Latest / The Epstein Chronicles / Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 38-40) (7/27/26)

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Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 38-40) (7/27/26) · The Epstein Chronicles

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're getting back to the Jeffrey Epstein OIG
• 0:06
  Speaker 1: report into the NPA. H opr's investigation did not reveal
• 0:11
  Speaker 1: evidence establishing that Epstein cooperated in other federal investigations or
• 0:17
  Speaker 1: received special treatment on that basis. One final issue OPR
• 0:21
  Speaker 1: explored stem from media reports suggesting that Epstein may have
• 0:25
  Speaker 1: received special treatment from the USAO in return for his
• 0:28
  Speaker 1: cooperation in another federal investigation. Media reports in mid two
• 0:33
  Speaker 1: thousand and nine suggested Epstein was released from his state
• 0:37
  Speaker 1: incarceration early because he was assisting in a financial crimes
• 0:41
  Speaker 1: investigation in the Eastern District of New York involving Epstein's
• 0:45
  Speaker 1: former employer, Bear Stearns. At the time, Villa Fauna was
• 0:48
  Speaker 1: notified by the asua's handling of the matter that they
• 0:52
  Speaker 1: had never heard of Epstein and he was providing absolutely
• 0:55
  Speaker 1: no cooperation to the government. In twenty eleven, Villa Fauna
• 1:00
  Speaker 1: reported to senior colleagues that this urban myth. The FBI
• 1:04
  Speaker 1: and I looked into this and do not believe that
• 1:07
  Speaker 1: any sort of it is true. Villafana told OPR that
• 1:10
  Speaker 1: the rumor that Epstein had cooperated with the case in
• 1:13
  Speaker 1: New York was completely false. Acosta told OPR that he
• 1:17
  Speaker 1: did not have any information about Epstein cooperating in a
• 1:20
  Speaker 1: financial investigation or relating to media reports that Epstein had
• 1:24
  Speaker 1: been an intelligence asset. In addition to the contemporaneous record
• 1:29
  Speaker 1: testing that Epstein was not a cooperating witness in a
• 1:32
  Speaker 1: federal matter, OPR found no evidence suggesting that Epstein was
• 1:36
  Speaker 1: such a cooperating witness or intelligence asset, or that anyone,
• 1:40
  Speaker 1: including any of the subjects of opr's investigation, believed that
• 1:44
  Speaker 1: to be the case, or that Epstein was afforded any
• 1:46
  Speaker 1: benefit on such a basis. OPR did not find any
• 1:50
  Speaker 1: reference to Epstein's purported cooperation or even a suggestion that
• 1:54
  Speaker 1: he had assisted in a different matter, in any of
• 1:57
  Speaker 1: the numerous communications sent by Defense count to the USAO
• 2:01
  Speaker 1: and the Department. It is highly unlikely that Defense counsel
• 2:05
  Speaker 1: would have omitted any reason warranting leniency for Epstein if
• 2:09
  Speaker 1: it had existed. Accordingly, OPR concludes that none of the
• 2:12
  Speaker 1: subjects of opr's investigation provided Epstein with any benefits on
• 2:17
  Speaker 1: the basis that he was a cooperating witness in an
• 2:20
  Speaker 1: unrelated federal investigation, and OPR found no evidence establishing that
• 2:24
  Speaker 1: Epstein had received benefits for cooperation in any matter. Part five,
• 2:30
  Speaker 1: Acosta exercised poor judgment by resolving the federal investigation through
• 2:34
  Speaker 1: the NPA. Although the OPR finds that none of the
• 2:38
  Speaker 1: subjects committed professional misconduct in this matter, OPR concludes that
• 2:43
  Speaker 1: Acosta exercised poor judgment when he agreed to end the
• 2:46
  Speaker 1: federal investigation through the NPA. Acosta's flawed application of petite
• 2:51
  Speaker 1: policy principles to this case and his concerns with overstepping
• 2:55
  Speaker 1: the boundaries of federalism led to a decision to resolve
• 2:59
  Speaker 1: the federal investigationation through an NPA that was too difficult
• 3:03
  Speaker 1: to administer, leaving Epstein free to manipulate the conditions of
• 3:06
  Speaker 1: his sentence to his own advantage. The NPA relied on
• 3:10
  Speaker 1: state authorities to implement the key terms, leading to an
• 3:13
  Speaker 1: absence of control by federal authorities over the process. Although
• 3:17
  Speaker 1: the prosecutors considered certain events that they addressed in the NPA,
• 3:22
  Speaker 1: such as gain time and community control, many other key
• 3:25
  Speaker 1: issues were not, such as work release and mechanisms for
• 3:28
  Speaker 1: implementing the Section twenty two fifty five provision. Important provisions
• 3:34
  Speaker 1: such as promising not to prosecute all potential co conspirators
• 3:38
  Speaker 1: were added with little discussion or consideration by the prosecutors.
• 3:42
  Speaker 1: In addition, although there were evidentiary and legal challenges to
• 3:46
  Speaker 1: a successful federal prosecution, a Costa prematurely decided to resolve
• 3:50
  Speaker 1: the case without adequately addressing ways in which a federal
• 3:54
  Speaker 1: case potentially could have been strengthened, such as by obtaining
• 3:58
  Speaker 1: Epstein's missing computer equipment. Finally, a lack of coordination within
• 4:02
  Speaker 1: the USAO compounded Acosta's flawed reasoning and resulted in insufficient
• 4:07
  Speaker 1: oversight over the process of drafting the NPA, a unique
• 4:11
  Speaker 1: document that required more detailed attention and review than it received.
• 4:15
  Speaker 1: These problems were, moreover, entirely avoidable because federal prosecution and
• 4:21
  Speaker 1: potentially a federal plea agreement existed as viable alternatives to
• 4:25
  Speaker 1: the NPA resolution. In evaluating Acosta's conduct, OPR has considered
• 4:30
  Speaker 1: and taken into account the fact that some of Epstein's
• 4:34
  Speaker 1: conduct known today was not known in two thousand seven,
• 4:37
  Speaker 1: and that other circumstances have changed in the interim, including
• 4:41
  Speaker 1: some victim's willingness to testify. OPR has also evaluated Acosta's
• 4:46
  Speaker 1: decision in a framework that recognizes and allows for decisions
• 4:50
  Speaker 1: that are made in good faith, even if the decision
• 4:53
  Speaker 1: in question may not have led to the best result
• 4:56
  Speaker 1: that potentially could have been obtained. Nonetheless, after can considering
• 5:00
  Speaker 1: all of the available evidence and the totality of the
• 5:03
  Speaker 1: then existing circumstances, OPR concludes that Acosta exercised poor judgment
• 5:09
  Speaker 1: in that he chose an action or course of action
• 5:12
  Speaker 1: that was in market contrast to that which the Department
• 5:16
  Speaker 1: would reasonably expect of an attorney exercising good judgment. A a
• 5:21
  Speaker 1: Costa's decision to resolve the federal investigation through a state
• 5:24
  Speaker 1: plea under terms incorporated into the NPA was based on
• 5:28
  Speaker 1: a flawed application of the petit policy and federalism concerns,
• 5:32
  Speaker 1: and failed to consider the significant disadvantages of a state
• 5:36
  Speaker 1: based resolution. The Department formulated the petit policy in response
• 5:40
  Speaker 1: to a series of Supreme Court opinions holding that the
• 5:43
  Speaker 1: Constitution does not deny the state and federal governments the
• 5:47
  Speaker 1: power to prosecute for the same act. Responding to the
• 5:50
  Speaker 1: Court's concerns about the potential for abuse in a rule
• 5:53
  Speaker 1: permitting duplicate prosecutions. The Department voluntarily adopted a policy of
• 5:58
  Speaker 1: declining to bring a federal prosecution following a completed state
• 6:02
  Speaker 1: prosecution for the same conduct, except when necessary to advance
• 6:06
  Speaker 1: a compelling federal interest Si. Ronaldi versus the United States,
• 6:10
  Speaker 1: four thirty four US at twenty eight. On its face,
• 6:14
  Speaker 1: the petite policy applies to federal prosecutions that follow completed
• 6:18
  Speaker 1: state prosecutions U. Sam. Section nine two dot zero three one.
