OPR report excerpt on Epstein's delayed guilty plea and Departmental review, 2007

D. Epstein Further Delays His Guilty Plea¶

The addendum did not bring the case to conclusion. Instead, the matter entered a new, protracted phase, which involved the upper echelons of the Department of Justice. Despite the fact that Epstein and his attorneys had signed the NPA, they pursued a new strategy of appealing to senior Department managers with the goal of setting aside the NPA entirely. Although ultimately unsuccessful, the strategy delayed the entry of Epstein’s guilty plea by months.¶

On October 29, 2007, Villafaña emailed Sloman, raising several issues that she wanted Sloman to address with Lefkowitz. Among other things, Villafaña pointed out that the NPA required Epstein to use his “best efforts” to comply with the agreement, but he had failed to comply with the timeline established by the NPA when he sought and obtained a plea hearing postponement from October 26 to November 20. Responding to Lefkowitz’s attempts to limit the USAO’s communications with various entities and individuals, Villafaña noted that the USAO needed to be able to communicate with the State Attorney’s Office and the victims’ attorney “to [e]nsure that Epstein is abiding by the terms of the agreement.”¶

That same day, Assistant State Attorney Belohlavek informed Sloman that the state judge assigned to the case had scheduled Epstein’s plea and sentence in early January 2008. Belohlavek assured Sloman that the “plea and sentence will definitely occur before the January 4th date that was agreed on by all for the sentencing.”{sup}149 Nonetheless, emails over the course of the next month show that the USAO, the State Attorney’s Office, and defense counsel continued to communicate regarding the date of the guilty plea, with the USAO asserting that a proposed January 7, 2008 date for the entry of Epstein’s guilty plea was “unacceptable,” while the defense contended that Epstein had not agreed to any date. Finally, after multiple communications referring to various potential dates, on December 7, 2007, Epstein attorney Jack Goldberger issued a Notice of Hearing, setting the case for January 4, 2008.{sup}150¶

E. Epstein Seeks Departmental Review of the NPA’s § 2255 Provision Relating to Monetary Damages for the Victims¶

With Epstein’s plea hearing delayed, he launched a new effort to undermine the validity of the NPA, this time within the Department. On November 16, 2007, Epstein attorney Kenneth Starr called the office of Assistant Attorney General for the Criminal Division Alice Fisher and left a message that he was calling regarding Epstein.{sup}151 At Fisher’s request, Lourie, who in late September 2007 had begun serving his detail as Fisher’s Principal Deputy and Chief of Staff, returned the call. Fisher told OPR that she had no recollection of this call, and Lourie also could¶

{sup}149 The NPA had required Epstein’s plea and sentencing to occur by October 26, 2007, but provided that Epstein could report to begin serving his sentence on January 4, 2008.¶

{sup}150 State v. Epstein, No. 2006-CF-9454, Notice of Hearing (Fifteenth Judicial Circuit, Dec. 7, 2007).¶

{sup}151 In a meeting with Acosta and Sloman on November 21, 2007, Lefkowitz informed them that Starr had placed a call to Fisher.¶

not recall for OPR the substance of his conversation with Starr, other than that it was likely about Epstein’s wish to have the Department review the case.{sup}152¶

On November 28, 2007, Starr requested, by letter, a meeting with Fisher. In his letter, Starr argued that the USAO improperly had compelled Epstein to agree to pay civil damages under 18 U.S.C. § 2255 as part of a state-based resolution of a criminal case. On the same day, Lefkowitz emailed Sloman, complaining about the USAO’s plan to notify victims about the § 2255 provision and alerting Sloman that Epstein’s counsel were seeking a meeting with the Assistant Attorney General “to address what we believe is the unprecedented nature of the section 2255 component” of the NPA. After Lourie sent to Sloman a copy of the Starr letter, Sloman forwarded it to Villafaña, asking her to prepare a chronology of the plea negotiations and how the § 2255 provision evolved. Villafaña responded that she was “going through all of the ways in which they have tried to breach the agreement to convince you guys to let me indict.”¶

In Washington, D.C., Lourie consulted with CEOS Chief Oosterbaan, asking for his thoughts on defense counsel’s arguments. At the same time, at Lourie’s request, Villafaña sent the NPA and its addendum to Lourie and Oosterbaan. Oosterbaan responded to Lourie that he was “not thrilled” about the NPA; described Epstein’s conduct as unusually “egregious,” particularly because of its serial nature; and observed that the NPA was “pretty advantageous for the defendant and not all that helpful to the victims.” He opined, however, that the Assistant Attorney General would not and should not consider or address the NPA “other than to say that she agrees with it.” During her OPR interview, Fisher did not recall reading Starr’s letter or discussing it with Oosterbaan, but believed the comment about her “agree[ing] with it” referred to a federal prosecution of Epstein, which she believed was appropriate. She told OPR, however, that she “played no role in” the NPA and did not review or approve the agreement either before or after it was signed.¶

As set forth in more detail in Chapter Three of this Report, Villafaña planned to notify the victims about the NPA and its § 2255 provision, as well as about the state plea hearing, and she provided a draft of the notification letter to Lefkowitz for comments. On November 29, 2007, Lefkowitz sent Acosta a letter complaining about the draft notification to the victims. Lefkowitz asked the USAO to refrain from notifying the victims until after defense counsel met with Assistant Attorney General Fisher, which he anticipated would take place the following week. Internal emails indicate that Lourie contacted Oosterbaan about his availability for a meeting with Starr, but both Fisher and Lourie told OPR that such a meeting never took place, and OPR found no evidence that it did.¶

Acosta promptly responded to Lefkowitz by letter, directing him to raise his concerns about victim notification with Villafaña or Sloman. Acosta also addressed Epstein’s evident efforts to stop the NPA from being enforced:¶

{sup}152 In a short email to Fisher, the next day, Lourie reported simply: “He was very nice. Kept me on the phone for [a] half hour talking about [P]epperdine,” referring to the law school where Starr served as [REDACTED].¶

[S]ince the signing of the September 24th agreement, more than two months[] ago, it has become clear that several attorneys on your legal team are dissatisfied with that result.¶

… [You], Professor Dershowitz, former Solicitor [General] Starr, former United States Attorney [REDACTED] and Messrs. Black, Goldberger and Lefcourt previously had the opportunity to review and raise objections to the terms of the Agreement. The defense team, however, after extensive negotiation, chose to adopt the Agreement. Since then counsel have objected to several steps taken by the U.S. Attorney’s Office to effectuate the terms of the Agreement, in essence presenting collateral challenges to portions of the Agreement.¶

It is not the intention of this Office ever to require a defendant to enter a plea against his wishes. Your client has the right to proceed to trial. If your client is dissatisfied with his Agreement, or believes that it is unlawful or unfair, we stand ready to unwind the Agreement.¶

In a separate, seven-page letter to Starr, with Villafaña’s and Sloman’s input, Acosta responded to the substance of Starr’s November 28 letter to Assistant Attorney General Fisher. Fisher told OPR that she did not recall why Acosta, rather than her office, responded to the letter, but she conjectured that “probably I was trying to make sure that somebody responded since [the Criminal Division wasn’t] going to respond.”{sup}153¶

In his seven-page letter, sent to Starr on December 4, 2007, Acosta wrote:¶

The Non-Prosecution Agreement entered into between this Office and Mr. Epstein responds to Mr. Epstein’s desire to reach a global resolution of his state and federal criminal liability. Under this Agreement, this District has agreed to defer prosecution for enumerated sections of Title 18 in favor of prosecution by the State of Florida, provided … Mr. Epstein satisfies three general federal interests: (1) that Mr. Epstein plead guilty to a “registerable” offense; (2) that this plea include a binding recommendation for a sufficient term of imprisonment; and (3) that the Agreement not harm the interests of his victims.¶

Acosta explained in the letter that the USAO’s intent was “to place the identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less.” Acosta documented the USAO’s understanding of the operation of the NPA’s § 2255¶

{sup}153 The USAO may have been asked to respond because Starr’s letter raised issues that had not been previously raised with the USAO, and it would normally fall to the USAO to address them in the first instance.¶

provision, recounted the history of NPA negotiations, and described the post-signing efforts by Epstein’s counsel to challenge portions of the NPA. Acosta’s letter concluded:¶

Although it happens rarely, I do not mind this Office’s decision being appealed to Washington, and have previously directed our prosecutors to delay filings in this case to provide defense counsel with the option of appealing our decisions. Indeed, although I am confident in our prosecutors’ evidence and legal analysis, I nonetheless directed them to consult with the subject matter experts in [CEOS] to confirm our interpretation of the law before approving their [charges]. I am thus surprised to read a letter addressed to Department Headquarters that raises issues that either have not been raised with this Office previously or that have been raised, and in fact resolved, in your client’s favor.¶

I am troubled, likewise, by the apparent lack of finality in this Agreement. The AUSAs who have been negotiating with defense counsel have for some time complained to me regarding the tactics used by the defense team. It appears to them that as soon as resolution is reached on one issue, defense counsel finds ways to challenge the resolution collaterally. My response thus far has been that defense counsel is doing its job to vigorously represent the client. That said, there must be closure on this matter. Some in our Office are deeply concerned that defense counsel will continue to mount collateral challenges to provisions of the Agreement, even after Mr. Epstein has entered his guilty plea and thus rendered the agreement difficult, if not impossible, to unwind.¶

… I would reiterate that it is not the intention of this Office ever to force the hand of a defendant to enter into an agreement against his wishes. Your client has the right to proceed to trial. Although time is of the essence … I am directing our prosecutors not to issue victim notification letters until this Friday … to provide you with time to review these options with your client… . We expect a written decision by [December 7, 2007] at 5 p.m., indicating whether the defense team wishes to reaffirm, or to unwind, the Agreement.¶

Acosta explained to OPR that he did not view his letter as “inviting” Departmental review, but he believed the Department had the “right” to address Epstein’s concerns. Moreover, the USAO’s only option at that time was to declare Epstein in breach of the NPA, which would have prompted litigation as to whether Epstein was, in fact, in breach. Acosta noted that defense counsel repeatedly proclaimed Epstein’s intent to abide by the agreement, making any USAO effort to declare him in breach more difficult. In fact, the day after receiving Acosta’s letter, Starr and Lefkowitz responded to Acosta (with copies to Sloman and Assistant Attorney General Fisher) that¶

the defense “[f]irst and foremost” reaffirmed the NPA and that Epstein “has no intention of unwinding the agreement.”¶

On December 7, 2007—the deadline set by Acosta in his December 4, 2007 letter to Starr—the defense transmitted to the USAO a one-sentence “Affirmation” of the NPA and its addendum, signed by Epstein.{sup}154¶

F. Despite Affirming the NPA, Defense Counsel Intensify Their Challenges to It and Accuse Villafaña of Improper Conduct¶

1. December 7 and 11, 2007: Starr and Lefkowitz Send to Acosta Letters and “Ethics Opinions” Complaining about the Federal Investigation and Villafaña¶

On the same day that the defense team sent Epstein’s “Affirmation” to the USAO, Starr and Lefkowitz sent to Acosta two “independent ethics opinions”—one authored by prominent criminal defense attorney and former U.S. Attorney Joe Whitley, which assessed purported improprieties in the federal investigation of Epstein, and the other, by a prominent retired federal judge and former U.S. Attorney, arguing against the NPA’s use of the civil damages recovery provision under 18 U.S.C. § 2255 “as a proxy for traditional criminal restitution.”¶

Days later, on December 11, 2007, Starr sent a letter to Acosta transmitting two lengthy submissions authored by Lefkowitz presenting substantive challenges to the NPA and to the “background and conduct of the investigation.” These submissions repeated arguments previously raised by the defense but also asserted new issues. In one submission, 20 pages long, Lefkowitz addressed the “improper involvement” of federal authorities in the investigation and criticized Villafaña for a number of alleged improprieties, including having engaged in “unprecedented federal overreaching” by seeking to prosecute Epstein federally, “insist[ing]” that the State Attorney’s Office “charge Mr. Epstein with violations of law and recommend a sentence that are significantly harsher than what the State deemed appropriate,” and requiring that Epstein plead guilty to a registrable offense, a “harsh” condition that was “unwarranted.”{sup}155¶

Lefkowitz also argued that the federal investigation relied upon a state investigation that was “tainted” by the lead PBPD Detective’s misrepresentation of key facts in affidavits and interview summaries, leading the USAO to make its charging decision based on flawed information that “compromised the federal investigation.” Finally, Lefkowitz criticized federal involvement in the state plea process as a violation of “the tenets of the Petite Policy.” In a second, 13-page submission, Lefkowitz reiterated Epstein’s complaints about the § 2255 component of the NPA, arguing, among other things, that federal prosecutors “should not be in the business of helping alleged victims of state crimes secure civil financial settlements.”¶

{sup}154 The Affirmation read: “I, Jeffrey E. Epstein do hereby re-affirm the Non-Prosecution Agreement and Addendum to same dated October 30, 2007.”¶

{sup}155 Villafaña sent Lefkowitz a five-page letter responding to the accusations made against her personally.¶

Notwithstanding these voluminous submissions, Lefkowitz added that Epstein “unconditionally re-asserts his intention to fulfill and not seek to withdraw from or unwind” the NPA.¶

2. As a Result of the Starr and Lefkowitz Submissions, the New USAO Criminal Chief Begins a Full Review of the Evidence, and Acosta Agrees to Meet Again with Defense Counsel¶

After reviewing Starr’s and Lefkowitz’s letters, Sloman notified Villafaña that “in light of the recent Kirkland & Ellis correspondence” he had asked Robert Senior, who had succeeded Menchel as Chief of the USAO’s Criminal Division, to review de novo the evidence underlying the proposed revised indictment, and Sloman asked Villafaña to provide Senior with all the state and FBI investigative materials.¶

In the meantime, Acosta agreed to meet with Starr and other Epstein defense attorneys to discuss the defense complaints raised in Lefkowitz’s December 11, 2007 submissions.{sup}156 The meeting took place in Miami on December 14, 2007. The defense team included Starr, Dershowitz, Lefcourt, and Boston attorney [REDACTED] Weinberg. The USAO side included Acosta, Sloman, Villafaña, and another senior AUSA, with the Miami FBI Special Agent in Charge and Assistant Special Agent in Charge also present. In addition to previously raised arguments, during this meeting, Epstein’s attorneys raised a new argument—that the state charge to which Epstein had agreed to plead guilty did not apply to the facts of the case.¶

3. The Defense Notifies Acosta That It May Pursue a Department Review of the USAO’s Actions¶

Shortly after the December 14, 2007 meeting, Lefkowitz notified Acosta that if the issues raised at the meeting could not be resolved promptly, the defense team may “have no alternative but to seek review in Washington.” Acosta notified Assistant Attorney General Fisher that the defense team might make an appeal to her, and he asked her to grant such a request for review and “to in fact review this case in an expedited manner [in order] to preserve the January 4th plea date.” Starr and Lefkowitz then sent to Acosta a lengthy letter, with numerous previously submitted defense submissions, reviewing issues discussed at the meeting, and advising that Epstein sought a “prompt, independent, expedited review” of the evidence by “you or someone you trust.” The letter reiterated Epstein’s position that his conduct did not amount to a registrable offense under state law or a violation of federal law, and with respect to the NPA’s § 2255 provision, that it was “improper” to require Epstein to pay damages “to individuals who do nothing but simply assert a claim” under the statute.¶

{sup}156 As Assistant Attorney General Fisher’s Chief of Staff, Lourie had informed Starr that Fisher hoped Starr would speak to Acosta to “resolve the[] fairly narrow issues” raised in Starr’s correspondence with Acosta. Acosta had the Starr and Lefkowitz submissions of December 11 forwarded to Fisher.¶

4. Acosta Attempts to Revise the NPA § 2255 Language concerning Monetary Damages, but the Defense Does Not Accept It¶

Acosta undertook to respond to defense counsel’s continuing concern about the § 2255 provision. He sent to Deputy Assistant Attorney General Sigal Mandelker language that he proposed including in a revision to the NPA’s § 2255 implementation section. Mandelker forwarded the language to her counterpart in the Civil Division, who responded to Mandelker and Acosta that he did not have “any insight” to offer. On December 19, 2007, after Acosta and Sloman had a phone conversation with Starr and Lefkowitz, Acosta sent to Sanchez a letter proposing to resolve “our disagreements over interpretation[]” by replacing the existing language of the NPA relating to § 2255 with a provision that would read:¶

Any person, who while a minor, was a victim of a violation of an offense enumerated in Title 18, United States Code, Section 2255, will have the same rights to proceed under Section 2255 as she would have had, if Mr. Epstein [had] been tried federally and convicted of an enumerated offense. For purposes of implementing this paragraph, the United States shall provide Mr. Epstein’s attorneys with a list of individuals whom it was prepared to name … as victims of an enumerated offense by Mr. Epstein. Any judicial authority interpreting this provision, including any authority determining which evidentiary burdens if any a plaintiff must meet, shall consider that it is the intent of the parties to place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less.¶

Acosta also noted that he had resisted his prosecutors’ urging to declare the NPA breached by the defense delays.{sup}157¶

Lefkowitz responded by letter a few days later, suggesting that Acosta’s proposal raised “several troubling questions” and that “the problem arises from the incongruity that exists when attempting to fit a federal civil remedies statute into a criminal plea agreement.”{sup}158 In a follow-up letter to Acosta, to address the USAO’s concern that Epstein was intentionally delaying the entry of his guilty plea, Lefkowitz asserted that “any impediment to the resolution at issue is a direct cause of the disagreements between the parties,” and that defense counsel had “at all times made and will continue to make sincere efforts to resolve and finalize issues as expeditiously as possible.”¶

Acosta told OPR that despite this assurance from defense counsel, he was “increasingly frustrated” by Epstein’s desire to take an “11th hour appeal” to the Department so soon before the¶

{sup}157 As described in detail in Chapter Three, Acosta’s December 19, 2007 letter also addressed defense objections to notifying the victims about the NPA and the state plea.¶

{sup}158 After Starr and Lefkowitz had another conversation with Acosta and Sloman, Lefkowitz sent a second letter to Acosta reiterating concerns with the § 2255 provision and asserting that the provision was “inherently flawed and becoming truly unmanageable.” In the end, the defense team rejected Acosta’s December 19, 2007 NPA modification letter.¶

scheduled January 4, 2008 plea hearing. As soon became apparent, Acosta was unable to achieve an expedited review so that Epstein could plead guilty and be sentenced by January 4, 2008, and the plea and sentencing date was rescheduled. On January 2, 2008, Sloman spoke with Assistant State Attorney Belohlavek, who confirmed that the change of plea hearing had been postponed. In an email reporting this to Acosta and Villafaña, Sloman said that Epstein’s local defense attorney Goldberger had told Belohlavek the postponement was because the facts “did not fit the proposed state charge,” and that Belohlavek told Sloman she agreed with that assessment.{sup}159 The next day, Villafaña sent to Acosta and Sloman a local newspaper article reporting that Epstein’s state plea hearing was reset for March and in exchange for it the federal authorities would drop their investigation of him. Acosta also sent to Sloman and Villafaña an email memorializing a statement made to him by Lefkowitz in a phone call that day: “I [Lefkowitz] may have made a mistake 6 months ago. [Belohlavek] told us solicitation [is] not registrable. It turns out that the actual offense charged is.”{sup}160¶

5. January 7, 2008: Acosta and Sloman Meet with [REDACTED], Who Makes Additional Allegations of USAO Misconduct¶

On January 7, 2008, Acosta and Sloman met with defense attorney [REDACTED] at her request. According to meeting notes made by Sloman, among other things, [REDACTED] alleged that the USAO’s media spokesperson had improperly disclosed details of the Epstein case to a national news reporter, and [REDACTED] “suggested that the USAO could avoid any potential ugliness in DC by agreeing to a watered-down resolution for Epstein.” After Acosta excused himself to attend another meeting and Sloman refused to speak further with [REDACTED] “without a witness present,” she left. Later that day, Acosta and Sloman spoke by phone with Starr, Lefkowitz, and [REDACTED], who expressed concern about the “leak” to the news media, reiterated their objections to the NPA, and pressed for the “watered-down resolution,” which they specified would mean allowing Epstein to plead to a charge of coercion instead of procurement, avoid serving time in jail, and not register as a sexual offender. A note in the margin of Sloman’s handwritten notes of the conversation reads: “We’re back to where we started in September.”¶

That evening, Villafaña expressed concern that the delay in resolving the matter was affecting the USAO’s ability to go forward with a prosecution should Epstein renege on his agreement, and she outlined for Acosta and Sloman the steps she proposed to take while Epstein was pursuing Departmental review. Those steps included re-establishing contact with victims, interviewing victims in New York and one victim who lived in a foreign country, making contact with “potential sources of information” in the Virgin Islands, and re-initiating proceedings to obtain Epstein’s computers.¶

In the meantime, USAO Criminal Division Chief Robert Senior performed a “soup to nuts” review of the Epstein investigation, reviewing the indictment package and all of the evidence Villafaña had compiled. He told OPR that he could not recall the reason for his review, but opined¶

{sup}159 Belohlavek told OPR that she did not recall this incident, but she noted that the PBPD report did set forth facts supporting the charge of procurement of a minor.¶

{sup}160 Although the meeting Lefkowitz had with Lourie, Villafaña, Krischer, and Belohlavek to discuss the state resolution was only four months prior, not six, Lefkowitz’s reference was likely to the September 12, 2007 meeting.¶

that it was to establish whether, if the plea fell apart, he, as Chief, would agree “that we can go forward with” the charges. He did recall being concerned, after completing the review, that “we did not have … a lot of victims … lined up and ready to testify” and that some victims might “not be favorable for us.” Nevertheless, he concluded that the proposed charges were sound, and he told Acosta that he would approve proceeding with a federal case.¶

6. Acosta Asks CEOS to Review the Evidence¶

Notwithstanding Senior’s favorable review, Acosta and Sloman told Starr and Lefkowitz that they “appreciate[d]” that the defense wanted a “fresh face” to conduct a review, and noted that the Criminal Chief had not undertaken the “in-depth work associated with the issues raised by the defense.” They told the defense team that Acosta had asked CEOS to “come on board” and that CEOS Chief Oosterbaan would designate an attorney having “a national perspective” to conduct a fresh review in light of the defense submissions. Oosterbaan assigned a CEOS Trial Attorney who Villafaña understood was to review the case and prepare for trial in the event Epstein did not “consummate” the NPA. The CEOS Trial Attorney traveled to Florida to review the case materials, and to meet with Villafaña to discuss the case and interview some of the victims. After one such meeting, Villafaña wrote to Acosta and Sloman:¶

We just finished interviewing three of the girls. I wish you could have been there to see how much this has affected them.¶

One girl broke down sobbing so that we had to stop the interview twice within a 20 minute span. She regained her composure enough to continue a short time, but she said that she was having nightmares about Epstein coming after her and she started to break down again, so we stopped the interview.¶

The second girl … told us that she was very upset about the 18 month deal she had read about in the paper. She said that 18 months was nothing and that she had heard that the girls could get restitution, but she would rather not get any money and have Epstein spend a significant time in jail.¶

These girls deserve so much better than they have received so far, and I hate feeling that there is nothing I can do to help them.{sup}161¶

The CEOS Trial Attorney had substantial experience prosecuting child exploitation cases. She told OPR that in her view, the victim witnesses in this case presented a number of challenges for a prosecution: some of the victims did not want to admit they had sexual contact with Epstein; some had recruited other victims to provide Epstein massages, and thus could have been charged as accomplices; some had “drug histories and … things like that”; some could appear to have been “complicit”; and there was no evidence of physical violence against the victims. She did not regard¶

{sup}161 Villafaña added, “We have four more girls coming in tomorrow. Can I persuade you to attend?”¶

these victim issues as insurmountable but, based on these alone, the CEOS Trial Attorney considered a potential prosecution of Epstein to be a “crap shoot.” In addition, she told OPR that there were novel legal issues in the case that also presented difficulties, although she believed these difficulties could be overcome. Shortly after the CEOS Trial Attorney met with the victims, however, “things just stopped” when Oosterbaan instructed her to cease her involvement in the case and CEOS engaged in the Criminal Division review sought by Epstein’s defense team.¶

IX. FEBRUARY – JUNE 2008: THE DEPARTMENT’S REVIEW¶

Epstein’s defense attorneys sought a broad review from the Department, one that would encompass the defense complaints about federal jurisdiction, specific terms in the NPA, and the various allegations of professional misconduct by USAO attorneys and other personnel. The Department, however, only reviewed the issue of federal jurisdiction and never reviewed the NPA or any specific provisions.{sup}162 Nonetheless, the process took several months as the defense appealed first to CEOS and the Department’s Criminal Division, and then to the Office of the Deputy Attorney General. The chart set forth on the following page shows the positions and relationships among the individuals in those offices involved in communicating with the USAO or defense beginning in November 2007 or in those offices’ reviews, which continued through June 2008.¶

Villafaña became aware of this requirement in late February 2008, and she prepared a written notification that was edited by Sloman, who discussed it with Acosta. After briefly summarizing the facts, Senior advised:¶

The Office anticipates charges of violations of Title 18, United States Code, Sections 371, 2422, 2423, and 1591. The investigation of the case by the City of Palm Beach Police Department has resulted in press coverage because of the titillating nature of the facts, but we see this case as similar to other “child prostitution” cases charged by our office, and not a matter of “national interest” as defined by the U.S. Attorney’s Manual.¶

In the notification, Senior stated that CEOS “has been involved and is currently reviewing the matter,” he anticipated the case would be staffed by USAO and Department personnel, and “[i]f we determine that the case should be [charged], a copy [of the charging document] will be forwarded to you.” OPR did not locate a response from the Civil Rights Division to the notification.¶

{sup}162 On February 28, 2008, USAO Criminal Division Chief Senior sent to the Civil Rights Division written notification of the USAO’s “ongoing investigation of a child exploitation matter” involving Epstein and others “that may result in charges of violations of 18 U.S.C. § 1591.” USAM § 8-3.120 required a U.S. Attorney to notify the Civil Rights Division, in writing, “[a]t the outset of a criminal investigation … that may implicate federal criminal civil rights statutes, … and in no event later than ten days before the commencement of the examination of witnesses before a grand jury.” The provision also required notification to CEOS in cases involving sex trafficking of minors. The written notification was to identify the targets of the investigation, the factual allegations to be investigated, the statutes which may have been violated, the U.S. Attorney’s assessment of the significance of the case, whether the case was of “national interest” and the U.S. Attorney’s proposed staffing of the matter.¶

Alice Fisher¶

Andrew Lourie{sup}# Principal Deputy¶

Sigal Mandelker Deputy Assistant Attorney General¶

Andrew Oosterbaan Chief, CEOS¶

Mark Filip¶

John Roth Senior Associate¶

{sup}#Until late Feb. 2008¶

A. February – May 15, 2008: Review by CEOS and the Criminal Division¶

On February 21, 2008, soon after the CEOS Trial Attorney met with victims, Oosterbaan spoke with Lefkowitz about CEOS’s role. In a subsequent email to Villafaña, Sloman, and Senior, Oosterbaan explained:¶

I told [Lefkowitz] that all I want to do is help the process move forward, and if they think we best help the process by taking a fresh and objective look at the case and their arguments [then] that is what I want to do. I told him that if that’s what they want – if that is what will help the process to move forward – then I don’t think it’s advisable for CEOS to partner with the USAO on the case. He wants to think about that (and probably talk to his co-counsel about¶

whether it is better to have us partnered in the case or just serve a review function) and he said he’d get back to me later today.¶

Oosterbaan told OPR that this email reflects that he likely told Acosta that he intended to limit CEOS’s role to review only, and Acosta asked him to “make sure the defense is okay with that,” to preempt a possible defense complaint about CEOS’s involvement in the review. Oosterbaan explained to OPR that “the defense ke[pt] bringing up new arguments and new problems and [the USAO was saying] look if we’re going to do this, if you’ve got a problem with it, tell us now.”¶

By February 25, 2008, Lefkowitz told Oosterbaan, who informed Sloman, that the CEOS role should be “review only.” Lourie had just then left the Department to enter private practice, and Oosterbaan continued to keep his direct supervisor, Deputy Assistant Attorney General Mandelker, informed of the defense team contacts. Sloman emailed Lefkowitz that CEOS was “ready to proceed immediately” with a review of the matter. Sloman advised Lefkowitz that “in the event CEOS decides that a federal prosecution should not be undertaken against Mr. Epstein, this Office will close its investigation,” but that, “should CEOS disagree with Mr. Epstein’s position, Mr. Epstein shall have one week to abide by [the NPA].” Sloman forwarded this email to Villafaña, who responded, “Why would we possibly let him keep the same deal after all he has put us through? And after we have discovered 6 new girls …”¶

The defense soon signaled that the CEOS review would not end Epstein’s requests for the Department’s involvement. On February 29, 2008, Lefkowitz requested a defense meeting with Oosterbaan on March 12, 2008.{sup}163 Starr spoke to Assistant Attorney General Fisher and “made it clear that [the defense team would] want an audience with her if [CEOS] decid[ed] to support the prosecution.” On March 6, 2008, Acosta alerted Sloman and Oosterbaan that Starr and Lefkowitz had called him to express “concern” about Oosterbaan’s participation in the case, and indicated that “they may ask for more senior involvement.” Acosta “informed them that they certainly had the right to ask whomever they wanted for whatever they thought appropriate, and that whatever process would be given them was up to whomever they asked.”¶

The next day, Lefkowitz followed up with Acosta in an email:¶

We appreciate that you will afford us as much time as Main Justice determines is appropriate for it to conduct a review of this matter. As you have suggested, we will initiate that review process with Drew Oosterbaan, and engage in a discussion with him about all of the facts and circumstances, as well as the legal and policy issues associated with this case… . However, due to our misgivings (engendered because Drew has told us that he sees himself as a prosecutor and has already made clear he would be ready and willing to prosecute this case himself[]) we may well find it necessary to¶

{sup}163 The defense team meeting with CEOS was originally to be set for late January, but never got scheduled for that time. On February 25, Sloman informed Lefkowitz that the USAO was “very concerned about additional delays” in the Departmental review process, but would agree to a short extension of the March 3 deadline “to provide CEOS time to engage in a thorough review.”¶

appeal an adverse determination by him within the DOJ. Ken [Starr] and I appreciate that you understand this and have no objection to our seeking appellate review within DOJ.¶

Start, Lefkowitz, ane Weinberg attended the March 12, 2008 meeting, as well as the former Principal Deputy Chief of CEOS, who had joined the Epstein defense team. Oosterbaan, Mandelker, and a current CEOS Deputy Chief represented the Department. The current CEOS Deputy Chief told 0PR that it was primarily a “listening session” with Starr doing most of the presentation. Oosterbaan told OPR that he recalled “some back and forth” b use the defense team was saying “some outrageous things.” Both Oosterbaan and his Deput of were disturbed that the former CEOS Principal Deputy Chief, who had been an aggressi v for child exploitation prosecutions, was supporting the defense position, although ding to the CEOS Deputy Chief, the former Principal Deputy Chief gave only a “weajrphj t was not effective.¶

After the meeting, Starr and Lefkowitz made multiple written s mts ons to the Criminal Division. One submission provided a lengthy list of USAO actig tha e caused us serious concern,” including the following:¶

“Federal involvement in a state criminal without any communication with state authorities”.1

¶

the issuance of legal process and nt equests for items that “had no connection to the con is ’;

¶

the nomination “of an in ly associated with one of the Assistant United State me involved in this case” to serve as the victims’ attome rive;

¶

the “insisten make sworn notification letter inviting the victims to at Epstein’s sentencing; and

¶

the pu law ft inst E existence of a “relationship” between Sloman and a enting several of the alleged victims in civil suits ein. {sup}165

¶

complaint appeared to be at odds with Villafatla’s understanding that the defense objected to USAO coma ‘ons with the gale authorities. In November 2007, Simian noted to Lefkowitz, “Your recent COITC’.. ’ crcc attempting to restrict our Office from communicating with the State Attorney’s Office … raises concern” In a March 2008 email reporting to CEOS about the state case. Villafatia noted that she did not know whether a state “misdemeanor deal [was’ back on the table because the defense demanded tint we have no contact with the Slate Attorney’s Office, so I haven’t spoken with the [Assistant State Attorney] in over 6 months.” Villafana later reported to Acosta and Siouan that when Krischer coinplained to her that the USAO had not been communicating with him, she explained to Krischer that “it was the defense who were blocking the channels of communication.”¶

I65 In approximately 2001, Sloman briefly left the USAO and for a few months was in private practice with a Miami attorney, whose practice specialized in plaintiffs’ sexual abuse claims. During 2007-2008, the attorney¶

In another letter, Starr renewed the defense accusation that the USAO improperly disclosed information about the case to the media, and accused Sloman and Villafaña of “encouraging civil litigation” against Epstein. Finally, in a letter to Assistant Attorney General Fisher on May 14, 2008, Starr thanked her for having spoken with him the previous day, reiterated the defense team’s various complaints, and asked her to meet with him, Lefkowitz, and Whitley.¶

Meanwhile, Oosterbaan’s Deputy Chief drafted a decision letter to be sent from Oosterbaan to Lefkowitz, and over the course of several weeks, it was reviewed by and received input from Deputy Assistant Attorney General Mandelker and Assistant Attorney General Fisher, as well as the Criminal Division’s Appellate Section (regarding certain legal issues) and Office of Enforcement Operations (regarding the Petite policy). Oosterbaan told OPR that, notwithstanding the defense submissions on a wide variety of issues and complaints, CEOS’s review was limited to determining whether there was a basis for a federal prosecution of Epstein.¶

Oosterbaan’s letter, sent to Lefkowitz on May 15, 2008, notified the defense team that CEOS had completed its independent evaluation of whether prosecution of Epstein for federal criminal violations “would contradict criminal enforcement policy interests.” The letter specified that CEOS’s review addressed the “narrow question” of whether a legitimate basis existed for a federal prosecution, and that CEOS did not conduct a de novo review of the facts, analyze issues relating to federal statutes that did not pertain to child exploitation, or review the terms of the NPA or the prosecutorial misconduct allegations. The letter stated that based on its examination of the material relevant to its limited review of the matter, CEOS had concluded that “federal prosecution in this case would not be improper or inappropriate” and that Acosta “could properly use his discretion to authorize prosecution in this case.”¶

On May 19, 2008, Lefkowitz added out to Acosta to request a meeting and specifically asked that Acosta “not shunt me off to one of your staff.” Lefkowitz made several points in support of the request for a meeting: (1) CEOS’s letter acknowledged that federal prosecution of Epstein would involve a “novel application” of relevant federal statutes;{sup}166 (2) CEOS’s conclusion that federal prosecution would not be “an abuse of discretion” was “hardly an endorsement” of the case;{sup}167 (3) CEOS did not address Epstein’s prosecutorial misconduct allegations; and (4) “critical new evidence,” in the form of recent defense counsel depositions of victims confirmed “that¶

represented Epstein victims. The Epstein defense team alleged in the letter that Sloman’s past association with the attorney caused Sloman to take actions to favor victims’ potential civil lawsuits against Epstein.¶

{sup}166 Oosterbaan’s letter stated, “Mr. Acosta can soundly exercise his authority to decide to pursue a prosecution even though it might involve a novel application of a federal statute.” This statement referred to a defense argument based on a prior Departmental expression of concern about a Congressional proposal to expand federal law to “adult prostitution where no force, fraud or coercion was used.” Oosterbaan stated that “the Department’s efforts are properly focused on the commercial sexual exploitation of children”—even if wholly local—and “the exploitation of adults through force, fraud, or coercion.” He then observed that the fact “that a prosecution of Mr. Epstein might not look precisely like the cases that came before it is not dispositive.”¶

{sup}167 Oosterbaan began his letter, however, by making it clear that CEOS had considered “the narrow question as to whether there is a legitimate basis for the U.S. Attorney’s Office to proceed with a federal prosecution of Mr. Epstein.”¶

federal prosecution is not appropriate in this case.”{sup}168 Lefkowitz alluded to the possibility of seeking further review of the matter by the Deputy Attorney General or Attorney General, should the defense be unable to “resolve this matter directly with” Acosta.¶

Acosta declined the request to respond personally and directed Lefkowitz to communicate with the “trial team.” That same day, Sloman sent Lefkowitz a letter asking that all further communication about the case be made to Villafaña or her immediate supervisor, and reiterating that Acosta would not respond personally to counsel’s email or calls. Sloman noted that the USAO had “bent over backwards to exhaustively consider and re-consider” Epstein’s objections, but “these objections have finally been exhausted.” Sloman advised that the USAO would terminate the NPA unless Epstein complied with all of its terms by the close of business on June 2, 2008.¶

B. May – June 23, 2008: Review by the Office of the Deputy Attorney General¶

Also on May 19, 2008, Starr and Whitley co-authored a letter to Deputy Attorney General Mark Filip asking for review “of the federal involvement in a quintessentially state matter.”{sup}169 In the letter, they acknowledged that CEOS had recently completed “a very limited review” of the Epstein case, but contended that “full review of all the facts is urgently needed at senior levels of the Justice Department.” They argued that federal prosecution of Epstein was “unwarranted,” and that “the irregularity of conduct by prosecutors and the unorthodox terms of the [NPA] are beyond any reasonable interpretation of the scope of a prosecutor’s responsibilities.” They followed up with a second letter on May 27, 2008, in which they asserted “the bedrock need for integrity in the enforcement of federal criminal laws” and “the profound questions raised by the unprecedented extension of federal laws … to a prominent public figure who has close ties to President Clinton” required Departmental review. On this latter point, they argued that Epstein “entered the public arena only by virtue of his close personal association with former President Bill Clinton,” and that there was “little doubt” that the USAO “never would have contemplated a prosecution in this case if Mr. Epstein were just another ‘John.’” This was the first defense submission mentioning Epstein’s connection to President Clinton and raising the insinuation that the federal involvement in the investigation was due to politics.¶

In the May 27, 2008 letter to the Deputy Attorney General, Starr and Whitley used the existing June 2, 2008 deadline for the entry of Epstein’s guilty plea to argue that it made the need for review of the case “all the more exigent.” John Roth, a Senior Associate Deputy Attorney General who was handling the matter, instructed the USAO to rescind the deadline, and on May 28, 2008, Sloman notified Lefkowitz that the USAO had postponed the deadline pending completion of the review by the Deputy Attorney General’s office.{sup}170 Meanwhile, the Criminal¶

{sup}168 Under Florida Rule of Criminal Procedure 3.220, defendants are permitted to depose victims, and Epstein’s counsel utilized that procedure aggressively and expansively to conduct sworn interviews of multiple victims, including victims who were not part of the state prosecution, to learn information about the federal investigation.¶

{sup}169 In addition to having served as U.S. Attorney in two different districts, Whitley had served as Acting Associate Attorney General, the Department’s third-highest position.¶

{sup}170 On May 28, 2008, Attorney General Mukasey was in Miami for unrelated events and had lunch at the USAO with Acosta and other senior managers. OPR found no indication that the Epstein matter was discussed.¶

Division forwarded to Roth the prior defense submissions, describing them as “an enormous amount of material” regarding the Epstein matter. On June 3, 2008, Sloman sent to Roth a lengthy letter from Sloman to the Deputy Attorney General, recounting in detail the history of negotiations with Epstein’s counsel culminating in the NPA, and addressing Epstein’s claims of professional misconduct. Among the documents submitted with the letter were the prosecution memorandum, one of the proposed charging documents, and the NPA with its addendum and Acosta’s December 19, 2007 letter to [REDACTED]¶

As the review was ongoing in the Office of the Deputy Attorney General, State Attorney Krischer mentioned to the USAO’s West Palm Beach manager that Krischer and Epstein’s local defense attorney Jack Goldberger had arrived at a resolution of Epstein’s case that would involve a 90-day jail term, but Krischer provided no further information. Upon learning of this, Villafaña wrote to her immediate supervisor: “Please tell me that you are joking. [REDACTED] we should throw him [Epstein] a party and tell him we are sorry to have bothered him.” Villafaña and her immediate supervisor later had phone and email exchanges with Krischer and with Epstein’s local counsel to insist that the state plea comply with the terms of the NPA, or “we will consider it a breach of the agreement and proceed accordingly.”{sup}171¶

Deputy Attorney General Filip told OPR he had never heard of Epstein before receiving Starr’s letter. Following the office’s standard protocol, Starr’s letter was handled by John Roth, an experienced senior federal prosecutor who had served some years before as an AUSA in the USAO. Roth also told OPR that he had never before heard of Epstein. Roth explained to OPR that he did not conduct an independent investigation, interview witnesses, or meet with Epstein’s counsel, and instead limited his review to written materials submitted by Epstein’s attorneys and by Sloman to the Deputy Attorney General’s office, as well as materials that the defense team and the USAO had previously provided to CEOS and the Criminal Division front office, and that CEOS furnished to him. Roth discussed the matter with two senior staff colleagues, as well as with the Deputy Attorney General, who also reviewed the submissions.¶

Roth told OPR that it was his understanding that Epstein had reneged on the NPA, and because he believed the NPA was a “dead letter,” he did not review the terms of the agreement or ratify it post hoc. On the other hand, Deputy Attorney General Filip told OPR he understood that the NPA was still in effect and that Epstein was trying to undermine the federal jurisdictional basis for the agreement. Apart from addressing Epstein’s federalism arguments, however, Deputy Attorney General Filip did not believe it was the “mission” of the Office of the Deputy Attorney General to review the Epstein case de novo or to examine the NPA’s terms or determine whether the NPA reached the “right balance” between state and federal punishment. He told OPR, “[W]e heard an appeal… . [Epstein] wanted a meeting to argue for relief. We didn’t give him a meeting and we didn’t give him [any] relief.” Deputy Attorney General Filip told OPR that no one in his office who looked at Epstein’s arguments “felt that it was a sympathetic appeal.” In particular, he told OPR that defense counsel’s argument that there was no basis for a federal prosecution was “ludicrous,” and the assertion that the USAO’s investigation of Epstein was politically motivated “just seemed unserious.”¶

{sup}171 Villafaña urged Sloman, “Someone really needs to talk to Barry.”¶

On Monday, June 23, 2008, Roth sent a brief letter to Starr and Lefkowitz informing them that the office had “completed a thorough review” of the USAO’s handling of the Epstein matter and did not believe intervention by the Deputy Attorney General was warranted in view of the “considerable discretion” vested by the Department in U.S. Attorneys. He added, “Even if we were to substitute our judgment for that of the U.S. Attorney, we believe that federal prosecution of this case is appropriate.”¶

Immediately after receiving a copy of Roth’s letter, Villafaña notified defense counsel that Epstein would have until close of business on Monday, June 30, 2008, to comply with the NPA by entering his guilty plea, being sentenced, and surrendering to begin serving his sentence. On June 26, 2008, Roth alerted the Office of the Attorney General that Epstein’s counsel might try to contact the Attorney General to request additional review and urged the Attorney General not to take defense counsel’s calls. Roth told OPR that he was concerned that Epstein’s team would try to take a further appeal in order to delay resolution of the case.¶

Meanwhile, Starr sent a concluding email to Acosta, acknowledging they had reached “the end of a long and arduous road” and adding, “While I am obviously very unhappy at what I believe is the government’s treatment of my client, a man whom I have come to deeply admire, I recognize that we have filed and argued our ‘appellate motions’ and lost… . I would like to have … some closure with you on this matter so that in the years to come, neither of us will harbor any ill will over the matter.”¶

X. JUNE 2008 – JUNE 2009: EPSTEIN ENTERS HIS PLEAS AND SERVES HIS CUSTODIAL SENTENCE¶

On Friday, June 27, 2008, Villafaña renewed her requests to Epstein’s local attorneys Goldberger and Black for a copy of the state plea agreement reached with the State Attorney’s Office, noting that their failure to provide it was a material breach of the NPA. After receiving and reviewing the plea agreement form, which was not yet signed, Villafaña sent another letter to Goldberger and Black, informing them that the proposed sentencing provision did not comply with the requirements of the NPA. Specifically, as written, the plea agreement called for a sentence of 12 months in “the Palm Beach County Detention Facility,” followed consecutively by “18 months Community Control” with a special condition that the defendant serve “the first 6 months [of community control] in the Palm Beach County Detention Facility.” Villafaña objected to the community control provision, reminding Goldberger and Black that the NPA required Epstein to “make a binding recommendation of eighteen months imprisonment, which means confinement twenty-four hours a day at the County Jail.” In a subsequent email to Sloman, Villafaña recounted that she had spoken about the issue with Goldberger, who “‘swore’ that Epstein would be in custody 24-hours-a-day during the community confinement portion of his sentence.” Villafaña added that Goldberger “let it slip that Epstein would not be at the jail, he would be at the stockade … . Since we specifically discussed this at the meeting with [the State Attorney] months ago that Epstein would be at [the jail], this certainly violates the spirit of the [NPA] agreement.”{sup}172 Villafaña told Sloman, “[S]omething smells very bad.”¶

{sup}172 The Main Detention Center for Palm Beach County is a facility housing maximum, medium, and minimum custody adult males, as well as juvenile and special population male and female inmates. See¶

The next day, Villafana asked Goldberger to change the plea agreement by inserting the word “imprisoned” after “6 months,” and Goldberger agreed to do so. Villafana, however, did not ask that the agreement be amended to clarify that the reference to “thei Palm Beach County Detention Facility” meant the jail, rather than the Stockade. The final signed plea agreement form further clarified the sentence, providing that after serving 12 months in the Palm Beach County Detention Facility, Epstein would be “sentenced to 6 months in the Palm Beach County Detention Facility … to be served consecutive to the 12 month sentence,” followed by “12 months Community Control.” The word “imprisoned” was hand written after “6 months” but then crossed out and replaced by’ jail sentence.”’¶

A. June 30, 2008: Epstein Enters His Guilty Pleas in State Court¶

Epstein, with his attorney lack Goldberger, appeared in Palm B court on June 30, 2008, and entered guilty pleas to the indictment charging him wit one lony count of solicitation of prostitution and to a criminal information charging hi t h elony count of procurement of a minor to engage in prostitution.” At the plea heart whi h Villafafia and the FBI case agent attended as spectators, Assistant State Attorney Be lay not proffer the facts of the case; instead she only recited the charging language dictment and the criminal information:¶

[B]etween August 1, 2004 and Octobe the defendant in Palm Beach County did solicit o r omeone to commit [prostitution] on three or more ions. And … between August 1, 2004 and October , defendant did procure a minor under the age of I8 mm prostitution in Palm Beach County also.’”

¶

The court found this to be ” ut t factual basis to support the pleas,” and engaged in a colloquy with Belohlavek em’s victims:¶

The Court: Are there more than one victim?¶

Ms. Be There’s several.¶

rghnside-pbso/corrections/generall. The “Stockade” was a “lower security ‘camp-stylc’ facility” h the Palm Beach County Sheriffs Office. Both were administered by the Sheriffs Office.¶

lea in the Circuit Court, signed June 30, 2008, and filed in court. Villafafta complained to Goldberger when she learned later about the change from “imprisoned” to “jail sentence.”¶

I” The Information is attached as Exhibit S.¶

i’s State v. Epstein, case nos. 06-CF-9454 and 08-CF-9381, Transcript of Plea Conference at 41-42 (Fifteenth Judicial Circuit, June 30, 2008) (Pica Hearing Transcript). Belohlavek told OPR that reciting the statutory language of the charge as the factual basis for the plea was the typical practice for a state court plea.-¶

The Court: Are all the victims in both these cases in agreement with the terms of the plea?¶

Ms. Belohlavek: I have spoken to several myself and 1 have spoken to counsel, through counsel as to the other victim, and I believe, yes.¶

The Court: And with regard to the victims under age eighteen, is that victim’s parents or guardian in agreement with the plea?¶

Ms. Belohlavek: That victim is not under age 18 any more a that’s why we spoke with her counsel.0¶

The Court: And she is in agreement with the ( lea. i…)¶

Ms. Belohlavek: Yes . {sup}176¶

When the court asked if the plea was “in any way ti by any civil attorneys or other jurisdictions,” Goldberger spoke with the judge at sidebar and disclosed the exist agreement with the USAO, and the court ordered tha romises or representations avek, with Epstein present, confidential” non-prosecution be filed under seal with the court.¶

After the court accepted Epstein’s gull and imposed stntence•on him pursuant to the plea agreement, Epstein was taken into c sect in serving his sentence immediately.¶

In the aftermath of the plea, nu stn rduals familiar with the investigation expressed positive reactions to the outcom a fans received several congratulatory messages. Oosterbaan wrote, “Congratulat s, at long last! Your work on this matter was truly exceptional, and you obtained(a4te cant result that will serve the victims well.” One senior colleague who was familiar with the se noted, “This case only resolved with the filthy rich bad guy going to jail because of your-dedication and determination.” Another wrote, “If it had not been for you, he woul ave gotten away with it.” The CEOS Trial Attorney who had worked briefly with Villafarla t , “But for your tenacity, he’d be somewhere wining another child’s life.” One victi y stated, “[G]reat job of not letting this guy off.” But Villafaila was not satisfied with411 Qutcome, responding to one colleague, “After all the hell they put me through, I don’t feelAi el ting l8 months. He should be spending 18 years in jail.”¶

ater publicly stated that the FBI Special Agent in Charge called him “to offer ons” and “to praise our prosecutors for holding firm against the likes of Messrs. Black,¶

{sup}96 Plea Hearing Transcript at 20, 42. OPR was unable to determine to which victims Btlohlavek was referring. and Beloldovek did not recall during her OPR interview, but it is possible that she was referring only to the victims of the charged crimes rather than to all of the victims identified in either the state or federal investigations. Bcloldavek told OPR that because of the nature of the charges (that is, involving prostitution), she did not know whether “technically under the law’ the girls were “victims” whom she was required to notify of the plea hearing.¶

Dershowitz, Lefkowitz and Starr.”{sup}177 In that same later public statement, Acosta noted that he received communications from Dershowitz, Starr, and Lefkowitz, who “all sought to make peace” with him; Acosta referred to it as “a proud moment.”¶

On July 7, 2008, an Epstein victim filed an emergency petition against the Department, in federal court in Miami, alleging violation of her rights under the CVRA; a second victim joined the petition soon thereafter. The history of the litigation and issues relating to it are discussed in Chapter Three of this Report.¶

B. Epstein Is Placed on Work Release¶

A few days after Epstein’s guilty plea, Villafaña reported to Sloman that Epstein was incarcerated at the low-security Stockade, rather than the Main Detention Center where county prisoners were usually housed. She also told Sloman that according to the Sheriff’s Office, Epstein was eligible for work release. Although the USAO had made clear that it expected Epstein to be incarcerated 24 hours a day, every day, the subject of work release had not been addressed explicitly during the NPA negotiations, and the NPA itself was silent on the issue. Epstein’s acceptance into the work release program as a convicted sexual offender was seen by many as another special benefit given to Epstein. Because the decision to allow Epstein into the work release program was made by the Palm Beach Sheriff’s Office, OPR did not investigate whether any state, county, or Sheriff’s Office rules were violated. OPR did examine the USAO’s consideration of work release prior to signing the NPA and its subsequent unsuccessful efforts to ensure that Epstein remained incarcerated 24 hours a day.¶

The first specific reference to work release was made weeks after the NPA was signed, when Lefkowitz asserted, in his October 23, 2007 letter to Acosta, that, “so long as Mr. Epstein’s sentence does not explicitly violate the terms of the [NPA] he is entitled to any type of sentence available to him, including but not limited to gain time and work release.”¶

In November 2007, Sloman had an exchange of letters with Lefkowitz about the USAO’s understanding that Epstein had agreed to serve his full jail term in “continuous confinement,” pointing out that the NPA “clearly indicates that Mr. Epstein is to be incarcerated.” Sloman noted that Florida’s Department of Corrections’s rules did not allow individuals registered as sexual offenders to participate in work release, and thus Epstein would not be eligible for a work release program. Sloman concluded that the USAO “is putting you on notice that it intends to make certain that Mr. Epstein is ‘treated no better and no worse than anyone else’ convicted of the same offense,” and that if Epstein were to be granted work release, the USAO would “investigate the reasons why an exception was granted in Mr. Epstein’s case.”{sup}178¶

However, also in November, State Attorney Krischer told Sloman that Epstein was, in fact, eligible to petition for work release because his sexual offender registration would not take place¶

{sup}177 Letter from R. Alexander Acosta “To whom it may concern” (Mar. 20, 2011), published online in The Daily Beast. The FBI Special Agent in Charge told OPR that he had no recollection of such a call, but acknowledged that it could have occurred.¶

{sup}178 Sloman provided a draft of this letter to Acosta for his approval before the letter was sent to Lefkowitz.¶

until after Epstein completed his sentence, but that Krischer would oppose such a petition “if it is in the agreement.”{sup}179 On November 16, 2007, the case agents met with Belohlavek and asked if the State Attorney’s Office would oppose a request that Epstein be granted work release. Belohlavek was noncommittal, and when the agents asked that she include language in the state’s plea agreement prohibiting Epstein from participating in work release, she responded that she would have to discuss the issue with the State Attorney.{sup}180 Krischer later told OPR that work release was “within the control of the Sheriff’s Office, not my office.” The state’s plea agreement with Epstein did not address the issue of work release.¶

The day after Epstein entered his June 30, 2008 plea, Villafaña and her immediate supervisor met with a Palm Beach Sheriff’s Office official to discuss work release. According to Villafaña, the official told them, “Epstein would be eligible for work release and will be placed on work release,” a statement that contradicted the information the case agents had been given by a jail supervisor the previous November, as well as statements made by defense attorney Jack Goldberger to Villafaña just days before the plea was entered, when he “specifically told [Villafaña] that [Epstein] would not get work release.” Villafaña alerted the Sheriff’s Office official that although Epstein told the court during his plea proceeding that he had worked “every day” for a “couple of years” at the “Florida Science Foundation,” that entity did not even exist until November 2007.{sup}181 Moreover, the address Epstein provided to the court for the “Florida Science Foundation” was the office of Epstein’s attorney Jack Goldberger. Villafaña and her supervisor asked that the Sheriff’s Office notify the USAO if Epstein applied for work release.¶

Acosta told OPR that he was aware Villafaña was trying to ensure that Epstein did not get work release, and he would not have contradicted her efforts. Acosta explained that the USAO expected Epstein would be “treated just like everyone else,” but that, as shown by “our subsequent communications with the [S]tate [A]ttorney’s [O]ffice,” having Epstein on work release “was not what our office envisioned.”¶

In August 2008, Villafaña spoke with defense attorney Black about ensuring Epstein’s compliance with the NPA, and raised the issue of work release. Villafaña later reported to Acosta and Sloman that Black assured her he had “reminded the team that … 18 months IN JAIL is a material term of the agreement.”¶

The USAO never received notice of Epstein’s work release application. On October 10, 2008, less than three-and-a-half months after Epstein entered his guilty plea, the Palm Beach Sheriff’s Office placed him into the work release program, permitting him to leave the Stockade¶

{sup}179 According to Sloman, Krischer explained that even without registration Epstein would be “treated” as a “sex offender” and that “just like any other sex offender, he can petition the court for work release.”¶

{sup}180 In the November 16, 2007 email, on which she copied Acosta, Villafaña also indicated that she was “reviewing all of the statutes” to determine whether there was any impediment to a state judge granting Epstein work release. In a subsequent email, the FBI case agents informed Villafaña that they had also spoken with a “jail supervisor,” who advised them that although Epstein, as a sexual offender, would not qualify for work release, the judge could nevertheless order him placed on work release if he was sentenced to a year or less of incarceration.¶

{sup}181 During the plea hearing, Epstein told the court he was “President” of the Florida Science Foundation, it had been in existence for 15 years, and he worked there “every day.” Plea Hearing Transcript at 27-29.¶

for up to 12 hours per day, six days per week, to work at the “Florida Science Foundation” office in West Palm Beach.{sup}182 In mid-November 2008, Villafaña learned that Epstein was on work release. She notified Acosta, Sloman, and the USAO Criminal Division Chief of this development in an email, and asked, “Can I indict him now?”¶

On November 24, 2008, Villafaña sent defense attorney Black a letter, notifying him that the USAO believed Epstein’s application to and participation in the work release program constituted a material breach of the NPA. Villafaña reminded Black that she had “more than a dozen e-mails” expressing the USAO’s “insistence” that Epstein be incarcerated for 18 months, and that her June 27, 2008 letter to counsel made clear that this meant “confinement for twenty-four hours a day.” Villafaña noted that Goldberger had not inserted the word “imprisoned” into the plea agreement, as he had agreed to do, but instead inserted the term “jail sentence.” Villafaña told counsel:¶

The [USAO’s] Agreement not to prosecute Mr. Epstein was based upon its determination that eighteen months’ incarceration (i.e., confinement twenty-four hours a day) was sufficient to satisfy the federal interest in Mr. Epstein’s crimes. Accordingly, the U.S. Attorney’s Office hereby gives notice that Mr. Epstein has violated the [NPA] by failing to remain incarcerated twenty-four hours a day for the eighteen-month term of imprisonment. The United States will exercise any and all rights it has under the [NPA] unless Mr. Epstein immediately ceases and desists from his breach of this agreement.¶

According to Villafaña, the FBI case agent spoke with the Stockade’s work release coordinator and reported back that that the work release coordinator told her he had been led to believe the government knew Epstein had applied for the program, and that he had been threatened with legal action if he did not allow Epstein to participate in work release.¶

On November 26, 2008, the USAO advised the Department that Acosta was recused from all matters involving the law firm of Kirkland & Ellis, which was still heavily involved in the Epstein case, because Acosta was discussing with the firm the possibility of employment.{sup}183 As a result, Sloman became the senior USAO official responsible for making final decisions related to Epstein.¶

Also on November 26, 2008, Black responded to Villafaña’s letter, acknowledging that Epstein was serving his sentence in the Palm Beach County Work Release Program, but denying that Epstein was in breach of the NPA.{sup}184 Black noted that the NPA did not prohibit work release; the NPA expressly provided that Epstein was to be afforded the same benefits as any other inmate;¶

{sup}182 Michele Dargan and David Rogers, “Palm Beach sex offender Jeffrey Epstein ‘treated differently,’” Palm Beach Daily News, Dec. 13, 2008.¶

{sup}183 The recusal was formally approved by the Department on December 8, 2008.¶

{sup}184 Black forwarded the email to Sloman, noting that Villafaña “is very concerned about anything Epstein does” and that the defense team would “abide by” Sloman’s decision on the issue.¶

Florida law treated work release as part of confinement; and the Palm Beach County Sheriff’s Office had discretion to grant work release to any inmate. Black also claimed that Acosta “recognized that Mr. Epstein might serve a portion of his sentence through the Work Release Program” and pointed out that the December 6, 2007 draft victim notification letter sent to Lefkowitz for review specifically referred to the victim’s right to be notified “if [Epstein] is allowed to participate in a work release program.”¶

On December 3, 2008, in advance of a scheduled meeting with Black, Villafaña sent Sloman and Criminal Division Chief Senior an email about Epstein’s participation in the work release program:¶

It appears that, since Day 1, Goldberger and Krisher [sic] … have been scheming to get Epstein out on work release. For example, the indictment incorrectly charges Epstein for an offense that would have made him ineligible for work release if it had been charged correctly. (Remember that Krisher [sic] also went along with letting us believe that Epstein was pleading to a registrable offense when Epstein’s folks and Krisher [sic] believed that … the offense was not registrable.) Krisher [sic] and Goldberger also told us that Epstein would be housed at the Palm [Beach County] Jail, not the Stockade, but he would not have been eligible for work release if at the jail… .¶

As part of his work release, Epstein has hired off-duty Sheriff’s deputies to provide him with “protection.” It appears that he is paying between $3000 and $4100 per week for this service, despite the work release rules barring anyone from the Sheriff’s Office (and the Sheriff’s Office itself) from having “any business transactions with inmates … while they are in the custody or supervision of the Sheriff … .”¶

Villafaña added that she and her immediate supervisor believed that the USAO “should not budge on the 24-hour-a-day incarceration” requirement. Referring to the CVRA litigation, Villafaña also pointed out that two victims had brought suit against the USAO “for failing to keep them informed about the investigation,” and the office had “an obligation to inform all of the victims upon Epstein’s release.”¶

On December 11, 2008, Villafaña wrote to the Corrections Division of the Palm Beach County Sheriff’s Office to express the USAO’s view that Epstein was not eligible for work release and to alert the Sheriff’s Office that Epstein’s work release application contained several inaccuracies and omitted relevant information. Villafaña pointed out that Epstein’s application identified his place of employment as the “Florida Science Foundation,” and the telephone number listed in the application for the “Florida Science Foundation” was the telephone number to the law firm of Epstein’s attorney Jack Goldberger. Villafaña also noted that the individual identified in the work release file as Epstein’s “supervisor” at the “Florida Science Foundation” had submitted publicly available sworn filings to the Internal Revenue Service indicating that Epstein worked only one hour per week and earned no compensation, but that same individual had represented to¶

the Sheriff’s Office that Epstein’s duties required him to work six days a week for 12 hours per day. Finally, Villafaña pointed out that Epstein’s purported “supervisor”—who as the Foundation’s vice president was subordinate to Epstein, the Foundation’s president—had promised to alert the Sheriff’s Office if Epstein failed to comply with his work schedule, but the “supervisor” lived and worked in the New York metropolitan area and was unable to monitor Epstein’s activities on a day-to-day basis. The Sheriff’s Office neither acknowledged nor responded to Villafaña’s letter.¶

In March 2009, Sloman met in Miami with Dershowitz for, as Dershowitz characterized it in a subsequent email, “a relaxed drink and conversation,” which included a discussion of the Epstein case. After that encounter, Dershowitz emailed Sloman, expressing appreciation for Sloman’s “assurance that the feds will not interfere with how the Palm Beach sheriff administers” Epstein’s sentence “as long as he is treated like any similarly situated inmate.” Sloman responded:¶

Regarding Mr. Epstein, the United States Attorney’s Office will not interfere with how the Palm Beach Sheriff’s Office administers the sentence imposed by the Court. That being said, this does not mean that the USAO condones or encourages the PBSO to mitigate the terms and conditions of his sentence. Furthermore, it does not mean that, if contacted for our position concerning alternative custody or in-home detention, we would not object. To be clear, if contacted we will object. Naturally, I also expect that no one on behalf of Mr. Epstein will use my assurance to you to affirmatively represent to PBSO that the USAO does not object to an alternative custody or home detention.¶

A week later, Dershowitz emailed Sloman again, this time expressing appreciation for Sloman’s “willingness to call the sheriff and advise him that your office would take no position on how he handled Epstein’s sentence,” as long as Epstein did not receive special treatment, but adding, “[L]et’s put any call off for a while.”¶

Epstein’s sentence required that he be confined to his home for a 12-month period following his release from prison. On July 22, 2009, almost 13 months after he began serving his sentence, Epstein was released from the Stockade and placed on home confinement.{sup}185 At this time, he registered as a sexual offender.¶

XI. POST-RELEASE DEVELOPMENTS¶

In the summer of 2009, allegations surfaced that Epstein had cooperated with the U.S. Attorney’s Office for the Eastern District of New York’s investigation of investment bank Bear Steams, and that he had been released early from his 18-month imprisonment term because of that¶

{sup}185 In Florida, what is commonly referred to as house arrest is actually the Community Control supervision program. Florida Statute § 948.001(3) defines the program as “a form of intensive, supervised custody in the community.”¶

cooperation.{sup}186 When Villafaña spoke with attorneys in the Eastern District of New York, however, an AUSA there told Villafaña that “[t]hey had never heard of” Epstein, and he had not cooperated with the Bear Stearns case.{sup}187 During her OPR interview, Villafaña told OPR that to her knowledge, the rumor of Epstein’s cooperation was “completely false.”¶

Villafaña and the USAO continued to monitor Epstein’s compliance with the terms of the NPA. In August 2009, Villafaña alerted her supervisors that Epstein was in apparent violation of his home detention—he had been spotted walking on the beach, and when stopped by the police, he claimed that he was walking “to work” at an office nearly eight miles from his home. Villafaña passed this information along to the Palm Beach County probation office.{sup}188 By letter dated September 1, 2009, Black wrote to Sloman seeking the USAO’s agreement to transfer supervision of the community control phase of Epstein’s sentence to the U.S. Virgin Islands, where Epstein maintained his “primary residence.” In response, Villafaña notified Black that the USAO opposed such a request and would view it as a violation of the NPA. Three months later, Sloman met with Dershowitz and, among other issues, informed him that the USAO opposed early termination of Epstein’s community control supervision and would object to a request to transfer Epstein’s supervision to the U.S. Virgin Islands.¶

After serving his year on home detention in Florida, Epstein completed his sentence on July 21, 2010.¶

{sup}186 See “Out of Prison,” New York Post, July 23, 2009.¶

{sup}187 The New York AUSA had emailed Villafaña, “We’re the prosecutors in [the Bear Stearns case] … . We saw the below article from the New York Post and wanted to ask you about this defendant, Epstein, who we had never heard of until this morning. We’ve since learned that he is pretty unsavory.” Villafaña reported to Sloman and other supervisors that she “just got off the phone with the prosecutors from the Bear Stearns case in [the Eastern District of] New York. They had seen the NY Post article that claimed that Epstein got such a low sentence because he was cooperating with the feds on the Bear Stearns prosecution. They had never heard of him.” In a second email, she confirmed, “There has been absolutely no cooperation here or in New York, from what they told me.”¶

{sup}188 Black later wrote a letter to Villafaña claiming that Epstein had “specific authorization to walk to work,” the distance between his home and office was “less than three miles,” and when the matter was “fully investigated,” Epstein was found to be in “total compliance” with the requirements of his sentence.¶

CHAPTER TWO¶

PART TWO: APPLICABLE STANDARDS¶

I. OPR’S ANALYTICAL FRAMEWORK¶

OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy. In determining whether an attorney has engaged in professional misconduct, OPR uses the preponderance of the evidence standard to make factual findings.¶

An attorney intentionally violates an obligation or standard when the attorney (1) engages in conduct with the purpose of obtaining a result that the obligation or standard unambiguously prohibits; or (2) engages in conduct knowing its natural or probable consequence, and that consequence is a result that the obligation or standard unambiguously prohibits. An attorney acts in reckless disregard of an obligation or standard when (1) the attorney knows or should know, based on his or her experience and the unambiguous nature of the obligation or standard, of an obligation or standard; (2) the attorney knows or should know, based on his or her experience and the unambiguous applicability of the obligation or standard, that the attorney’s conduct involves a substantial likelihood that he or she will violate, or cause a violation of, the obligation or standard; and (3) the attorney nonetheless engages in the conduct, which is objectively unreasonable under all the circumstances. Thus, an attorney’s disregard of an obligation is reckless when it represents a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.¶

If OPR determines that an attorney did not engage in professional misconduct, OPR determines whether the attorney exercised poor judgment, engaged in other inappropriate conduct, made a mistake, or acted appropriately under all the circumstances. An attorney exercises poor judgment when, faced with alternative courses of action, he or she chooses a course of action that is in marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take. Poor judgment differs from professional misconduct in that an attorney may act inappropriately and thus exhibit poor judgment even though he or she may not have violated or acted in reckless disregard of a clear obligation or standard. In addition, an attorney may exhibit poor judgment even though an obligation or standard at issue is not sufficiently clear and unambiguous to support a professional misconduct finding. A mistake, on the other hand, results from an excusable human error despite an attorney’s exercise of reasonable care under the circumstances.¶

An attorney who makes a good faith attempt to ascertain the obligations and standards imposed on the attorney and to comply with them in a given situation does not commit professional misconduct. Evidence that an attorney made a good faith attempt to ascertain and comply with the obligations and standards imposed can include, but is not limited to, the fact that the attorney reviewed materials that define or discuss one or more potentially applicable obligations and standards, consulted with a supervisor or ethics advisor, notified the tribunal or the attorney representing a party or person with adverse interests of an intended course of conduct, or took¶

affirmative steps the attorney reasonably believed were required to comply with an obligation or standard.¶

II. APPLICABLE STANDARDS OF CONDUCT¶

A. The United States Attorneys’ Manual¶

Among its many provisions, the United States Attorneys’ Manual (USAM) includes general statements of principles that summarize appropriate considerations to be weighed, and desirable practices to be followed, by federal prosecutors when discharging their prosecutorial responsibilities.{sup}189 The goal of the USAM is to promote “the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the Federal criminal laws,” and to promote public confidence that important prosecutorial decisions will be made “rationally and objectively on the merits of each case.” USAM § 9-27.001.¶

Because the USAM is designed to assist in structuring the decision-making process of government attorneys, many of its principles are cast in general terms, with a view to providing guidance rather than mandating results. Id.; see also USAM § 9-27.120, comment (“It is expected that each Federal prosecutor will be guided by these principles in carrying out his/her criminal law enforcement responsibilities … However, it is not intended that reference to these principles will require a particular prosecutorial decision in any given case.”), USAM § 9-27.110, comment (“Under the Federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of Federal criminal law.”). However, USAM § 9-27.130 provides that AUSAs who depart from the principles of federal prosecution articulated in the USAM may be subject to internal discipline. In particular, USAM § 9-27.130 states that each U.S. Attorney should establish internal office procedures to ensure that prosecutorial decisions are made at an appropriate level of responsibility and are consistent with the principles set forth in the USAM, and that serious, unjustified departures from the principles set forth in the USAM are followed by remedial action, including the imposition of disciplinary sanctions when warranted and deemed appropriate.¶

U.S. Attorneys have “plenary authority with regard to federal criminal matters” and may modify or depart from the principles set forth in the USAM as deemed necessary in the interest of fair and effective law enforcement within their individual judicial districts. USAM §§ 9-2.001, 9.27-140. The USAM provisions are supplemented by the Department’s Criminal Resource Manual, which provides additional guidance relating to the conduct of federal criminal prosecutions.¶

1. USAM Provisions Relating to the Initiation and Declination of a Federal Prosecution¶

Federal prosecutors do not open a case on every matter referred to them. USAM § 9-2.020 explicitly authorizes a U.S. Attorney “to decline prosecution in any case referred directly to¶

{sup}189 In 2018, the USAM was revised and reissued as the Justice Manual. In assessing the subjects’ conduct, OPR relies upon the standards of conduct in effect at the time of the events in issue. Accordingly, unless otherwise noted, citations in this Report are to the 1997 edition of the USAM, as revised through January 2007.¶

him/her by an agency unless a statute provides otherwise.” Whenever a U.S. Attorney closes a case without prosecution, the file should reflect the action taken and the reason for it. USAM § 9-27.220 sets forth the grounds to be considered in making the decision whether to commence or decline federal prosecution. A federal prosecutor should commence or recommend prosecution if he or she believes that admissible evidence will probably be sufficient to obtain and sustain a conviction of a federal offense, unless (1) the prosecution would serve no federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate alternative to prosecution. A comment to this provision indicates that it is the prosecutor’s task to determine whether these circumstances exist, and in making that determination, the secutor “should” consult USAM §§ 9-27.230, 9-27.240, or 9-27.250, as appropriate.¶

USAM § 9-27.230 sets forth a non-exhaustive list of consideration t a federal prosecutor should weigh in determining whether a substantial federal intere served by initiating prosecution against a person:¶

• 1. Federal law enforcement priorities,.1% C.)
• 2. The nature and seriousness of the offense”
• 3. The deterrent effect of prosecution.
• 4. The person’s culpability in th the offense;
• 5. The person’s history wi o criminal activity;
• 6. The person’s willin to rate in the investigation or prosecution
• 7. The prob or other consequences if the person is cony

The USAM contempl j$t, on occasion, a federal prosecutor will decline to open a case in deference to pro on by the state in which the crime occurred. USAM § 9-27.240 directs that in evaluating the eness of prosecution in another jurisdiction, the federal prosecutor should weigh ” 1 rele t considerations,” including the strength of the other jurisdiction’s interest in pra tion, the other jurisdiction’s ability and willingness to prosecute effectively, and the proba or other consequences the person will be subject to if convicted in the other jurisdi t mment to this provision explains:¶

{sup}190A conunent to this provision directs the prosecutor to consider carefully the extent to which a federal prosecution would be consistent with established federal prosecutorial priorities.¶

{sup}191A continent to this provision explains that an assessment of the nature and seriousness of the offense must also include consideration of the impact on the victim. The comment further cautions that When restitution is at issue, “care should be taken … to ensure against contributing to an impression that an offender can escape prosecution merely by returning the spoils of his/her crime.”¶

Some offenses, even though in violation of Federal law, are of particularly strong interest to the authorities of the state or local jurisdiction in which they occur, either because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by state or local investigators, or some other circumstance. Whatever the reason, when it appears that the Federal interest in prosecution is less substantial than the interest of state or local authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a Federal prosecution.¶

Another comment cautions that in assessing whether to defer to state or local authorities, “the Federal prosecutor should be alert to any local conditions, attitudes, relationships or other circumstances that might cast doubt on the likelihood of the state or local authorities conducting a thorough and successful prosecution.”¶

USAM § 9-27.260 identifies impermissible considerations relating to the decision whether to initiate or decline a federal prosecution. Specifically, the decision may not be based on consideration of the person’s race, religion, sex, national origin, or political association, activities, or beliefs; the prosecutor’s “own personal feelings” about the person or the victim; or the possible effect of the decision on the prosecutor’s own professional or personal circumstances. When opting to decline federal prosecution, the prosecutor should ensure that the reasons for that decision are communicated to the investigating agency and reflected in the office files. USAM § 9-27.270.¶

2. USAM § 9-2.031: The Petite Policy¶

Although the Constitution does not prohibit prosecutions of a defendant by both state and federal authorities, even when the conduct charged is identical in both charging jurisdictions, the Department has a long-standing policy, known as the Petite policy, governing federal prosecutions charged after the initiation of a prosecution in another jurisdiction based on the same or similar conduct.{sup}192 The general principles applicable to the prosecution or declination decision are set forth in USAM § 9-2.031, “Dual and Successive Prosecution Policy (‘Petite Policy’),” which contains guidelines for a federal prosecutor’s exercise of discretion in determining whether to bring a federal prosecution based on the substantially same act or transaction involved in a prior state or federal proceeding. The policy applies “whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination on the merits after jeopardy has attached.”¶

In circumstances in which the policy applies, a prosecutor nonetheless can initiate a new federal prosecution when three substantive prerequisites exist. The prerequisites are as follows:¶

1. (1) The matter must involve a substantial federal interest. The determination whether a substantial federal interest is involved is made on a case-by-case basis. Matters

{sup}192 See Rinaldi v. United States, 434 U.S. 22, 27-29 (1977); Petite v. United States, 361 U.S. 529 (1960).¶

that come within the national investigation and prosecution priorities established by the Department are more likely to satisfy this requirement than other matters.¶

• (2) The prior prosecution must have left the substantial federal interest “demonstrably unvindicated.” In general, the Department presumes that a prior prosecution has vindicated federal interests, but that presumption may be overcome in certain circumstances. As relevant here, the presumption may be overcome when the choice of charges in the prior prosecution was based on factors such as incompetence, corruption, intimidation, or undue influence. The presumption may be overcome even when the prior prosecution resulted in a conviction, if the prior sentence was “manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence—including forfeiture and restitution as well as imprisonment and fines—is available through the contemplated federal prosecution.”
• (3) The government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction.

However, the satisfaction of the prerequisites does not require a prosecutor to proceed with a federal investigation or charges nor is the Department required to approve the proposed prosecution.¶

The Petite policy cautions that whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should consult with their state counterparts “to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved.” If a substantial question arises as to whether the Petite policy applies to a particular prosecution, the prosecutor should submit the matter to the appropriate Assistant Attorney General for resolution. Prior approval from the appropriate Assistant Attorney General must be obtained before bringing a prosecution governed by this policy.¶

3. USAM Provisions Relating to Plea Agreements¶

Federal prosecutors have discretion to resolve an investigation or pending case through a plea agreement. USAM §§ 9-27.330; 9-27.400. Negotiated pleas are also explicitly sanctioned by Federal Rule of Criminal Procedure 11(c)(1).{sup}193 Regardless of whether the plea agreement is offered pre-charge or post-charge, the prosecutor’s plea bargaining “must honestly reflect the totality and seriousness of the defendant’s conduct.” USAM § 9-27.400, comment.{sup}194 The importance of selecting a charge that reflects the seriousness of the conduct is echoed in USAM § 9-27.430, which directs the prosecutor to require a defendant to plead to an offense that represents the most serious readily provable charge consistent with the nature and extent of the¶

{sup}193 As previously noted, Rule 11(c)(1)(C) permits the parties to agree to resolve the case in exchange for a specific sentence, subject to the court’s acceptance of the agreement.¶

{sup}194 See also USAM § 9-27.300 (“Once the decision to prosecute has been made, the attorney for the government should charge … the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.”).¶

defendant’s criminal conduct, has an adequate factual basis, makes likely; the imposition of an appropriate sentence and order of restitution, and does not adversely affect the investigation or prosecution of others. USAM § 9-27.420 specifies:¶

In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including:

¶

• 1. The defendant’s willingness to cooperate in the investigation or prosecution of others;
• 2. The defendant’s history with respect to criminal activity;
• 3. The nature and seriousness of the offense peoffeorl charged;
• 4. The defendant’s remorse or con rill and his/her willingness to assume responsibility for the onduct;
• 5. The desirability of prom in disposition of the case;
• 6. The likelihood of taitS~g a conviction at trial;
• 7. The probabl on witnesses;
• 8. The pg$42e.septence or other consequences if the defendant i Convieted;
• 9. e public interest in having the case tried rather than ch ose of by a guilty plea; i rietp”The expense of trial and appeal;
• 11. The need to avoid delay in the disposition of other pending cases; and
• 12. The effect upon the victim’s right to restitution.

4. USAM Provisions Relating to Non-Prosecution Agreements¶

USAM § 9-27.600 authorizes government attorneys to enter into a non-prosecution agreement in exchange for a person’s cooperation. The provision explains that a non-prosecution agreement is appropriate for this purpose when, in the prosecutor’s judgment, the person’s timely cooperation “appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective.” A comment to this provision explains that such “other means” include seeking cooperation after trial and conviction, bargaining for¶

cooperation as part of a plea agreement, or compelling cooperation under a “use immunity” order. The comment observes that these alternative means “are clearly preferable to permitting an offender to avoid any liability for his/her conduct” and “should be given serious consideration in the first instance.” USAM §§ 9-27.620 and 9-27.630 set forth considerations a prosecutor should take into account when entering into a non-prosecution agreement. Generally, the U.S. Attorney has authority to approve a non-prosecution agreement. USAM § 9-27.600 comment. However, USAM § 9-27.640 directs that a government attorney should not enter into a non-prosecution agreement in exchange for a person’s cooperation without first obtaining the approval of the appropriate Assistant Attorney General, or his or her designee, when the person is someone who “is likely to become of major public interest.”¶

These USAM provisions do not address the uses of non-prosecution agreements in circumstances other than when needed to obtain cooperation.¶

5. USAM Provisions Relating to Grants of Immunity¶

Nothing in the USAM directly prohibits the government from using the criminal exposure of third parties in negotiating with a criminal defendant. Instead, the provision that addresses immunity relates only to the exchange of limited immunity for the testimony of a witness who has asserted a Fifth Amendment privilege against self-incrimination. See USAM §§ 9-23.100 et seq.¶

6. USAM/C.F.R. Provisions Relating to Financial Conflicts of Interest¶

Department employees are expected to be aware of, and to comply with, all ethics-related laws, rules, regulations, and policies. See, generally, USAM § 1-4.000 et seq. Specifically, a government attorney is prohibited by criminal statute from participating personally and substantially in any particular matter in which he has a financial interest or in which such an interest can be imputed to him. See 18 U.S.C. § 208 and 5 C.F.R. §§ 2635.401-402. In addition, a Department employee should seek advice from an ethics official before participating in any matter in which his impartiality could be questioned. If a conflict of interest exists, in order for the employee to participate in the matter, the head of the employee’s component, with the concurrence of an ethics official, must make a determination that the interest of the government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the Department’s programs and operations. The determination must be made in writing. See 5 C.F.R. §§ 2635.501-502.¶

B. Other Department Policies¶

1. Department Policies Relating to the Disposition of Charges¶

The Attorney General has the responsibility for establishing prosecutorial priorities for the Department. Over the span of several decades, each successive Attorney General has articulated those priorities in policy memoranda issued to all federal prosecutors. As applicable here, on September 22, 2003, Attorney General John Ashcroft issued a memorandum regarding “Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing” (Ashcroft Memo). The Ashcroft Memo, which explicitly superseded all previous Departmental guidance on the subject, set forth policies “designed to ensure that all federal¶

prosecutors adhere to the principles and objectives” of the Sentencing Reform Act of 1984, the Sentencing Guidelines, and the PROTECT Act “in their charging, case disposition, and sentencing practices.”{sup}195¶

The Ashcroft Memo directed that, “in all federal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case,” except as authorized by an Assistant Attorney General, U.S. Attorney, or designated supervisory authority in certain articulated limited circumstances. The Ashcroft Memo cautioned that a charge is not “readily provable” if the prosecutor harbors a good faith doubt, based on either the law or the evidence, as to the government’s ability to prove the charge at trial. The Ashcroft Memo explains that the “basic policy” “requires federal prosecutors to charge and pursue all charges that are determined to be readily provable” and would yield the most substantial sentence under the Sentencing Guidelines.¶

The policy set forth six exceptions, including a catch-all exception that permits a prosecutor to decline to pursue readily provable charges “in other exceptional circumstances” with the written or otherwise documented approval of an Assistant Attorney General, U.S. Attorney, or “designated supervisory attorney.” As examples of circumstances in which such declination would be appropriate, the Ashcroft Memo cites to situations in which a U.S. Attorney’s Office is “particularly over-burdened,” the trial is expected to be of exceptionally long duration, and proceeding to trial would significantly reduce the total number of cases the office could resolve. The Ashcroft Memo specifically notes that “[c]harges may be declined … pursuant to a plea agreement only to the extent consistent” with the policies established by the Memo.¶

On January 28, 2005, Deputy Attorney General James Comey issued a memorandum entitled “Department Policies and Procedures Concerning Sentencing.” That memorandum reiterated that federal prosecutors “must continue to charge and pursue the most serious readily provable offenses,” and defined that term as the offenses that would “generate the most substantial sentence” under the Sentencing Guidelines, any applicable mandatory minimum, and any statutorily required consecutive sentence.¶

Importantly, although the Ashcroft and Comey memoranda limit an individual line prosecutor’s ability to decline “readily provable” charges in their entirety, no such restriction is placed upon the U.S. Attorneys, who retained authority to approve exceptions to the policy. In addition, the policy applies to “readily provable” charges, thus inherently allowing a prosecutor¶

{sup}195 The Ashcroft Memo was issued before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), which struck down the provision of the federal sentencing statute that required federal district judges to impose a sentence within the applicable Federal Sentencing Guidelines range. Those Guidelines were the product of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. 108-21, 117 Stat. 650, was directed at preventing child abuse. It included a variety of provisions designed to improve the investigation and prosecution of violent crimes against children. Among other things, the PROTECT Act provided for specific sentencing considerations for certain sex-related offenses, such as those involving multiple occasions of prohibited sexual conduct or those involving material with depictions of violence or with specified numbers of images.¶

flexibility to decline to bring a particular charge based on a “good faith doubt” that the law or evidence supports the charge.¶

2. Department Policy Relating to Deportation of Criminal Aliens¶

On April 28, 1995, the Attorney General issued a memorandum to all federal prosecutors entitled “Deportation of Criminal Aliens,” directing federal prosecutors to actively and directly become involved in the process of removing criminal aliens from the United States. In pertinent part, this memorandum notes that prosecutors can make a major contribution to the ex ditious deportation of criminal aliens by effectively using available prosecution tools for al g with alien defendants. These tools include (1) stipulated administrative deportaion in connection with plea agreements; (2) deportation as a condition of supervi ease under 18 U.S.C. § 3853(d); and (3) judicial deportation orders pursuant to 8 U.S a(d). The memorandum further directs:¶

{sup}r ek All deportable criminal aliens should be deported upless extraordinary circumstances exist. Accordingly, absent/such circumstances, Federal prosecutors should see the deportation of deportable alien defendants in whatever mann is deemed most appropriate in a particular case. Exceptionsjo)itis, icy must have the written approval of the United Stat

¶

See also USAM § 9-73.520. A “criminal alien” crime.196 ational who has been convicted of a¶

Stipulated administrative deportation o can be based “on the conviction for an offense to which the alien will plead guilty,” ‘ded hat the offense is one of those enumerated in 8 U.S.C. § 1251 as an offense at u an alien to be deported. Under 8 U.S.C. • § 1251(aX2)(AXi), any alien r red of a crime of “moral turpitude” within five years after the date of entry (or 1 rs e case of an alien provided lawful permanent resident status), and is either senten to 4orrfrnement or confined to prison for one year or longer, is deportable.¶

C. Case La¶

Prosecutorial Discretion¶

occasions, the Supreme Court has discussed the breadth of the prosecutor’s discret iding whether and whom to prosecute. In Bordenkircher v. Hayes, 434 U.S. 357 0 ourt considered the propriety of a prosecutor’s threat during plea negotiations to seek more ous charges against the accused if the accused did not plead guilty to the offense origin ly charged. The defendant, Hayes, opted not to plead guilty to the original offense, and¶

{sup}196 According to the U.S. Customs and Border Protection, -The term ‘criminal alien’ refers to aliens who have been convicted of one or more crimes, whether in the United States or abroad, prior to interdiction by the U.S. Border Patrol.” See U.S. Dept. of Homeland Security, U.S. Customs and Border Protection, CBP Enforcement Statistics, Criminal Alien Statistics Fiscal Year 2020, available at Imps://www.cbp.govinewsroomistatskbrenforcementstatistics/criminal-alien-statistics.¶

the prosecutor indicted him on more serious charges. Hayes was thereafter convicted and sentenced under the new indictment. The state court of appeals rejected Hayes’s challenge to his conviction, concluding that the prosecutor’s decision to indict on more serious charges was a legitimate use of available leverage in the plea-bargaining process. Hayes filed for review of his conviction and sentence in federal court, and although Hayes lost at the district court level, the U.S. Court of Appeals for the Sixth Circuit concluded that the prosecutor’s conduct constituted impermissible vindictive prosecution.¶

The Supreme Court reversed the Sixth Circuit’s ruling. The Court opined that “acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process.” Id. at 363. A long as the prosecutor has probable cause to believe a crime has been committed, “the decision whether or not to prosecute, and what charge to file or bring before a grand jury, rests entirely in his discretion.” Id. at 364 (emphasis added). The Court explained that selectivity in enforcement of the criminal law is not improper unless based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Id.¶

These principles were reiterated in Wayte v. United States, 470 U.S. 598 (1985), a case involving the government’s policy of prosecuting only those individuals who reported themselves as having failed to register with the Selective Service system. The petitioner in Wayte claimed that the self-reported non-registrants were “vocal” opponents of the registration program who were being punished for the exercise of their First [redacted] dement rights. The Supreme Court rejected this argument, stating that the government has “broad discretion” in deciding whom to prosecute, and that the limits of that discretion are reached only when the prosecutor’s decision is based on an unjustifiable standard. Id. at 607-08. Because the passive enforcement policy was not intended to have a discriminatory effect, the claim of selective prosecution failed.¶

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court considered whether a state prosecutor acting within the scope of his duties could be sued under 42 U.S.C. § 1983 for violation of the defendant’s constitutional rights when the defendant alleged that the prosecutor and others had unlawfully conspired to charge and convict him. The Court held that “in initiating a prosecution and in presenting the State’s case,” conduct that is “intimately associated with the judicial phase of the criminal process,” the prosecutor enjoyed absolute immunity from a civil suit for damages. Id. at 430-31. In Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992), the court applied Imbler to a challenge to a prosecutor’s decision not to prosecute. The court noted that “given the availability of immunity for the decision to charge, it becomes even more important that symmetrical protection be available for the decision not to charge.” Id. at 41 (emphasis in original).¶

Finally, in an analogous area of the law, in Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court concluded that an agency’s decision not to undertake an enforcement action is not reviewable under the federal Administrative Procedure Act, 5 U.S.C. §§ 500-706.¶

2. Plea Agreement Promises of Leniency towards a Third Party¶

Case law regarding promises made during plea negotiations not to prosecute a third-party arises in two contexts. First, defendants have challenged the voluntariness of the resulting plea¶

when prosecutors have used third parties as leverage in plea negotiations. Numerous courts have made clear, however, that a plea is not invalid when entered under an agreement that includes a promise of leniency towards a third party or in response to a prosecutor’s threat to prosecute a third party if a plea is not entered. See, e.g., United States v. [REDACTED], 909 F.2d 738, 741-42 (2d Cir. 1990) (rejecting claim that plea was involuntary because of pressure placed upon a defendant by the government’s insistence that a defendant’s wife would not be offered a plea bargain unless he pled guilty); Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir. 1985) (in order to satisfy “heavy burden” of establishing that the government had not acted “in good faith,” a defendant challenging voluntariness of his plea on grounds that the prosecutor had threatened to bring charges against the defendant’s pregnant wife had to establish that government lacked probable cause to believe the defendant’s wife had committed a crime at the time it threatened to charge her); Stinson v. State, 839 So. 2d 906, 909 (Fla. App. 2003) (“In cases involving … a promise not to prosecute a third party, the government must act in good faith … [and] must have probable cause to charge the third party.”).¶

The second context concerns situations in which courts have enforced prosecutors’ promises of leniency to third parties. For example, in State v. Frazier, 697 So. 2d 944 (Fla. App. 1997), as consideration for the defendant’s guilty plea, the prosecutor agreed and announced in open court that the government would dismiss charges against the defendant’s niece and nephew, who had all been charged as a result of the same incident. When the state reneged and attempted to prosecute the niece and nephew, the trial court dismissed the charges against them, and the state appealed. The appellate court affirmed the dismissal, concluding that under contract law principles, the niece and nephew were third-party beneficiaries of the plea agreement and were therefore entitled to enforce it.¶

Apart from voluntariness or enforceability concerns, courts have not suggested that a prosecutor’s promise not to prosecute a third party amounts to an inappropriate exercise of prosecutorial discretion.¶

D. State Bar Rules¶

During the period relevant to this Report, the five subject attorneys were members of the bar in several different states and were subject to the rules of professional conduct in each state in which they held membership.{sup}197 In determining which rules apply, OPR applied the local rules of the U.S. District Court for the Southern District of Florida (Local Rules) and the choice-of-law provisions of each applicable bar. Local Rule 11.1(f) incorporates rules governing the admission, practice, peer review, and discipline of attorneys (Attorney Admission Rules).{sup}198 Attorney Admission Rule 4(d) provides that any U.S. Attorney or AUSA employed full-time by the government may appear and participate in particular actions or proceedings on behalf of the United States in the attorney’s official capacity without petition for admission. Any attorney so appearing¶

{sup}197 The subjects’ membership in state bars other than Florida would not affect OPR’s conclusions in this case.¶

{sup}198 These rules have been in effect since December 1994.¶

is subject to all rules of the coun.199 Attorney Admission Rule 6(bX2)(A) makes clear that attorneys practicing before the court are subject to the Florida Bar’s Rules of’Professional Conduct (FRPC). Moreover, the choice-of-law provisions contained within the relevant state’s rules of professional conduct make the FRPC applicable to their conduct.¶

1. FRPC 4-1.1—Competence¶

FRPC 4-1.1 requires that a lawyer provide competent representation to a client.200 Competent representation requires the legal knowledge, skill, thoroughness, and p aration reasonably necessary for the representation. A comment to the rule clarifies that th factors relevant to determining a lawyer’s competence to handle a particular matter inclu Live complexity and specialized nature of the matter, the lawyer’s general expene a la er’s training and experience in the field in question, the preparation and study the le to give the matter, and whether it is feasible to refer the matter to, or associate or nsul h, a lawyer of established competence in the field.” The comment further notes tharti m instances the required proficiency is that of a general practitioner.” With respect toi particular matters, competence requires inquiry into and analysis of the factual and legal elements of the problem. The comment to Rule 4-1.1 explains that “[tJhe required attentidi eand preparation are determined in part by what is at stake; major litigation and complex ransactions ordinarily require more extensive treatment than matters of lesser complexity an eq ence.”¶

2. FRPC 4-1.3 — Diligence¶

FRPC 4-1.3 specifies that a lawyer sho t reasonable diligence and promptness in representing a client. A comment to this ru lai A lawyer should pursue a matter on behalf of a client despite opposition, obstruc nal inconvenience to the lawyer and take whatever lawful and ethical measu to vindicate a client’s cause or endeavor.” A lawyer must exercise “zeal” in a or the client, but is not required “to press for every advantage that might be realiz¶

3. FRP andor in Dealing with Others¶

FRPC 4-4.1 pr is a lawyer from knowingly making a false statement of material fact or law to a third rsot d u g the course of representation of a client. A comment to this rule explains that ” tsrepr nations can also occur by partially true but misleading statements or omissions th the equivalent of affirmative false statements,” and “[w]hether a particular statemenysf d b garded as one of fact can depend on the circumstances.”¶

{sup}199 See also 28 U.S.C. § 5308(a), providing that government attorneys are subject to state laws and state and local federal court rules governing attorneys in each state where the government attorney engages in his duties.¶

00 The federal prosecutor does 1431 have an individual “client,” but rather represent’s the people of the United States. See generally 28 U.S.C. § 547 (duties of U.S. Attorney); 28 C.F.R. § 0.5(b) (the Attorney General represents the United States in legal matters).¶

4. FRPC 0-8.4 —Conduct Prejudicial to the Administration of Justice¶

FRPC 4-8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.¶

FRPC 4-8.4(d) prohibits a lawyer from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice.¶

In Florida Bar v. Frederick, 756 So. 2d 79, 87 (Fla. 2000), the court noted th t FRPC 4-8.4(d) is not limited to conduct that occurs in a judicial proceeding, but can bg a lied to “conduct in connection with the practice of law.” In Florida Bar v Shankman, 41 S.”384 6 172 (Fla. 2010), for example, an attorney’s continuous hiring and firing of fines to as the tent’s matter resulted in delayed resolution of the case and constituted a violation o -8.4(d) due to the delay in the administration of justice and the increased costs to the cli nt.¶

Ac 9¶

{sup}\ ‘OPR also examined FRPC 4-3.8, Special Responsibilities of a Prosecutor. Nothing in the text of that rule. however, was relevant to the issues addressed in this Report. A comment to FRPC Rule 4.3.8 notes that Florida has adopted the American Bar Association (ABA) Standards of Criminal Justice Relating to the Prosecution Function. These “standards.” however, are not binding rules of conduct but rather provide guidance to prosecutors. Indeed, the ABA has expressly stated that these standards “are not intended to serve as the basis for the imposition of professional discipline. to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate fora motion to suppress evidence or disiniss a charge.” OPR does not consider the ABA standards as binding on the conduct of Department prosecutors.¶

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CHAPTER TWO PART THREE: ANALYSIS¶

I. OVERVIEW¶

Following the Miami Herald report in November 2018, media scrutiny of and public attention to the USAO’s handling of its Epstein investigation has continued unabated. At the heart of the public’s concern is the perception that Epstein’s 18-month sentence, which resulted in a 13-month term of actual incarceration, was too lenient and inadequately punished Epstein’s criminal conduct. Although many records have been released as part of civil litigation stemming from Epstein’s conduct, the public has received only limited information regarding the decision-making process leading to the signed NPA. As a result, questions have arisen about Acosta and his staff’s motivations for entering into the NPA. Publicly released communications between prosecutors and defense counsel, the leniency of the sentence, and an unusual non-prosecution provision in the NPA have led to allegations that Acosta and the USAO gave Epstein a “sweetheart deal” because they were motivated by improper influences, such as their preexisting and personal relationships with his attorneys, or even corrupt influences, such as the receipt of personal benefits from Epstein.¶

Through its investigation, OPR has sought to answer the following core questions: (1) who was responsible for the decision to resolve the federal investigation through the NPA and for its specific terms; (2) did the NPA or any of its provisions violate Department policies or other rules or regulations; and (3) were any of the subjects motivated to resolve the federal investigation by improper factors, such as corruption or favoritism. To the extent that available records and witness interviews shed light on these questions, OPR shows in detail the process that led to the NPA, from the initial complaint to the USAO through the intense and often confusing negotiation process. After a thorough and detailed examination of thousands of contemporaneous records and extensive interviews of subjects and witnesses, OPR is able to answer most of the significant questions concerning the NPA’s origins and development. Although some questions remain, OPR sets forth its conclusions and the bases for them in this Part.¶

II. ACOSTA [REDACTED] ED AND APPROVED THE TERMS OF THE NPA AND IS ACCOUNTABLE FOR IT¶

Although Acosta did not sign the NPA, he approved it, with knowledge of its terms. He revised drafts of the NPA and added language that he thought appropriate. Acosta told OPR that he either was informed of, or had access to information concerning, the underlying facts of the case against Epstein. OPR did not find any evidence suggesting that any of his subordinates misled him about the facts or withheld information that would have influenced his decision, and Acosta did not make such a claim to OPR. As Acosta affirmed in his OPR interview, the “three pronged resolution, two years … , registration and restitution, … ultimately that was approved on my authority … [U]ltimately, I approved it, and so, I … accept that. I’m not … pushing away responsibility for it.”¶

In making its misconduct assessments, OPR considers the conduct of subjects individually. Menchel, Sloman, Lourie, and Villafaña were involved in the matter to varying degrees, at¶

different points in time, and regarding different decisions. Menchel, for example, participated in formulating the USAO’s initial written offer to the defense, but he had no involvement with actions or decisions made after August 3, 2007. Sloman was absent during part of the most intense negotiations in September 2007 and did not see the final, signed version of the NPA until he returned. Villafaña and Lourie participated in the negotiations, and Lourie either made decisions during the September 12, 2007 meeting with the defense and State Attorney’s Office, or at least indicated agreement pending Acosta’s approval. In any event, whatever the level of Sloman’s, Menchel’s, Lourie’s, and Villafaña’s involvement, they acted with the knowledge and approval of Acosta.¶

Under OPR’s analytical framework, an attorney who makes a good faith attempt to ascertain the obligations and standards imposed on the attorney and to comply with them in a given situation does not commit professional misconduct. Evidence that an attorney made a good faith attempt to ascertain and comply with the obligations and standards imposed can include, but is not limited to, the fact that the attorney consulted with a supervisor.{sup}202 In this regard, OPR’s framework is similar to a standard provision of the professional conduct rules of most state bars, which specify that a subordinate lawyer does not engage in misconduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. See, e.g., FRPC 4-5.2(b). Therefore, in addition to the fact that OPR did not find a violation of a clear and unambiguous standard as discussed below, OPR concludes that Menchel, Sloman, Lourie, and Villafaña did not commit professional misconduct with respect to any aspect of the NPA because they acted under Acosta’s direction and with his approval.¶

III. OPR FOUND THAT NONE OF THE SUBJECTS VIOLATED A CLEAR AND UNAMBIGUOUS STATUTE, PROFESSIONAL RESPONSIBILITY RULE OR STANDARD, OR DEPARTMENT REGULATION OR POLICY, IN NEGOTIATING, APPROVING, OR ENTERING INTO THE NPA¶

A central issue OPR addressed in its investigation relating to the NPA was whether any of the subjects, in developing, negotiating, or entering into the NPA, violated any clear and unambiguous standard established by rule, regulation, or policy. OPR does not find professional misconduct unless a subject attorney intentionally or recklessly violated a clear and unambiguous standard. OPR considered three specific areas: (1) standards implicated by the decision to decline a federal court prosecution; (2) standards implicated by the decision to resolve the federal investigation through a non-prosecution agreement; and (3) standards implicated by any of the NPA’s provisions, including the promise not to prosecute unidentified third parties. As discussed below, OPR concludes that in each area, and in the absence of evidence establishing that his decisions were based on corrupt or improper influences, the U.S. Attorney possessed broad discretionary authority to proceed as he saw fit, authority that he could delegate to subordinates, and that Acosta’s exercise of his discretionary authority did not breach any clear and unambiguous standard. As a result, OPR concludes that none of the subject attorneys violated a clear and¶

{sup}202 The failure to fully advise a supervisor of relevant and material facts can warrant a finding that the subordinate attorney has not acted in “good faith.” OPR did not find evidence supporting such a conclusion here, and Acosta did not claim that he was unaware of material facts needed to make his decision.¶

unambiguous standard or engaged in professional misconduct in developing, negotiating, or entering into the NPA, including its addendum.¶

A. U.S. Attorneys Have Broad Discretion to Resolve Investigations or Cases as They Deem Appropriate, and Acosta’s Decision to Decline to Prosecute Epstein Federally Does Not Constitute Professional Misconduct¶

The U.S. Attorneys exercise broad discretion in enforcing the nation’s criminal laws.{sup}203 As a general matter, federal prosecutors “are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting U.S. Const. art. II, § 3). Unless based on an impermissible standard such as race, religion, or other arbitrary classification, a prosecutor’s charging decisions—including declinations—are not dictated by law or statute and are not subject to judicial review. See United States v. LaBonle, 520 U.S. 751, 762 (1997) (“Such discretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors.”).¶

Department policy guidance in effect at the time the USAO was handling the Epstein case helped ensure “the reasoned exercise of prosecutorial authority,” but did not require “a particular prosecutorial decision in any given case.” USAM §§ 9-27.001, 9-27.120 (comment). Rather than mandating specific actions, the USAM identified considerations that should factor into a prosecutor’s charging decisions, including that the defendant was “subject to effective prosecution in another jurisdiction.” USAM § 9-27.220. Importantly, U.S. Attorneys had “plenary authority with regard to federal criminal matters” and could modify or depart from the principles set forth in the USAM as deemed necessary in the interest of fair and effective law enforcement within their individual judicial districts. USAM §§ 9-2.001, 9-27.140. As stated in the USAM, “[t]he United States Attorney is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such [prosecutive] authority,” which includes the authority to decline prosecution. USAM § 9-2.001.¶

In addition, the USAM contemplated that federal prosecutors would sometimes decline federal prosecution in deference to a state prosecution of the same conduct and provided guidance in the form of factors to be considered in making the decision, including the strength of the other jurisdiction’s interest in prosecution, the other jurisdiction’s ability and willingness to prosecute effectively, and the probable sentence or other consequences if the person is convicted in the other jurisdiction. USAM § 9-27.240.{sup}204 A comment to this provision stated that the factors are “illustrative only, and the attorney for the government should also consider any others that appear relevant to hi[m]/her in a particular case.”¶

{sup}203 See, e.g., Wayte, 470 U.S. at 607; United States v. Goodwin, 457 U.S. 368, 380 n.1.1 (1982); Bordenkircher, 434 U.S. at 364; Imbler, 424 U.S. 409.¶

{sup}204 The discretionary authority under USAM § 9-27.240 to defer prosecution in favor of another jurisdiction is distinct from the Petite policy, which establishes guidelines for the exercise of discretion in determining whether to bring a federal prosecution based on conduct substantially the same as that involved in a prior state or federal proceeding. See USAM § 9-2.031.¶

As the U.S. Attorney, and in the absence of evidence establishing that his decision was motivated by improper factors, Acosta had the “plenary authority” under federal law and under the USAM to resolve the case as he deemed necessary and appropriate. As discussed in detail below, OPR did not find evidence establishing that Acosta, or the other subjects, were motivated or influenced by improper considerations. Because no clear and unambiguous standard required Acosta to indict Epstein on federal charges or prohibited his decision to defer prosecution to the state, OPR does not find misconduct based on Acosta’s decision to decline to initiate a federal prosecution of Epstein.¶

B. No Clear and Unambiguous Standard Precluded Acosta’s Use of a Non-Prosecution Agreement to Resolve the Federal Investigation of Epstein¶

OPR found no statute or Department policy that was violated by Acosta’s decision to resolve the federal investigation of Epstein through a non-prosecution agreement.¶

The prosecutor’s broad charging discretion includes the option of resolving a case through a non-prosecution agreement or a related and similar mechanism, a deferred prosecution agreement. United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016). These agreements “afford a middle-ground option to the prosecution when, for example, it believes that a criminal conviction may be difficult to obtain or may result in unwanted collateral consequences for a defendant or third parties, but also believes that the defendant should not evade accountability altogether.” Id. at 738. As with all prosecutorial charging decisions, the choice to resolve a case through a non-prosecution agreement or a deferred prosecution agreement “resides fundamentally with the Executive” branch. Id. at 741.¶

OPR found no clear and unambiguous standard in the USAM prohibiting the use of a non-prosecution agreement in the circumstances presented in Epstein’s case. The USAM specifically authorized and provided guidance regarding non-prosecution agreements or deferred prosecution agreements made in exchange for a person’s timely cooperation when such cooperation would put the person in potential criminal jeopardy and when alternatives to full immunity (such as testimonial immunity) were “impossible or impracticable.” USAM § 9-27.600 (comment).{sup}205 The “cooperation” contemplated was cooperation in the criminal investigation or prosecution of another person. In certain circumstances, government attorneys were required to obtain approval from the appropriate Assistant Attorney General before entering into a non-prosecution agreement in exchange for cooperation.¶

Epstein, however, was not providing “cooperation” as contemplated by the USAM, and the USAM was silent as to whether a prosecutor could use a non-prosecution agreement in circumstances other than in exchange for cooperation in the investigation or prosecution of another. Notably, although the USAM provided guidance and approval requirements in cases involving cooperation, the USAM did not prohibit the use of a non-prosecution agreement in other situations. Accordingly, OPR concludes that the USAM did not establish a clear and unambiguous obligation prohibiting Acosta from ending the federal investigation through a non-prosecution¶

{sup}205 USAM § 9-27.650 required that non-prosecution agreements in exchange for cooperation be fully memorialized in writing. Although this requirement was not applicable for the reasons given above, the NPA complied by fully memorializing the terms of the agreement.¶

agreement that did not require Epstein’s cooperation nor did the USAM require Acosta to obtain Departmental approval before doing so.¶

C. The NPA’s Individual Provisions Did Not Violate Any Clear and Unambiguous Standards¶

Although Acosta, as U.S. Attorney, had discretion generally to resolve the case through a non-prosecution agreement that deferred prosecution to the state, OPR also considered whether a clear and unambiguous standard governed any of the individual provisions of the NPA. Specifically, OPR examined Acosta’s decision to permit Epstein to resolve the federal investigation by pleading guilty to state charges of solicitation of minors to engage in prostitution and solicitation to prostitution, with a joint, binding recommendation for an 18-month sentence of incarceration. Because, as noted above, OPR found no clear guidance applicable to non-prosecution agreements not involving cooperation, OPR examined Departmental policies relating to plea offers to assess the propriety of the NPA’s charge and sentence requirements. OPR also examined the provision declining to prosecute Epstein’s unidentified “potential co-conspirators,” to determine whether that provision violated Departmental policy regarding grants of immunity. Finally, OPR considered whether there was a clear and unambiguous obligation under the Department’s policy regarding the deportation of criminal aliens, which would have required further action to be taken against the two Epstein assistants who were foreign nationals.¶

After considering the applicable rules and policies, OPR finds that Acosta’s decision to resolve the federal investigation through the NPA did not violate any clear and unambiguous standards and that Acosta had the authority to resolve the federal investigation through a state plea and through the terms that he chose. Accordingly, OPR concludes that Acosta did not commit professional misconduct in developing, negotiating, or approving the NPA, nor did the other subjects who implemented his decisions with respect to the resolution.{sup}206¶

1. Acosta Had Authority to Approve an Agreement That Required Epstein to Plead to Offenses Resulting in an 18-Month Term of Incarceration¶

Federal prosecutors have discretion to resolve a pending case or investigation through a plea agreement, including a plea that calls for the imposition of a specific, predetermined sentence. USAM §§ 9-27.330, 9-27.400; see also Federal Rule of Criminal Procedure 11(c)(1).¶

{sup}206 OPR also considered whether Acosta, Sloman, Menchel, Lourie, or Villafaña failed to comply with professional ethics standards requiring that attorneys exercise competence and diligence in their representation of a client. Attorneys have a duty to provide competent, diligent representation to their clients, which generally requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See, e.g., FRPC 4-1.1, 4-1.3. The requirement of diligence obligates an attorney to exercise “zeal” in advocating for the client, but does not require the attorney “to press for every advantage that might be realized for a client.” See FRPC 4-1.3 (comment). Although OPR criticizes certain decisions made during the USAO’s investigation of Epstein, those decisions, even if flawed, did not violate the standard requiring the exercise of competence or diligence. The subjects exhibited sufficient knowledge, skill, preparation, thoroughness, and zeal during the federal investigation and the NPA negotiations to satisfy the general standards established by the professional responsibility rules. An attorney may attain a flawed result but still exercise sufficient competence and diligence throughout the representation to meet the requirements of the standard.¶

Longstanding Department policy directs prosecutors to require the defendant to plead to the most serious readily provable charge consistent with the nature and extent of the defendant’s criminal conduct, that has an adequate factual basis, is likely to result in a sustainable conviction, makes likely the imposition of an appropriate sentence and restitution order, and does not adversely affect the investigation or prosecution of others. See USAM §§ 9-27.430, 9-27-300, 9-27.400 (comment). The genesis of this policy, the Ashcroft Memo, specifically requires federal prosecutors to charge and pursue all readily provable charges that would yield the most substantial sentence under the Sentencing Guidelines. However, the Ashcroft Memo articulates an important exception: a U.S. Attorney or a “designated supervisory attorney” may authorize a plea that does not comport with this policy.{sup}207 Moreover, the Ashcroft Memo explains that a charge is not “readily provable” if the prosecutor harbors “a good faith doubt,” based on either the law or the evidence, as to the government’s ability to prove the charge at trial.¶

By its plain terms, the NPA arguably does not appear to satisfy the “most serious readily provable charge” requirement. The draft indictment prepared by Villafaña proposed charging Epstein with a variety of federal crimes relating to sexual conduct with and trafficking of minors, and Epstein’s sentencing exposure under the federal guidelines was in the range of 168 to 210 months’ imprisonment. The original “term sheet” presented to the defense proposed a “non-negotiable” requirement that Epstein plead guilty to three state offenses, in addition to the original state indictment, with a joint, binding recommendation for a two-year term of incarceration. Instead, Epstein was permitted to resolve his federal criminal exposure with a plea to the state indictment and only one additional state offense, and an 18-month sentence.¶

As discussed more fully later in this Report, Acosta, Sloman, Menchel, and Lourie perceived risks to going forward to trial on the federal charges Villafaña outlined in the prosecution memorandum and identified for OPR concerns with both the evidence and legal theories on which a federal prosecution would be premised. On the other hand, Villafaña felt strongly that federal charges should be brought, and the CEOS Chief reviewed the prosecution memorandum and twice opined that the charges were appropriate. OPR found it unnecessary to resolve the question whether federal charges against Epstein were readily provable, however, because Acosta had¶

Prosecutors may decline to pursue or may dismiss readily provable charges in other exceptional circumstances with the written or otherwise documented approval of an Assistant Attorney General, United States Attorney, or designated supervisory attorney. This exception recognizes that the aims of the Sentencing Reform Act must be sought without ignoring the practical limitations of the federal criminal justice system. For example, a case-specific approval to dismiss charges in a particular case might be given because the United States Attorney’s Office is particularly over-burdened, the duration of the trial would be exceptionally long, and proceeding to trial would significantly reduce the total number of cases disposed of by the office. However, such case-by-case exceptions should be rare; otherwise the goals of fairness and equity will be jeopardized.¶

Ashcroft Memo at § I.B.6. See also USAM §§ 9-2.001 and 27.140 (U.S. Attorneys’ authority to depart from the USAM).¶

{sup}207 In addition to specified “Limited Exceptions,” this authorization is available in “Other Exceptional Circumstances,” as follows:¶

authority to deviate from the Ashcroft Memo’s “most serious readily provable offense” requirement.¶

Although Acosta could not recall specifically how or by whom the decision was made to allow Epstein to plead to only one of the three charges identified on the original term sheet, or how or by whom the decision was made to reduce the sentencing requirement from two years to 18 months, Acosta was aware of these changes. He reviewed and approved the final NPA before it was signed. Department policy gave him the discretion to approve the agreement, notwithstanding any arguable failure to comply with the “most serious readily provable offense” requirement. Furthermore, the Ashcroft Memo does not appear to preclude a U.S. Attorney from defending to a state prosecution, so it is not clear that the Memo’s terms apply to a situation involving state charges. Accordingly, OPR concludes that the negotiation of an agreement that allowed Epstein to resolve the federal investigation in return for the imposition of an 18-month state sentence did not violate a clear and unambiguous standard and therefore does not constitute professional misconduct.¶

2. The USAO’s Agreement Not to Prosecute Unidentified “Potential Co-Conspirators” Did Not Violate a Clear and Unambiguous Department Policy¶

Several witnesses told OPR that they believed the government’s agreement not to prosecute unidentified “potential co-conspirators” amounted to “transactional immunity,” which the witnesses asserted is prohibited by Department policy. Although “use immunity” protects a witness only against the government’s use of his or her immunized testimony in a prosecution of the witness, and is frequently used by prosecutors, transactional immunity protects a witness from prosecution altogether and is relatively rare.¶

OPR found no policy prohibiting a U.S. Attorney from declining to prosecute third parties or providing transactional immunity. One section of the USAM related to immunity but applied only to the exchange of “use immunity” for the testimony of a witness who has asserted a Fifth Amendment privilege. See USAM § 9-23.100 et seq. Statutory provisions relating to immunity also address the same context. See 18 U.S.C. § 6002; 21 U.S.C. § 884. Moreover, apart from voluntariness or enforceability concerns, courts have not suggested that a prosecutor’s promise not to prosecute a third party amounts to an inappropriate exercise of prosecutorial discretion. See, e.g., § 909 F.2d at 741-43; Kemp, 760 F.2d at 1248; Stinson, 839 So. 2d at 909; Frazier, 697 So. 2d 945. OPR found no clear and unambiguous standard that was violated by the USAO’s agreement not to prosecute “potential co-conspirators,” and therefore cannot conclude that negotiating or approving this provision violated a clear and unambiguous standard or constituted professional misconduct.¶

Notwithstanding this finding, in Section IV of this Part, OPR includes in its criticism of Acosta’s decision to approve the NPA his approval of this provision without considering its potential consequences, including to whom it would apply.¶

3. The NPA Did Not Violate Department Policy Relating to Deportation of Criminal Aliens¶

During the negotiations, the USAO rejected a defense-offered provision prohibiting the USAO from “request[ing], initiat[ing], or in any way encourag[ing] immigration authorities to institute immigration proceedings” against two female assistants. However, OPR considered whether the April 28, 1995 memorandum imposed any obligation on the USAO to prosecute Epstein’s two female assistants who were known to be foreign nationals—as Villafaña urged in her prosecution memorandum—and thus trigger their removal, or conversely, whether it precluded the USAO from agreeing not to prosecute them as part of a negotiated resolution. OPR found nothing in the policy that created a clear and unambiguous standard in either regard.¶

The Attorney General’s April 28, 1995 memorandum regarding “Deportation of Criminal Aliens” directed federal prosecutors to become involved actively and directly in the process of removing criminal aliens from the United States, and, along with USAM § 9-73.520, provided that “[a]ll deportable criminal aliens should be deported unless extraordinary circumstances exist.” However, Epstein’s two assistants were not “deportable” unless and until convicted of a crime that would have triggered their removal. But neither the policy memorandum nor the USAM imposed an obligation on the USAO to prosecute or secure a conviction against a foreign national nor did either provision preclude the USAO from declining to prosecute an alien using the same broad discretion that otherwise applies to charging decisions.¶

The policy guidance also requires “prompt and close coordination” with immigration officials in cases involving alien defendants and specifies that prosecutors must notify immigration authorities before engaging in plea negotiations with alien defendants. OPR learned during its investigation that an ICE agent participated in the Epstein investigation in its early stages. Moreover, because the USAO never engaged in plea negotiations with the two female assistants, who, in any event, had not been charged and were therefore not “defendants,” no further notification was required.¶

IV. THE EVIDENCE DOES NOT ESTABLISH THAT THE SUBJECTS WERE INFLUENCED BY IMPROPER MOTIVES TO INCLUDE IN THE NPA TERMS FAVORABLE TO EPSTEIN OR TO OTHERWISE EXTEND BENEFITS TO EPSTEIN¶

OPR investigated whether any of the subjects—Acosta, Sloman, Menchel, Lourie, or Villafaña—was influenced by corruption, bias, or other improper motive, such as Epstein’s wealth, status, or political associations, to include terms in the NPA that were favorable to Epstein, or whether such motives otherwise affected the outcome of the federal investigation. OPR considered the case-specific reasons the subjects identified as the motivation for the USAO’s July 31, 2007 “term sheet” and Acosta’s approval of the NPA in September 2007. OPR also thoroughly examined various factors forming the basis for allegations that the subjects were motivated by improper influences, including the subjects’ preexisting relationships with defense counsel; the subjects’ numerous meetings with Epstein’s team of nationally known attorneys; emails between the subjects—particularly Villafaña—and defense counsel that appeared friendly, casual, and deferential to defense counsel; and inclusion in the NPA of a broad provision declining¶

to prosecute all of Epstein’s co-conspirators. These factors are analyzed in the following discussions throughout this Section of the Report.¶

As a threshold matter, OPR’s investigation of the subjects’ decisions and actions in the Epstein matter uncovered no evidence of corruption such as bribery, gratuity, or illegal political or personal consideration. In addition, OPR examined the extensive contemporaneous documentary record, interviewed witnesses, and questioned the subject attorneys. The evidence shows three sets of issues influenced Acosta’s decision to resolve the case through the NPA. The first—of main concern to Acosta—involved considerations of federalism and deference to state authority. The second arose from an assessment by Acosta’s senior advisers—Sloman, Menchel, and Lourie—that the case carried substantial litigation risks, including both witness issues and what some viewed as a novel application of certain federal statutes to the facts of the Epstein case.{sup}208 The third was Acosta’s aim of obtaining a greater measure of justice for victims of Epstein’s conduct and for the community than that proposed by the state.¶

Although the NPA and the process for reaching it can be criticized, as OPR does, OPR did not find evidence supporting a conclusion that the subjects were motivated by a desire to benefit Epstein for personal gain or because of other improper considerations, such as Epstein’s wealth, status, or associations. That is not to say that Epstein received no benefit from his enormous wealth. He was able to hire nationally known attorneys who had prestige, skill, and extensive experience in federal and state criminal law and in conducting negotiations. He had the resources to finance an aggressive approach to the case that included the preparation of multiple written submissions reflecting extensive research and analysis, as well as multiple in-person meetings involving several of his attorneys and USAO personnel. He assembled a defense team well versed in the USAO and the Department, with the knowledge to maneuver through the Department’s various levels and offices, a process unknown to many criminal defense attorneys and infrequently used even by those familiar with the Department’s hierarchy. Access to highly skilled and prominent attorneys is not unusual in criminal cases involving corporations and their officers or certain other [REDACTED] collar defendants, but it is not so typical for defendants charged with sex crimes or violent offenses. Nonetheless, while recognizing that Epstein’s wealth played a role in the outcome because he was able to hire skilled and assertive attorneys, OPR concludes that the subjects were not motivated to resolve the federal investigation to Epstein’s benefit by improper factors.¶

A. OPR Found No Evidence of Criminal Corruption, Such as Bribery, Gratuity, or Illegal Political or Personal Consideration¶

Some public criticism of the USAO’s handling of the Epstein matter implied that the subjects’ decisions or actions may have been motivated by criminal corruption, although no specific information substantiating such implications was identified. Throughout its investigation,¶

{sup}208 Sloman asserted throughout his OPR interview that he did not participate in substantive discussions about the Epstein investigation before the NPA was signed, and his attorney argued in his comments on OPR’s draft report that OPR should not attribute to Sloman any input in Acosta’s decisions about how to resolve the case. However, Sloman was included in numerous emails discussing the merits of and issues relating to the investigation, participated in meetings with the defense team, and, according to Acosta, was one of the senior managers whom Acosta consulted in determining how to resolve the Epstein investigation.¶

OPR was attentive to any evidence that any of the subjects was motivated by bribes, gratuities, or other illegal political or personal considerations, and found no such indication.{sup}209 Witnesses, including law enforcement officials, were specifically asked whether they had any information indicating such corruption, and all—notwithstanding the harsh criticism by some of those same witnesses of the Epstein matter’s outcome—stated that they did not. Specifically, the FBI case agent told OPR that she did not believe there had been any illegal influence, and that if she had perceived any, she “would have gone screaming” to the FBI’s public corruption unit. The co-case agent and the FBI supervisors up through the Special Agent in Charge likewise told OPR that they were unaware of any indication that a prosecutor acted in the matter because of illegal factors such as a gratuity or bribe or other corrupt influence, and that any such indication would immediately have been referred for criminal investigation by the FBI.¶

B. Contemporaneous Written Records and Witness and Subject Interviews Did Not Reveal Evidence Establishing That the Subjects Were Improperly Influenced by Epstein’s Status, Wealth, or Associations¶

Although Epstein’s name is now nationally recognized, in 2006 and 2007, he was not a familiar national figure or even particularly well known in Florida. All five subjects told OPR that when they first learned of the investigation, they had not heard of Epstein. Similarly, the FBI case agent told OPR that when the investigation began, no one in the FBI appeared to have heard of Epstein, and other witnesses also told OPR that they were initially unfamiliar with Epstein. However, news reports about Epstein’s July 2006 arrest on the state indictment, which were contemporaneous with the beginning of the federal investigation, identified him as a wealthy Palm Beach resident with influential contacts, including William Clinton, Donald Trump, Kevin Spacey, and Alan Dershowitz, and other “prominent businessmen, academics and scientists.”{sup}210 Villafaña, Lourie, Sloman, and Acosta learned of this press coverage early in the investigation, and thus understood that Epstein was wealthy and associated with notable public figures.{sup}211 The FBI case agent also told OPR that “we knew who had been on his plane, we knew … some of his connections.”¶

1. The Contemporaneous Records Did Not Reveal Evidence Establishing That the NPA Resulted from Improper Factors¶

OPR found no evidence in the extensive contemporaneous documentary record that the terms of the NPA resulted from improper factors, such as Epstein’s wealth or influential connections. Epstein’s legal team overtly raised Epstein’s financial status in arguing for a sentence that did not include a term of imprisonment on the ground that Epstein would be extorted in prison, but the USAO insisted that Epstein serve a term of incarceration. Defense counsel mentioned [REDACTED] President Clinton in one pre-NPA letter, but that reference was made in the context of a¶

{sup}209 OPR’s jurisdiction does not extend to the investigation of allegations of criminal activity. If OPR had found indication of criminal activity, it would have referred the matter to the appropriate Department investigative agencies.¶

{sup}210 Larry [REDACTED] “Billionaire solicited prostitutes three times, indictment says,” Palm Beach Post, July 24, 2006; Nicole Janok, “Consultant to the rich indicted, jailed,” Palm Beach Post, July 24, 2006.¶

{sup}211 Lourie later made Menchel aware of Epstein’s prominence in the course of forwarding to Menchel the initial prosecution memorandum.¶

narrative of Epstein’s philanthropic activities, rather than presented as a suggestion that Epstein’s association to the former President warranted leniency and, in any case, the USAO rejected the defense argument that the matter should be left entirely to the state’s discretion.{sup}212 The defense submission to the Deputy Attorney General contained a direct reference to Epstein’s connection to former President Clinton, but that submission was made well after the NPA was negotiated and signed, and in it, counsel contended that the USAO had treated Epstein too harshly because of his association with the former President.{sup}213¶

2. The Subjects Asserted That They Were Motivated by Reasonable Strategic and Policy Considerations, Not Improper Influences¶

In addition to reviewing the documentary evidence, OPR questioned the five subject attorneys, all of whom denied being personally influenced by Epstein’s wealth or status in making decisions regarding the investigation, in the decision to resolve the case through an NPA, or in negotiating the NPA. Villafaña, in particular, was concerned from the outset of the federal investigation that Epstein might try to employ against the USAO the same pressure that she understood had been used with the State Attorney’s Office, and she proactively took steps to counter Epstein’s possible influence by meeting with Acosta and Sloman to sensitize them to Epstein’s tactics. Both Acosta and Sloman told OPR that the USAO had handled cases involving wealthy, high-profile defendants before, including the Abramoff case. Acosta told OPR, “[W]e tried to treat [the case] fairly, not looking at … how wealthy is he, but also not saying we need to do this because he is so wealthy.” Menchel expressed a similar view, telling OPR that he did not believe “it’s appropriate to go after somebody because of their status one way or the other.” Lourie told OPR that Epstein’s status may have generated more “front office” involvement in the case, but it did not affect the outcome, and Sloman “emphatically disagree[d]” with the suggestion that the USAO’s handling of the case had been affected by Epstein’s wealth or influential connections. Other witnesses corroborated the subjects’ testimony on this point, including the FBI case agents, who told OPR that no one ever communicated to them that they should treat Epstein differently because of his wealth. The CEOS Chief told OPR that he did not recall anyone at the USAO expressing either qualms or enthusiasm about proceeding against Epstein because of his wealth and influence.¶

OPR takes note of but does not consider dispositive the absence of any affirmative evidence that the subjects were acting from improper motivations or their denial of such motivations. Of more significance, and as discussed more fully below, was the fact that contemporaneous records support the subjects’ assertions that the decision to pursue a pre-charge resolution was based on various case-specific legal and factual considerations.{sup}214 OPR also¶

{sup}212 In the pre-NPA letter to the USAO, counsel recited a litany of Epstein’s purported good deeds and charitable works, including a trip Epstein took to Africa with former President Clinton to raise awareness of AIDS, and counsel also noted that the former President had been quoted by New York Magazine describing Epstein as “a committed philanthropist.”¶

{sup}213 In the letter to the Deputy Attorney General, counsel suggested that the prosecution may have been “politically motivated” due to Epstein’s “close personal association with former President Bill Clinton.”¶

{sup}214 OPR also considered that all five subjects provided generally consistent explanations regarding the factors that influenced Acosta’s decision to resolve the federal investigation through the NPA. Sloman, Menchel, Lourie, and Villafaña all had long careers with the Department, and OPR considers it unlikely that they would all have joined with¶

considered that the USAO’s most pivotal decisions—to resolve the case through an NPA requiring Epstein to serve time in jail, register as a sexual offender, and provide monetary damages to victims—had been made by July 31, 2007, when the USAO presented its “term sheet” to the defense. This was before Acosta had ever met with defense counsel and when he had not indicated any plans to do so. It also was well before Acosta’s October 12, 2007 breakfast meeting with defense counsel Lefkowitz, which received strong public and media criticism. OPR also considered significant the fact that although the USAO made numerous concessions in the course of negotiating the final NPA, the USAO did not accede to the defense request that the USAO end federal involvement altogether and return the matter to the state authorities to handle as they saw fit, and the USAO refused to eliminate its requirement that Epstein register as a sexual offender, despite a strong push by the defense that it do so.¶

3. Subject and Witness Interviews and Contemporaneous Records Identified Case-Specific Considerations Relating to Evidence, Legal Theories, Litigation Risk, and a Trial’s Potential Impact on Victims¶

Acosta, Sloman, Menchel, and Lourie told OPR that they did not recall the specific content of discussions about the challenges presented by a potential federal prosecution or reasons for Acosta’s decision to resolve the federal investigation through the NPA, but they and Villafaña identified for OPR several case-specific factors, unrelated to Epstein’s wealth or associations, that either did or likely would have been included in those discussions and that OPR concludes likely influenced Acosta’s decision-making. These considerations included assessment of the evidentiary risks and the potential impact of a trial on the victims. For the most part, however, these factors appear more aptly to pertain to the decision to resolve the case through a pre-charge disposition, but do not directly explain why Acosta chose to resolve the federal investigation through a guilty plea in state court. That decision appears to have stemmed from Acosta’s concerns about intruding into an area he believed was traditionally handled by state law enforcement authorities.¶

In a declaration submitted to the district court in 2017 in connection with the CVRA litigation, Villafaña explained the USAO’s rationale for terminating the federal investigation through the NPA:¶

Prior to the Office making its decision to direct me to engage in negotiations with Epstein’s counsel, I discussed the strengths and weaknesses of the case with members of the Office’s management, and informed them that most of the victims had expressed significant concerns about having their identities disclosed… . It is my understanding from these and other discussions that these factors, that is, the various strengths and weaknesses of the case and the various competing interests of the many different victims (including the privacy concerns expressed by many), together with the Office’s desire to obtain a guaranteed sentence of incarceration for Epstein, the equivalent of uncontested restitution for the victims,¶

Acosta to improperly benefit Epstein or would have remained silent if they suspected that Acosta, or any of their colleagues, was motivated by improper influences.¶

and guaranteed sexual offender registration by Epstein … were among the factors [that led to the NPA].2”¶

During her OPR interview, Villaftuia similarly described the victims’ general reluctance to go forward with a trial:¶

[W]hen we would meet with victims, we would ask them how they wanted the case to be resolved. And most of them wanted the case to be resolved via a plea. Some of them wanted him not to be prosecuted at all. Most of them did not want to have to come to court and testify. They were very worried about their privacy, rights.21’

¶

4¶

In his written response to OPR, Lourie stated that although he did iffcally recall the issues Villafana set forth in her declaration, he believed they would bate portant to the USAO in 2007. Lourie also told OPR that he generally recalled coneetvit in the USAO about the charges and a potential trial:¶

[M]y vague recollection is that I and others was a substantial chance we would not pr appeal after a conviction, resulting i s that there trial and on e, no criminal

¶

Throughout the A majority of the identities to the p testify a Additiona we interviewed many [of Epstein’s!’ victims … . %pressed concern about the possible disclosure of their A number of the victims raised concerns about having to it parents finding out about their involvement with Mr. Epstein. me victims, learning of the Epstein investigation and possible ~e Qosure ofrir identities caused them emotional distress. Overall, nigh of the nts were troubled about the existence of the investigation. They displayed of embarrassment and humiliation and were reluctant to talk to gators. Sonic victims who were identified through the investigation refused n to speak to us. Our concerns about the victims’ well-being and getting to truth were always at the forefront of our handling of the investigation.¶

