Jay P. talkoostr: P.C.

• • • Jay P. talkoostr: P.C. To Ci iic13/ lefkowazN k la pnd.com VIA E-MAIL KIRKLAND & ELLIS LLP ANC APPILIMID PA RTNUSHIPS Citigroup Cant 153 Ent 53rd Stem New York. New Yong 10022-4611 It Alexander Acosta United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Dear Alex: Facaimaa: mint kirklancl.cOM Dlr. Fax: ConfidentlaL For Settlement Purposes Only, Pursuant to Rule 408. October 10, 2007 Re: Jeffrey Epstein I write as' follow up to our conversation yesterday regarding the open issues that remain Si stein matter. As you are aware, we continue to have serious disagreements with Ms. regarding the nature of the settlement process for identified individuals' § 2255 claims. Legal representation in' lawsuit was never contemplated by the Federal Plea Agreement (the "Agreement"). Over the course of the negotiations of the Agreement, the parties worked diligently to create an alternative dispute resolution for those identified individuals seeking' civil remedy for the conduct at issue, in an effort to avoid long drawn out disputes over liability in public adversarial litigations. Initially, we proposed that Mr. Epstein create' trust whereby' trustee would be appointed by the Circuit Court to disperse the funds to the identified individuals based on' good faith showing of injury. In response, Ms. proposed the appointment of I guardian ad litem to represent the identified individuals, not an attorney, which suggests that litigation was never contemplated by either party. Ultimately, the parties agreed to Paragraphs 7 and 8 of the Agreement, which allow for' single attorney representative to settle the claims of the identified individuals and create' procedural alternative to public adversarial litigation. In keeping with the parties' understanding of Paragraphs 7 and 8, you should know that we are in agreement with your choice of Judge Edward Davis, but we believe Judge Davis should act as the attorney representative to settle claims pursuant to the Agreement and the parties' longstanding understanding of the settlement process. Because the process we have agreed to does not contemplate litigation with respect to the attorney representative, Judge Davis can work to negotiate settlements with the identified individuals without further involvement by the government or its agents. Below, I've outlined our main areas of concern with the approach Ms. Chicago Hong Kong London Los Angeles Munich San Francisco Washington. D.C. RFP MIA 000001 EFTA00209047 ConfidentiaL For Settlement Purposes Only, Pursuant to Rule 408. • • • R. Alexander Acosta October I0, 2007 Page 2 has taken regarding the role of the attorney representative and the settlement process for § 2255 claims pursuant to Paragraphs 7 and 8 of the Agreement. First Issue: The Settlement Process and the Role of the Attorney Representative. The settlement procedure we propose, and which we believe is made clear by the Agreement, is reasonable and consistent with the intention of the parties: the attorney representative will represent the identified individuals provided they opt to enter into' settlement agreement with Mr. Epstein with respect to their § 2255 claims. The attorney representative will negotiate' total settlement amount with Mr. Epstein. Once the United States has formally declined to prosecute Mr. Epstein in this matter, and each identified individual electing to settle has waived her right to pursue any other claims against Mr. Epstein, the attorney representative will distribute the roceeds in the manner he sees fit. If the identified individuals cannot settle or opt not to settle on I damages amount with Mr. Epstein, then the attorney representative may not continue his representation and is barred from filing lawsuits pursuant to § 2255 and the identified individuals would not be suing under § 2255 as contemplated by Paragraph 8. Based on the specific language in the contract and the intent of both parties, we believe that the Agreement clearly provides that the identified individuals may opt to make use of the attorney representative so long as they can reach' settlement agreement with Mr. Epstein. If the parties cannot settle on' damages amount with Mr. Epstein, then the attorney representative may not continue his representation and is barred from filing lawsuits pursuant to § 2255. The provisions of the Agreement make clear that the role of the attorney representative is limited to settling claims brought by identified individuals pursuant to the Agreement. While Paragraph 7 defines who may be represented by the attorney representative, Paragraph 8 outlines the scope of that representation. Paragraph 7 states: The United States shall provide Epstein's attorneys with' list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and has been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. Under Paragraph 8 of the Agreement, which provides the terms of the representation, the attorney representative is only appointed to protect the interests of those identified individuals who elect to waive any claim for damages other than the damages agreed to by the parties. Paragraph 8 states: If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255. Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over this person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the RIP MIA 000002 EFTA00209048 Confidential. For Settlement Purpose, Only, Punuani to Rule 408. • • • R. Alexander Acosta October 10, 2007 Page 3 identified individual and Epstein, so long as the identified individual elects to proceed exclusively under IS U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. Paragraph 8 addresses how Mr. Epstcin's waivers are triggered pursuant to' settlement with each identified individual. Paragraph 8 is clear that Mr. Epstein will only waive § 2255 liability "so long as" each identified individual proceeds exclusively under § 2255 and agrees to waive damages other than "an amount as agreed to between the identified individual and Epstein." The Agreement's silence with respect to what happens if the partics cannot settle on' damages amount indicates that the parties intended for the scope of the attorney representative's representation to be limited to settling claims with Mr. Epstein, not representing these identified individuals in § 2255 lawsuits. Ms. , however, insists that the attorney representative's duties include pursuing' lawsuit under § 2255 on behalf of each identified individual in the event that settlement talks are unsuccessful. This interpretation is incorrect because Ms. ignores Paragraph 8, which limits the scope of the attorney representative's representation. The longstanding intention of the parties is also consistent with our interpretation of the i greement based on prior iterations of the Agreement, which only refer to appointing' trustee or uardian ad litem to protect the interests of the identified individuals. Thus, legal representation in I lawsuit was never contemplated under the Agreement. Also, Mr. Epstein's agreement to pay the attorney representative's fees reaffirms that the parties never intended for the attorney repaesentative to bring lawsuits. § 2255 includes' provision for attornc 's fees, but only if there is I monetary recovery. If the Agreement contemplates, as Ms. suggests, that the attorney representative could file suit on behalf of each identified individual, Mr. Epstein would never have agreed to pay attorneys fees for those that being suit and lose. It is clear that Mr. Epstein agreed to pay the attorney representative's fees because he assumed that each identified individual represented by the attorney representative would recover something by settling on their respective damages claim. Ms. interpretation of the Agreement would also trigger profound ethical problems due to the conflicts of interests that would arise. For instance, if Mr. Epstein agrees to pay for the attorney representative's fees and monthly expenses in any potentially litigated matter, then the attorney representative would effectively be inccntivized to reject settlement under § 2255 in an effort to draw out the lawsuits and incur more fees. If the lawyer were allowed to represent the identified individuals in' lawsuit, the best interests of each identified individual might not be served, because the attorney representative will always he more interested in pursuing lawsuits in lieu of settling claims against Mr. Epstein efficiently and fairly. This conflict RIP MIA 000003 EFTA00209049 ContidestiaL For Settlement Purposes Only, Pursuant to Rule 40S. • • • FL Alexander Acosta October 10, 2007 Page 4 could compromise the attorney representative's duty of loyalty. See ABA Annotated Model Rules of Professional Conduct, Rule 1.8(f) (1 lawyer shall not accept compensation for representing' client from one other than the client unless... there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship"). And Mr. Epstein would essentially be paying the attorney representative to sue himself. Such' result is inappropriate and unconscionable. The attomej representative will face other conflicts as well. M general matter, multiple representation of I group of individuals that elects to settle on damages as well as one or more individuals who reject settlement carries with it the heightened potential for irreparable conflicts. For example, the ethics rules preclude an attorney from simultaneously representing parties that are likely to end up in conflict. See ABA Annotated Model Rules of Professional Conduct, Rule 1.7 (1 lawyer shall not represent' client if...there is' significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, former client or' third person or by' personal interest of the lawyer."). Here, I can imagine case where one of the identified individuals is called as' witness by Mr. Epstein to dispute an allegation by another identified individual who is' party to the case. The attorney representative would have to cross examine the witness, who is also his client. In another scenario, the attorney representative may receive privileged information from one identified individual, which precludes him from using that information with respect to another identified individual. In each scenario, the attorney representative will be simultaneously representing panics that may be in conflict, in violation of Rule 1.7. For these reasons, we believe that Ms. interpretation of the Agreement in connection with the attorney representative's role in the settlement process must be rejected. Second Issue: Waiver of Liability. Ms. incorrectly alleges that Mr. Epstein has waived liability even when claims are not settled. Pursuant to the Agreement, if the identified individuals choose not to settle with Mr. Epstein, he will not waive liability for those individuals whose claims are not settled by the attorney representative. Paragraph 8 is clear that Mr. Epstein will only waive § 2255 liability so long as each identified individual proceeds exclusively under § 2255 and agrees to waive damages other than "an amount as agreed to between the identified individual and Epstein." (Paragraph 8, Agreement) Consequently, those identified individuals who choose not to settle with Mr. Epstein are not covered by the terms of the Agreement and will have to prove, among other things, that they are victims under the enumerated statutes. Tbird Issue: Communication to Identified Individuals. 