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Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 38-40) (7/4/26) · The Vault: The Epstein Files

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Speaker 1: What's up, everyone, and welcome back to the program. In
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this episode, we're getting back to the Jeffrey Epstein OIG
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report into the NPA. H opr's investigation did not reveal
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evidence establishing that Epstein cooperated in other federal investigations or
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received special treatment on that basis. One final issue OPR
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explored stem from media reports suggesting that Epstein may have
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received special treatment from the USAO in return for his
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cooperation in another federal investigation. Media reports in mid two
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thousand and nine suggested Epstein was released from his state
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incarceration early because he was assisting in a financial crimes
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investigation in the Eastern District of New York involving Epstein's
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former employer, Bear Stearns. At the time, Villa Fauna was
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notified by the asua's handling of the matter that they
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had never heard of Epstein and he was providing absolutely
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no cooperation to the government. In twenty eleven, Villa Fauna
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reported to senior colleagues that this urban myth. The FBI
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and I looked into this and do not believe that
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any sort of it is true. Villafana told OPR that
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the rumor that Epstein had cooperated with the case in
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New York was completely false. Acosta told OPR that he
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did not have any information about Epstein cooperating in a
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financial investigation or relating to media reports that Epstein had
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been an intelligence asset. In addition to the contemporaneous record
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testing that Epstein was not a cooperating witness in a
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federal matter, OPR found no evidence suggesting that Epstein was
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such a cooperating witness or intelligence asset, or that anyone,
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including any of the subjects of opr's investigation, believed that
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to be the case, or that Epstein was afforded any
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benefit on such a basis. OPR did not find any
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reference to Epstein's purported cooperation or even a suggestion that
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he had assisted in a different matter, in any of
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the numerous communications sent by Defense count to the USAO
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and the Department. It is highly unlikely that Defense counsel
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would have omitted any reason warranting leniency for Epstein if
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it had existed. Accordingly, OPR concludes that none of the
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subjects of opr's investigation provided Epstein with any benefits on
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the basis that he was a cooperating witness in an
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unrelated federal investigation, and OPR found no evidence establishing that
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Epstein had received benefits for cooperation in any matter. Part five,
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Acosta exercised poor judgment by resolving the federal investigation through
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the NPA. Although the OPR finds that none of the
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subjects committed professional misconduct in this matter, OPR concludes that
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Acosta exercised poor judgment when he agreed to end the
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federal investigation through the NPA. Acosta's flawed application of petite
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policy principles to this case and his concerns with overstepping
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the boundaries of federalism led to a decision to resolve
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the federal investigationation through an NPA that was too difficult
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to administer, leaving Epstein free to manipulate the conditions of
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his sentence to his own advantage. The NPA relied on
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state authorities to implement the key terms, leading to an
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absence of control by federal authorities over the process. Although
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the prosecutors considered certain events that they addressed in the NPA,
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such as gain time and community control, many other key
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issues were not, such as work release and mechanisms for
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implementing the Section twenty two fifty five provision. Important provisions
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such as promising not to prosecute all potential co conspirators
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were added with little discussion or consideration by the prosecutors.
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In addition, although there were evidentiary and legal challenges to
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a successful federal prosecution, a Costa prematurely decided to resolve
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the case without adequately addressing ways in which a federal
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case potentially could have been strengthened, such as by obtaining
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Epstein's missing computer equipment. Finally, a lack of coordination within
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the USAO compounded Acosta's flawed reasoning and resulted in insufficient
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oversight over the process of drafting the NPA, a unique
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document that required more detailed attention and review than it received.
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These problems were, moreover, entirely avoidable because federal prosecution and
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potentially a federal plea agreement existed as viable alternatives to
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the NPA resolution. In evaluating Acosta's conduct, OPR has considered
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and taken into account the fact that some of Epstein's
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conduct known today was not known in two thousand seven,
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and that other circumstances have changed in the interim, including
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some victim's willingness to testify. OPR has also evaluated Acosta's
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decision in a framework that recognizes and allows for decisions
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that are made in good faith, even if the decision
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in question may not have led to the best result
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that potentially could have been obtained. Nonetheless, after can considering
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all of the available evidence and the totality of the
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then existing circumstances, OPR concludes that Acosta exercised poor judgment
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in that he chose an action or course of action
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that was in market contrast to that which the Department
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would reasonably expect of an attorney exercising good judgment. A a
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Costa's decision to resolve the federal investigation through a state
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plea under terms incorporated into the NPA was based on
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a flawed application of the petit policy and federalism concerns,
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and failed to consider the significant disadvantages of a state
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based resolution. The Department formulated the petit policy in response
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to a series of Supreme Court opinions holding that the
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Constitution does not deny the state and federal governments the
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power to prosecute for the same act. Responding to the
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Court's concerns about the potential for abuse in a rule
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permitting duplicate prosecutions. The Department voluntarily adopted a policy of
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declining to bring a federal prosecution following a completed state
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prosecution for the same conduct, except when necessary to advance
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a compelling federal interest Si. Ronaldi versus the United States,
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four thirty four US at twenty eight. On its face,
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the petite policy applies to federal prosecutions that follow completed
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state prosecutions U. Sam. Section nine two dot zero three one.
