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"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
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