• 6:23
  Speaker 1: This policy applies whenever there has been a prior state
• 6:26
  Speaker 1: prosecution resulting in an acquittal, a conviction, including one resulting
• 6:31
  Speaker 1: from a plea agreement, or a dismissal or other termination
• 6:34
  Speaker 1: of the case on the merits after jeopardy has attached.
• 6:38
  Speaker 1: When a state investigation or prosecution is still pending, the
• 6:41
  Speaker 1: policy does not apply. Indeed, even when a state prosecution
• 6:45
  Speaker 1: has resulted in a decision on the merits, the policy
• 6:49
  Speaker 1: permits a subsequent federal prosecution when three substantiative prerequisites are satisfied,
• 6:55
  Speaker 1: a substantial federal interest exists, the result in the prior
• 6:58
  Speaker 1: state prosecution was manifestly inadequate in light of the federal
• 7:02
  Speaker 1: interest involved, and there is a sufficient admissible evidence to
• 7:06
  Speaker 1: obtain and sustain a conviction on federal charges. The policy
• 7:10
  Speaker 1: also does not apply when the prior prosecution involved only
• 7:14
  Speaker 1: a minor part of the contemplated federal charges. No one
• 7:18
  Speaker 1: with whom OPR spoke disputed that the federal government had
• 7:22
  Speaker 1: a substantial interest in prosecuting Epstein, and her prosecution memorandum,
• 7:26
  Speaker 1: Villafauna identified five federal statutes that Epstein had potentially violated.
• 7:32
  Speaker 1: The CEO's chief described Villafauna's assessment of those statutes as exhaustive,
• 7:37
  Speaker 1: and he concurred with her analysis of their applicability to
• 7:40
  Speaker 1: the facts of the case. Epstein's crimes involved the sexual
• 7:43
  Speaker 1: exploitation of children, interstate travel, and the use of a
• 7:47
  Speaker 1: facility of interstate commerce, all of which were areas of
• 7:51
  Speaker 1: federal concern. Notably, in the early two thousands, the Department
• 7:55
  Speaker 1: had begun pursuing specific initiatives to combat child sex trafficking,
• 8:00
  Speaker 1: including projects Save Childhood, and Congress had then recently passed
• 8:04
  Speaker 1: the Protect Act. Acosta himself told OPR that the exploitation
• 8:08
  Speaker 1: of minors was an important federal interest, which in Epstein's case,
• 8:12
  Speaker 1: was compounded by the swordness of the acts involved and
• 8:15
  Speaker 1: the number of victims. It is also clear that because
• 8:18
  Speaker 1: the state case against Epstein was still pending and had
• 8:21
  Speaker 1: not reached the conviction, acquittal, or other decision on the merits,
• 8:25
  Speaker 1: the petit policy did not apply and certainly did not
• 8:28
  Speaker 1: preclude a federal prosecution of Epstein. He had been charged
• 8:32
  Speaker 1: with one state charge of solicitation to prostitution on three
• 8:35
  Speaker 1: occasions involving one or more other persons without regard to age,
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  Speaker 1: a charge that would have addressed only a scant portion
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  Speaker 1: of the conduct under federal investigation. Acosta acknowledged OPR that
• 8:48
  Speaker 1: the petit policy on its face did not apply. Moreover,
• 8:52
  Speaker 1: the state attorney did not challenge the federal government's assumption
• 8:55
  Speaker 1: of prosecutorial responsibility, and despite having obtained an indictment, held
• 9:00
  Speaker 1: back on proceeding with the state prosecution and deference of
• 9:03
  Speaker 1: the federal government's involvement. In these circumstances, the USAO was
• 9:08
  Speaker 1: free to proceed with a prosecution sufficient to ensure vindication
• 9:12
  Speaker 1: of the federal interests in prosecuting a man who traveled
• 9:15
  Speaker 1: interstate repeatedly to prey on minors. The federal government was
• 9:20
  Speaker 1: uniquely positioned to fully investigate the conduct of an individual
• 9:23
  Speaker 1: who engaged in a repeated criminal conduct in Florida, but
• 9:27
  Speaker 1: who also traveled extensively and had residences outside of Florida.
• 9:31
  Speaker 1: Even if the petit policy had applied, OPR has little
• 9:34
  Speaker 1: doubt that the USAO could have obtained authorization from the
• 9:38
  Speaker 1: Department to proceed with a prosecution under the circumstances of
• 9:42
  Speaker 1: this case, despite the undeniable federal interest in prosecuting Epstein,
• 9:47
  Speaker 1: the fact that the petit policy did not apply, and
• 9:50
  Speaker 1: the state attorney's willingness to hold the state prosecution in
• 9:53
  Speaker 1: abeyance pending the federal government's assumption of the case. A
• 9:57
  Speaker 1: Costa viewed the federal government's role and prosecuting Epstein as
• 10:01
  Speaker 1: limited by principles of federalism. In essence, a cost of
• 10:04
  Speaker 1: believe that a federal prosecution would have interfered improperly with
• 10:08
  Speaker 1: the state's authority. He explained his reasoning to OPR. The
• 10:12
  Speaker 1: prosecution was going forward on the part of the state,
• 10:16
  Speaker 1: and so here is the big bad federal government stepping
• 10:18
  Speaker 1: on a sovereign state saying you're not doing enough, when,
• 10:21
  Speaker 1: to my mind, the whole idea of the petit policy
• 10:24
  Speaker 1: is recognized that the state is an independent entity, and
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  Speaker 1: that we should presume that what they're doing is correct
• 10:31
  Speaker 1: even if we don't like the outcome, except in the
• 10:33
  Speaker 1: most unusual of circumstances. A Costa told OPR that absent
• 10:38
  Speaker 1: USAO intervention, the state's prosecution of Epstein would have become final,
• 10:42
  Speaker 1: and accordingly it was prudent to employ petit policy analysis.
• 10:46
  Speaker 1: In a Costa's view, the federal responsibility in this unique
• 10:50
  Speaker 1: situation was merely to serve as a backstop to the
• 10:52
  Speaker 1: state authorities to ensure that there was no miscarriage of justice.
• 10:56
  Speaker 1: A Costa told OPR that he understood the palm each
• 11:00
  Speaker 1: police would not have brought Epstein to the FBI's attention
• 11:03
  Speaker 1: if the state attorney had pursued the charges that required
• 11:06
  Speaker 1: Epstein's incarceration. Acosta therefore decided that the USAO could avert
• 11:11
  Speaker 1: a manifest injustice by forcing the state to do more
• 11:15
  Speaker 1: and require Epstein to serve jail time and register as
• 11:18
  Speaker 1: a sexual offender. Acosta's reasoning was flawed and unduly constricted.