'Ms. proposes that either she or federal agents will speak with the identified individuals regarding the settlement process. We do not think it is the government's place to be co-counsel to the identified individuals, nor should the FBI be their personal investigators. Neither federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the RFP MIA 000004 EFTA00209050 Confidential. For Settlement Purposes Only, Pursuant to Rule 408. • • • R. Alexander Acosta October 10, 2007 Page 5 case, including appointment of the attorney representative and the settlement process. Not only would that violate the confidentiality of the Agreement. but Mr. Epstein also will have no control over what is communicated to the identified individuals at this most critical stage. We believe it is essential that we participate in crafting' mutually acceptable communication to the identified individuals. We further believe that communications between your Office or your case agents and the identified individuals might well violate Rule 6(eX2XFI) of the Federal Rules of Criminal Procedure. The powers of the federal grand jury should not, even in appearance, be utilized to advance the interests of party to' civil lawsuit. We propose that the following joint communication be made to Judge Davis, who will act as the attorney representative and communicate accordingly with the identified individuals: As counsel for the United States of America and Jeffrey Epstein, we jointly write to you to provide information relevant to your services as the attorney representative to represent certain identified individuals who may have' civil claim against Mr. Epstein. The United States has conducted an investigation of Mr. Epstein regarding his solicitation of females, some of whom the government alleges were underage, to engage in prostitution in his Palm Beach County home. Based on this investigation, the United States has identified certain individuals who may be eligible to seek' civil remedy against Mr. Epstein pursuant to 18 U.S.C. § 2255. The United States and Mr. Epstein have agreed to' resolution of this investigation. As part of the resolution of this matter, the parties have agreed to I settlement process for these identified individuals. The parties agree that you will contact each identified individual and explain the nature of the resolution of this matter, including the settlement process, in accordance with' joint communication drafted by the United States and Mr. Epstein. The parties further agree that you will interview each identified individual to confirm that they have' viable claim against Mr. Epstein pursuant to 18 U.S.C. § 2255. Pursuant to the resolution of this matter, you will represent only those identified individuals who elect to settle their claims with Mr. Epstein, and your duties will be limited to negotiating' settlement on the identified individuals' behalf and dispersing the settlement proceeds. Mr. Epstein has agreed that he will not contest jurisdiction in the Southern District of Florida, and he will not contest liability pursuant to 18 U.S.C. § 2255 for those identified individuals who elect to settle all potential claims against him regarding this matter. Mr. Epstein has also agreed to pay reasonable attorney's fees and expenses that you incur as' result of settlement negotiations and settlement administration of this matter. RIP MIA 000005 EFTA00209051 Confidential. For Settlement Purposes Only, Pursuant to Rule 408. • • • R. Alexander Acosta October 10, 2007 Page 6 To settle these claims, the parties agree that you will negotiate' total settlement amount with Mr. Epstein for each identified individual who elects to settle. After the United States formally declines to initiate any prosecution against Mr. Epstein related to this matter and each identified individual you represent executes I waiver of all rights to pursue any litigation regarding this matter, you may then distribute the proceeds from the total settlement amount to the identified individuals in the manner you see fit. For those identified individuals who elect not to settle their claims, Mr. Epstein will not waive his right to contest jurisdiction, liability or damages. Furthermore, Mr. Epstein will not pay for their attorney's fees or expenses, and you may not represent these individuals in any capacity. Each of these individuals will be responsible for finding, hiring and paying for her own attorney. The details regarding the United State's investigation of this matter and its resolution with Mr. Epstein is confidential. You may not make public statements regarding this matter. If you have any questions regarding this matter, including the settlement process, you must contact Mr. Epstein's counsel and request a joint clarification from said counsel and the United States. You should not contact the United States directly. The parties will make every effort to answer your questions via 'joint communication. Alex, as you know, when Mr. Epstein signed the Agreement, he did so in order to reach finality with your Office and with the express representation that the federal investigation against him would cease. To that end, I would like your assurance that after you and I agree to the issues raised in this letter, that it will be the end of the United States' involvement barring' willful breech of the Agreement. Specifically, the government or any of its agents will not make any further communications to the identified individuals and will not make any ex parte communications with Judge Davis. I look forward to resolving these open issues with you during our 4:30 call today. Sincerely, P. Lefkowitz RFP MIA 000006 EFTA00209052 • • • Jay P. Lefkowitz, P C. To all Writer 'really. lelkovatzektrktand com VIA E-MAIL KIRKLAND & ELLIS LLP AND AIDIJAILD PART-Iv:U.5MP, Mora) Center 753 East 53rd Street New York, New York 10022-1811 www.kirkland.corn November 29, 2007 R. Alexander Acosta United States Attorney's Office Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Jeffrey Epstein Dear Alex: Facsimile: I am responding to the draft letter-Marie-MI to me last night, which purports to be' letter that you would sign and send to each of the individuals whom you have not even identified to us, and about whom the government has made clear it "takes no position" as to the validity of potential claims that these individuals may have against Mr. Epstein. I cannot reconcile your commitment to "take no position" regarding these potential claims with your intention to sign such' letter, which will surely find its way almost immediately into the press, refers to these individuals as "minor victims," refers to Mr. Epstein as' "sexual predator," misstates the terms of our federal non-prosecution agreement (the "Agreement"), and invites federal witnesses to attend Mr. Epstein's state sentencing in order to give victim impact statements, although they are in most respects not state victims at all. More fundamentally, we don't understand the basis for your Office's belief that it is appropriate for any letter to be . to these individuals at this stage — before Mr. Epstein has either entered I plea or been sentenced. We respectfully disagree with your view that you are required to noufy the alleged victims pursuant to the Justice for All Act of 2004. First, 18 U.S.C. § 2255, the relevant statute under the Agreement for the settlement of civil remedies, does not have any connection to the J tice for All Act. The Justice for All Act refers to restitution, and § 2255 is' civil remedy, not I restitution statute. We also believe that the draft letter could not diverge more dramatically from your statement last week that your Office would not intervene in the state process from this point forward, and that you would merely monitor it. Indeed, the letter as currently drafted invites ! federal witnesses to become participants in state proceeding, thus federalizingithe state plea and sentencing in the same manner as woul the appearance and statements of I member of your Office or the FBI. Chicago Hong Kong London Los Angeles Munich San Francisco Washington, D.C. RFP MIA 000007 EFTA00209053 KIRKLAND & ELLIS LLP R. Alexander Acosta November 29, 2007 Page 2 With that said, I respectfully identify below the specific objections we have with the proposed letter. First, it states that "Mr. Epstein has agreed that be will not contest jurisdiction or liability if [the alleged victims] elect to seek damages from him ..." This language implies that Mr. Epstein has agreed to concede jurisdiction and has waived liability whether or not each individual identified by the government as' "victim" of federal crimes ultimately settles her claim pursuant to the Agreement. The letter as drafted invites the witnesses to whom it is. to believe that they can litigate their claims without Mr. Epstein being able to contest jurisdiction or liability —' construction of the Agreement that is in direct conflict with its terms. The Agreement we entered makes clear that Mr. Epstein's waiver of jurisdiction and liability is limited to those instances where the identified individual settles with him pursuant to Sections 7 through 8 of the Agreement and Addendum. As you are well aware, Mr. Epstein has no obligation or intention to concede jurisdiction or liability in any claim for damages - by an enumerated "victim" or anyone else — where that party fails to settle her claims pursuant to the terms of the Agreement. Second, there is no basis to refer to Mr. Epstein as "sexual predator." Pursuant to the terms of the Agreement, Mr. Epstein will be required to register as I "sexual offender," not' "sexual predator." Those are very different categories under Florida law. Mr. Epstein has agreed to enter' plea of guilty to two counts of violation of Florida Statutes §§ 796.03 and 796.07. Under Florida law, those charges do not classify him as' sexual predator. See Florida Statute § 775.21(44. Rather, he is only' sexual offender as defined by Florida Statute § 943.0435(14. To identify Mr. Epstein as' sexual predator, in this letter or elsewhere, is inaccurate and would irreparably harm him. Third, we find no basis in law that provides the identified individuals with either I right to appear at Mr. Epstein's plea and sentence, or to submit' written statement to be filed by the State Attorney. According to Florida Statutes §§ 960.001(k) and 921.143(1), the sentencing court permits only "the victim of the crime for which the defendant is being sentenced . . . to tljppear before the sentencing court for the purpose of making I statement under oath for the record; and (slubmit I written statement under oath to the office of the state attorney, which statement shall be filed with the sentencing court." Florida Statute § 960.001(k) citing § 921.143(1) (emphasis added). Here, Mr. Epstein is pleading guilty to, and being sentenced for, state offenses, not the federal offenses under which the government has recognized these identified individuals as "victims." The state charges for which Mr. Epstein will be sentenced are not coextensive with the federal investigation. Under Florida law, only those perso identified as victims of the state offenses may make' statement at the hearing or submit written statement. RFP MIA 000008 EFTA00209054 • • • KIRKLAND & ELLIS LLP R. Alexander Acosta November 29, 2007 Page 3 With respect, encouraging these individuals to participate in the state sentencing will have the effect of creating' media frenzy that will surely impact the sentence Mr. Epstein receives — precisely what your Office promised to avoid. Such an intrusion into state affairs, when the identified individuals are not even victims of the crime for which Mr. Epstein