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Case 1:20-cr-00330-PAE Document 204-3 Filed 04/16/21 Page 12 of 348

initiate a federal prosecution of Epstein was within the scope of his authority, and OPR did not
find evidence that his decision was based on corruption or other impermissible considerations,
such as Epstein’s wealth, status, or associations. Evidence shows that Acosta resisted defense
efforts to have the matter returned to the state for whatever result state authorities deemed
appropriate, and he refused to eliminate the incarceration and sexual offender registration
requirements. OPR did not find evidence establishing that Acosta’s “breakfast meeting” with one
of Epstein’s defense counsel in October 2007 led to the NPA, which had been signed weeks earlier,
or to any other significant decision that benefited Epstein. The contemporaneous records show
that USAO managers’ concerns about legal issues, witness credibility, and the impact of a trial on
the victims led them to prefer a pre-charge resolution and that Acosta’s concerns about the proper
role of the federal government in prosecuting solicitation crimes resulted in his preference for a
state-based resolution. Accordingly, OPR does not find that Acosta engaged in professional
misconduct by resolving the federal investigation of Epstein in the way he did or that the other
subjects committed professional misconduct through their implementation of Acosta’s decisions.

Nevertheless, OPR concludes that Acosta’s decision to resolve the federal investigation
through the NPA constitutes poor judgment. Although this decision was within the scope of
Acosta’s broad discretion and OPR does not find that it resulted from improper factors, the NPA
was a flawed mechanism for satisfying the federal interest that caused the government to open its
investigation of Epstein. In Acosta’s view, the federal government’s role in prosecuting Epstein
was limited by principles of federalism, under which the independent authority of the state should
be recognized, and the federal responsibility in this situation was to serve as a “backstop” to state
authorities by encouraging them to do more. However, Acosta failed to consider the difficulties
inherent in a resolution that relied heavily on action by numerous state officials over whom he had
no authority; he resolved the federal investigation before significant investigative steps were
completed; and he agreed to several unusual and problematic terms in the NPA without the
consideration required under the circumstances. In sum, Acosta’s application of federalism
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. Furthermore, because Acosta assumed a significant role in reviewing and drafting the
NPA and the other three subjects who were supervisors left the USAO, were transitioning to other
jobs, or were absent at critical junctures, Acosta should have ensured more effective coordination
and communication during the negotiations and before approving the final NPA. The NPA was a
unique resolution, and one that required greater oversight and supervision than Acosta provided.

B. Findings and Conclusions Relating to the Government’s Interactions with
Victims

OPR further concludes that none of the subject attorneys committed professional
misconduct with respect to the government’s interactions with victims. The subjects did not have
a clear and unambiguous duty under the CVRA to consult with victims before entering into the
NPA because the USAO resolved the Epstein investigation without a federal criminal
charge. Significantly, at the time the NPA was signed, the Department did not interpret CVRA
rights to attach unless and until federal charges had been filed, and the federal courts had not
established a clear and unambiguous standard applying the CVRA before criminal charges were
brought. In addition, OPR did not find evidence that the lack of consultation was for the purpose
of silencing victims. Nonetheless, the lack of consultation was part of a series of government

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