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Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 28-31) (7/25/26) · The Epstein Chronicles

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
• 0:03
  Speaker 1: In this episode, we're diving rye back in to the
• 0:05
  Speaker 1: OIG report into Jeffrey Epstein's non prosecution agreement. Three you
• 0:12
  Speaker 1: SAM provision relating to plea agreements. Federal prosecutors have discretion
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  Speaker 1: to resolve an investigation or pending case through a plea
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  Speaker 1: agreement U SAM Section nine Dash twenty seven dot three
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  Speaker 1: thirty nine Dash twenty seven dot four hundred negotiated please
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  Speaker 1: are all explicitly sanctioned by Federal Rule of Criminal Procedure
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  Speaker 1: eleven C to one. Regardless of whether the plea agreement
• 0:35
  Speaker 1: is offered pre charge or post charge, the prosecutors plea
• 0:39
  Speaker 1: bargaining must honestly reflect the totality and seriousness of the
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  Speaker 1: defendant's conduct. U SAM Section nine Dash twenty seven dot
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  Speaker 1: four hundred. The importance of selecting a charge that reflects
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  Speaker 1: the seriousness of the conduct is echoed in New SAM
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  Speaker 1: Section nine Dash twenty seven dot four to three zero,
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  Speaker 1: which directs the prosecutor to require defendant to plead to
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  Speaker 1: an offense that represents the most serious, readily provable charge
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  Speaker 1: consistent with the nature and extent of the defendant's criminal
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  Speaker 1: conduct has an adequate factual basis, makes likely the imposition
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  Speaker 1: of an appropriate sentence and order of restitution, and does
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  Speaker 1: not adversely affect the investigation or prosecution of others. You
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  Speaker 1: SAM Section nine to twenty seven four twenty specifies in
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  Speaker 1: determining whether it would be appropriate to enter a plea agreement,
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  Speaker 1: the attorney for the government should weigh all relevant considerations,
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  Speaker 1: including one the defendant's willingness to cooperate in the investigation
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  Speaker 1: or prosecution of others. Two, the defendant's history with respect
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  Speaker 1: to criminal activity. Three the nature and seriousness of the
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  Speaker 1: offense or offenses charged. For the defendant's remorse or contrition,
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  Speaker 1: and his or her willingness to assume responsibility for his
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  Speaker 1: or her conduct. Five, the desirability of prompt and certain
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  Speaker 1: disposition of the case. Six, the likelihood of obtaining a
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  Speaker 1: conviction at trial. Seven, the probable effect on witnesses. Eight,
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  Speaker 1: the probable sentence or other consequences if the defendant is convicted. Nine,
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  Speaker 1: the public interest in having the case tried rather than
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  Speaker 1: disposed of by a guilty plea. Ten, the expensive trial
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  Speaker 1: and appeal eleven, the need to avoid delay in the
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  Speaker 1: disposition of other pending cases, and twelve the effect upon
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  Speaker 1: the victim's right to restitution. Four you SAM provisions relating
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  Speaker 1: to non prosecution agreements. You SAM. Section nine Toash twenty
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  Speaker 1: seven dot six hundred authorizes government attorneys to enter into
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  Speaker 1: a non prosecution agreement in exchange for a person's cooperation.
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  Speaker 1: The provision explains that a non prosecution agreement is appropriate
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  Speaker 1: for this purpose. In the prosecutor's judgment, the person's timely
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  Speaker 1: cooperation appears to be necessary to the public interest, and
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  Speaker 1: other means of obtaining the desired cooperation are unavailable or
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  Speaker 1: would not be effective. A comment to this provision explains
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  Speaker 1: that such other means include seeking qui operation after trial
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  Speaker 1: and conviction, bargaining for cooperation as part of a plea agreement,
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  Speaker 1: or compelling the cooperation under a use of immunity order.
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  Speaker 1: The common observes that these alternative means are clearly preferable
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  Speaker 1: to permitting an offender to avoid any liability for his
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  Speaker 1: or her conduct, and should be given serious consideration. In
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  Speaker 1: the first instance. U SAM. Section nine Dash twenty seven
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  Speaker 1: dot six twenty and nine Dash twenty seven dot six
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  Speaker 1: thirty set forth considerations a prosecutor should take into account
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  Speaker 1: when entering into a non prosecution agreement. Generally, the US
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  Speaker 1: Attorney has authority to approve a non prosecution agreement U
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  Speaker 1: SAM Section nine Dash twenty seven dot six hundred. However,
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  Speaker 1: U SAM Section nine Dash twenty seven dot six forty
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  Speaker 1: directs that a government attorney should not enter into a
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  Speaker 1: non prosecution agreement in exchange for a person's cooperation without
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  Speaker 1: first obtaining the approval of the appropriate Assistant Attorney General
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  Speaker 1: or his or her designee when the person is someone
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  Speaker 1: who is likely to become a major public interest. These
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  Speaker 1: USAM provisions do not address the uses of non prosecution
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  Speaker 1: agreements in circumstances other than we needed to obtain cooperation.
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  Speaker 1: Five U SAM provisions relating to grants of immunity. Nothing
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  Speaker 1: in the U SAM directly prohibits the government from using
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  Speaker 1: the criminal exposure of third parties in negotiating with a
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  Speaker 1: criminal defendant. Instead, the provision that addresses immunity relates only
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  Speaker 1: to the exchange of limited immunity for the testimony of
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  Speaker 1: a witness who has asserted a Fifth Amendment privilege against
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  Speaker 1: self incrimination. Six U SAM CFR provisions relating to financial
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  Speaker 1: conflicts of interest department employees are expected to be aware
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  Speaker 1: of and to comply with all ethics related laws, rules, regulations,
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  Speaker 1: and policies. Specifically, a government attorney is prohibited by criminal
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  Speaker 1: statute from participating personally and substantially in any particular matter
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  Speaker 1: in which he has a financial interest, or in which
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  Speaker 1: such an interest can be imputed to see US Code eighteen,
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  Speaker 1: section two eight and five CFR Section two six three
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  Speaker 1: five dot four one dash four two. In addition, a
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  Speaker 1: department and employee who seek advice from an ethics official
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  Speaker 1: before participating in any matter in which his impartiality could
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  Speaker 1: be questioned if a conflict of interest exists. In order
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  Speaker 1: for the employee to participate in the matter, the head
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  Speaker 1: of the employee's component, with the concurrence of an ethics official,
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  Speaker 1: must make a determination that the interest of the government
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  Speaker 1: in the employees' participation outweighs the concern that a reasonable
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  Speaker 1: person may question the integrity of the department's programs and operations.
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  Speaker 1: The determination must be made in writing b other department
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  Speaker 1: policies one department policies relating to the disposition of charges.
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  Speaker 1: The Attorney General has the responsibility for establishing prosecutorial priorities
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  Speaker 1: for the Department. Over the span of several decades, each
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  Speaker 1: successive Attorney General has articulated those priorities and policy memoranda
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  Speaker 1: issued to all federal prosecutors as applicable here. On September
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  Speaker 1: twenty two, two thousand and three, Attorney General John Ashcroft
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  Speaker 1: issued a memorandum regarding Department policy concerning charging criminal offenses,
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  Speaker 1: disposition of charges, and sentencing Ashcroft Memo. The Ashcroft Memo,
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  Speaker 1: which explicitly superseded all previous departmental guidance on the subject,
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  Speaker 1: set forth policies designed to ensure that all federal prosecutors
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  Speaker 1: adhere to the principles and objectives of the Sentencing Reform
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  Speaker 1: Act of nineteen eighty four, the Sentencing Guidelines, and the
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  Speaker 1: protect Act in their charging, case, disposition, and sentencing practices.
