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Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 28-30) (7/3/26) · The Vault: The Epstein Files

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Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
0:03
In this episode, we're diving rye back in to the
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OIG report into Jeffrey Epstein's non prosecution agreement. Three you
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SAM provision relating to plea agreements. Federal prosecutors have discretion
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to resolve an investigation or pending case through a plea
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agreement U SAM Section nine Dash twenty seven dot three
0:24
thirty nine Dash twenty seven dot four hundred negotiated please
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are all explicitly sanctioned by Federal Rule of Criminal Procedure
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eleven C to one. Regardless of whether the plea agreement
0:35
is offered pre charge or post charge, the prosecutors plea
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bargaining must honestly reflect the totality and seriousness of the
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defendant's conduct. U SAM Section nine Dash twenty seven dot
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four hundred. The importance of selecting a charge that reflects
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the seriousness of the conduct is echoed in New SAM
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Section nine Dash twenty seven dot four to three zero,
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which directs the prosecutor to require defendant to plead to
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an offense that represents the most serious, readily provable charge
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consistent with the nature and extent of the defendant's criminal
1:08
conduct has an adequate factual basis, makes likely the imposition
1:13
of an appropriate sentence and order of restitution, and does
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not adversely affect the investigation or prosecution of others. You
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SAM Section nine to twenty seven four twenty specifies in
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determining whether it would be appropriate to enter a plea agreement,
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the attorney for the government should weigh all relevant considerations,
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including one the defendant's willingness to cooperate in the investigation
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or prosecution of others. Two, the defendant's history with respect
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to criminal activity. Three the nature and seriousness of the
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offense or offenses charged. For the defendant's remorse or contrition,
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and his or her willingness to assume responsibility for his
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or her conduct. Five, the desirability of prompt and certain
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disposition of the case. Six, the likelihood of obtaining a
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conviction at trial. Seven, the probable effect on witnesses. Eight,
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the probable sentence or other consequences if the defendant is convicted. Nine,
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the public interest in having the case tried rather than
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disposed of by a guilty plea. Ten, the expensive trial
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and appeal eleven, the need to avoid delay in the
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disposition of other pending cases, and twelve the effect upon
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the victim's right to restitution. Four you SAM provisions relating
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to non prosecution agreements. You SAM. Section nine Toash twenty
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seven dot six hundred authorizes government attorneys to enter into
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a non prosecution agreement in exchange for a person's cooperation.
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The provision explains that a non prosecution agreement is appropriate
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for this purpose. In the prosecutor's judgment, the person's timely
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cooperation appears to be necessary to the public interest, and
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other means of obtaining the desired cooperation are unavailable or
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would not be effective. A comment to this provision explains
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that such other means include seeking qui operation after trial
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and conviction, bargaining for cooperation as part of a plea agreement,
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or compelling the cooperation under a use of immunity order.
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The common observes that these alternative means are clearly preferable
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to permitting an offender to avoid any liability for his
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or her conduct, and should be given serious consideration. In
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the first instance. U SAM. Section nine Dash twenty seven
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dot six twenty and nine Dash twenty seven dot six
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thirty set forth considerations a prosecutor should take into account
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when entering into a non prosecution agreement. Generally, the US
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Attorney has authority to approve a non prosecution agreement U
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SAM Section nine Dash twenty seven dot six hundred. However,
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U SAM Section nine Dash twenty seven dot six forty
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directs that a government attorney should not enter into a
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non prosecution agreement in exchange for a person's cooperation without
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first obtaining the approval of the appropriate Assistant Attorney General
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or his or her designee when the person is someone
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who is likely to become a major public interest. These
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USAM provisions do not address the uses of non prosecution
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agreements in circumstances other than we needed to obtain cooperation.
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Five U SAM provisions relating to grants of immunity. Nothing
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in the U SAM directly prohibits the government from using
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the criminal exposure of third parties in negotiating with a
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criminal defendant. Instead, the provision that addresses immunity relates only
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to the exchange of limited immunity for the testimony of
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a witness who has asserted a Fifth Amendment privilege against
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self incrimination. Six U SAM CFR provisions relating to financial
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conflicts of interest department employees are expected to be aware
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of and to comply with all ethics related laws, rules, regulations,
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and policies. Specifically, a government attorney is prohibited by criminal
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statute from participating personally and substantially in any particular matter
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in which he has a financial interest, or in which
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such an interest can be imputed to see US Code eighteen,
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section two eight and five CFR Section two six three
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five dot four one dash four two. In addition, a
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department and employee who seek advice from an ethics official
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before participating in any matter in which his impartiality could
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be questioned if a conflict of interest exists. In order
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for the employee to participate in the matter, the head
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of the employee's component, with the concurrence of an ethics official,
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must make a determination that the interest of the government
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in the employees' participation outweighs the concern that a reasonable
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person may question the integrity of the department's programs and operations.
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The determination must be made in writing b other department
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policies one department policies relating to the disposition of charges.
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The Attorney General has the responsibility for establishing prosecutorial priorities
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for the Department. Over the span of several decades, each
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successive Attorney General has articulated those priorities and policy memoranda
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issued to all federal prosecutors as applicable here. On September
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twenty two, two thousand and three, Attorney General John Ashcroft
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issued a memorandum regarding Department policy concerning charging criminal offenses,
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disposition of charges, and sentencing Ashcroft Memo. The Ashcroft Memo,
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which explicitly superseded all previous departmental guidance on the subject,
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set forth policies designed to ensure that all federal prosecutors
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adhere to the principles and objectives of the Sentencing Reform
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Act of nineteen eighty four, the Sentencing Guidelines, and the
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protect Act in their charging, case, disposition, and sentencing practices.
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The Ashcroft Memo directed that in all federal cases, federal
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prosecutors must charge and pursue the most serious, redibly provable
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offenses or offenses that are supported by the facts of
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the case, except as authorized by an Assistant Attorney General
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U S Attorney, or designated supervisory authority in certain articulated,
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limited circumstances. The Ashcroft Memo caution that a charge is
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not readily provable if the prosecutor harbors a good faith
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doubt based on either the law or the evidence, as
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to the government's ability to prove the charged trial. The
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Ashcroft Memo explains that the basic policy requires federal prosecutors
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to charge and pursue all charges that are determined to
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be readily provable and would yield the most substantial sentence
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under the sentencing guidelines. The policy set forth six exceptions,
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including a catch all exception that permits a prosecutor to
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decline to pursue readily approvable charges in other exceptional circumstances.
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Would the written or otherwise documented approval of an Assistant
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Attorney General U S Attorney or designated supervisory attorney as
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examples of circumstances in which such declination would be appropriate.
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The Ashcroft Memo cites to situations in which a U. S.
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Attorney's office is particularly overburdened, the trial is expected to
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be of ex exceptionally long duration, and proceeding to trial
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would significantly reduce the total number of cases the office
8:05
could resolve. The Ashcroft Memo specifically notes that charges may
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be declined pursuant to a plea agreement only to the
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extent consistent with the policies established by this memo. On
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January twenty eighth, two thousand and five, Deputy Attorney General
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James Comi issued a memorandum entitled Department Policies and Procedures
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concerning Sentencing. That memorandum reiterated that federal prosecutors must continue
8:31
to charge and pursue the most serious, readily approvable offenses,
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and define that term as the offenses that would generate
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the most substantial sentence under the sentencing guidelines, any applicable
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mandatory minimum, and any statutorily required consecutive sentence. Importantly, although
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the Ashcroft and Comi memoranda limit an individual line prosecutor's
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ability to decline readily provable charges in their entirety, no
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such restriction is placed on the u S Attorneys, who
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are ten authority to approve exceptions to the policy. In addition,
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the policy applies to readily provable charges, thus inherently allowing
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a prosecutor of flexibility to decline to bring a particular
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charge based on a good faith doubt that the law
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or evidence supports the charge. Two. Department policy relating to
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deportation of criminal aliens. On April twenty eighth, nineteen ninety five,
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the Attorney General issued a memorandum to all federal prosecutors
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in titled Deportation of Criminal Aliens, directing federal prosecutors to
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actively and directly become involved in the process of removing
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criminal aliens from the United States. In pertinent part, the
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memorandum notes that prosecutors can make a major contribution to
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the expeditious deportation of criminal aliens by effectively using available
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prosecution tools for dealing with alien defendants. These tools include
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one stipulated administrative deportation orders in connection with plea agreements
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to deportation as a condition of supervis release under US
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Code eighteen, section thirty eight fifty three D, and three
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judicial deportation orders pursuingto US Code eight section twelve fifty
10:09
two A and D. The memorandum further directs all deportable
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criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, apps,
10:20
in such circumstances, federal prosecutors should seek the deportation of
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deportable alien defendants in whatever manner is deemed most appropriate.
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In a particular case. Exceptions to this policy must have
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the written approval of the United States Attorney See also
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U Sam nine to seven three dot five two zero.
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A criminal alien is a foreign national who has been
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convicted of a crime. Stipulated administrative deportation orders can be
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based on the conviction for an offense to which the
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alien will plead guilty, provided that the offense is one
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of those enumerated in US Code eight, section twelve fifty
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one as an offense that will cause an alien to
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be deported under US Code eight section twelve fifty one A, two, A,
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and I. Any alien who is convicted of a crime
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of moral turpitude within five years after the date of
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entry or ten years in the case of an alien
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provided lawful permanent resident status, and is either sentenced to
11:16
confinement or confined to prison for one year or longer.
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Is the portable. All right, We're going to end this
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episode here and in the next episode, we're going to
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pick up where we left off. All of the information
11:27
that goes with this episode can be found in the
11:30
description box. What's up, everyone, and welcome back to the
11:33
Epstein Chronicles. In this episode, we're picking up where we
11:37
left off with the OIG report into the non prosecution agreement.
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See case law one Prosecutorial discretion. On many occasions, the
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Supreme Court has discussed the breadth of the prosecutor's discretion
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in deciding whether and whom to prosecute. In Borden Kirker
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versus Hayes, four thirty four US three fifty seven, nineteen
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seventy eight, considered the propriety of a prosecutor's threat during
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plea negotiations to seek more serious charges against the accused
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if the accused did not plead guilty to the offense
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originally charged. The defendant Hayes opted not to plead guilty
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to the original charges, and the prosecutor indicted him on
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a more serious charge. Hayes was thereafter convicted and sentenced
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under the new indictment. The State Court of Appeals rejected
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Hayes's challenge to his conviction, concluding that the prosecutor's decision
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to indict on more serious charges was a legitimate use
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of available leverage in plea bargaining process. Hayes filed for
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a review of his conviction and sentence in federal court,
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and although Hayes lost at the district court level, the
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US Court of Appeals for the Sixth Circuit concluded that
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the prosecutor's conduct constituted in permissible vindictive prosecution. The Supreme
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Court reversed the six Court's ruling. The Court opined that
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acceptance of the basic legitimacy of plea bargaining necessarily implies
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rejection of any notion that a guilty flea is involuntary
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in a constitutional sense, simply because it's the end result
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of the bargaining process Idea three sixty three. As long
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as the prosecutor has probable cause to believe a crime
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has been committed, the decision whether or not to prosecute
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and what charge the file or bring before a grand
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jury rests entirely in his discretion. The Court explained that
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selectively in enforcement of the criminal law is not improper
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unless based upon an unjustifiable standards, such as race, religion,
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or other arbitrary classification. These principles were reiterated in Wait
13:35
versus United States, four seventy US five ninety eight nineteen
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eighty five, a case involving the government's policy of prosecuting
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only those individuals who reported themselves as having felt a
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register with the selective service system. The petitioner in Weight
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claimed that the self reported non registrants were vocal opponents
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of the registration program who were being punished for the
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exercise of the First Amendment rights. The Supreme Court rejected
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this argument, stating that the government has broad discretion in
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deciding whom to prosecute, and that the limits of that
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discretion are reached only when the prosecutor's decision is based
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on an unjustifiable standard. Because the passive enforcement policy was
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not intended to have a discriminatory effect, the claim of
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selective prosecution failed. In Imbler versus Pacmann, four twenty four
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US four nine, nineteen seventy six, the Supreme Court considered
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whether a state prosecutor, acting within the scope of his duties,
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could be sued under US Code forty two, section nineteen
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eighty three for violation of the defendant's constitutional rights when
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the defendant alleged that the prosecutor and others had unlawfully
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conspired to charge and convictim. The Court held that in
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initiating a prosecution and in presenting the state's case, conduct
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that is intimately associated with the judicial phase of the
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criminal process, the prosecutor enjoyed absolute immunity from civil suit
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for damages. In Harrington versus Almy, seven ft. Two d
15:01
thirty seven for A Circuit, nineteen ninety two, the Court
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applied Mbler to a challenge to a prosecutor's decision not
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to prosecute. The Court noted that given the availability of
15:11
immunity for the decision to charge, it becomes even more
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important that symmetrical protection be available for the decision not
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to charge. Finally, in the area of the law, in
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Heckler versus Cheney, four to seventy US eight twenty one,
15:26
nineteen eighty five, the Supreme Court concluded that an agency's
15:30
decision not to undertake an enforcement action is not reviewable
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under the Federal Administrative Procedure Act, five US Code, Section
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five hundred through seven six two plea agreement promises of
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leniency towards a third party case. Law regarding promises may
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during plea negotiations not to prosecute a third party arises
15:50
in two contexts. First, defendants have challenged the voluntariness of
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the resulting plea when prosecutors have used third parties as
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leverage in plea negotiations. Numerous courts have made clear, however,
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that a plea is not valid when entered under an
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agreement that includes a promise of leniency towards a third party,
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or in response to a prosecutor's threat to prosecute a
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third party, if a plea is not entered ceg. United
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States versus Marquez, nine O nine f dot two D
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seven three eight seven, forty one, and forty two, Second Circuit,
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nineteen ninety, rejecting a claim that plea was involuntary because
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of pressure placed upon a defendant by the government's insistence
16:29
that a defendant's wife would not be offered a plea
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bargain unless he pled guilty. Martin versus Kemp, seven sixty
16:36
f Dot two d twelve forty four twelve forty eight,
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Eleventh Circuit, nineteen eighty five. In order to satisfy heavy
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burden of establishing that the government had not acted in
16:46
good faith, a defendant challenging voluntariness of his plea on
16:50
grounds that the prosecutor had threatened to bring charges against
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the defendant's pregnant wife had to establish that government lacked
16:56
probable cause to believe the defendant's wife had committed a crime.
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Time at the time it threatened a charger. Stinton versus
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State eight thirty nine, nine oh six, nine oh nine,
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Florida Appeals Court, two thousand and three. In cases involving
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a promise not to prosecute a third party, the government
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must act in good faith and must have probable cause
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to charge the third party. The second context concerned situations
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in which courts have been forced prosecutors promises of leniency
17:23
to third parties. For example, in State versus Fraser six
17:27
ninety seven, Second District, nine forty four, Florida Appeals Court,
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nineteen ninety seven, as consideration for the defendants guilty plea,
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the prosecutor agreed and announced in open court that the
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government would dismiss charges against the defendant's niece and nephew,
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who had all been charged as a result of the
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same incident. When the state renegged and attempted to prosecute
17:47
the niece and nephew, the trial court dismissed the charges
17:49
against them, and the state appealed. The appellate court affirmed
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the dismissal, concluding that under contract law principles, the niece
17:57
and nephew were third party beneficiaries of the plea ago
18:00
and were therefore entitled to enforce it. Apart from voluntariness
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or enforceability concerns, courts have not suggested that a prosecutor's
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promise not to prosecute a third party amounts to an
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inappropriate exercise of prosecutorial discretion d state bar rules. During
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the period relevant to this report, the five subject attorneys
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were members of the bar in several different states and
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were subject to the rules of professional conduct in each
18:26
state in which they held membership. In determining which rules apply,
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OPR applied the local rules of the U. S. District
18:32
Court for the Southern District of Florida and the choice
18:36
of law provisions of each applicable bar. Local Rule eleven
18:40
dot one F incorporates rules governing the admission, practice, peer review,
18:44
and discipline of attorneys. Attorney admission rules. Attorney Admission Rule
18:48
for D provides that any U. S. Attorney or a
18:52
USA employed full time by the government may appear and
18:55
participate in particular actions or proceedings on behalf of the
18:59
United States in the attorney's official capacity without petition for admission.
19:04
Any attorney so appearing is subject to the rules of
19:07
the court. Attorney Admission Rule six B two A makes
19:11
clear that attorneys practicing before the court are a subject
19:14
to the Florida Bar Rule of Professional Conduct. Moreover, the
19:17
choice of law provisions contained within the relevant state rules
19:21
a Professional Conduct make FRPC applicable to their conduct one
19:27
FRPC four dash one dot one. Competence FRPC four Dash
19:33
one dot one requires that a lawyer provide a competent
19:36
representation to a client. Competent representation requires the legal knowledge, skill, thoroughness,
19:42
and preparation reasonably necessary for the representation. A comment to
19:46
the rule clarifies that the factors relevant to determining a
19:50
lawyer's competence to handle a particular matter include the relative
19:53
complexity and specialized nature of the matter, the lawyer's general experience,
19:58
the lawyer's training and exp experience in the field in question,
20:01
the preparation and study the lawyer is able to give
20:04
the matter, and whether it's feasible to refer to the
20:07
matter to or associate or console with a lawyer of
20:11
established competence in the field. The comment further notes that
20:14
in many instances, the required proficiency is that of a
20:18
general practitioner with respect to particular matters. Competence requires inquiry
20:23
into the analysis of the factual and legal elements of
20:26
the problem. The comment a rule for Dash one dot
20:29
one explains that the required attention and preparation are determined
20:34
in part by what is at stake. Major litigation and
20:37
complex transactions or narrowly require more extensive treatment than matters
20:42
of lesser complexity and consequence. Two FRPC four Dash one
20:47
dot three Diligence FRPC four Dash one dot three specifies
20:52
that a lawyer should act with reasonable diligence and promptness
20:55
in representing a client. A comment to this rule explains
20:59
a lawyer should pursus to a matter on behalf of
21:01
a client despite opposition, obstruction, or personal inconvenience to the lawyer,
21:06
and take whatever lawful and ethical measures are required to
21:09
vindicate a client's cause or endeavor. A lawyer must exercise
21:13
zeal in advocating for the client, but is not required
21:16
to press for every advantage that might be realized for
21:19
a client. Three FRPC four Dash four Dot one candor
21:23
in dealing with others. FRPC four Dash four Dot one
21:27
prohibits a lawyer from knowingly making false statements of material
21:31
fact or law to a third person during the course
21:34
of representation of a client. A comment to this rule
21:37
explains that misrepresentations can also occur by partially true but
21:42
misleading statements or omissions that are the equivalent of affirmative
21:45
false statements, and whether a particular statement should be regarded
21:49
as one of fact can depend up the circumstances. Four
21:53
FRPC four Dash eight dot four Conduct prejudicial to the
21:57
administration of Justice FRP d d A dot four C
22:02
states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit,
22:07
or misrepresentation. FRPC four Dash Dot four D prohibits a
22:12
lawyer from engaging in conduct and connection with the practice
22:15
of law that is prejudicial to the administration of justice.
22:19
In Florida, Barvarus Fredericks seven five six Southern Second District,
22:24
seventy nine eighty seven, Florida, two thousand, the Court noted
22:27
that FRPC four Dash eight four D is not limited
22:32
to conduct that occurs in a judicial proceeding, but can
22:34
be applied to conduct in connection with the practice of law.
22:38
In Florida, Barvvers Shankman, forty one Southern third District one
22:42
sixty six one seventy two, Florida twenty ten, For example,
22:46
an attorney's continuous hiring and firing of firms to assist
22:50
in the client's matter resulted in the layed resolution of
22:52
the case and constituted a violation of FRPC four dash
22:57
A dot four D due to the delay in the
23:00
administration of justice and the increased costs to the client.
23:04
All right, we're gonna wrap this episode up right here,
23:06
and then the next episode we're going to pick up
23:08
where we left off. All of the information that goes
23:11
with this episode can be found in the description box.
23:15
What's up, everyone, and welcome back to the Epstein chronicles.
23:18
In this episode, we're getting right back to the OIG
23:21
report into Jeffrey Epstein's non prosecution Agreement, Chapter two, Part three,
23:27
Analysis one Overview. Following the Miami Herald's report in November
23:33
of twenty eighteen, media scrutiny of and public attention to
23:37
the usao's handling of its Epstein investigation has continued unabated.