is being sentenced is highly inappropriate. The federal investigation of Mr. Epstein has been concluded, and witnesses or civil claimants identified as purported victims of federal offenses have no place in the state proceeding. We also think it will likely promote spurious civil litigation against Mr. Epstein,' result that would be highly irresponsible to encourage. Fourth, we take serious issue with the assertion in the letter that the government has identified each recipient of the letter as' "minor victim." The term "minor victim" is notably absent from the Agreement. Section 7 of the Agreement states only that the government will provide' list of individuals "whom it has identified as victims, as defined in 18 U.S.C. § 2255." Indeed, you have told us that at least one identified individual is currently 24 years old, and thus would appear not to have been' minor at the time of the alleged conduct (and therefore is presumably not elisible to settle her claims under the Agreement). To confer on these women the imprimatur of government "finding" is both incendiary and unwarranted. Fifth, your letter mischaracterizes the nature of Mr. Epstein's liability under the 18 U.S.C. § 2255 provisions of the Agreement. Your letter states that every individual who receives the letter is I victim of "certain offenses, including travel in interstate commerce to engage in prostitution with minors and the use of facilities of interstate commerce to induce minors to engage in prostitution." This construction implies that these individuals are all victims of both offenses (travel in interstate commerce to engage in prostitution with minors and the use of facilities of interstate commerce to induce minors to engage in prostitution.) Clearly that is not the case. Consequently, the language should be revised to reflect that the identified individuals may be victims of certain offenses, but not necessarily both offenses. Additionally, for the sake of fairness and candor, we believe the same language contained in your letter to Judge Davis, stating that Itibe United States takes no position as to the validity of any such claim under this statute," should be included in any proposed letter. Sixth, your letter states that Mr. Podhurst and Mr. Josefsberg may "represent" the identified individuals. Since we have not yet had the opportunity to speak with Mr. Podhurst or Mr. Josefsberg (though we hope to do so this week), we do not know that they will even r to serve in this capacity. Since I believe the role you are casting for these attorneys creates significant ethical problem, specifically the conflict between counseling the clients to settle for the statutory amount and rewarding the attorneys for litigating rather than settling their claims, I would not assume that they, or any ethical attorney, would agree to accept this assignment as you define it. Whether that will mean that other attorneys will have to be sought, or you will realize that the role is untenable as described, either result will require modification of the letter. RFP MIA 000009 EFTA00209055 KIRKLAND & ELLIS LLP It Alexander Acosta November 29, 2007 Pagc 4 Seventh, the identified individuals should not contact lawyers in your Office or agents of the FBI. To encourage these individuals to contact federal law enforcement officials is entirely inconsistent with your promise that there will be no further federal involvement in this case. Moreover, such contact can only invite the possibility for impermissible or partial communications. Recently, you asked the defense not to contact potential witnesses in this matter in part because the Agreement contemplated the selection of an attorney representative. For the same reason there should be no continuing invitation for the witnesses to remain in contact with either your Office or the FBI. Any questions these individuals may have regarding their rights under the Agreement should be answered by Judge Davis or the attorney representative. Eighth, this letter should be mailed rather than delivered by hand. We see no reason for hand delivery, and mailing will ensure that there are no impermissible or partial communications made to the identified individuals upon delivery of the letter. If our Office insists on hand delivery of any such letter, however, it should only be made by I third party service, not by law enforcement agents. Finally, as you know, Judge Starr has requested' meeting with Assistant Attorney General Fisher to address what we believe is the unprecedented nature of the § 2255 component of the Agreement. We are hopeful that this meeting will take place as early as next week. Accordingly, we respectfully request that we postpone our discussion of sending' letter to the alleged victims until after that meeting. We strongly believe that rushing to send any letter out this week is not the wisest manna in which to proceed. Given that Mr. Epstein will not even enter his plea for another few weeks, time is clearly not of the essence regarding any notification to the identified individuals. Sincerely, itz RFP MIA 000010 EFTA00209056 •' • U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave.. Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Facsimile: (561) 820-8777 November 29, 2007 DELIVERY BY UNITED STATES MAIL Miss Re: Crime Victims' Rights — Notification of Resolution of Epstein Investigation Dear Miss Several months ago, I provided you with' letter notifying you of your rights as' victim pursuant to the Justice for All Act of 2004 and other federal legislation, including: (4) (5) (6) (7) (8) The right to be reasonably protected from the accused. The right to reasonable, accurate, and timely notice of any public court proceeding involving the crime or of any release or escape of the accused. The right not to be excluded from any public court proceeding, unless the court determines that your testimony may be materially altered if you are present for other portions of proceeding. The right to be reasonably heard at any public proceeding in the district court involving release, plea, or sentencing. The reasonable right to confer with the attorney for the United States in the case. The right to full and timely restitution as provided in law. The right to proceedings free from unreasonable delay. The right to be treated with fairness and with respect for the victim's dignity and privacy. I am writing to inform you that the federal investigation of Jeffrey Epstein has been completed, and that Mr. Epstein and the U.S. Attorney's Office have reached an agreement containing the following terms. First, Mr. Epstein agrees that he will plead guilty to two state offenses, including the offense of soliciting minors to engage in prostitution, which will require him to register as' sexual offender for the remainder of his life. RFP MIA 000011 EFTA00209057 •! • • MISS NOVEMBER 29, 2007 PAGE 2 Second, Mr. Epstein has agreed to make' binding recommendation of 18 months' imprisonment to the state court judge who sentences him. Mr. Epstein will serve that sentence of imprisonment at the Palm Beach County Jail. Third, Mr. Epstein has agreed that he will compensate you for damages you have suffered, under the following circumstances. That portion of the agreement that relates to those claims reads as follows: 7. The United States shall provide Epstein's attorneys with' list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. 8. If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or' waiver of any jurisdictional or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255, as set forth in paragraph (8), supra, neither Epstein's RFP MIA 000012 EFTA00209058 MISS NOVEMBER 29, 2007 PAGE 3 signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein arc to be construed as admissions or evidence of civil or criminal liability or I waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the I ist provided by the United States. Pursuant to the terms of the agreement and an addendum, to assist you in making such' claim, the U.S. Attorney's Office has asked an independent Special Master to select attorneys to represent you. Those attorneys are Aaron Podhurst and Robert ("Bob") Josefsberg with the law firm of Podhurst Orseck, ■. They can be reached at (305) 358-2800. I anticipate that someone from their law firm will be contacting you shortly. I must also advise you that you arc not obligated to use these attorneys. In fact you have the absolute right to select your own attorney, so you can decide not to meat with Messrs. Podhurst/Josefsberg at all, or you can speak with them and decide at any time to use different attorney. If you do decide to seek damages from Mr. Epstein and you decide to use Messrs. Podhurst/Josefsberg as your attorneys, Mr. Epstein will be responsible for paying attorney's fees incurred during the time spent trying to negotiate I settlement. If you arc unable to reach' settlement with Mr. Epstein, you and Mr. Josefsberg can discuss how best to proceed. As I mentioned above, as part of the resolution of the federal investigation, Mr. Epstein has agreed to plead guilty to state charges. Mr. Epstein's change of plea and sentencing will occur on December 14, 2007, at ■., before Judge Sandra K. McSorley, in Courtroom 11F at the Palm Beach County Courthouse, 205 North Dixie Highway, West Palm Beach, Florida. Pursuant to Florida Statutes Sections 960.001(1Xk) and 921.143(1) you are entitled to be present and to make 'statement under oath. If you choose, you can submit I written statement under oath, which may be filed by the State Attorney's Office on your behalf. If you elect to prepare' written statement, it should address the following: the facts of the case and the extent of any harm, including social, psychological, or physical harm, financial losses, loss of earnings directly or indirectly resulting from the crime for which the defendant is being sentenced, and any matter relevant to an appropriate disposition and sentence. Fl. Stat. 921.143(2). You also are entitled to notification when Mr. Epstein is released from imprisonment at the end of his prison term and/or if he is allowed to participate in' work release program. To receive such notification, please provide the State Attorney's Office with the following information: 1. Your name 2. Your address 3. Your home, work, and/or cell phone numbers 4. Your e-mail address 5. I notation of whether you would like to participate in the "VINE system," which RFP MIA 000013 EFTA00209059 • • MISS NOVEMBER 29, 2007 PAGE 4 provides automated notification calls any time an inmate is moved. (To use this system, your calls must go to you directly, not through' switchboard.) Thank you for all of your help during the course of the investigation. If you have an questions or concerns, please do not hesitate to contact me or Special Agent Nesbitt at (561) 822-5946. By: Sincerely, R. Alexander Acosta United States Attorney Assistant United States Attorney cc: Special Agent Nesbitt F.B.I. Ms. Clearetha Wright, Victim-Witness Coordinator, U.S. Attorney's Office RFP MIA 000014 EFTA00209060 At/S00/VI AIM 14:0W P41* 1 613 660 6000 KIRKLANIMELLIS LLR "002 KIRKLAND & ELLIS LLP AMC, APPLATID INWILRSHIPS 777 South Figueroa Sheet Los Angeles. CaHemel 90017 Kenneth W Stun To Call Writer Only. (213) 6804440 kstarreitaltleideorn VIA FACSIMILE (305) 530-64.44 Honorable R. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Re: Jeffrey Epstein Dear Alex: (213) 680-8400 wwiekirklandtorn December 5, 2007 Facsimile . 