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  Speaker 1: The Ashcroft Memo directed that in all federal cases, federal
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  Speaker 1: prosecutors must charge and pursue the most serious, redibly provable
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  Speaker 1: offenses or offenses that are supported by the facts of
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  Speaker 1: the case, except as authorized by an Assistant Attorney General
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  Speaker 1: U S Attorney, or designated supervisory authority in certain articulated,
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  Speaker 1: limited circumstances. The Ashcroft Memo caution that a charge is
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  Speaker 1: not readily provable if the prosecutor harbors a good faith
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  Speaker 1: doubt based on either the law or the evidence, as
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  Speaker 1: to the government's ability to prove the charged trial. The
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  Speaker 1: Ashcroft Memo explains that the basic policy requires federal prosecutors
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  Speaker 1: to charge and pursue all charges that are determined to
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  Speaker 1: be readily provable and would yield the most substantial sentence
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  Speaker 1: under the sentencing guidelines. The policy set forth six exceptions,
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  Speaker 1: including a catch all exception that permits a prosecutor to
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  Speaker 1: decline to pursue readily approvable charges in other exceptional circumstances.
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  Speaker 1: Would the written or otherwise documented approval of an Assistant
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  Speaker 1: Attorney General U S Attorney or designated supervisory attorney as
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  Speaker 1: examples of circumstances in which such declination would be appropriate.
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  Speaker 1: The Ashcroft Memo cites to situations in which a U. S.
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  Speaker 1: Attorney's office is particularly overburdened, the trial is expected to
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  Speaker 1: be of ex exceptionally long duration, and proceeding to trial
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  Speaker 1: would significantly reduce the total number of cases the office
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  Speaker 1: could resolve. The Ashcroft Memo specifically notes that charges may
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  Speaker 1: be declined pursuant to a plea agreement only to the
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  Speaker 1: extent consistent with the policies established by this memo. On
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  Speaker 1: January twenty eighth, two thousand and five, Deputy Attorney General
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  Speaker 1: James Comi issued a memorandum entitled Department Policies and Procedures
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  Speaker 1: concerning Sentencing. That memorandum reiterated that federal prosecutors must continue
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  Speaker 1: to charge and pursue the most serious, readily approvable offenses,
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  Speaker 1: and define that term as the offenses that would generate
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  Speaker 1: the most substantial sentence under the sentencing guidelines, any applicable
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  Speaker 1: mandatory minimum, and any statutorily required consecutive sentence. Importantly, although
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  Speaker 1: the Ashcroft and Comi memoranda limit an individual line prosecutor's
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  Speaker 1: ability to decline readily provable charges in their entirety, no
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  Speaker 1: such restriction is placed on the u S Attorneys, who
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  Speaker 1: are ten authority to approve exceptions to the policy. In addition,
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  Speaker 1: the policy applies to readily provable charges, thus inherently allowing
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  Speaker 1: a prosecutor of flexibility to decline to bring a particular
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  Speaker 1: charge based on a good faith doubt that the law
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  Speaker 1: or evidence supports the charge. Two. Department policy relating to
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  Speaker 1: deportation of criminal aliens. On April twenty eighth, nineteen ninety five,
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  Speaker 1: the Attorney General issued a memorandum to all federal prosecutors
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  Speaker 1: in titled Deportation of Criminal Aliens, directing federal prosecutors to
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  Speaker 1: actively and directly become involved in the process of removing
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  Speaker 1: criminal aliens from the United States. In pertinent part, the
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  Speaker 1: memorandum notes that prosecutors can make a major contribution to
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  Speaker 1: the expeditious deportation of criminal aliens by effectively using available
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  Speaker 1: prosecution tools for dealing with alien defendants. These tools include
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  Speaker 1: one stipulated administrative deportation orders in connection with plea agreements
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  Speaker 1: to deportation as a condition of supervis release under US
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  Speaker 1: Code eighteen, section thirty eight fifty three D, and three
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  Speaker 1: judicial deportation orders pursuingto US Code eight section twelve fifty
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  Speaker 1: two A and D. The memorandum further directs all deportable
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  Speaker 1: criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, apps,
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  Speaker 1: in such circumstances, federal prosecutors should seek the deportation of
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  Speaker 1: deportable alien defendants in whatever manner is deemed most appropriate.
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  Speaker 1: In a particular case. Exceptions to this policy must have
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  Speaker 1: the written approval of the United States Attorney See also
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  Speaker 1: U Sam nine to seven three dot five two zero.
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  Speaker 1: A criminal alien is a foreign national who has been
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  Speaker 1: convicted of a crime. Stipulated administrative deportation orders can be
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  Speaker 1: based on the conviction for an offense to which the
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  Speaker 1: alien will plead guilty, provided that the offense is one
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  Speaker 1: of those enumerated in US Code eight, section twelve fifty
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  Speaker 1: one as an offense that will cause an alien to
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  Speaker 1: be deported under US Code eight section twelve fifty one A, two, A,
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  Speaker 1: and I. Any alien who is convicted of a crime
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  Speaker 1: of moral turpitude within five years after the date of
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  Speaker 1: entry or ten years in the case of an alien
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  Speaker 1: provided lawful permanent resident status, and is either sentenced to
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  Speaker 1: confinement or confined to prison for one year or longer.
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  Speaker 1: Is the portable. All right, We're going to end this
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  Speaker 1: episode here and in the next episode, we're going to
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  Speaker 1: pick up where we left off. All of the information
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  Speaker 1: that goes with this episode can be found in the
• 11:30
  Speaker 1: description box. What's up, everyone, and welcome back to the
• 11:33
  Speaker 1: Epstein Chronicles. In this episode, we're picking up where we
• 11:37
  Speaker 1: left off with the OIG report into the non prosecution agreement.
