Thirty-Two Counts

One Day

On Thursday, September 13, 2007, an Assistant U.S. Attorney in the West Palm Beach office of the United States Attorney for the Southern District of Florida sent a memorandum up the chain to U.S. Attorney R. Alexander Acosta, the First Assistant, the Deputy Chief of the Criminal Division, and the Chief of Criminal Section I, Northern Division. The subject line: "Operation Leap Year: Second Addendum to Prosecution Memorandum" EFTA00234505DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document. The memo listed the stylistic and substantive changes made to an indictment package the Office had been preparing for roughly 18 months. The memo's operative sentence is one line above the signature block. "For strategic reasons, I would like to present the indictment to the grand jury on Tuesday, September 25, 2007" EFTA00234505DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document.

On Monday, September 24, 2007, one day before the scheduled grand jury date, the Non-Prosecution Agreement was signed EFTA00192983DOJEE, EFTA00192983 on Epstein Exposed, an alternative host for the same document.

The draft indictment never went to a grand jury.

What the Draft Was

The 2019 CVRA opinion describes the posture of the investigation as of the spring of 2007. "By May of 2007, the Office had drafted an 82-page prosecution memorandum and a 53-page indictment outlining numerous federal sexual offenses committed by Epstein" EFTA00800253, p2DOJEE, EFTA00800253 on Epstein Exposed, an alternative host for the same document. The draft was captioned in the Southern District of Florida. The statute headers on the indictment's title page list 7 federal offense categories EFTA01713627, p68DOJEE, EFTA01713627 on Epstein Exposed, an alternative host for the same document:

• 18 U.S.C. § 371, conspiracy.
• 18 U.S.C. § 2422(b), enticement of a minor via interstate facility.
• 18 U.S.C. § 2423(b), interstate travel for illicit sexual conduct with a minor.
• 18 U.S.C. § 2423(d), engagement in illicit sexual conduct with a minor while traveling.
• 18 U.S.C. § 2423(e), attempt and conspiracy to commit those offenses.
• 18 U.S.C. § 1591(a)(1), sex trafficking of a person under 18.
• 18 U.S.C. § 1591(a)(2), benefiting from trafficking.

Mandatory minimums on the trafficking provisions at the time ran from 10 to 15 years per count. The indictment stacked the conspiracy count (Count 1) across a background section naming overt acts committed between March 2004 and October 2005, then charged individual substantive counts keyed to specific victims and specific trips [EFTA01713627, pp. 68-72].

The investigation's internal codename was Operation Leap Year. The phrase appears across the prosecution memorandum correspondence as a file identifier tied to USAO case number 2006R01181 EFTA00234505DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document.

Who the Draft Named

The draft indictment as it existed before September 13, 2007 named 5 defendants EFTA01713627, p68DOJEE, EFTA01713627 on Epstein Exposed, an alternative host for the same document:

Jeffrey Epstein. The principal target. Named on the caption page and charged on the conspiracy count.

Three Epstein employees, whose names are redacted in the indexed corpus version. The indictment identifies them by role ("Defendants [NAME], a/k/a [ALIAS], and [NAME]") and establishes, at Paragraph 1 of the Background section, that "Defendant JEFFREY EPSTEIN employed defendants [NAME], [NAME], and [NAME] to perform, among other things, services as personal assistants" EFTA01713627, p68DOJEE, EFTA01713627 on Epstein Exposed, an alternative host for the same document. The government's own proffered facts, carried later into the NPA's immunity clause EFTA00192983, p20DOJEE, EFTA00192983 on Epstein Exposed, an alternative host for the same document, named 4 individuals as illustrative (not exhaustive) members of the protected class: Sarah Kellen, Adriana Ross, Lesley Groff, and Nadia Marcinkova. Which 3 of the 4 were named in the indictment as defendants, and whether the draft would have added a 4th before filing, is a question the redactions in the current production prevent from being answered from the face of the document.

JEGE, Inc. An Epstein-controlled Delaware corporation. The indictment describes JEGE as having "sole business activities" tied to "the operation and ownership of a Boeing 727-31 aircraft bearing tail number N908JE" EFTA01713627, p69DOJEE, EFTA01713627 on Epstein Exposed, an alternative host for the same document. Epstein was the company's "president, sole director, and sole shareholder."

Hyperion Air, Inc. Another Epstein-controlled Delaware corporation. The indictment describes Hyperion Air's sole business activities as tied to "a Gulfstream G-1159B aircraft bearing tail number N909JE" EFTA01713627, p69DOJEE, EFTA01713627 on Epstein Exposed, an alternative host for the same document. Epstein was again the president, sole director, and sole shareholder.