1213) 680-8500 We are in receipt of your letter faxed to lay on December 4 and faxed to Ken today in Los Angeles, and write to inform you that we will respond in full to that letter no later than Friday, December 7. We take this opportunity to address I few of the initial issues. First and foremost., we reaffirm the Nor. Prc,stcution Agreement (the "Agreement"). Mr. Epstein has no intention of unwinding the Agreement. Indeed, he has already performed under the Agreement by directing his lawyers to urge the State of Florida to allow him to plead guilty to crimes more egregious than the State believes he committed, and to sentence him more harshly than the State still believes is appropriate. However, as you know, we take serious issue with your staff's interpretation and implementation of the Agreement, in particular the use of Section 2255, but also other aspects of your office's investigation and prosecution of this matter. As we have expressed to you on prior occasions — where you have made clear you have no objection — we hope to address these issues with Assistant Attorney General Fisher in Washington. Second, your letter makes reference to "certain filings" that you state are due to your Office by December 7 and to "certain events" that must occur before December 14. We have no knowledge of any such deadlines and in fact do not know what filings and events to which you arc referring. Please let us know what the December 7 and December 14 deadlines are, if any, so that we can make sure to comply with them. RFP MIA 000015 EFTA00209061 sc , voini lnv ia:uu FAA 1 ZAJ 65U 50UU K RKLANDILELL I S LLP 0 0 3 Honorable R. Alexander Acosta December 5, 2007 Page 2 Finally, you state that you intend to issue the victim notification letters on Friday, December 7. ,vever, in' discussion late last week between Jeff and Lilly Ann Sanchez, Mr. indicated that your Office would send us a revised version of the notification letter, which we have not received to date..While we believe that it is wholly inappropriate for your Office to send this letter under arty circumstances, it is certainly inappropriate to issue this letter without affording us the right to review it. We strongly urge that you withhold the notification letter until after we arc able to discuss this matter with Assistant Attorney General Fisher. Yours Kenneth W. Starr la iL wi4tz cc: Honorable Alice Fisher, Assistant Attorney General OISlreFint Assistant U.S. Attorney RFP MIA 000016 EFTA00209062 U.S. Department of Justice United States Attorney Southern District of Florida DELIVERY BY FACSIMILE, Jay P. Lefkowitz, Esq. Kirkland & Ellis LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4675 Re: Jeffrey Epstein Dear Jay: 99 N.E. e Street Miami. FL 33132-2111 (30$) 961-9299 Facsimile: (30.5) 530-6444 December 6, 2007 I write in response to your recent e-mails and letters regarding victim notification and other issues. Our Office is trying to perform our contractual obligations under the Agreement, which we feel are being frustrated by defense counsel's objections. The Office also is concerned about Mr. Epstein's nonperformance. More than three weeks ago we spoke about the failure to set' timely plea and sentencing date. At that time, you assured me that the scheduling delay was caused by the unavailability of Judge McSorley. You promised that' date would be set promptly. On November 15th, Rolando Garcia met with Barry Krisher on another matter, and was told by Mr. Krisher that he had just spoken with Jack Goldberger, and that Mr. Epstein's plea and sentencing were set to occur on December 14, 2007. Since that time, we have tried to confirm the date and time of the hearing in order to include that information in the victim notification letters. You continue to refer to the plea and sentencing as though it will be in January; Mr. 1Crisher's office has not confirmed any date; and Mr. Goldberger recently told Marie WIlefaile that "there is no date?" I must reiterate that' delayed guilty plea and sentencing - now more than two months beyond the original deadline - is unacceptable to the Office. As you will recall, the plea and sentencing hearing originally was to occur in early October 2007, but was delayed until October 26th to allow Mr. Goldberger to attend. It was delayed again until November to allow you to attend. Rather than using your best efforts to insure that the plea and sentencing occur in November, we recently learned that' plea conference had been scheduled with Judge McSorley for November 20, 2007, but was canceled at the request of the parties, not the judge. Judge McSorley has not been away for any extended period, and there is no basis for your assertion that the judge is the cause of RFP MIA 000017 EFTA00209063 • • • JAY P. I.EFKOWITZ, ESQ. DFCEMBER 6,2007 PAGE 2 OF 4 any past or future delay. Mr. Epstein currently has four Florida Bar members on his defense learn, so attorney scheduling is not an adequate basis for delay. Three weeks ago I also asked you to provide our Office with the terms of the Plea Agreement with the State Attorney's Office. It is now more than two months since the signing of the Non- Prosecution Agreement and we have yet to see any formal agreement, or even' list of essential terms of such an agreement. Next, lel me address your allegation that attorneys in our office and agents of the FBI have leaked information to the press in an effort to affect possible civil litigation with Mr. Epstein. This is untrue. There has been no contact between-any member of the press and any employee of our office or the FBI since you incorrectly accused investigators of telling "Vanity Fair" about Mr. Starr's employment by Mr. Epstein several months ago. We intend to continue to refrain from commenting or providing information to the press. We would ask that your client and all of his representatives do the same. I also want to address your interpretation of several statements that were included in correspondence - at your insistence - as proof that the designated victims have invalid claims. Let me make clear that each of the listed individuals arc persons whom the Office identified as victims as defined in Section 2255, that is, as persons "who, while' minor, was' victim of I violation of section . . . 2422 or 2423 of this title." In other words, the Office is prepared to indict Mr. Epstein based upon Mr. Epstein's "interactions" with these individuals.' This conclusion is based upon' thorough and proper investigation - one in which none of the victims was informed of any right to receive damages of any amount prior to the investigation of her claim. The Office agrees that it is not' party to, and will not take' role in, any civil litigation, but the Office can say, without hesitation, that the evidence demonstrates that each person on the list was' victim of Mr. Epstein's criminal behavior. Mr. Starr's letter also suggests that the number of victims to whom Mr. Epstein is exposed by the Agreement is limitless. As you know, early drafts of the Agreement contained' numerical limit of 40 victims, which was removed at your request. The Office repeatedly confirmed that the number would not exceed 40; and the list is significant) / shorter than that. Once the list is provided to you, if you have' good faith basis for asserting that' victim never met Mr. Epstein, we remain willing to listen and to modify the list if you convince us of your position. Finally, let nic addrcss your objections to the draft Victim Notification Letter. You write that you don't understand the basis for the Office's belief that it is appropriate to notify the victims. Pursuant to the "Justice for All Act of 2004," crime victims are entitled to: "The right to reasonable, accurate, and timely notice of any public court proceeding ... involving the crime" and the "right 'Unlike the State's investigation, the federal investigation shows criminal conduct by Mr. Epstein at least as early as 200 I , so all of the victims were minors at the time of the offense. RFP MIA 000018 EFTA00209064 • • • JAY P. LEFKOWITZ, ESQ. DECEMBER 6, 2007 PAGE 3 OE 4 not to be excluded from any such public court proceeding . . ." 18 U.S.C. § 377 I(IX2) & (3). Section 3771 also commands that "employees of the Department of Justice . . engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (I)." 18 U.S.C. § 3771(c)(1). Additionally,yursuant to the Victims' Rights and Restitution Act of 1990, our Office is obligated to "inform I victim of any restitution or other relief to which the victim may be entitled under this or any other law and [the) manner in which such relief may be obtained." 42 U.S.C. § 10607(cX1XB). With respect to notification of the other information that we propose to disclose, the statute requires that we provide' victim with the earliest possible notice of: the status of the investigation; the filing of charges against I suspected offender; and the acceptance of plea. 42 U.S.C. § I 0607(c)(3). Just as in 18 U.S.C. § 3771, these sections are not limited to proceedings in I federal district court. Our Non-Prosecution Agreement resolves the federal investigation by allowing Mr. Epstein to plead to' state offense. The victims identified through the federal investigation should be appropriately informed, and our Non-Prosecution Agreement does not require the U.S. Attorney's Office to forego its legal obligations. With respect to your assertion that we are seeking to "federalize" the state plea, our office is simply informing the victims of their rights. It does not command them to appear at the hearing or to file' victim impact statement. In fact, the letter recommends the sending of any statement to the State Attorney's Office so that ASA Belohlavek can determine which, if any, statements are appropriate to file with the Court. Next, you assert that our letter mischaracterizes Mr. E stein's obligation to pay damages to the victims. To avoid that suggestion, I have asked AUSA to simply quote the terms of the Agreement directly into the Notification Letter. We also have no objection to referring to Mr. Epstein as' "sexual offender" rather than' "predator." We have no objection to using the conjunction "and/or" in referring to the particular offense(s) of which the recipient was' victim. We will not include the language that we take no position as to the validity of any claims. While the Office has no intention to take any position in any civil litigation arising between Mr. Epstein and any individual victim, as stated above, the Office believes that it has proof beyond 'reasonable doubt that each listed individual was' victim of Mr. Epstein's criminal conduct while the victim was' minor. the law requires us to treat all victims "with fairness and with respect for the victim's dignity and privacy." 18 U.S.C. § 3771(')(8). We will not include any language that demeans the harm they may have suffered. 