• 11:23
  Speaker 1: Acosta repeated references to a miscarriage of justice or a
• 11:27
  Speaker 1: manifest injustice echoes the manifestly inadequate language used in the
• 11:31
  Speaker 1: Petit Policy to define the circumstances in which the federal
• 11:35
  Speaker 1: government may proceed with a criminal case after a completed
• 11:38
  Speaker 1: state prosecution. Nothing in the petit policy, however, requires similar
• 11:43
  Speaker 1: restraint when the federal government pursues a case in the
• 11:46
  Speaker 1: absence of a completed state prosecution, even if the state
• 11:50
  Speaker 1: is already investigating the same offense. The goal of the
• 11:53
  Speaker 1: petit policy is to prevent multiple prosecutions for the same offense,
• 11:57
  Speaker 1: not to compel the federal government to defer to a
• 12:00
  Speaker 1: parallel state interest in a case, particularly one in which
• 12:04
  Speaker 1: state officials involved in the state prosecution express significant concerns
• 12:08
  Speaker 1: about it, and there were questions regarding the state prosecutor's
• 12:12
  Speaker 1: commitment to the case. A Costa told OPR that there
• 12:16
  Speaker 1: are any number of instances where the federal government or
• 12:19
  Speaker 1: the state government can proceed and the state charges are
• 12:22
  Speaker 1: substantially less and different, and the federal government stands aside
• 12:26
  Speaker 1: and lets the state proceed. The fact that the federal
• 12:29
  Speaker 1: government can allow the state to proceed with a prosecution, however,
• 12:33
  Speaker 1: does not mean the federal government is compelled to do so,
• 12:36
  Speaker 1: particularly in a matter in which a distinct and important
• 12:40
  Speaker 1: federal interest exists. Indeed, the state attorney told OPR that
• 12:44
  Speaker 1: the federal government regularly takes over cases initiated by state investigators,
• 12:50
  Speaker 1: typically because federal charges result in the best sentence. All right, folks,
• 12:54
  Speaker 1: we're going to wrap up right here, and in the
• 12:56
  Speaker 1: next episode on the topic, we're going to pick up
• 12:58
  Speaker 1: where we left off. All of the information that goes
• 13:01
  Speaker 1: with this episode can be found in the description box.
• 13:05
  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
• 13:09
  Speaker 1: This episode, we're picking up where we left off with
• 13:12
  Speaker 1: the OIG report into Jeffrey Epstein's non prosecution agreement. Epstein
• 13:17
  Speaker 1: was facing a substantial sentence under the federal sentencing guidelines.
• 13:21
  Speaker 1: Despite the Ashcroft Memos directive that federal prosecutors pursue the
• 13:26
  Speaker 1: most serious, readily provable offense, a Costa's decision to push
• 13:30
  Speaker 1: the state to do a little bit more does not
• 13:32
  Speaker 1: approach that standard. In fact, Acosta conceded during his OPR
• 13:36
  Speaker 1: interview that the NPA did not represent an appropriate punishment
• 13:40
  Speaker 1: in the federal system, nor even the best outcome in
• 13:43
  Speaker 1: the state system, and that if the investigation of Epstein
• 13:46
  Speaker 1: had originated with the FBI rather than a referral from
• 13:49
  Speaker 1: the PbD, the outcome might have been different. As US
• 13:53
  Speaker 1: Attorney Acosta had the authority to depart from the Ashcroft Memo.
• 13:58
  Speaker 1: He told OPR, however, that he did not recall discussing
• 14:01
  Speaker 1: the Ashcroft Memo with his colleagues, and nothing in the
• 14:04
  Speaker 1: contemporaneous documentary record suggests that he made a conscious decision
• 14:08
  Speaker 1: to depart from it when he decided to resolve the
• 14:11
  Speaker 1: federal investigation through the NPA instead, it appears that Acosta
• 14:16
  Speaker 1: simply failed to consider the tension between federal charging policy
• 14:20
  Speaker 1: and a strong federal interest in the case on the
• 14:23
  Speaker 1: one hand, and his broad reading of the petite policy
• 14:27
  Speaker 1: and his general concerns about federalism on the other hand.
• 14:30
  Speaker 1: OPR concludes that Acosta view the federal government's role in
• 14:34
  Speaker 1: prosecuting Epstein too narrowly and through the wrong prism. Furthermore,
• 14:39
  Speaker 1: Acosta's federalism concerns about intruding on the state's autonomy resulted
• 14:43
  Speaker 1: in an outcome the NPA that intruded far more on
• 14:47
  Speaker 1: the state's autonomy than a decision to pursue a federal
• 14:50
  Speaker 1: prosecution would have. By means of the NPA, the federal
• 14:54
  Speaker 1: government dictated to the state, the charges, the sentence, the timing,
• 14:58
  Speaker 1: the certain conditions that the state had to obtain during
• 15:02
  Speaker 1: the state's own prosecution. Acosta acknowledged during his OPR interview
• 15:06
  Speaker 1: that his attempts to backstop the state here rebounded because
• 15:09
  Speaker 1: in the process it ended up being arguably more intrusive.
• 15:14
  Speaker 1: Acosta's concern about invading the state's authority led to additional
• 15:18
  Speaker 1: negative consequences. Acosta revised the draft NPA in several respects
• 15:23
  Speaker 1: to soften its tone by substituting provisions requiring Epstein to
• 15:27
  Speaker 1: make his best efforts for language that appeared to dictate
• 15:30
  Speaker 1: certain actions to the state. In doing so, however, Acosta
• 15:35
  Speaker 1: undermined the enforceability of the agreement, making it difficult later
• 15:39
  Speaker 1: to declare Epstein in breach when he failed to comply.
• 15:42
  Speaker 1: OPR found no indication that when deciding to resolve the
• 15:46
  Speaker 1: federal prosecution through a mechanism that relied completely on state action,
• 15:50
  Speaker 1: Acosta considered the numerous disadvantages of having Epstein plead guilty
• 15:54
  Speaker 1: in the state court system, a system in which none
• 15:57
  Speaker 1: of the subjects had practiced and with with which they
• 16:00
  Speaker 1: were unfamiliar. Villa Fauna recognized that there were a lot
• 16:04
  Speaker 1: of ways to manipulate state sentences, and she told OPR
• 16:07
  Speaker 1: that she was concerned from the outset of negotiations about
• 16:11
  Speaker 1: entering into the NPA because by sending the case back
• 16:14
  Speaker 1: to the state, the USAO was giving up all control
• 16:18
  Speaker 1: over what was going on. Villa Fauna also told OPR
• 16:22
  Speaker 1: that defense counsel had a lot of experience with the
• 16:25
  Speaker 1: state system. We did not Epstein's ability to obtain work
• 16:29
  Speaker 1: release of provision directly contrary to the usao's intent with
• 16:34
  Speaker 1: respect to Epstein's sentence, and it's a clear example of
• 16:37
  Speaker 1: the problem faced by the prosecutors when trying to craft
• 16:40
  Speaker 1: a plea that depended on a judicial system with which
• 16:43
  Speaker 1: they were unfamiliar and over which they had no control.
• 16:47
  Speaker 1: Although the issue of gain time was considered and addressed
• 16:50
  Speaker 1: in the NPA, none of the subject attorneys negotiating the
• 16:53
  Speaker 1: NPA realized until after the NPA was signed that Epstein
• 16:57
  Speaker 1: might be eligible for work release. Acosta in particular told
• 17:01
  Speaker 1: OPR that if it was typical to provide that kind
• 17:05
  Speaker 1: of work release in these cases, that would have been
• 17:08
  Speaker 1: news to me. Because work release was not anticipated. The
• 17:12
  Speaker 1: NPA did not specifically address it, and the USAO was
• 17:16
  Speaker 1: unable to foreclose Epstein from applying for admission to the program.