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  Speaker 1: See case law one Prosecutorial discretion. On many occasions, the
• 11:47
  Speaker 1: Supreme Court has discussed the breadth of the prosecutor's discretion
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  Speaker 1: in deciding whether and whom to prosecute. In Borden Kirker
• 11:55
  Speaker 1: versus Hayes, four thirty four US three fifty seven, nineteen
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  Speaker 1: seventy eight, considered the propriety of a prosecutor's threat during
• 12:03
  Speaker 1: plea negotiations to seek more serious charges against the accused
• 12:07
  Speaker 1: if the accused did not plead guilty to the offense
• 12:09
  Speaker 1: originally charged. The defendant Hayes opted not to plead guilty
• 12:14
  Speaker 1: to the original charges, and the prosecutor indicted him on
• 12:17
  Speaker 1: a more serious charge. Hayes was thereafter convicted and sentenced
• 12:22
  Speaker 1: under the new indictment. The State Court of Appeals rejected
• 12:25
  Speaker 1: Hayes's challenge to his conviction, concluding that the prosecutor's decision
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  Speaker 1: to indict on more serious charges was a legitimate use
• 12:32
  Speaker 1: of available leverage in plea bargaining process. Hayes filed for
• 12:36
  Speaker 1: a review of his conviction and sentence in federal court,
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  Speaker 1: and although Hayes lost at the district court level, the
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  Speaker 1: US Court of Appeals for the Sixth Circuit concluded that
• 12:46
  Speaker 1: the prosecutor's conduct constituted in permissible vindictive prosecution. The Supreme
• 12:51
  Speaker 1: Court reversed the six Court's ruling. The Court opined that
• 12:54
  Speaker 1: acceptance of the basic legitimacy of plea bargaining necessarily implies
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  Speaker 1: rejection of any notion that a guilty flea is involuntary
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  Speaker 1: in a constitutional sense, simply because it's the end result
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  Speaker 1: of the bargaining process Idea three sixty three. As long
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  Speaker 1: as the prosecutor has probable cause to believe a crime
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  Speaker 1: has been committed, the decision whether or not to prosecute
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  Speaker 1: and what charge the file or bring before a grand
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  Speaker 1: jury rests entirely in his discretion. The Court explained that
• 13:22
  Speaker 1: selectively in enforcement of the criminal law is not improper
• 13:26
  Speaker 1: unless based upon an unjustifiable standards, such as race, religion,
• 13:30
  Speaker 1: or other arbitrary classification. These principles were reiterated in Wait
• 13:35
  Speaker 1: versus United States, four seventy US five ninety eight nineteen
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  Speaker 1: eighty five, a case involving the government's policy of prosecuting
• 13:43
  Speaker 1: only those individuals who reported themselves as having felt a
• 13:46
  Speaker 1: register with the selective service system. The petitioner in Weight
• 13:50
  Speaker 1: claimed that the self reported non registrants were vocal opponents
• 13:54
  Speaker 1: of the registration program who were being punished for the
• 13:57
  Speaker 1: exercise of the First Amendment rights. The Supreme Court rejected
• 14:00
  Speaker 1: this argument, stating that the government has broad discretion in
• 14:04
  Speaker 1: deciding whom to prosecute, and that the limits of that
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  Speaker 1: discretion are reached only when the prosecutor's decision is based
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  Speaker 1: on an unjustifiable standard. Because the passive enforcement policy was
• 14:14
  Speaker 1: not intended to have a discriminatory effect, the claim of
• 14:17
  Speaker 1: selective prosecution failed. In Imbler versus Pacmann, four twenty four
• 14:22
  Speaker 1: US four nine, nineteen seventy six, the Supreme Court considered
• 14:26
  Speaker 1: whether a state prosecutor, acting within the scope of his duties,
• 14:30
  Speaker 1: could be sued under US Code forty two, section nineteen
• 14:33
  Speaker 1: eighty three for violation of the defendant's constitutional rights when
• 14:37
  Speaker 1: the defendant alleged that the prosecutor and others had unlawfully
• 14:41
  Speaker 1: conspired to charge and convictim. The Court held that in
• 14:44
  Speaker 1: initiating a prosecution and in presenting the state's case, conduct
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  Speaker 1: that is intimately associated with the judicial phase of the
• 14:51
  Speaker 1: criminal process, the prosecutor enjoyed absolute immunity from civil suit
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  Speaker 1: for damages. In Harrington versus Almy, seven ft. Two d
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  Speaker 1: thirty seven for A Circuit, nineteen ninety two, the Court
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  Speaker 1: applied Mbler to a challenge to a prosecutor's decision not
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  Speaker 1: to prosecute. The Court noted that given the availability of
• 15:11
  Speaker 1: immunity for the decision to charge, it becomes even more
• 15:15
  Speaker 1: important that symmetrical protection be available for the decision not
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  Speaker 1: to charge. Finally, in the area of the law, in
• 15:22
  Speaker 1: Heckler versus Cheney, four to seventy US eight twenty one,
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  Speaker 1: nineteen eighty five, the Supreme Court concluded that an agency's
• 15:30
  Speaker 1: decision not to undertake an enforcement action is not reviewable
• 15:34
  Speaker 1: under the Federal Administrative Procedure Act, five US Code, Section
• 15:38
  Speaker 1: five hundred through seven six two plea agreement promises of
• 15:42
  Speaker 1: leniency towards a third party case. Law regarding promises may
• 15:46
  Speaker 1: during plea negotiations not to prosecute a third party arises
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  Speaker 1: in two contexts. First, defendants have challenged the voluntariness of
• 15:55
  Speaker 1: the resulting plea when prosecutors have used third parties as
• 15:58
  Speaker 1: leverage in plea negotiations. Numerous courts have made clear, however,
• 16:03
  Speaker 1: that a plea is not valid when entered under an
• 16:05
  Speaker 1: agreement that includes a promise of leniency towards a third party,
• 16:09
  Speaker 1: or in response to a prosecutor's threat to prosecute a
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  Speaker 1: third party, if a plea is not entered ceg. United
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  Speaker 1: States versus Marquez, nine O nine f dot two D
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  Speaker 1: seven three eight seven, forty one, and forty two, Second Circuit,
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  Speaker 1: nineteen ninety, rejecting a claim that plea was involuntary because
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  Speaker 1: of pressure placed upon a defendant by the government's insistence
• 16:29
  Speaker 1: that a defendant's wife would not be offered a plea
• 16:32
  Speaker 1: bargain unless he pled guilty. Martin versus Kemp, seven sixty
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  Speaker 1: f Dot two d twelve forty four twelve forty eight,
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  Speaker 1: Eleventh Circuit, nineteen eighty five. In order to satisfy heavy
• 16:43
  Speaker 1: burden of establishing that the government had not acted in
• 16:46
  Speaker 1: good faith, a defendant challenging voluntariness of his plea on
• 16:50
  Speaker 1: grounds that the prosecutor had threatened to bring charges against
• 16:53
  Speaker 1: the defendant's pregnant wife had to establish that government lacked
• 16:56
  Speaker 1: probable cause to believe the defendant's wife had committed a crime.
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  Speaker 1: Time at the time it threatened a charger. Stinton versus
• 17:03
  Speaker 1: State eight thirty nine, nine oh six, nine oh nine,
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  Speaker 1: Florida Appeals Court, two thousand and three. In cases involving
• 17:10
  Speaker 1: a promise not to prosecute a third party, the government
• 17:12
  Speaker 1: must act in good faith and must have probable cause
• 17:15
  Speaker 1: to charge the third party. The second context concerned situations
• 17:20
  Speaker 1: in which courts have been forced prosecutors promises of leniency
• 17:23
  Speaker 1: to third parties. For example, in State versus Fraser six
• 17:27
  Speaker 1: ninety seven, Second District, nine forty four, Florida Appeals Court,
• 17:30
  Speaker 1: nineteen ninety seven, as consideration for the defendants guilty plea,
• 17:35
  Speaker 1: the prosecutor agreed and announced in open court that the
• 17:38
  Speaker 1: government would dismiss charges against the defendant's niece and nephew,
• 17:41
  Speaker 1: who had all been charged as a result of the
• 17:43
  Speaker 1: same incident. When the state renegged and attempted to prosecute
• 17:47
  Speaker 1: the niece and nephew, the trial court dismissed the charges
• 17:49
  Speaker 1: against them, and the state appealed. The appellate court affirmed
• 17:53
  Speaker 1: the dismissal, concluding that under contract law principles, the niece
• 17:57
  Speaker 1: and nephew were third party beneficiaries of the plea ago
• 18:00
  Speaker 1: and were therefore entitled to enforce it. Apart from voluntariness
• 18:04
  Speaker 1: or enforceability concerns, courts have not suggested that a prosecutor's
• 18:08
  Speaker 1: promise not to prosecute a third party amounts to an
• 18:11
  Speaker 1: inappropriate exercise of prosecutorial discretion d state bar rules. During
• 18:17
  Speaker 1: the period relevant to this report, the five subject attorneys
• 18:20
  Speaker 1: were members of the bar in several different states and
• 18:23
  Speaker 1: were subject to the rules of professional conduct in each
• 18:26
  Speaker 1: state in which they held membership. In determining which rules apply,
• 18:30
  Speaker 1: OPR applied the local rules of the U. S. District
• 18:32
  Speaker 1: Court for the Southern District of Florida and the choice
• 18:36
  Speaker 1: of law provisions of each applicable bar. Local Rule eleven
• 18:40
  Speaker 1: dot one F incorporates rules governing the admission, practice, peer review,
• 18:44
  Speaker 1: and discipline of attorneys. Attorney admission rules. Attorney Admission Rule
• 18:48
  Speaker 1: for D provides that any U. S. Attorney or a
• 18:52
  Speaker 1: USA employed full time by the government may appear and
• 18:55
  Speaker 1: participate in particular actions or proceedings on behalf of the
• 18:59
  Speaker 1: United States in the attorney's official capacity without petition for admission.