'Die letter's assertions regarding representation by the Podhurst firm and Mr. Josefsberg are accurate. Judge Davis conferred with Messrs. Podhurst and Josefsberg to insure their willingness to undertake this assignment prior to finalizing his selection. RFP MIA 000019 EFTA00209065 • • JAY P. LEFKOWITZ, ESQ. DECEMBER 6,2007 PAGE 4 OF 4 Lastly, you object to personal communication between the victims and federal attorneys or agents. We have no objection to sendiashe letters through the mail? but we will not remove the language about contacting AUSA or Special Agent with questions or concerns. Again, federal law requires that victims have the "reasonable right to confer with the attorney for the Government in this case." 18 U.S.C. § 3774(5). The three victims who were notified prior to your objection had questions directed to Mr. Epstein's punishment, not the civil litigation. Those questions are appropriately directed to law enforcement. If questions arise related to the civil litigation, AUSA V illafaila and Special Agent will recommend that the victims direct those questions to Mr. Josefsberg. I have attached' revised letter incorporating the changes on which we can agree. Please rovidc any further comments by the close o f business on Friday. In addition, please provide us with I definitive statement, signed by your client, of his intention to abide by each and every term of the Agreement by close of business on Friday, December 7, 2007. By that time, you must also provide us with the agreement(s) with the State Attorney's Office and I date and time certain for the plea and sentencing, which must occur no later than December 14, 2007. There must be closure in this matter. By: Enclosure cc: R. Alex .S. Attorney AUS Sincerely, R. Alexander Acosta United States A tomcy First Assistant United States Attorney 'This is contingent, however, on being able to provide adequate notice of the change of plea and sentencing. The sooner that you schedule that hearing with Judge McSorIcy, the sooner we can dispatch these letters. If you delay further, we will have to rely on telephone or personal notification. RIP MIA 000020 EFTA00209066 US. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Facsimile: (561) 820-8777 December 6, 2007 DELIVERY BY UNITED STATES MAIL Miss Re: Crime Victims' Rights — Notification of Resolution of Epstein Investigation Dear Miss Several months ago, I provided you with' letter notifying you of your rights as' victim pursuant to the Justice for All Act of 2004 and other federal legislation, including: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any public court proceeding, unless the court determines that your testimony may be materially altered if you are present for other portions of I proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, or sentencing. (5) The reasonable right to confer with the attorney for the United States in the case. (6) The right to full and timely restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. I am writing to inform you that the federal investigation of Jeffrey Epstein has been completed, and that Mr. Epstein and the U.S. Attorney's Office have reached an agreement containing the following terms. RFP MIA 000021 EFTA00209067 • • • Miss NOVEMBER 29, 2007 PAGE 2 First, Mr. Epstein agrees that he will plead guilty to two state offenses, including the offense of soliciting minors to engage in prostitution, which will require him to register as 'sexual offender for the remainder of his life. Second, Mr. Epstein has agreed to make' binding recommendation of 18 months' imprisonment to the state court judge who sentences him. Mr. Epstein will serve that sentence of imprisonment at the Palm Beach County Jail. Third, Mr. Epstein has agreed that he will compensate you for damages you have suffered, under the following circumstances. That portion of the agreement that relates to those claims reads as follows: 7. The United States shall provide Epstein's attorneys with' list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agsceiiivnt and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. 8. if any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or' waiver of any jurisdictional RFP MIA 000022 EFTA00209068 MISS NOVEMBER 29, 2007 PAGE 3 or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255, as set forth in paragraph (8), supra, neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein are to be construed as admissions or evidence of civil or criminal liability or' waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the list provided by the United States. Pursuant to the terms of the agreement and an addendum, to assist you in making such I claim, the U.S. Attorney's Office has asked an independent Special Master to select attorneys to represent you. Those attorneys are Aaron Podhurst and Robert ("Bob") Josefsberg with the law firm of Podhurst Orseck, They can be reached at (305) 358- 2800. I anticipate that someone from their law firm will be contacting you shortly. I must also advise you that you are not obligated to use these attorneys. In fact. you have the absolute right to select your own attorney, so you can decide not to sneak with Mess Podhurst/Joscfsberg at all. or you can speak with them and decide at any time to use I different attorney, If you do decide to seek damages from Mr. Epstein and you decide to use Messrs. Podhurst/Josefsberg as your attorneys, Mr. Epstein will be responsible for paying attorney's fees incurred during the time spent trying to negotiate' settlement. If you are unable to reach' settlement with Mr. Epstein, you and Mr. Josefsberg can discuss how best to proceed. As I mentioned above, as part of the resolution of the federal investigation, Mr. Epstein has agreed to plead guilty to state charges. Mr. E tein's change of plea and sentencing will occur on December 14, 2007, at ., before Judge Sandra K. McSorley, in Courtroom 11F at the Palm Beach County Courthouse, 205 North Dixie Highway, West Palm Beach, Florida. Pursuant to Florida Statutes Sections 960.001 ( I Xk) and 921.143(1), you are entitled to be present and to make' statement under oath. If you choose, you can submit' written statement under oath, which may be filed by the State Attorney's Office on your behalf. If you elect to prepare' written statement, it should address the following: the facts of the case and the extent of any harm, including social, psychological, or physical harm, financial losses, loss of earnings directly or indirectly resulting from the crime for which the defendant is being sentenced, RFP MIA 000023 EFTA00209069 • • • MISS NOVEMBER 29, 2007 PAGE 4 and any matter relevant to an appropriate disposition and sentence. Fl. Stat. 921.143(2). You also are entitled to notification when Mr. Epstein is released from imprisonment at the end of his prison term and/or if he is allowed to participate in' work release program. To receive such notification, please provide the State Attorney's Office with the following information: 1. Your name 2. Your address 3. Your home, work, and/or cell phone numbers 4. Your e-mail address 5. I notation of whether you would like to participate in the "VINE system," which provides automated notification calls any time an inmate is moved. (To use this system, your calls must go to you directly, not through' switchboard.) Thank you for all of your help during the course of the investigation. If you have any questions or concerns, please do not hesitate to contact me or Special Agent Nesbitt at (561) 822-5946. By: Sincerely, R. Alexander Acosta United States Attorney Assistant United States Attorney cc: Special Agent F.B.I. Ms. Clearetha Wright, Victim-Witness Coordinator, U.S. Attorney's Office RFP MIA 000024 EFTA00209070 12/11/2007 11:14 FAX t 024 /0 2 5 KIRKLAND & ELLIS LLD' Jay P. P C ID DMOCIIT (MI 446.4970 lollionszentsontenen VIA FACSIM (31)5) 530-6444 I lonorahle R. Alexander Acosta United States Attorney United States Attorney's Office Southern District of Florida 99 NE 4th Street Miami, FL 33132 Dear Alex. AM. Ion LOU. PAMStleaort Cilwrouo Com m 153 Cast rani Street Now York. Now York 10022-4511 www.lorkland corn December I I. 2007 Re: Afikey Epstein Focounilir I thank you for the opportunity to express my concerns with the Section 225 imprment of the Non-Prosecution Agreement (the "Agreement"). I provide this submission as good faith effort to communicate all of cuir concerns on this matter. I respectfully request that you consider the issues I discuss below in conjunction with the ethics opinion of Mr. Joe D. Whitley that I faxed to your Office on December 7. liackifroond of Negotiations I believe it is inmortant fur you to he aware of the full scope and substance of our communications with your Office with respect to first, the negotiations regarding the inclusion of the Section 2255 component and second. the process of implementation of its terms. Contrary to your Office's view, we do not raise our concerns about the Section 2255 component of the Agreement at the "eleventh hour." Since the very first negotiation of the Non-Prosecution Agreement between the USA() and Mr. Epstein. we have verbalized our objections to the inclusion of and specific language relating to Section 2255. Also. when negotiating the settlement portion of the federal plea agreement. we immediately sought an alternative to the 2255 language. In fact. fur the sake of expediting any monetary settlements that were to he made and to allow for' quick resolution of the matter, we repeatedly olTered that Mr. Epstein establish I restitution fund specifically for the settlement of the identified individuals' civil claims and that an impartial, independent representative be appointed to administer that fund. This option. however, was rejected by your Office. Notably. while in our December 4 letter to me. you indicate that the reason for the rejection of I fund was because it would place an upper limit on Chicago Hong Kong Los Angeles memo San Francisco Wasknoion. O.c:. RFP MIA 000025 EFTA00209071 12/11/2007 11:45 FAX 1025/03:1 • KIRKLAND & ELLIS LLP K. Alexander Acosta December 11.2007 Page 2 the victims' recovery, we placed no such limit nn the amount that the alleged victims could recover. Our objections regarding the Section 2255 component of the Agreement began as early as August 2 when, after receiving the LISAO's proposed Non-Prosecution Agreement. we suggested that the 2255 component of the Agreement could be satisfied by the creation of I restitution fund: .. Mr. Epstein is prepared to ridly fund die identified group or victims which are the focus of the Mice — that is. the 12 individuals noted at the netting on July JI, 3007. This would allow the victims to be able to promptly pot this behind them and go forwards with their lives. Irgiven the opportunity to opine as to the appropriateness Or Mr. Epstein's proposal. in my extensive experience in these types of eases. the victims miter I quick resolution with compensation for damages and will always support any disposition that eliminates the need Fur trial. See letter (tom Lily Ann Sanchez to ChiefSated August 2. 2007.1 For the duration of the negotiations. we then continued to encourage the use o f restitution fund in place of civil liability under Section 2255. For example. in our draft plea agreement to your Office on September 16. 2007. we included the ffillowing paragraph: Epstein agrees to hind' That set up in concert with the Government and under the supervision of the 15* Judicial Circuit in and for Palm Reach County. Epstein agrees tun' Trustee will be appointed by the Circuit Conn and that funds from the Trust will be available to he disbursed at the buster's discretitm to an agreed list of persons who se •k reimbursement and make' gutid Milli showing to the 'immix: that they suffered Injury as I result or the conduct or Epstein. Epstein waives his right m contest liability or damages up to an amount agreed to by the parties for any settlements entered into by the Twice. Epuein's waiver is not to he construed as an admission of civil or criminal liability in regards to any of those who seek compensation from the Trust. See draft proposal from Jay Lelkowitz to Andrew l.nurie dated September 15. 