23:42
At the heart of the public's concern is the perception
23:45
that Epstein's eighteen month sentence, which resulted in a thirteen
23:48
month term of actual incarceration, was too lenient and inadequately
23:53
punished Epstein's criminal conduct. Although many records have been released
23:57
as part of civil litigation stemming from Epstein's conduct, the
24:00
public has received only limited information regarding the decision making
24:04
process leading to the signed NPA. As a result, questions
24:09
have arisen about Acosta and to staffs motivations for entering
24:13
into the NPA. Publicly released communications between prosecutors and defense counsel,
24:18
the leniency of the sentence, and the unusual non prosecution
24:22
provision in the NPA have led to allegations that Acosta
24:26
and the USAO gave Epstein a sweetheart deal because they
24:29
were motivated by improper influences such as their pre existing
24:33
and personal relationships with his attorneys, or even corrupt influences
24:38
such as the receipt of personal benefits from Epstein. Through
24:42
its investigation, OPR has sought to answer the following core questions.
24:46
One who is responsible for the decision to resolve the
24:49
federal investigation through the NPA and for its specific terms.
24:53
Two did the NPA or any of its provisions violate
24:57
department policies or other rules or AC regulations? And three
25:01
were any of the subjects motivated to resolve the federal
25:04
investigation by improper factors such as corruption or favoritism, to
25:09
the extent that the available records and witness interviews shed
25:13
light on these questions. OPR shows in detail the process
25:17
that led the NPA from the initial complaint to the
25:20
USAO through the intense and often confusing negotiation process. After
25:25
thorough and detailed examination of thousands of contemporaneous records and
25:29
extensive interviews of subjects and witnesses, OPR is able to
25:33
answer most of the significant questions concerning the NPA's origins
25:38
and development. Although some questions remain. OPR sets forth its
25:42
conclusions and the basis for them in this Part two.
25:46
Acosta reviewed and approved the terms of the NPA and
25:50
is accountable for it. Although Acosta did not sign the NPA,
25:55
he approved it with knowledge of its terms. He revised
25:58
drafts of the NPA and added language that he thought appropriate.
26:02
Acosta told OPR that he either was informed of or
26:06
had access to information concerning the underlying facts of the
26:09
case against Epstein. OPR did not find any evidence suggesting
26:13
that any of his subordinates misled him about the facts
26:16
or withheld information that would have influenced his decision, and
26:20
Acosta did not make such a claim to OPR. As
26:23
a Costa affirmed in his OPR interview, the three pronged
26:26
resolution two years, registration and restitution ultimately was approved on
26:32
my authority. Ultimately I approved it, and so I accept
26:36
that I'm not pushing away responsibility for it. In making
26:40
misconduct assessments, OPR considers the conduct of subjects individually. Mencheal, Slowman, Laurie,
26:46
and Villafauna were involved in the matter to varying degrees
26:50
at different points in time and regarding different decisions. Menchell,
26:54
for example, participated in formulating the usao's initial written offer
26:58
to the defense, but he had no involvement with actions
27:01
or decisions made after August third, two thousand and seven.
27:04
Slowman was absent during the part of the most intense
27:07
negotiations in September two thousand and seven and did not
27:11
see the final signed version of the NPA until he returned.
27:14
Villafauna and Laurie participated in the negotiations, and Louri either
27:18
made decisions during the September twelfth, two thousand seven meeting
27:22
with the Defense and State Attorney's Office or at least
27:25
indicated agreement pending a Costa's approval. In any event, whatever
27:29
the level of Slowman, Menchal's lorries and Villa Fauna's involvement,
27:33
they acted with the knowledge and approval of Acosta. Under
27:37
opr's analytical framework, an attorney who makes a good faith
27:41
attempt to ascertain the obligations and standards imposed on the
27:45
attorney and to comply with them in a given situation
27:48
does not commit professional misconduct. Evidence that an attorney made
27:52
a good faith attempt to ascertain and comply with the
27:54
obligations and standards imposed can include, but is not limited
27:58
to the fact that the attorney consulted with a supervisor.
28:02
In this regard, opr's framework is similar to a standard
28:05
provision of the professional conduct rules of most a bars,
28:09
which specify that a subordinate lawyer does not engage in
28:12
misconduct if that lawyer acts in accordance with a supervisory
28:15
lawyer's reasonable solution of an arguable question of professional duty
28:20
CEGFRPC four and five dot two m B. Therefore, in
28:25
addition to the fact that OPR did not find the
28:28
violation of a clear and unambiguous standard as discussed below,
28:32
OPR concludes that mental Slowman, Laurie and villafauna did not
28:36
commit professional misconduct with respect to any aspect of the
28:40
NPA because they acted under a Costa's direction and with
28:44
his approval. Three, OPR found that none of the subjects
28:47
violated clear and unambiguous statute, professional responsibility, rule, or a
28:52
standard or department regulation or policy in negotiating, approving, or
28:57
entering into the NPA. A central issue OPR addressed in
29:02
its investigation relating to the NPA was whether any of
29:05
the subjects in developing, negotiating, or entering into the NPA
29:09
violated any clear or unambiguous standard established by rule, regulation,
29:15
or policy. OPR does not find professional misconduct unless a
29:19
subject attorney intentionally or recklessly violated a clear and unambiguous standard.
29:25
OPR considered three specific areas. One standards implicated by the
29:30
decision to decline in federal court prosecution, two standards implicated
29:34
by the decision to resolve the federal investigation through a
29:37
non prosecution agreement, and three standards implicated by any of
29:42
the NPA's provisions, including the promise not to prosecute unidentified
29:47
third parties as discussed below, OPR concludes that in each area,
29:51
and in the absence of evidence establishing that his decisions
29:55
were based on corrupt or improper influences. The U. S.