• 17:20
  Speaker 1: The sexual offender registration provision is yet another example of
• 17:24
  Speaker 1: how Acosta's decision to create an unorthodox mechanism that relied
• 17:28
  Speaker 1: on state procedures to resolve the federal investigation led to
• 17:32
  Speaker 1: unanticipated consequences benefiting Epstein. Acosta told OPR that one of
• 17:38
  Speaker 1: the core aspects of the NPA was a requirement that
• 17:41
  Speaker 1: Epstein plead guilty to a state charge requiring registration as
• 17:45
  Speaker 1: a sexual offender. He cited it as a provision that
• 17:48
  Speaker 1: he insisted on from the beginning and from which he
• 17:51
  Speaker 1: never wavered. However, the USAO failed to anticipate certain factors
• 17:56
  Speaker 1: that affected the sexual offender registration requirement in other states
• 18:00
  Speaker 1: where Epstein had a residence. In selecting the conduct for
• 18:03
  Speaker 1: the factual basis for the crime requiring sexual offender registration,
• 18:07
  Speaker 1: the state chose conduct involving a victim who was at
• 18:10
  Speaker 1: least sixteen years old at the time of her interactions
• 18:13
  Speaker 1: with Epstein. Even though Epstein had sexual contact with a
• 18:16
  Speaker 1: fourteen year old victim, the victim's age made a difference
• 18:20
  Speaker 1: as the edge of consent. In New Mexico, where Epstein
• 18:23
  Speaker 1: had residence, was sixteen. Therefore, Epstein was not required to
• 18:27
  Speaker 1: register in that state. As a two thousand and six
• 18:30
  Speaker 1: letter from Defense Council Left Court to the State Attorney's
• 18:33
  Speaker 1: office made clear the defense team had thoroughly researched the
• 18:36
  Speaker 1: details and ramifications of Florida's sexual offender registration requirement, OPR
• 18:41
  Speaker 1: did not find evidence indicating similar research and consideration by
• 18:45
  Speaker 1: the USAO. Finally, Acosta was well aware that the PbD
• 18:50
  Speaker 1: brought the case to the FBI's attention because of the
• 18:53
  Speaker 1: concern that the State Attorney's office had succumbed to pressure
• 18:56
  Speaker 1: from Defense Council. Villa Fauna told OPR that she informed
• 19:00
  Speaker 1: both Acosta and Sloman of this when she met them
• 19:03
  Speaker 1: at the start of the federal investigation. Although Acosta did
• 19:07
  Speaker 1: not remember the meeting with Villafana, he repeatedly told OPR
• 19:11
  Speaker 1: during his interview that he was aware that PbD was
• 19:14
  Speaker 1: dissatisfied with the State Attorney's office handling of the case
• 19:18
  Speaker 1: shortly before the NPA was signed. Moreover, additional information came
• 19:22
  Speaker 1: to light that suggested the State Attorney's office was predisposed
• 19:26
  Speaker 1: to manipulating the process in Epstein's favor, Specifically, during the
• 19:30
  Speaker 1: September twelve, two thousand and seven meeting, at the state
• 19:34
  Speaker 1: prosecutor's suggestion, the USAO team agreed with Acosta's subsequent approval
• 19:39
  Speaker 1: to permit Epstein to plead guilty to one state charge
• 19:42
  Speaker 1: of solicitational miners to engage in prostitution, rather than the
• 19:46
  Speaker 1: three charges the USAO had originally specified. The state prosecutor
• 19:50
  Speaker 1: assured Lori that the selected charge would require Epstein to
• 19:54
  Speaker 1: register as a sexual offender. Shortly thereafter, the USAO was
• 19:59
  Speaker 1: told by defense count So that despite the assurances made
• 20:02
  Speaker 1: to Lori, the state prosecutor had advised Epstein incorrectly. It
• 20:06
  Speaker 1: turned out that a plea to the particular offense would
• 20:09
  Speaker 1: not require him to register as a sexual offender. Yet,
• 20:12
  Speaker 1: despite this evidence, which at least suggested that the state
• 20:15
  Speaker 1: authorities should not have been considered to be a reliable
• 20:18
  Speaker 1: partner in enforcing the NPA, Acosta did not alter his
• 20:22
  Speaker 1: decision about proceeding with a process that depended completely on
• 20:26
  Speaker 1: state authorities for its successful execution. OPR finds that Acosto
• 20:31
  Speaker 1: was reasonably aware of the facts and circumstances presented in
• 20:35
  Speaker 1: this case. He stated that he engaged in discussions about
• 20:38
  Speaker 1: various aspects of the case with Sloman and Menchel, and
• 20:41
  Speaker 1: relied upon them for their evaluation of the legal and
• 20:45
  Speaker 1: evidentiary issues and for their assessment of trial issues. Acosta
• 20:49
  Speaker 1: was copied on many substantive emails, reviewed and revised drafts
• 20:53
  Speaker 1: of the NPA, and approved the final agreement. Yet, rather
• 20:57
  Speaker 1: than focusing on whether the state's prosecution was sufficient to
• 21:00
  Speaker 1: satisfy the federal interest in prosecuting Epstein, a Costa focused
• 21:05
  Speaker 1: on achieving the minimum outcome necessary to satisfy the state's interest,
• 21:09
  Speaker 1: as defined in part by the state's indictment, by using
• 21:12
  Speaker 1: the threat of federal prosecution to dictate the terms of
• 21:15
  Speaker 1: Epstein's state guilty plea. As US attorney, Acosta had the
• 21:19
  Speaker 1: authority to resolve the case in this manner, but o
• 21:22
  Speaker 1: pr concludes that, in light of all the surrounding circumstances,
• 21:25
  Speaker 1: his decision to do so reflected poor judgment. Acosta's application
• 21:30
  Speaker 1: of petite policy principles was too expansive, his view of
• 21:34
  Speaker 1: the federal interest in prosecuting Epstein was too narrow, and
• 21:37
  Speaker 1: his understanding of the state system was too imperfect to
• 21:41
  Speaker 1: justify the decision to use the NPA b the assessment
• 21:45
  Speaker 1: of the merits of a potential federal prosecution was undermined
• 21:49
  Speaker 1: by the failure to obtain evidence or take other investigative
• 21:52
  Speaker 1: steps that could have changed the complexion of the case.
• 21:57
  Speaker 1: The leniency resulting from Acosta's decision to resolve the case
• 22:00
  Speaker 1: through the NPA is also troubling because the USAO reached
• 22:05
  Speaker 1: agreement on the terms of the NPA without fully pursuing
• 22:08
  Speaker 1: evidence that could have changed the complexion of the case
• 22:11
  Speaker 1: or afforded the USAO significant leverage and negotiating with Epstein.
