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4.
Acosta Attempts to Revise the NPA § 2255 Language concerning
Monetary Damages, but the Defense Does Not Accept It
Acosta undertook to respond to defense counsel's continuing concern about the § 2255
provision. He sent to Deputy Assistant Attorney General Sigal Mandelker language that he
proposed including in a revision to the NPA's § 2255 implementation section. Mandelker
forwarded the language to her counterpart in the Civil Division, who responded to Mandelker and
Acosta that he did not have "any insight" to offer. On December 19, 2007, after Acosta and
Sloman had a phone conversation with Starr and Lefkowitz, Acosta sent to Sanchez a letter
proposing to resolve "our disagreements over interpretation[]" by replacing the existing language
of the NPA relating to § 2255 with a provision that would read:
Any person, who while a minor, was a victim of a violation of an
offense enumerated in Title 18, United States Code, Section 2255,
will have the same rights to proceed under Section 2255 as she
would have had, if Mr. Epstein [had] been tried federally and
convicted of an enumerated offense. For purposes of implementing
this paragraph, the United States shall provide Mr. Epstein's
attorneys with a list of individuals whom it was prepared to
name as victims of an enumerated offense by Mr. Epstein. Any
judicial authority interpreting this provision, including any authority
determining which evidentiary burdens if any a plaintiff must meet,
shall consider that it is the intent of the parties to place these
identified victims in the same position as they would have been had
Mr. Epstein been convicted at trial. No more; no less.
Acosta also noted that he had resisted his prosecutors' urging to declare the NPA breached by the
defense delays. 157
Lefkowitz responded by letter a few days later, suggesting that Acosta's proposal raised
"several troubling questions" and that "the problem arises from the incongruity that exists when
attempting to fit a federal civil remedies statute into a criminal plea agreement. "158 In a follow-up
letter to Acosta, to address the USAO's concern that Epstein was intentionally delaying the entry
of his guilty plea, Lefkowitz asserted that "any impediment to the resolution at issue is a direct
cause of the disagreements between the parties," and that defense counsel had "at all times made
and will continue to make sincere efforts to resolve and finalize issues as expeditiously as
possible."
Acosta told OPR that despite this assurance from defense counsel, he was "increasingly
frustrated" by Epstein's desire to take an "11th hour appeal" to the Department so soon before the
157
As described in detail in Chapter Three, Acosta's December 19, 2007 letter also addressed defense objections
to notifying the victims about the NPA and the state plea.
158
After Starr and Lefkowitz had another conversation with Acosta and Sloman, Lefkowitz sent a second letter
to Acosta reiterating concerns with the § 2255 provision and asserting that the provision was "inherently flawed and
becoming truly unmanageable." In the end, the defense team rejected Acosta's December 19, 2007 NPA modification
letter.
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