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The Epstein Chronicles
Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 28-31) (4/6/26)
00:46:44
The Department of Justice Office of the Inspector General (OIG) report into Jeffrey Epstein’s 2007 Non-Prosecution Agreement (NPA) presents a disturbing portrait of federal cowardice, systemic failures, and deliberate abdication of prosecutorial duty....
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What's up everyone? And welcome back to the Epstein Chronicles. In this episode, we're diving right back into the OIG Report into Jeffrey Epstein's non prosecution agreement 3. USAM provision relating to Plea Agreements Federal prosecutors have discretion to resolve an investigation or a pending case through a plea agreement. USAM section 9. 2733927400 negotiated pleas are all explicitly sanctioned by Federal Rule of Criminal Procedure 11c.1. Regardless of whether the plea agreement is offered pre charge or post charge, the prosecutor's plea bargaining must honestly reflect the totality and seriousness of the defendant's conduct. USAM Section 9.27.400 the importance of selecting a charge that reflects the seriousness of the conduct is echoed in USAM section 9.27.430, which directs the prosecutor to require a defendant to plead to an offense that represents the most serious, readily provable charge consistent with the nature and extent of the defendant's criminal conduct, has an adequate factual basis, makes likely the imposition of an appropriate sentence and order of restitution, and does not adversely affect the investigation or prosecution of others. U. SAM section 9.27.420 in determining whether it would be appropriate to enter a plea agreement, the attorney for the government should weigh all relevant considerations 1. The defendant's willingness to cooperate in the investigation or Prosecution of others 2. The defendant's history with respect to criminal activity 3. The nature and seriousness of the offense or offenses charged 4. The defendant's remorse or contrition and his or her willingness to assume responsibility for his or her conduct 5. The desirability of prompt and certain disposition of the case 6. The likelihood of obtaining a conviction at trial 7. The probable effect on witnesses 8. The probable sentence or other consequences if the defendant is convicted 9. The public interest in having the case tried rather than disposed of by a guilty plea, 10 the expense of trial and appeal, 11 the need to avoid delay in the disposition of other pending cases and 12 the effect upon the victim's right to restitution. 4. USAM provisions relating to non prosecution agreements USAM section 9.27.600 authorizes government attorneys to enter into a non prosecution agreement in exchange for a person's cooperation. The provision explains that a non prosecution agreement is appropriate for this purpose. In the prosecutor's judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective. A comment to this provision explains that such other means include seeking cooperation after trial and and conviction, bargaining for cooperation as part of a plea agreement, or compelling the cooperation under a use of immunity order. The comment observes that these alternative means are clearly preferable to permitting an offender to avoid any liability for his or her conduct and should be given serious consideration in the first instance. USAM section 9.27.620 and 9.27.630 set forth considerations a prosecutor should take into account when entering into a non prosecution agreement. Generally, the U.S. attorney has authority to approve a non prosecution agreement. USAM section 9.27.600. However, USAM section 9.27 640 directs that a government attorney should not enter into a non prosecution agreement in exchange for a person's cooperation without first obtaining the approval of the appropriate Assistant Attorney General or his or her designee when the person is someone who is likely to become a major public interest. These USAM provisions do not address the uses of non prosecution agreements in circumstances other than we needed to obtain cooperation. 5. USAM provisions relating to Grants of Immunity Nothing in the USAM directly prohibits the government from using the criminal exposure of third parties in negotiating with a criminal defendant. Instead, the provision that addresses immunity relates only to the exchange of limited immunity for the testimony of a witness who has asserted a Fifth Amendment privilege against self incrimination. 6. UseAM CFR provisions relating to financial conflicts of interest department employees are expected to be aware of and to comply with all ethics related laws, rules, regulations, and policies. Specifically, a government attorney is prohibited by criminal statute from participating personally and substantially in any particular matter in which he has a financial interest or in which such an interest can be imputed to him. See U.S. code 18 section 208 and 5 CFR section 2635.401402. In addition, a department employee who seek advice from an ethics official before participating in any matter in which his impartiality could be questioned if a conflict of interest exists in order for the employee to participate in the matter, the head of the employee's component, with the concurrence of an ethics official, must make a determination that the interest of the government in the employee's participation outweighs the concern that a reasonable person may question the integrity of the Department's programs and operations. The determination must be made in writing. Other department policies 1. Department policies relating to the Disposition of Charges the Attorney General has the responsibility for establishing prosecutorial priorities for the department. Over the span of several decades, each successive Attorney General has articulated those priorities and policy memoranda issued to all federal prosecutors as applicable here. On September 22, 2003, Attorney General John Ashcroft issued a memorandum regarding Department policy concerning charging criminal offenses, disposition of charges, and sentencing. The Ashcroft Memo, which explicitly superseded all previous departmental guidance on the subject, set forth policies designed to ensure that all federal prosecutors adhere to the principles and objectives of the Sentencing Reform act of 1984, the Sentencing Guidelines, and, and the PROTECT act in their charging case disposition and sentencing practices. The Ashcroft memo directed that in all federal cases, federal prosecutors must charge and pursue the most serious readily provable offenses or offenses that are supported by the facts of the case except as authorized by an Assistant Attorney General, U.S. attorney, or designated supervisory authority in certain articulated, limited circumstances. The Ashcroft memo cautioned that a charge is not readily provable if the prosecutor harbors a good faith doubt based on either the law or the evidence as to the government's ability to prove the charge at trial. The Ashcroft memo explains that the basic policy requires federal prosecutors to charge and pursue all charges that are determined to be readily provable and would yield the most substantial sentence under the Sentencing Guidelines. The policy set forth six exceptions, including a catch all exception that permits a prosecutor to decline to pursue readily provable charges in other exceptional circumstances with the written or otherwise documented approval of an Assistant Attorney General, U.S. attorney, or designated supervisory attorney. As examples of circumstances in which such declination would be appropriate, the Ashcroft memo cites to situations in which a U.S. attorney's office is particularly overburdened by the trial, is expected to be of exceptionally long duration, and proceeding to trial would significantly reduce the total number of cases the office could resolve. The Ashcroft memo specifically notes that charges may be declined pursuant to a plea agreement only to the extent consistent with the policies established by this memo. On January 28, 2005, Deputy Attorney General James Comey issued a memorandum entitled Department Policies and Procedures to concerning sentencing. That memorandum reiterated that federal prosecutors must continue to charge and pursue the most serious readily approvable offenses and define that term as the offenses that would generate the most substantial sentence under the sentencing guidelines, any applicable mandatory minimum, and any statutorily required consecutive sentence. Importantly, although the Ashcroft and Comey memoranda limit an individual line prosecutor's ability to decline readily provable charges and in their entirety, no such restriction is placed on the US Attorneys who retained authority to approve exceptions to the policy. In addition, the policy applies to readily provable charges, thus inherently allowing a prosecutor flexibility to decline to bring a particular charge based on a good faith doubt that the law or evidence supports the charge.
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Epstein Chronicles Narrator
Department policy relating to deportation of criminal aliens on April 28, 1995, the Attorney General issued a memorandum to all federal prosecutors entitled Deportation of Criminal Aliens, directing federal prosecutors to actively and directly become involved in the process of removing criminal aliens from the United States. In pertinent part, the memorandum notes that prosecutors can make a major contribution to the expeditious deportation of criminal aliens by effectively using available prosecution tools for dealing with alien defendants. These tools include 1 stipulated administrative deportation orders in connection with plea agreements 2 deportation as a condition of supervised release under U.S. code 18, