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Case 22-1426, Document 77, 06/29/2023, 3536038, Page200 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 198 of 348

[The prosecution] was going forward on the part of the state, and so
here is the big bad federal government stepping on a sovereign . . .
state, saying you’re not doing enough, [when] to my mind . . . the
whole idea of the [P]etite policy is to recognize that the []state . . .
is an independent entity, and that we should presume that what
they’re doing is correct, even if we don’t like the outcome, except
in the most unusual of circumstances.

Acosta told OPR that “absent USAO intervention,” the state’s prosecution of Epstein
would have become final, and accordingly, it was “prudent” to employ Petite policy analysis. In
Acosta’s view, “the federal responsibility” in this unique situation was merely to serve as a “back
stop [to] state authorities to ensure that there [was] no miscarriage of justice.”247 Acosta told OPR
that he understood the PBPD would not have brought Epstein to the FBI’s attention if the State
Attorney had pursued charges that required Epstein’s incarceration. Acosta therefore decided that
the USAO could avert a “manifest injustice” by forcing the state to do more and require Epstein
to serve time in jail and register as a sexual offender.

Acosta’s reasoning was flawed and unduly constricted. Acosta’s repeated references to a
“miscarriage of justice” or “manifest injustice” echoes the “manifestly inadequate” language used
in the Petite policy to define the circumstances in which the federal government may proceed with
a criminal case after a completed state prosecution. Nothing in the Petite policy, however, requires
similar restraint when the federal government pursues a case in the absence of a completed state
prosecution, even if the state is already investigating the same offense. The goal of the Petite
policy is to prevent multiple prosecutions for the same offense, not to compel the federal
government to defer to a parallel state interest in a case, particularly one in which state officials
involved in the state prosecution expressed significant concerns about it, and there were questions
regarding the state prosecutor’s commitment to the case. Acosta told OPR that “there are any
number of instances where the federal government or the state government can proceed, and state
charges are substantially less and different, and . . . the federal government . . . stands aside and
lets the state proceed.” The fact that the federal government can allow the state to proceed with a
prosecution, however, does not mean the federal government is compelled to do so, particularly in
a matter in which a distinct and important federal interest exists. Indeed, the State Attorney told
OPR that the federal government regularly takes over cases initiated by state investigators,
typically because federal charges result in “the best sentence.”

Epstein was facing a substantial sentence under the federal sentencing guidelines.248
Despite the Ashcroft Memo’s directive that federal prosecutors pursue “the most serious readily
provable offense,” Acosta’s decision to push “the state to do a little bit more” does not approach
that standard. In fact, Acosta conceded during his OPR interview that the NPA did not represent
an “appropriate punishment” in the federal system, nor even “the best outcome in the state system,”
and that if the investigation of Epstein had originated with the FBI, rather than as a referral from
the PBPD, the outcome might have been different. As U.S. Attorney, Acosta had the authority to

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247 Letter from R. Alexander Acosta “To whom it may concern” at 1 (Mar. 20, 2011), published online in The
Daily Beast.
248 Villafaña estimated that the applicable sentencing guidelines range was 168 to 210 months’ imprisonment.

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