• 22:16
  Speaker 1: Acosta told OPR that his decision to resolve the federal
• 22:20
  Speaker 1: investigation through the NPA was in part due to concerns
• 22:23
  Speaker 1: about the merits of the case and concerns about whether
• 22:27
  Speaker 1: the government could win at trial. Yet Acosta made the
• 22:30
  Speaker 1: decision to resolve the case through state based resolution and
• 22:33
  Speaker 1: extended that proposal to Epstein's defense attorneys before the investigation
• 22:38
  Speaker 1: was completed. As the investigation progressed, the FBI continued to
• 22:42
  Speaker 1: locate additional victims, and many had not been interviewed by
• 22:45
  Speaker 1: the FBI by the time of the initial offer. In
• 22:49
  Speaker 1: other words, at the time of Acosta's decision, the USAO
• 22:52
  Speaker 1: did not know the full scope of Epstein's conduct, whether,
• 22:55
  Speaker 1: given Epstein's other domestic and foreign residences, his criminal compt
• 23:00
  Speaker 1: conduct had occurred in other locations, or whether the additional
• 23:03
  Speaker 1: victims might implicate other offenders. In addition, Villa Fauna planned
• 23:08
  Speaker 1: to approach the female assistance to attempt to obtain cooperation,
• 23:12
  Speaker 1: but that step had not been taken. Most importantly, a
• 23:15
  Speaker 1: costa and to the investigation without the USAO having obtained
• 23:19
  Speaker 1: an important category of potentially significant evidence. The computers removed
• 23:24
  Speaker 1: from Epstein's home prior to the pbd's execution of a
• 23:27
  Speaker 1: search warrant. The PbD knew that Epstein had surveillance cameras
• 23:32
  Speaker 1: stationed in and around his home, which potentially captured video
• 23:35
  Speaker 1: evidence of people visiting his residence, and that before the
• 23:40
  Speaker 1: state search warrant was executed on that property, the computer
• 23:43
  Speaker 1: equipment associated with those cameras had been removed. Vila Fauna
• 23:47
  Speaker 1: knew who had possession of the computer equipment. Surveillance images
• 23:51
  Speaker 1: might have shown the victim's visits, and photographic evidence of
• 23:55
  Speaker 1: their appearance at the time of their encounters with Epstein
• 23:58
  Speaker 1: could have countered the anticipation argument that Epstein was unaware
• 24:02
  Speaker 1: that these girls were miners. The surveillance video might have
• 24:05
  Speaker 1: shown additional victims the investigators had not yet identified. Such
• 24:09
  Speaker 1: images could have been powerful visual evidence of the large
• 24:13
  Speaker 1: number of girls Epstein victimized and the frequency of their
• 24:16
  Speaker 1: visits to his home, potentially persuasive proof to a jury
• 24:19
  Speaker 1: that this was not a simple solicitation case. Epstein's personal
• 24:24
  Speaker 1: computers possibly contained even more damning evidence. Vilafauna told OPR
• 24:29
  Speaker 1: that the FBI had information that Epstein used hidden cameras
• 24:33
  Speaker 1: in New York residence to record his sexual encounters, and
• 24:36
  Speaker 1: one victim told the agents that Epstein's assistant photographed in
• 24:40
  Speaker 1: the nude. Based on this evidence and experience in other
• 24:43
  Speaker 1: sex cases involving miners, Villa Fauna and several other witnesses
• 24:47
  Speaker 1: opined to OPR that the computers might have contained damning information. Moreover,
• 24:52
  Speaker 1: Epstein lived in a multi state lifestyle. It was reasonable
• 24:55
  Speaker 1: to assume that he may have transmitted still images or
• 24:58
  Speaker 1: videos taken at his floor to residence over the Internet
• 25:01
  Speaker 1: to be accessed while at one of his other homes
• 25:04
  Speaker 1: or while traveling. The interstate transmission of such things was
• 25:07
  Speaker 1: a separate and serious federal crime and could have changed
• 25:10
  Speaker 1: the entire complexion of the case against Epstein. Villa Fauna
• 25:14
  Speaker 1: told OPR, if the evidence had been what we suspected
• 25:17
  Speaker 1: it was, it would have put this case completely to bed.
• 25:20
  Speaker 1: It also would have completely defeated all of these arguments
• 25:23
  Speaker 1: about interstate nexus. Because she recognized the potential significance of
• 25:27
  Speaker 1: this evidence, Villa Fauna attempted to obtain the missing computers.
• 25:32
  Speaker 1: After Villa Fauna learned that an individual associated with one
• 25:35
  Speaker 1: of Epstein's attorneys had possession of the computer equipment that
• 25:38
  Speaker 1: was removed from Epstein's home, she consulted with the department
• 25:42
  Speaker 1: subject matter experts to determine how best to obtain the evidence.
• 25:46
  Speaker 1: Following the advice she received, and after notifying her supervisors,
• 25:51
  Speaker 1: Villa Fauna took the legal steps to obtain the computer equipment.
• 25:55
  Speaker 1: All right, we're going to wrap up this episode right here,
• 25:57
  Speaker 1: and then the next episode we're going to pick up
• 25:59
  Speaker 1: where we left off. All of the information that goes
• 26:02
  Speaker 1: with this episode can be found in the description box.
• 26:06
  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
• 26:10
  Speaker 1: This episode, we're picking up where we left off with
• 26:12
  Speaker 1: the OIG report into Jeffrey Epstein's andpa Epstein's team sought
• 26:18
  Speaker 1: to postpone compliance with the usao's demand for the equipment.
• 26:23
  Speaker 1: In late June two thousand and seven, Defense attorney Sanchez
• 26:26
  Speaker 1: requested an extension of time to comply. In informing Slowman
• 26:30
  Speaker 1: Menchelin LORII of the request, Villa Fauna stressed that we
• 26:34
  Speaker 1: want to get the computer equipment that was removed from
• 26:37
  Speaker 1: Epstein's home prior to the state search warrant as soon
• 26:40
  Speaker 1: as possible. She agreed to extend the date for producing
• 26:43
  Speaker 1: the computer equipment by one week until July seventeenth, two
• 26:48
  Speaker 1: thousand and seven. On that day, Epstein initiated litigation regarding
• 26:52
  Speaker 1: the computer equipment, and that litigation was still pending at
• 26:56
  Speaker 1: the end of July, when Acosta decided to resolve the
• 26:59
  Speaker 1: federal investigation in exchange for a plea in state court
• 27:03
  Speaker 1: to a charge that carried a two year sentence. The
• 27:06
  Speaker 1: FBI COCSE agent told OPR that in a meeting to
• 27:10
  Speaker 1: discuss the resolution at which the FBI was present, the
• 27:13
  Speaker 1: co case agent specifically suggested that the USAO wait to
• 27:18
  Speaker 1: pursue a resolution until after the litigation was resolved. But
• 27:22
  Speaker 1: this suggestion was pushed under the rug without comment. Although
• 27:26
  Speaker 1: the COCASE agent could not recall who was present, the
• 27:29
  Speaker 1: case agent recalled that Menchel led the meeting, which occurred
• 27:32
  Speaker 1: while the litigation was still pending. Even after the NPA
• 27:36
  Speaker 1: two year state Plea resolution was presented to the defense,
• 27:39
  Speaker 1: Villa Fauna continued to press ahead to have the court
• 27:42
  Speaker 1: resolve the issue concerning the defense production of the computer equipment.
• 27:46
  Speaker 1: On August tenth, two thousand and seven, she asked Lori
• 27:49
  Speaker 1: for authorization to oppose Epstein's efforts to stay the litigation
• 27:54
  Speaker 1: until after an anticipated meeting between the USAO and the defense,
• 27:58
  Speaker 1: informing Lori that Evaivictim interviewed that we claim she started
• 28:02
  Speaker 1: seeing Epstein at age fourteen and he had photographed her
• 28:05
  Speaker 1: in the nude. A few days later, Villa Fauna told
• 28:08
  Speaker 1: Defense Council that she had conferred with the appropriate people
• 28:11
  Speaker 1: and we are not willing to agree to a stay.
