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ALLEN GUTHRIE MCHUGH & THOMAS, PLLC
Mr. John Roth June 19, 2008 Page 10
of all of the facts in order to have a defense in the event of a subsequent prosecution.”). Thus, the facts preclude reliance on the concept of deliberate ignorance as a substitute for proof.
The fact that the search warrant affidavit in this case is rife with mis-statements and omissions regarding the key element of age is critical. However, CEOS concludes with no apparent supporting analysis, “despite the numerous factual errors you describe, the U.S. Attorney’s Office could still plausibly argue that the mistakes — whether inadvertent or intentional — were not material to the determination... .” (CEOS letter at p. 3). Although, as CEOS notes, there are “numerous” such misrepresentations, through affirmative statement or intentional omission, a focus on but one of those misrepresentations highlights that such misrepresentations were, in fact, material. The fact is that Detective ReCarey grossly misrepresented Mr. Epstein’s intent as it related to the age of the women he permitted entry to his residence.
In the search warrant affidavit, Detective ReCarey affirmed that] claimed:
[Mr. Epstein} told her the younger the better. And, stated she once tried to bring a 23 year old female and Epstein stated that the
female was too old.
What Detective ReCarey, no doubt intentionally, omitted wa further explanation, which rendered Mr. Epstein’s comments innocuous:
A: Let me put it this way, he — I tried to bring him a woman who was 23 and he didn’t really like it.
He didn’t go for it?
A: It’s not that he didn’t go for it. It’s just that he didn’t care for it. And he likes the girls that are between the ages of 18 and 20. (GES tatement at 12) (emphasis added).
Had that critical information, information that turns allegedly illegal conduct into more innocent conduct, been included, it would have seriously undermined the probable cause for the search warrant.
Similarly, and equally problematic, Detective ReCarey did not include the many statements demonstrating that, when asked by Mr. Epstein, the women affirmatively misrepresented their ages as being 18, and/or that Mr. Epstein was not aware of their true ages. Indeed, although Detective ReCarey did note that Ms told Mr. Epstein that she was 18, he omitted from the affidavit the key point as to why she lied:
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