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KIRKLAND & ELLIS LLP

John Roth, Esq.
June 19, 2008
Page 2

As you are likely aware, the Department’s prior review of this matter was incomplete and, by its own admission, not “de novo.” See Tab 38, May 15, 2008 Letter from A. Oosterbaan. Without considering the Non Prosecution Agreement that left this matter to be resolved in the State or any of the misconduct, CEOS reviewers, tasked with reviewing some of their own previously expressed opinions, assessed only whether the United States Attorney would “abuse [his] discretion” if he pursued this case. While we appreciate CEOS’s willingness to examine these limited issues, its conclusion that a prosecution would not be an “abuse of discretion” rings particularly hollow in light of CEOS’s admirably candid concessions that we have raised “compelling” objections and that a prosecution on these facts would require “novel” applications of federal law. Indeed, even a brief review of CEOS’s own mission statement reveals how inapposite a federal prosecution is to the facts in this case.

Importantly, we note that the CEOS review was conducted prior to the Supreme Court’s very recent decisions in Santos and Cuellar, which we believe—illuminating as they do the Court’s interpretive methodology when it comes to federal criminal law—powerfully demonstrate the substantive vulnerability of the USAO’s unprecedented employment of three federal laws. That Office’s interpretation would never pass muster under the Supreme Court’s recent pronouncements and should not be countenanced. That is all the more true under the circumstances where the duly appointed U.S. Attorney opined that, in effect, the “unitary” Executive Branch was driving this prosecution. We now know that is not so.

What I respectfully request, and what I hope you will provide, is a truly “de novo” review—that is, an independent assessment of whether federal prosecution of Mr. Epstein is both necessary and warranted in view of the legal and evidentiary hurdles that have been identified, the existence of a State felony plea and sentence that have been advocated by the State Attorney for Palm Beach County, and the many issues of prosecutorial misconduct and overzealousness that have permeated the investigation. I also request that you provide us with the opportunity during your review to meet with you in person to answer any questions you may have and to elucidate some of the issues in our submission.

We believe that an independent review will confirm our strong belief that federal prosecutors would be required to stretch the plain meaning of each element of the enumerated statutes, and then to combine these distorted elements in a tenuous chain, in order to convict Mr. Epstein. Indeed, just this week (and after two years of federal involvement in this matter), Assistant United States Attorney Villafana re-initiated the federal grand jury investigation—in direct contravention of the parties’ Non Prosecution Agreement—and issued yet another subpoena seeking evidence in this case. See Tab 19, Subpoena to [REDACTED] In the subpoena, AUSA Villafana directs [REDACTED] to appear on July 1, 2008 to give testimony and produce documents to FGJ 07-103 West Palm Beach. The attachment to the subpoena seeks documents such as photographs, emails, telephone billing information, and contact information that relate to Mr. Epstein as well as specific other people who received protection from federal

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