2007. In response, Ms. • nded that the Agreement contain language considering the inclusion of guardian ad Mem in the proceedings. despite the fact that, we arc now led to believe that all but one of the women in question are in fact not minors. Interestingly. Ms. not only raises the =me concerns them now have become issues with respect to the implementation of the Section 2255 cum ment, she also believes that the creation of trust would be in the victims' hest interests. writes: It was not until after receipt of this letter that Mr. Menthol indicated to us that the scope of liability would encompass not just the 12 individuals named in the indictment. hut -all of the inintw Lints identified during the federal investigation." See Metwhel e-mail to Sanchez dated August 3, 2007. RFP MIA 000026 EFTA00209072 12/11/2007 11:45 FAX 0026/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December 1 1. 2007 Page 3 As I mentioned over the dephone. I cannot bind 11w g' s to the Trust Agreement. and I don't think it is appropriate that state court would administer trust that seeks to pay fur kdend civil claims. We bolls toil In WON unscrupulous attormys anikor litigants from entning.ftni raed, and I know Hun ,var client wants to keep thew matters rwitsidc ttlpitNic court Platys, but I just don't have Ilw power to do what you ask. Hie is my recommendation. During tile period between Mr. F.p.st cin's plea sentencing. and sentencing. I make motion for appointment oldie Girardeau Ad I.item. The three of us sit down and discuss things. and I will facilitate at molt at I can ge g the girls' approval Wilts, twoccdure brrainc. at I ntaitioncil I think it ti probably in thew hest macron. In terms of pica agreement language. let me suggi.74 the Conniving: -flw linlied States agrees to make I nun inn welting. the appointment of a Guardian ad I.itcm In represent the identified victims. Follow it the appointment of such (Mardian, the parties agree work together in good faith to develop 'trust Agreement, subject to the Crituts approval diet would provide for any damage% owed in the identified victims pursuant to IN II.S.C. Section 2235. Then include the last two sentences of your paragraph X. See email from to Letkowitt dated September 16. 2007 (emphasis added). however. notably. in the drall agreement that follows. Ms. keeps the same objectionable language and only adds a portion of what was suggested in her communication to us: Epstein ogres that. if any of the victims identified h the federal investigation lilt suit pursuant to IX O.S.C. it 2255. Epstein will not contest the jurisdiction ill' the 11.5. District Coun her the StHAIRTI1 District of Plurida over his person and'or Ow subject mailer, and Epstein will not contest that the identified victims arc persons who, while minors, were victims of violations of litle I A. United States Code. Seetions(sl 2422 ;metric 2123. 'the United States shall provide Epstein's attorneys with I list of the identified victims, which lir will not exceed forty. al Epstein has signed this agreement and has been sentenced. The I/oiled Slates shall nrake motion •ith the united Stales oistriet Court for the Southern District of Florida for the appointment of guanhan ad .item for the identified victims and Epstein's counsel may contort the identified victims through that counsel. Sere draft non-pmsecutio agreement nailed from to Lelkowitz dated September 17. 20117. The inclusion of I guardian ad litem. however. only served to complicate mailers. We continued to reiterate our objections to the inclusion of 2255 in the Agreement repeatedly. as evidenced in an email from Ms. to myself on September 23. 2005 where she writes: "we have been over paragraph 6 'the then relevant 2255 paragraph an infinite number of times." During negotiations. it was decided that an attorney representative be appointed in the lace guardian ad litem -- not for the sake of litigating claims. but based on the belief that I guardian ad litem would not be appropriate for adults that are capable of making their own decisions. llowever. the USA() included into the Agreement that we pay fir the attorney representative -- when originally Ms. Villafana stated that the representative could he paid for by us or the federal court. See e-mail from to Lelkowitz dated September 23. 2007. RFP MIA 000027 EFTA00209073 12/11/2007 11:45 FAX Q027/099 KIRKLAND & ELLIS LLI' R. Alexander Acosta December I I. 2007 Page 4 the final agreement was very similar to what was proposed by Ms. in her initial draft agreement on July 31. 2007: the United Stales shall provide F.pstein's attorney's with a list of individuals whom it has identified as victims, as defined in IS U.S.C. f 2255. alter Epsicin has signed this agreement and has been sentenced. Upon the execution of this agreement. the United States. in consultation with und subject to the good faith approval of Lipstein's counsel. shall .elect an attorney representative for these persons. who shall be paid fin by Ipsteiti. tostein's counsel may contact the identified individuals through that representative. If any of the individuals referred to in paragispii (7), supra. elects in file suit pursuant to IS U.S.C. 3 2255. Epstein will not contest the jurisdiction of the United States District Court for the Southern Diaries of Florida over this person andior the subject matter. and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, sot long as the identified individual elects to proceed exclusively under IS U.S.C. 2255. and agrees to waive any other claim fin damages. whether pursuant to state. federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement. his waivers and failures to contest liability and such damages in any still are not to he corn:nu:A as an admission of any criminal or civil liability. See thud plea agreement. the Agreement requires Mr. Epstein to waive jurisdiction and liability under IR U.S.C. §2255 for the settlement of any monetary claims that might be made by alleged victims identified by the LISAO (the "identified individualf). Mr. Epstein is precluded from contesting liability as to civil lawsuits seeking monetary compensation for damages fur those identified individuals who elect to settle the civil claims for the statutory minimum of either $50.000 (the amount set by Congress as of the date of the occurrences) or $ 150.000 (the amount currently set by statute) or some other agreed upon damage amount. Mr. Epstein must pay for the services of the selected attorney representative is long as they are limited to settling the claims of the identified individuals. 'Die implementation of the tunas of the Agreement was just as contentious as was the dralling and nr iodation this portion of the Agreement. The first major obstacle was' direct result of Ms. improper attempt to appoint, Mr. Bert Ocariz. I close, person friend of her boyfriend's for the role of attorney representative. we objected in the strongest terms to such an appointment due to our serious concerns regarding the lack of independence of this and the appearance of impropriety caused by this choice. As' result. the LISA() drafted an addendum to the Agreement. This addendum provides for the use of an independent third party to select the attorney representative and also specifies that Mr. Epstein is not obligated to pay the cost of litigation against him. Upon the decision that we would appoint an independent party to choose the attorney representative. we were engaged in consistent and constant dialogue with your staff as to the precise language that would he transmitted to the independent party to explain his or role. RFP MIA 000028 EFTA00209074 12/11/2007 11:46 FAX a 028/099 KIRKLAND & ELLIS LL( R. Alexander Acosta December I I. 2007 Page 5 At each juncture. the inclusion of I civil remedy in the Agreement has resulted in unending debates and disagreements with respect to the appropriate manner in which to implement the terms of the Section 2255 component. The main issues that have arisen since the drafting and execution of the final agreement include the process fur the selection elan attorney representative: the scope of Mr. Epstein's waiver of liability and jurisdiction: the role of the attorney representative: the language contained in various drafts of the later to the independent third party: the correct amount of minimum damages pursuant to Section 2255: the extent and substance of communications between the witnesses and alleged victims and the OSAO and the particular) with respect to the settlemem process: the language contained in the letters proposed to be to the alleged victims: and the extent of continued federal involvement in the state procedures of Mr. Epstein's state plea and sentence. Notably. neither Section 2255. nor any other civil remedy statute, has been used as' pre- requisite to criminal plea agreement and it is clear that the ass, of these terms treatek unanticipated issues. Furthermore. the waiver of rights of which the ((SAO insisted is also not I traditional aspect of criminal r.-volutions. While we were reluctant and cautious about' Non. Prurcution Agreement in which' criminal defendant gives up certain rights to contest liability for I civil settlement eve did not believe there was room for contention given the I JSAO's. and specifically, Ms. ultimatums that required that we acquiesce to these unprecedented tams. Concerns Ream-dint Section 2255 Mr Epstein unconditionally rn-asserts his intention to fidfill and not seek to withdraw from or unwind the Agreement previously entered. I le raises important issues regarding the implementation of the 2255 provisions not to unwind the provisions or invalidate the Agreement but instead to call attention to serious matters of policy and principles that you are requested to review. As you will see below our main policy-related concerns are (1) the inclusion of Section 22551 civil remedies statutes in' criminal plea agreement. (2) the blanket waiver of jurisdiction and liability as to certain unidentified individuals to whose claims the government has a.s.serted they take no position, and (3) any communications between federal authorities, including your staff and the FBI. and witnesses and alleged victims and the nature of such communications. With 'tweet to the interpretation of the terms of the Agreement. we do not agree with your Office's interpretation of the expansive scope of Mr. Epstein's agreement to waive liability and jurisdiction. Nor do we agree with your Office's view of the expansive role of the attorney representative. Below. I describe first, the policy implications and the practical problems that these terms have created or will create. Second. I describe points of contention us to the interpretation of various terms of the Section 2255 component of the Agreement. RFP MIA 000029 EFTA00209075 12/11/2007 11:48 FAX /1028/099 • KIRKLAND & ELLIS LLP R. Alexander Acosta December I I, 2007 Page 6 1. Policy Considerations The inclusion of Section 2255 in' criminal plea agreement is unprecedented and raises significant policy-related concerns. Some of these issues can create and have created problems as to the ability of this component to (1) maintain the integrity and independence of the tISAO, (2) serve its purpose. namely to provide litir and appropriate recovery to any victims in' prompt fashion, and (3) protect the rights of the defendant. While we appreciate your consideration of our concerns described below, we arc also confident that your commitment to justice and integrity will cause you to consider any additional policy and ethical issues that the Section 2255 component raises. A. Government Involvement The inclusion of Section 2255.' purely civil remedy. raises the risk of excessive government interference in private. civil matters. As Mr. Whisky slates in his opinion. . . .unnecessary entanglement of the government in such cases and the use of federal resources could improperly influence such eases and create the appearance of impropriety.