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Case 22-1426, Document 78, 06/29/2023, 3536039, Page32 of 217
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 286 of 348

Acosta told OPR that there was no requirement to notify the victims because the NPA was “not a plea, it’s deferring in favor of a state prosecution.” Acosta said, “[W]hether or not victims’ views were elicited is something I think was the focus of the trial team and not something that I was focused on at least at this time.” Acosta could not recall any particular concern that factored into the decision not to consult with the victims before entering into the NPA, but he 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].”407

As indicated, the contemporaneous records reflect little about decisions made regarding victim consultation prior to when the NPA was signed. Villafaña raised the issue in writing to her supervisors in early September, but there is no evidence showing whether her supervisors affirmatively rejected Villafaña’s contention that the USAO was obligated to consult with victims, ignored the suggestion, or failed to address it for other reasons, possibly because of the extended uncertainty as to whether Epstein would ever agree to the government’s plea proposal. OPR notes that its subject interviews were conducted more than a decade after the NPA was signed, and the passage of time affected the recall of each individual OPR interviewed. Although Villafaña recalled discussions with her supervisors about notifying victims, her supervisors did not, and Menchel contended that Villafaña’s recollection is inaccurate. Assuming the discussions occurred, the timing is unclear. Sloman was on vacation before the NPA was signed, so a call with Villafaña about victim notification at that point in time appears unlikely. Any discussion involving Menchel necessarily occurred before August 3, 2007, when it was unclear whether the defense would agree to the government’s offer. Supervisors could well have decided that at such an early stage, there was little to discuss with victims.

To the extent that Villafaña’s supervisors affirmatively made a decision not to consult victims, Villafaña’s recollection suggests that the decision arose from supervisors’ concerns about the confidentiality of plea negotiations and a belief that the government was not obligated to consult with victims about a pre-charge disposition. That belief accurately reflected the Department’s position at the time about application of the CVRA. Importantly, OPR did not find evidence establishing that the lack of consultation was for the purpose of silencing victims, and Villafaña told OPR that she did not hear any supervisor express concerns about victims objecting to the agreement if they learned of it. Because the subjects did not violate any clear and unambiguous standard in the CVRA by failing to consult with the victims about the NPA, OPR concludes that they did not engage in professional misconduct.

However, OPR includes the lack of consultation in its criticism of a series of government interactions with victims that ultimately led to public and court condemnation of the government’s treatment of the victims. Although the government was not obligated to consult with victims, a more straightforward and open approach would have been consistent with the government’s goal to treat victims of crime with fairness and respect. This was particularly important in a case in which victims felt excluded and mistreated by the state process. Furthermore, in this case, consulting with the victims about a potential plea would have given the USAO greater insight into the victims’ willingness to support a prosecution of Epstein. The consultation provision does not

407 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].”

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