HOUSE_OVERSIGHT_012149.jpg

KIRKLAND & ELLIS LLP

The prosecution has never represented to counsel that they have evidence that would
prove that the inducement or enticement to engage in illegal sexual acts occurred over the phone
(or Internet). The prosecution’s references to “routine and habit” evidence that would substitute
for the explicit communications usually found in the transcripts from chat rooms or sting
operations is tenuous at best. In essence, the prosecution would be alleging communications
understood, but not spoken, by two people, one of whom was usually a secretary or assistant.
Separating the actus reus and the mens rea, however, and premising criminal liability on
persuasion that might occur after the communication, or on the existence of a specific intent to
engage in illegal sex with a minor that arises after the communication would violate the bedrock
principle of criminal law that predicates liability on the concurrence of the act and the criminal
state of mind. Even if, arguendo, the communication and mens rea could be separated (a
premise which is at odds with the requirement of concurrence), Mr. Epstein denies that the
factual proof demonstrates such a pattern or practice. Instead, the evidence compellingly proves
that there was no regularity or predictability to the content of the communication or in what
occurred at meetings that were telephonically scheduled (including those that are the subject of
this investigation).

A second essential element of 2422(b) requires that the defendant “knowingly” induce,
persuade, entice or coerce a person believed to be a minor. “. . . [K]nowingly . . . induces . . .”
requires the Court to define inducement so it is consistent with its ordinary usage and so the term
is not so broad that it subsumes the separate statutory terms of “entices” and “persuades.”
Inducement has a common legal meaning that has been endorsed by the government when it
operates to narrow the affirmative defense of entrapment. Inducement must be more than “mere
solicitation;” it must be more than an offer or the providing of an opportunity to engage in
prohibited conduct. See, e.g., United States v. Sanchez-Berrios, 424 F.3d 65, 76-77 (1st Cir.
2005); United States v. Brown, 43 F.3d 618, 625 (11th Cir. 1995). The government cannot fairly,
or consistent with the rule of lenity, advocate a broader definition of the same term when it
expands a citizen’s exposure to criminal liability than when it limits the ambit of an affirmative
defense to criminal conduct. If the term is ambiguous, absent clear Congressional intent on the
issue, the Court’s decision in Santos requires that the narrower rather than the broader definition
be used.

The facts simply do not prove Mr. Epstein’s culpability for knowingly inducing or
persuading minors. First, in the case of masseuses who agreed or even sought to return to see
Mr. Epstein on successive occasions, there is no evidence that there was any inducement,
persuasion, enticement or coercion over the phone. And, for masseuses seeing Mr. Epstein for
the first time, there was generally no telephone contact with Mr. Epstein and there was no
knowledge that any third party at Mr. Epstein’s specific direction was inviting them to Mr.
Epstein’s home over the phone rather than in face-to-face meetings. The women who visited Mr.
Epstein’s home were all friends of friends. Contrary to the facts in this case, § 2422(b)’s
knowing inducement element is essential to federal liability and, given its hefty minimum
mandatory punishment, it should not be interpreted as a strict liability statute.

8

HOUSE_OVERSIGHT_012149