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Case 22-1426, Document 77, 06/29/2023, 3536038, Page210 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 208 of 348

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

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