In addition, during the CVRA litigation, an attorney representing several victims filed a pleading to protect the ano “mitt’ of his clients by preventing disclosure of their identities to the CVRA petitioners. See Response to Court Order of July 6, 2015 and United States’ Notice of Partial Compliance (July 24, 2015). It is noteworthy that in 2020, when OPR attempted to contact victims, through their counsel, for interviews or responses to written questions regarding contacts with the USAO, OPR was informed that most of the victims were still deeply concerned about remaining anonymous. One victim described to OPR how she became distraught when, during the USAO’s investigation, the FBI left a business card at her parents’ home and, as a result, her parents learned that she was a victim of Epstein At the time, the victim was a teenager, was “nervous, scared, and ashamed”: and did not wart her parents to know about the case.¶

{sup}313 Doe v. United States, No. 9:08-cv-80736 (S Government’s Response and Opposition to Petitions Summary Judgment at 8.9 (June 2, 2017). titration of A. MI Villafaila in Support of Partial Summary Judgment and Cross-Motion for¶

{sup}116 These concerns are also reflected in in which she stated, “During interviews Epstein be prosecuted.” She further de aration filed by the FBI case agent in the CVRA litigation, m 2006 to 2008, no victims expressed a strong opinion that ncems of some of the victims:¶

record, no restitution, no sex offender status, publication at a trial of the names of certain victims that didn’t want their names revealed and the general difficulties of a trial for the victims and their families.¶

Although his emails showed that, at the time, he advocated for prosecution of Epstein, Lourie told OPR it was also his general recollection that “everybody at the USAO working on the matter had expressed concerns at various times about the long-term viability of a federal prosecution of Epstein due to certain factual and legal hurdles, as well as issues with the cooperation and desires of the victims.”¶

Similarly, Menchel—who had experience prosecuting sexual assault crimes—recalled understanding that many of the victims were unwilling to go forward and would [REDACTED] be experienced additional trauma as a result of a trial, and some had made statements exonerating Epstein. Menchel told OPR he believed that if the USAO had filed the proposed charges against Epstein, Epstein would have elected to go to trial. In Menchel’s view, the USAO therefore had to weigh the risk of losing at trial, and thereby re-traumatizing the victims, against the benefits gained through a negotiated result, which ensured that Epstein served time in jail, registered as a sexual offender, and made restitution to his victims.¶

Sloman also recalled witness challenges and concerns about the viability of the government’s legal theories. He told OPR:¶

[I]t seemed to me you had a tranche of witnesses who were not going to be reliable. You had a tranche [of] witnesses who were going to be severely impeached. People who loved Jeffrey Epstein who thought he was a Svengali [REDACTED] who were going to say I told him I was 18 years old.¶

You had witnesses who were scared to death of the public light being shown on them because their parents didn’t even know — had very vulnerable victims. You had all of these concerns.¶

Acosta told OPR that he recalled discussions with his senior managers about the victims’ general credibility and reluctance to testify and the evidentiary strength of the case, all of which factored into the resolution. He acknowledged that his understanding of the facts was not “granular” and did not encompass a detailed understanding of each victim’s expected testimony, but he trusted that his “team” had already “done the diligence necessary” to make recommendations about the evidentiary strength of the case. Acosta recalled discussing the facts with Sloman and Menchel, and possibly Lourie, none of whom had as detailed an understanding of the facts as Villafaña. Nevertheless, OPR credits Acosta’s statement that he reasonably believed, based on his conversations with others who expressed this view, that a trial would pose significant evidentiary challenges.¶

Other witnesses corroborated the subjects’ testimony regarding witness challenges, including the FBI co-case agent, who recalled during his OPR interview that some of the victims had expressed concern for their safety and “a lot of them d[id]n’t want to take the stand, and¶

d[id]n’t want to have to relive what happened to them.”{sup}217 The co-case agent told OPR that one of the “strategies” for dealing with the victims’ fear was “to keep them off the stand,” and he generally remembered discussions about resolving the Epstein case in a way that protected the victims’ identities. In addition, the CEOS Trial Attorney who briefly worked with Villafaña on the case after the NPA was signed told OPR that in her meetings with some of the victims, she formed the impression that they were not interested in the prosecution going forward. The CEOS Trial Attorney told OPR that “[the victims] would have testified,” but would have required an extensive amount of “victim management” because they were “deeply embarrassed” about potentially being labeled as prostitutes. The CEOS Trial Attorney also told OPR that “there were obvious weaknesses in the case,” from an evidentiary perspective.{sup}218¶

The contemporaneous records also reflect discussions of, or references to, various legal and factual issues or other concerns about the case. For example, in an early email to Menchel, Lourie noted that two key issues raised by Villafaña’s proposed charges were whether the USAO could prove that Epstein traveled for the purpose of engaging in sex acts, and the fact that some minor victims had told Epstein they were 18. He later opined to Acosta and Menchel that “there is some risk on some of the statutes [proposed in Villafaña’s prosecution memorandum] as this is uncharted territory to some degree.” In his July 5, 2007 email to Villafaña, Menchel cited Acosta’s and Sloman’s “concerns about taking this case because of [the P]etit policy and a number of legal issues” and Acosta’s concerns about “hurting Project Safe Childhood.” Defense counsel raised myriad legal and factual challenges in their voluminous letters to the USAO. Defense submissions attacked the legal theories for a federal prosecution and detailed factors that could have undermined victims’ credibility, including victim statements favorable to Epstein and evidence of victim drug and alcohol use, as well as the fact that some victims recruited other victims and purportedly lied to Epstein about their ages.¶

Acosta also recalled that although his “team” had expressed concern about the “trial issues,” his own focus had been on “the legal side of things.” Notably, during his prior tenure as the Assistant Attorney General in charge of the Department’s Civil Rights Division, Acosta had been involved in efforts to address sex trafficking. He told OPR that one of the “background issues” that the Civil Rights Division addressed under his leadership, and which influenced his view of the Epstein case, was the distinction between sex trafficking and solicitation of prostitution. Specifically, he was concerned about avoiding the creation of potentially unfavorable federal precedent on the point of delineation between prostitution, which was traditionally a matter of state concern, and sex trafficking, which remained a developing area of federal interest in 2007.{sup}219¶

{sup}217 In an affidavit filed in the CVRA litigation, the co-case agent noted that in early 2007, when he located a victim living outside of the United States, she claimed only to “know Jeffrey Epstein,” and stated that she “moved away to distance herself from this situation,” and “asked that [the agent] not bother her with this again.”¶

{sup}218 In April 2007, a victim who was represented by an attorney paid by Epstein participated in a video-recorded interview with the FBI, with her attorney and his investigator present. This victim denied being involved in, or being a victim of, criminal activity. Later, the victim obtained new counsel and joined the CVRA litigation as “Jane Doe #2.”¶

{sup}219 In his March 20, 2011 letter, addressed “To whom it may concern,” and published online in The Daily Beast, Acosta described “a year-long assault on the prosecution and the prosecutors” by “an army of legal superstars.” Most of the allegations made against the prosecutors occurred after the NPA was signed and certainly after Acosta approved¶

The USAO might have been able to surmount the evidentiary, legal, and policy issues presented by a federal prosecution of Epstein. Villafaña, in particular, believed she could have prevailed had she taken the case to trial, and even after the NPA was negotiated, she repeatedly recommended declaring Epstein in breach and proceeding with an indictment, because she continued to have confidence in the case.{sup}220 Oosterbaan and others also believed that the government would succeed at trial. Furthermore, the victims were not a uniform group. Some of them were afraid of testifying or having their identities made public; others wanted Epstein prosecuted, but even among those, it is not clear how many expressed a willingness to testify at a trial; and still others provided information favorable to Epstein. In the end, Acosta assumed responsibility for deciding how to resolve the Epstein investigation and weighing the risks and benefits of a trial versus those of a pre-charge disposition. His determination that a pre-charge disposition was appropriate was not unreasonable under the circumstances.¶

Although evidentiary and witness issues explain the subject supervisors’ concerns about winning a potential trial and why the USAO would have sought some sort of pre-charge disposition, they do not fully explain why Acosta decided to pursue a state-based resolution as opposed to a traditional federal plea agreement. OPR did not find in the contemporaneous records a memorandum or other memorialization of the reasoning underlying Acosta’s decision to offer a state-based resolution or the terms offered to the defense on July 31, 2007.¶

According to Acosta, “In 2006, it would have been extremely unusual for any United States Attorney’s Office to become involved in a state solicitation case, even one involving underage teens,” because solicitation was “the province of state prosecutors.” Acosta told OPR that he developed “a preference for deferring to the state” to “make it clear that [the USAO was] not stepping on something that is a purely local matter, because we [didn’t] want bad precedent for the sake of the larger human trafficking issue.” Acosta also told OPR that it was his understanding that the PBPD would not have brought the case to federal investigators if the State Attorney’s Office had pursued a sanction against Epstein that included jail time and sexual offender registration. Acosta viewed the USAO’s role in the case as limited to preventing the “manifest injustice” that, in Acosta’s view, would have resulted from the state’s original plea proposal. Acosta acknowledged that if the investigation had begun in the federal system, he would not have viewed the terms set out in the NPA as a satisfactory result, but it was adequate to serve as a “backstop” to the state’s prosecution, which he described as “a polite way of saying, ‘Jencouraging the state to do a little bit more.[]’” In sum, Acosta told OPR that the Epstein case lay in “uncharted territory,” there was no certainty that the USAO would prevail if it went to trial, and a potentially unfavorable outcome had to be “weighed against a certain plea with registration that would make sure that the public knew that this person was a sex offender.”¶

Acosta told OPR that he discussed the case primarily with Sloman and Menchel, and both told OPR that while they did not share Acosta’s federalism concerns, they recalled that Acosta had¶

the terms offered to the defense on July 31, 2007. Therefore, any allegations against the prosecutors could not have played a significant role in Acosta’s decisions as reflected in the term sheet.¶

{sup}220 Sloman told OPR that Villafaña “always believed in the case.”¶

been concerned about policy and federalism issues.{sup}221 Sloman told OPR that although he did not remember specific conversations, he generally recalled that Acosta had been “sensitive to” Petite policy and federalism concerns, which Sloman described as whether the USAO was “overstepping our bounds by taking what is a traditional state case that was in the State Attorney’s Office that was resolved by the State Attorney’s Office at some level.” During his OPR interview, Menchel remembered that Acosta approached the case from “a broader policy perspective” and was worried about “the impact that taking the case in federally may have on … other programs,” although Menchel did not recall specifically what those programs were.¶

C. Other Significant Factors Are Inconsistent with a Conclusion That the Subjects’ Actions Were Motivated by Improper Influences¶

OPR considered additional aspects of the Epstein case that were inconsistent with a suggestion that Acosta’s decision to offer the July 31, 2007 terms was driven by corruption, a desire to provide an improper benefit to Epstein, or other improper influences.¶

First, OPR considered highly significant the fact that if Acosta’s primary motivation was to benefit Epstein, he had an option even more favorable to Epstein available to him. The NPA required Epstein to serve time in jail and register as a sexual offender, and provided a mechanism for the victims to seek monetary damages—outcomes unlikely if the matter had been abandoned and sent back to the state for whatever result state authorities deemed appropriate. Epstein’s attorneys had vehemently argued to the USAO that there was no federal interest in the investigation and that his conduct was exclusively a matter of state concern. If the USAO had declined to intervene in the case, as Epstein’s counsel repeatedly and strongly argued it should, the state would have meted out the sole punishment for his behavior. Under the state’s original plan, Epstein likely would have received a sentence of probation. Menchel described such a result as a mere “slap on the wrist,” with “no jail time, no felony sex offense, no sexual offender registration, [and] no restitution for the victims.” Instead of acceding to Epstein’s proposal, however, the USAO devised a resolution of the federal investigation that, although widely criticized as inadequate to address the seriousness of Epstein’s conduct, nevertheless penalized Epstein more than a guilty plea to the state’s original charge, standing alone, would have done. Acosta’s affirmative decision to intervene and to compel a more stringent and just resolution than the state had proposed, rather than exercising his discretion to quietly decline prosecution, is strong circumstantial evidence that he was not acting for the purpose of benefiting Epstein.{sup}222 Similarly, despite defense counsel’s repeated requests to eliminate the sexual offender registration requirement, Acosta refused to¶

we were prosecuting [Epstein] because he was Jewish. We then pointed out that a number of members of [the USAO] chain of command were Jewish. Then he said, well we’re prosecuting him because he was a Democrat. And again, we pointed out that a number of us were Democrats. So then it went to, we were prosecuting him because he was wealthy… . That one didn’t work so well.¶

{sup}221 Sloman stated that although Acosta “was sensitive to [P]etite policy concerns, federalism concerns, … I was not.” Menchel commented, “I don’t think it would have been a concern of mine.”¶

{sup}222 Menchel also pointed out during his OPR interview that Acosta was Republican and “had nothing to gain” by showing favoritism to Epstein, who had been portrayed in the media as “this big Democratic donor.” Villafaña recounted for OPR an exchange between the USAO team and a defense attorney who argued in one meeting that—¶

reconsider the provision. Acosta could certainly have modified or eliminated the provision entirely if his motivation was to benefit Epstein or Epstein’s attorneys.¶

Second, Epstein himself was not satisfied with the NPA. Immediately after signing the agreement, he sought to have the Department nullify it by declaring federal involvement in the investigation inappropriate. In addition to repeatedly attacking the NPA in his submissions to the Department, Epstein added to his evidentiary challenges and federalism claims allegations of misconduct and improper bias on the part of specific USAO personnel. Epstein’s dissatisfaction with the NPA, and his personal attacks on individual prosecutors involved in negotiating the agreement, appear inconsistent with a conclusion that the subjects designed the NPA for Epstein’s benefit.¶

D. OPR Does Not Find That the Subjects’ Preexisting Relationships with Defense Counsel, Decisions to Meet with Defense Counsel, and Other Factors Established That the Subjects Acted from Improper Influences or Provided Improper Benefits to Epstein¶

In evaluating the subjects’ conduct, OPR considered various other factors featured in media accounts to show that the subjects provided improper benefits to Epstein or which purportedly suggested that the subjects acted from improper influences. OPR examined these factors but did not find that they supported a finding that the subjects were influenced by favoritism, bias, or other improper motivation.¶

1. The Evidence Does Not Establish That the Subjects Extended Any Improper Benefit to Epstein because of Their Preexisting Relationships with His Attorneys¶

Epstein’s wealth enabled him to hire multiple attorneys who had preexisting personal connections to some of the government attorneys involved in his case, in the State Attorney’s Office, in the USAO, and elsewhere in the Department. Based on the attorneys Epstein selected to represent him, a reasonable inference can be drawn that Epstein believed that hiring attorneys with relationships to the prosecutors would be beneficial to him. One of the first attorneys who contacted the USAO on Epstein’s behalf was Guy [REDACTED], a former AUSA in and U.S. Attorney for the Southern District of Florida. Villafaña and Lourie had worked for [REDACTED] and Lourie was close friends with one of [REDACTED] law partners. Epstein also retained Lilly Ann [REDACTED], a former AUSA who had been Menchel’s deputy and with whom he had socialized. Later, when Epstein was seeking Acosta’s personal involvement in the case, Epstein hired Kenneth Starr and Jay Lefkowitz, prominent attorneys from Kirkland & Ellis with whom Acosta was acquainted from his previous employment with that firm.¶

Villafaña told OPR that she believed Acosta “was influenced by the stature of Epstein’s attorneys.” Critically, however, other than the information regarding Menchel that is discussed in the following subsection, neither Villafaña nor any of the other individuals OPR interviewed identified any specific evidence suggesting that Acosta, or any of the other subjects, extended an improper favor or benefit to Epstein because of a personal relationship with defense counsel (or for any other improper reason). Villafaña explained how, in her view, the “legal prowess” of Epstein’s attorneys had an impact on the case:¶

[O]ne of the issues in the case was the … defense’s ability to describe the case or characterize the case as being legally complex. It was not as legally complex as they made it out to be. But because they were able to convince members of our office that it was somehow extremely novel and legally complex, the issue became who was likely to succeed in arguing these legal issues. And because of that, the legal prowess, if you will, of the attorneys [ ] [became] something to consider.¶

… I think that the ability of Alan Dershowitz and Ken Starr and Jay Lefkowitz to convince Alex Acosta that I didn’t know what I was talking [about] also, all came into play. So I think there were a number of factors and it all came together.¶

Although Villafaña was critical of Acosta’s consideration of the defense arguments, she conceded that the defense team’s tactics demonstrated effective advocacy. Certainly, throughout the case, Epstein’s attorneys prepared lengthy memoranda analyzing the evidence and arguing nuanced legal points concerning federalism, the elements of numerous federal criminal statutes, and the evidence relevant to those statutes, but it is not unusual or unreasonable for prosecutors to carefully consider well-crafted legal arguments from defense counsel.¶

There is little question that Epstein’s extensive team of attorneys was able to obtain negotiated benefits for Epstein—although the USAO never wavered from its three core requirements, it did agree to a reduction in prison time from its original offer, and it granted Epstein certain other concessions during the negotiations. Epstein’s wealth provided him with skilled, experienced negotiators who continually sought various incremental concessions, and with attorneys who knew how to obtain Department review of a USAO matter, thereby delaying undesired outcomes for as long as possible.{sup}223 Despite Epstein’s evident intentions, however, OPR did not find evidence warranting a conclusion that the NPA or its terms resulted from the subjects’ relationships with the attorneys he had selected to represent him.¶

2. The Subjects Asserted That Their Relationships with Defense Counsel Did Not Influence Their Actions¶

Acosta, Menchel, Sloman, and Lourie each asserted that Epstein’s choice of counsel did not affect his handling of the case. Menchel told OPR that once in private practice, former colleagues often became adversaries. In Menchel’s view, such preexisting relationships were useful because they afforded a defense attorney initial credibility and an insight into the issues a prosecutor would likely view as areas of concern, which enabled the defense attorney to “tailor” arguments in a way that would maximize their persuasive impact on the USAO. Menchel told OPR, however, that these advantages did not “move the needle in any major way,” and he “reject[ed] the notion” that anyone in the USAO had been “swayed” because of preexisting¶

{sup}223 As Chief Reiter later observed in his deposition testimony, “[T]he Epstein case was an instance of a many million dollars defense and what it can accomplish.”¶

friendships or associations with any of Epstein’s attorneys. In fact, Menchel told OPR that he and his USAO colleagues viewed Epstein’s attempt to exert influence through his choice of counsel as “ham-fisted” and “clumsy.”¶

Sloman told OPR that although he became aware that Lourie was friends with Guy [REDACTED] and [REDACTED] law partner, he was unaware of personal relationships between any of his other colleagues and any of Epstein’s attorneys, but that in any event his attitude regarding cases involving former colleagues “was that we would give them process, but we didn’t pull any punches with them.” In Sloman’s view, preexisting relationships with defense counsel did not “change the equation” because as AUSAs, he and his colleagues were motivated by what they perceived to be best for the case.¶

Lourie told OPR that his preexisting associations with Epstein’s attorneys “didn’t influence anything.” Notably, at the outset of the Epstein case, Lourie sought guidance from the USAO’s Professional Responsibility Officer about the propriety of his role as a supervisor in the investigation, because of his acquaintance with [REDACTED] and long-time friendship with [REDACTED] law partner. OPR considered Lourie’s caution in seeking and obtaining the Professional Responsibility Officer’s advice as an indication that he was alert to his ethical responsibilities regarding relationships with defense counsel, including avoiding the appearance of a conflict of interest.¶

Acosta said during his OPR interview that he “developed” the three criteria reflected on the term sheet—a sentence of incarceration, sexual offender registration, and monetary damages for the victims—before he engaged directly with any of Epstein’s attorneys and before Epstein added Starr and Lefkowitz, the Kirkland & Ellis attorneys, to his team. Acosta pointed out that the USAO continued to insist on a resolution that satisfied all three of those criteria even after Kirkland & Ellis became involved in the case.¶

Acosta took other actions that appear inconsistent with an intent to benefit Starr and Lefkowitz. On several occasions, when directly appealed to by Lefkowitz or Starr, he directed them to address their communications to Villafaña, Sloman, and other subordinates. After his October 12, 2007 breakfast meeting with Lefkowitz, Acosta immediately communicated with Sloman about their conversation. In late 2008, when Acosta anticipated leaving the USAO and was considering pursuing employment with Kirkland & Ellis, he recognized the conflict of interest and instructed Sloman to stop copying him on emails relating to the Epstein matter. On Acosta’s behalf, the USAO’s Professional Responsibility Officer sought and obtained formal Department approval of Acosta’s recusal from the case based on the fact that he had “begun to discuss possible employment” with Kirkland & Ellis. These actions support Acosta’s assertion that he was cognizant of his ethical responsibilities concerning relationships with defense counsel.{sup}224¶

{sup}224 In addition, in May 2008, the USAO’s Professional Responsibility Officer consulted with the Department’s Professional Responsibility Officer about whether Acosta should recuse from the Epstein matter because he was considering seeking a visiting professorship at Harvard Law School in 2009, and Dershowitz—a Harvard Law School professor—was representing Epstein “as a private, paying client, and not as any part of a Harvard Law School clinic or law school teaching program” and “should have no role in deciding whether Mr. Acosta is offered any position as a visiting professor.” The Department advised that these facts provided no basis for recusal.¶

In its review of the documentary record, OPR examined an email written by Villafaña in 2018, more than a decade after the NPA was negotiated, in which she suggested that the two-year sentence requirement in the initial “term sheet” provided to the defense was developed by Menchel as a favor to defense attorney [REDACTED]. OPR examined the facts surrounding this allegation and determined that there was no merit to it. Specifically, in December 2018, after the Miami Herald investigative report renewed public attention to the case, Villafaña recounted in an email to a supervisory AUSA, a conversation she recalled having had with Sloman about the case.{sup}225 In the email, Villafaña stated that she had not been a participant in discussions that led to Acosta’s decision to offer a two-year plea deal, but she added the following: “Months (or possibly years) later, I asked former First Assistant Jeff Sloman where the two-year figure came from. He said that Lily [sic] Ann [REDACTED] (attorney for Epstein) asked Mr. Menchel to ‘do her a solid’ and convince Mr. Acosta to offer two years.”¶

OPR questioned both Villafaña and Sloman about the purported “do her a solid” remark. Villafaña told OPR that she had been aware that Menchel and [REDACTED] were friends. During her OPR interview, Villafaña explained:¶

[A] lot later, I asked Jeff. I said, you know, “Jeff, where did this two years come from?” And he said, “Well, I always figured that … Lilly asked Matt to do her a solid,” which I thought was such a strange term, … “and to get her a good deal so that she would be in Epstein’s good graces” and that that’s where the two years came from. Although strangely enough, then several years after that, Jeff Sloman asked me where the two years came from, and I had to remind him of that conversation. So Jeff doesn’t know where the two years came from.¶

Because the email had been expressed in more definitive terms, OPR asked Villafaña whether Sloman had affirmatively asserted that the two-year deal was a favor from Menchel to defense counsel, or whether he had stated that he merely “figured” that was the case, but Villafaña could not recall precisely what Sloman had said. At a follow-up interview, Villafaña again said that she was unable to recall whether Sloman’s specific statement was “Lilly asked Matt to do her a solid, and he did it,” or “I always figured Matt just wanted … to do her a solid.” Villafaña stated that she was unaware of any information that “expressly [indicated] that there was any sort of exchange of … a favor in either direction.”¶

During his OPR interview, Sloman did not recall making such a remark, although he could not rule out the possibility that Villafaña, for whom he repeatedly expressed great respect, “heard that in some fashion.” He told OPR that if he did say something to Villafaña about Menchel having done “a solid” for Epstein’s counsel, he could not have meant it seriously, and he explained, “[I]t’s not something that I would have believed. Him doing her a solid. I mean that’s the furthest thing from my recollection or impression even after years later.”¶

{sup}225 Villafaña’s email stemmed from a congressional inquiry received by the Department concerning the Epstein investigation and the NPA, to which the USAO had been asked to assist in responding. In her email, Villafaña addressed several issues that she perceived to be the “three main questions” raised by the press coverage.¶

Menchel told OPR that when he and [REDACTED] were in the USAO, they had a social relationship, which included, in 2003, “a handful of dates over a period of two to three weeks. We decided that … this was probably best not to pursue, and we mutually agreed to not do that.”{sup}226 Apart from that, he stated they were “close” and “hung out,” and he asserted that this was known in the office at the time. Menchel said that his relationship with [REDACTED] “changed dramatically” when she left the office for private practice, and that by the time he became involved in the Epstein investigation, he had dated and married his wife, and his contact with [REDACTED] would “most likely” have been at office events and when she attended his wedding.{sup}227 Menchel added, “[T]hat was three and a half years [prior] for a very brief period of time, and I don’t think I gave it a moment’s thought.”¶

When asked by OPR about the basis for the decision to make an offer of a two-year term of incarceration, Menchel said that he did not recall discussions about the two-year offer and did not recall how the office arrived at that figure. In response to OPR’s question, Menchel stated that his relationship with [REDACTED] did “[n]ot at all” affect his handling of the Epstein case. Moreover, Menchel asserted that the contemporaneous documentary record supports a conclusion that it was Acosta, not Menchel, who made the decision to resolve the case with the two-year term.¶

OPR carefully considered the documentary record on this point, as well as the statements to OPR from Menchel, Villafaña, Sloman, and Acosta, and concludes that there is no evidence supporting the suggestion that the plea was instigated by Menchel as a favor to defense counsel. The USAO’s first plea overture to defense counsel, which took place sometime before June 26, 2007, occurred when Menchel spoke with Sanchez about the possibility of resolving the federal case with a state plea that required jail time and sexual offender registration. According to the email, “[i]t was a non-starter” for the defense. In the lengthy email exchange with Villafaña in early July 2007, Menchel told her that his discussion with [REDACTED] about a state-based resolution was made with Acosta’s “full knowledge.” Acosta corroborated this statement, telling OPR that although he did not remember a specific conversation with Menchel concerning a state-based resolution, he was certain Menchel would not have discussed this potential resolution with defense counsel “without having discussed it with me.”{sup}228 Moreover, the defense did not immediately¶

{sup}226 Acosta, Sloman, and Lourie each told OPR that in 2007, he was not aware that Menchel had previously dated [REDACTED]. OPR questioned the USAO’s Professional Responsibility Officer regarding whether Menchel had an obligation to inform his supervisors of his dating relationship. The Professional Responsibility Officer said that it would depend on “how long the relationship was and how compromised the individual felt he might appear to be,” but he would have expected Menchel to raise the issue with Acosta. The Professional Responsibility Officer told OPR that if he had been approached for advice at the time, he would have asked for more facts, but “[g]iven the sensitivity of the [Epstein] matter, [my advice] would probably have been to tell him to step back and let somebody else take it over.” Menchel told OPR that if his relationship with [REDACTED] had turned into something more than a handful of dates, he would have advised his supervisors. Although OPR does not conclude Menchel’s prior relationship with Sanchez influenced the Epstein investigation, OPR assesses that it would have been prudent for Menchel to have informed his supervisors so they could make an independent assessment as to whether his continued involvement in the Epstein investigation might create the appearance of a loss of impartiality.¶

{sup}227 Menchel’s Outlook records also indicate he scheduled lunch with [REDACTED] on at least one occasion, in early 2006, after she left the USAO.¶

{sup}228 In addition, Villafaña recalled Menchel stating at the July 26, 2007 meeting that “Alex has decided to offer a two year state deal.”¶

accept the two-year proposal when it was made, but instead continued to press for a sentence oful home confinement, suggesting that the defense had not requested the two-year term as a favor and did not view it as such. The defense had previously rejected the state’s offer of a sentence of probation, and there is no indication in the contemporaneous records that Epstein viewed any jail sentence favorably and certainly that did not appear to be the view of the defense team in the early stages of the negotiations.¶

As discussed below, after extensive questioning of the subjects about the basis for the two-year offer, and a thorough review of the documentary record, OPR was unable to determine the reasoning underlying the decision to offer two years as the term of incarceration, as opposed to any other term of years. Nonetheless, OPR concludes from the evidence that Acosta was aware of and approved the initial offer to the defense, which included the two-year term of incarceration. The only evidence suggesting that the offer of two years stemmed from an improper motivation of Menchel’s was a single second-hand statement in an email drafted many years later. Sloman, the purported declarant, told OPR that he could not recall whether he made the statement, but he firmly disputed that the email accurately reflected either the reason for the two-year proposal or his understanding of that reason. Villafaña herself could remember little about the critical conversation with Sloman, including whether she had recorded accurately what Sloman had said. Given the lack of any corroborating evidence, and the evidence showing Epstein’s vigorous resistance to the proposal, OPR concludes that there is no evidence to support the statement in Villafaña’s 2018 email that Menchel had extended a two-year plea deal as a favor to one of Epstein’s attorneys.¶

E. The Evidence Does Not Establish That the Subjects’ Meetings with Defense Counsel Were Improper Benefits to Epstein¶

OPR considered whether decisions by Acosta, Sloman, Menchel, and Lourie to meet with defense counsel while possible charges were under consideration or during the period after the NPA was signed and before Epstein entered his state guilty pleas evidenced improper favoritism toward or the provision of an improper benefit to the Epstein defense team.¶

1. The Evidence Shows That the Subjects’ Decisions to Meet with Epstein’s Legal Team Were Warranted by Strategic Considerations¶

Although pre-indictment negotiations are typical in [REDACTED]-collar criminal cases involving financial crimes, witnesses told OPR that pre-charge meetings with defense counsel are infrequent in sex offense cases. As the lead prosecutor, Villafaña vehemently opposed meeting with Epstein’s attorneys and voiced her concerns to her supervisors, but was overruled by them. In Villafaña’s view, the significance of the early meetings granted to the defense team was that, but for those meetings, the USAO would not have offered the disposition set forth in the July 31, 2007 “term sheet” and, moreover, “that term sheet would never have been offered to anyone else.”¶

OPR’s investigation established that while the defense attorneys persistently contacted the subjects through emails, correspondence, and phone calls, relatively few in-person meetings actually occurred with the USAO personnel involved in the matter. As shown in the chart on the following page, while the case was under federal investigation and before the NPA was signed, the subject supervisors and defense counsel had five substantive meetings about the case—¶

including one called by the USAO to offer the NPA term sheet resolution—and a sixth meeting together with the State Attorney and the lead state prosecutor to discuss the state plea. Acosta attended only one pre-NPA meeting. After the NPA was signed and before Epstein entered his state guilty pleas, the subject supervisors and the defense team had one substantive meeting, one unscheduled meeting on a procedural matter, and a meeting with one defense attorney in preparation for a conference call; in addition, Acosta had the breakfast meeting with Lefkowitz.{sup}229¶

Date	USAO Participants	Defense Participants	Topic/Purpose
Pre-NPA
Feb. 1, 2007	Lourie / Villafaña	Lefcourt / Sanchez	Defense presents investigation improprieties and federal jurisdiction issues
Feb. 20, 2007	Lourie / Villafaña	Lefcourt / [REDACTED]	Defense presents witness issues
June 26, 2007	Sloman / Menchel / Lourie / Villafaña	Dershowitz / Black / Lefcourt / Sanchez	Defense presents legal issues, investigation improprieties, and federal jurisdiction issues
July 31, 2007	Sloman / Menchel / Lourie / Villafaña	Black / Lefcourt / Sanchez	USAO presents NPA term sheet
Sept. 7, 2007	Acosta / Oosterbaan / Sloman / Villafaña / Villafaña’s co-counsel	Starr / Lefkowitz / Sanchez	Defense presents counteroffer
Sept. 12, 2007	Lourie / Lourie successor / Villafaña	Lefkowitz / Lefcourt / Goldberger	Joint meeting with Krischer / Belohlavek re state plea provision of NPA
Post-NPA
Oct. 12, 2007	Acosta	Lefkowitz	Defense discussion of NPA terms and likely appeal to Department
Nov. 21, 2007 (unscheduled)	Sloman (possibly Acosta)	Lefkowitz (possibly Dershowitz)	Defense discussion of victims’ attorney representative procedure
Dec. 14, 2007	Acosta / Sloman / Villafaña / another senior AUSA	Starr / Weinberg / Dershowitz / Lefcourt	Defense presents federal jurisdiction issues, legal issues, and request for de novo review
Jan. 7, 2008	(1) Acosta / Sloman
(2) Acosta / Sloman
(conference call)	(1) Sanchez
(2) Starr / Lefkowitz / Sanchez	Defense presents USAO improprieties and “watered-down” resolution

{sup}229 In addition, all of the subjects took phone calls from various defense attorneys, and although numerous documentary records refer to such calls, there may have been others for which OPR located no record.¶

OPR explored the subject supervisors’ reasoning for accommodating the defense requests for in-person meetings and whether such accommodation was unusual. OPR questioned each of the four supervisory subject attorneys about his rationale for engaging in multiple meetings with the defense.¶

Lourie could not recall his reasoning for meeting with Epstein’s defense counsel, but he told OPR that his general practice was to meet with defense counsel when asked to do so. Lourie recognized that some prosecutors—like Villafaña—viewed meeting with the defense as a sign of “weakness,” but in Lourie’s view, “information is power,” and as long as the USAO did not share information with the defense but rather listened to their arguments, meetings were “all power to us.” Lourie explained that by meeting with the defense, “[Y]ou’re getting the information that they think is important; that they’re going to focus on. The witnesses that they think are liars … And so you can form all of that into your strategy.” Lourie also told OPR that giving defense counsel the opportunity to argue the defense position is an important “part of the process” that helped ensure procedural fairness, allowing them to “believe that they are getting heard.” When asked whether he afforded the same access to all defendants, Lourie responded, “I don’t recall ever getting … so many requests for meetings … and so many appeals and so many audiences that [Epstein’s attorneys] got. But this was I think the first time that that’s really happened.”¶

Menchel, too, told OPR that his general view was that “ethically it’s appropriate” to give a defense attorney “an audience,” and there was no real “downside” to doing so. Menchel added, “[W]hat happens a lot of times is the government will carve around those points that are being raised by the defense, and it’s good to know” what the defense will be.¶

During his OPR interview, Acosta rejected the notion that his meeting with defense counsel was unusual or outside the norm. He told OPR that his initial meeting with the defense team, before the NPA was signed, was “not the first and only time that I granted a meeting … to defense attorneys” who requested one. Acosta did not believe it was “atypical” for a U.S. Attorney to meet with opposing counsel, particularly as a case was coming to resolution. Sloman corroborated Acosta on this point, telling OPR that Acosta typically met with defense attorneys, and that the USAO handled requests for meetings from Epstein’s counsel “in the normal course.” Furthermore, Acosta said that notwithstanding that meeting and all the other “process” granted to the defense by the USAO and the Department, “we successfully held firm in our positions” on the key elements of the resolution—that is, the requirements that Epstein be incarcerated, register as a sexual offender, and provide monetary damages to the victims.¶

OPR examined the circumstances surrounding each subject’s decisions to have the individual meetings with defense counsel to determine if those meetings had a neutral, strategic purpose. The first meeting, on February 1, 2007, followed a phone call between Lourie and one of Epstein’s attorneys, in which the attorney asked for a chance to “make a pitch” about the victims’ lack of credibility and suggested that Epstein might agree to an interview following that pitch. Villafaña objected to meeting with the defense, but she recalled that Lourie told her she was not being a “strategic thinker,” and that he believed the meeting could lead to a debriefing of Epstein. The meeting did not result in a debriefing of Epstein, but in advance of the follow-up meeting on February 20, 2007, defense counsel gave the USAO audio recordings of the state’s witness interviews. Contemporaneous documents indicate that Lourie was unpersuaded by the defense arguments. After Villafaña circulated the prosecution memorandum, Lourie suggested¶

preparing a “short” charging document “with only ‘clean’ victims that they have not dirtied up already.”{sup}230 The fact that Lourie apparently used information gleaned from the defense about the victims’ credibility to formulate his charging recommendation supported his statements to OPR that such meetings were, in his experience, a useful source of information that could be factored into the government’s charging strategy.¶

The two February 2007 Villafaña/Lourie-level meetings focused on witness issues and claims of misconduct by state investigators, but in late May 2007, defense attorneys requested another meeting—this time with higher-level supervisors Menchel and Sloman—to make a presentation concerning legal deficiencies in a potential federal prosecution. The request was granted after Lourie recommended to Menchel and Sloman that “[i]t would probably be helpful to us … to hear their legal arguments in case we have missed something.” The requested meeting took place on June 26, 2007. Before the meeting, at Menchel’s direction, Villafaña provided to the defense a list of statutes the USAO was considering as the basis for federal charges. Defense counsel used that information to prepare a 19-page letter, submitted to the USAO the day before the June 26 meeting, as “an overview” of the defense position. In an email to his colleagues, Lourie evaluated the defense submission, noting its weaker and stronger arguments. A contemporaneous email indicates that Menchel, Lourie, and Villafaña viewed the meeting itself as primarily a “listening session.”{sup}231 After the meeting, Epstein’s team submitted a second lengthy letter to the USAO detailing Epstein’s “federalism” arguments that the USAO should let the state handle the matter.¶

Menchel apparently scheduled the next meeting with defense counsel, on July 31, 2007, to facilitate the USAO’s presentation to the defense team of the “term sheet” describing the proposed terms of a non-prosecution agreement.¶

By early August, after the Kirkland & Ellis attorneys—Starr and Lefkowitz—joined the defense team, Acosta believed they would likely “go to DC on the case, on the grounds … that I have not met with them.” A meeting with the defense team was eventually scheduled for September 7, 2007, when Acosta, Sloman, Villafaña, and Oosterbaan met with Starr, Lefkowitz, and [REDACTED]. In an email to Sloman, Acosta explained that he intended to meet with the defense, with Oosterbaan participating, “to discuss general legal policy only.” In another email to Sloman and Lourie, Acosta explained, “This will end up [in the Department] anyhow, if we don’t meet with them. I’d rather keep it here. Bringing [the CEOS Chief] in visibly does so. If our deadline has to slip a bit to do that, it’s worth it.” Acosta told OPR that the meeting “was not a negotiation,” but a chance for the defense to present their federalism arguments. Acosta said that he had already decided how he wanted to resolve the case, and “[t]he September meeting did not alter or shift our position.”¶

{sup}230 Lourie also recommended that the initial charging document “should contain only the victims they have nothing on at all.”¶

{sup}231 During her OPR interview, the FBI case agent recalled that defense counsel asked questions about the government’s case, including the number of victims and the type of sexual contact involved, and that during a break in the meeting, she engaged in a “discussion” with Menchel about providing this information to the defense. She did not recall specifics of the discussion, however.¶

The meeting of USAO representatives and Epstein’s defense attorneys, together with the State Attorney and the lead state prosecutor on September 12, 2007, was a necessary part of the NPA negotiation process.¶

Even after the NPA was signed, the defense continued to request meetings and reviews of the case, both within the USAO and by the Department’s Criminal Division and the Deputy Attorney General. Although limited reviews were granted, during this period there was only one substantive meeting with Acosta, on December 14, 2007.{sup}232 This meeting occurred in lieu of the meeting Starr had requested of Assistant Attorney General Fisher, most likely because the defense submissions to the Department’s Criminal Division had raised issues not previously raised with the USAO and the Department determined that Acosta should address those in the first instance.{sup}233 Acosta told OPR that he did not ask for the Department review, but he also did not want to appear as if he “fear[ed]” that review. Acosta’s nuanced position, however, was not clear to the Department attorneys who responded to Epstein’s appeals and who perceived Acosta to be in favor of a Department review, rather than merely tolerant of it. Notably, though, none of those meetings or reviews resulted in the USAO abandoning the NPA, and Epstein gained no substantial advantage from his continued entreaties.¶

In sum, in evaluating the subjects’ conduct, OPR considered the number of meetings, their purpose, the content of the discussions, and decisions made afterwards. OPR cannot say that the number of meetings, particularly those occurring before the NPA was signed, was so far outside the norm—for a high profile case with skilled defense attorneys—that the quantity of meetings alone shows that the subjects were motivated by improper favoritism. In evaluating the subjects’ conduct, OPR considered that the meetings were held with different levels of USAO managers and that the explanations for the decisions to participate in the meetings reflected reasonable strategic goals. Although OPR cannot rule out the possibility that because Acosta, Menchel, Lourie, or Sloman knew or knew of the defense attorneys, they may have been willing to meet with them, it is also true that prosecutors routinely meet with defense attorneys, including those who are known to them and those who are not. Furthermore, meetings are more likely to occur in high profile cases involving defendants with the financial resources to hire skilled defense counsel who request meetings at the highest levels of the USAO and the Department. Most significantly, OPR did not find evidence supporting a conclusion that the meetings themselves resulted in any substantial benefit to the defense. At each meeting, defense counsel strongly pressed the USAO—on factual, legal, and policy grounds—to forgo its federal investigation and to return the matter to the state to proceed as it saw fit. The USAO never yielded on that point. Accordingly, OPR did not find evidence supporting a conclusion that Acosta, Sloman, Menchel, Lourie, or Villafaña met with defense counsel for the purpose of benefiting Epstein or that the meetings themselves caused Acosta or the other subjects to provide improper benefits to Epstein.¶

{sup}232 Acosta’s October 12, 2007 breakfast meeting with Lefkowitz is discussed separately in the following section.¶

{sup}233 Starr and other defense attorneys only obtained one meeting at the Department level, with Deputy Assistant Attorney General Mandelker and CEOS Chief Oosterbaan in March 2008. Although Starr requested a meeting with Assistant Attorney General Fisher and another with Deputy Attorney General Filip, those requests were not granted.¶

2. The Evidence Does Not Establish That Acosta Negotiated a Deal Favorable to Epstein over Breakfast with Defense Counsel¶

OPR separately considered the circumstances of one specific meeting that has been the subject of media attention and public criticism. The Miami Herald’s November 2018 reporting on the Epstein investigation opened with an account of the October 12, 2007 breakfast meeting that defense counsel Jay Lefkowitz arranged to have with Acosta at the West Palm Beach Marriott hotel. According to the Miami Herald article, “a deal was struck” at the meeting to allow Epstein to serve “just 13 months” in the county jail in exchange for the shuttering of the federal investigation, and Acosta also agreed to “conceal” the full extent of Epstein’s crimes from the victims and the public.{sup}234 Although public criticism of the meeting has focused on the fact that the meeting occurred in a hotel far from Acosta’s Miami office, the evidence shows that Acosta traveled to West Palm Beach on October 11 for a press event and stayed overnight at the hotel, near the USAO’s West Palm Beach office, because at midday on October 12 he was to speak at the Palm Beach County Bench Bar Conference. After carefully considering the evidence surrounding the breakfast meeting, including contemporaneous email communications and witness accounts, OPR concludes that Acosta did not negotiate the NPA, or make any significant concessions relating to it, during or as a result of the October breakfast meeting.¶

Epstein and his attorneys signed the NPA on September 24, 2007—more than two weeks before the October 12 breakfast meeting. The signed NPA contained all of the key provisions resulting from the preceding weeks of negotiations between the parties, and despite a later addendum and ongoing disputes about interpreting the damages provision of the agreement, those key provisions remained in place thereafter. Acosta told OPR that throughout the negotiations with the defense, he sought three goals: (1) Epstein’s guilty plea in state court to an offense requiring registration as a sexual offender; (2) a sentence of imprisonment; and (3) a mechanism through which victims could obtain monetary damages from Epstein. As noted previously, the USAO’s original plea offer in Menchel’s August 3, 2007 letter expressed a “non-negotiable” demand that Epstein agree to a two-year term of imprisonment, and the final NPA required only an 18-month sentence, but the decision to reduce the required term of imprisonment from 24 to 18 months was made well before Acosta’s breakfast meeting with counsel. The NPA signed on September 24, 2007, required 18 months’ incarceration, sexual offender registration, and a mechanism for the victims to obtain monetary damages from Epstein, and OPR found that these terms were not abandoned or materially altered after the breakfast meeting.¶