• 28:14
  Speaker 1: Defense Council then contacted Lorie, who agreed to postpone the
• 28:18
  Speaker 1: hearing until after the upcoming meeting with Acosta. After the
• 28:22
  Speaker 1: meeting and when the court sought to reschedule the hearing,
• 28:25
  Speaker 1: Villa Fauna emailed Sloman to ask if she should put
• 28:28
  Speaker 1: it off. He replied yes, and the hearing was reset
• 28:31
  Speaker 1: for September eighteenth, two thousand and seven. As negotiations towards
• 28:36
  Speaker 1: the NPA progressed, however, the hearing was postponed indefinitely. Ultimately,
• 28:41
  Speaker 1: the NPA itself put the issued arrest by specifying that
• 28:45
  Speaker 1: all legal process would be held in abeyance unless and
• 28:50
  Speaker 1: until Epstein breached the agreement. Villa Fauna told OPR that
• 28:54
  Speaker 1: she had learned through law enforcement channels that the defense
• 28:57
  Speaker 1: team had reviewed the contents of Epstein's computers. She told OPR,
• 29:01
  Speaker 1: in her view, the fact that the defense was trying
• 29:03
  Speaker 1: desperately to put off the hearing was further evidence of
• 29:06
  Speaker 1: the importance of the evidence. OPR questioned the Costa about
• 29:11
  Speaker 1: the decisions to initiate and continue with the NPA negotiations
• 29:15
  Speaker 1: while the litigation concerning the computers was still pending, and
• 29:18
  Speaker 1: to agree to postpone the litigation rather than exhausting all
• 29:22
  Speaker 1: efforts to obtain and review the computer evidence. Acosta told
• 29:27
  Speaker 1: OPR that he had no recollection of Villafauna's efforts to
• 29:30
  Speaker 1: obtain the missing computers, but he believed that there was
• 29:33
  Speaker 1: a desire to move quickly as opposed to slowly regarding
• 29:36
  Speaker 1: the plea. Menchell, Sloman, and Laurie also told OPR that
• 29:40
  Speaker 1: they did not remember Villa Fauna's efforts to obtain the computers,
• 29:44
  Speaker 1: or recall the issue only vaguely. Menchell expressed surprise to
• 29:48
  Speaker 1: OPR that a prosecutor could obtain an entire computer through
• 29:52
  Speaker 1: the method utilized by Villa Fauna, telling OPR I had
• 29:55
  Speaker 1: not heard of that. However, the contemporaneous records showed that Sloman, Menchell,
• 30:00
  Speaker 1: and Laurie each had been aware in two thousand and
• 30:03
  Speaker 1: seven of Villa Fauna's efforts to obtain Epstein's missing computer equipment.
• 30:07
  Speaker 1: Villa Fauna kept Menchell in particular well informed of her
• 30:11
  Speaker 1: efforts to obtain the computer equipment. She sent to Menchell
• 30:15
  Speaker 1: or copied them on several emails about her plan to
• 30:18
  Speaker 1: obtain the computer equipment. Specifically, her emails on May eighteenth,
• 30:22
  Speaker 1: two thousand and seven, July three, two thousand and seven,
• 30:25
  Speaker 1: and July sixteen, two thousand and seven all discussed her
• 30:28
  Speaker 1: proposed steps. Villa Fauna told OPR that Lourie was involved
• 30:32
  Speaker 1: in early discussions about her proposal. To obtain the evidence.
• 30:36
  Speaker 1: Laurie also received Villa Fauna's July sixteen, two thousand and
• 30:40
  Speaker 1: seven email discussing the computer equipment and the plan to
• 30:43
  Speaker 1: obtain it, and on one occasion he spoke directly with
• 30:46
  Speaker 1: one of Epstein's defense attorneys about it. Slowman told OPR
• 30:51
  Speaker 1: during his interview that he vaguely remembered the computer issue.
• 30:54
  Speaker 1: The documentary evidence confirms that he had at least some
• 30:58
  Speaker 1: contemporaneous knowledge of the issue. When asked by Villa Fauna
• 31:01
  Speaker 1: whether to put off September twelfth, two thousand and seven
• 31:04
  Speaker 1: hearing on the litigation, he told her to do so. Finally,
• 31:08
  Speaker 1: as noted previously, the FBI co case agent proposed at
• 31:12
  Speaker 1: a meeting with the USAO personnel that the USAO wait
• 31:16
  Speaker 1: until the litigation was resolved before pursuing plea negotiations. Contemporaneous
• 31:22
  Speaker 1: records show that Acosta was likely aware before the NPA
• 31:26
  Speaker 1: was signed of the usao's efforts to obtain custody of
• 31:29
  Speaker 1: Epstein's computers, and that after the NPA was signed, he
• 31:33
  Speaker 1: was informed about the use of legal process for obtaining
• 31:36
  Speaker 1: the computer equipment. The NPA itself provides that the federal
• 31:40
  Speaker 1: investigation will be suspended and all pending legal process will
• 31:44
  Speaker 1: be held in abeyance, that Epstein will withdraw his motion
• 31:48
  Speaker 1: to intervene to quash certain legal processes, and further that
• 31:51
  Speaker 1: the parties would maintain evidence subject to the legal process
• 31:55
  Speaker 1: that may have been issued and including certain computer equipment
• 31:59
  Speaker 1: in viol until the NPA's terms had been fully satisfied,
• 32:03
  Speaker 1: at which point the legal process would be deemed withdrawn.
• 32:07
  Speaker 1: Acosta's numerous edits on the NPA's final draft suggests that
• 32:11
  Speaker 1: he gave it a close read, and OPR expects that
• 32:13
  Speaker 1: Acosta would not have approved the agreement without understanding what
• 32:17
  Speaker 1: legal process his office was agreeing to withdraw or why
• 32:22
  Speaker 1: the only type of evidence specified with certain computer equipment.
• 32:26
  Speaker 1: In addition, Acosta told OPR that he worked closely with
• 32:29
  Speaker 1: Sloman and Mentchel, consulted with them, and relied on their
• 32:33
  Speaker 1: council about the case. Among other things, Acosta said he
• 32:37
  Speaker 1: discussed with them concerns about the law and the evidentiary
• 32:40
  Speaker 1: issues presented by a federal criminal trial. Therefore, although it's
• 32:44
  Speaker 1: possible that Sloman made the decision to postpone the hearing
• 32:47
  Speaker 1: concerning the usao's efforts to obtain the computer equipment without
• 32:52
  Speaker 1: consulting Acosta. Once Acosta reviewed the draft NPA, Acosta was
• 32:57
  Speaker 1: on notice of the existence of and the ongoing litigation
• 33:00
  Speaker 1: concerning Epstein's missing computer equipment. Villa Fauna knew where the
• 33:05
  Speaker 1: computers were. Litigation over the demand for the equipment was
• 33:08
  Speaker 1: already underway. There was a good reason to believe the
• 33:12
  Speaker 1: computers contained relevant and potentially critical information, and it was
• 33:16
  Speaker 1: clear Epstein did not want the contents of his computers disclosed.
• 33:20
  Speaker 1: Nothing in the available record reveals that the USAO benefited
• 33:23
  Speaker 1: from abandoning pursuit of this evidence when they did, or
• 33:27
  Speaker 1: that there was a significant consideration of the costs and
• 33:30
  Speaker 1: benefits of foregoing the litigation to obtain production of the computers. Instead,
• 33:36
  Speaker 1: the USAO agreed to postpone and ultimately abandoned its efforts
• 33:40
  Speaker 1: to obtain evidence that could have significantly changed a costa's
• 33:44
  Speaker 1: decision to resolve the federal investigation with a state plea
• 33:48
  Speaker 1: or led to additional significant federal charges. By agreeing to
• 33:52
  Speaker 1: postpone the litigation, the USAO gave away leverage that might
• 33:56
  Speaker 1: have caused the defense to come to an agreement much
• 33:59
  Speaker 1: earlier on terms more favorable to the government. The USAO
• 34:03
  Speaker 1: ultimately agreed to a term in the NPA that permanently
• 34:06
  Speaker 1: ended the government's ability to obtain possible evidence of significant crimes,
• 34:11
  Speaker 1: and did so with apparently little serious consideration of the
• 34:15
  Speaker 1: potential cost. To be clear, OPR is not suggesting that
• 34:19
  Speaker 1: prosecutors must obtain all available evidence before reaching plea agreements,
• 34:24
  Speaker 1: or that prosecutors cannot reasonably determine that reaching a resolution
• 34:28
  Speaker 1: more beneficial than continuing to litigate evidentiary issues. Every case
• 34:33
  Speaker 1: is different and must be judged on its own facts.