29:58
Attorney possessed broad des discretionary authority to proceed as he
30:02
saw fit, authority that he could delegate to subordinates, and
30:05
that a Costa exercised of his discretionary authority did not
30:09
breach any clear and unambiguous standard. As a result, OPR
30:14
concludes that none of the subject attorneys violated a clear
30:18
and unambiguous standard or engaged in professional misconduct in developing, negotiating,
30:23
or entering into the NPA, including it's adendum A U. S.
30:29
Attorneys have broad discretion to resolve investigation or cases they
30:33
deem appropriate, and the Costa's decision to decline to prosecute
30:37
Epstein federally does not constitute professional misconduct. The U. S.
30:41
Attorney exercises broad discretion in enforcing the nation's criminal laws.
30:46
As a general matter, Federal prosecutors are designated by statute
30:50
as the President's delegates to help him discharge his constitutional
30:53
responsibility to take care that the laws be faithfully executed.
30:58
United States versus Armstrong, fives seventeen US four fifty six
31:02
four sixty four, nineteen ninety six, quoting US Constitution Article two,
31:07
Section three, unless based on an impermissible standard such as race, religion,
31:12
or other arbitrary classification of prosecutors, charging decisions, including declinations,
31:18
are not dictated by law or statute and are not
31:21
subject to judicial review see United States Versus Labonte, five
31:25
twenty US seven fifty one seven sixty two, nineteen sixty seven.
31:30
Such discretion is an integral feature of the criminal justice
31:33
system and is appropriate so long as it's not based
31:37
upon improper factors. Department policy guidance and effect. At the
31:42
time the USAO was handling the Epstein case helped ensure
31:45
the reasonable exercise of prosecutorial authority, but it did not
31:49
require a particular prosecutorial decision in any given case. U Sam.
31:54
Section nine Dash twenty seven dot zero zero one nine
31:58
Dash twenty seven dot ORGX. Rather than mandating specific actions,
32:03
the USAM identified considerations that should factor into a prosecutor's
32:07
charging decisions, including that the defendant was subject to effective
32:12
prosecution and another jurisdiction. U. Sam. Section nine Dash twenty
32:16
seven dot two twenty. Importantly, US attorneys had plentiary authority
32:22
with regard to federal criminal matters and commodify or depart
32:26
from the principles set forth in the u SAM as
32:28
deemed necessary in the interest of fair and effective law
32:31
enforcement within their individual judicial districts. USAM Section nine Dash
32:36
two Dodd zero zero one nine Dash twenty seven dot
32:39
one forty. As stated in the USAM, the United States
32:43
Attorney is invested by statute and delegation from the Attorney
32:47
General with the broadest discretion in the exercise of such
32:51
prosecutive authority, which includes the authority to decline prosecution USAM
32:56
Section nine Dash two Dodd zero zero one. In addition,
33:00
the USAM contemplated that federal prosecutors would sometimes decline federal
33:05
prosecution in deference to a state prosecution of the same conduct,
33:09
and provided guidance in the form of factors to be
33:12
considered in making the decision, including the strength of the
33:15
other jurisdiction's interest in prosecution, the other jurisdiction's ability and
33:19
willingness to prosecute effectively, and the probable sentence or other
33:23
consequences if the person is convicted in the other jurisdiction
33:27
USAM Section nine to twenty seven two forty. A comment
33:31
to this provision stated that the factors are illustrative only,
33:35
and the attorney for the government should be considered any
33:38
others that appear relevant to him or her in a
33:41
particular case. As the US attorney, and in the absence
33:45
of evidence establishing that his decision was motivated by improper factors,
33:50
Acosta had the pleniary authority under federal law and under
33:54
the usam to resolve the case as he deemed necessary
33:57
and appropriate, as discussed in detail below, OPR did not
34:01
find evidence establishing that Acosta or other subjects were motivated
34:06
or influenced by improper considerations. Because no clear and unambiguous
34:11
standard required Acosta to indict Epstein on federal charges or
34:15
prohibited his decision to defer prosecution to the state, OPR
34:19
does not find misconduct based on a Costa's decision to
34:22
decline to initiate a federal prosecution of Epstein. All right,
34:27
we're going to wrap up this episode here, and then
34:29
the next episode we're going to pick up with B.
34:31
No clear and unambiguous standard precluded Acosta's use of a
34:35
non prosecution agreement to resolve the federal investigation of Epstein.
