HOUSE OVERSIGHT 012194 ALLEN GUTHRIE MCHUGH & THOMAS, PLLC Mr. John Roth June 19, 2008 Page 12 the telephone (which we deny), it is black letter law that the mens rea must coincide with the actus reus. Thus, the government must prove that Mr. Epstein has the specific intent to target a known minor to engage in prohibited sexual activity at the time of the call. We have seen zero evidence of this. To the extent Mr. Epstein later may have persuaded a particular individual to engage in unlawful sexual activity during a massage, such persuasion occurred face to face, and can not work retroactively to render the earlier phone call an offense under the statute. As to the purported violation of 18 U.S.C. § 2423 for allegedly traveling in interstate commerce for the purpose of engaging in illicit sexual activity, CEOS does not deny that Mr. Epstein was returning to one of his residences when he traveled to Florida!' CEOS explicitly stated it "fully understand[s] our argument" (CEOS letter at p.2) that Mr. Epstein should not be charged under § 2423(b) because the dominant purpose for his traveling to Palm Beach was not to engage in illegal sexual activity, but to simply return to one of his residences. Rather, this is apparently another "compelling" point of law which may be left to "a court to decide whether the law properly reaches such conduct." (CEOS letter at p. 2).5 Notably, implicit in this concession by CEOS is that the law has never before been so applied, that is, there is no precedent for a court to extend the statute as the USA() seeks to do here. In fact, the United States Supreme Court prohibited the criminalization of travel under identical circumstances over a half century ago. See Mortenson v. United States, 322 U.S. 369, 374 (1944) (intention to engage in proscribed conduct must "exist before the conclusion of the interstate journey and must be the domMate motive of such interstate movement." (Emphasis added.) Beyond an absence of p