- It is well established that the government should refrain Imm getting involved in lawsuits. However. to include Section 2255 in' linkral agreement inherently exacerbates the risk of federal involvement in civil litigation and thus far. in practice. the inclusion of this statute, as opposed so the creation of I restitution fund, has resulted in continued federal involvement in this matter. Federal criminal investigators and prosecutors should not be in the business of helping alleged victims of state crimes secure civil financial settlements as' condition precedent to entering non-prosecution or deferred prosecution agreements. 'Ibis is especially true where the defendant is pleading to static crimes for which there exists' state statute allowing victims to recover damages. See Florida Statutes 796.09. The fact that state law accounts for the ability of victims to recover truly eliminates the need for' waiver of liability under' federal statute. Furthermore. the vehicle for the financial settlement under the Agreement requires restitution in' lump suns without requiring proof of actual injury or loss federal authorities should therefore be particularly sensitive In avoid causing I prejudiced and unfair result. Section 2255 is' civil statute implanted in the criminal code that in contrast to all other criminal restitution statutes fails to correlate payments to specific injuries or losses and instead presumes that victims under the statute have sustained damages of at least' minimum lump sum without regard to whether the complainants sulfured actual medical, psychological or other forms of individualized hann. We presume that it is for this reason that Section 2255 has never before been employed in this manner in connection with' non-prosecution or deferred prosecution agreement. RFP MIA 000030 EFTA00209076 12/11/2007 11:47 FAX it 030/099 KIRKLAND & ELLIS LLP • R. Alexander Acosta December I I.2007 Page 7 Mr. Epstein's blanket waiver of liability as to civil claims gives the appearance of impropriety. While your Office has, on several occasions, asserted that they take no position as to the claims 2f the individuals it identifies as "victims.- the fact that they continue to promote the award of civil settlement to these individuals is problematic. As you know, government contracts and ple7g.reement must not diminish or undermine the inn 'ty of the criminal justice system. See 'S McGovern. 822 F.2d 730. 743 (8th Cir. 1987) (' plea agreement, however, Az; is not simply contract between two panics. It necessarily implicates the integrity &Ike criminal justice system and requires the courts to exercise judicial authority in considering the pica agreement and in twirling or rejecting the plea."). The requirement that Mr. Epstein blindly sacrifice his rights. as civil litigant. to contest allegations made against him seem to contradict the principles of justice and fairness that are embedded in the tenets of the United Stales . Attorney's Office. I I also assert that on both' principled and practical level, the mere involvement of your Office in the matter with respect to civil settlement is inappropriate. Even though we understood fmm you that federal involvement in this matter would cease after the attorney representative was selected, your Office continues to assert their obligation to he in contact with the alleged victims in this matter. Had we agreed to I restitution fund for the victims instead of the civil remedies provision, we would not have objected to your Office's communications with these individuals. However. because the alleged victims have the ability to recover damages based on I civil claim pursuant to the Agreement. we are concerned with your Office's ongoing efforts to stay involved in this matter. Contact with federal authorities at this point can only invite the possibility for impermissible or partial communications. Most recently, your Office l a us drafts of, letter that your Office proposed to send to the alleged victims (the "victim notibeation letter"). While the revised draft of this letter states that victims should contact the State Attorney's Office for assistance with their rights. there is no phone number provided for the office and instead, the letter provides the telephone number and an invitation to contact Special Agent Ncshitt Kuyrkcndall of the FRI. Indeed, the letter as currently drafted invites not only contact between your Office and the victims, it also asserts that federal witnesses may become participants in' state proceeding. thus federalizing the state plea and sentencing in the same manner as would the appearance and statements or a member of your Office or the pB12 2 We arc concerned with the fact that some of the victims were previously notified, as Mr. Jeffrey slates in his letter of December 6 letter. In your letter of December 4. you state that you would not issue the Victim Notification lamer until December 7. Thus, it is troubling to learn that some victims were notified prior to that date. Please confirm when the victims were notified. who sus notified. the method of communication for the notification, and the individual who notified them. RFP MIA 000031 EFTA00209077 12/11/2007 11:47 FAX la031/099 KIRKLAND & ELLIS LLP R. Alexander Acosta December I I. 2007 Page The proposed victim notification letter asserts that the kderal *victims' have tln: right to appear at Mr. Epstein's plea and sentence or to submit' written statement to be tiled by the State Attorney. However, as agreed to in the federal non-prosecution Agreement, Mr. Epstein will be pleading to lie charges and he will be sentenced 1hr the commission of same offenses. 'victims the government identifies relate only to the federal charges for which Mr. Epstein was under investigation. The draft victim notification letter cites Florida Statutes §§ 960.001(k) and 921.143(1) as the authority Ibr allowing the alleged victims to appear or give statements. however these provisions apply only to "the victim of the crime for which the defendant is being sentenced . . . "Thus Florida law only :Minds victims of state crimes to appear or submit statements in criminal proceedings and the state charges for which Mr. Epstein will be sentenced are not coextensive with the federal investigation. Further. any questions at this point involving the charges against Mr. Epstein or the proper slate procedures under which he will plead or be sentenced am appropriately made to the State Attorney's Office. Continued federal involvement in this matter has led to an impropriety that was unanticipated as well. Ms. Villafana attempted to manipulate the terms of Mr. Epstein's settlement so that persons close to her would personally profit. Ms. inappropriutely attempted toterinate Bert ()cariz for attorney re despite thi fact that Mr. Ocariz • turns out to be I very good personal friend or Ms. boyfriend. linen she assiduously kept hidden from counsel. We requested alternate c owes immediately. but were told that Mr. ()writ had been inlbnned of the charges the government would bring against Epstein and in response. he ask ' -mail whether his fees would be capped. Needless to say. we were elisi alarmed that Ms. would attempt to influence the settlement process on such improper grounds. And even alter the IJSAO conceded that it was inappropriate for its attorneys to select the attorney representative. Ms. Villafana continued to improperly lobby for Mr. Ocariz's appointment. On October 19, 2007, retired Judge Edward 13. Davis, who was appointed by the parties to select the attorney representative, informed Mr. Epstein's counsel that he received' telephone call from Mr. (\wiz directly requesting that Judge Davis appoint him 11.% the attorney representative in this matter. Although it is unclear how Mr. Ocariz even knows that Judge Davis • s been chosen to administer the settlement process, it can only be understood as Ms. attempts to compromise the fairness or the settlement process. B. Integrity of the Process and the Legitimacy of the Claims The waiver of liability Mr. Epstein must make in relation to Section 2255 endangers the legitimacy of the claims made by the alleged victims. There is' heightened risk that the alleged victims will make false and exaggerated claims once they are inlbnned of Mr. Epstein's waiver under Section 2255 for the settlement of claims pursuant to the Agreement. Indeed, Mr. Whitley states. " . . .the Department [of Justice] should consider developing processes and procedures to ensure that the investigative process is insulated horn such risks." It is also well settled that witnesses cannot be given any special treatment due to the fact that it may affect the reliability or RFP MIA 000032 EFTA00209078 12/11/2007 1107 FAX 032/088 • • • KIRKLAND & ELLIS nr R. Alexander Acosta December 11. 2007 Page 9 their testimony. Any and all communications between the federal authorities and the alleged - victims" and witnesses in this matter has the ability to influence the reliability orate testimony obtained and the validity of the civil settlements that result. Thus. there is still' real concern that some of the statements that federal prosecutors relied upon in its prosecution of this matter may have been tainted. An inquiry is required to confirm that at the time witness statements were given, there were no communications made by fcdend agents regarding potential civil remedies. The eovemmem should not provide promises of guaranteed monetary settlements to encourage cooperation because they run the risk of seriously tainting the reliability of witness statements. While we by no means are uccusins your office of making improper communications at this point the fact that 11w award of I civil settlement, without any requirement to prove liability. is available to the identified individuals. raises cause for concern us to the nature or all conununications that are made to the 'victims.' You previously stated that the USAO's main objective with respect to the Section 2255 component of the Agreement was to "place the victims in the same position as they would have been had Mr. Epstein been convicted ut trial." I lowcver. to accomplish this goal. your Office rejected using traditional terms that allow for the restitution of victims. Instead, your Office chose to insert itself into the negotiations, settlement, and potential litigation of civil suit. With all due respect. we object to your Office's attempt to make the victims whole by requiring that Mr. Epstein deprive himself of rights accorded to him as' potential civil defendant. While we are aware one of the responsibilities of your Olliee is to provide tor restitution for victims of crimes, this does not give the government the responsibility to enable alleged victims to collect' civil settlement. Despite this concern, it should also be noted that, the Agreement. both as written and as interpreted by your Office significantly enlarges the victims' ability to recover from Mr. Epstein. For instance. ir the individuals attent to litigate against Mr. Epstein. they would have been determined to be victims only after lengthy trial, in winch they would have been thoroughly deposed, their credibility tested and their statements subject