• 34:36
  Speaker 1: In this case, however, given the unorthodox nature of the
• 34:39
  Speaker 1: state based resolution, the fact that a Costa's decision to
• 34:43
  Speaker 1: pursue it set the case on a wholly different track
• 34:46
  Speaker 1: than what would have originally contemplated by his experienced staff,
• 34:50
  Speaker 1: the nature and scope of Epstein's criminal conduct, the circumstances
• 34:54
  Speaker 1: surrounding the removal of the computers from Epstein's residence, and
• 34:58
  Speaker 1: the potential of obtaining evidence rod feeling serious additional criminal conduct,
• 35:03
  Speaker 1: a Costa had a responsibility to ensure that he was
• 35:06
  Speaker 1: fully informed about the consequences of pursuing the course of
• 35:09
  Speaker 1: action that he proposed, and particularly about the consequences flowing
• 35:14
  Speaker 1: from the express terms of the NPA. In deciding to
• 35:18
  Speaker 1: resolve the case pre charge, Acosta lost sight of the
• 35:21
  Speaker 1: bigger picture that the investigation was not completed and viable
• 35:25
  Speaker 1: leads remained to be pursued. The decision to forego the
• 35:29
  Speaker 1: government's efforts to obtain the computer evidence and to pursue
• 35:32
  Speaker 1: significant investigative steps should have been made only after careful
• 35:36
  Speaker 1: consideration of all the costs and benefits of the proposed action.
• 35:41
  Speaker 1: OPR did not find evidence that Acosta fully considered the
• 35:44
  Speaker 1: costs of ending the investigation prematurely. See OPR was unable
• 35:49
  Speaker 1: to determine the basis for the two year term of incarceration,
• 35:53
  Speaker 1: that it was tied to traditional sentencing goals, or that
• 35:56
  Speaker 1: it satisfied the federal interest in the prosecution in the
• 36:00
  Speaker 1: heart of the controversy surrounding the Epstein case, as he apparent,
• 36:03
  Speaker 1: undue leniency afforded him concerning his sentence. After offering a
• 36:08
  Speaker 1: deal that required a non negotiable twenty four month term
• 36:11
  Speaker 1: of incarceration, a Costa agreed to resolve it for eighteen
• 36:14
  Speaker 1: month term of incarceration, knowing that gain time would reduce
• 36:18
  Speaker 1: it further, and indeed Epstein served only thirteen months. Epstein
• 36:23
  Speaker 1: ultimately did not serve even that minimal sentence incarcerated on
• 36:27
  Speaker 1: a full time basis, because the state allowed Epstein into
• 36:30
  Speaker 1: its work release program within the first four months of
• 36:33
  Speaker 1: his sentence. As Lourie told OPR, everything else that happened
• 36:37
  Speaker 1: to Epstein is exactly what should have happened to him.
• 36:40
  Speaker 1: He had to pay a lot of money, he had
• 36:41
  Speaker 1: to register as a sex offender, but in the perfect world,
• 36:44
  Speaker 1: Epstein would have served more jail time. Due to the
• 36:48
  Speaker 1: passage of time and the subjects inability to recall many
• 36:51
  Speaker 1: details of the relevant events, OPR was unable to develop
• 36:55
  Speaker 1: a clear understanding of how the original two year sentence
• 36:58
  Speaker 1: requirement was developed or by whom. Two possibilities were articulated
• 37:03
  Speaker 1: during opr's subject interviews. One two years presented the sentence
• 37:07
  Speaker 1: Epstein would have received if he had pled guilty to
• 37:10
  Speaker 1: an unspecified charge originally contemplated by the state. Or Two,
• 37:15
  Speaker 1: the two years represented the sentence the USAO determined Epstein
• 37:19
  Speaker 1: would be willing to accept, thus avoiding the need for
• 37:22
  Speaker 1: a trial. As to the former possibility, a Costa told
• 37:26
  Speaker 1: OPR that his understanding of the two year proposal was
• 37:29
  Speaker 1: that it correlated to one of the original state charges.
• 37:33
  Speaker 1: He elaborated constructing memories of twelve years ago. I can
• 37:37
  Speaker 1: speculate that at some point the matter came up and
• 37:40
  Speaker 1: I or someone else said, what would the original charges
• 37:43
  Speaker 1: have likely brought, and someone said this amount. A Costa
• 37:46
  Speaker 1: told OPR that he cannot recall who initially proposed this method,
• 37:50
  Speaker 1: but he believed that it's likely did not result from
• 37:53
  Speaker 1: a single specific discussion, but rather from conversations over a
• 37:57
  Speaker 1: course of time. A Costa cannot recall specific with whom
• 38:01
  Speaker 1: he had these discussions, other than it would have been
• 38:04
  Speaker 1: Lori Menchell or Slowman. Villafana was not asked for her
• 38:07
  Speaker 1: views on a two year sentence, and she had no
• 38:09
  Speaker 1: input into the decision before it was made. Villa Fauna
• 38:13
  Speaker 1: told OPR that she examined the state statutes and could
• 38:17
  Speaker 1: not validate that a state charge would have resulted in
• 38:20
  Speaker 1: a twenty four month sentence. OPR also examined applicable state
• 38:24
  Speaker 1: statutes and the Florida sentencing guidelines, but could not confirm
• 38:27
  Speaker 1: that Epstein was in fact facing a potential two year
• 38:31
  Speaker 1: sentence under charges contemplated by palm Beach. On the other hand,
• 38:35
  Speaker 1: during OPR interview, Lorie guessed that somehow the defense conveyed,
• 38:39
  Speaker 1: we're going to trial if it's more than two years.
• 38:42
  Speaker 1: Menchell similarly told OPR that he did not know the
• 38:46
  Speaker 1: two year sentence was derived, but obviously it was a
• 38:48
  Speaker 1: number that the office felt was palatable enough that Epstein
• 38:52
  Speaker 1: would take it. Slowman told OPR that he had no
• 38:55
  Speaker 1: idea how the two year sentence proposal was reached. The
• 38:58
  Speaker 1: contemporaneous documentary record, however, provides no indication that Epstein's team
• 39:03
  Speaker 1: proposed a two year sentence of incarceration or initially suggested
• 39:07
  Speaker 1: before the USAO made its offer that Epstein would accept
• 39:11
  Speaker 1: the two year term of incarceration. As late as July
• 39:15
  Speaker 1: twenty fifth, two thousand and seven, only days before the
• 39:18
  Speaker 1: USAO provided the term sheet to Defense Council, Epstein's council
• 39:22
  Speaker 1: submitted a letter to the USAO arguing that the federal
• 39:26
  Speaker 1: government should not prosecute Epstein at all. Furthermore, after the
• 39:30
  Speaker 1: initial term sheet was presented and negotiations for the NPA progressed,
• 39:35
  Speaker 1: Epstein's team continued to strongly press for less or no
• 39:38
  Speaker 1: jail time. The USAO had other charging and sentencing options
• 39:43
  Speaker 1: available to it. The most obvious alternative to the two
• 39:46
  Speaker 1: year sentence proposal was to offer Epstein a plead a
• 39:49
  Speaker 1: federal offense that carried a harsher sentence. It federally charged,
• 39:53
  Speaker 1: Epstein was facing a substantial sentence under the federal sentencing
• 39:57
  Speaker 1: guidelines one hundred and sixty eight to two hundred TI
• 40:00
  Speaker 1: ten months imprisonment. However, it's unlikely that he would have
• 40:03
  Speaker 1: agreed to a plea that required a guideline sentence, even
• 40:07
  Speaker 1: one at a lower end of the guidelines. Menchel told
• 40:10
  Speaker 1: o PR that he and his colleagues had been concerned
• 40:13
  Speaker 1: that Epstein would opt to go to trial if charged
• 40:16
  Speaker 1: and presented with the option of pleading to a guideline sentence,
• 40:19
  Speaker 1: and as previously discussed, there were both evidentiary and legal
• 40:23
  Speaker 1: risks attendant upon trial. In this case. If federally charged,
• 40:27
  Speaker 1: Epstein's sentencing exposure could have been managed by offering him
• 40:31
  Speaker 1: a plea under a federal rule of criminal Procedure eleven
• 40:34
  Speaker 1: C for a stipulated sentence, which requires judicial approval. Acosta
• 40:39
  Speaker 1: rejected this idea, however, apparently because of a perception that
• 40:44
  Speaker 1: the Federal District Court in the Southern District of Florida
• 40:47
  Speaker 1: did not rule eleven C pleas favorably and might refuse
• 40:50
  Speaker 1: to accept such a plea and limit the usao's options.
