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Case 22-1426, Document 77, 06/29/2023, 3536038, Page68 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 66 of 348

Menchel could not recall who initially suggested a state plea, but noted to OPR that his own “emails . . . make clear that this course of action was ultimately decided by Alex Acosta.” He referenced, among others, his May 14, 2007 email to Villafaña informing her that Acosta was deciding how he wanted to handle the case. Menchel surmised that a state resolution accomplished two things that Acosta viewed as important: first, it resolved any Petite policy concerns, and second, it afforded more flexibility in sentencing than a federal plea would have allowed. Menchel told OPR that the state plea proposal did not reflect any minimization of Epstein’s conduct and that any state plea would have been to an offense that required sexual offender registration. He told OPR, “I don’t think anybody sat around and said, you know, it’s not that big a deal. That was not the reaction that I think anybody had from the federal side of this case.” Rather, Menchel said, “The concern was if we charge him [as proposed], there’s going to be a trial.”

2. July 2007: Villafaña and Menchel Disagree About the Proposed State Resolution

Villafaña told OPR that she was angry when she received Menchel’s July email explaining that he had proposed to Sanchez resolving the federal investigation through a state plea. In Villafaña’s view, the proposed state resolution “didn’t make any sense” and “did not correspond” to Department policy requiring that a plea offer reflect “the most serious readily provable offense.”65 In her view, a plea to a state charge “obviously” would not satisfy this policy. Villafaña also told OPR that in her view, the USAM required the USAO to confer with the investigative agency about plea negotiations, and Villafaña did not believe the FBI would be in favor of a state plea. Villafaña also believed the CVRA required attorneys for the government to confer with victims before making a plea offer, but the victims had not been consulted about this proposal. Villafaña told OPR she had met with some of the victims during the course of the investigation who had negative impressions of the State Attorney’s Office, and she believed that “sending them back to the State Attorney’s Office was not something” those victims would support.

65 This policy was set forth in a September 22, 2003 memorandum from then Attorney General John Ashcroft regarding “Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing” (known as the “Ashcroft Memo”), which provided, in pertinent part:

[I]n all federal criminal 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, United States Attorney, or designated supervisory attorney in the limited circumstances described below. The most serious offense or offenses are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence. A charge is not “readily provable” if the prosecutor has a good faith doubt, for legal or evidentiary reasons, as to the Government’s ability readily to prove a charge at trial. Thus, charges should not be filed simply to exert leverage to induce a plea. Once filed, the most serious readily provable charges may not be dismissed except to the extent permitted [elsewhere in this Memorandum].

See also Chapter Two, Part Two, Section II.B.1.

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