At the time of Acosta’s October breakfast meeting with Lefkowitz, two issues involving the NPA were in dispute. Neither of those issues was ultimately resolved in a way that materially changed the key provisions of the NPA. First, at Sloman’s instigation, the USAO sought to change the mechanism for appointing an attorney representative for the victims. This USAO-initiated request had prompted discussions about an “addendum” to the NPA. Sloman sent the text of a proposed NPA addendum to Lefkowitz on October 11, 2007.{sup}235 Although OPR found no decisive¶

{sup}234 Julie K. [REDACTED], “Perversion of Justice: How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime,” Miami Herald, Nov. 28, 2018.¶

{sup}235 In his December 19, 2007, letter to defense attorney [REDACTED], Acosta represented that he had proposed the addendum at the breakfast meeting, but it is clear the addendum was being developed before then.¶

proof that this led to the breakfast meeting, email exchanges between Lefkowitz and Acosta show that it was under discussion at the time they were scheduling the meeting. Shortly after the breakfast meeting, Sloman, in Miami, sent an email to Lefkowitz (copying Acosta and Villafaña), noting that he “just got off the phone with Alex” and offering a slightly revised portion of the addendum relating to the mechanism for selection of the attorney representative. Sloman later clarified for Villafaña that “Jay’s suggested revision has been rejected.”¶

A second area of continuing negotiation arose from the defense claim that Epstein’s obligation under the NPA to pay the attorney representative’s fees did not obligate him to pay the fees and costs of contested litigation filed against him. Although this was at odds with the USAO’s interpretation of the provision, the USAO and defense counsel reached agreement and clarified the provision in the NPA addendum that was finalized several weeks after the October breakfast meeting. Although the revised provision was to Epstein’s advantage, the revision concerned attorney’s fees and did not materially impede the victims’ ability to seek damages from Epstein under § 2255. The fact that the negotiations continued after the breakfast meeting indicates that Acosta did not make promises at the meeting that resolved the issue.¶

OPR found limited contemporaneous evidence concerning the discussion between Acosta and Lefkowitz. In a letter sent to Acosta on October 23, 2007, two weeks after the breakfast meeting, Lefkowitz represented that Acosta made three significant concessions during the meeting. Specifically, Lefkowitz claimed that Acosta had agreed (1) not to intervene with the State Attorney’s Office’s handling of the case, (2) not to contact any of the victim-witnesses or their counsel, and (3) not to intervene regarding the sentence Epstein received. Acosta told OPR that he did not remember the breakfast meeting and did not recall making the commitments defense counsel attributed to him. Acosta also told OPR that Lefkowitz was not a reliable narrator of events, and on several occasions in written communications had inaccurately and misleadingly characterized conversations he had with Acosta.¶

Of more significance for OPR’s evaluation was a contemporaneous document—an October 25, 2007 draft response to Lefkowitz’s letter, which Sloman drafted, and Acosta reviewed and edited for signature by Sloman—that disputed Lefkowitz’s claims. The draft letter stated:¶

I specifically want to clarify one of the items that I believe was inaccurate in that October 23rd letter. Your letter claimed that this Office¶

would not intervene with the State Attorney’s Office regarding this matter; or contact any of the identified individuals, potential witnesses, or potential civil claimants and their respective counsel in this matter; and neither your Office nor the [FBI] would intervene regarding the sentence Mr. Epstein receives pursuant to a plea with the State, so long as that sentence does not violate state law.¶

As we discussed and, hopefully, clarified, and as the United States Attorney previously explained in an earlier conference call, such a¶

promise equates to the imposition of a gag order. Our Office cannot and will not agree to this.¶

It is the intent of this Office to treat this matter like any other case.¶

Acosta told OPR that this was a polite way of chastising Lefkowitz for mischaracterizing what Acosta said during the breakfast meeting. Although OPR could not find evidence that the letter was sent to Lefkowitz, OPR nonetheless considers it persuasive evidence that Acosta, shortly after the breakfast meeting, disagreed with Lefkowitz’s description of their discussions and had discussed those disagreements with Sloman.¶

Nevertheless, OPR examined the three specific concessions that Lefkowitz described in the October 23 letter, to determine whether evidence reflected that Acosta had made them during the breakfast meeting. First, Lefkowitz claimed that Acosta agreed during the breakfast meeting that he did not intend to interfere with the state’s handling of the case. Contemporaneous documents show that well before the breakfast meeting, Acosta had expressed the view that he did not want to “dictate” actions to the State Attorney or the state court. For example, during the NPA negotiations, Acosta asked Villafaña to “soften” certain language that appeared to require the State Attorney’s Office or the state court to take specific actions, such as requiring that Epstein enter his guilty plea or report to begin serving his sentence by a certain date. Although Acosta may have made a statement during the breakfast meeting expressing his disinclination to interfere with the state’s proceedings, such a statement would have been a reiteration of his prior position on the subject, rather than any new concession.¶

Lefkowitz also claimed in his October 23, 2007 letter that Acosta agreed not to contact any of the victims or potential witnesses or their counsel. For the reasons discussed more fully in Chapter Three, OPR concludes that the decision not to notify the victims about the NPA did not stem from the breakfast meeting, but rather reflected an assessment of multiple issues and considerations discussed internally by the subjects who participated in that decision: Acosta, Sloman, and Villafaña.¶

Finally, Lefkowitz’s October 23 letter suggested that Acosta had agreed not to intervene regarding the sentence Epstein received from the state court, and it asserted that Epstein was “entitled to any type of sentence available to him, including but not limited to gain time and work release.” Later communications between the USAO and defense counsel, however, show clearly that Acosta did not abandon the NPA’s explicit sentencing provision. The NPA required Epstein to make a joint recommendation with the State Attorney’s Office for an 18-month jail sentence, although the parties understood that he would receive the same “gain time” benefits available to all state inmates. After the October breakfast meeting, Sloman and Villafaña, on behalf of the USAO, repeatedly made clear that it would hold Epstein to that requirement, and the USAO also subsequently insisted that Epstein was ineligible for work release. For example, in a November 5, 2007 letter, Sloman requested confirmation from defense counsel that “Epstein intends to abide by his agreement to plead guilty to the specified charges and to make a binding recommendation that the Court impose a sentence of 18 months of continuous confinement in the county jail.” Shortly before Epstein entered his plea in June 2008, Villafaña wrote to the State Attorney to remind him that the NPA required Epstein to plead in state court to an offense that required an 18-month¶

sentence of incarceration, and the USAO would consider a plea that differed from that requirement a breach of the NPA and would “proceed accordingly.”¶

The guilty plea Epstein entered in state court in June 2008 was consistent with the dictates of the NPA, and pursuant to that plea, the court imposed a sentence of 18 months’ incarceration. Epstein, however, applied for and was accepted into the work release program, and was able to serve a substantial portion of his sentence outside of the jail. The NPA did not reference work release nor authorize Epstein to receive such benefits during his tenure at the Palm Beach County Stockade. Moreover, Villafaña received assurances from defense counsel that Epstein would serve his entire sentence of confinement “in custody.” Responsibility for the decision to afford Epstein work release privileges during his incarceration rested with state officials, who had the sole authority for administering the work release program.¶

After considering the substantial record documenting the decisions, [REDACTED] he after Acosta’s October 12, 2007 breakfast meeting with Lefkowitz, OPR found nothing in the record to suggest that the meeting resulted in a material change to the NPA, affected the sentence Epstein served pursuant to the NPA, or contributed to state officials’ decision to permit him to participate in work release.¶

F. Villafaña’s Emails with Defense Attorney Lefkowitz during the NPA Negotiations Do Not Establish That Villafaña, or Other Subjects, Intended to Give Epstein Preferential Treatment or Were Motivated by Favoritism or Other Improper Influences¶

During the CVRA litigation, the petitioners obtained from Epstein’s attorney, and filed under seal, a redacted series of email exchanges between Epstein attorney Lefkowitz and Villafaña (and others with Acosta and Sloman) during September 2007 when the NPA was being finalized, and thereafter. These emails had been redacted to delete most of Lefkowitz’s side of the communications, and consequently they did not reflect the full context of Villafaña’s communications to Lefkowitz. The redacted emails were later unsealed and made public over Epstein’s objections.{sup}236 Media coverage pointed to the content and tone of Villafaña’s emails as proof that Villafaña and the USAO worked in concert with Epstein’s attorneys to keep the “sweetheart” deal a secret from the victims and the public. Statements in several emails in particular were cited as evidence of the USAO’s improper favoritism towards Epstein. In one example, Villafaña told Lefkowitz that she was willing to include in the NPA a provision agreeing not to prosecute others, but would “prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge.” She also offered to meet with him “‘off campus’” to finalize negotiations. She also proposed, “[o]n an ‘avoid the press’ note,” that filing federal charges against Epstein in Miami rather than West Palm Beach would substantially reduce press coverage.¶

{sup}236 The USAO did not object to the unsealing but requested additional redactions of portions that would reveal protected information. United States’ Response to Petitioners’ Motion to Use Correspondence to Prove Violations of the [CVRA] and to Have Their Unredacted Pleadings Unsealed (Apr. 7, 2011). The court declined to order the additional redactions.¶

OPR asked Villafaña about these emails and about the tenor of her interactions with Lefkowitz during the NPA negotiations and with other defense attorneys generally. Villafaña acknowledged that their tone was collegial and collaborative, and explained that generally, the tone of these emails reflected her personality and her commitment to complete the task her supervisors had assigned to her:¶

[I]f you were to pull all my e-mails on every case, you would find that that is how I communicate with people. I’m a Minnesota girl, and I prefer not to be confrontational until I have to be. And I can be when I need to be. But my instructions from my supervisors were to engage in these negotiations and to complete them. So I felt that given that task, the best way to complete them was to reach the agreement and, keeping in mind the terms that … our office had agreed to, and do that in a way that is civil. So … although my language in the kind of introductory or prefatory communications with Mr. Lefkowitz was casual and was friendly, when you look at the terms and when he would come back to me asking for changes, my response was always, “No, I will not make that change.”¶

Villafaña denied any intention to keep the victims uninformed about the NPA or to provide an improper benefit for Epstein, and she explained the context of the emails in question. The email in which Villafaña expressed reluctance to “highlight for the judge all of the other crimes and all of the other persons that we could charge” was written in response to a defense proposal to include in the federal plea agreement the parties were then considering a promise by the government not to prosecute Epstein’s assistants and other employees. Lefkowitz had proposed that the plea agreement state, “Epstein’s fulfilling the terms and conditions of the Agreement also precludes the initiation of any and all criminal charges which might otherwise in the future be brought against [four named female assistants] or any employee of [a specific Epstein-owned corporate entity] for any criminal charge that arises out of the ongoing federal investigation.” Villafaña told OPR that the USAO was not intending to charge Epstein’s assistants and was not aware of anyone else who could be charged, and thus did not oppose the request not to prosecute third parties. However, Villafaña was concerned that an overly detailed federal plea agreement would prompt the court to require the government to provide further information about the uncharged conduct, which might lead Epstein to claim the government breached the agreement by providing information to the court not directly connected to the charges to which he was pleading guilty. Villafaña was not the only one to express concern about how deeply a federal court might probe the facts, and whether such probing would interfere with the viability of a plea agreement. In an earlier email, Lourie had suggested charging Epstein by complaint to allow the USAO more flexibility in plea negotiations and avoid the problem that a court might not accept a plea to a conspiracy charge that required dismissal of numerous substantive counts.¶

As to Villafaña’s offer to meet with Lefkowitz “off campus” to resolve outstanding issues in the NPA negotiation, she explained to OPR that she believed a face-to-face meeting at a “neutral” location—with “all the necessary decision makers present or ‘on call’“—might facilitate completion of the negotiations, which had dragged on for some time.¶

With regard to her comment about “avoid[ing] the press,” Villafaña told OPR that her goal was to protect the anonymity of the victims. She said that the case was far more likely to be covered by the Palm Beach press, which had already written articles about Epstein, than in Miami, and “if [the victims] wanted to attend [the plea hearing], I wanted them to be able to go into the courthouse without their faces being splashed all over the newspaper.”¶

In evaluating the emails, OPR reviewed all the email exchanges between Villafaña, as well as Sloman and Acosta, and Lefkowitz and other defense counsel, including the portions redacted from the publicly released emails (except for a few to or from Acosta, copies of which OPR did not locate in the USAO records). OPR also considered the emails in the broader context of Villafaña’s overall conduct during the federal investigation of Epstein. The documentary record, as well as witness and subject interviews, establishes that Villafaña consistently advocated in favor of prosecuting Epstein and worked for months toward that goal. She repeatedly pressed her supervisors for permission to indict Epstein and made numerous efforts to expand the scope of the case. She opposed meetings with the defense team, and nearly withdrew from the case because her supervisors agreed to those meetings. Villafaña objected to the decision to resolve the case through a guilty plea in state court, and she engaged in a lengthy and heated email exchange with Menchel about that subject. When she was assigned the task of creating an agreement to effect that resolution, Villafaña fought hard during the ensuing negotiations to hold the USAO’s position despite defense counsel’s aggressive tactics.¶

OPR also considered statements of her supervisors regarding her interactions with defense counsel. Sloman, in particular, told OPR that reports that Villafaña “was soft on Epstein … couldn’t have been further from the truth.” Sloman added that Villafaña “did her best to implement the decisions that were made and to hold Epstein accountable.” Lourie similarly told OPR that when he read the district court’s February 2019 opinion in the CVRA litigation and the emails from Villafaña cited in that opinion, he was “surprised to see how nice she was to them. And she winds up taking it on the chin for being so nice to them. When I know the whole time she was the one who wanted to go after him the most.” The AUSA who assisted Villafaña on the investigation told OPR “everything that [Villafaña] did … was, as far as I could tell, [ ] completely pro prosecution.”¶

Because the emails in question were publicly disclosed without context and without other information showing Villafaña’s consistent efforts to prosecute Epstein and to assist victims, a public narrative developed that Villafaña colluded with defense counsel to benefit Epstein at the expense of the victims. After thoroughly reviewing all of the available evidence, OPR finds that narrative to be inaccurate. The USAO’s and Villafaña’s interactions with the victims can be criticized, as OPR does in several respects in this Report, but the evidence is clear that any missteps Villafaña may have made in her interactions with victims or their attorneys were not made for the purpose of silencing victims. Rather, the evidence shows that Villafaña, in particular, cared deeply about Epstein’s victims. Before the NPA was signed, she raised to her supervisors the issue of consulting with victims, and after the NPA was signed, she drafted letters to notify victims identified in the federal investigation of the pending state plea proceeding and inviting them to appear. The draft letters led defense counsel to argue to Department management that Villafaña and Sloman committed professional misconduct by “threaten[ing] to send a highly improper and unusual ‘victim notification letter’ to all” of the listed victims. Given the full context of Villafaña’s conduct throughout her tenure on the case, OPR concludes that her explanations for her emails are¶

entitled to significant weight, and OPR credits them. OPR finds, therefore, that the emails in question do not themselves establish that Villafaña (or any other subject) acted to improperly benefit Epstein, was motivated by favoritism or other improper influences, or sought to silence victims.¶

G. The Evidence Does Not Establish That Acosta, Lourie, or Villafaña Agreed to the NPA’s Provision Promising Not to Prosecute “Potential Co-conspirators” in Order to Protect Any of Epstein’s Political, Celebrity, or Other Influential Associates¶

OPR examined the decision by the subjects who negotiated the NPA—Villafaña, Lourie, and Acosta—to include in the agreement a provision in which the USAO agreed not to prosecute “any potential co-conspirators of Epstein,” in addition to four named individuals, to determine whether that provision resulted from the subjects’ improper favoritism towards Epstein or an improper effort to shield from prosecution any of Epstein’s known associates. Other than various drafts of the NPA and of a federal plea agreement, OPR found little in the contemporaneous records mentioning the provision and nothing indicating that the subjects discussed or debated it—or even gave it much consideration. Drafts of the NPA and of the federal plea agreement show that the final broad language promising not to prosecute “any potential co-conspirators of Epstein” evolved from a more narrow provision sought by the defense. The provision expanded as Villafaña and defense counsel exchanged drafts of, first, a proposed federal plea agreement and, then, of the NPA, with apparently little analysis and no substantive discussion within the USAO about the provision.{sup}237¶

As the NPA drafting process concluded, Villafaña circulated to Lourie and another supervisor a draft that contained the non-prosecution provision, telling Lourie it was “some of [defense counsel’s] requested language regarding promises not to prosecute other people,” and commenting only, “I don’t think it hurts us.” In a reply email, Lourie responded to another issue¶

{sup}237 As set forth in OPR’s factual discussion, early in the negotiations over a federal plea agreement, the defense sought a non-prosecution provision applicable to only four female named assistants of Epstein and to unnamed employees of one of his companies. Villafaña initially countered with “standard language” referring to unnamed “co-conspirators” so as to avoid “highlight[ing] for the judge all of the other crimes and all of the other persons that we could charge.” Nonetheless, drafts of the NPA sent by Lefkowitz after Villafaña’s email continued to include language referring to the four named assistants and unnamed employees. Villafaña, however, internally circulated drafts of a federal plea agreement that included language stating, “This agreement resolves the federal criminal liability of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by those persons known to the [USAO] as of the date of this plea agreement.” The federal plea agreement draft revised by Lourie and Acosta on September 20, 2007, included that language. When the defense team reverted to negotiation of state charges, Villafaña advised them, “In the context of a non-prosecution agreement, the [USAO] may be more willing to be specific about not pursuing charges against others.” The next day, Lefkowitz sent a revised draft NPA referring to the four named assistants, “any employee” of the named company, and “any unnamed co-conspirators for any criminal charge that arises out of the ongoing federal investigation.” The language was finally revised by Villafaña to prohibit prosecution of “any potential co-conspirators of Epstein, including but not limited to [the four named assistants].”¶

In commenting on OPR’s draft report, Villafaña’s counsel and Lourie both noted that the non-prosecution provision could bind only the USAO, and Lourie further opined that it was limited to certain specified federal charges and a time-limited scope of conduct. Although the non-prosecution provision in the NPA did not explicitly contain such limitations, those limitations were included in other parts of the agreement.¶

Villafaña had raised (defense counsel’s attempt to insert an immigration waiver into the agreement), but Lourie did not comment on the provision promising not to prosecute co-conspirators or ask Villafaña to explain why she believed the provision did not harm the government’s interests. In a subsequent email about the draft NPA, Villafaña asked Lourie for “[a]ny other thoughts,” but there is no indication that he provided further input. OPR found no document that suggested Villafaña and Lourie discussed the provision further, or that the other individuals who were copied on Villafaña’s email referencing the provision—her immediate supervisor, the supervisor designated to succeed Lourie as manager of the West Palm Beach office, and Villafaña’s co-counsel—commented on or had substantive discussions about it. Villafaña told OPR that because none of the three supervisors responded to her observation that the non-prosecution provision “doesn’t hurt us,” Villafaña assumed that they agreed with her assessment.¶

Villafaña told OPR that she could not recall a conversation specifically about the provision agreeing not to prosecute “any potential co-conspirators,” but she remembered generally that defense counsel told her Epstein wanted “to make sure that he’s the only one who takes the blame for what happened.” Villafaña told OPR that she and her colleagues believed Epstein’s conduct was his own “dirty little secret.” Villafaña said that press coverage at the time of Epstein’s 2006 arrest did not allege that any of his famous contacts participated in Epstein’s illicit activity and that none of the victims interviewed by the case agents before the NPA was signed told the investigators about sexual activity with any of Epstein’s well-known contacts about whom allegations arose many years later.{sup}238 Villafaña acknowledged that investigators were aware of Epstein’s longtime relationship with a close female friend who was a well-known socialite, but, according to Villafaña, in 2007, they “didn’t have any specific evidence against her.”{sup}239 Accordingly, Villafaña believed that the only “co-conspirators” of Epstein who would benefit from the provision were the four female assistants identified by name.{sup}240 Villafaña also told OPR that the focus of the USAO’s investigation was Epstein, and the office was not inclined to prosecute his four assistants if he entered a plea.{sup}241 Because Villafaña was unaware of anyone else who could or would be charged, she perceived no reason to object to a provision promising not to prosecute other, unspecified “co-conspirators.” Villafaña told OPR that given her understanding of the facts at that time, it did not occur to her that the reference to other “potential co-conspirators” might be used to protect any of Epstein’s influential associates.¶

Lourie, who was transitioning to his detail at the Department’s Criminal Division at the time Villafaña forwarded to him the draft NPA containing the non-prosecution provision, told OPR that he did not know how the provision developed and did not recall any discussions about it.¶

{sup}238 Villafaña told OPR that “none of … the victims that we spoke with ever talked about any other men being involved in abusing them. It was only Jeffrey Epstein.”¶

{sup}239 The FBI had interviewed one victim who implicated the female friend in Epstein’s conduct, but the conduct involving the then minor did not occur in Florida.¶

{sup}240 The FBI had learned that one of Epstein’s female assistants had engaged in sexual activity with at least one girl in Epstein’s presence; this assistant was one of the named individuals for whom the defense sought the government’s agreement not to prosecute from the outset. Villafaña explained to OPR that this individual was herself believed to also have been at one time a victim.¶

{sup}241 Villafaña told OPR that the USAO had decided that girls who recruited other girls would not be prosecuted.¶

Lourie described the promise not to prosecute “potential co-conspirators” as “unusual,” and told OPR that he did not know why it was included in the agreement, but added that it would be “unlike me if I read that language to just leave it in there unless I thought it was somehow helpful.” Lourie posited that victims who recruited other underage girls to provide massages for Epstein “theoretically” could have been charged as co-conspirators. He told OPR that when he saw the provision, he may have understood the reference to unnamed “co-conspirators” as “a message to any victims that had recruited other victims that there was no intent to charge them.”¶

Acosta did not recall any discussions about the non-prosecution provision. But he told OPR that Epstein was always “the focus” of the federal investigation, and he would have viewed the federal interests as vindicated as long as Epstein was required to face “meaningful consequences” for his actions. Acosta told OPR that when he reviewed the draft NPA, “[t]o the extent I reviewed this co-conspirator provision, I can speculate that my thinking would have been the focus is on Epstein[ ] … going to jail. Whether some of his employees go to jail, or other, lesser involved [individuals], is not the focus of this.” Acosta also told OPR that he assumed Villafaña and Lourie had considered the provision and decided that it was appropriate. Finally, Sloman, who was not involved in negotiating the NPA, told OPR that in retrospect, he understood the non-prosecution provision was designed to protect Epstein’s four assistants, and it “never dawned” on him that it was intended to shield anyone else.¶

This broad provision promising not to prosecute “any potential co-conspirators” is troubling and, as discussed more fully later in this Report, OPR did not find evidence showing that the subjects gave careful consideration to the potential scope of the provision or whether it was warranted given that the investigation had been curtailed and the USAO lacked complete information regarding possible co-conspirators. Villafaña precipitously revised a more narrow provision sought by the defense. Given its evolution from a provision sought by the defense, it appears unlikely to have been designed to protect the victims, and there is no indication that at the time, the subjects believed that was the purpose. However, the USAO had not indicated interest in prosecuting anyone other than the four named female assistants, and OPR found no record indicating that Epstein had expressed concern about the prosecutive fate of anyone other than the four assistants and unnamed employees of a specific Epstein company. Accordingly, OPR concludes that the evidence does not show that Acosta, Lourie, or Villafaña agreed to the non-prosecution provision to protect any of Epstein’s political, celebrity, or other influential associates.{sup}242¶

H. OPR’s Investigation Did Not Reveal Evidence Establishing That Epstein Cooperated in Other Federal Investigations or Received Special Treatment on That Basis¶

One final issue OPR explored stemmed from media reports suggesting that Epstein may have received special treatment from the USAO in return for his cooperation in another federal¶

{sup}242 As previously stated, Sloman was on vacation when Villafaña included the provision in draft plea agreements and did not monitor the case or comment on the various iterations of the NPA that were circulated during his absence. Menchel left the USAO on August 3, 2007, before the parties drafted the NPA.¶

investigation.{sup}243 Media reports in mid-2009 suggested Epstein was released from his state incarceration “early” because he was assisting in a financial crimes investigation in the Eastern District of New York involving Epstein’s former employer, Bear Stearns. At the time, Villafaña was notified by the AUSAs handling the matter that they “had never heard of” Epstein and he was providing “absolutely no cooperation” to the government. In 2011, Villafaña reported to senior colleagues that “this is urban myth. The FBI and I looked into this and do not believe that any of it is true.” Villafaña told OPR that the rumor that Epstein had cooperated with the case in New York was “completely false.” Acosta told OPR that he did not have any information about Epstein cooperating in a financial investigation or relating to media reports that Epstein had been an “intelligence asset.”{sup}244¶

In addition to the contemporaneous record attesting that Epstein was not a cooperating witness in a federal matter, OPR found no evidence suggesting that Epstein was such a cooperating witness or “intelligence asset,” or that anyone—including any of the subjects of OPR’s investigation—believed that to be the case, or that Epstein was afforded any benefit on such a basis. OPR did not find any reference to Epstein’s purported [REDACTED] ation, or even a suggestion that he had assisted in a different matter, in any of the numerous communications sent by defense counsel to the USAO and the Department. It is highly unlikely that defense counsel would have omitted any reason warranting leniency for Epstein if it had existed.¶

Accordingly, OPR concludes that none of the subjects of OPR’s investigation provided Epstein with any benefits on the basis that he was a cooperating witness in an unrelated federal investigation, and OPR found no evidence establishing that Epstein had received benefits for cooperation in any matter.¶

V. ACOSTA EXERCISED POOR JUDGMENT BY RESOLVING THE FEDERAL INVESTIGATION THROUGH THE NPA¶

Although OPR finds that none of the subjects committed professional misconduct in this matter, OPR concludes that Acosta exercised poor judgment when he agreed to end the federal investigation through the NPA. Acosta’s flawed application of Petite policy principles to this case and his concerns with overstepping the boundaries of federalism led to a decision to resolve the federal investigation through an NPA that was too difficult to administer, leaving Epstein free to manipulate the conditions of his sentence to his own advantage. The NPA relied on state authorities to implement its key terms, leading to an absence of control by federal authorities over the process. Although the prosecutors considered certain events that they addressed in the NPA, such as gain time and community control, many other key issues were not, such as work release and mechanisms for implementing the § 2255 provision. Important provisions, such as promising not to prosecute all “potential co-conspirators,” were added with little discussion or consideration by the prosecutors. In addition, although there were evidentiary and legal challenges to a¶

{sup}243 See, e.g., Julie K. [REDACTED], “Perversion of Justice: How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime,” Miami Herald, Nov. 28, 2018.¶

{sup}244 When OPR asked Acosta about his apparent equivocation during his 2019 press conference, in answering a media question about whether he had knowledge of Epstein being an “intelligence asset,” Acosta stated to OPR that “the answer is no.” Acosta was made aware that OPR could use a classified setting to discuss intelligence information.¶

successful federal prosecution, Acosta prematurely decided to resolve the case without adequately addressing ways in which a federal case potentially could have been strengthened, such as by obtaining Epstein’s missing computer equipment. Finally, a lack of coordination within the USAO compounded Acosta’s flawed reasoning and resulted in insufficient oversight over the process of drafting the NPA, a unique document that required more detailed attention and review than it received. These problems were, moreover, entirely avoidable because federal prosecution, and potentially a federal plea agreement, existed as viable alternatives to the NPA resolution.¶

In evaluating Acosta’s conduct, OPR has considered and taken into account the fact that some of Epstein’s conduct known today was not known in 2007 and that other circumstances have changed in the interim, including some victims’ willingness to testify. OPR has also evaluated Acosta’s decisions in a framework that recognizes and allows for decisions that are made in good faith, even if the decision in question may not have led to the “best” result that potentially could have been obtained. Nonetheless, after considering all of the available evidence and the totality of the then-existing circumstances, OPR concludes that Acosta exercised poor judgment in that he chose an action or course of action that was in marked contrast to that which the Department would reasonably expect of an attorney exercising good judgment.¶

A. Acosta’s Decision to Resolve the Federal Investigation through a State Plea under Terms Incorporated into the NPA Was Based on a Flawed Application of the Petite Policy and Federalism Concerns, and Failed to Consider the Significant Disadvantages of a State-Based Resolution¶

The Department formulated the Petite policy in response to a series of Supreme Court opinions holding that the Constitution does not deny state and federal governments the power to prosecute for the same act. Responding to the Court’s concerns about the “potential for abuse in a rule permitting duplicate prosecutions,” the Department voluntarily adopted a policy of declining to bring a federal prosecution following a completed state prosecution for the same conduct, except when necessary to advance a compelling federal interest. See Rinaldi v. United States, 434 U.S. at 28. On its face, the Petite policy applies to federal prosecutions that follow completed state prosecutions. USAM § 9-2.031 (“This policy applies whenever there has been a prior state … prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of the case on the merits after jeopardy has attached.”). When a state investigation or prosecution is still pending, the policy does not apply. Indeed, even when a state prosecution has resulted in a decision on the merits, the policy permits a subsequent federal prosecution when three substantive prerequisites are satisfied: a “substantial federal interest” exists, “the result in the prior state prosecution was manifestly inadequate in light of the federal interest involved,” and there is sufficient admissible evidence to obtain and sustain a conviction on federal charges. The policy also does not apply when “the prior prosecution involved only a minor part of the contemplated federal charges.”¶

No one with whom OPR spoke disputed that the federal government had a substantial interest in prosecuting Epstein. In her prosecution memorandum, Villafaña identified five federal statutes that Epstein had potentially violated. The CEOS Chief described Villafaña’s assessment of these statutes as “exhaustive,” and he concurred with her analysis of their applicability to the facts of the case. Epstein’s crimes involved the sexual exploitation of children, interstate travel, and the use of a facility of interstate commerce, all of which were areas of federal concern.¶

Notably, in the early 2000s, the Department had begun pursuing specific initiatives to combat child sex trafficking, including Project Safe Childhood, and Congress had then recently passed the PROTECT Act. Acosta himself told OPR that the exploitation of minors was “an important federal interest,” which in Epstein’s case was compounded by the “sordidness” of the acts involved and the number of victims.¶

It is also clear that because the state case against Epstein was still pending and had not reached a conviction, acquittal, or other decision on the merits, the Petite policy did not apply and certainly did not preclude a federal prosecution of Epstein. He had been charged with one state charge of solicitation to prostitution on three occasions, involving one or more other persons without regard to age—a charge that would have addressed only a scant portion of the conduct under federal investigation. Acosta acknowledged to OPR that the Petite policy “on its face” did not apply. Moreover, the State Attorney did not challenge the federal government’s assumption of prosecutorial responsibility, and despite having obtained an indictment, held back on proceeding with the state prosecution in deference to the federal government’s involvement. In these circumstances, the USAO was free to proceed with a prosecution sufficient to ensure vindication of the federal interest in prosecuting a man who traveled interstate repeatedly to prey upon minors. The federal government was uniquely positioned to fully investigate the conduct of an individual who engaged in repeated criminal conduct in Florida but who also traveled extensively and had residences outside of Florida. Even if the Petite policy had applied, OPR has little doubt that the USAO could have obtained authorization from the Department to proceed with a prosecution under the circumstances of this case.{sup}245¶

Despite the undeniable federal interest in prosecuting Epstein, the fact that the Petite policy did not apply, and the State Attorney’s willingness to hold the state prosecution in abeyance pending the federal government’s assumption of the case, Acosta viewed the federal government’s role in prosecuting Epstein as limited by principles of federalism.{sup}246 In essence, Acosta believed that a federal prosecution would have interfered improperly with the state’s authority. He explained his reasoning to OPR:¶

{sup}245 In 2008, the Office of Enforcement Operations, the office charged with reviewing Petite policy waiver requests, opined that even if the Petite policy applied with respect to the victims of the indicted state charges, it would not apply to federal prosecution of charges relating to any other victim. The office also noted that if other factors existed, such as use of the internet to contact victims, those factors might warrant a waiver of the policy, if it did apply.¶

{sup}246 In commenting on OPR’s draft report, Acosta’s counsel argued that OPR inappropriately bifurcated Acosta’s concerns from those of the other subjects. However, OPR’s investigation made clear that, although Acosta shared his subordinates’ concerns about the strength of the case, victim-witness credibility, and the novelty of some legal theories, he alone focused on federalism issues. Acosta’s counsel also asserted that OPR “misunderstands and devalues Secretary Acosta’s very real and legitimate interest in the development of human trafficking laws,” and counsel further noted Acosta’s concerns that “bringing a case with serious evidentiary challenges pressing novel legal issues could result in an outcome that set back the development of trafficking laws and resulted in an aggregate greater harm to trafficking victims.” Although OPR carefully considered counsel’s arguments and agrees that it was appropriate to consider any implications the proposed prosecution of Epstein might have for the Department’s anti-trafficking efforts, OPR does not believe that those concerns warranted resolving the matter through the NPA, which, for the reasons discussed in this Section, failed to satisfy the federal interest and allowed Epstein to manipulate the state system to his benefit.¶

[The prosecution] was going forward on the part of the state, and so here is the big bad federal government stepping on a sovereign … state, saying you’re not doing enough, [when] to my mind … the whole idea of the [P]etite policy is to recognize that the []state … is an independent entity, and that we should presume that what they’re doing is correct, even if we don’t like the outcome, except in the most unusual of circumstances.¶

Acosta told OPR that “absent USAO intervention,” the state’s prosecution of Epstein would have become final, and accordingly, it was “prudent” to employ Petite policy analysis. In Acosta’s view, “the federal responsibility” in this unique situation was merely to serve as a “backstop [to] state authorities to ensure that there [was] no miscarriage of justice.”{sup}247 Acosta told OPR that he understood the PBPD would not have brought Epstein to the FBI’s attention if the State Attorney had pursued charges that required Epstein’s incarceration. Acosta therefore decided that the USAO could avert a “manifest injustice” by forcing the state to do more and require Epstein to serve time in jail and register as a sexual offender.¶

Acosta’s reasoning was flawed and unduly constricted. Acosta’s repeated references to a “miscarriage of justice” or “manifest injustice” echoes the “manifestly inadequate” language used in the Petite policy to define the circumstances in which the federal government may proceed with a criminal case after a completed state prosecution. Nothing in the Petite policy, however, requires similar restraint when the federal government pursues a case in the absence of a completed state prosecution, even if the state is already investigating the same offense. The goal of the Petite policy is to prevent multiple prosecutions for the same offense, not to compel the federal government to defer to a parallel state interest in a case, particularly one in which state officials involved in the state prosecution expressed significant concerns about it, and there were questions regarding the state prosecutor’s commitment to the case. Acosta told OPR that “there are any number of instances where the federal government or the state government can proceed, and state charges are substantially less and different, and … the federal government … stands aside and lets the state proceed.” The fact that the federal government can allow the state to proceed with a prosecution, however, does not mean the federal government is compelled to do so, particularly in a matter in which a distinct and important federal interest exists. Indeed, the State Attorney told OPR that the federal government regularly takes over cases initiated by state investigators, typically because federal charges result in “the best sentence.”¶

Epstein was facing a substantial sentence under the federal sentencing guidelines.{sup}248 Despite the Ashcroft Memo’s directive that federal prosecutors pursue “the most serious readily provable offense,” Acosta’s decision to push “the state to do a little bit more” does not approach that standard. In fact, Acosta conceded during his OPR interview that the NPA did not represent an “appropriate punishment” in the federal system, nor even “the best outcome in the state system,” and that if the investigation of Epstein had originated with the FBI, rather than as a referral from the PBPD, the outcome might have been different. As U.S. Attorney, Acosta had the authority to¶

{sup}247 Letter from R. Alexander Acosta “To whom it may concern” at 1 (Mar. 20, 2011), published online in The Daily Beast.¶

{sup}248 Villafaña estimated that the applicable sentencing guidelines range was 168 to 210 months’ imprisonment.¶

depart from the Ashcroft Memo. He told OPR, however, that he did not recall discussing the Ashcroft Memo with his colleagues and nothing in the contemporaneous documentary record suggests that he made a conscious decision to depart from it when he decided to resolve the federal investigation through the NPA. Instead, it appears that Acosta simply failed to consider the tension between federal charging policy and the strong federal interest in this case, on the one hand, and his broad reading of the Petite policy and his general concerns about “federalism,” on the other hand. OPR concludes that Acosta viewed the federal government’s role in prosecuting Epstein too narrowly and through the wrong prism.¶

Furthermore, Acosta’s federalism concerns about intruding on the state’s autonomy resulted in an outcome—the NPA—that intruded far more on the state’s autonomy than a decision to pursue a federal prosecution would have.{sup}249 By means of the NPA, the federal government dictated to the state the charges, the sentence, the timing, and certain conditions that the state had to obtain during the state’s own prosecution. Acosta acknowledged during his OPR interview that his “attempt to backstop the state here[] rebounded, because in the process, it ended up being arguably more intrusive.”¶

Acosta’s concern about invading the state’s authority led to additional negative consequences. Acosta revised the draft NPA in several respects to “soften” its tone, by substituting provisions requiring Epstein to make his “best efforts” for language that appeared to dictate certain actions to the state. In so doing, however, Acosta undermined the enforceability of the agreement, making it difficult later to declare Epstein in breach when he failed to comply.¶

OPR found no indication that when deciding to resolve the federal prosecution through a mechanism that relied completely on state action, Acosta considered the numerous disadvantages of having Epstein plead guilty in the state court system, a system in which none of the subjects had practiced and with which they were unfamiliar. Villafaña recognized that there were “a lot of ways to manipulate state sentences,” and she told OPR that she was concerned from the outset of negotiations about entering into the NPA, because by sending the case back to the state the USAO was “giving up all control over what was going on.” Villafaña also told OPR that defense counsel “had a lot of experience with the state system. We did not.” Epstein’s ability to obtain work release, a provision directly contrary to the USAO’s intent with respect to Epstein’s sentence, is a clear example of the problem faced by the prosecutors when trying to craft a plea that depended on a judicial system with which they were unfamiliar and over which they had no control. Although the issue of gain time was considered and addressed in the NPA, none of the subject attorneys negotiating the NPA realized until after the NPA was signed that Epstein might be eligible for work release. Acosta, in particular, told OPR that “if it was typical to provide that kind of work release in these cases, that would have been news to me.” Because work release was not anticipated, the NPA did not specifically address it, and the USAO was unable to foreclose Epstein from applying for admission to the program.¶

{sup}249 The Petite policy only applies to the Department of Justice and federal prosecutions. It does not prevent state authorities from pursuing state charges after a federal prosecution. See, e.g., United States v. Nichols and State v. Nichols (dual prosecution for acts committed in the bombing of the Oklahoma City federal building). However, in practice and to use their resources most efficiently, state authorities often choose not to pursue state charges if the federal prosecution results in a conviction.¶

The sexual offender registration provision is yet another example of how Acosta’s decision to create an unorthodox mechanism that relied on state procedures to resolve the federal investigation led to unanticipated consequences benefitting Epstein. Acosta told OPR that one of the core aspects of the NPA was the requirement that Epstein plead guilty to a state charge requiring registration as a sexual offender. He cited it as a provision that he insisted on from the beginning and from which he never wavered. However, the USAO failed to anticipate certain factors that affected the sexual offender registration requirement in other states where Epstein had a residence. In selecting the conduct for the factual basis for the crime requiring sexual offender registration, the state chose conduct involving a victim who was at least 16 at the time of her interactions with Epstein, even though Epstein also had sexual contact with a 14-year old victim. The victim’s age made a difference, as the age of consent in New Mexico, where Epstein had a residence, was 16; therefore, Epstein was not required to register in that state. As a 2006 letter from defense counsel Lefcourt to the State Attorney’s Office made clear, the defense team had thoroughly researched the details and ramifications of Florida’s sexual offender registration requirement; OPR did not find evidence indicating similar research and consideration by the USAO.¶

Finally, Acosta was well aware that the PBPD brought the case to the FBI’s attention because of a concern that the State Attorney’s Office had succumbed to “pressure” from defense counsel. Villafaña told OPR that she informed both Acosta and Sloman of this when she met with them at the start of the federal investigation. Although Acosta did not remember the meeting with Villafaña, he repeatedly told OPR during his interview that he was aware that the PBPD was dissatisfied with the State Attorney’s Office’s handling of the case. Shortly before the NPA was signed, moreover, additional information came to light that suggested the State Attorney’s Office was predisposed to manipulating the process in Epstein’s favor. Specifically, during the September 12, 2007 meeting, at the state prosecutor’s suggestion, the USAO team agreed, with Acosta’s subsequent approval, to permit Epstein to plead guilty to one state charge of solicitation of minors to engage in prostitution, rather than the three charges the USAO had originally specified. The state prosecutor assured Lourie that the selected charge would require Epstein to register as a sexual offender. Shortly thereafter, the USAO was told by defense counsel that despite the assurances made to Lourie, the state prosecutor had advised Epstein—incorrectly, it turned out—that a plea to that particular offense would not require him to register as a sexual offender. Yet, despite this evidence, which at least suggested that the state authorities should not have been considered to be a reliable partner in enforcing the NPA, Acosta did not alter his decision about proceeding with a process that depended completely on state authorities for its successful execution.¶

OPR finds that Acosta was reasonably aware of the facts and circumstances presented by this case. He stated that he engaged in discussions about various aspects of the case with Sloman and Menchel, and relied upon them for their evaluation of the legal and evidentiary issues and for their assessment of trial issues. Acosta was copied on many substantive emails, reviewed and revised drafts of the NPA, and approved the final agreement. Yet, rather than focusing on whether the state’s prosecution was sufficient to satisfy the federal interest in prosecuting Epstein, Acosta focused on achieving the minimum outcome necessary to satisfy the state’s interest, as defined in part by the state’s indictment, by using the threat of a federal prosecution to dictate the terms of¶

Epstein’s state guilty plea.{sup}250 As U.S. Attorney, Acosta had the authority to resolve the case in this manner, but OPR concludes that in light of all the surrounding circumstances, his decision to do so reflected poor judgment. Acosta’s application of Petite policy principles was too expansive, his view of the federal interest in prosecuting Epstein was too narrow, and his understanding of the state system was too imperfect to justify the decision to use the NPA.{sup}251¶

B. The Assessment of the Merits of a Potential Federal Prosecution Was Undermined by the Failure to Obtain Evidence or Take Other Investigative Steps That Could Have Changed the Complexion of the Case¶

The leniency resulting from Acosta’s decision to resolve the case through the NPA is also troubling because the USAO reached agreement on the terms of the NPA without fully pursuing evidence that could have changed the complexion of the case or afforded the USAO significant leverage in negotiating with Epstein. Acosta told OPR that his decision to resolve the federal investigation through the NPA was, in part, due to concerns about the merits of the case and concerns about whether the government could win at trial. Yet, Acosta made the decision to resolve the case through a state-based resolution and extended that proposal to Epstein’s defense attorneys before the investigation was completed. As the investigation progressed, the FBI continued to locate additional victims, and many had not been interviewed by the FBI by the time of the initial offer. In other words, at the time of Acosta’s decision, the USAO did not know the full scope of Epstein’s conduct; whether, given Epstein’s other domestic and foreign residences, his criminal conduct had occurred in other locations; or whether the additional victims might implicate other offenders. In addition, Villafaña planned to approach the female assistants to attempt to obtain cooperation, but that step had not been taken.{sup}252 Most importantly, Acosta ended the investigation without the USAO having obtained an important category of potentially significant evidence: the computers removed from Epstein’s home prior to the PBPD’s execution of a search warrant.¶