• 19:04
  Speaker 1: Any attorney so appearing is subject to the rules of
• 19:07
  Speaker 1: the court. Attorney Admission Rule six B two A makes
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  Speaker 1: clear that attorneys practicing before the court are a subject
• 19:14
  Speaker 1: to the Florida Bar Rule of Professional Conduct. Moreover, the
• 19:17
  Speaker 1: choice of law provisions contained within the relevant state rules
• 19:21
  Speaker 1: a Professional Conduct make FRPC applicable to their conduct one
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  Speaker 1: FRPC four dash one dot one. Competence FRPC four Dash
• 19:33
  Speaker 1: one dot one requires that a lawyer provide a competent
• 19:36
  Speaker 1: representation to a client. Competent representation requires the legal knowledge, skill, thoroughness,
• 19:42
  Speaker 1: and preparation reasonably necessary for the representation. A comment to
• 19:46
  Speaker 1: the rule clarifies that the factors relevant to determining a
• 19:50
  Speaker 1: lawyer's competence to handle a particular matter include the relative
• 19:53
  Speaker 1: complexity and specialized nature of the matter, the lawyer's general experience,
• 19:58
  Speaker 1: the lawyer's training and exp experience in the field in question,
• 20:01
  Speaker 1: the preparation and study the lawyer is able to give
• 20:04
  Speaker 1: the matter, and whether it's feasible to refer to the
• 20:07
  Speaker 1: matter to or associate or console with a lawyer of
• 20:11
  Speaker 1: established competence in the field. The comment further notes that
• 20:14
  Speaker 1: in many instances, the required proficiency is that of a
• 20:18
  Speaker 1: general practitioner with respect to particular matters. Competence requires inquiry
• 20:23
  Speaker 1: into the analysis of the factual and legal elements of
• 20:26
  Speaker 1: the problem. The comment a rule for Dash one dot
• 20:29
  Speaker 1: one explains that the required attention and preparation are determined
• 20:34
  Speaker 1: in part by what is at stake. Major litigation and
• 20:37
  Speaker 1: complex transactions or narrowly require more extensive treatment than matters
• 20:42
  Speaker 1: of lesser complexity and consequence. Two FRPC four Dash one
• 20:47
  Speaker 1: dot three Diligence FRPC four Dash one dot three specifies
• 20:52
  Speaker 1: that a lawyer should act with reasonable diligence and promptness
• 20:55
  Speaker 1: in representing a client. A comment to this rule explains
• 20:59
  Speaker 1: a lawyer should pursus to a matter on behalf of
• 21:01
  Speaker 1: a client despite opposition, obstruction, or personal inconvenience to the lawyer,
• 21:06
  Speaker 1: and take whatever lawful and ethical measures are required to
• 21:09
  Speaker 1: vindicate a client's cause or endeavor. A lawyer must exercise
• 21:13
  Speaker 1: zeal in advocating for the client, but is not required
• 21:16
  Speaker 1: to press for every advantage that might be realized for
• 21:19
  Speaker 1: a client. Three FRPC four Dash four Dot one candor
• 21:23
  Speaker 1: in dealing with others. FRPC four Dash four Dot one
• 21:27
  Speaker 1: prohibits a lawyer from knowingly making false statements of material
• 21:31
  Speaker 1: fact or law to a third person during the course
• 21:34
  Speaker 1: of representation of a client. A comment to this rule
• 21:37
  Speaker 1: explains that misrepresentations can also occur by partially true but
• 21:42
  Speaker 1: misleading statements or omissions that are the equivalent of affirmative
• 21:45
  Speaker 1: false statements, and whether a particular statement should be regarded
• 21:49
  Speaker 1: as one of fact can depend up the circumstances. Four
• 21:53
  Speaker 1: FRPC four Dash eight dot four Conduct prejudicial to the
• 21:57
  Speaker 1: administration of Justice FRP d d A dot four C
• 22:02
  Speaker 1: states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit,
• 22:07
  Speaker 1: or misrepresentation. FRPC four Dash Dot four D prohibits a
• 22:12
  Speaker 1: lawyer from engaging in conduct and connection with the practice
• 22:15
  Speaker 1: of law that is prejudicial to the administration of justice.
• 22:19
  Speaker 1: In Florida, Barvarus Fredericks seven five six Southern Second District,
• 22:24
  Speaker 1: seventy nine eighty seven, Florida, two thousand, the Court noted
• 22:27
  Speaker 1: that FRPC four Dash eight four D is not limited
• 22:32
  Speaker 1: to conduct that occurs in a judicial proceeding, but can
• 22:34
  Speaker 1: be applied to conduct in connection with the practice of law.
• 22:38
  Speaker 1: In Florida, Barvvers Shankman, forty one Southern third District one
• 22:42
  Speaker 1: sixty six one seventy two, Florida twenty ten, For example,
• 22:46
  Speaker 1: an attorney's continuous hiring and firing of firms to assist
• 22:50
  Speaker 1: in the client's matter resulted in the layed resolution of
• 22:52
  Speaker 1: the case and constituted a violation of FRPC four dash
• 22:57
  Speaker 1: A dot four D due to the delay in the
• 23:00
  Speaker 1: administration of justice and the increased costs to the client.
• 23:04
  Speaker 1: All right, we're gonna wrap this episode up right here,
• 23:06
  Speaker 1: and then the next episode we're going to pick up
• 23:08
  Speaker 1: where we left off. All of the information that goes
• 23:11
  Speaker 1: with this episode can be found in the description box.
• 23:15
  Speaker 1: What's up, everyone, and welcome back to the Epstein chronicles.
• 23:18
  Speaker 1: In this episode, we're getting right back to the OIG
• 23:21
  Speaker 1: report into Jeffrey Epstein's non prosecution Agreement, Chapter two, Part three,
• 23:27
  Speaker 1: Analysis one Overview. Following the Miami Herald's report in November
• 23:33
  Speaker 1: of twenty eighteen, media scrutiny of and public attention to
• 23:37
  Speaker 1: the usao's handling of its Epstein investigation has continued unabated.