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This policy applies whenever there has been a prior state
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prosecution resulting in an acquittal, a conviction, including one resulting
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from a plea agreement, or a dismissal or other termination
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of the case on the merits after jeopardy has attached.
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When a state investigation or prosecution is still pending, the
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policy does not apply. Indeed, even when a state prosecution
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has resulted in a decision on the merits, the policy
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permits a subsequent federal prosecution when three substantiative prerequisites are satisfied,
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a substantial federal interest exists, the result in the prior
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state prosecution was manifestly inadequate in light of the federal
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interest involved, and there is a sufficient admissible evidence to
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obtain and sustain a conviction on federal charges. The policy
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also does not apply when the prior prosecution involved only
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a minor part of the contemplated federal charges. No one
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with whom OPR spoke disputed that the federal government had
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a substantial interest in prosecuting Epstein, and her prosecution memorandum,
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Villafauna identified five federal statutes that Epstein had potentially violated.
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The CEO's chief described Villafauna's assessment of those statutes as exhaustive,
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and he concurred with her analysis of their applicability to
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the facts of the case. Epstein's crimes involved the sexual
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exploitation of children, interstate travel, and the use of a
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facility of interstate commerce, all of which were areas of
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federal concern. Notably, in the early two thousands, the Department
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had begun pursuing specific initiatives to combat child sex trafficking,
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including projects Save Childhood, and Congress had then recently passed
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the Protect Act. Acosta himself told OPR that the exploitation
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of minors was an important federal interest, which in Epstein's case,
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was compounded by the swordness of the acts involved and
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the number of victims. It is also clear that because
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the state case against Epstein was still pending and had
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not reached the conviction, acquittal, or other decision on the merits,
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the petit policy did not apply and certainly did not
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preclude a federal prosecution of Epstein. He had been charged
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with one state charge of solicitation to prostitution on three
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occasions involving one or more other persons without regard to age,
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a charge that would have addressed only a scant portion
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of the conduct under federal investigation. Acosta acknowledged OPR that
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the petit policy on its face did not apply. Moreover,
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the state attorney did not challenge the federal government's assumption
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of prosecutorial responsibility, and despite having obtained an indictment, held
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back on proceeding with the state prosecution and deference of
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the federal government's involvement. In these circumstances, the USAO was
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free to proceed with a prosecution sufficient to ensure vindication
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of the federal interests in prosecuting a man who traveled
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interstate repeatedly to prey on minors. The federal government was
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uniquely positioned to fully investigate the conduct of an individual
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who engaged in a repeated criminal conduct in Florida, but
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who also traveled extensively and had residences outside of Florida.
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Even if the petit policy had applied, OPR has little
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doubt that the USAO could have obtained authorization from the
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Department to proceed with a prosecution under the circumstances of
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this case, despite the undeniable federal interest in prosecuting Epstein,
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the fact that the petit policy did not apply, and
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the state attorney's willingness to hold the state prosecution in
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abeyance pending the federal government's assumption of the case. A
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Costa viewed the federal government's role and prosecuting Epstein as
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limited by principles of federalism. In essence, a cost of
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believe that a federal prosecution would have interfered improperly with
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the state's authority. He explained his reasoning to OPR. The
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prosecution was going forward on the part of the state,
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and so here is the big bad federal government stepping
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on a sovereign state saying you're not doing enough, when,
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to my mind, the whole idea of the petit policy
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is recognized that the state is an independent entity, and
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that we should presume that what they're doing is correct
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even if we don't like the outcome, except in the
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most unusual of circumstances. A Costa told OPR that absent
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USAO intervention, the state's prosecution of Epstein would have become final,
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and accordingly it was prudent to employ petit policy analysis.
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In a Costa's view, the federal responsibility in this unique
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situation was merely to serve as a backstop to the
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state authorities to ensure that there was no miscarriage of justice.
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A Costa told OPR that he understood the palm each
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police would not have brought Epstein to the FBI's attention
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if the state attorney had pursued the charges that required
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Epstein's incarceration. Acosta therefore decided that the USAO could avert
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a manifest injustice by forcing the state to do more
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and require Epstein to serve jail time and register as
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a sexual offender. Acosta's reasoning was flawed and unduly constricted.
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Acosta repeated references to a miscarriage of justice or a
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manifest injustice echoes the manifestly inadequate language used in the
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Petit Policy to define the circumstances in which the federal
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government may proceed with a criminal case after a completed
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state prosecution. Nothing in the petit policy, however, requires similar
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restraint when the federal government pursues a case in the
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absence of a completed state prosecution, even if the state
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is already investigating the same offense. The goal of the
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petit policy is to prevent multiple prosecutions for the same offense,
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not to compel the federal government to defer to a
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parallel state interest in a case, particularly one in which
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state officials involved in the state prosecution express significant concerns
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about it, and there were questions regarding the state prosecutor's
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commitment to the case. A Costa told OPR that there
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are any number of instances where the federal government or
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the state government can proceed and the state charges are
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substantially less and different, and the federal government stands aside
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and lets the state proceed. The fact that the federal
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government can allow the state to proceed with a prosecution, however,
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does not mean the federal government is compelled to do so,
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particularly in a matter in which a distinct and important
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federal interest exists. Indeed, the state attorney told OPR that
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the federal government regularly takes over cases initiated by state investigators,
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typically because federal charges result in the best sentence. All right, folks,
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we're going to wrap up right here, and in the
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next episode on the topic, we're going to pick up
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where we left off. All of the information that goes
13:01
with this episode can be found in the description box.