Corporate co-defendants are not decorative in federal criminal practice. They are charged when the government intends to reach the organizational machinery of an offense. In this indictment, the aviation corporations are named as parties to the conspiracy to transport minor females across state lines for the acts charged, and their planes (the 727 and the Gulfstream) are the named instrumentalities. Count 1's Overt Acts section lists specific interstate flights aboard each of the two aircraft as acts in furtherance of the conspiracy [EFTA01713627, pp. 71-72].

The Second Addendum

On September 13, 2007, 11 days before the NPA was signed and 12 days before the planned grand jury date, the prosecution memorandum was amended. The Second Addendum, EFTA00234505, records two changes the line prosecutor was making to the package under review.

The first change is the one the record points back to most directly. "At Matt Menchel's request, I removed the corporate defendants, JEGE, Inc., and Hyperion Air, Inc." EFTA00234505, p1DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document. Matthew Menchel was a senior SDFL prosecutor during the Epstein investigation; his supervisory role over Operation Leap Year is reflected across the memorandum correspondence. The Second Addendum records his instruction without further explanation. Two corporate defendants were removed from the indictment package 11 days before the indictment was scheduled to go to a grand jury. The removal took with it the portion of the case that would have reached Epstein's aviation infrastructure as a corporate matter.

The second change was a reduction in substantive counts. "I removed the majority of the counts and have limited these charges to the four trips" EFTA00234505, p2DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document. The line prosecutor also removed "the charge related to the transporting of [REDACTED] for criminal sexual activity (18 U.S.C. § 2421) [former Count 59]" EFTA00234505, p1DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document. The reference to "former Count 59" establishes that the pre-revision draft had at least 60 numbered counts. The Second Addendum reduced the substantive travel charges to 4 trips and dropped former Count 59 entirely.

The Second Addendum also added new victims to the indictment, renumbered the Jane Doe identifiers into chronological order by first contact with Epstein or his staff, and expanded the Overt Acts in Count 1 with more specific descriptions of the alleged sexual conduct [EFTA00234505, pp. 1-2].

The 82-Page Memorandum

The second document the May 2007 posture rested on was the 82-page prosecution memorandum itself EFTA00800253, p2DOJEE, EFTA00800253 on Epstein Exposed, an alternative host for the same document. Prosecution memoranda in federal practice lay out the theory of the case, the elements of the charged offenses, the evidence supporting each count, the witnesses available to testify, and the anticipated defenses. The original 82-page version has not been produced into the indexed corpus under a clean EFTA identifier; it sits behind a series of addenda (the Second Addendum is EFTA00234505), and the Third Addendum, dated February 19, 2008, is referenced inside the Second Addendum but not yet indexed EFTA00234505DOJEE, EFTA00234505 on Epstein Exposed, an alternative host for the same document. The original memorandum is one of the Phase 2 anchor targets of the Immunity Shield investigation.

What the corpus does establish is that the memorandum was 82 pages when the Marra court cited it, and that at least two written addenda were prepared in sequence: a Second Addendum dated September 13, 2007, and a Third Addendum dated February 19, 2008, months after the NPA had taken effect.

The Page-Count Question

Marra's 2019 opinion describes the draft as 53 pages EFTA00800253, p2DOJEE, EFTA00800253 on Epstein Exposed, an alternative host for the same document. The Immunity Shield investigation's own prior evidence log describes the draft as 56 pages, revised through February 2008. The two page counts refer to different versions of the same document. One hypothesis is that the 53-page version is the draft as it stood in May 2007 when the prosecution memorandum was prepared, and the 56-page version is the revised draft worked through the Second Addendum in September 2007 and the Third Addendum in February 2008. The Third Addendum's stated purpose (Jane Doe renumbering) is the kind of revision that adds pages. The record does not confirm this reading; a clean retrieval of both the 53-page and the 56-page drafts is a Phase 2 target.

What the Record Does Not Show

Why Matthew Menchel asked the line prosecutor to remove JEGE, Inc. and Hyperion Air, Inc. from the indictment. What happened inside the Office between September 13, 2007 (the Second Addendum) and September 25, 2007 (the planned grand jury date) that resulted in the NPA being signed on September 24 instead. Whether the draft was ever presented to a grand juror in any form, even in a voluntary pre-indictment exchange. What the Third Addendum, dated February 19, 2008, contained beyond the Jane Doe renumbering. Why the draft continued to be worked on at all in February 2008, after the NPA had been operational for 5 months.

Several Items Remain Open

The 82-page prosecution memorandum, in full. The 53-page draft indictment as it stood in May 2007. The 56-page revised version of the draft. The Third Addendum of February 19, 2008. The grand-jury preparation materials that would ordinarily accompany a draft indictment of this scope. Matthew Menchel's own file memoranda on the removal of the corporate defendants. The SDNY 86-page co-conspirator memorandum (EFTA02731082), which sits on the other side of the NPA and is the next anchor target for this investigation.