• 23:42
  Speaker 1: At the heart of the public's concern is the perception
• 23:45
  Speaker 1: that Epstein's eighteen month sentence, which resulted in a thirteen
• 23:48
  Speaker 1: month term of actual incarceration, was too lenient and inadequately
• 23:53
  Speaker 1: punished Epstein's criminal conduct. Although many records have been released
• 23:57
  Speaker 1: as part of civil litigation stemming from Epstein's conduct, the
• 24:00
  Speaker 1: public has received only limited information regarding the decision making
• 24:04
  Speaker 1: process leading to the signed NPA. As a result, questions
• 24:09
  Speaker 1: have arisen about Acosta and to staffs motivations for entering
• 24:13
  Speaker 1: into the NPA. Publicly released communications between prosecutors and defense counsel,
• 24:18
  Speaker 1: the leniency of the sentence, and the unusual non prosecution
• 24:22
  Speaker 1: provision in the NPA have led to allegations that Acosta
• 24:26
  Speaker 1: and the USAO gave Epstein a sweetheart deal because they
• 24:29
  Speaker 1: were motivated by improper influences such as their pre existing
• 24:33
  Speaker 1: and personal relationships with his attorneys, or even corrupt influences
• 24:38
  Speaker 1: such as the receipt of personal benefits from Epstein. Through
• 24:42
  Speaker 1: its investigation, OPR has sought to answer the following core questions.
• 24:46
  Speaker 1: One who is responsible for the decision to resolve the
• 24:49
  Speaker 1: federal investigation through the NPA and for its specific terms.
• 24:53
  Speaker 1: Two did the NPA or any of its provisions violate
• 24:57
  Speaker 1: department policies or other rules or AC regulations? And three
• 25:01
  Speaker 1: were any of the subjects motivated to resolve the federal
• 25:04
  Speaker 1: investigation by improper factors such as corruption or favoritism, to
• 25:09
  Speaker 1: the extent that the available records and witness interviews shed
• 25:13
  Speaker 1: light on these questions. OPR shows in detail the process
• 25:17
  Speaker 1: that led the NPA from the initial complaint to the
• 25:20
  Speaker 1: USAO through the intense and often confusing negotiation process. After
• 25:25
  Speaker 1: thorough and detailed examination of thousands of contemporaneous records and
• 25:29
  Speaker 1: extensive interviews of subjects and witnesses, OPR is able to
• 25:33
  Speaker 1: answer most of the significant questions concerning the NPA's origins
• 25:38
  Speaker 1: and development. Although some questions remain. OPR sets forth its
• 25:42
  Speaker 1: conclusions and the basis for them in this Part two.
• 25:46
  Speaker 1: Acosta reviewed and approved the terms of the NPA and
• 25:50
  Speaker 1: is accountable for it. Although Acosta did not sign the NPA,
• 25:55
  Speaker 1: he approved it with knowledge of its terms. He revised
• 25:58
  Speaker 1: drafts of the NPA and added language that he thought appropriate.
• 26:02
  Speaker 1: Acosta told OPR that he either was informed of or
• 26:06
  Speaker 1: had access to information concerning the underlying facts of the
• 26:09
  Speaker 1: case against Epstein. OPR did not find any evidence suggesting
• 26:13
  Speaker 1: that any of his subordinates misled him about the facts
• 26:16
  Speaker 1: or withheld information that would have influenced his decision, and
• 26:20
  Speaker 1: Acosta did not make such a claim to OPR. As
• 26:23
  Speaker 1: a Costa affirmed in his OPR interview, the three pronged
• 26:26
  Speaker 1: resolution two years, registration and restitution ultimately was approved on
• 26:32
  Speaker 1: my authority. Ultimately I approved it, and so I accept
• 26:36
  Speaker 1: that I'm not pushing away responsibility for it. In making
• 26:40
  Speaker 1: misconduct assessments, OPR considers the conduct of subjects individually. Mencheal, Slowman, Laurie,
• 26:46
  Speaker 1: and Villafauna were involved in the matter to varying degrees
• 26:50
  Speaker 1: at different points in time and regarding different decisions. Menchell,
• 26:54
  Speaker 1: for example, participated in formulating the usao's initial written offer
• 26:58
  Speaker 1: to the defense, but he had no involvement with actions
• 27:01
  Speaker 1: or decisions made after August third, two thousand and seven.
• 27:04
  Speaker 1: Slowman was absent during the part of the most intense
• 27:07
  Speaker 1: negotiations in September two thousand and seven and did not
• 27:11
  Speaker 1: see the final signed version of the NPA until he returned.
• 27:14
  Speaker 1: Villafauna and Laurie participated in the negotiations, and Louri either
• 27:18
  Speaker 1: made decisions during the September twelfth, two thousand seven meeting
• 27:22
  Speaker 1: with the Defense and State Attorney's Office or at least
• 27:25
  Speaker 1: indicated agreement pending a Costa's approval. In any event, whatever
• 27:29
  Speaker 1: the level of Slowman, Menchal's lorries and Villa Fauna's involvement,
• 27:33
  Speaker 1: they acted with the knowledge and approval of Acosta. Under
• 27:37
  Speaker 1: opr's analytical framework, an attorney who makes a good faith
• 27:41
  Speaker 1: attempt to ascertain the obligations and standards imposed on the
• 27:45
  Speaker 1: attorney and to comply with them in a given situation
• 27:48
  Speaker 1: does not commit professional misconduct. Evidence that an attorney made
• 27:52
  Speaker 1: a good faith attempt to ascertain and comply with the
• 27:54
  Speaker 1: obligations and standards imposed can include, but is not limited
• 27:58
  Speaker 1: to the fact that the attorney consulted with a supervisor.
• 28:02
  Speaker 1: In this regard, opr's framework is similar to a standard
• 28:05
  Speaker 1: provision of the professional conduct rules of most a bars,
• 28:09
  Speaker 1: which specify that a subordinate lawyer does not engage in
• 28:12
  Speaker 1: misconduct if that lawyer acts in accordance with a supervisory
• 28:15
  Speaker 1: lawyer's reasonable solution of an arguable question of professional duty
• 28:20
  Speaker 1: CEGFRPC four and five dot two m B. Therefore, in
• 28:25
  Speaker 1: addition to the fact that OPR did not find the
• 28:28
  Speaker 1: violation of a clear and unambiguous standard as discussed below,
• 28:32
  Speaker 1: OPR concludes that mental Slowman, Laurie and villafauna did not
• 28:36
  Speaker 1: commit professional misconduct with respect to any aspect of the
• 28:40
  Speaker 1: NPA because they acted under a Costa's direction and with
• 28:44
  Speaker 1: his approval. Three, OPR found that none of the subjects
• 28:47
  Speaker 1: violated clear and unambiguous statute, professional responsibility, rule, or a
• 28:52
  Speaker 1: standard or department regulation or policy in negotiating, approving, or
• 28:57
  Speaker 1: entering into the NPA. A central issue OPR addressed in
• 29:02
  Speaker 1: its investigation relating to the NPA was whether any of
• 29:05
  Speaker 1: the subjects in developing, negotiating, or entering into the NPA
• 29:09
  Speaker 1: violated any clear or unambiguous standard established by rule, regulation,
• 29:15
  Speaker 1: or policy. OPR does not find professional misconduct unless a
• 29:19
  Speaker 1: subject attorney intentionally or recklessly violated a clear and unambiguous standard.
• 29:25
  Speaker 1: OPR considered three specific areas. One standards implicated by the
• 29:30
  Speaker 1: decision to decline in federal court prosecution, two standards implicated
• 29:34
  Speaker 1: by the decision to resolve the federal investigation through a
• 29:37
  Speaker 1: non prosecution agreement, and three standards implicated by any of
• 29:42
  Speaker 1: the NPA's provisions, including the promise not to prosecute unidentified
• 29:47
  Speaker 1: third parties as discussed below, OPR concludes that in each area,
• 29:51
  Speaker 1: and in the absence of evidence establishing that his decisions
• 29:55
  Speaker 1: were based on corrupt or improper influences. The U. S.
• 29:58
  Speaker 1: Attorney possessed broad des discretionary authority to proceed as he
• 30:02
  Speaker 1: saw fit, authority that he could delegate to subordinates, and
• 30:05
  Speaker 1: that a Costa exercised of his discretionary authority did not
• 30:09
  Speaker 1: breach any clear and unambiguous standard. As a result, OPR
• 30:14
  Speaker 1: concludes that none of the subject attorneys violated a clear
• 30:18
  Speaker 1: and unambiguous standard or engaged in professional misconduct in developing, negotiating,
• 30:23
  Speaker 1: or entering into the NPA, including it's adendum A U. S.
• 30:29
  Speaker 1: Attorneys have broad discretion to resolve investigation or cases they
• 30:33
  Speaker 1: deem appropriate, and the Costa's decision to decline to prosecute
• 30:37
  Speaker 1: Epstein federally does not constitute professional misconduct. The U. S.
• 30:41
  Speaker 1: Attorney exercises broad discretion in enforcing the nation's criminal laws.
• 30:46
  Speaker 1: As a general matter, Federal prosecutors are designated by statute
• 30:50
  Speaker 1: as the President's delegates to help him discharge his constitutional
• 30:53
  Speaker 1: responsibility to take care that the laws be faithfully executed.
• 30:58
  Speaker 1: United States versus Armstrong, fives seventeen US four fifty six
• 31:02
  Speaker 1: four sixty four, nineteen ninety six, quoting US Constitution Article two,
• 31:07
  Speaker 1: Section three, unless based on an impermissible standard such as race, religion,
• 31:12
  Speaker 1: or other arbitrary classification of prosecutors, charging decisions, including declinations,
• 31:18
  Speaker 1: are not dictated by law or statute and are not
• 31:21
  Speaker 1: subject to judicial review see United States Versus Labonte, five
• 31:25
  Speaker 1: twenty US seven fifty one seven sixty two, nineteen sixty seven.
• 31:30
  Speaker 1: Such discretion is an integral feature of the criminal justice
• 31:33
  Speaker 1: system and is appropriate so long as it's not based
• 31:37
  Speaker 1: upon improper factors. Department policy guidance and effect. At the
• 31:42
  Speaker 1: time the USAO was handling the Epstein case helped ensure
• 31:45
  Speaker 1: the reasonable exercise of prosecutorial authority, but it did not
• 31:49
  Speaker 1: require a particular prosecutorial decision in any given case. U Sam.
• 31:54
  Speaker 1: Section nine Dash twenty seven dot zero zero one nine
• 31:58
  Speaker 1: Dash twenty seven dot ORGX. Rather than mandating specific actions,
• 32:03
  Speaker 1: the USAM identified considerations that should factor into a prosecutor's
• 32:07
  Speaker 1: charging decisions, including that the defendant was subject to effective
• 32:12
  Speaker 1: prosecution and another jurisdiction. U. Sam. Section nine Dash twenty
• 32:16
  Speaker 1: seven dot two twenty. Importantly, US attorneys had plentiary authority
• 32:22
  Speaker 1: with regard to federal criminal matters and commodify or depart
• 32:26
  Speaker 1: from the principles set forth in the u SAM as
• 32:28
  Speaker 1: deemed necessary in the interest of fair and effective law
• 32:31
  Speaker 1: enforcement within their individual judicial districts. USAM Section nine Dash
• 32:36
  Speaker 1: two Dodd zero zero one nine Dash twenty seven dot
• 32:39
  Speaker 1: one forty. As stated in the USAM, the United States
• 32:43
  Speaker 1: Attorney is invested by statute and delegation from the Attorney
• 32:47
  Speaker 1: General with the broadest discretion in the exercise of such
• 32:51
  Speaker 1: prosecutive authority, which includes the authority to decline prosecution USAM
• 32:56
  Speaker 1: Section nine Dash two Dodd zero zero one. In addition,
• 33:00
  Speaker 1: the USAM contemplated that federal prosecutors would sometimes decline federal
• 33:05
  Speaker 1: prosecution in deference to a state prosecution of the same conduct,
• 33:09
  Speaker 1: and provided guidance in the form of factors to be
• 33:12
  Speaker 1: considered in making the decision, including the strength of the
• 33:15
  Speaker 1: other jurisdiction's interest in prosecution, the other jurisdiction's ability and
• 33:19
  Speaker 1: willingness to prosecute effectively, and the probable sentence or other
• 33:23
  Speaker 1: consequences if the person is convicted in the other jurisdiction
• 33:27
  Speaker 1: USAM Section nine to twenty seven two forty. A comment
• 33:31
  Speaker 1: to this provision stated that the factors are illustrative only,
• 33:35
  Speaker 1: and the attorney for the government should be considered any
• 33:38
  Speaker 1: others that appear relevant to him or her in a
• 33:41
  Speaker 1: particular case. As the US attorney, and in the absence
• 33:45
  Speaker 1: of evidence establishing that his decision was motivated by improper factors,
• 33:50
  Speaker 1: Acosta had the pleniary authority under federal law and under
• 33:54
  Speaker 1: the usam to resolve the case as he deemed necessary
• 33:57
  Speaker 1: and appropriate, as discussed in detail below, OPR did not
• 34:01
  Speaker 1: find evidence establishing that Acosta or other subjects were motivated
• 34:06
  Speaker 1: or influenced by improper considerations. Because no clear and unambiguous
• 34:11
  Speaker 1: standard required Acosta to indict Epstein on federal charges or
• 34:15
  Speaker 1: prohibited his decision to defer prosecution to the state, OPR
• 34:19
  Speaker 1: does not find misconduct based on a Costa's decision to
• 34:22
  Speaker 1: decline to initiate a federal prosecution of Epstein. All right,
• 34:27
  Speaker 1: we're going to wrap up this episode here, and then
• 34:29
  Speaker 1: the next episode we're going to pick up with B.
• 34:31
  Speaker 1: No clear and unambiguous standard precluded Acosta's use of a
• 34:35
  Speaker 1: non prosecution agreement to resolve the federal investigation of Epstein.