34:40
All of the information that goes with this episode can
34:43
be found in the description box. What's up, everyone, and
34:46
welcome back to the Epstein Chronicles. In this episode, we're
34:49
getting right back to it, and we're going to pick
34:51
up where we left off with the OIG report into
34:55
Jeffrey Epstein's non prosecution agreement B. No clear and una
35:00
ambiguous standard precluded a costa's use of a non prosecution
35:03
agreement to resolve the federal investigation of Epstein. OPR found
35:08
no statute or department policy that was violated by a
35:12
costa's decision to resolve the federal investigation of Epstein through
35:16
a non prosecution agreement. The prosecutor's broad charging discretion includes
35:21
the option of resolving the case through a non prosecution
35:24
agreement or a related and similar mechanism a deferred prosecution
35:28
agreement United States versus Falker Serves BV eight one eight
35:33
FT three D seven thirty three d C. Circuit Court,
35:36
twenty sixteen. These agreements afford a middle ground option to
35:40
the prosecution when, for example, it believes that a criminal
35:44
conviction may be difficult to obtain or may result in
35:47
unwonted collateral consequences for a defendant or a third parties,
35:51
but also believes that the defendant should not evade accountability
35:54
altogether id at seven thirty eight. As with all prosecutorial
35:58
charging decisions, the choice to resolve the case through a
36:01
non prosecution agreement or a deferred prosecution agreement resides fundamentally
36:06
with the executive branch. OPR found no clear and unambiguous
36:11
standard in the USAM prohibiting the use of a non
36:14
prosecution agreement in the circumstances presented in Epstein's case. The
36:18
u SAM specifically authorized and provided guidance regarding non prosecution
36:23
agreements or deferred prosecution agreements made in exchange for a
36:27
person's timely cooperation when such cooperation would put the person
36:31
in potential criminal jeopardy, and when alternatives the full immunity,
36:35
such as testimonial immunity, were impossible or impractical SAM Section
36:40
nine twenty seven dot six hundred. The cooperation contemplated was
36:45
cooperation in the criminal investigation or a prosecution of another person.
36:50
In certain circumstances, government attorneys were required to obtain approval
36:54
from the appropriate Assistant Attorney General before entering into a
36:58
non prosecution agreement in an exchange for cooperation. Epstein, however,
37:03
was not providing cooperation as contemplated by the USAM, and
37:07
the u SAM was silent as to whether a prosecutor
37:10
could use a non prosecution agreement in the circumstances other
37:13
than in exchange for cooperation in the investigation or prosecution
37:18
of another. Notably, although the USAM provided guidance and approval
37:22
requirements in cases involving cooperation, the u SAM did not
37:26
prohibit the use of non prosecution agreement in other situations. Accordingly,
37:30
OPR concludes that USAM did not establish a clear and
37:34
unambiguous obligation prohibiting a costa from ending the federal investigation
37:39
through a non prosecution agreement that did not require Epstein's cooperation,
37:44
nor did the USAM require Acosta to obtain departmental approval
37:48
before doing so. See. The NPA's individual provisions did not
37:53
violate any clear and unambiguous standards, although Acosta, as US attorney,
37:58
had discretion in general to resolve the case through a
38:01
non prosecution agreement that deferred prosecution to the state. OPR
38:05
also considered whether a clear and unambiguous standard governed any
38:10
of the individual provisions of the NPA. Specifically, OPR examined
38:15
the Costa's decision to permit Epstein to resolve the federal
38:18
investigation by pleading guilty to state charges of solicitation of
38:21
miners to engage in prostitution and solicitation to prostitution with
38:26
a joint binding recommendation for an eighteen month sentence of incarceration. Because,
38:32
as noted above, OPR found no clear guidance applicable to
38:35
non prosecution agreements not involving cooperation, OPR examined departmental policies
38:41
relating to plea offers to assess the propriety of the
38:44
NPA's charge and sentence requirements. OPR also examined the provision
38:49
declining to prosecute Epstein's unidentified potential co conspirators to determine
38:55
whether that provision violated departmental policy regarding grants of immunity. Finally,
39:00
OPR considered whether there was a clear and unambiguous obligation
39:05
under the department's policy regarding the deportation of criminal aliens
39:09
which would have required further action to be taken against
39:12
the two Epstein assistants who were foreign nationals. After considering
39:17
the applicable rules and policies, OPR finds that Acosta's decision
39:21
to resolve the federal investigation through the NPA did not
39:24
violate any clear and unambiguous standards, and that Acosta had
39:28
the authority to resolve the federal investigation through a state
39:31
plea and through the terms that he chose. Accordingly, OPR
39:35
concludes that Acosta did not commit professional misconduct in developing, negotiating,
39:40
or approving the NPA, nor did the other subjects who
39:43
implemented his decisions. With respect to the resolution one, Acosta
39:49
had authority to approve an agreement that required Epstein to
39:52
plead to offenses resulting in an eighteen month term of incarceration.
39:56
Federal prosecutors have discretion to resolve the pending care or
40:00
investigation through a plea agreement, including a plea that calls
40:04
for the imposition of a specific predetermined sentence U SAM
40:08
Section nine Dash twenty seven dot three to three zero
40:11
nine Dash twenty seven dot four hundred. See also Federal
40:14
Rule of Criminal Procedure eleven c U one. Long standing
40:18
departmental policy directs prosecutors to require the defendant to plead
40:23
to the most serious, readily provable charge consistent with the
40:26
nature and extent of the defendant's criminal conduct and has
40:30
an adequate factual basis, is likely to result in sustainable conviction,
40:34
makes likely the imposition of an appropriate sentence and restitution order,
40:38
and does not adversely affect the investigation or prosecution of others.
40:43
See U. SAM Section nine Dash twenty seven Dot four
40:46
thirty nine Dash twenty seven Dash three hundred nine Dash
40:50
twenty seven dot four hundred the genesis of this policy.