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What's up, everyone, and welcome back to the Epstein Chronicles.
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This episode, we're picking up where we left off with
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the OIG report into Jeffrey Epstein's non prosecution agreement. Epstein
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was facing a substantial sentence under the federal sentencing guidelines.
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Despite the Ashcroft Memos directive that federal prosecutors pursue the
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most serious, readily provable offense, a Costa's decision to push
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the state to do a little bit more does not
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approach that standard. In fact, Acosta conceded during his OPR
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interview that the NPA did not represent an appropriate punishment
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in the federal system, nor even the best outcome in
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the state system, and that if the investigation of Epstein
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had originated with the FBI rather than a referral from
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the PbD, the outcome might have been different. As US
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Attorney Acosta had the authority to depart from the Ashcroft Memo.
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He told OPR, however, that he did not recall discussing
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the Ashcroft Memo with his colleagues, and nothing in the
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contemporaneous documentary record suggests that he made a conscious decision
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to depart from it when he decided to resolve the
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federal investigation through the NPA instead, it appears that Acosta
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simply failed to consider the tension between federal charging policy
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and a strong federal interest in the case on the
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one hand, and his broad reading of the petite policy
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and his general concerns about federalism on the other hand.
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OPR concludes that Acosta view the federal government's role in
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prosecuting Epstein too narrowly and through the wrong prism. Furthermore,
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Acosta's federalism concerns about intruding on the state's autonomy resulted
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in an outcome the NPA that intruded far more on
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the state's autonomy than a decision to pursue a federal
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prosecution would have. By means of the NPA, the federal
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government dictated to the state, the charges, the sentence, the timing,
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the certain conditions that the state had to obtain during
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the state's own prosecution. Acosta acknowledged during his OPR interview
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that his attempts to backstop the state here rebounded because
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in the process it ended up being arguably more intrusive.
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Acosta's concern about invading the state's authority led to additional
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negative consequences. Acosta revised the draft NPA in several respects
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to soften its tone by substituting provisions requiring Epstein to
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make his best efforts for language that appeared to dictate
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certain actions to the state. In doing so, however, Acosta
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undermined the enforceability of the agreement, making it difficult later
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to declare Epstein in breach when he failed to comply.
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OPR found no indication that when deciding to resolve the
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federal prosecution through a mechanism that relied completely on state action,
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Acosta considered the numerous disadvantages of having Epstein plead guilty
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in the state court system, a system in which none
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of the subjects had practiced and with with which they
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were unfamiliar. Villa Fauna recognized that there were a lot
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of ways to manipulate state sentences, and she told OPR
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that she was concerned from the outset of negotiations about
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entering into the NPA because by sending the case back
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to the state, the USAO was giving up all control
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over what was going on. Villa Fauna also told OPR
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that defense counsel had a lot of experience with the
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state system. We did not Epstein's ability to obtain work
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release of provision directly contrary to the usao's intent with
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respect to Epstein's sentence, and it's a clear example of
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the problem faced by the prosecutors when trying to craft
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a plea that depended on a judicial system with which
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they were unfamiliar and over which they had no control.
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Although the issue of gain time was considered and addressed
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in the NPA, none of the subject attorneys negotiating the
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NPA realized until after the NPA was signed that Epstein
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might be eligible for work release. Acosta in particular told
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OPR that if it was typical to provide that kind
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of work release in these cases, that would have been
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news to me. Because work release was not anticipated. The
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NPA did not specifically address it, and the USAO was
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unable to foreclose Epstein from applying for admission to the program.