• 34:40
  Speaker 1: All of the information that goes with this episode can
• 34:43
  Speaker 1: be found in the description box. What's up, everyone, and
• 34:46
  Speaker 1: welcome back to the Epstein Chronicles. In this episode, we're
• 34:49
  Speaker 1: getting right back to it, and we're going to pick
• 34:51
  Speaker 1: up where we left off with the OIG report into
• 34:55
  Speaker 1: Jeffrey Epstein's non prosecution agreement B. No clear and una
• 35:00
  Speaker 1: ambiguous standard precluded a costa's use of a non prosecution
• 35:03
  Speaker 1: agreement to resolve the federal investigation of Epstein. OPR found
• 35:08
  Speaker 1: no statute or department policy that was violated by a
• 35:12
  Speaker 1: costa's decision to resolve the federal investigation of Epstein through
• 35:16
  Speaker 1: a non prosecution agreement. The prosecutor's broad charging discretion includes
• 35:21
  Speaker 1: the option of resolving the case through a non prosecution
• 35:24
  Speaker 1: agreement or a related and similar mechanism a deferred prosecution
• 35:28
  Speaker 1: agreement United States versus Falker Serves BV eight one eight
• 35:33
  Speaker 1: FT three D seven thirty three d C. Circuit Court,
• 35:36
  Speaker 1: twenty sixteen. These agreements afford a middle ground option to
• 35:40
  Speaker 1: the prosecution when, for example, it believes that a criminal
• 35:44
  Speaker 1: conviction may be difficult to obtain or may result in
• 35:47
  Speaker 1: unwonted collateral consequences for a defendant or a third parties,
• 35:51
  Speaker 1: but also believes that the defendant should not evade accountability
• 35:54
  Speaker 1: altogether id at seven thirty eight. As with all prosecutorial
• 35:58
  Speaker 1: charging decisions, the choice to resolve the case through a
• 36:01
  Speaker 1: non prosecution agreement or a deferred prosecution agreement resides fundamentally
• 36:06
  Speaker 1: with the executive branch. OPR found no clear and unambiguous
• 36:11
  Speaker 1: standard in the USAM prohibiting the use of a non
• 36:14
  Speaker 1: prosecution agreement in the circumstances presented in Epstein's case. The
• 36:18
  Speaker 1: u SAM specifically authorized and provided guidance regarding non prosecution
• 36:23
  Speaker 1: agreements or deferred prosecution agreements made in exchange for a
• 36:27
  Speaker 1: person's timely cooperation when such cooperation would put the person
• 36:31
  Speaker 1: in potential criminal jeopardy, and when alternatives the full immunity,
• 36:35
  Speaker 1: such as testimonial immunity, were impossible or impractical SAM Section
• 36:40
  Speaker 1: nine twenty seven dot six hundred. The cooperation contemplated was
• 36:45
  Speaker 1: cooperation in the criminal investigation or a prosecution of another person.
• 36:50
  Speaker 1: In certain circumstances, government attorneys were required to obtain approval
• 36:54
  Speaker 1: from the appropriate Assistant Attorney General before entering into a
• 36:58
  Speaker 1: non prosecution agreement in an exchange for cooperation. Epstein, however,
• 37:03
  Speaker 1: was not providing cooperation as contemplated by the USAM, and
• 37:07
  Speaker 1: the u SAM was silent as to whether a prosecutor
• 37:10
  Speaker 1: could use a non prosecution agreement in the circumstances other
• 37:13
  Speaker 1: than in exchange for cooperation in the investigation or prosecution
• 37:18
  Speaker 1: of another. Notably, although the USAM provided guidance and approval
• 37:22
  Speaker 1: requirements in cases involving cooperation, the u SAM did not
• 37:26
  Speaker 1: prohibit the use of non prosecution agreement in other situations. Accordingly,
• 37:30
  Speaker 1: OPR concludes that USAM did not establish a clear and
• 37:34
  Speaker 1: unambiguous obligation prohibiting a costa from ending the federal investigation
• 37:39
  Speaker 1: through a non prosecution agreement that did not require Epstein's cooperation,
• 37:44
  Speaker 1: nor did the USAM require Acosta to obtain departmental approval
• 37:48
  Speaker 1: before doing so. See. The NPA's individual provisions did not
• 37:53
  Speaker 1: violate any clear and unambiguous standards, although Acosta, as US attorney,
• 37:58
  Speaker 1: had discretion in general to resolve the case through a
• 38:01
  Speaker 1: non prosecution agreement that deferred prosecution to the state. OPR
• 38:05
  Speaker 1: also considered whether a clear and unambiguous standard governed any
• 38:10
  Speaker 1: of the individual provisions of the NPA. Specifically, OPR examined
• 38:15
  Speaker 1: the Costa's decision to permit Epstein to resolve the federal
• 38:18
  Speaker 1: investigation by pleading guilty to state charges of solicitation of
• 38:21
  Speaker 1: miners to engage in prostitution and solicitation to prostitution with
• 38:26
  Speaker 1: a joint binding recommendation for an eighteen month sentence of incarceration. Because,
• 38:32
  Speaker 1: as noted above, OPR found no clear guidance applicable to
• 38:35
  Speaker 1: non prosecution agreements not involving cooperation, OPR examined departmental policies
• 38:41
  Speaker 1: relating to plea offers to assess the propriety of the
• 38:44
  Speaker 1: NPA's charge and sentence requirements. OPR also examined the provision
• 38:49
  Speaker 1: declining to prosecute Epstein's unidentified potential co conspirators to determine
• 38:55
  Speaker 1: whether that provision violated departmental policy regarding grants of immunity. Finally,
• 39:00
  Speaker 1: OPR considered whether there was a clear and unambiguous obligation
• 39:05
  Speaker 1: under the department's policy regarding the deportation of criminal aliens
• 39:09
  Speaker 1: which would have required further action to be taken against
• 39:12
  Speaker 1: the two Epstein assistants who were foreign nationals. After considering
• 39:17
  Speaker 1: the applicable rules and policies, OPR finds that Acosta's decision
• 39:21
  Speaker 1: to resolve the federal investigation through the NPA did not
• 39:24
  Speaker 1: violate any clear and unambiguous standards, and that Acosta had
• 39:28
  Speaker 1: the authority to resolve the federal investigation through a state
• 39:31
  Speaker 1: plea and through the terms that he chose. Accordingly, OPR
• 39:35
  Speaker 1: concludes that Acosta did not commit professional misconduct in developing, negotiating,
• 39:40
  Speaker 1: or approving the NPA, nor did the other subjects who
• 39:43
  Speaker 1: implemented his decisions. With respect to the resolution one, Acosta
• 39:49
  Speaker 1: had authority to approve an agreement that required Epstein to
• 39:52
  Speaker 1: plead to offenses resulting in an eighteen month term of incarceration.
• 39:56
  Speaker 1: Federal prosecutors have discretion to resolve the pending care or
• 40:00
  Speaker 1: investigation through a plea agreement, including a plea that calls
• 40:04
  Speaker 1: for the imposition of a specific predetermined sentence U SAM
• 40:08
  Speaker 1: Section nine Dash twenty seven dot three to three zero
• 40:11
  Speaker 1: nine Dash twenty seven dot four hundred. See also Federal
• 40:14
  Speaker 1: Rule of Criminal Procedure eleven c U one. Long standing
• 40:18
  Speaker 1: departmental policy directs prosecutors to require the defendant to plead
• 40:23
  Speaker 1: to the most serious, readily provable charge consistent with the
• 40:26
  Speaker 1: nature and extent of the defendant's criminal conduct and has
• 40:30
  Speaker 1: an adequate factual basis, is likely to result in sustainable conviction,
• 40:34
  Speaker 1: makes likely the imposition of an appropriate sentence and restitution order,
• 40:38
  Speaker 1: and does not adversely affect the investigation or prosecution of others.
• 40:43
  Speaker 1: See U. SAM Section nine Dash twenty seven Dot four
• 40:46
  Speaker 1: thirty nine Dash twenty seven Dash three hundred nine Dash
• 40:50
  Speaker 1: twenty seven dot four hundred the genesis of this policy.