to cross-examination. The defendant, under these circumstances, would nut have had pay the plaintiffs' legal fees. Mortmver, these individuals would face significant evidentiary hurdles. unwanted publicity, and most importantly. no certainty of success on the merits. Therefore. the notion that your Office is merely attempting to restore these " victims" to the same position as they would have been had Mr. Epstein been convicted at trial misunderstands the Agreement and your Office's implementation of its terms. C. Rights of. Defendant Requiring Mr. Epstein to make blanket waiver of liability and jurisdiction as to unidentified victims whose claims to whit the government takes no position can be construed as 1 RFP MIA 000033 EFTA00209079 12/11/2007 11:48 FAX /033/088 KIRKLAND & ELLIS LLI' R. Alexander Acosta Decernbcr 1 I. 2007 Page III violative of his Due Process rights. Furthermore. the bet that the statute at issue in this matter does not connect harm to the minimum amount available to the victim and simply includes' lump sum exacerbates the potential for injustice and an abridgement of Mr. Epstein's rights. At the very least. Mr. Epstein should he given the risht to know the identity of the victims and the evidence upon which each one was identified as I victim by the government. The USA() has provided no information as to the specific claims that were made by each identified individual. nor were we given the names or ages of tlx: individuals or the time-frame of the alleged conduct at issue. The IJSAO's reluctance to provide Mr. Epstein with any information regarding the allegations against him leaves wide open the opportunity for misconduct by the federal investigators and eliminates the ability for Mr. Epstein and/or his agents to verify that the allegations at issue are grounded in factual assertions and real evidence. Indeed, the requirement that' target of lideral criminal prosecution agree to waive his right to contest liability as to unnamed civil complainants creates at minimum an appearance of injustice, both because of the obvious Due Process concerns of waiving rights without notice of even the identity of the complainant and because of the involvement of the federal criminal justice system in civil settlements between private individuals. We reaffirm the right to test the veracity of the victims' claims as provided to us in the letter from you to Judge Davis dated October 25. 2007. It has recently come to our attention that your staff has identified as' "victim" for purposes of Section 2255 relief. Ms. • who initially and repeatedly refused to cooperate with federal authorities durin the course of the investigation, only submitted to an interview after she was conferred with I grant of immunity. Surely this is tot' demand typically made by someone who is' crime "victim". Moreover, Ms. Millers sworn testimony does not suggest that she is' victim. Ms. has not only admitted that she lied to Mr. Epstein about her age claiming she was 1$ years old. but that she counseled others to lie to Mr. Epstein in the same manner. Ms. also states that Mr. Epstein was clear with her that he was only interested in "women" who were or age and that most of the y men she brought to his home were indeed over IS years of age. Moreover. while Ms. claims to have provided massages to Mr. Epstein. she does not allege to have engaged in sexual intercourse with Mr. Epstein: does not claim she provided him with oral sex: does not purport that Mr. Epstein penetrated her in any manner: denies Mr. IMstein ever used I vibrator. massager. or any type of "sex toy" on her: denies he touched her breasts, buttocks. or vagina: and states that she never touched Mr. Epstein's sexual organs — nor was she asked to do so by Mr. Epstein. Without' right to contest the liability of claims. Ms. Miller will likely receive fur more in civil damages than what would he she would have had Mr. Epstein been convicted. In addition, the Asreement with the USA° only defers federal prosecution of Mr. Epstein: it does not assert I declination to prosecute. as was lint contemplated in the negotiation of the Agreement. Any payments made and/or settlement agreements reached with the alleged RFP MIA 000034 EFTA00209080 12/11/2007 11:48 FAX Z034/098 KIRKLAND & ELLIS LLi • • • R. Alexander Acosta December I I, 2007 Page II victims prior to the fon.-elosure of any future federal prosecution carrbrs the potential of being used as evidence against Mr. Epstein. *Illus. to protect his rights ax I defendant. Mr. Epstein should nut be required to pay any of the alleged victims until after the threat of prosecution no longer exists. II. Misinterpretations of the Agreement The contentiousness caused by the implementation of the Section 2255 portion of die Agreement has also been caused by what we believe are misinterpretations of the terms by your Office. These problems, which I describe below, are' practical outgrowth of the fact that civil settlement, us opposed to restitution. is considered in the Agreement. U Rule of the Attorney Representative The IJSAO has improperly emphasized that the chosen :wormy representative should be able to litigate the claims of individuals. which violates the terms, and deeply infringes upon the spirit and nature of. the Agreement. However. after the panics agreed to the appointment of an independent third party in select the representative, the government announced ilia the criteria for choosing an appropriate attorney representative would include that they be '■ plaintiffs i lawyer capable of handling multiple lawsuits against high profile attorneys." 'lids interpretation of the scope of the attorney representative's role is liar outside the common understanding that existed when we negotiated Mr. Epstein's settlement with the USAO. Moreover, we have made the USAO aware of the potential ethical problems that would arise should the selected representative be allowed to litigate and settle various claims against Mr. Epstein. The initial draft victim notification letter contained language that confirmed your Office's interpretation and indicated that Mr. Podhurst and Mr. Joscfsberg, the selected attorney representatives. may "represent" the identified individuals. This language assumes that the selected representatives will agree to serve in the capacity envisioned by the IJSAO. which we believe is patently incorrect. To suggest this notion in' letter to victims who have limited or no knowledge of the ethical principles at issue will only lead to confusion, misunderstanding and disappointment among the identified individuals when they learn that such representation is foreclosed. B. Scope of Mr. Epstein's Waiver Your Office has taken the position that Mr. Epstein waives liability beyond the settlement of claims and that he will waive liability even in lawsuits brought by the identified individuals. However, this overstates the scope or Mr. Epstein's waiver pursuant to the Agreement. Mr. Epstein has only agreed that he will waive the right to contest liability and jurisdiction for the purpose of settling claims with the alleged victims pursuant to Sections 7 through 8 of the Agreement and Addendum. Mr. Epstein has no obligation to waive this right to contest liability RFP MIA 000035 EFTA00209081 12/11/2007 11:49 FAX 11035/099 KIRKLAND & ELLIS LLP K. Alexander Acosta December 11.2007 Page 12 in any claim lig damages • • by an enumerated - victim- or anyone else - where that puny fails to settle her claims pursuant to the terms of the Agreement. The revised draft of the letter avoids this misinterpretation and directly quotes Paragraphs 7. 8. 9 and It) of the Agreement. While we do not have any objection to including this portion of the Agreement in the proposed letter. we request that Paragraphs 7A. 7Ti. and 7C of the Addendum to the Agreement also be included because the language contaits.xl there in most clearly ntnlincs the scope of Mr. Epstein's obligation to pay damages under the Agreement. C. Right of the Alleged Victims to Be Notified As we have expressed to you previously. we do not agree with your O1lice's assertion that it is either an obligation and even appmpriate for the USAO to send' victims notification letter to the alleged victims. The Justice for All Act of 2004 only contemplates notification in relation to available restitution for the victims of crimes. However, since Section 2255 is only one of many civil remedies, there is no requirement that the USAO inform alleged victims pursuant to the Justice for All Act of 2004. Notably. if the USN) had agreed to include' restitution fund in the Agreement us opposed to' civil remedy statute, the alleged victims would have the right to be notified pursuant to the relevant Act. Further. we note that the reasons you cite in favor of issuing the proposed Victims Notification letter in your correspondence of December 4 are also inapplicable to this scenario. For instance, you cite IS § 3771 for the proposition that your Office is obligated to provide certain notices to the alleged victims. However. IS § 37711)12) & (3) provide: crime victim has the lidlowing rights: ()9 11w right to reasonable. accurate. and timely notice of any public court proceeding. or any parole proevialine. involving die crime nr any release or escarp' Of the accused. 131 flu: right not to he excluded from any such public court proceeding. oaten. the coral, aver receiving clear and convincing cviiknix. d1.11MIIIIIIS that testimony by the victim would he materially altered if the victim heard other testimony at the proceeding. (emphasis added). Your interpretation or * 3771 is emmeous hecause the rights conferred by the statute indicate that these rights are for the notification and appearance at public proccalings involving the crime for which the relevant individual is' victim. As you know, the public proceeding in this mallet' will be in state court tie the purpose of the entry of I plea on state charges. Therefore, IS § 3771 clearly does not apply to "victims" who are not state "victims." You additionally cite your Office's obligations under § 3771(c)(I) of the Justice for All Act of 2004, However, this subsection relates back to the "rights described in subsection •." Thus, since the rights set forth in subsection only apply to the victims or the crimes fur RFP MIA 000036 EFTA00209082 12/11/2007 11:49 FAX la 036/099 KIRKLAND & ELLIS LLP • • R. Alexander Acosta December I I.2_007 Page 13 which the public proceeding is being held. the individuals identified by your Office have no rights to notification or appearance under this Act. You further cite 42 U.S.C. § 10607(e)b I RD) and (O(3) which. you state. obligates your Office to inform victims of "any restitution or other relief' to which that victim may be entitled and of notice of the sugus of the investigation: the filing of charges against I suspected of and the acceptance of I plea. Although we do not believe this applies here for the same reasons stated above. we further assert that your proposed Victims Notification letter seeks to go beyond what is prescribed under 42 U.S.C'. § 10607. Indeed, there is nothing in the statute that requires your Office to solicit witness testimony or statements liar the purposes of Mr. Epstein's sentencing hearing. Furthermore, we assert that any notification obligation you believe you have under this statute should be addressed by Judge Davis. We submit to you based on the policy concerns of including' civil remedies statute in' sriminal agreement and requiring the waiver of I de' ndants' rights under th