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The sexual offender registration provision is yet another example of
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how Acosta's decision to create an unorthodox mechanism that relied
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on state procedures to resolve the federal investigation led to
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unanticipated consequences benefiting Epstein. Acosta told OPR that one of
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the core aspects of the NPA was a requirement that
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Epstein plead guilty to a state charge requiring registration as
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a sexual offender. He cited it as a provision that
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he insisted on from the beginning and from which he
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never wavered. However, the USAO failed to anticipate certain factors
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that affected the sexual offender registration requirement in other states
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where Epstein had a residence. In selecting the conduct for
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the factual basis for the crime requiring sexual offender registration,
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the state chose conduct involving a victim who was at
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least sixteen years old at the time of her interactions
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with Epstein. Even though Epstein had sexual contact with a
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fourteen year old victim, the victim's age made a difference
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as the edge of consent. In New Mexico, where Epstein
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had residence, was sixteen. Therefore, Epstein was not required to
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register in that state. As a two thousand and six
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letter from Defense Council Left Court to the State Attorney's
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office made clear the defense team had thoroughly researched the
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details and ramifications of Florida's sexual offender registration requirement, OPR
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did not find evidence indicating similar research and consideration by
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the USAO. Finally, Acosta was well aware that the PbD
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brought the case to the FBI's attention because of the
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concern that the State Attorney's office had succumbed to pressure
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from Defense Council. Villa Fauna told OPR that she informed
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both Acosta and Sloman of this when she met them
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at the start of the federal investigation. Although Acosta did
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not remember the meeting with Villafana, he repeatedly told OPR
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during his interview that he was aware that PbD was
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dissatisfied with the State Attorney's office handling of the case
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shortly before the NPA was signed. Moreover, additional information came
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to light that suggested the State Attorney's office was predisposed
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to manipulating the process in Epstein's favor, Specifically, during the
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September twelve, two thousand and seven meeting, at the state
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prosecutor's suggestion, the USAO team agreed with Acosta's subsequent approval
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to permit Epstein to plead guilty to one state charge
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of solicitational miners to engage in prostitution, rather than the
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three charges the USAO had originally specified. The state prosecutor
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assured Lori that the selected charge would require Epstein to
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register as a sexual offender. Shortly thereafter, the USAO was
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told by defense count So that despite the assurances made
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to Lori, the state prosecutor had advised Epstein incorrectly. It
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turned out that a plea to the particular offense would
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not require him to register as a sexual offender. Yet,
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despite this evidence, which at least suggested that the state
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authorities should not have been considered to be a reliable
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partner in enforcing the NPA, Acosta did not alter his
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decision about proceeding with a process that depended completely on
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state authorities for its successful execution. OPR finds that Acosto
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was reasonably aware of the facts and circumstances presented in
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this case. He stated that he engaged in discussions about
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various aspects of the case with Sloman and Menchel, and
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relied upon them for their evaluation of the legal and
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evidentiary issues and for their assessment of trial issues. Acosta
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was copied on many substantive emails, reviewed and revised drafts
20:53
of the NPA, and approved the final agreement. Yet, rather
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than focusing on whether the state's prosecution was sufficient to
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satisfy the federal interest in prosecuting Epstein, a Costa focused
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on achieving the minimum outcome necessary to satisfy the state's interest,
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as defined in part by the state's indictment, by using
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the threat of federal prosecution to dictate the terms of
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Epstein's state guilty plea. As US attorney, Acosta had the
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authority to resolve the case in this manner, but o
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pr concludes that, in light of all the surrounding circumstances,
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his decision to do so reflected poor judgment. Acosta's application
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of petite policy principles was too expansive, his view of
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the federal interest in prosecuting Epstein was too narrow, and
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his understanding of the state system was too imperfect to
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justify the decision to use the NPA b the assessment
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of the merits of a potential federal prosecution was undermined
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by the failure to obtain evidence or take other investigative
21:52
steps that could have changed the complexion of the case.
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The leniency resulting from Acosta's decision to resolve the case
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through the NPA is also troubling because the USAO reached
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agreement on the terms of the NPA without fully pursuing
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evidence that could have changed the complexion of the case
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or afforded the USAO significant leverage and negotiating with Epstein.
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Acosta told OPR that his decision to resolve the federal
22:20
investigation through the NPA was in part due to concerns
22:23
about the merits of the case and concerns about whether
22:27
the government could win at trial. Yet Acosta made the
22:30
decision to resolve the case through state based resolution and
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extended that proposal to Epstein's defense attorneys before the investigation
22:38
was completed. As the investigation progressed, the FBI continued to
22:42
locate additional victims, and many had not been interviewed by
22:45
the FBI by the time of the initial offer. In
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other words, at the time of Acosta's decision, the USAO
22:52
did not know the full scope of Epstein's conduct, whether,
22:55
given Epstein's other domestic and foreign residences, his criminal compt
23:00
conduct had occurred in other locations, or whether the additional
23:03
victims might implicate other offenders. In addition, Villa Fauna planned
23:08
to approach the female assistance to attempt to obtain cooperation,
23:12
but that step had not been taken. Most importantly, a
23:15
costa and to the investigation without the USAO having obtained
23:19
an important category of potentially significant evidence. The computers removed
23:24
from Epstein's home prior to the pbd's execution of a
23:27
search warrant. The PbD knew that Epstein had surveillance cameras
23:32
stationed in and around his home, which potentially captured video
23:35
evidence of people visiting his residence, and that before the
23:40
state search warrant was executed on that property, the computer
23:43
equipment associated with those cameras had been removed. Vila Fauna
23:47
knew who had possession of the computer equipment. Surveillance images
23:51
might have shown the victim's visits, and photographic evidence of
23:55
their appearance at the time of their encounters with Epstein
23:58
could have countered the anticipation argument that Epstein was unaware
24:02
that these girls were miners. The surveillance video might have
24:05
shown additional victims the investigators had not yet identified. Such
24:09
images could have been powerful visual evidence of the large
24:13
number of girls Epstein victimized and the frequency of their
24:16
visits to his home, potentially persuasive proof to a jury
24:19
that this was not a simple solicitation case. Epstein's personal
24:24
computers possibly contained even more damning evidence. Vilafauna told OPR
24:29
that the FBI had information that Epstein used hidden cameras
24:33
in New York residence to record his sexual encounters, and
24:36
one victim told the agents that Epstein's assistant photographed in
24:40
the nude. Based on this evidence and experience in other
24:43
sex cases involving miners, Villa Fauna and several other witnesses
24:47
opined to OPR that the computers might have contained damning information. Moreover,
24:52
Epstein lived in a multi state lifestyle. It was reasonable
24:55
to assume that he may have transmitted still images or
24:58
videos taken at his floor to residence over the Internet
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to be accessed while at one of his other homes
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or while traveling. The interstate transmission of such things was
25:07
a separate and serious federal crime and could have changed
25:10
the entire complexion of the case against Epstein. Villa Fauna
25:14
told OPR, if the evidence had been what we suspected
25:17
it was, it would have put this case completely to bed.
