DOJ-OGR-00021373.jpg

Case 22-1426, Document 77, 06/29/2023, 3536038, Page201 of 258
SA-199
Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 199 of 348

depart from the Ashcroft Memo. He told OPR, however, that he did not recall discussing the Ashcroft Memo with his colleagues and nothing in the contemporaneous documentary record suggests that he made a conscious decision to depart from it when he decided to resolve the federal investigation through the NPA. Instead, it appears that Acosta simply failed to consider the tension between federal charging policy and the strong federal interest in this case, on the one hand, and his broad reading of the Petite policy and his general concerns about “federalism,” on the other hand. OPR concludes that Acosta viewed the federal government’s role in prosecuting Epstein too narrowly and through the wrong prism.

Furthermore, Acosta’s federalism concerns about intruding on the state’s autonomy resulted in an outcome—the NPA—that intruded far more on the state’s autonomy than a decision to pursue a federal prosecution would have.249 By means of the NPA, the federal government dictated to the state the charges, the sentence, the timing, and certain conditions that the state had to obtain during the state’s own prosecution. Acosta acknowledged during his OPR interview that his “attempt to backstop the state here[] rebounded, because in the process, it . . . ended up being arguably more intrusive.”

Acosta’s concern about invading the state’s authority led to additional negative consequences. Acosta revised the draft NPA in several respects to “soften” its tone, by substituting provisions requiring Epstein to make his “best efforts” for language that appeared to dictate certain actions to the state. In so doing, however, Acosta undermined the enforceability of the agreement, making it difficult later to declare Epstein in breach when he failed to comply.

OPR found no indication that when deciding to resolve the federal prosecution through a mechanism that relied completely on state action, Acosta considered the numerous disadvantages of having Epstein plead guilty in the state court system, a system in which none of the subjects had practiced and with which they were unfamiliar. Villafaña recognized that there were “a lot of ways to manipulate state sentences,” and she told OPR that she was concerned from the outset of negotiations about entering into the NPA, because by sending the case back to the state the USAO was “giving up all control over what was going on.” Villafaña also told OPR that defense counsel “had a lot of experience with the state system. We did not.” Epstein’s ability to obtain work release, a provision directly contrary to the USAO’s intent with respect to Epstein’s sentence, is a clear example of the problem faced by the prosecutors when trying to craft a plea that depended on a judicial system with which they were unfamiliar and over which they had no control. Although the issue of gain time was considered and addressed in the NPA, none of the subject attorneys negotiating the NPA realized until after the NPA was signed that Epstein might be eligible for work release. Acosta, in particular, told OPR that “if it was typical to provide that kind of work release in these cases, that would have been news to me.” Because work release was not anticipated, the NPA did not specifically address it, and the USAO was unable to foreclose Epstein from applying for admission to the program.

249 The Petite policy only applies to the Department of Justice and federal prosecutions. It does not prevent state authorities from pursuing state charges after a federal prosecution. See, e.g., United States v. Nichols and State v. Nichols (dual prosecution for acts committed in the bombing of the Oklahoma City federal building). However, in practice and to use their resources most efficiently, state authorities often choose not to pursue state charges if the federal prosecution results in a conviction.

173

DOJ-OGR-00021373