The PBPD knew that Epstein had surveillance cameras stationed in and around his home, which potentially captured video evidence of people visiting his residence, and that before the state¶

{sup}250 Acosta told OPR that he understood that if Epstein had pled to the original charges contemplated by the state, he would have received a two-year sentence, and in that circumstance, the PBPD would not have brought the case to the FBI. OPR was unable to verify that charges originally contemplated by the state would have resulted in a two-year sentence. OPR’s investigation confirmed, however, that the PBPD brought the case to the FBI because the PBPD Chief was dissatisfied with the state’s handling of the matter.¶

{sup}251 In commenting on OPR’s draft report, Acosta’s attorney stated that Acosta “accept[ed] OPR’s conclusion that deferring prosecution of Jeffrey Epstein to the State Attorney rather than proceeding with a federal indictment or a federal plea was, in hindsight, poor judgment.” Acosta also acknowledged that the USAO’s handling of the matter “would have benefited from more consistent staffing and attention. No one foresaw the additional challenges that the chosen resolution would cause. And the [NPA] relied too much on state authorities, who gave Epstein and his counsel too much wiggle-room.” Acosta’s counsel also noted that Acosta welcomed the public release of the Report, “did not challenge OPR’s authority, welcomed the review, and cooperated fully.”¶

{sup}252 Although the FBI interviewed numerous employees of Epstein and Villafaña identified three of his female assistants as potential co-conspirators, at the time that the USAO extended the terms of its offer, there had been no significant effort to obtain these individuals’ cooperation against Epstein. The FBI attempted unsuccessfully to make contact with two female assistants on August 27, 2007, as Epstein’s private plane was departing for the Virgin Islands, but agents were unable to locate them on board the plane.¶

search warrant was executed on that property, the computer equipment associated with those cameras had been removed. Villafaña knew who had possession of the computer equipment. Surveillance images might have shown the victims’ visits, and photographic evidence of their appearance at the time of their encounters with Epstein could have countered the anticipated argument that Epstein was unaware these girls were minors. The surveillance video might have shown additional victims the investigators had not yet identified. Such images could have been powerful visual evidence of the large number of girls Epstein victimized and the frequency of their visits to his home, potentially persuasive proof to a jury that this was not a simple “solicitation” case.¶

Epstein’s personal computers possibly contained even more damning evidence. Villafaña told OPR that the FBI had information that Epstein used hidden cameras in his New York residence to record his sexual encounters, and one victim told agents that Epstein’s assistant photographed her in the nude. Based on this evidence, and experience in other sex cases involving minors, Villafaña and several other witnesses opined to OPR that the computers might have contained child pornography. Moreover, Epstein lived a multi-state lifestyle; it was reasonable to assume that he may have transmitted still images or videos taken at his Florida residence over the internet to be accessed while at one of his other homes or while traveling. The interstate transmission of child pornography was a separate, and serious, federal crime that could have changed the entire complexion of the case against Epstein.{sup}253 Villafaña told OPR, “[I]f the evidence had been what we suspected it was … [i]t would have put this case completely to bed. It also would have completely defeated all of these arguments about interstate nexus.”¶

Because she recognized the potential significance of this evidence, Villafaña attempted to obtain the missing computers. After Villafaña learned that an individual associated with one of Epstein’s attorneys had possession of the computer equipment that was removed from Epstein’s home, she consulted with Department subject matter experts to determine how best to obtain the evidence. Following the advice she received and after notifying her supervisors, Villafaña took legal steps to obtain the computer equipment.¶

Epstein’s team sought to postpone compliance with the USAO’s demand for the equipment. In late June 2007, defense attorney [REDACTED] requested an extension of time to comply; in informing Sloman, Menchel, and Lourie of the request, Villafaña stressed that “we want to get the computer equipment that was removed from Epstein’s home prior to the state search warrant as soon as possible.” She agreed to extend the date for producing the computer equipment by one week until July 17, 2007. On that day, Epstein initiated litigation regarding the computer equipment. That litigation was still pending at the end of July, when Acosta decided to resolve¶

Any person who … induces … any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished … if such person knows or has reason to know that such visual depiction will be … transmitted using any means or facility of interstate … commerce or in or affecting interstate … commerce … [or] if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or … commerce by any means, including by computer.¶

{sup}253 18 U.S.C. § 2251(a) provides, in pertinent part:¶

the federal investigation in exchange for a plea in state court to a charge that carried a two-year sentence. The FBI co-case agent told OPR that, in a meeting to discuss the resolution, at which the FBI was present, the co-case agent specifically suggested that the USAO wait to pursue a resolution until after the litigation was resolved, but this suggestion was “pushed under the rug” without comment. Although the co-case agent could not recall who was present, the case agent recalled that Menchel led the meeting, which occurred while the litigation was still pending.¶

Even after the NPA two-year state plea resolution was presented to the defense, Villafaña continued to press ahead to have the court resolve the issue concerning the defense production of the computer equipment. On August 10, 2007, she asked Lourie for authorization to oppose Epstein’s efforts to stay the litigation until after an anticipated meeting between the USAO and the defense, informing Lourie that a victim interviewed that week claimed she started seeing Epstein at age 14 and had been photographed in the nude. A few days later, Villafaña told defense counsel that she had “conferred with the appropriate people, and we are not willing to agree to a stay.” Defense counsel then contacted Lourie, who agreed to postpone the hearing until after the upcoming meeting with Acosta. After the meeting, and when the court sought to reschedule the hearing, Villafaña emailed Sloman to ask if she should “put it off”; he replied, “Yes,” and the hearing was re-set for September 18, 2007. As negotiations towards the NPA progressed, however, the hearing was postponed indefinitely. Ultimately the NPA itself put the issue to rest by specifying that all legal process would be held in abeyance unless and until Epstein breached the agreement.¶

Villafaña told OPR that she had learned through law enforcement channels that the defense team had reviewed the contents of Epstein’s computers. She told OPR that, in her view, “the fact that the defense was trying desperately to put off the hearing … was further evidence of the importance of the evidence.”¶

OPR questioned Acosta about the decisions to initiate, and continue with, the NPA negotiations while the litigation concerning the computers was still pending, and to agree to postpone the litigation rather than exhausting all efforts to obtain and review the computer evidence. Acosta told OPR that he had no recollection of Villafaña’s efforts to obtain the missing computers, but he believed that “there was a desire to move quickly as opposed to slowly” regarding the plea.¶

Menchel, Sloman, and Lourie also all told OPR that they did not remember Villafaña’s efforts to obtain the computers or recalled the issue only “vaguely.” Menchel expressed surprise to OPR that a prosecutor could obtain “an entire computer” through the method utilized by Villafaña, telling OPR, “I had not heard of that.” However, the contemporaneous records show that Sloman, Menchel, and Lourie had each been aware in 2007 of Villafaña’s efforts to obtain Epstein’s missing computer equipment.¶

Villafaña kept Menchel, in particular, well informed of her efforts to obtain the computer equipment. She sent to Menchel, or copied him on, several emails about her plan to obtain the computer equipment; specifically, her emails on May 18, 2007, July 3, 2007, and July 16, 2007, all discussed her proposed steps. Villafaña told OPR that Lourie was involved in early discussions about her proposal to obtain the evidence. Lourie also received Villafaña’s July 16, 2007 email discussing the computer equipment and the plan to obtain it, and on one occasion he spoke directly¶

with one of Epstein’s defense attorneys about it. Sloman told OPR during his interview that he “vaguely” remembered the computer issue. The documentary evidence confirms that he had at least some contemporaneous knowledge of the issue—when asked by Villafaña whether to put off a September 12, 2007 hearing on the litigation, he told her to do so. Finally, as noted previously, the FBI co-case agent proposed at a meeting with USAO personnel that the USAO wait until the litigation was resolved before pursuing plea negotiations.¶

Contemporaneous records show that Acosta was likely aware before the NPA was signed of the USAO’s efforts to obtain custody of Epstein’s computers and that after the NPA was signed, he was informed about the use of legal process for obtaining the computer equipment. The NPA itself provides that “the federal … investigation will be suspended, and all pending [legal process] will be held in abeyance,” that Epstein will withdraw his “motion to intervene and to quash certain [legal process],” and, further, that the parties would “maintain … evidence subject to [legal process] that have been issued, and including certain computer equipment, involate” until the NPA’s terms had been fully satisfied, at which point the legal process would be “deemed withdrawn.” (Emphasis added.) Acosta’s numerous edits on the NPA’s final draft suggest that he gave it a close read, and OPR expects that Acosta would not have approved the agreement without understanding what legal process his office was agreeing to withdraw, or why the only type of evidence specified was “certain computer equipment.” In addition, Acosta told OPR that he worked closely with Sloman and Menchel, consulted with them, and relied on their counsel about the case. Among other things, Acosta said he discussed with them concerns about the law and the evidentiary issues presented by a federal criminal trial. Therefore, although it is possible that Sloman made the decision to postpone the hearing concerning the USAO’s efforts to obtain the computer equipment without consulting Acosta, once Acosta reviewed the draft NPA, Acosta was on notice of the existence of and the ongoing litigation concerning Epstein’s missing computer equipment.¶

Villafaña knew where the computers were; litigation over the demand for the equipment was already underway; there was good reason to believe the computers contained relevant—and potentially critical—information; and it was clear Epstein did not want the contents of his computers disclosed. Nothing in the available record reveals that the USAO benefitted from abandoning pursuit of this evidence when they did, or that there was any significant consideration of the costs and benefits of forgoing the litigation to obtain production of the computers.{sup}254 Instead, the USAO agreed to postpone and ultimately to abandon its efforts to obtain evidence that could have significantly changed Acosta’s decision to resolve the federal investigation with a state guilty plea or led to additional significant federal charges. By agreeing to postpone the litigation, the USAO gave away leverage that might have caused the defense to come to an agreement much earlier and on terms more favorable to the government. The USAO ultimately agreed to a term in the NPA that permanently ended the government’s ability to obtain possible evidence of significant crimes and did so with apparently little serious consideration of the potential cost.¶

{sup}254 If the USAO had significant concerns about its likelihood of prevailing, postponing the litigation to use it as leverage in the negotiations might have been strategically reasonable. Lourie suggested in his response to his interview transcript that the court might have precluded production of the computers. However, OPR saw no evidence indicating that Villafaña or her supervisors were concerned that the court would do so, and Villafaña had consulted with the Department’s subject matter experts before initiating her action to obtain the equipment.¶

To be clear, OPR is not suggesting that prosecutors must obtain all available evidence before reaching plea agreements or that prosecutors cannot reasonably determine that reaching a resolution is more beneficial than continuing to litigate evidentiary issues. Every case is different and must be judged on its own facts. In this case, however, given the unorthodox nature of the state-based resolution, the fact that Acosta’s decision to pursue it set the case on a wholly different track than what had been originally contemplated by his experienced staff, the nature and scope of Epstein’s criminal conduct, the circumstances surrounding the removal of the computers from Epstein’s residence, and the potential for obtaining evidence revealing serious additional criminal conduct, Acosta had a responsibility to ensure that he was fully informed about the consequences of pursuing the course of action that he proposed and particularly about the consequences flowing from the express terms of the NPA. In deciding to resolve the case pre-charge, Acosta lost sight of the bigger picture that the investigation was not completed and viable leads remained to be pursued. The decision to forgo the government’s efforts to obtain the computer evidence and to pursue significant investigative steps should have been made only after careful consideration of all the costs and benefits of the proposed action. OPR did not find evidence that Acosta fully considered the costs of ending the investigation prematurely.{sup}255¶

C. OPR Was Unable to Determine the Basis for the Two-Year Term of Incarceration, That It Was Tied to Traditional Sentencing Goals, or That It Satisfied the Federal Interest in the Prosecution¶

The heart of the controversy surrounding the Epstein case is the apparent undue leniency afforded him concerning his sentence. After offering a deal that required a “non-negotiable” 24-month term of incarceration, Acosta agreed to resolve it for an 18-month term of incarceration, knowing that gain time would reduce it further, and indeed, Epstein served only 13 months. Epstein ultimately did not serve even that minimal sentence incarcerated on a full-time basis because the state allowed Epstein into its work release program within the first four months of his sentence. As Lourie told OPR, “[E]verything else that happened to [Epstein] is exactly what should have happened to him.” He had to pay a lot of money. He had to register as a sex offender,” but “in the perfect world, [Epstein] would have served more time in jail.”¶

Due to the passage of time and the subjects’ inability to recall many details of the relevant events, OPR was unable to develop a clear understanding of how the original two-year sentence requirement was developed or by whom. Two possibilities were articulated during OPR’s subject interviews: (1) the two years represented the sentence Epstein would have received had he pled guilty to an unspecified charge originally contemplated by the state; or (2) the two years represented the sentence the USAO determined Epstein would be willing to accept, thus avoiding the need for a trial. As to the former possibility, Acosta told OPR that his “best understanding” of the two-year proposal was that it correlated to “one of the original state charges.” He elaborated,¶

{sup}255 In commenting on OPR’s draft report, Acosta’s attorney objected to OPR’s conclusion that Acosta knew or should have known about the litigation regarding the computers and that he should have given greater consideration to pursuing the computers before the NPA was signed. Acosta’s attorney asserted that Acosta was not involved in that level of “granularity”; that his “small thoughts’ edits” on the NPA were limited and focused on policy; and that it was appropriate for him to rely on his staff to raise any issues of concern to him. For the reasons stated above, OPR nonetheless concludes that having developed a unique resolution to a federal investigation, Acosta had a greater obligation to understand and consider what the USAO was giving up and the appropriateness of doing so.¶

“I’m reconstructing memories of … 12 years ago. I can speculate that at some point, the matter came up, and I or someone else said … what would the original charges have likely brought? And someone said this amount.” Acosta told OPR that he could not recall who initially proposed this method, but he believed that it likely did not result from a single specific discussion but rather from conversations over a course of time. Acosta could not recall specifically with whom he had these discussions, other than that it would have been Lourie, Menchel, or Sloman. Villafaña was not asked for her views on a two-year sentence, and she had no input into the decision before it was made. Villafaña told OPR that she examined the state statutes and could not validate that a state charge would have resulted in a 24-month sentence. OPR also examined applicable state statutes and the Florida sentencing guidelines, but could not confirm that Epstein was, in fact, facing a potential two-year sentence under charges contemplated by the PBPD.¶

On the other hand, during his OPR interview, Lourie “guess[ed]” that “somehow the defense conveyed … we’re going to trial if it’s more than two years.” Menchel similarly told OPR that he did not know how the two year sentence was derived, but “obviously it was a number that the office felt was palatable enough that [Epstein] would take” it. Sloman told OPR that he had no idea how the two-year sentence proposal was reached.¶

The contemporaneous documentary record, however, provides no indication that Epstein’s team proposed a two-year sentence of incarceration or initially suggested, before the USAO made its offer, that Epstein would accept a two-year term of incarceration. As late as July 25, 2007—only days before the USAO provided the term sheet to defense counsel—Epstein’s counsel submitted a letter to the USAO arguing that the federal government should not prosecute Epstein at all. Furthermore, after the initial “term sheet” was presented and negotiations for the NPA progressed, Epstein’s team continued to strongly press for less or no time in jail.¶

The USAO had other charging and sentencing options available to it. The most obvious alternative to the two-year sentence proposal was to offer Epstein a plea to a federal offense that carried a harsher sentence. If federally charged, Epstein was facing a substantial sentence under the federal sentencing guidelines, 168 to 210 months’ imprisonment. However, it is unlikely that he would have agreed to a plea that required a guidelines sentence, even one at the lower end of the guidelines. Menchel told OPR that he and his colleagues had been concerned that Epstein would opt to go to trial if charged and presented with the option of pleading to a guidelines sentence, and as previously discussed, there were both evidentiary and legal risks attendant upon a trial in this case. If federally charged, Epstein’s sentencing exposure could have been managed by offering him a plea under Federal Rule of Criminal Procedure 11(c) for a stipulated sentence, which requires judicial approval. Acosta rejected this idea, however, apparently because of a perception that the federal district courts in the Southern District of Florida did not view Rule 11(c) pleas favorably and might refuse to accept such a plea and thus limit the USAO’s options.¶

Another alternative was to offer Epstein a plea to conspiracy, a federal charge that carried a maximum five-year sentence. Shortly after Villafaña circulated the prosecution memorandum to her supervisors, Lourie recommended to Acosta charging Epstein by criminal complaint and offering a plea to conspiracy “to make a plea attractive.” Similarly, before learning that Menchel had already discussed a state-based resolution with Epstein’s counsel, Villafaña had considered offering Epstein a plea to one count of conspiracy and a substantive charge, to be served concurrently with any sentence he might receive separately as a result of the state’s outstanding¶

indictment. Given Epstein’s continued insistence that federal charges were not appropriate and defense counsel’s efforts to minimize the amount of time Epstein would spend in jail, it is questionable whether Epstein would have accepted such a plea offer, but the USAO did not even extend the offer to determine what his response to it would be.¶

Weighed against possible loss at trial were some clear advantages to a negotiated resolution that ensured a conviction, including sexual offender registration and the opportunity to establish a mechanism for the victims to recover damages. These advantages, added to Acosta’s concern about intruding on the state’s authority, led him to the conclusion that a two-year state plea would be sufficient to prevent manifest injustice. Menchel told OPR, “I don’t believe anybody at the time that this resolution was entered into was looking at the two years as a fair result in terms of the conduct. I think that was not the issue. The issue was whether or not if we took this case to trial, would we risk losing everything?”¶

During the course of negotiations over a potential federal plea, the USAO agreed to accept a plea for an 18-month sentence, a reduction of six months from the original “non-negotiable” two-year term. The subjects did not have a clear memory of why this reduction was made. Villafaña attributed it to a conversation between Acosta and Lefkowitz, but Acosta attributed it to a decision made during the negotiating process by Villafaña and Lourie, telling OPR that he understood his attorneys needed flexibility to reach a final deal with Epstein.¶

OPR found no contemporaneous documents showing the basis for the two-year term. Despite extensive subject interviews and review of thousands of contemporaneous records, OPR was unable to determine who initially proposed the two-year term of incarceration or why that term, as opposed to other possible and lengthier terms, was settled on for the initial offer. The term was not tied to statutory or guidelines sentences for potential federal charges or, as far as OPR could determine, possible state charges. Furthermore, while the USAO initially informed the defense that the two-year term was “non-negotiable,” Acosta failed to enforce that position and rather than a “floor” for negotiations, it became a “ceiling” that was further reduced during the negotiations. OPR was unable to find any evidence indicating that the term of incarceration was tied either to the federal interest in seeking a just sentence for a serial sexual offender, or to other traditional sentencing factors such as deterrence, either of Epstein or other offenders of similar crimes. Instead, as previously noted, it appears that Acosta primarily considered only a punishment that was somewhat more than that to which the state had agreed. As a result, the USAO had little room to maneuver during the negotiations and because Acosta was unwilling to enforce the “non-negotiable” initial offer, the government ended up with a term of incarceration that was not much more than what the state had initially sought and which was significantly disproportionate to the seriousness of Epstein’s conduct.¶

In sum, it is evident that Acosta’s desire to resolve the federal case against Epstein led him to arrive at a target term of incarceration that met his own goal of serving as a “backstop” to the state, but that otherwise was untethered to any articulable, reasonable basis. In assessing the case only through the lens of providing a “backstop” to the state, Acosta failed to consider the need for a punishment commensurate with the seriousness of Epstein’s conduct and the federal interest in addressing it.¶

D. Acosta’s Decisions Led to Difficulties Enforcing the NPA¶

After the agreement was reached, the collateral attacks and continued appeals raised the specter that the defense had negotiated in bad faith. At various points, individual members of the USAO team became frustrated by defense tactics, and in some instances, consideration was given to whether the USAO should declare a unilateral breach. Indeed, on November 24, 2008, the USAO gave notice that it deemed Epstein’s participation in work release to be a breach of the agreement but ultimately took no further action. Acosta told OPR: “I was personally very frustrated with the failure to report on October 20, and had I envisioned that entire collateral attack, I think I would have looked at this very differently.”¶

Once the NPA was signed, Acosta could have ignored Epstein’s requests for further review by the Department and, if Epstein failed to fulfill his obligations under the NPA to enter his state guilty plea, declared Epstein to be in breach and proceeded to charge him federally. When questioned about this issue, Acosta explained that he believed the Department had the “right” to address Epstein’s concerns. He told OPR that because the USAO is part of the Department of Justice, if a defendant asks for Departmental review, it would be “unseemly” to object. During his OPR interview, Sloman described Acosta as very process-oriented, which he attributed to Acosta’s prior Department experience. Sloman, however, believed the USAO gave Epstein “[t]oo much process,” a result of the USAO’s desire to “do the right thing” and to the defense team’s ability to keep pressing for more process without triggering a breach of the NPA. Furthermore, Epstein’s defense counsel repeatedly and carefully made clear they were not repudiating the agreement. Acosta told OPR that the USAO would have had to declare Epstein in breach of the NPA in order to proceed to file federal charges, and Epstein would undoubtedly have litigated whether his effort to obtain Departmental review constituted a breach. Acosta recalled that he was concerned, as was Sloman, that a unilateral decision to rescind the non-prosecution agreement would result in collateral litigation that would further delay matters and make what was likely a difficult trial even harder.¶

Acosta’s and Sloman’s concerns about declaring a breach were not unreasonable. A court would have been unlikely to have determined that defense counsel’s appeal of the NPA to the Department and unwillingness to set a state plea date while that appeal was ongoing was sufficient to negate the agreement. However, some of the difficulty the USAO faced in declaring a breach was caused by decisions Acosta made before and shortly after the NPA was signed. For example, and significantly, it was Acosta who changed the language, “Epstein shall enter his guilty plea and be sentenced not later than October 26, 2007” to “Epstein shall use [his] best efforts to enter his guilty plea and be sentenced not later than October 26, 2007.” (Emphasis added.) Acosta also agreed not to enforce the NPA’s October 26, 2007 deadline for entry of Epstein’s plea, and he told defense counsel that he had no objection if they decided to pursue an appeal to the Department. Following these decisions, the USAO would have had significant difficulty trying to prove that Epstein was not using his “best efforts” to comply with the NPA and was intentionally failing to comply, as opposed to pursuing a course to which the U.S. Attorney had at least implicitly agreed.¶

E. Acosta Did Not Exercise Sufficient Supervisory Review over the Process¶

The question at the center of much of the public controversy concerning the USAO’s handling of its criminal investigation of Epstein is why the USAO agreed to resolve a case in which¶

the defendant faced decades in prison for sexual crimes against minors with such an insignificant term of incarceration, and made numerous other concessions to the defense. As OPR has set forth in substantial detail in this Report, OPR did not find evidence to support allegations that the prosecutors sought to benefit Epstein at the expense of the victims. Instead, the result can more appropriately be tied to Acosta’s misplaced concerns about interfering with a traditionally state crime and intruding on state authority. Acosta was also unwilling to abandon the path that he had set, even when Villafaña and Lourie advocated to end the negotiations and even though Acosta himself had learned that the state authorities may not have been a reliable partner.¶

Many of the problems that developed might have been avoided had Acosta engaged in greater consultation with his staff before making key decisions. The contemporaneous records revealed problems with communication and coordination among the five key participants. Acosta was involved to a greater extent and made more decisions than he did in a typical case. Lourie told OPR that it was “unusual to have a U.S. Attorney get involved with this level of detail.” Menchel told OPR, “I know we would have spoken about this case a lot, okay? And I’m sure with Jeff as well, and there were conversations — a meeting that I had with Marie and Andy as well.” Lourie similarly told OPR:¶

Well, … he would have been talking to Jeff and Matt, talking to me to the extent that he did, he would have been looking at the Pros Memo and … the guidance from CEOS, he would have been reading the defense attorney’s letters, maybe talking to the State Attorney, I don’t know, just … all these different sources of information he was — I’m comfortable that he knew the case, you know, that he was, he was reading everything. Apparently, he, you know, read the Pros Memo, he read all the stuff … .¶

At the same time, Acosta was significantly removed, both in physical distance and in levels in the supervisory chain, from the individuals with the most knowledge of the facts of the case—Villafaña and, to a lesser extent, Lourie. Lourie normally would have signed off on the prosecution memorandum on his own, but as he told OPR, he recognized that the case was going to go through the front office “[b]ecause there was front office involvement from the get go.” Yet, although Acosta became involved at certain points in order to make decisions, he did not view himself as overseeing the investigation or the details of implementing his decisions. OPR observed that as a consequence, management of the case suffered from both an absence of ownership of the investigation and failures in communication that affected critical decisions.¶

On occasion, Villafaña included Acosta directly in emails, but often, information upon which Acosta relied for his decisions and information about the decisions Acosta had made traveled through multiple layers between Acosta and Villafaña. Villafaña did draft a detailed, analytical prosecution memorandum, but it is not clear that Acosta read it and instead may have relied on conversations primarily with Menchel and later with Sloman after Menchel’s departure. Despite these discussions, though, it is not clear that Acosta was aware of certain information, such as Oosterbaan’s strong opinion from the outset in favor of the prosecution or of Villafaña’s concerns and objections to a state-based resolution or the final NPA. Acosta interpreted the state indictment on only one charge as a sign that the case was weak evidentially, but it is not clear that when making his decision to resolve the matter though a state-based plea, he knew the extent to¶

which Villafaña and Lourie believed that the state had intentionally failed to aggressively pursue a broader state indictment.¶

One example illustrates this communication gap. In a September 20, 2007 email to Lourie asking him to read the latest version of the proposed “hybrid” federal plea agreement (calling for Epstein to plead to both state and federal charges), Acosta noted, “I don’t typically sign plea agreements. We should only go forward if the trial team supports and signs this agreement. I didn’t even sign the public corruption or [C] cartel agreements, so this should not be the first.” (Emphasis added.) In his email to Villafaña, Lourie attached Acosta’s email and instructed Villafaña to “change the signature block to your name and send as final to Jay [Lefkowitz].” (Emphasis added.) Villafaña raised no objection to signing the agreement. Acosta told OPR that he wanted to give the “trial team” a chance to “speak up and let him know” if they did not feel comfortable with the agreement. Villafaña, however, told OPR that she did not understand that she was being given an opportunity to object to the agreement; rather, she believed Acosta wanted her to sign it because he was taking an “arm’s length” approach and signaling this “was not his deal.” The fact that the top decision maker believed he was giving the line AUSA an opportunity to reflect and stop the process if she believed the deal was inappropriate, but the line AUSA believed she was being ordered to sign the agreement because her boss wanted to distance himself from the decision, reflects a serious communication gap.¶

As another example, at one point, Villafaña, frustrated and concerned about the decisions being made concerning a possible resolution, requested a meeting with Acosta; in a sternly worded rebuke, Menchel rejected the request. Although Menchel told OPR that he was not prohibiting Villafaña from speaking to Acosta, Villafaña interpreted Menchel’s email to mean that she could not seek a meeting with Acosta. As a consequence, Acosta made his decision about a state resolution and the term of incarceration without any direct input from Villafaña. Acosta told OPR that he was unaware that Villafaña had sought a meeting with him and he would have met with her if she had asked him directly. OPR did not find any written evidence of a meeting involving both Acosta—the final decision maker—and Villafaña—the person most knowledgeable about the facts and the law—before Acosta made his decision to resolve the case through state charges or to offer the two-year term, and Villafaña said she did not have any input into the decision. Although a U.S. Attorney is certainly not required to have such direct input, and it may be that Menchel presented what he believed to be Villafaña’s views, OPR found no evidence that Acosta was aware of Villafaña’s strong views about, and objections to, the proposed resolution.{sup}256¶

Two logistical problems hindered effective communication. First, the senior managers involved in the case—Acosta, Sloman, and Menchel—had offices located in Miami, while the offices of the individuals most familiar with facts of the case—Villafaña and, to a lesser extent, Lourie—were located in West Palm Beach. Consequently, Villafaña’s discussions with her senior¶

{sup}256 In her 2017 Declaration in the CVRA litigation, Villafaña stated that, given the challenges of obtaining victims’ cooperation with a federal prosecution, “I believed and still believe that a negotiated resolution of the matter was in the best interests of the [USAO] and the victims as a whole. The [USAO] had also reached that same conclusion.” Several subjects pointed to this statement as indicating that Villafaña in fact supported the NPA. In her OPR interview, however, Villafaña drew a distinction between resolving the investigation through negotiations that led to what in her view was a reasonable outcome, which she would have supported, and “this negotiated resolution”—that is, the NPA—which she did not support.¶

managers required more effort than in other offices, where a line AUSA can more easily just stop by a supervisor’s office to discuss a case.{sup}257¶

Second, key personnel were absent at varying times. Menchel’s last day in the office was August 3, 2007, the day he sent to the defense his letter making the initial offer, and presumably in the immediate period before his departure date, Menchel would have been trying to wrap up his outstanding work. Yet, this was also the time when Acosta was deciding how to resolve the matter. Similarly, in the critical month of September, the NPA and plea negotiations intensified and the NPA evolved significantly, with the USAO having to consider multiple different options as key provisions were continuously added or modified while Villafaña pressed to meet her late-September deadline. Although Lourie was involved with the negotiations during this period, he was at the same time transitioning not only to a new job but to one in Washington, D.C., and was traveling between the two locations. Sloman was on vacation in the week preceding the signing, when many significant changes were made to the agreement, and he did not participate in drafting or reviewing the NPA before it was signed. Accordingly, during the key negotiation period for a significant case involving a unique resolution, no one involved had both a thorough understanding of the case and full ownership of the decisions that were being made. Villafaña certainly felt that during the negotiations, she was only implementing decisions made by Acosta. Acosta, however, told OPR that when reviewing the NPA, “I would have reviewed this for the policy concerns. Did it do the … bullet points, and my assumption, rightly or wrongly, would have been that Andy and [REDACTED] would have looked at this, and that this was … appropriate.”¶

The consequences flowing from the lack of ownership and effective communication can be seen in the NPA itself. As demonstrated by the contemporaneous communications, the negotiations were at times confusing as the parties considered multiple options and even revisited proposals previously rejected. Meanwhile, Villafaña sought to keep to a deadline that would allow her to charge Epstein when she had planned to, if the parties did not reach agreement. In the end, Acosta accepted several terms with little apparent discussion or consideration of the ramifications.¶

The USAO’s agreement not to prosecute “any potential co-conspirators” is a notable example. As previously noted, the only written discussion about the term that OPR found was Villafaña’s email to Lourie and the incoming West Palm Beach manager, with copies to her co-counsel and direct supervisor, stating that she did not believe the provision “hurts us,” and neither Acosta, Lourie, nor Villafaña recalled any further discussion about the provision. Although OPR did not find evidence showing that Acosta, Lourie, or Villafaña intended the scope of the provision to protect anyone other than Epstein’s four assistants, the plain language of the provision precluded the USAO from prosecuting anyone who engaged with Epstein in his criminal conduct, within the limitations set by the overall agreement. This broad prosecution declination would likely be unwise in most cases but in this case in particular, the USAO did not have a sufficient investigative basis from which it could conclude with any reasonable certitude that there were no other individuals who should be held accountable along with Epstein or that evidence might not be developed implicating others. Prosecutors rarely promise not to prosecute unidentified third¶

{sup}257 In his OPR interview, Acosta commented that although Menchel’s office was on the same floor as Acosta’s, he was in a different suite, which “affects interaction.”¶

parties.{sup}258 The rush to reach a resolution should not have led the USAO to agree to such a significant provision without a full consideration of the potential consequences and justification for the provision. It is highly doubtful that the USAO’s refusal to agree to that term would have itself caused the negotiations to fail; the USAO’s rejection of the defense proposal concerning immigration consequences did not affect Epstein’s willingness to sign the agreement. The possibility that individuals other than Epstein’s four female assistants could have criminal culpability for their involvement in his scheme could have been anticipated and should have caused more careful consideration of the provision.¶

Similarly, the confidentiality provision was also accepted with little apparent consideration of the implications of the provision for the victims, and it eventually became clear that the defense interpreted the provision as precluding the USAO from informing the victims about the status of the investigation. Agreeing to a provision that restricted the USAO’s ability to disclose or release information as it deemed appropriate mired the USAO in disputes about whether it was or would be violating the terms of the NPA by disclosing information to victims or the special [REDACTED]. Decisions about disclosure of information should have remained within the authority and province of the USAO to decide as it saw fit.¶

There is nothing improper about a U.S. Attorney not having a meeting with the line AUSA or other involved members of the prosecution team before he or she makes a decision in a given case; indeed, U.S. Attorneys often make decisions without having direct input from line AUSAs. And Acosta did have discussions with Menchel, and possibly Sloman, before making the critical decision to resolve the matter through a state plea, although the specifics of those discussions could not be recalled by the participants due to the passage of time. This case, however, was different from the norm, and Acosta was considering a resolution that was significantly different from the usual plea agreement. Contemporaneous records show that Acosta believed the case should be handled like any other, but Acosta’s decision to fashion an unorthodox resolution made the case unlike any other, and it therefore required appropriate and commensurate oversight. Acosta may well have decided to proceed in the same fashion even if he had sought and received a full briefing¶

[I]t’s effectively transactional immunity which I didn’t think we were supposed to do at the Department of Justice… . I’ve never heard of anything of the sort… . [W]e go to great lengths in most plea agreements to go and not give immunity for example, for crimes of violence, … for anything beyond the specific offense which was being investigated during the specific time periods and for you and nobody else. I mean on rare occasion I’ve seen cases where say someone was dealing drugs and their wife was involved… . And they’ve got kids… . [and] it’s understood that the wife probably could be prosecuted and sent to jail too, but you know the husband’s willing to go and take the weight … . This is not one of those.¶

{sup}258 CEOS Chief Oosterbaan told OPR this provision was “very unusual.” Principal Associate Deputy Attorney General John Roth commented, “I don’t know how it is that you give immunity to somebody who’s not identified. I just don’t know how that works.” Villafaña’s co-counsel told OPR:¶

Deputy Attorney General Filip called the provision “pretty weird.” Menchel’s successor as Criminal Chief told OPR that he had never heard of such a thing in his 33 years of experience as a prosecutor. A senior AUSA with substantial experience prosecuting sex crimes against children commented that it was “horrendous” to provide immunity for participants in such conduct.¶

from Villafaña and others, but given the highly unusual procedure being considered, his decision should have been made only after a full consideration of all of the possible ramifications and consequences of pushing the matter into the state court system, with which neither Villafaña nor the other subjects had experience, along with consideration of the legal and evidentiary issues and possible means of overcoming those issues. OPR did not find evidence indicating that such a meeting or discussion with the full team was held before the decision was made to pursue the state-based resolution, before the decision was made to offer a two-year term of incarceration, or before the NPA, with its unusual terms, was signed. As Acosta later recognized and told OPR, “And a question that I think is a valid one in my mind is, did the focus on, let’s just get this done and get a jail term, mean that we didn’t take a step back and say, let’s evaluate how this train is moving?”¶

Many features of the NPA were given inadequate consideration, including core provisions like the term of incarceration and sexual offender registration, with the result that Epstein was able to manipulate the process to his benefit. Members of his senior staff held differing opinions about some of the issues that Acosta felt were important and that factored into his decision-making. There does not seem to be a point, however, at which those differing opinions were considered when forming a strategy; rather, Acosta seems to have made a decision that everyone beneath him followed and attempted to implement but without a considered strategy beyond attaining the three core elements. As the U.S. Attorney, Acosta had authority to proceed in this manner, but many of the problems that developed with the NPA might have been avoided with a more thoughtful approach. As Acosta belatedly recognized, “[I]f I was advising a fellow U.S. Attorney today, I would say, think it through.”{sup}259¶

No one of the individual problems discussed above necessarily demonstrates poor judgment by itself. However, in combination, the evidence shows that the state-based resolution was ill conceived from the start and that the NPA resulted from a flawed decision-making process. From the time the USAO opened its investigation, Acosta recognized the federal interest in prosecuting Epstein, yet after that investigation had run for more than a year, he set the investigation on a path not originally contemplated. Having done so, he had responsibility for ensuring that he received and considered all of the necessary information before putting an end to a federal investigation into serious criminal conduct. Acosta’s failure to adequately consider the full ramifications of the NPA contributed to a process and ultimately a result that left not only the line AUSA and the FBI case agents dissatisfied but also caused victims and the public to question the motives of the prosecutors and whether any reasonable measure of justice was achieved. Accordingly, OPR concludes that Acosta exercised poor judgment in that he chose a course of action that was in marked contrast to the action that the Department would reasonably expect an attorney exercising good judgment to take.¶

{sup}259 In commenting on OPR’s draft report, Acosta’s attorney acknowledged that “[t]he matter would have benefited from more consistent staffing and attention.”¶

[Page Intentionally Left Blank]¶

els¶

CHAPTER THREE¶

ISSUES RELATING TO THE GOVERNMENT’S INTERACTIONS AND COMMUNICATIONS WITH VICTIMS¶

PART ONE: FACTUAL BACKGROUND¶

I. OVERVIEW¶

Chapter Three describes the events pertaining to the federal government’s interactions and communications with victims in the Epstein case, and should be read in conjunction with the factual background set forth in Chapter Two, Part One. This chapter sets forth the pertinent legal authorities and Department policies and practices regarding victim notification and consultation, as well as OPR’s analysis and conclusions. OPR discusses key events relating to the USAO’s and the FBI’s interactions with victims before and after the signing of the NPA, beginning with the FBI’s initial contact with victims through letters informing them that the FBI had initiated an investigation. A timeline of key events is provided on the following page.¶

II. THE CVRA, 18 U.S.C. § 3771¶

A. History¶

In December 1982, the President’s Task Force on Victims of Crime issued a final report outlining recommendations for the three branches of government to improve the treatment of crime victims. The Task Force concluded that victims have been “overlooked, their pleas for justice have gone unheeded, and their wounds—personal, emotional and financial—have gone unattended.”{sup}260 Thereafter, the government enacted various laws addressing victims’ roles in the criminal justice system: the Victim and Witness Protection Act of 1982, the Victims of Crime Act of 1984, the Victims’ Rights and Restitution Act of 1990 (VRRA), the Violent Crime Control and Law Enforcement Act of 1994, the Antiterrorism and Effective Death Penalty Act of 1996, the Victim Rights Clarification Act of 1997, and the Justice for All Act of 2004.{sup}261¶

The CVRA, enacted on October 30, 2004, as part of the Justice for All Act, was designed to protect crime victims and to make them “full participants in the criminal justice system.”{sup}262 The CVRA resulted from a multi-year bipartisan effort to approve a proposal for a constitutional amendment guaranteeing victims’ rights, some of which had previously been codified as a victims’¶

{sup}260 President’s Task Force on Victims of Crime Final Report at ii (Dec. 1982).¶

{sup}261 See Pub. L. No. 97-291 (Victim and Witness Protection Act) (1982); Pub. L. No. 98-473 (Victims of Crime Act) (1984); Pub. L. No. 101-647 (Victims’ Rights and Restitution Act) (1990); Pub. L. No. 103-322 (Violent Crime Control and Law Enforcement Act) (1994); Pub. L. No. 104-132 (Antiterrorism and Effective Death Penalty Act) (1996); Pub. L. No. 105-6 (Victim Rights Clarification Act) (1997); and Pub. L. No. 108-405 (Justice for All Act) (2004).¶

{sup}262 Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006); United States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007); and Justice for All Act.¶

Timeline of Key Events for Crime Victims’ Rights Act Analysis¶

Bill of Rights in the VRRA.’ Following multiple Senate Judiciary CoMmittee subcommittee hearings and various revisions of the proposed amendment, the Senators determined that such an amendment was unlikely to be approved and, instead, they presented the CVRA as a compromise measure.”¶

B. Enumerated Rights¶

The CVRA defines the term “crime victim” as “a person directly and proxim I armed as a result of the commission of a Federal offense or an offense in the District of o ‘,us Initially, and at the time relevant to the federal Epstein investigation, the CV crime victims the following eight rights-¶

• (1) The right to be reasonably protected from the accu 0
• (2) The right to reasonable, accurate, and timely notice o blic court proceeding, or any parole proceeding, inv e crime or of any release or escape of the accused.
• (3) The right not to be excluded fr a ch public court proceeding, unless the court, after re&ivi ear and convincing evidence, determines that testimony ‘by e victim would be materially altered if the vic ‘m Itserfrother testimony at that proceeding. 4,c’ (4) The right to be reasonably heard at any public proceeding in the district court invo t g reuse, plea, sentencing, or any parole proceeding.
• (5) The bl right to confer with the attorney for the Government in t case.