25:20
It also would have completely defeated all of these arguments
25:23
about interstate nexus. Because she recognized the potential significance of
25:27
this evidence, Villa Fauna attempted to obtain the missing computers.
25:32
After Villa Fauna learned that an individual associated with one
25:35
of Epstein's attorneys had possession of the computer equipment that
25:38
was removed from Epstein's home, she consulted with the department
25:42
subject matter experts to determine how best to obtain the evidence.
25:46
Following the advice she received, and after notifying her supervisors,
25:51
Villa Fauna took the legal steps to obtain the computer equipment.
25:55
All right, we're going to wrap up this episode right here,
25:57
and then the next episode we're going to pick up
25:59
where we left off. All of the information that goes
26:02
with this episode can be found in the description box.
26:06
What's up, everyone, and welcome back to the Epstein Chronicles.
26:10
This episode, we're picking up where we left off with
26:12
the OIG report into Jeffrey Epstein's andpa Epstein's team sought
26:18
to postpone compliance with the usao's demand for the equipment.
26:23
In late June two thousand and seven, Defense attorney Sanchez
26:26
requested an extension of time to comply. In informing Slowman
26:30
Menchelin LORII of the request, Villa Fauna stressed that we
26:34
want to get the computer equipment that was removed from
26:37
Epstein's home prior to the state search warrant as soon
26:40
as possible. She agreed to extend the date for producing
26:43
the computer equipment by one week until July seventeenth, two
26:48
thousand and seven. On that day, Epstein initiated litigation regarding
26:52
the computer equipment, and that litigation was still pending at
26:56
the end of July, when Acosta decided to resolve the
26:59
federal investigation in exchange for a plea in state court
27:03
to a charge that carried a two year sentence. The
27:06
FBI COCSE agent told OPR that in a meeting to
27:10
discuss the resolution at which the FBI was present, the
27:13
co case agent specifically suggested that the USAO wait to
27:18
pursue a resolution until after the litigation was resolved. But
27:22
this suggestion was pushed under the rug without comment. Although
27:26
the COCASE agent could not recall who was present, the
27:29
case agent recalled that Menchel led the meeting, which occurred
27:32
while the litigation was still pending. Even after the NPA
27:36
two year state Plea resolution was presented to the defense,
27:39
Villa Fauna continued to press ahead to have the court
27:42
resolve the issue concerning the defense production of the computer equipment.
27:46
On August tenth, two thousand and seven, she asked Lori
27:49
for authorization to oppose Epstein's efforts to stay the litigation
27:54
until after an anticipated meeting between the USAO and the defense,
27:58
informing Lori that Evaivictim interviewed that we claim she started
28:02
seeing Epstein at age fourteen and he had photographed her
28:05
in the nude. A few days later, Villa Fauna told
28:08
Defense Council that she had conferred with the appropriate people
28:11
and we are not willing to agree to a stay.
28:14
Defense Council then contacted Lorie, who agreed to postpone the
28:18
hearing until after the upcoming meeting with Acosta. After the
28:22
meeting and when the court sought to reschedule the hearing,
28:25
Villa Fauna emailed Sloman to ask if she should put
28:28
it off. He replied yes, and the hearing was reset
28:31
for September eighteenth, two thousand and seven. As negotiations towards
28:36
the NPA progressed, however, the hearing was postponed indefinitely. Ultimately,
28:41
the NPA itself put the issued arrest by specifying that
28:45
all legal process would be held in abeyance unless and
28:50
until Epstein breached the agreement. Villa Fauna told OPR that
28:54
she had learned through law enforcement channels that the defense
28:57
team had reviewed the contents of Epstein's computers. She told OPR,
29:01
in her view, the fact that the defense was trying
29:03
desperately to put off the hearing was further evidence of
29:06
the importance of the evidence. OPR questioned the Costa about
29:11
the decisions to initiate and continue with the NPA negotiations
29:15
while the litigation concerning the computers was still pending, and
29:18
to agree to postpone the litigation rather than exhausting all
29:22
efforts to obtain and review the computer evidence. Acosta told
29:27
OPR that he had no recollection of Villafauna's efforts to
29:30
obtain the missing computers, but he believed that there was
29:33
a desire to move quickly as opposed to slowly regarding
29:36
the plea. Menchell, Sloman, and Laurie also told OPR that
29:40
they did not remember Villa Fauna's efforts to obtain the computers,
29:44
or recall the issue only vaguely. Menchell expressed surprise to
29:48
OPR that a prosecutor could obtain an entire computer through
29:52
the method utilized by Villa Fauna, telling OPR I had
29:55
not heard of that. However, the contemporaneous records showed that Sloman, Menchell,
30:00
and Laurie each had been aware in two thousand and
30:03
seven of Villa Fauna's efforts to obtain Epstein's missing computer equipment.
