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Honorable Mark Filip
May 19, 2008
Page 4

These statutes are intended to target crimes of a truly national and international scope.
Specifically, § 1591 was enacted to combat human trafficking, § 2422 is aimed at sexual
predation of minors through the Internet, and § 2423 deals with sex tourism. The nature of these
crimes results in multi-jurisdictional problems that state and local authorities cannot effectively
confront on their own. However, Mr. Epstein’s conduct was purely local in nature and, thus,
does not implicate federal involvement. After researching every reported case brought under 18
U.S.C. §§ 1591, 2422(b), and 2423(b), we found that not a single case involves facts or a
scenario similar to the situation at hand. Our review of each precedent reflects that there have
been no reported prosecutions under § 1591 of a ‘john’ whose conduct with a minor lacked
force, coercion, or fraud and who was not profiting from commercial sexual trafficking. There
have likewise been no cases under § 2422(b)—a crime of communication—where there was no
use of the Internet, and where the content of phone communications did not contain any inducing
or enticing of a minor to have illegal sexual activity as expressly required by the language of the
statute. Furthermore, the Government’s contention that “routine and habit” can fill the factual
and legal void created by the lack of evidence that such a communication ever occurred sets this
case apart from every reported case brought under § 2422(b). Lastly, there are no reported cases
of violations of § 2423(b) of a person whose dominant purpose in traveling was merely to go to
his own home.3

Although these matters were within the scope of the CEOS review, rather than
considering whether federal prosecution is appropriate, CEOS only determined that U.S.
Attorney Acosta “would not be abusing his prosecutorial discretion should he authorize federal
prosecution” in this case. The “abuse of discretion” standard constitutes an extremely low bar of
evaluation and while it may be appropriate when the consideration of issues are exclusively
factual in nature, this standard fails to address concerns particular to this situation, namely the
“novel application” of federal statutes. The “abuse of discretion” standard in such pure legal
matters of statutory application risks causing a lack of uniformity. The same federal statutes that
would be stretched beyond their bounds in Miami have been limited to their heartland in each of
the other federal districts. Also, because this case implies broader issues of the administration
of equal justice, federal prosecution in this matter risks the appearance of selectivity in its
stretching of federal law to fit these facts.

3 Federal prosecution of a man who engaged in consensual conduct in his home that amounted to, at most, the
solicitation of prostitution, is unprecedented. Since prostitution is fundamentally a state concern, (see United
States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (federal law “does not criminalize all acts of prostitution (a
vice traditionally governed by state regulation)”)), and there is no evidence that Palm Beach County authorities
and Florida prosecutors cannot effectively prosecute and punish the conduct, there is no reason why this matter
should be extracted from the hands of state prosecutors in Florida.

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