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include concurrent time.” The email primarily concerned other issues, and Villafaña did not explain what the resolution she had in mind would entail.57 Villafaña requested to be advised, “[i]f anyone has communicated anything to Epstein’s attorneys that is contrary to this.” Villafaña, who was aware that Menchel and Lourie had been in direct contact with defense counsel about the case, explained to OPR that she made this request because “people were communicating with the defense attorneys,” and she suspected that those communications may have included discussions about a possible plea.

In response to Villafaña’s email, Menchel notified Villafaña that he had told Sanchez “a state plea [with] jail time and sex offender status may satisfy the [U.S. Attorney],” but Sanchez had responded that it “was a non-starter for them.”58 During his OPR interview, Menchel had no independent recollection of his conversation with Sanchez and did not remember why the defense deemed the proposal a “non-starter.” However, Menchel explained that he would not have made the proposal to Sanchez without Acosta’s knowledge. He also pointed out that in numerous emails before the June 26, 2007 meeting, he repeatedly noted that Acosta was still deciding what he wanted to do with the Epstein case. Acosta agreed, telling OPR that although he did not remember a specific conversation with Menchel concerning a state-based resolution, Menchel would not have discussed a potential resolution with Sanchez “without having discussed it with me.”

1. Acosta’s Explanation for His Decision to Pursue a State-based Resolution

Subsequent events showed that the decision to resolve the case through state charges was pivotal, and OPR extensively questioned Acosta about his reasoning. In his OPR interview, Acosta explained the various factors that influenced his decision to pursue a state-based resolution. Acosta said that although he, Sloman, and Menchel “believed the victims” and “believed [Epstein] did what he did,” they were concerned “about some of the legal issues . . . and some of the issues in terms of testimony.”59 Acosta also recalled discussions with his “senior team” about how the victims would “do on the stand.”

Acosta told OPR that “from the earliest point” in the investigation, he considered whether, because the state had indicted the case, the USAO should pursue it.

57 Villafaña explained to OPR that she intended to recommend a plea to a federal conspiracy charge and a substantive charge, “consistent with the Ashcroft Memo, which would be the most readily provable offense,” with “a recommendation that the sentence on the federal charges run concurrent with the state sentence, or that [Epstein] would receive credit for time in state custody towards his federal release date.” See n.65 for an explanation of the Ashcroft Memo.

58 Villafaña was then in trial and on July 4, 2007, likely before reading Menchel’s email, Villafaña responded to defense counsel regarding the demand for records and also noted, “If you would like to discuss the possibility of a federal resolution . . . that could run concurrently with any state resolution, please leave a message on my voicemail.”

59 In commenting on OPR’s draft report, Sloman stated he had no involvement in assessing the Epstein case or deciding how to resolve it, and that OPR should not identify him as among the people upon whom Acosta relied in reaching the two-year-state-plea resolution through the NPA. However, Sloman also told OPR that he had little recollection of the Epstein case, while Acosta specifically recalled having discussed the case with both Sloman and Menchel.

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