30:07
Villa Fauna kept Menchell in particular well informed of her
30:11
efforts to obtain the computer equipment. She sent to Menchell
30:15
or copied them on several emails about her plan to
30:18
obtain the computer equipment. Specifically, her emails on May eighteenth,
30:22
two thousand and seven, July three, two thousand and seven,
30:25
and July sixteen, two thousand and seven all discussed her
30:28
proposed steps. Villa Fauna told OPR that Lourie was involved
30:32
in early discussions about her proposal. To obtain the evidence.
30:36
Laurie also received Villa Fauna's July sixteen, two thousand and
30:40
seven email discussing the computer equipment and the plan to
30:43
obtain it, and on one occasion he spoke directly with
30:46
one of Epstein's defense attorneys about it. Slowman told OPR
30:51
during his interview that he vaguely remembered the computer issue.
30:54
The documentary evidence confirms that he had at least some
30:58
contemporaneous knowledge of the issue. When asked by Villa Fauna
31:01
whether to put off September twelfth, two thousand and seven
31:04
hearing on the litigation, he told her to do so. Finally,
31:08
as noted previously, the FBI co case agent proposed at
31:12
a meeting with the USAO personnel that the USAO wait
31:16
until the litigation was resolved before pursuing plea negotiations. Contemporaneous
31:22
records show that Acosta was likely aware before the NPA
31:26
was signed of the usao's efforts to obtain custody of
31:29
Epstein's computers, and that after the NPA was signed, he
31:33
was informed about the use of legal process for obtaining
31:36
the computer equipment. The NPA itself provides that the federal
31:40
investigation will be suspended and all pending legal process will
31:44
be held in abeyance, that Epstein will withdraw his motion
31:48
to intervene to quash certain legal processes, and further that
31:51
the parties would maintain evidence subject to the legal process
31:55
that may have been issued and including certain computer equipment
31:59
in viol until the NPA's terms had been fully satisfied,
32:03
at which point the legal process would be deemed withdrawn.
32:07
Acosta's numerous edits on the NPA's final draft suggests that
32:11
he gave it a close read, and OPR expects that
32:13
Acosta would not have approved the agreement without understanding what
32:17
legal process his office was agreeing to withdraw or why
32:22
the only type of evidence specified with certain computer equipment.
32:26
In addition, Acosta told OPR that he worked closely with
32:29
Sloman and Mentchel, consulted with them, and relied on their
32:33
council about the case. Among other things, Acosta said he
32:37
discussed with them concerns about the law and the evidentiary
32:40
issues presented by a federal criminal trial. Therefore, although it's
32:44
possible that Sloman made the decision to postpone the hearing
32:47
concerning the usao's efforts to obtain the computer equipment without
32:52
consulting Acosta. Once Acosta reviewed the draft NPA, Acosta was
32:57
on notice of the existence of and the ongoing litigation
33:00
concerning Epstein's missing computer equipment. Villa Fauna knew where the
33:05
computers were. Litigation over the demand for the equipment was
33:08
already underway. There was a good reason to believe the
33:12
computers contained relevant and potentially critical information, and it was
33:16
clear Epstein did not want the contents of his computers disclosed.
33:20
Nothing in the available record reveals that the USAO benefited
33:23
from abandoning pursuit of this evidence when they did, or
33:27
that there was a significant consideration of the costs and
33:30
benefits of foregoing the litigation to obtain production of the computers. Instead,
33:36
the USAO agreed to postpone and ultimately abandoned its efforts
33:40
to obtain evidence that could have significantly changed a costa's
33:44
decision to resolve the federal investigation with a state plea
33:48
or led to additional significant federal charges. By agreeing to
33:52
postpone the litigation, the USAO gave away leverage that might
33:56
have caused the defense to come to an agreement much
33:59
earlier on terms more favorable to the government. The USAO
34:03
ultimately agreed to a term in the NPA that permanently
34:06
ended the government's ability to obtain possible evidence of significant crimes,
34:11
and did so with apparently little serious consideration of the
34:15
potential cost. To be clear, OPR is not suggesting that
34:19
prosecutors must obtain all available evidence before reaching plea agreements,
34:24
or that prosecutors cannot reasonably determine that reaching a resolution
34:28
more beneficial than continuing to litigate evidentiary issues. Every case
34:33
is different and must be judged on its own facts.