{sup}263 See 150 Rcc. 260-01 at 1, 5 (2004). The VRRA identified victims’ rights to (1) be treated with fairness and wit t for the victim’s dignity and privacy; (2) be reasonably protected from the accused offender, (3) be notif u logs; (4) be present at all public court proceedings that relate to the offense, unless the court dew t t timony by the victim would be materially affected if the victim heard other testimony at trial; (5) co r ttomcy for the Government in the case; (6) restitution; and (7) infornution about the conviction. sentcnci n i nment, and release of the offender. 42 U.S.C. § 1060609 (1990). The relevant text of the VRRA is hooter Three, Pan Two, Section I .B of this Report.¶

xa 50 Cong. Roc. S4260-01 at I, 5 (2004). Although nine congressional hearings were held between 1996 and 2003 concerning amending the Constitution to address victims’ rights, neither chamber of Congress voted on legislation proposing an amendment. United States Government Accountability Office (GAO), GAO-09-54, Report to Congressional Committees: Crime Victims’ Rights Act - Increasing .4warenesx Modifying the Complaint Process and Enhancing Compliance Monitoring IVIII Improve Implementation of the Act at 16 (Dec. 2008) (GAO CVRA Awareness Report). 1¶

M5 The relevant text of the CVRA is set forth in Chapter That, Part Two, Section I.A of this Report.¶

• • I¶

• (6) The right to full and timely restitution as provided in law.:
• (7) The right to proceedings free from unreasonable delay.
• (8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Although many of the rights included in the CVRA already existed in federal law as part of the VRRA, the CVRA afforded crime victims standing to assert their rights in feder court or by administrative complaint to the Department, and obligated the court to ensure th u rights were afforded. The passage of the CVRA repealed the rights portion of the S.C. § 10606), but kept intact the portion of the VRRA directing federal law enfor agencies to provide certain victim services, such as counseling and medical care 2 U.S.C. § 10607(c)). Department training emphasizes that the VRRA obligates th t part ent to provide victim services, which attach upon the detection of a crime, while t contains courtenforceable rights that attach upon the filing of a charging instrument.¶

In 2015, Congress amended the CVRA and added the two rights:2Ӧ

• (9) The right to be informed in a timely m y plea bargain or deferred prosecution agreement.
• (10) The right to be informed of services described in sectio Restitution Act of 1990 (4 C. information for the Offi Department of Justi 14/ s udder this section and the the Victims’ Rights and 1 7(c)) and provided contact ms’ Rights Ombudsman of the

HI. THE DEPARTMEN RETAT1ON OF THE CVRA’S DEFINITION OF “CRIME VICTIM” CTi T IME OF THE EPSTEIN INVESTIGATION¶

A. April I 005 0 e me of Legal Counsel “Preliminary Review”¶

In 2005 nt management requested informal guidance from the Department’s Office of Le ounse (OLC) regarding interpretation of the CVRA’s definition of “crime victim.”267 1 1, 2005, OLC provided “preliminary and informal” guidance by email, concludi ‘the status of a ‘crime victim’ may be reasonably understood to commence upon the fi mplaint, and that the status ends if there is a subsequent decision not to indict or p e Federal offense that directly caused the victim’s harm.”7”¶

{sup}266 H. Rep. No. 114.7 (Jan. 27, 2015).¶

{sup}26? OLC is responsible for providing legal advice to the President, Dcparuncm comprnients, and other executive branch agencies.¶

X.8 Tic OLC 2005 Informal Guidance is summarized in a Memorandum Opinion to the Acting Deputy Attorney General from Deputy Assistant Attorney General John E. Bies (Dec. I7, 2010), published as Office of Legal Counsel,¶

OLC concluded that because the CVRA defines “crime victim” as a ‘person directly and proximately harmed by the commission of a Federal offense,’ … the definition of victim is thus tethered to the identification of a ‘Federal offense,’ an event that occurs with the filing of a complaint.” OLC further concluded that because the House Report stated that the CVRA codifies the “rights of crime victims in the Federal judicial system” and a complaint “commences the ‘judicial process’ and places an offense within the ‘judicial system,’” the legislature must have intended for CVRA rights to commence upon the filing of a complaint.¶

OLC also found that the language of the CVRA rights supported its interpretation. For example, the first right grants a victim protection from “the accused,” not a suspect. Additionally, the second, third, and fourth rights refer to “victim notification, and access to, public proceedings involving release, plea, sentencing or parole—none of which commence prior to the filing of a complaint.”¶

B. 2005 Attorney General Guidelines for Victim and Witness Assistance¶

In May 2005, the Department updated its Attorney General Guidelines for Victim and Witness Assistance (2005 Guidelines) to include the CVRA.{sup}269 The 2005 Guidelines specifically cited the CVRA requirement that agencies “engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded” their CVRA rights, which in 2005 encompassed the initial eight CVRA rights.¶

The 2005 Guidelines provided detail regarding implementation of the Department’s CVRA duties and divided criminal cases into an “investigation stage,” a “prosecution stage,” and a “corrections stage.” The individuals responsible for notifying crime victims of their CVRA rights varied depending on the stage of the proceedings.¶

During the “investigation stage” of cases in which the FBI was the investigating agency, the Special Agent in Charge was responsible for identifying the victims “[a]t the earliest opportunity after the detection of a crime” and notifying them of their rights under the CVRA and services available under the VRRA and other federal statutes.¶

[D]uring the investigative stage, [the Department] mandates compliance with the Victims’ Rights and Restitution Act, 42 U.S.C. § 10607, which requires federal officials to, among other things, identify victims, protect victims, arrange for victims to receive reasonable protection from suspected offenders, and provide¶

The Availability of Crime Victims’ Rights Under the Crime Victims’ Rights Act of 2004 (Dec. 17, 2010) (“OLC Availability of Crime Victims’ Rights (2010)”) and available at https://www.justice.gov/sites/default/files/olc/opinions/2010/12/31/availability-crime-victims-rights.pdf. “That [2005] informal guidance did not foreclose the possibility that other definitions would also be reasonable.” OLC Availability of Crime Victims’ Rights (2010) at 1.¶

{sup}269 The 2005 Guidelines are set forth in relevant part in Chapter Three, Part Two, Section II of this Report. The Department promulgated the guidelines in response to a congressional directive in a predecessor statute to the CVRA, which instructed the Attorney General to develop and implement such guidelines. Victim and Witness Protection Act, Pub. L. No. 97-291, § 6, 96 Stat. 1248 (1982). The 2005 Guidelines were superseded in October 2011, as explained below.¶

information about available services for victims. Therefore, even though [the Department] may not afford CVRA rights to victims if charges have not been filed in their cases, the [D]epartment may provide certain services to victims that may serve the same function as some CVRA rights.{sup}270¶

The 2005 Guidelines stated that the “prosecution stage” of the case began when “charges are filed and continue[d] through postsentencing legal proceedings.” The “U.S. Attorney in whose district the prosecution is pending” was responsible for making “best efforts to see that crime victims are notified” of their rights under the CVRA.¶

During the prosecution stage, the 2005 Guidelines required the U.S. Attorney, or a designee, to notify crime victims of case events, such as the filing of charges, the release of an offender; the schedule of court proceedings; the acceptance of a guilty plea or nolo contendere or rendering of a verdict; and any sentence imposed. The 2005 Guidelines required the responsible official to “provide the victim with reasonable, accurate, and timely notice of any public court proceeding … that involves the crime against the victim.”¶

The 2005 Guidelines specifically required federal prosecutors to “be available to consult with victims about [their] major case decisions,” such as dismissals, release of the accused, plea negotiations, and pretrial diversion. In particular, the 2005 Guidelines required the responsible official to make reasonable efforts to notify identified victims of, and consider victims’ views about, prospective plea negotiations. Nevertheless, the 2005 Guidelines cautioned prosecutors to “consider factors relevant to the wisdom and practicality of giving notice and considering [the victim’s] views” in light of various factors such as “[w]hether the proposed plea involves confidential information or conditions” and “[w]hether the victim is a possible witness in the case and the effect that relaying any information may have on the defendant’s right to a fair trial.” Lastly, the 2005 Guidelines stated that “[a] strong presumption exists in favor of providing rather than withholding assistance and services to victims and witnesses of crime.”¶

The “corrections stage” involved both pretrial detention of the defendant and incarceration following a conviction. Depending on the agency having custody of the defendant, the U.S. Attorney or other agencies were responsible for victim notifications during this stage.¶

IV. USAO AND FBI VICTIM/WITNESS NOTIFICATION PRACTICE AT THE TIME OF THE EP [REDACTED] INVESTIGATION¶

A. USAO Training¶

As U.S. Attorney, Acosta disseminated the May 2005 updated Guidelines to USAO personnel with a transmittal memorandum dated February 27, 2006, stating that he expected each recipient “to read and become familiar with the [2005] Guidelines.” Acosta noted in the memorandum that the USAO had recently held an “all office training” addressing the 2005 Guidelines and that new USAO attorneys who missed the training were required to view a videotaped version of the training “immediately.” Acosta further noted that the USAO’s¶

{sup}270 GAO CVRA Awareness Report at 66.¶

victim/witness staff were “ready to assist you with the details of victim notification, and other areas for which United States Attorney[‘]s Offices are now explicitly responsible under the act.” The USAO’s Victim Witness Program Coordinator told OPR that the USAO provided annual mandatory office-wide training on victim/witness issues and training for new employees.¶

B. The Automated Victim Notification System¶

Both the FBI and the USAO manage contacts with crime victims through the Victim Notification System (VNS), an automated system maintained by the Executive Office for United States Attorneys. The 2005 Guidelines mandated that “victim contact information and notice to victims of events … shall, absent exceptional circumstances (such as cases involving juvenile or foreign victims), be conducted and maintained using VNS.” The VNS is separate from agency case management systems maintained by the FBI and the USAO. Both the FBI and the USAO use the VNS to generate form letters to victims at various points in the investigation and the prosecution of a criminal case. Although each form letter can be augmented to add some limited individual matter-specific content, the letters contain specific language concerning the purpose of the contact that cannot be removed (such as the arrest of the defendant or the scheduling of a sentencing hearing).{sup}271¶

In the usual course of a criminal case, the FBI collects victim contact information during the investigation stage, which it stores in its case management system. The FBI’s Victim Specialist exports the victim information data from the FBI’s case management system into the VNS database. Victim information stored in the VNS is linked to the investigation’s VNS case number. At the time of the Epstein investigation, the FBI’s Victim Specialist could use the VNS to generate seven different form notification letters: (1) initial notification; (2) case is under investigation; (3) arrest of the defendant; (4) declination of prosecution; (5) other; (6) advice of victim rights; and (7) investigation closed.¶

After a charging document has been filed and the “prosecution stage” begins, the USAO’s Victim Witness Specialist assumes responsibility for victim notification.{sup}272 The USAO imports data from its case management system into the VNS and links to the previously loaded FBI VNS data. The USAO’s Victim Witness Specialist uses the VNS to generate form letters providing notice of case events, such as charges filed; an arraignment; a proposed plea agreement; change of plea hearings; sentencing hearings; and the result of sentencing hearings.¶

²⁷¹ U.S. Dept. of Justice Office of the Inspector General Audit Division Audit Report 08-04, The Department of Justice’s Victim Notification System at 29 (Jan. 2008), available at https://oig.justice.gov/reports/EOUSA/a0804/final.pdf. The 2008 audit identified concerns with the VNS templates, including that “VNS users … cannot alter the format to ensure that it fits with the specific case for which it is being sent,” and many users had noted that “information in notifications became confusing and sometimes contradictory when various types of notifications were combined in the same letter.”¶

{sup}272 The FBI and the USAO have different titles for the individual who maintains victim contact: the FBI title is “Victim Specialist,” and the USAO title is “Victim Witness Specialist.”¶

C. FBI Victim Notification Pamphlets¶

The 2005 Guidelines recommended that “victims be given a printed brochure or card that briefly describes their rights and available services … and [contact information for] the victim-witness coordinator or specialist …” At the time of the Epstein investigation, FBI agents nationwide routinely followed a practice of providing victims with pamphlets entitled, “Help for Victims of Crime” and “The Department of Justice Victim Notification System.” The “Help for Victims of Crime” pamphlet contained a listing of the eight CVRA rights. The pamphlet stated: “Most of these rights pertain to events occurring after the indictment of an individual for the crime, and it will be the responsibility of the prosecuting United States Attorney’s Office to ensure you are afforded those rights.” The case agent in the Epstein investigation told OPR that she provided victims with the FBI pamphlet upon the conclusion of an interview. The pamphlet entitled “The Department of Justice Victim Notification System” provided an overview of the VNS and instructions on how to access the system.¶

V. THE INTRODUCTORY USAO AND FBI LETTERS TO VICTIMS¶

A. August 2006: The FBI Victim Notification Letters¶

On August 8, 2006, shortly after the FBI opened its investigation into Epstein, the Victim Specialist for the West Palm Beach FBI office, under the case agent’s direction, prepared a “Victim Notification Form” naming 30 victims in the Epstein investigation and stating that “additional pertinent information” about them was available in the VNS.{sup}273 Thereafter, the Victim Specialist entered individual victim contact information she received from the case agent into the VNS whenever the case agent directed the Victim Specialist to generate an initial letter to a particular victim. The FBI case agent told OPR that formal victim notification was “always handled by the [FBI’s Victim Specialist].”{sup}274¶

According to the VNS records, beginning on August 28, 2006, the FBI Victim Specialist used the VNS to generate FBI letters to be sent to the victims, over her signature, identifying the eight CVRA rights and inviting victims to provide updated contact information in order to receive current status information about the matter. The FBI letters described the case as “currently under investigation” and noted that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.” The letters also stated that some of the CVRA rights did not take effect until after an arrest or indictment: “We will make our best efforts to ensure you are accorded the rights described. Most of these rights pertain to events occurring after the arrest or indictment of an individual for the crime, and it will become the responsibility of the prosecuting United States Attorney’s Office to ensure you are accorded those rights.” A sample letter follows.¶

{sup}273 These 30 were drawn from the PBPD investigative file and included individuals that the PBPD had not designated as victims and individuals the PBPD had identified but not interviewed.¶

{sup}274 The case agent told OPR, “[O]nce we identify a victim, then we bring [the FBI Victim Specialist] in, and as far as anything pertaining to victim rights … and any resources, federal resources these victims may need comes from [her], the Victim Specialist.”¶

U.S. Department of Justice Federal Bureau of Investigation FBI - West Palm Beach Suite 300 305 South Flaglet Drive West Palm Beach, FL 33401 Phone: (561) 833-7517 Fax: (561) 833-7970¶

August 28, 2006¶

Re: Case Number: [REDACTED]¶

Desire: [REDACTED]¶

Your name was referred to the FBI’s Victim Assistance Program as being a possible victim of a federal crime. We appreciate your assistance and cooperation while we are investigating this case. We would like to make you aware of the victim services that may be available to you and to answer any questions you may have regarding the criminal justice process throughout the investigation. Our program is part of the FBI’s effort to ensure the victims are treated with respect and are provided information about their rights under federal law. These rights include notification of the status of the case. The enclosed brochures provide information about the FBI’s Victim Assistance Program, resources and instructions for accessing the Victim Notification System (VNS). VNS is designed to provide you with information regarding the status of your case.¶

This case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation.¶

As a crime victim, you have the following rights under US United States Code § 3771: (1) The right to be reasonably protected from the avoidant; (2) The right to reasonable, uncriminal and finally notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused; (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing avidons, determines that testimony by the victim would be materially altered if the victim heard other testimony at last proceeding; (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) The reasonable right to confer with the attorney for the Government in the case; (6) The right to full and thenly restitution, as provided in law; (7) The right to proceedings free from unreasonable delay; (8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.¶

We will make our best efforts to ensure you are accorded the rights described. Most of these rights pertain to avents occurring after the arrest or indictment of no individual for the crime, and it will become the responsibility of the prosecuting United States Attorney’s Office to ensure you are accorded those rights. You may also ask the advice of a private attorney with respect to these rights.¶

The Victim Notification System (VNS) is designed to provide you with direct information regarding the case as it proceeds through the criminal justice system. You may obtain current information about this matter on the Internet at WWW.Notify.USDOI.GOV or from the VNS Call Center at [REDACTED]¶

In addition, you may use the Call Center or Internet to update your contact information and/or change your decision about participation in the notification program. If you update your information to include a current email address, VNS will send information to that address. You will need the following Victim Identification Number (VIN): [REDACTED] and Personal Identification Number (PIN): [REDACTED] anytime you contact the Call Center and the first time you log on to VNS on the Internet. In addition, the first time you access the VNS Internet site, you will be prompted to enter your last name (or business name) as currently contained in VNS. The name you should enter is [REDACTED]¶

[REDACTED] [REDACTED] [REDACTED]¶

[REDACTED] additional questions which involve this matter, please contact the office listed above. When you call, please provide the file number located at the top of this letter. Please remember, your participation in the notification part of this program is voluntary. In order to continue to receive notifications, it is your responsibility to keep your contact information current.¶

Sincerely,¶

Victim Specialist¶

VNS data logs, correspondence maintained in the FBI’s case management system, and FBI interview reports for the Epstein investigation reflect that, during the Epstein investigation, the FBI generally issued its victim notification letters after the victim had been interviewed by FBI case agents, but its practice was not uniform.{sup}275¶

B. August 2006: The USAO’s Letters to Victims¶

During the time that the FBI Victim Specialist was preparing and sending FBI victim notification letters, Villafaña was also preparing her own introductory letter in anticipation of meeting with each victim receiving the letter. Villafaña told OPR that she was “generally aware that the FBI sends letters” but believed the FBI’s “process didn’t… have anything to do with my process.” Villafaña told OPR the “FBI had their own victim notification system and their own guidelines for when information had to be provided and what information had to be provided.” Moreover, Villafaña “didn’t know when [FBI] letters went out” or “what they said.”{sup}276 Nevertheless, Villafaña told OPR that she did not intend for the letters she drafted to interfere with the FBI’s notification responsibilities.¶

In August 2006, Villafaña drafted her letters to victims who had been initially identified by the FBI based on the PBPD investigative file. Villafaña told OPR that she “made the decision to make contact with victims early,” and she composed the introductory letter and determined to whom they would be sent. Although these letters contained CVRA rights information, Villafaña mainly intended to use them as a vehicle to “introduce” herself and let the victims know the federal investigation “would be a different process” from the State Attorney’s Office investigation in which “the victims felt they had not been particularly well-treated.” Villafaña told OPR that in a case in which she “needed to be talking to young girls frequently and asking them really intimate.¶

{sup}275 OPR found no uniformity in the time lapse between the FBI’s interview of a victim and the issuance of an FBI letter to that particular victim, as the span of time between the two events varied from a few days to months. Furthermore, not every victim interviewed by the FBI received an FBI letter subsequent to her interview, and some FBI letters were sent to victims who had not been interviewed by the case agents. Finally, OPR’s review of FBI VNS data revealed some letters that appeared to have been generated in the VNS and not included in the FBI case file. OPR could not confirm whether such letters were mailed or delivered.¶

{sup}276 Villafaña, who did not have supervisory authority over the FBI’s Victim Specialist, told OPR that she did not review the FBI notification letters and did not see them until she gathered them for production in the CVRA litigation, which was initiated after Epstein pled guilty on June 30, 2008.¶

questions,” she wanted to “make sure that they … feel like they can trust me.” Villafaña directed the FBI case agents to hand deliver the letters “as they were conducting interviews.” Villafaña told OPR that the USAO had “no standardized way to do any victim notifications prior to” the filing of federal charges, and therefore Villafaña did not use a template or VNS-generated letter for content, but instead used a letter she “had created and crafted [herself] for another case.”{sup}277¶

The letters contained contact information for Villafaña, the FBI case agent, and the Department’s Office for Victims of Crime in Washington, D.C., and itemized the CVRA rights. The USAO letters described the case as “under investigation” and stated that the victim would be notified “[i]f anyone is charged in connection with the investigation.” The letters stated that, in addition to their rights under the CVRA, victims were entitled to counseling, medical services, and potential restitution from the perpetrator, and that, upon request, the government would provide a list of counseling and medical services.{sup}278 Lastly, the letters advised that investigators for the defense might contact the victims and those who felt threatened or harassed should contact Villafaña or the FBI case agent.¶

Although the USAO letters did not contain any language limiting CVRA rights to the post-arrest or indictment stage, Villafaña told OPR that she did not intend for the letters to activate the USAO’s CVRA obligations, which she believed attached only after the filing of a criminal charge. Villafaña told OPR that she did not think that victims potentially receiving both an FBI letter and a USAO letter would be confused about their CVRA rights because the USAO letter “was coming with an introduction from the agents [who were hand delivering them].” Later, in the course of the CVRA litigation, Villafaña stated that she and the investigative team “adopted an approach of providing more notice and assistance to potential victims than the CVRA may have required, even before the circumstances of those individuals had been fully investigated and before any charging decisions had been made.”{sup}279¶

Villafaña informed Lourie and Sloman about the letters, but the letters were not reviewed by any of Villafaña’s supervisors, who considered such correspondence to be a non-management task. Acosta told OPR, “I’ve had no other case where I’m even aware of victims being notified, because I assume it all operates without it rising to management level.” Similarly, Menchel told OPR,¶

{sup}277 Villafaña told OPR that she thought that “at one point,” she showed the letter to the USAO’s Victim Witness Specialist who “said it was fine.” The USAO’s Victim Witness Specialist told OPR that because the USAO did not file a charging document in the Epstein matter, the USAO did not obtain VNS information from the FBI and did not assume responsibility for victim contact. The USAO’s Victim Witness Specialist had no contact with Epstein’s victims, and OPR’s examination of VNS data revealed no USAO case number linked to the FBI’s VNS data concerning the Epstein investigation. OPR did locate some victim contact information in the VNS relating to the USAO’s case number associated with the Epstein-related CVRA litigation filed in July 2008.¶

{sup}278 Through its administration of the Crime Victims Fund, the Department’s Office for Victims of Crime supports programs and services to help victims of crime.¶

{sup}279 Villafaña informed OPR that, as the USAO Project Safe Childhood Coordinator [focusing on prosecutions of individuals who exploit children through the internet], she “treated the [Guidelines] as a floor and tried to provide a higher standard of contact.”¶

[A]s Chief of the Criminal Division of the USAO, I did not consider it to be within my purview to ensure that appropriate victim notifications occurred in every matter investigated or brought by the Office. I also recall that the USAO employed one or more victim-witness coordinators to work with line prosecutors to ensure that appropriate victim notifications occurred in every matter investigated or brought by the Office.¶

C. USAO and FBI Letters Are Hand Delivered¶

The FBI case agent told OPR that the FBI made its notifications “at the time that we met [with] the girls.” The case agent recalled that she hand delivered the USAO letters and FBI letters to some victims following in-person interviews, and in the instances when she did not provide a victim with a letter, she provided an FBI pamphlet containing CVRA rights information similar to that set forth in the FBI letters.{sup}280 The co-case agent also recalled that he may have delivered “a few” letters to victims. The FBI Victim Specialist told OPR that she mailed some FBI letters to victims and she provided some FBI letters to the case agent for hand delivery.¶

Nevertheless, the case agent told OPR that she “did not sit there and go through every right” with the victims. She stated, however, “[I]n the beginning whether it was through [the FBI Victim Specialist] giving the letter, me giving a letter, the pamphlet, I believed that the girls knew that they were victims and had rights, and they had a resource, [the FBI Victim Specialist], that they could call for that.” The FBI case agent further explained that once the case agents connected the FBI Victim Specialist with each victim, the Victim Specialist handled the victims’ “rights and resources.”¶

VI. AUGUST 2006 – SEPTEMBER 2007: FBI AND USAO CONTACTS WITH VICTIMS BEFORE THE NPA IS SIGNED¶

Early in the investigation, Villafaña informed her supervisors that, up to that point, “everyone whom the agents have spoken with so far has been willing to tell her story. Getting them to tell their stories in front of a jury at trial may be much harder.” Between August 2006 and September 24, 2007, when the NPA was signed, the FBI case agents interviewed 22 victims. On a few occasions, Villafaña met with victims together with the FBI. Villafaña’s May 1, 2007 draft indictment included substantive crimes against multiple victims, and Villafaña described the circumstances of each of their encounters with Epstein in her prosecution memorandum.¶

There is some evidence indicating that during interviews, some of the victims expressed to the FBI case agents and Villafaña concerns about participating in a federal trial of Epstein, and those discussions touched upon, in broad terms, the victims’ views regarding the desired outcome of the investigation. Before the USAO entered into the NPA, however, no one from the¶

{sup}280 The case agent told OPR, “I remember giving letters to the girls when we would talk to them at … the conclusion, or … if I didn’t have the file on me[,] I had pamphlets in my car, or I made sure [the victims had contact information for the FBI’s Victim Specialist].”¶

government informed any victim about the potential for resolving the federal investigation through a state plea.¶

A. The Case Agents and Villafaña Solicit Some Victims’ Opinions about Resolving the Federal Investigation¶

Villafaña told OPR that when she and the case agents met with victims, “we would ask them how they wanted the case to be resolved.”{sup}281¶

And most of them wanted the case to be resolved via a plea. Some of them wanted him not to be prosecuted at all. Most of them did not want to have to come to court and testify. They were very worried about their privacy rights. Some of them wanted him to go to jail. But … [s]ome of them talked about bad experiences with the State Attorney’s Office. And so, I felt like sending them back to the State Attorney’s Office was not something that they would have supported.¶

Villafaña told OPR that she also recalled that some victims “expressed … concern about their safety,” and were worried that Epstein would find out about their participation in the investigation. In her 2017 declaration submitted in the CVRA litigation, Villafaña stated that the two CVRA petitioners “never communicated [their] desires to me or the FBI case agents and my role was to evaluate the entire situation, consider the input received from all of the victims, and allow the Office to exercise its prosecutorial discretion accordingly.”{sup}282 She also noted that some victims “fear[ed] having their involvement with Epstein revealed and the negative impact it would have on their relationships with family members, boyfriends, and others.”¶

In the FBI case agent’s 2017 declaration filed in the CVRA litigation, she stated, “During interviews conducted from 2006 to 2008, no victims expressed a strong opinion that Epstein be prosecuted.” She further described the concerns of some of the victims:¶

Throughout the investigation, we interviewed many [of Epstein’s] victims… . A majority of the victims expressed concern about the possible disclosure of their identities to the public. A number of the victims raised concerns about having to testify and/or their parents finding out about their involvement with Mr. Epstein. Additionally,¶

{sup}281 Villafaña created for OPR a chart listing victims identified in the state and federal investigations, with notations indicating several with whom Villafaña recalled discussing their opinions about resolving the case. The chart, however, does not indicate what the victims said, and Villafaña told OPR that the information contained in the chart was based on her memory of her interactions with each victim. OPR was unable to determine the details or extent of any such discussions occurring before September 24, 2007, because Villafaña did not have contemporaneous notes of the interviews, and the FBI reports and corresponding notes of the interviews did not contain information about the victims’ desired outcomes. The victims who provided information to OPR did not recall discussing potential resolution of the federal investigation with anyone from the government.¶

{sup}282 In the declaration, Villafaña stated, “Jane Doe 2 specifically told me that she did not want Epstein prosecuted.”¶

for some victims, learning of the Epstein investigation and ppssible exposure of their identities caused them emotional distress. Overall, many of the victims were troubled about the existence of the investigation. They displayed feelings of embarrassment and humiliation and were reluctant to talk to investigators. Some victims who were identified through the investigation refused even to speak to us. Our concerns about the victims’ well-being and getting to the truth were always at the forefront of our handling of the investigation.¶

The case agent told OPR that although she encountered victims who we “believable,” she did not encounter any who vigorously advocated for the prosec Rather, “they were embarrassed,” “didn’t want their parents to know,” and “fin and of Epstein. orget.”n3¶

As of September 24, 2007, the date the NPA was signed, V’ attorney Leflcowitz that she had compiled a preliminary list of victim minors” and 6 other potential minor victims who had not yet Although the government had contacted many victims befo acknowledged during the CVRA litigation that “individu the agreement.” ormed Epstein ing “34 confirmed in awed by the FBI?’ PA was signed, Villafafia re not consulted regarding¶

B. Before the NPA Is Signed, Villaf ses Concern That Victims Have Not Been Consulted¶

Before the NPA was signed, Villa government’s failure to consult with vi Srated to her supervisors concerns about the¶

I. July 2007: ‘s Email Exchanges with Menchel¶

In July 2007, Villafi a possible state resolution information, and sent strong of their email exchang told him that it etas “in unacceptable at Menchel had discussed with defense counsel eral investigation of Epstein. Villafafla was upset by this hided email to Menchel voicing her concerns. (A full account orth at Chapter Two, Part One, Section 1V.A.2.) In that email, she pp opriate [for you] to make a plea offer that you know is completely CE, the victims, and me. These plea negotiations violate … all of the¶

{sup}313 The case agent also noted that the victim who became CVRA petitioner lane Doc #2 Ind expressed in her April2 video-recorded FBI interview her opinion that “nothing should happen to Epstein.”¶

The “victims’ list” for puiposes of the NPA was intended to include the names of all individuals whom the government was prepared to name in a charging document “as victims of an offense enumerated in 18 U.S.C. § 2235.” Although the charges Villafaita proposed on May I, 2007, were based on crimes.against 13 victims, thereafter, as explained in Chapter Two of this Report, she continued to revise the proposed charges, adding and removing victims as the federal investigation developed further evidence. At the time the NPA was signed, ihe proposed charges were based on crimes against 19 victims, but others had been identified for potential inclusion.¶

various iterations of the victims’ rights legislation.”{sup}285 Villafaña explained to OPR her reference to the victims:¶

[M]y concern was that [Menchel] was violating the CVRA which requires the attorneys for the government, which[] includes me[,] to confer with the victims, and the [VRRA], which requires the agents to keep the victims apprised of what’s happening with the case. So in essence, I felt like he was exposing both myself and the agents to allegations of not abiding by our obligations by engaging in these plea negotiations without letting us know about it.{sup}286¶

In his reply to Villafaña’s email, and after noting that he found her email “totally inappropriate,” Menchel denied that he had violated any Departmental policy, and he noted that “[a]s Chief of the Criminal Division, I am the person designated by the U.S. Attorney to exercise appropriate discretion in deciding whether certain pleas are appropriate and consistent with” Departmental policy. Perceiving Menchel’s rebuke as a criticism of her judgment, Villafaña responded, “[R]aising concerns about the forgotten voices of victims in this case should not be classified as a lapse in judgment” and that her “first and only concern in this case … is the victims.”¶

Menchel told OPR that he did not view his conversation with [R] as a plea offer, asserted that he was not obligated to consult with victims during preliminary settlement negotiations, and noted that he left the USAO before the NPA was fully negotiated or signed. Menchel told OPR that “you have discussions … with [the] defense all the time, and the notion that even just having a general discussion is something that must be vetted with victims … is not even … in the same universe as to how I think about this.” Menchel also observed that on the very day that Villafaña criticized him for engaging in settlement negotiations without consulting her, the FBI, or the victims, Villafaña had herself sent an email to [R] offering “to discuss the possibility of a federal resolution of Mr. Epstein case that could run concurrently with any state resolution,” without having spoken to the victims about her proposal.{sup}287¶

{sup}285 Villafaña told OPR that “some victims, I felt strongly, would have objected to [a state-only disposition].” Villafaña stated to OPR that at the time Menchel engaged in such negotiations, he would only have been aware of the victim information contained in her prosecution memorandum, which included information about the “effects on the victims” but did not likely contain information as to “how they would like the case resolved.” Villafaña asserted that Menchel “never reached out to any of the victims to find out what their position would be.” Menchel told OPR that the allegations in Villafaña’s email that he violated the Ashcroft Memo, USAM, and the CVRA were “way out of line in terms of what the law is and the policies are.”¶

{sup}286 As discussed, the Department’s position at the time was that the CVRA did not apply before charges were filed against a defendant.¶

{sup}287 In commenting on OPR’s draft report, Villafaña’s counsel asserted that her email to [R] was intended only to determine whether Epstein was interested in opening plea negotiations.¶

2. Villafaña Asserts That Her Supervisors Gave Instructions Not to Consult Victims about the Plea Discussions, but Her Supervisors Do Not Currently Recall Such Instructions¶

Villafaña told OPR that during an “early” meeting with Acosta, Sloman, and Menchel, which took place when “we were probably just entering into plea negotiations,” she raised the government’s obligation to confer with victims.{sup}288 Initially, Villafaña told OPR she was instructed, “Don’t talk to [the victims]. Don’t tell them what’s happening,” but she was not told why she should not speak to the victims, and she could not recall who gave her this instruction. In a subsequent OPR interview, Villafaña recalled that when she raised the issue of notification during the meeting, she was told, “Plea negotiations are confidential. You can’t disclose them.”{sup}289 Villafaña remained uncertain who gave her this instruction, but believed it may have been Acosta.¶

Neither Acosta, Sloman, nor Menchel recalled a meeting at which Villafaña was directed not to notify the victims. Acosta told OPR that the decision whether to solicit the victims’ view “is something [that] I think was the focus of the trial team and not something that I was focused on at least at this time,” and he did not “recall discussions about victim notification until after the NPA was signed.” Sloman also told OPR that he did not recall a meeting at which victim notification was discussed. Menchel wrote in his response to OPR, “I have no recollection of any discussions or decisions regarding whether the USAO should notify victims of its intention to enter into a pre-charge disposition of the Epstein matter.” Furthermore, Menchel told OPR he could not think of a reason why the issue of victim notification would have arisen before he left the USAO, because “we were way off from finalizing or having anything even close to a deal,” and it would have been “premature” to consider notification.{sup}290¶

3. September 6, 2007: Villafaña Informs Sloman, Who Informs Acosta, of Oosterbaan’s Opinion That Consultation with Victims Was Required¶

On September 6, 2007, in a lengthy email to Sloman responding to his question about the government’s then-pending offer to the defense, Villafaña raised the victim consultation issue, advising that, “the agents and I have not reached out to the victims to get their approval, which as [CEOS Chief Oosterbaan] politely reminded me, is required under the law” and that “the [PBPD]¶

{sup}288 Villafaña could not recall the specific date of the meeting, but Menchel left the USAO on August 3, 2007.¶

{sup}289 Villafaña also recalled Menchel raising a concern that “telling them about the negotiations could cause victims to exaggerate their stories because of their desire to obtain damages from Epstein.”¶

{sup}290 In commenting on OPR’s draft report, Menchel’s counsel reiterated his contention that Villafaña’s claim about a meeting involving Menchel in which she was instructed not to consult with victims was inaccurate and inconsistent with other evidence. OPR carefully considered the comments but did not conclude that the evidence to which Menchel’s attorney pointed necessarily refuted Villafaña’s assertion that she had received an instruction from a supervisor not to inform victims about the plea negotiations. However, it is also true that OPR did not find any reference in the emails and other documents dated before the NPA was signed to a meeting at which victim consultation was discussed or to a specific instruction not to consult with the victims. This is one of several events about which Menchel and Villafaña disagreed, but given OPR’s conclusion that the Department did not require prosecutors to consult with victims before charges were brought, OPR does not reach a conclusion regarding the alleged meeting and instruction.¶

Chief wanted to know if the victims had been consulted about the deal.”{sup}291 Sloman forwarded this email to Acosta. Villafaña recalled that Sloman responded to her email by telephone, possibly after he had spoken to Acosta, and stated, “[Y]ou can’t do that now.” Villafaña did not recall Sloman explaining at the time the reason for that instruction.¶

Villafaña told OPR that shortly before the NPA was signed, Sloman told her, “[W]e’ve been advised that … pre-charge resolutions do not require victim notification.” Sloman did not recall any discussions, before the NPA was signed, about contacting the victims or conferring with them regarding the potential resolution of the case. Sloman told OPR that he “did not think that we had to consult with victims prior to entering into the NPA,” and “we did not have to seek approval from victims to resolve a case. We did have an obligation to notify them of the resolution in … filed cases.” Sloman said that no one other than Villafaña raised the notification issue, and because the USAO envisioned a state court resolution of the matter, Sloman “did not think that we had to consult with victims prior to entering into the NPA.” Lourie told OPR that he had no memory of Villafaña being directed not to speak to the victims about the NPA.{sup}292 Similarly, the attorney who assumed Lourie’s supervisory duties after Lourie transitioned to his detail in the Department told OPR that he did not recall any discussions regarding victim notification and he “assumed that was being handled.”{sup}293¶

Acosta did not recall the September 6, 2007 email, but told OPR that “there is no requirement to notify [the victims], because it’s not a plea, it’s deferring in favor of a state prosecution.” Acosta told OPR that he could not recall any “pre-NPA discussions” regarding victim notification or any particular concern that factored into the decision not to consult with the victims before entering into the NPA.{sup}294 Ultimately, Acosta acknowledged to OPR, “[C]learly, given the way it’s played out, it may have been much better if we had [consulted with the victims].”¶

CEOS Chief Oosterbaan told OPR that he disagreed with the USAO’s stance that the CVRA did not require pre-charge victim consultation, but in his view the USAO “posture” was not “an abuse of discretion” or “an ethical issue,” but rather reflected a “serious and legitimate¶

{sup}291 Villafaña told OPR that she referred to Oosterbaan in the email because “he was the head of CEOS and because I think they were tired of hearing me nag them [to notify the victims].” As previously noted, Villafaña’s statement that victim approval had to be obtained was incorrect. Even when applicable, the CVRA only requires consultation with victims, not their approval of a plea agreement. Moreover, Villafaña’s comments concerning the pre-charge application of the USAO’s CVRA obligation to consult with the victims appear at odds with her statement to OPR that the CVRA applied to the USAO only after a defendant was charged and that she did not intend to activate the USAO’s CVRA obligations when she sent letters to victims in August 2006.¶

{sup}292 Lourie noted that during this period, he had left Florida and was no longer the supervising AUSA in the office, but was “help[ing] [] out” from offsite because he had “historical knowledge” of the case.¶

{sup}293 The AUSA who for a time served as Villafaña’s co-counsel on the Epstein investigation similarly did not “know anything about” discussions in the USAO regarding the need to inform victims of the likely disposition of the case. The AUSA stated that he stopped working on the case “months earlier” and that he “didn’t have anything to do with the [NPA] negotiations.”¶

{sup}294 Villafaña told OPR that she was not aware of any “improper pressure or promise made to [Acosta] in order to … instruct [her] not to make disclosures to the victim[s].”¶

disagreement” regarding the CVRA’s requirements.{sup}295 Oosterbaan’s disagreement was based on policy considerations, and he told OPR that “from a policy perspective,” CEOS would not “take a position that you wouldn’t consult with [the victims].” Oosterbaan also told OPR that whether or not the law required it, the victims should have been given an opportunity “to weigh in directly,” but he did not fault the USAO’s motivations for failing to provide that opportunity:¶

The people I know, Andy [Lourie], Jeff [Sloman], … were trying to do the right thing… . [T]hey weren’t acting unethically. I just disagree with the outcome … but the point is they weren’t trying … to do anything improper … it was more of this question of … you can let the victims weigh in on this, you can get their input on this and maybe it doesn’t sway you. You still do what you’re going to do but … it’s hard to say it was a complete, completely clean exercise of … prosecutorial discretion when [the USAO] didn’t really know what [the victims] would say.¶

Sloman told OPR, “I don’t think we had a concern about entering into the NPA at that point in terms of notifying victims… . I was under the perception that once the NPA was entered into and [Epstein] was going to enter a guilty plea in state court that we were going to notify the victims.”¶

VII. SEPTEMBER 24, 2007 – JUNE 30, 2008: AFTER THE NPA IS SIGNED, THE USAO MAKES VARIOUS VICTIM NOTIFICATION DECISIONS¶

The contemporaneous emails make clear that once the NPA was signed, Villafaña and the case agents planned to inform the victims about the resolution of the federal investigation. However, the emails also show that the USAO was unclear about how much information could be given to the victims in light of the NPA’s nondisclosure provision and consulted with Epstein’s defense counsel regarding victim notifications.{sup}296 As a result, although the expectation in the USAO was that the victims would be informed about the NPA, the monetary damages provision, and the state plea, the USAO became entangled in more negotiations with the defense attorneys, who strongly objected to the government’s notification plan. In addition, Villafaña and the case agents grew concerned that notifying the victims about the NPA monetary damages provision would damage the victims’ credibility if Epstein breached the NPA and the case went to trial. In the end, Acosta decided to defer to the State Attorney’s discretion whether to notify the victims about the state plea, and information about the NPA and the monetary damages provision was not provided to victims until after Epstein pled guilty in June 2008.¶

{sup}295 Oosterbaan stated that, in retrospect, “maybe I should have been more aggressive with how … I dealt with [the USAO].”¶

{sup}296 The NPA nondisclosure provision stated: “The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure.”¶

A. September — October 2007: The Case Agents Notify Some Victims about the NPA, but Stop When the Case Agent Becomes Concerned about Potential Impeachment¶

In transmitting the signed NPA to Villafalia on September 24, 2007, defense attorney Lefkowitz asked Villafaha to “do whatever you can to prevent [the NPA] from becoming public.”’ Villafana forwarded this email to Acosta, Lourie, and the new West Palm Beach manager noting that, “I don’t intend to do anything with it except put it in the case file.” Acosta responded that he “thought the [NPA] already binds us not to make [it) public except a uired by law or [FOIA]” and noted that because the USAO would not proactively info th media about the NPA, “this is the State Attorney[s]s show.” Acosta added, “In other w w ore does he want?” Villafana responded, “My guess is that if we tell anyone else (Ii olice chief or FBI or the girls), that we ask them not to disclose.” Lourie agreed, notin: really is no reason to tell anyone all the details of the non pros or provide a copy. sT Chief was only concerned that he not get surprised by all this..” 299 Acosta resporniat would set up a call on September 26, 2007, to talk “about who we can tell and how M VI 3¶

Also on September 24, 2007, Villafaha emailed the n ea? t Palm Beach manager to inform him that once the attorney representative was appointed for e victims, she planned to “meet with the girls myself to explain how the system [for obtainin eller under 18 U.S.C. § 2255] will work.” Villafaria also emailed Lefkowitz statin that she planned to discuss with him “what I can tell [the attorney representative) and the Lefkowitz that her office “is telling Chief Reiter also provided Lefkowitz with a list of potenti and advocated for an attorney representativ4o w abed the agreement,” and she assured sclose the outcome to anyone.” Villafaha for the attorney representative position d minimize press coverage of the matter.¶

On September 26, 2007, Vill ed Lefkowitz to request guidance on informing the victims about the NPA: “Can y e a call . I am meeting with the agents and want to give them their marching ord i what they can tell the girls.” Villafaha told OPR that because the government an the d se had not agreed on the attorney representative for the victims, she reached out to de nse at the direction of either Acosta or Sloman in order to coordinate how to inf the vi ms about the resolution of the case and the fact that there would be an attorney to assis n recovering monetary damages from Epstein. Villafafia told OPR that the defenseytispon d to her email by complaining to her supervisors that she should not be¶

assured Lefkowitz that the NPA “would not be made public or filed with the Court, but it would case file. It probably would be subject to a FOIA request, but it is not something that we would ut compulsory process.”¶

Acosta told OPR that he believed that the NPA “would see the light of day” because the victims would have to “hear about (their § 2255 rights) from somewhere” and “given the press interest, eventually this would be FOIA’d.”¶

{sup}:\$9 Lourie told OPR that the § 2255 provisions of the NPA “that benellued the victims were there for the victims to take advantage of… and they did. How… they were going to receive that information and when they were going to receive it is a different question, but there’s no … issue with the fact that they were going to get that information?”¶

{sup}300OPR was unable to determine whether the call took place.¶

involved in such notifications. According to Villafaña, Sloman then directed her to have the case agents make the victim notifications.¶

Accordingly, Villafaña directed the case agents to “meet with the victims to provide them with information regarding the terms of the [NPA] and the conclusion of the federal investigation.” The case agent told OPR, “[T]here was a discussion that [REDACTED] and I had as to … how we would tell them, and what we would tell them, and what that was I don’t recall, but it was the terms of the agreement.” Villafaña believed that if “victims were properly notified of the terms [of the NPA] that applied to them, regarding their right to seek damages from [Epstein], and he paid those damages, that the rest of the [NPA] doesn’t need to be disclosed.” Villafaña “anticipated that [the case agents] would be able to inform the victims of the date of the state court change of plea [hearing], but that date had not yet been set by state authorities at the time the first victims were notified [by the FBI].” Villafaña told OPR that it was her belief that because the USAO had agreed to a confidentiality clause, the government could not disclose the NPA to the general public, but victims could be informed “because by its terms they needed to be told what the agreement was about.” Villafaña told OPR that no one in her supervisory chain expressed a concern that if victims learned of the NPA, they would try to prevent Epstein from entering a plea.¶

Within a week after the NPA was signed, news media began reporting that the parties had reached a deal to resolve the Epstein case. For example, on October 1, 2007, the New York Post reported that Epstein “has agreed to plead guilty to soliciting underage prostitutes at his Florida mansion in a deal that will send him to prison for about 18 months,” and noted that Epstein would plead guilty in state court and that “the feds have agreed to drop their probe into possible federal criminal violations in exchange for the guilty plea to the new state charge.”{sup}301¶

The case agent recalled informing some victims that “there was an agreement reached” and “we would not be pursuing this federally.” In October 2007, for example, the case agents met with victim [REDACTED], “to advise her of the main terms of the Non-Prosecution Agreement.” According to the case agent, during that meeting, the case agents told [REDACTED] “that an agreement had been reached, Mr. Epstein was going to plead guilty to two state charges, and there would not be a federal prosecution.”{sup}302 However, in a declaration filed in 2015 in the CVRA litigation, [REDACTED] described the conversation differently:¶

[T]he agents explained that Epstein was also being charged in State court and may plea [sic] to state charges related to some of his other victims. I knew that State charges had nothing to do with me.¶