40:54
The Ashcroft Memo specifically requires federal prosecutors to charge and
40:58
pursue all readily approvable charges that would yield the most
41:01
substantial sentence under the sentencing guidelines. However, the Ashcroft Memo
41:07
articulates an important exception. A US attorney or a designated
41:11
supervisory attorney may authorize a plea that does not comport
41:15
with this policy. Moreover, the Ashcroft Memo explains that a
41:19
charge is not readily provable if the prosecutor harbors a
41:22
good faith doubt based on either the law or the evidence,
41:25
as to the government's ability to prove the charge at trial.
41:29
By its playing terms, the NPA arguably does not appear
41:33
to satisfy the most serious readily provable charge requirement. The
41:37
draft indictment prepared by Villa Fauna proposed charging Epstein with
41:41
a variety of federal crimes relating to sexual conduct with
41:45
and trafficking of miners, and Epstein's sentencing exposure under the
41:49
federal guidelines was in the range to one hundred and
41:52
sixty eight to two hundred and ten months imprisonment. The
41:55
original turn sheet presented to the defense proposed a non
41:58
negotiable requirement that Epstein plead guilty to three state offenses
42:03
in addition to the original state indictment, with a joint
42:06
binding recommendation for a two year term of incarceration. Instead,
42:10
Epstein was permitted to resolve his federal criminal exposure with
42:14
a plea to the state indictment, and only won additional
42:17
state offense and an eighteen month sentence. As discussed more
42:21
fully later in this report, Acosta, Slowman, Menchell, and Lori
42:25
perceived risks to going forward to trial on federal charges.
42:28
Villa Fauna outlined in the prosecution memorandum and identified for
42:32
OPR concerns with both the evidence and legal theories on
42:36
which a federal prosecution would be premised. On the other hand,
42:40
Villa Fauna felt strongly that federal charges should be brought,
42:43
and the CEO's chief reviewed the prosecution memorandum and twice
42:47
opine that the charges were appropriate. OPR found it unnecessary
42:52
to resolve the question whether federal charges against Epstein were
42:55
readily provable, however, because Acosta had authority to deviate from
43:00
the Ashcroft Memo Most Serious Readily Provable Offense requirement. Although
43:04
Acosta could not recall specifically how or by whom the
43:08
decision was made to allow Epstein to plead to only
43:11
one of the three charges identified on the original term sheet,
43:14
or by whom the decision was made to reduce the
43:17
sentencing requirement from two years to eighteen months, Acosta was
43:21
aware of these changes. He reviewed and approved the final
43:25
NPA before it was signed. Department policy gave him the
43:28
discretion to approve the agreement, notwithstanding any arguable failure to
43:33
comply with the most Serious Readily Provable offense requirement. Furthermore,
43:38
the Ashcroft Memo does not appear to preclude a US
43:41
attorney from deferring to a state prosecution, so it's not
43:44
clear that the memo's terms apply to a situation involving
43:48
state charges. Accordingly, OPR concludes that the negotiations of an
43:52
agreement that allowed Epstein to resolve the federal investigation in
43:56
return for the imposition of an eighteen month sentence did
44:00
not violate a clear and unambiguous standard and therefore does
44:04
not constitute professional misconduct. Two, the usao's agreement not to
44:09
prosecute unidentified potential co conspirators did not violate a clear
44:14
and unambiguous departmental policy. Several witnesses told OPR that they
44:19
believe the government agreement not to prosecute unidentified potential co
44:23
conspirators amounted to transactional immunity, which the witnesses asserted is
44:28
prohibited by department policy. Although US immunity protects a witness
44:33
only against the government's use of his or her immunized
44:36
testimony in a prosecution of the witness and is frequently
44:40
used by prosecutors, transactional immunity protects a witness from prosecution
44:44
altogether and is relatively rare. OPR found no policy prohibiting
44:49
a US attorney from declining to prosecute third parties or
44:53
providing transactional immunity. One section of the u SAM related
44:57
to immunity, but applied only to to the exchange of
45:01
u's immunity for the testimony of a witness who has
45:04
asserted a Fifth Amendment privilege cee U SAM Section nine
45:07
Ish twenty three dot one hundred. Statutory provisions relating to
45:12
immunity also address the same context. See US Code eighteen,
45:16
section six zero zero two, US Code twenty one, section
45:20
eight eighty four. Moreover, apart from voluntariness or enforceability concerns,
45:26
courts have not suggested that a prosecutor's promise not to
45:29
prosecute a third party amounts to an appropriate exercise of
45:33
prosecutorial discretion. Ce G. Marquez nine oh nine f Dot
45:38
two d at seven forty one through forty three. Kemp
45:41
seven sixty f Dot two d at twelve forty eight,
45:45
Stinson eight thirty nine, Southern Second District at nine oh nine,
45:49
Fraser nine sixty seven Southern District nine forty five. OPR
45:53
found no clear and unambiguous standard that was violated by
45:57
the usao's agreement not to prosecute potential co conspirators, and
46:02
therefore cannot conclude that negotiating or approving this provision violated
46:07
a clear and unambiguous standard or constituted professional misconduct. Notwithstanding
46:12
this finding, in section four of this part, OPR includes
46:16
in it its criticism of Acosta's decision to approve the
46:19
NPA with approval of the provision without considering its potential consequences,
46:24
including to whom it would apply. All right, folks, we're
46:27
going to wrap up this episode here and in the
46:29
next episode we're going to pick up with three. The
46:32
NPA did not violate department policy relating to deportation of
46:36
criminal aliens. All of the information that goes with this
46:40
episode can be found in the description box.