34:36
In this case, however, given the unorthodox nature of the
34:39
state based resolution, the fact that a Costa's decision to
34:43
pursue it set the case on a wholly different track
34:46
than what would have originally contemplated by his experienced staff,
34:50
the nature and scope of Epstein's criminal conduct, the circumstances
34:54
surrounding the removal of the computers from Epstein's residence, and
34:58
the potential of obtaining evidence rod feeling serious additional criminal conduct,
35:03
a Costa had a responsibility to ensure that he was
35:06
fully informed about the consequences of pursuing the course of
35:09
action that he proposed, and particularly about the consequences flowing
35:14
from the express terms of the NPA. In deciding to
35:18
resolve the case pre charge, Acosta lost sight of the
35:21
bigger picture that the investigation was not completed and viable
35:25
leads remained to be pursued. The decision to forego the
35:29
government's efforts to obtain the computer evidence and to pursue
35:32
significant investigative steps should have been made only after careful
35:36
consideration of all the costs and benefits of the proposed action.
35:41
OPR did not find evidence that Acosta fully considered the
35:44
costs of ending the investigation prematurely. See OPR was unable
35:49
to determine the basis for the two year term of incarceration,
35:53
that it was tied to traditional sentencing goals, or that
35:56
it satisfied the federal interest in the prosecution in the
36:00
heart of the controversy surrounding the Epstein case, as he apparent,
36:03
undue leniency afforded him concerning his sentence. After offering a
36:08
deal that required a non negotiable twenty four month term
36:11
of incarceration, a Costa agreed to resolve it for eighteen
36:14
month term of incarceration, knowing that gain time would reduce
36:18
it further, and indeed Epstein served only thirteen months. Epstein
36:23
ultimately did not serve even that minimal sentence incarcerated on
36:27
a full time basis, because the state allowed Epstein into
36:30
its work release program within the first four months of
36:33
his sentence. As Lourie told OPR, everything else that happened
36:37
to Epstein is exactly what should have happened to him.
36:40
He had to pay a lot of money, he had
36:41
to register as a sex offender, but in the perfect world,
36:44
Epstein would have served more jail time. Due to the
36:48
passage of time and the subjects inability to recall many
36:51
details of the relevant events, OPR was unable to develop
36:55
a clear understanding of how the original two year sentence
36:58
requirement was developed or by whom. Two possibilities were articulated
37:03
during opr's subject interviews. One two years presented the sentence
37:07
Epstein would have received if he had pled guilty to
37:10
an unspecified charge originally contemplated by the state. Or Two,
37:15
the two years represented the sentence the USAO determined Epstein
37:19
would be willing to accept, thus avoiding the need for
37:22
a trial. As to the former possibility, a Costa told
37:26
OPR that his understanding of the two year proposal was
37:29
that it correlated to one of the original state charges.
37:33
He elaborated constructing memories of twelve years ago. I can
37:37
speculate that at some point the matter came up and
37:40
I or someone else said, what would the original charges
37:43
have likely brought, and someone said this amount. A Costa
37:46
told OPR that he cannot recall who initially proposed this method,
37:50
but he believed that it's likely did not result from
37:53
a single specific discussion, but rather from conversations over a
37:57
course of time. A Costa cannot recall specific with whom
38:01
he had these discussions, other than it would have been
38:04
Lori Menchell or Slowman. Villafana was not asked for her
38:07
views on a two year sentence, and she had no
38:09
input into the decision before it was made. Villa Fauna
38:13
told OPR that she examined the state statutes and could
38:17
not validate that a state charge would have resulted in
38:20
a twenty four month sentence. OPR also examined applicable state
38:24
statutes and the Florida sentencing guidelines, but could not confirm
38:27
that Epstein was in fact facing a potential two year
38:31
sentence under charges contemplated by palm Beach. On the other hand,
38:35
during OPR interview, Lorie guessed that somehow the defense conveyed,
38:39
we're going to trial if it's more than two years.
38:42
Menchell similarly told OPR that he did not know the
38:46
two year sentence was derived, but obviously it was a
38:48
number that the office felt was palatable enough that Epstein
38:52
would take it. Slowman told OPR that he had no
38:55
idea how the two year sentence proposal was reached. The
38:58
contemporaneous documentary record, however, provides no indication that Epstein's team
39:03
proposed a two year sentence of incarceration or initially suggested
39:07
before the USAO made its offer that Epstein would accept
39:11
the two year term of incarceration. As late as July
39:15
twenty fifth, two thousand and seven, only days before the
39:18
USAO provided the term sheet to Defense Council, Epstein's council
39:22
submitted a letter to the USAO arguing that the federal
39:26
government should not prosecute Epstein at all. Furthermore, after the
39:30
initial term sheet was presented and negotiations for the NPA progressed,
39:35
Epstein's team continued to strongly press for less or no
39:38
jail time. The USAO had other charging and sentencing options
39:43
available to it. The most obvious alternative to the two
39:46
year sentence proposal was to offer Epstein a plead a
39:49
federal offense that carried a harsher sentence. It federally charged,
39:53
Epstein was facing a substantial sentence under the federal sentencing
39:57
guidelines one hundred and sixty eight to two hundred TI
40:00
ten months imprisonment. However, it's unlikely that he would have
40:03
agreed to a plea that required a guideline sentence, even
40:07
one at a lower end of the guidelines. Menchel told
40:10
o PR that he and his colleagues had been concerned
40:13
that Epstein would opt to go to trial if charged
40:16
and presented with the option of pleading to a guideline sentence,
40:19
and as previously discussed, there were both evidentiary and legal
40:23
risks attendant upon trial. In this case. If federally charged,
40:27
Epstein's sentencing exposure could have been managed by offering him
40:31
a plea under a federal rule of criminal Procedure eleven
40:34
C for a stipulated sentence, which requires judicial approval. Acosta
40:39
rejected this idea, however, apparently because of a perception that
40:44
the Federal District Court in the Southern District of Florida
40:47
did not rule eleven C pleas favorably and might refuse
40:50
to accept such a plea and limit the usao's options.
