U.S. Department of Justice United States Attorney Southern District of New York The Si/viol. Mollo Building One Saint Andrew's Plaza New York, New York 10007 August 28, 2019 By ECF and E-Mail Honorable Richard M. Berman United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007 Re: United States v. Jeffrey Epstein, 19 Cr. 490 (RMB) Dear Judge Berman: The Government respectfully writes in response to legal arguments raised by defense counsel at the August 27, 2019 hearing on the Government's nolle prosequi motion. As set forth below, the Court must dismiss the Indictment where, as here, the defendant has died prior to a conviction becoming final. Moreover, the Court does not have the authority, inherent or otherwise, to conduct its own inquiry into the circumstances of Jeffrey Epstein's suicide, or to supervise the ongoing Grand Jury investigation. 1. The Rule of Abatement Requires the Dismissal of the Indictment As the Court is aware, clear Second Circuit precedent requires the dismissal of an indictment when a defendant dies before his conviction becomes final, under the "well-settled rule that actions upon penal statutes do not survive the death of the wrongdoer." United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (internal citation omitted). This rule applies with full force here, and requires the dismissal of the Indictment. See Transcript of Aug. 27, 2019 Hearing ("Tr.") at 9 (Court noting that "it is appropriate to conclude that if the rule of abatement applies to a convicted defendant as in the Wright case, it should also apply a fortiori in the Epstein case, which was still in the pretrial phase when Mr. Epstein died, when there had been no conviction."); see also United States v. Brooks, 872 F.3d 78, 87 (2d Cir. 2017), cert. denied, 139 S. Ct. 171, 202 L. Ed. 2d 37 (2018) ("This general rule, almost unanimously followed by the federal Courts of Appeals, has its roots in the co