• 40:54
  Speaker 1: The Ashcroft Memo specifically requires federal prosecutors to charge and
• 40:58
  Speaker 1: pursue all readily approvable charges that would yield the most
• 41:01
  Speaker 1: substantial sentence under the sentencing guidelines. However, the Ashcroft Memo
• 41:07
  Speaker 1: articulates an important exception. A US attorney or a designated
• 41:11
  Speaker 1: supervisory attorney may authorize a plea that does not comport
• 41:15
  Speaker 1: with this policy. Moreover, the Ashcroft Memo explains that a
• 41:19
  Speaker 1: charge is not readily provable if the prosecutor harbors a
• 41:22
  Speaker 1: good faith doubt based on either the law or the evidence,
• 41:25
  Speaker 1: as to the government's ability to prove the charge at trial.
• 41:29
  Speaker 1: By its playing terms, the NPA arguably does not appear
• 41:33
  Speaker 1: to satisfy the most serious readily provable charge requirement. The
• 41:37
  Speaker 1: draft indictment prepared by Villa Fauna proposed charging Epstein with
• 41:41
  Speaker 1: a variety of federal crimes relating to sexual conduct with
• 41:45
  Speaker 1: and trafficking of miners, and Epstein's sentencing exposure under the
• 41:49
  Speaker 1: federal guidelines was in the range to one hundred and
• 41:52
  Speaker 1: sixty eight to two hundred and ten months imprisonment. The
• 41:55
  Speaker 1: original turn sheet presented to the defense proposed a non
• 41:58
  Speaker 1: negotiable requirement that Epstein plead guilty to three state offenses
• 42:03
  Speaker 1: in addition to the original state indictment, with a joint
• 42:06
  Speaker 1: binding recommendation for a two year term of incarceration. Instead,
• 42:10
  Speaker 1: Epstein was permitted to resolve his federal criminal exposure with
• 42:14
  Speaker 1: a plea to the state indictment, and only won additional
• 42:17
  Speaker 1: state offense and an eighteen month sentence. As discussed more
• 42:21
  Speaker 1: fully later in this report, Acosta, Slowman, Menchell, and Lori
• 42:25
  Speaker 1: perceived risks to going forward to trial on federal charges.
• 42:28
  Speaker 1: Villa Fauna outlined in the prosecution memorandum and identified for
• 42:32
  Speaker 1: OPR concerns with both the evidence and legal theories on
• 42:36
  Speaker 1: which a federal prosecution would be premised. On the other hand,
• 42:40
  Speaker 1: Villa Fauna felt strongly that federal charges should be brought,
• 42:43
  Speaker 1: and the CEO's chief reviewed the prosecution memorandum and twice
• 42:47
  Speaker 1: opine that the charges were appropriate. OPR found it unnecessary
• 42:52
  Speaker 1: to resolve the question whether federal charges against Epstein were
• 42:55
  Speaker 1: readily provable, however, because Acosta had authority to deviate from
• 43:00
  Speaker 1: the Ashcroft Memo Most Serious Readily Provable Offense requirement. Although
• 43:04
  Speaker 1: Acosta could not recall specifically how or by whom the
• 43:08
  Speaker 1: decision was made to allow Epstein to plead to only
• 43:11
  Speaker 1: one of the three charges identified on the original term sheet,
• 43:14
  Speaker 1: or by whom the decision was made to reduce the
• 43:17
  Speaker 1: sentencing requirement from two years to eighteen months, Acosta was
• 43:21
  Speaker 1: aware of these changes. He reviewed and approved the final
• 43:25
  Speaker 1: NPA before it was signed. Department policy gave him the
• 43:28
  Speaker 1: discretion to approve the agreement, notwithstanding any arguable failure to
• 43:33
  Speaker 1: comply with the most Serious Readily Provable offense requirement. Furthermore,
• 43:38
  Speaker 1: the Ashcroft Memo does not appear to preclude a US
• 43:41
  Speaker 1: attorney from deferring to a state prosecution, so it's not
• 43:44
  Speaker 1: clear that the memo's terms apply to a situation involving
• 43:48
  Speaker 1: state charges. Accordingly, OPR concludes that the negotiations of an
• 43:52
  Speaker 1: agreement that allowed Epstein to resolve the federal investigation in
• 43:56
  Speaker 1: return for the imposition of an eighteen month sentence did
• 44:00
  Speaker 1: not violate a clear and unambiguous standard and therefore does
• 44:04
  Speaker 1: not constitute professional misconduct. Two, the usao's agreement not to
• 44:09
  Speaker 1: prosecute unidentified potential co conspirators did not violate a clear
• 44:14
  Speaker 1: and unambiguous departmental policy. Several witnesses told OPR that they
• 44:19
  Speaker 1: believe the government agreement not to prosecute unidentified potential co
• 44:23
  Speaker 1: conspirators amounted to transactional immunity, which the witnesses asserted is
• 44:28
  Speaker 1: prohibited by department policy. Although US immunity protects a witness
• 44:33
  Speaker 1: only against the government's use of his or her immunized
• 44:36
  Speaker 1: testimony in a prosecution of the witness and is frequently
• 44:40
  Speaker 1: used by prosecutors, transactional immunity protects a witness from prosecution
• 44:44
  Speaker 1: altogether and is relatively rare. OPR found no policy prohibiting
• 44:49
  Speaker 1: a US attorney from declining to prosecute third parties or
• 44:53
  Speaker 1: providing transactional immunity. One section of the u SAM related
• 44:57
  Speaker 1: to immunity, but applied only to to the exchange of
• 45:01
  Speaker 1: u's immunity for the testimony of a witness who has
• 45:04
  Speaker 1: asserted a Fifth Amendment privilege cee U SAM Section nine
• 45:07
  Speaker 1: Ish twenty three dot one hundred. Statutory provisions relating to
• 45:12
  Speaker 1: immunity also address the same context. See US Code eighteen,
• 45:16
  Speaker 1: section six zero zero two, US Code twenty one, section
• 45:20
  Speaker 1: eight eighty four. Moreover, apart from voluntariness or enforceability concerns,
• 45:26
  Speaker 1: courts have not suggested that a prosecutor's promise not to
• 45:29
  Speaker 1: prosecute a third party amounts to an appropriate exercise of
• 45:33
  Speaker 1: prosecutorial discretion. Ce G. Marquez nine oh nine f Dot
• 45:38
  Speaker 1: two d at seven forty one through forty three. Kemp
• 45:41
  Speaker 1: seven sixty f Dot two d at twelve forty eight,
• 45:45
  Speaker 1: Stinson eight thirty nine, Southern Second District at nine oh nine,
• 45:49
  Speaker 1: Fraser nine sixty seven Southern District nine forty five. OPR
• 45:53
  Speaker 1: found no clear and unambiguous standard that was violated by
• 45:57
  Speaker 1: the usao's agreement not to prosecute potential co conspirators, and
• 46:02
  Speaker 1: therefore cannot conclude that negotiating or approving this provision violated
• 46:07
  Speaker 1: a clear and unambiguous standard or constituted professional misconduct. Notwithstanding
• 46:12
  Speaker 1: this finding, in section four of this part, OPR includes
• 46:16
  Speaker 1: in it its criticism of Acosta's decision to approve the
• 46:19
  Speaker 1: NPA with approval of the provision without considering its potential consequences,
• 46:24
  Speaker 1: including to whom it would apply. All right, folks, we're
• 46:27
  Speaker 1: going to wrap up this episode here and in the
• 46:29
  Speaker 1: next episode we're going to pick up with three. The
• 46:32
  Speaker 1: NPA did not violate department policy relating to deportation of
• 46:36
  Speaker 1: criminal aliens. All of the information that goes with this
• 46:40
  Speaker 1: episode can be found in the description box.