40:54
Another alternative was to offer Epstein a plea to conspiracy,
40:57
a federal charge that carried a maximum five year sentence.
41:01
Shortly after Villa Fauna circulated the prosecution memorandum to her supervisors,
41:06
Lori recommended to Acosta charging Epstein by a criminal complaint
41:10
and offering a plea to conspiracy to make a plea attractive. Similarly,
41:14
before learning that Mentchell had already discussed a state based
41:18
resolution with Epstein's council, Villa Fauna had considered offering Epstein
41:22
a plea to one count of conspiracy and a substantative
41:26
charge to be served concurrently with any sentence he might
41:29
receive separately as a result of the state's outstanding indictment.
41:33
Given Epstein's continued insistence that federal charges were not appropriate
41:37
and defense council's efforts to minimize the amount of time
41:40
Epstein would spend in jail, it's questionable whether Epstein would
41:44
have accepted such a plea offer, but the USAO did
41:47
not even extend the offer to determine what his response
41:50
would be. Weighed against possible loss at trial, were some
41:54
clear advantages to a negotiated resolution that ensured a conviction,
41:58
including sexual offender registration and the opportunity to establish a
42:02
mechanism for victims to recover damages. These advantages, added to
42:07
a Costa's concern about intruding on the state's authority, led
42:10
him to the conclusion that a two year state plea
42:13
would be sufficient to prevent manifest injustice. Menchell told OPR,
42:17
I don't believe anybody at the time that this resolution
42:20
was entered into was looking at the two years as
42:23
a fair result in terms of the conduct. I think
42:26
that was not the issue. The issue was whether or
42:28
not if we took this case to trial, would we
42:31
risk losing everything. During the course of negotiations over a
42:34
potential federal plea, the USAO agreed to accept a plea
42:38
for eighteen month sentence, a reduction of six months from
42:41
the original non negotiable two year term. The subjects did
42:45
not have a clearer memory why this reduction was made.
42:48
Villa Fauna attributed it to a conversation between Acosta and Lefquwiz,
42:53
but a Costa attributed it to a decision made during
42:56
the negotiation process by Villa, Fauna and Lori, telling O
43:00
he understood his attorneys needed flexibility to reach a final
43:04
deal with Epstein. OPR found no contemporaneous documents showing the
43:09
basis for the two year term. Despite extensive subject interviews
43:13
and review of thousands of contemporaneous records, OPR was unable
43:16
to determine who initially proposed the two year term of
43:19
incarceration or why that term, as opposed to other possible
43:23
and lengthier terms, was settled on for the initial offer.
43:27
The term was not tied to statutory or guideline sentences
43:31
for potential federal charges, or as far as OPR could determine,
43:35
possible state charges. Furthermore, while the USAO initially informed the
43:39
defendants that the two year term was non negotiable, a
43:42
Costa failed to enforce that position, and rather than a
43:45
floor for negotiations, it became a ceiling that was further
43:49
reduced during the negotiations. OPR was unable to find any
43:53
evidence indicating that the term of incarceration was tied either
43:57
to the federal interest in seeking a just sentence for
43:59
his serial sexual offender, or to other traditional sentencing factors,
44:04
such as deterrence either of Epstein or other offenders of
44:07
similar crimes. Instead, is previously noted, it appears that Acosta
44:12
primarily considered only a punishment that was somewhat more than
44:16
what to which the state had agreed. As a result,
44:19
the USAO had little room to maneuver during the negotiations,
44:23
and because Acosta was unwilling to enforce the non negotiable
44:27
initial offer, the government ended up with the term of
44:30
incarceration that was not much more than what the state
44:33
had initially sought, and which was significantly disproportionate to the
44:37
seriousness of Epstein's conduct. In some it's evident that Acosta's
44:43
desire to resolve the federal case against Epstein led him
44:46
to arrive at a target term of incarceration that met
44:49
his own goal of serving as a backstop to the state,
44:52
but that otherwise was untethered to any articulable reasonable basis
44:58
in assessing the case only through the land ends of
45:00
providing a backstop to the state, a cost of field
45:03
to consider the need for a punishment equal with the
45:06
seriousness of Epstein's conduct and the federal interest in addressing it.
45:11
All Right, we're gonna wrap this episode up here, and
45:13
then the next episode we're gonna pick up with d
45:16
Acosta's decisions led to difficulties in enforcing the NPA. All
45:21
of the information that goes with this episode can be
45:23
found in the description box.