{sup}301 Dan Mangan, “‘Unhappy Ending’ Plea Deal—Moneyman to Get Jail For Teen Sex Massages,” New York Post, Oct. 1, 2007. See also “Model Shop Denies Epstein Tie,” New York Post, Oct. 6, 2007; “Andrew Pal Faces Sex List Shame,” Mail on Sunday, Oct. 14, 2007; “Epstein Eyes Sex-Rap Relief,” New York Post, Oct. 9, 2007; “Sex Case ‘Victims’ Lining Up,” New York Post “Page Six,” Oct. 15, 2007; Dareh Gregorian and Mathew Nestel, “I Was Teen Prey of Pervert Tycoon,” New York Post, Oct. 18, 2007. The following month, the Palm Beach Post reported the end of the federal investigation as well. See “Epstein Has One Less Worry These Days,” Palm Beach Post, Nov. 9, 2007; “How Will System Judge Palm Beach Predator?,” Palm Beach Post “Opinion,” Nov. 16, 2007.¶

{sup}302 The co-case agent recalled meeting with the victims about the resolution of the case, but could not recall the specifics of the discussions.¶

During this meeting, the Agents did not explain that an agrepment had already been signed that precluded any prosecution of Epstein for federal charges against me. I did not get the opportunity to meet or confer with the prosecuting attorneys about any potential federal deal that related to me or the crimes committed against me.¶

My understanding of the agents’ explanation was that the federal investigation would continue. I also understood that my own case would move forward towards prosecution of Epstein.¶

In addition, the case agent spoke to two other victims and relayed th s ’ , Villafana in an email: s to¶

Jane Doe #14 asked me why [Epstein] was receiving such a It jail sentence and Jane Doe #13 has asked for our Victi coordinator to get in touch with her so she can receive came uch needed [p]rofessional counseling. Other than that the .once was filled with emotion and grateful to the F thorities for pursuing justice and not giving up.303

¶

The case agent told OPR that when she informed one t e ims, that individual cried and expressed “a sense of relief.” Counsel for “Jane D 1 of OPR that while his client recalled meeting with the FBI on a number of occasions, s of all receiving any information about Epstein’s guilty plea. In a letter to OPR, “Jan # ” attorney stated that although her client recalled speaking with an FBI agent, she not about the NPA or informed that Epstein would not face federal charges in exch or tate court plea.¶

After meeting with these s, the FBI case agent became concerned that, if Epstein breached the NPA and tffb, t to federal trial, the defense could use the victims’ knowledge of the NPA’s mo wary ges provision as a basis to impeach the victims.30’ The case agent explained to OP hat e became “uncomfortable” talking to the victims about the damages provision, and that e lead investigator, “if we did end up going to trial … [if] Mr. Epstein breached mat I would be on the stand” testifying that “I told every one of these girls that they co Id sue r. pstein for money, and I was not comfortable with that, I didn’t think it was right.”¶

, co-case agent told OPR, “[T]hat’s why we went back to [Villafana] and s comfortable now putting this out there … because … it’s likely that [the case agent] going to have to take the stand if it went to trial, and this could be a problem.” Vt Id OPR that the case agents were concerned they would be accused of “offering a bribe¶

The ease agent did not record any of the victim notifications in interview reports, because “it wasn’t an interview of them, it was a notification… . Ulf there was something .. . relevant ‘that’ came up pertaining to the investigation, or something that I thought was noteworthy … I might have [recorded it in an interview reponr¶

JO1 Within limitations set by the Federal Rules of Evidence, a defendant nuy attack the credibility of a witness through evidence of bias, which may include the witness having received money, or expecting to receive money, froin the government, the defendant, or other sources as a result of the witness’s allegations or testimony.¶

for [victims] to enhance their stories” and that the defense would try to have Villafaña or the case agents removed from the case.¶

Both the lead case agent and Villafaña told OPR that after the FBI raised with Villafaña the concern that notifying the victims would create potential impeachment material in the event of a breach and subsequent trial, they contacted the USAO’s Professional Responsibility Officer for advice. Villafaña recalled that during a brief telephone consultation, the Professional Responsibility Officer advised her and the case agent that “it’s not really that big a concern, but if you’re concerned about it then you should stop making the notification.”{sup}305 In her 2017 CVRA declaration, the case agent stated that after conferring with the USAO, the case agents stopped notifying victims about the NPA.¶

B. October 2007: Defense Attorneys Object to Government Victim Notifications¶

While the case agents and Villafaña considered the impact that notifying the victims about the resolution of the case might have on a potential trial, defense counsel also raised concerns about what the victims could be told about the NPA. As discussed in Chapter Two, after the NPA was signed on September 24, 2007, the USAO proposed using a special [REDACTED] to select the attorney representative for the victims, which led to further discussions about the § 2255 provision. On October 5, 2007, when defense attorney Lefkowitz sent Villafaña a letter responding to the USAO’s proposal to use a special [REDACTED], he cautioned that “neither federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the case” because such communications would “violate the confidentiality of the agreement” and would prevent Epstein from having control over “what is communicated to the identified individuals at this most critical stage.” Lefkowitz followed this communication with an October 10, 2007 letter to Acosta, arguing that “[n]either federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the case.”{sup}306 Rather, Lefkowitz wanted to “participate in crafting a mutually acceptable communication to the identified individuals.”¶

On October 23, 2007, Villafaña raised the issue of victim notification with Sloman, stating:¶

We also have to contact the victims to tell [them] about the outcome of the case and to advise them that an attorney will be contacting them regarding possible claims against Mr. Epstein. If we don’t do that, it may be a violation of the Florida Bar Rules for the selected attorney to ‘cold call’ the girls.¶

As discussed in greater detail in Chapter Two, on October 23, 2007, Lefkowitz sent Acosta a letter stating that Epstein expected to enter a guilty plea in state court on November 20, 2007,¶

{sup}305 The Professional Responsibility Officer told OPR that he did not recall the case agent contacting him about victim notification, nor did he recall being involved in the Epstein matter before the CVRA litigation was instituted in July 2008 and he was assigned to handle the litigation. Villafaña told OPR that they consulted the Professional Responsibility Officer over the telephone, the call took no more than “five minutes,” and the Professional Responsibility Officer had no other exposure to the case and thus “wouldn’t have [any] context for it.”¶

{sup}306 Lefkowitz also argued that direct contact with the victims could violate grand jury secrecy rules.¶

and thanking Acosta for agreeing on October 12, 2007, not to “contact any of the identified individuals, potential witnesses, or potential civil claimants and their respective counsel in this matter.”{sup}307 Shortly thereafter, Sloman drafted a response to Lefkowitz’s letter, which Acosta revised to clarify the “inaccurate” representations made by Lefkowitz, in particular noting that Acosta did not agree to a “gag order” with regard to victim contact. The draft response, as revised by Acosta, stated:¶

You should understand, however, that there are some communications that are typical in these matters. As an example, our Office has an obligation to contact the victims to inform them that either [the Special [redacted]], or his designee, will be contact[ing] them. Rest assured that we will continue to treat this matter as we would any similarly situated case.{sup}308¶

In a November 5, 2007 letter, Sloman complained to Lefkowitz that private investigators working for Epstein had been contacting victims and asking whether government agents had discussed financial settlement with them. Sloman noted that the private investigators’ “actions are troublesome because the FBI agents legally are required to advise the victims of the resolution of the matter, which includes informing them that, as part of the resolution, Mr. Epstein has agreed to pay damages in some circumstances.” The same day, Villafaña emailed Sloman expressing her concern that “if we [file charges] now, cross-examination will consist of ‘and the government told you that if Mr. Epstein is convicted, you are entitled to a large amount of damages, right?’”{sup}309¶

C. October – November 2007: The FBI and the USAO Continue to Investigate, and the FBI Sends a Notice Letter to One Victim Stating That the Case is “Under Investigation”¶

Although Villafaña and the FBI case agents decided to stop informing victims about the NPA, the FBI continued its investigation of the case, which included locating and interviewing potential victims. In October and November 2007, the FBI interviewed 12 potential new victims, 8 of whom had been identified in a “preliminary” victim list in use at the time Epstein signed the¶

{sup}307 Villafaña later emailed Sloman stating that she planned to meet with the case agents to have a “general discussion about staying out of the civil litigation.”¶

{sup}308 Sloman’s draft also stated that Acosta had informed the defense in a previous conference call that the USAO would not accept a “gag order.” OPR recovered only a draft version of the communication and was unable to find any evidence that the draft letter was finalized or sent to defense counsel.¶

{sup}309 Subsequent records also referred to the prosecutors’ concerns about creating impeachment evidence and that such concerns played a role in their decision not to notify victims of the NPA until after Epstein pled guilty. In August 2008, the AUSA handling the CVRA litigation emailed Villafaña, Acosta, and Sloman expressing his understanding that the “victims were not consulted [concerning the NPA] … because [the USAO] did not believe the [CVRA] applied.” Acosta responded: “As I recall, we also believed that contacting the victims would compromise them as potential witnesses. Epstein argued very forcefully that they were doing this for the money and we did not want to discuss liability with them, which was [a] key part of [the] agree[ment].”¶

NPA.31° The FBI reports of the victim interviews do not mention the NPA or indicate that the victims were asked for their input regarding the resolution of the case. Vil:lafarla acknowledged that she and the case agents did not tell any of the “new” post-NPA-signing victims about the agreement because “at that point we believed that the NPA was never going to be performed and that we were in fact going to be [charging] Mr. Epstein.”¶

On October 12, 2007, the FBI Victim Specialist sent a VNS form notice letter to a victim the casd agents had interviewed two days earlier. This letter was identical to the VNS form notice letter the FBI Victim Specialist sent to other victims before the NPA was signed, desc ing the case as “under investigation” and requesting the victim’s “patience.” The letter lis t e eight CVRA rights, but made no mention of the NPA or the § 2255 provision. Villafan I she was unaware the FBI sent the letter, but she knew “there were efforts to make hat we had identified all victims of the crimes under investigation.” In response to OPR’ about the accuracy of the FBI letter’s characterization of the case as “under inves illafana told OPR that the NM required Epstein to enter a plea by October 26, 2 this point we weren’t actively looking for additional charges,” but “the investi wasn’t technically suspended until he completed all the terms of the NPA.”¶

D. The USAO Informs the Defense That It about Epstein’s State Plea Hearing Investigation, but the Defense Stron Notify Victims by Letter esolution of the Federal to the Notification Plan¶

In anticipation of Epstein’s state court p , a reported on November 16, 2007, to Acosta, Sloman, and other supervisors tha e d ed, from FBI agents who met with Assistant State Attorney Belohlavek, that t e to torney’s Office wanted the USAO to notify victims of the state plea hearing.¶

[Belohlavek] woul s to do the victim notifications. The State does no pr ure (like we do federally) where the Court has top ovide a ante room for victims who want to attend judicial proce n so I do not know how many victims will actuall want to present.3”

¶

Belohlavek told a PR tat he did not recall the conversation referenced by the FBI nor any coordination een he office and federal officials to contact or notify victims about Epstein’s state plea¶

th writs ber 19, 2007, Villafafia decided that to avoid any misconduct accusations from out the information given to victims, she “would put the victim notification in e provided Sloman with a draft victim notification letter, in which among other things,¶

{sup}310Not all the individuals interviewed qualified for inclusion on the victim list. For example, ore would not cooperate with investigators; a second claimed to have simply massaged Epstein with no sexual activity; and a third claimed she had no contact with Epstein¶

{sup}31Villafana told OPR that she understood the state took the position that because “there was eitheronly one or two victims involved in their case,” they “could not do victim notifications to all of the victims.”¶

she would inform victims of the terms of the resolution of the federal case, including Epstein’s agreement to plead guilty to state charges and serve 18 months in county jail, and the victims’ ability to seek monetary damages against Epstein. The letter also would invite victims to appear at the state court hearing and make a statement under oath or provide a written statement to be filed by the State Attorney’s Office. Sloman and Villafaña exchanged edits on the draft victim notification letter, and Villafaña also informed Sloman that “[t]here are a few girls who didn’t receive the original letters, so I will need to modify the introductory portion of the letter for those.”{sup}312¶

Sloman informed Lefkowitz of the government’s need to meet its “statutory obligation (Justice for All Act of 2004) to notify the victims of the anticipated upcoming events and their rights associated with the agreement” and his intent to “notify the victims by letter after COB Thursday, November 29.” Lefkowitz objected to the proposal to notify the victims, asserting that it was “incendiary and inappropriate” and not warranted under the Justice for All Act of 2004. He argued that the defense “should have a right to review and make objections to that submission prior to it being sent to any alleged victims.” He also insisted that if any notification letters were sent to “victims, who still have not been identified to us, it should happen only after Mr. Epstein has entered his plea” and that the letter should come from the attorney representative rather than the government. On November 28, 2007, at Sloman’s instruction, Villafaña provided Lefkowitz with the draft victim notification letter, which would advise victims that the state court plea was to occur on December 14, 2007.{sup}313¶

In a November 29, 2007 letter to Acosta, Lefkowitz strongly objected to the proposed draft notification letter, arguing that the government was not obligated to send any letter to victims until after Epstein’s plea and sentencing. Lefkowitz also contended that the victims had no right to appear at Epstein’s state plea hearing and sentencing or to provide a written statement for such a proceeding. In a November 30, 2007 reply letter to Lefkowitz, Acosta did not address the substance of Lefkowitz’s arguments, but accused the defense team of “in essence presenting collateral challenges” delaying effectuation of the NPA, and asserted that if Epstein was dissatisfied with the NPA, “we stand ready to unwind the Agreement” and proceed to trial. Shortly thereafter, Acosta informed defense counsel Starr by letter that he had directed prosecutors “not to issue victim notification letters until this Friday [December 7] at 5 p.m., to provide you with time to review these options with your client.” In the letter, Acosta also refuted defense allegations that Villafaña had acted improperly by informing the victims of the potential for receiving monetary damages, stating that “the victims were not told of the availability of Section 2255 relief during the investigation phase of this matter.”¶

On December 5, 2007, Starr and Lefkowitz sent a letter to Acosta, with copies to Sloman and Assistant Attorney General Fisher, “reaffirm[ing] the NPA, but taking “serious issue” with¶

{sup}312 On November 28, 2007, two months after the NPA was signed, the lead case agent informed Villafaña that only 15 of the then-known victims had received victim notification letters from either the FBI or the USAO. On December 6, 2007, the lead case agent reported to Villafaña that she was “still holding many of the original V/W letters addressed to victims from the USAO.”¶

{sup}313 Villafaña understood the state prosecutors had set the December 14, 2007 date, and emailed them for confirmation, stating, “[I]f the matter is set for the 14th, please let me know so I can include that in my victim notifications.”¶

the USAO’s interpretation of the agreement and “the use of Section 2255.” The Starr and Lefkowitz letter asserted it was “wholly inappropriate” for the USAO to send the proposed victim notification letter “under any circumstances,” and “strongly urg[ed]” Acosta to withhold the notification letter until after the defense was able “to discuss this matter with Assistant Attorney General Fisher.”¶

The following day, Sloman sent a letter to Lefkowitz, with copies to Acosta and Villafaña, asserting that the VRRA obligated the government to notify victims of the 18 U.S.C. § 2255 proceedings as “other relief” to which they were entitled. Sloman also stated that the VRRA obligated the government to provide the victims with information concerning restitution to which they may be entitled and “the earliest possible” notice of the status of the investigation, the filing of charges, and the acceptance of a plea.{sup}314 (Emphasis in original). Sloman added:¶

Just as in 18 U.S.C. § 3771 [the CVRA], these sections are not limited to proceedings in a federal district court. Our Non-Prosecution Agreement resolves the federal investigation by allowing Mr. Epstein to plead to a state offense. The victims identified through the federal investigation should be appropriately informed, and our Non-Prosecution Agreement does not require the U.S. Attorney’s Office to forego [sic] its legal obligations.{sup}315¶

Sloman also addressed the defense objection to advising the victims to contact Villafaña or the FBI case agent with questions or concerns: “Again, federal law requires that victims have the ‘reasonable right to confer with the attorney for the Government in this case.’” Sloman advised the defense: “The three victims who were notified prior to your objection had questions directed to Mr. Epstein’s punishment, not the civil litigation. Those questions are appropriately directed to law enforcement.”¶

Along with this letter, Sloman forwarded to Lefkowitz for comment a revised draft victim notification letter that was substantially similar to the prior draft provided to the defense. The letter stated that “the federal investigation of Jeffrey Epstein has been completed,” Epstein would plead guilty in state court, the parties would recommend 18 months of imprisonment at sentencing, and Epstein would compensate victims for damage claims brought under 18 U.S.C. § 2255. The letter provided specific information concerning the upcoming change of plea hearing:¶

As I mentioned above, as part of the resolution of the federal investigation, Mr. Epstein has agreed to plead guilty to state charges. Mr. Epstein’s change of plea and sentencing will occur on December 14, 2007, at ___ a.m., before Judge Sandra K. McSorley,¶

{sup}314 See 42 U.S.C. § 10607(c)(1)(B) and (c)(3).¶

{sup}315 Emphasis in original. Sloman also stated that the USAO did not seek to “federalize” a state plea, but “is simply informing the victims of their rights.” Villafaña informed OPR that Sloman approved and signed the letter, but she was the primary author of the document. OPR notes that Villafaña was the principal author of most correspondence in the Epstein case, and that following the signing of the NPA, regardless of whether the letter went out with her, Sloman’s, or Acosta’s signature, the three attorneys reviewed and edited drafts of most correspondence before a final version was sent to the defense.¶

in Courtroom 11F at the Palm Beach County Courthouse, 205 North Dixie Highway, West Palm Beach, Florida. Pursuant to Florida Statutes Sections 960.001(1)(k) and 921.143(1), you are entitled to be present and to make a statement under oath. If you choose, you can submit a written statement under oath, which may be filed by the State Attorney’s Office on your behalf. If you elect to prepare a written statement, it should address the following:¶

the facts of the case and the extent of any harm, including social, psychological, or physical harm, financial losses, loss of earnings directly or indirectly resulting from the crime for which the defendant is being sentenced, and any matter relevant to an appropriate disposition and sentence. Fl[a]. Stat. [§] 921.143(2).¶

Sloman told OPR that he was “proceeding under the belief that we were going to notify [the victims], even though it wasn’t a federal case. Whether we were required or not.” Sloman also told OPR that while “we didn’t think that we had an obligation to send them victim notification letters … I think … [REDACTED] and … the agents … were keeping the victims apprised at some level.”¶

On December 7, 2007, Villafaña prepared letters containing the above information to be sent to multiple victims and emailed Acosta and Sloman, requesting permission to send them.{sup}316 Sloman, however, had that day received a letter from [REDACTED], advising that Epstein’s plea hearing was scheduled for January 4, 2008, and requesting that the USAO “hold off” sending the victim notification letters until “we can further discuss the contents.” Also that day, Starr and Lefkowitz submitted to Acosta the two lengthy “independent ethics opinions” supporting the defense arguments against the federal investigation and the NPA’s use of 18 U.S.C. § 2255. Sloman responded to Villafaña’s request with an email instructing her to “Hold the letter.”{sup}317 Sloman told OPR that he “wanted to push the [victim notification] letter out,” but his instruction to Villafaña was “the product of me speaking to somebody,” although he could not be definitive as to whom. Sloman further told OPR that once the NPA “looked like it was going to fall apart,” the USAO “had concerns that if we g[a]ve them the victim notification letter … and the deal fell apart, then the victims would be instantly impeached by the provision that you’re entitled to monetary compensation.”¶

On December 10, 2007, Villafaña contacted the attorney who at the time represented the victim who later became CVRA petitioner “Jane Doe #2” to inform him that she “was preparing victim notification letters.” In her 2017 declaration filed in the CVRA litigation, Villafaña noted that she reached out to Jane Doe #2’s counsel, despite the fact that the USAO no longer considered¶

{sup}316 The FBI case agent had emailed Villafaña the day before stating, “The letter that is currently being revised needs to take into account that several victims have never been notified by your office or mine.” The case agent also stated, “I do not feel that [the defense] should have anything to do with the drafting or issuing of this letter. My primary concern is that we meet our federal obligations to the victims in accordance with federal law.”¶

{sup}317 Villafaña told OPR that she did not recall asking Sloman for an explanation for not sending the letters; rather, she “just remember[ed] putting them all in the Redweld and putting them in a drawer and being disgusted.”¶

her a victim for purposes of the federal charges, and continued to treat her as a victim because she wanted “to go above and beyond in terms of caring for the victims.”{sup}318¶

E. December 19, 2007: Acosta Advises the Defense That the USAO Will Defer to the State Attorney the Decision Whether to Notify Victims of the State Plea Hearing, but the USAO Would Notify Them of the Federal Resolution, “as Required by Law”¶

On December 11, 2007, Starr transmitted to Acosta two lengthy submissions authored by Lefkowitz presenting substantive challenges to the NPA and to “the background and conduct of the investigation” into Epstein. Regarding issues relevant to victim notification, in his transmittal letter, Starr asserted that the “latest episodes involving [§] 2255 notification to the alleged victims put illustratively in bold relief our concerns that the ends of justice, time and time again, are not being served.” By way of example, Starr complained the government had recently inappropriately provided “oral notification of the victim notification letter” to one girl’s attorney, even though it was clear from the girl’s recorded FBI interview that she “did not in any manner view herself as a victim.”¶

In his submissions, Lefkowitz argued that the government was not required to notify victims of the § 2255 provision:¶

Villafaña’s decision to utilize a civil remedy statute in the place of a restitution fund for the alleged victims eliminates the notification requirement under the Justice for All Act of 2004, a federal law that requires federal authorities to notify victims as to any available restitution, not of any potential civil remedies. Despite this fact, [she] proposed a Victims Notification letter to be sent to the alleged federal victims.¶

Lefkowitz also argued that a victim trust fund would provide a more appropriate mechanism for compensating the victims than the government’s proposed use of 18 U.S.C. § 2255, and a trust fund would not violate Epstein’s due process rights. Lefkowitz took issue with the government’s “assertion” that the USAO was obligated to send a victim notification letter to the alleged victims, or even that it was appropriate for the USAO to do so. Lefkowitz further argued that the government misinterpreted both the CVRA and the VRRA, because neither applied to a public, state court proceeding involving the entry of a plea on state charges.¶

In a letter from Villafaña to Lefkowitz, responding to his allegations that she had committed misconduct, she specifically addressed the “false” allegations that the government had¶

{sup}318 As noted previously, in April 2007, this victim gave a video-recorded interview to the FBI that was favorable to Epstein. Villafaña told OPR she was instructed by either Sloman or Acosta “not to consider [this individual] as a victim for purposes of the NPA because she was not someone whom the Office was prepare[d] to include in” a federal charging document. Accordingly, the victim who became “Jane Doe #2” was not included on the victim list ultimately furnished to the defense. The attorney who was representing this victim at the time of her FBI interview was paid by Epstein, and she subsequently obtained different counsel.¶

informed victims “of their right t to collect damages prior to a thorough investigation of their allegations against Mr. Epstein”:¶

None of the victims were informed of the right to sue under Section 2255 prior to the investigation of the claims. Three victims were notified shortly after the signing of the [NPA] of the general terms of that Agreement. You raised objections to any victim notification, and no further notifications were done. Throughout this process you have seen that I have prepared this case as though it would proceed to trial. Notifying the witnesses of the possibility of damages claims prior to concluding the matter by plea or trial would only undermine my case. If my reassurances are insufficient the fact that not a single victim has threatened to sue Mr. Epstein should assure you of the integrity of the investigation.¶

On December 14, 2007, Villafaña forwarded to Acosta the draft victim notification letter previously sent to the defense, along with two draft letters addressed to State Attorney Krischer; Villafaña’s transmittal email to Acosta had the subject line, “The letters you requested.” One of the draft letters to Krischer, to be signed by Villafaña, was to advise that the USAO had sent an enclosed victim notification letter to specified identified victims and referred to an enclosed “list of the identified victims and their contact information, in case you are required to provide them with any further notification regarding their rights under Florida law.”{sup}319 The second draft letter to Krischer, for Acosta’s signature, requested that Krischer respond to defense counsel’s allegations that the State Attorney’s Office was not comfortable with the proposed plea and sentence because it believed that the case should be resolved with probation and no sexual offender registration. OPR found no evidence that these letters were sent to Krischer.{sup}320¶

A few days later, in an apparent effort to move forward with victim notifications, Villafaña emailed Sloman, stating, “[Is there] anything that I or the agents should be doing?” Villafaña told Sloman that “[the FBI case agent] is all worked up because another agent and [a named AUSA] are the subject of an OPR investigation for failing to properly confer with and notify victims [in an unrelated matter]. We seem to be in a Catch 22.”{sup}321 OPR did not find a response to Villafaña’s email.¶

In their December 14, 2007 meeting with Acosta and other USAO personnel and in their lengthy follow-up letter to Acosta on December 17, 2007, Starr and Lefkowitz continued to press their objections to the USAO’s involvement in the Epstein matter. They requested that Acosta¶

{sup}319 The draft victim notification letter was identical to the draft victim notification letter sent to the defense on December 6, 2007, except that it contained a new plea date of January 4, 2008.¶

³²⁰ Moreover, the letters were not included in the publicly released State Attorney’s file, which included other correspondence from the USAO. See Palm Beach State Attorney’s Office Public Records/Jeffrey Epstein, available at http://sa15.org/stateattorney/NewsRoom/indexPR.htm.¶

{sup}321 OPR was unable to locate any records indicating that such allegations had ever been referred to OPR. Villafaña told OPR that “Catch 22” was a reference to instructions from supervisors “[t]hat we can’t go forward on” filing federal charges and “I was told not to do victim notifications and confer at the time.”¶

review the appropriateness of the potential federal charges and the government’s “unprecedentedly expansive interpretation” of 18 U.S.C. § 2255.¶

In a December 19, 2007 response to the defense team, Acosta offered to revise two paragraphs in the NPA to resolve “disagreements” with the defense and to clarify that the parties intended Epstein’s § 2255 liability to “place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less.” Acosta also advised that although the USAO intended to notify the victims of the resolution of the federal investigation, the USAO would leave to the State Attorney the decision whether to notify victims about the state proceedings:¶

I understand that the defense objects to the victims being given notice of [the] time and place of Mr. Epstein’s state court sentencing hearing. I have reviewed the proposed victim notification letter and the statute. I would note that the United States provided the draft letter to the defense as a courtesy. In addition, First Assistant United States Attorney Sloman already incorporated in the letter several edits that had been requested by defense counsel. I agree that [the CVRA] applies to notice of proceedings and results of investigations of federal crimes as opposed to the state crime. We intend to provide victims with notice of the federal resolution, as required by law. We will defer to the discretion of the State Attorney regarding whether he wishes to provide victims with notice of the state proceedings, although we will provide him with the information necessary to do so if he wishes.¶

Acosta told OPR that he “would not have sent this letter without running it by [Sloman], if not other individuals in the office,” and records show he sent a draft to Sloman and Villafaña. Acosta explained to OPR that he was not concerned about deferring to Krischer on the issue of whether to notify the victims of the state proceedings because he did not view it as his role, or the role of the USAO, “to direct the State Attorney’s Office on its obligations with respect to the state outcome.”{sup}322 Acosta further explained to OPR that despite the USAO’s initial concerns about the State Attorney’s Office’s handling of the Epstein case, he did not believe it was appropriate to question that office’s ability to “fulfill whatever obligation they have,” and he added, “Let’s not assume … that the State Attorney’s Office is full of bad actors.” Acosta told OPR that it was his understanding “that the victims would be aware of what was happening in the state court and have an opportunity to speak up at the state court hearing.” Acosta also told OPR that the state would¶

{sup}322 Sloman’s handwritten notes from a December 21, 2007 telephone conference indicate that Acosta asked the defense, “Are there concerns re: 3771 lang[uage],” to which Lefkowitz replied, “The state should have their own mechanism.” At the time of the Epstein matter, under the Florida Constitution, upon request, victims were afforded the “right to reasonable, accurate, and timely notice of, and to be present at” a defendant’s plea and sentencing. Fla. Const. art. I, § 16(b)(6). Similarly, pursuant to state statute, “Law enforcement personnel shall ensure” that victims are given information about “[t]he stages in the criminal or juvenile justice process which are of significance to the victim[.]” Fla. Stat. § 960.001(1)(a) (2007). Victims were also entitled to submit an oral or written impact statement. Fla. Stat. § 960.001(1)(k) (2007). Moreover, “in a case in which the victim is a minor child,” the guardian or family of the victim must be consulted by the state attorney “in order to obtain the views of the victim or family about the disposition of any criminal or juvenile case” including plea agreements. Fla. Stat. § 960.001(1)(g) (2007).¶

have “notified [the victims] that that was an all-encompassing plea, that that s state court sentence would also mean that the federal government was not proceeding.”¶

Sloman told OPR that he thought Acosta and Criminal Division Deputy Assistant Attorney General Sigal Mandelker had agreed that the decision whether to notify the victims of the state court proceedings should be “left to the state.”{sup}323 Mandelker, however, had no memory of advising Acosta to defer the decision to make notifications to the State Attorney, and she noted that the “correspondence [OPR] provided to me from that time period” discussing such a decision “demonstrates that all of the referenced language came from Mr. Acosta and/or his team, and that I did not provide, suggest, or edit the language.” Sloman told OPR that he initially believed that “the victims were going to be notified at some level, especially because they had restitution rights under § 2255”; but, his expectations changed after “there was an agreement made that we were going to allow the state, since it was going to be a state case, to decide how the victims were going to be notified.”¶

Assistant State Attorney Belohlavek told OPR that she did not at any time receive a victim list from the USAO. She further said she did not receive any request from the USAO with regard to contacting the victims.¶

In response to Acosta’s December 19, 2007 letter, Lefkowitz asserted that the FBI should not communicate with the victims, and that the state, not the USAO, should determine who can be heard at the sentencing hearing:¶

[Y]our letter also suggests that our objection to your Office’s proposed victims notification letter was that the women identified as victims of federal crimes should not be notified of the state proceedings. That is not true, as our previous letter clearly states. Putting aside our threshold contention that many of those to whom [CVRA] notification letters are intended are in fact not victims as defined in the Attorney General’s 2000 Victim Witness Guidelines—a status requiring physical, emotional or pecuniary injury of the [victim]—it was and remains our position that these women may be notified of such proceedings but since they are neither witnesses nor victims to the state prosecution of this matter, they should not be informed of fictitious “rights” or invited to make sworn written or in-court testimonial statements against Mr. Epstein at [REDACTED]. Villafaña repeatedly maintained they had the right to do. Additionally, it was and remains our position that any notification should be by mail and that all proactive efforts by the FBI to have communications with the witnesses after the execution of the Agreement should finally come to an end. We agree, however, with your December 19 modification of the previously drafted federal notification letter and agree that the¶

{sup}323 In his June 3, 2008 letter to Deputy Attorney General Mark Filip, Sloman wrote, “Acosta again consulted with DAAG Mandelker who advised him to make the following proposal [to defer notification to the State Attorney’s Office].” OPR found no other documentation relating to Mandelker’s purported involvement in the decision.¶

decision as to who can be heard at a state sentencing is, amongst many other issues, properly within the aegis of state decision making.324¶

Following a conversation between Acosti and Lefkowitz, in which Acosta asked that the defense clarify its positions on the USAO proposals regarding, among other things, notifications to the victims, Leflcowitz responded with a December 26, 2007 letter to Acosta, objecting again to notification of the victims. Lefkowitz argued that CVRA notification was not appropriate because the Attorney General Guidelines defined “crime victim” as a person harmed as a res It of an offense charged in federal district court, and Epstein had not been charged in f court. Nevertheless, Lefkowitz added that, despite their objection to CVRA notification •0 not object (as we made clear in our letter last week) that some form of notice be gi t the a eged victims.” Leflcowitz requested both that the defense be given an opportunity v any notice sent by the USAO, and that “any and all notices with respect to the alleged vi e offenses should be sent by the State Attorney rather than [the USAO1,” and at the USAO “should defer to the discretion of the State Attorney regarding all m with regard to those victims and the state proceedings.”¶

Months later, in April 2008, Epstein’s attorneys co Sloman and Villafafia committed professional miscon improper and unusual ‘victim notification letter’ to all; a letter to Mandelker that tening to send a “highly¶

F. January—June 2008: While the Defense Presses Its Appeal to the Department in an Effort to Undo the NP FRI and the USAO Continue Investigating Epstein¶

As described in Chapter Two of-this Report, from the time the NPA was signed through the end of June 2008, the defe employed various measures to delay, or avoid entirely, implementation of the NPA. y7 defense counsel’s advocacy resulted in the USA0’s decision to have the federal afresh. A review of the evidence was undertaken first by USA() Criminal Chief Senior and then, briefly, by an experienced CEOS trial attorney. A review of the cas ight of the defense challenges was then conducted by CEOS Chief Oosterbaan, in ation with his staff and with Deputy Assistant Attorney General Sigal Mandelker and Assist A omey General Alice Fisher, and then by the Office of the Deputy Attorney Gene Each iew took weeks and delayed Epstein’s entry of his state guilty plea.¶

AQI rt low, during that time, Villafafia and the FBI continued investigating and worki potential federal charges.¶

1. Villafafia Prepares to Contact Victims in Anticipation That Epstein Will Breach the NPA¶

On January 3, 2008, the local newspaper reported that Epstein’s plea conference in state court, at that point set for early January, had been rescheduled to March 2008, at which time he would plead guilty to felony solicitation of prostitution, and that “in exchange” for the guilty plea,¶

{sup}324The 2000 Guidelines were superseded by the 2005 Guidelines.¶

“federal authorities are expected to drop their probe into whether Epstein broke any federal laws.”{sup}325¶

Nevertheless, as Epstein’s team continued to argue to higher levels of the Department that there was no appropriate federal interest in prosecuting Epstein and thus no basis for the NPA, and with his attorneys asserting that “the facts had gotten better for Epstein,” Villafaña came to believe that Epstein would likely breach the NPA.{sup}326 In January 2008, Villafaña informed her supervisors that the FBI “had very tight contact with the victims several months ago when we were prepared to [file charges], but all the shenanigans over the past few months have resulted in no contact with the vast majority of the victims.” Villafaña then proposed that the FBI “re-establish contact with all the victims so that we know we can rely on them at trial.”{sup}327 Villafaña told OPR that at this point, “[w]hile the case was being investigat[ed] and prepared for indictment, I did not prepare or send any victim notification letters—there simply was nothing to update. I did not receive any victim calls during this time.”¶

2. The FBI Uses VNS Form Letters to Re-Establish Contact with Victims¶

On January 10, 2008, the FBI Victim Specialist mailed VNS generated victim notification letters to 14 victims articulating the eight CVRA rights and inviting recipients to update their contact information with the FBI in order to obtain current information about the matter.{sup}328 The case agent informed Villafaña in an email that the Victim Specialist sent a “standard form [FBI] letter to all the remaining identified victims.” These 2008 letters were identical to the FBI form letters the Victim Specialist had sent to victims between August 28, 2006, and October 12, 2007. Like those previous letters, most of which were sent before the NPA was signed on September 24, 2007, the 2008 letters described the case as “currently under investigation” and noted that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.” The letters also stated.¶

{sup}325 Michele Dargan, “Jeffrey Epstein Plea Hearing Moved to March,” Palm Beach Daily News “The Shiny Sheet,” Jan. 3, 2008.¶

{sup}326 Epstein’s attorneys used discovery proceedings in the state case to depose federal victims, and as they learned unflattering details or potential impeachment information concerning likely federal victims, they argued for the exclusion of those victims from the federal case. For example, defense attorneys questioned one victim as to whether the federal prosecutors or FBI agents told her that she was entitled to receive money from Epstein. See Exhibit 9 to Villafaña June 2, 2017 Declaration: Deposition of [REDACTED], State v. Epstein, Case No. 2006-CF-9454, at 44, 50, 51 (Feb. 20, 2008). One victim’s attorney told OPR that the defense attorneys tried to “smear” victims by asking highly personal sexual questions about “terminations of pregnancies … sexual encounters … masturbation.” Epstein’s attorney used similar tactics in questioning victims who filed civil cases against their client. For example, the Miami Herald reported that, “One girl was asked about her abortions, and her parents, who were Catholic and knew nothing about the abortions, were also deposed and questioned.” See Julie [REDACTED], “Perversion of Justice: Cops Worked to Put a Serial Sex Abuser in Prison. Prosecutors Worked to Cut Him a Break,” Miami Herald, Nov. 28, 2018.¶

{sup}327 Villafaña also told her supervisors that she wanted the FBI to interview two specific victims.¶

{sup}328 The Victim Specialist later generated an additional letter dated May 30, 2008. After Epstein’s June 30, 2008 state court pleas, she sent out substantially similar notification letters to two victims who resided outside of the United States.¶

We will make our best efforts to ensure you are accorded the rights described. Most of these rights pertain to events occurring after the arrest or indictment of an individual for the crime, and it will become the responsibility of the prosecuting United States Attorney’s Office to ensure you are accorded those rights. You may also seek the advice of a private attorney with respect to these rights.¶

The FBI case agent informed Villafaña that the Victim Specialist sent the letters and would follow up with a phone call “to offer assistance and ensure that [the victims] have received their letter.” A sample letter is shown on the following pages.¶

Villafaña told OPR that she did not recall discussing the content of the letters at the time they were sent to the victims, or reviewing the letters until they were collected for the CVRA litigation, sometime after July 2008. Rather, according to Villafaña, “The decision to issue the letter and the wording of those letters were exclusively FBI decisions.” Nevertheless, Villafaña asserted to OPR that from her perspective, the language regarding the ongoing investigation “was absolutely true and, despite being fully advised of our ongoing investigative activities, no one in my supervisory chain ever told me that the case was not under investigation.” Villafaña identified various investigative activities in which she engaged from “September 2007 until the end of June 2008,” such as collecting and reviewing evidence; interviewing new victims; re-interviewing victims; identifying new charges; developing new charging strategies; drafting supplemental prosecution memoranda; revising the charging package; and preparing to file charges. Similarly, the FBI case agent told OPR that at the time the letters were sent the “case was never closed and the investigation was continuing.” The co-case agent stated that the “the case was open … it’s never been shut down.”¶

Victim [REDACTED] received one of the January 10, 2008 FBI letters; much later, in the course of the CVRA litigation, she stated that her “understanding of this letter was that [her] case was still being investigated and the FBI and prosecutors were moving forward on the Federal prosecution of Epstein for his crimes against [her].”{sup}329¶

{sup}329 CVRA petitioner Jane Doe #2 also received a January 10, 2008 FBI letter that was sent to her counsel.¶

U.S. Department of Justice Federal Bureau of Investigation FBI - West Palm Beach Suite 500 405 South Flagler Drive Wost Palm Beach, FL 33401 Phone: (561) 833-7517 Fax: (561) 833-7970¶

January 10, 2008¶

Re: Case Number: [REDACTED]¶

Dear [REDACTED]¶

This case is currently under Investigation. This can be a longithy process and we request your confined patience while we conduct a thorough investigation.¶

As a crime victim, you have the following rights under 18 United States Code § 3771: (1) The right to be reasonably protected from the accused; (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused; (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) The reasonable right to confer with the attorney for the Government in the case; (6) The right to full and timely restitution as provided in law; (7) The right to proceedings free from unreasonable delay; (8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.¶

We will make our best efforts to ensure you are accorded the rights described. Most of these rights pertain to events occurring after the arrest or indictment of an individual for the crime, and it will become the responsibility of the prosecuting United States Attorney’s Office to ensure you are accorded those rights. You may also seek the advice of a private attorney with respect to these rights.¶

The Victim Notification System (VNS) is designed to provide you with direct information regarding the case as it proceeds through the criminal justice system. You may obtain current information about this matter on the Internet at WWW.Notify.USDOJ.GOV or from the VNS Call Center at [REDACTED]¶

In addition, you may use the Call Center or Internet to update your contact information and/or change your decision about participation in the notification program. If you update your information to include a current email address, VNS will send information to that address. You will need the following Victim Identification Number (VIN) [REDACTED] and Personal Identification Number (PIN) [REDACTED] anytime you contact the Call Center and the first time you log on to VNS on the Internet. In addition, the first time you access the VNS Internet site, you will be prompted to enter your last name (or business name) as currently contained in VNS. The name you should enter is [REDACTED]¶

If you have additional questions which involve this matter, please contact the office listed above. When you call, please provide the file number located at the top of this letter. Please remember, your participation in the notification part of this program is voluntary. In order to continue to receive notifications, it is your responsibility to keep your contact information current.¶

Sincerely,¶

Victim Specialist¶

3. Villafaña, the FBI, and the CEOS Trial Attorney Interview Victims¶

As Villafaña resumed organizing the case for charging and trial, the FBI case agent provided Villafaña with a list of “the 19 identified victims we are planning on using in” the federal charges and noted that she and her co-case agent wanted to further evaluate some additional victims.{sup}330 In Washington, D.C., CEOS assigned a Trial Attorney to the Epstein case in order to bring expertise and “a national perspective” to the matter.{sup}331¶

On January 18, 2008, one attorney representing a victim and her family contacted Sloman by telephone, stating that he planned to file civil litigation against Epstein on behalf of his clients, who were “frustrated with the lack of progress in the state’s investigation” of Epstein. The attorney asked Sloman if the USAO “could file criminal charges even though the state was looking into the matter,” but Sloman declined to answer his questions concerning the investigation.{sup}332 In late January, the New York Post reported that the attorney’s clients had filed a $50 million civil suit against Epstein in Florida and that “Epstein is expected to be sentenced to 18 months in prison when he pleads guilty in March to a single charge of soliciting an underage prostitute.”{sup}333¶

Between January 31, 2008, and May 28, 2008, the FBI, with the prosecutors, interviewed additional victims and reinterviewed several who had been interviewed before the NPA was signed.{sup}334 In late January 2008, as Villafaña and the CEOS Trial Attorney prepared to participate¶

{sup}330 The case agent also informed Villafaña that she expected to ask for legal process soon in order to obtain additional information.¶

{sup}331 The CEOS Trial Attorney told OPR that she was under the impression that she was brought in to help prepare for the trial because the “plea had fallen through.”¶

{sup}332 Because Sloman and the attorney were former legal practice partners, Sloman reported the interaction to Acosta, and the USAO reported the incident to OPR shortly thereafter. OPR reviewed the matter as an inquiry and determined that no further action was warranted.¶

{sup}333 Dareh Gregorian, “Tycoon Perved Me at 14 - $50M Suit Hits NY Creep Over Mansion Massage,” New York Post, Jan. 25, 2008.¶

{sup}334 An FBI interview report from May 28, 2008, indicates that one victim “believes Epstein should be prosecuted for his actions.”¶

•¶

• ,¶

in FBI interviews of and other victims, Villafafia informed CEOS Chief Oosterbaan that she anticipated the victims “would be concerned about the status of the case.”¶

On JanuaryLL2008, Villafafia, the CEOS Trial Attorney, and the FBI interviewed three victims, including =. Prior to the interview, had received the FBI’s January L0 2008 letter stating that the case was under investigation; however, according to the case agent, and two other victims had also been told bySie FBI, in October 2007, that the case had been resolved. In her 2015 CVRA-case declaration, stated that after receiving the FBI letter, she believed that the FBI was investigating the case, and she was not told “about any [NPA] or any otenteal resolution of the federal criminal investigation I was cooperating in. If I had bee I of a[n NPA], I would have obj ed.” In Villafafia’s 2017 declaration in the CVRA ling fafia recalled interviewing on January 31, 2008, along with FBI agents, and Vi a tot OPR she “asked [M] whether she would be willing to testify if th¶

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