• 40:54
  Speaker 1: Another alternative was to offer Epstein a plea to conspiracy,
• 40:57
  Speaker 1: a federal charge that carried a maximum five year sentence.
• 41:01
  Speaker 1: Shortly after Villa Fauna circulated the prosecution memorandum to her supervisors,
• 41:06
  Speaker 1: Lori recommended to Acosta charging Epstein by a criminal complaint
• 41:10
  Speaker 1: and offering a plea to conspiracy to make a plea attractive. Similarly,
• 41:14
  Speaker 1: before learning that Mentchell had already discussed a state based
• 41:18
  Speaker 1: resolution with Epstein's council, Villa Fauna had considered offering Epstein
• 41:22
  Speaker 1: a plea to one count of conspiracy and a substantative
• 41:26
  Speaker 1: charge to be served concurrently with any sentence he might
• 41:29
  Speaker 1: receive separately as a result of the state's outstanding indictment.
• 41:33
  Speaker 1: Given Epstein's continued insistence that federal charges were not appropriate
• 41:37
  Speaker 1: and defense council's efforts to minimize the amount of time
• 41:40
  Speaker 1: Epstein would spend in jail, it's questionable whether Epstein would
• 41:44
  Speaker 1: have accepted such a plea offer, but the USAO did
• 41:47
  Speaker 1: not even extend the offer to determine what his response
• 41:50
  Speaker 1: would be. Weighed against possible loss at trial, were some
• 41:54
  Speaker 1: clear advantages to a negotiated resolution that ensured a conviction,
• 41:58
  Speaker 1: including sexual offender registration and the opportunity to establish a
• 42:02
  Speaker 1: mechanism for victims to recover damages. These advantages, added to
• 42:07
  Speaker 1: a Costa's concern about intruding on the state's authority, led
• 42:10
  Speaker 1: him to the conclusion that a two year state plea
• 42:13
  Speaker 1: would be sufficient to prevent manifest injustice. Menchell told OPR,
• 42:17
  Speaker 1: I don't believe anybody at the time that this resolution
• 42:20
  Speaker 1: was entered into was looking at the two years as
• 42:23
  Speaker 1: a fair result in terms of the conduct. I think
• 42:26
  Speaker 1: that was not the issue. The issue was whether or
• 42:28
  Speaker 1: not if we took this case to trial, would we
• 42:31
  Speaker 1: risk losing everything. During the course of negotiations over a
• 42:34
  Speaker 1: potential federal plea, the USAO agreed to accept a plea
• 42:38
  Speaker 1: for eighteen month sentence, a reduction of six months from
• 42:41
  Speaker 1: the original non negotiable two year term. The subjects did
• 42:45
  Speaker 1: not have a clearer memory why this reduction was made.
• 42:48
  Speaker 1: Villa Fauna attributed it to a conversation between Acosta and Lefquwiz,
• 42:53
  Speaker 1: but a Costa attributed it to a decision made during
• 42:56
  Speaker 1: the negotiation process by Villa, Fauna and Lori, telling O
• 43:00
  Speaker 1: he understood his attorneys needed flexibility to reach a final
• 43:04
  Speaker 1: deal with Epstein. OPR found no contemporaneous documents showing the
• 43:09
  Speaker 1: basis for the two year term. Despite extensive subject interviews
• 43:13
  Speaker 1: and review of thousands of contemporaneous records, OPR was unable
• 43:16
  Speaker 1: to determine who initially proposed the two year term of
• 43:19
  Speaker 1: incarceration or why that term, as opposed to other possible
• 43:23
  Speaker 1: and lengthier terms, was settled on for the initial offer.
• 43:27
  Speaker 1: The term was not tied to statutory or guideline sentences
• 43:31
  Speaker 1: for potential federal charges, or as far as OPR could determine,
• 43:35
  Speaker 1: possible state charges. Furthermore, while the USAO initially informed the
• 43:39
  Speaker 1: defendants that the two year term was non negotiable, a
• 43:42
  Speaker 1: Costa failed to enforce that position, and rather than a
• 43:45
  Speaker 1: floor for negotiations, it became a ceiling that was further
• 43:49
  Speaker 1: reduced during the negotiations. OPR was unable to find any
• 43:53
  Speaker 1: evidence indicating that the term of incarceration was tied either
• 43:57
  Speaker 1: to the federal interest in seeking a just sentence for
• 43:59
  Speaker 1: his serial sexual offender, or to other traditional sentencing factors,
• 44:04
  Speaker 1: such as deterrence either of Epstein or other offenders of
• 44:07
  Speaker 1: similar crimes. Instead, is previously noted, it appears that Acosta
• 44:12
  Speaker 1: primarily considered only a punishment that was somewhat more than
• 44:16
  Speaker 1: what to which the state had agreed. As a result,
• 44:19
  Speaker 1: the USAO had little room to maneuver during the negotiations,
• 44:23
  Speaker 1: and because Acosta was unwilling to enforce the non negotiable
• 44:27
  Speaker 1: initial offer, the government ended up with the term of
• 44:30
  Speaker 1: incarceration that was not much more than what the state
• 44:33
  Speaker 1: had initially sought, and which was significantly disproportionate to the
• 44:37
  Speaker 1: seriousness of Epstein's conduct. In some it's evident that Acosta's
• 44:43
  Speaker 1: desire to resolve the federal case against Epstein led him
• 44:46
  Speaker 1: to arrive at a target term of incarceration that met
• 44:49
  Speaker 1: his own goal of serving as a backstop to the state,
• 44:52
  Speaker 1: but that otherwise was untethered to any articulable reasonable basis
• 44:58
  Speaker 1: in assessing the case only through the land ends of
• 45:00
  Speaker 1: providing a backstop to the state, a cost of field
• 45:03
  Speaker 1: to consider the need for a punishment equal with the
• 45:06
  Speaker 1: seriousness of Epstein's conduct and the federal interest in addressing it.
• 45:11
  Speaker 1: All Right, we're gonna wrap this episode up here, and
• 45:13
  Speaker 1: then the next episode we're gonna pick up with d
• 45:16
  Speaker 1: Acosta's decisions led to difficulties in enforcing the NPA. All
• 45:21
  Speaker 1: of the information that goes with this episode can be
• 45:23
  Speaker 1: found in the description box.