the USAO has a good faith basis
to fully develop the facts on this issue and brief the law to permit a court to decide whether the law
appropriately reaches such conduct.” With all due respect, and recognizing that CEOS may be—and
apparently was — limited in its authority, it should not be the prerogative of the prosecution arm of
the United States government to simply roll the dice, and let the court system just sort it out when
dealing with the life and liberty of a United States citizen. The Department of Justice should not be
so cavalier when labeling someone as a child molester. While it may be within the discretion of the
USAO to do so, it is not in accord with the principles of justice.
Indeed, as noted, just a few weeks ago, the Supreme Court underscored this point in Santos
and Cuellar. The Court made clear that prosecutorial discretion does not provide the USAO cart
blanche to expand criminal statutes as they seek to do here with complete disregard for congressional
intent. The Court rejected speculation as a basis of determining the scope of a criminal statute;
“probability is not a guide which a court, in construing a penal statute, can safely take.” Slip op. at 7,
quoting United States v. Wiltberger, 5 Wheat. 76,105 (1820). “We interpret ambiguous criminal
statutes in favor of defendants, not prosecutors.” Slip op. at 12.
Based on my experience, I believe that the facts here do not warrant a federal child
exploitation prosecution. At its core, this case is quintessentially a state concern as opposed to
implicating any federal interest. Indeed, the Florida State Attorney’s Office (“SAO”), led by the
chief of the Sex Crimes Division, thoroughly investigated this matter, and presented it to the grand
jury. The facts, as opposed to the deeply flawed press reports, were carefully assessed by
experienced State prosecutors who aggressively enforce State criminal laws. Following an extensive
15-month State investigation, Mr. Epstein was indicted by a State grand jury ona single felony count
of solicitation of prostitution.
During the investigation, the State prosecutor exhaustively reviewed the evidence, met face-
to-face with many of the alleged victims, considered their credibility — or lack thereof — and
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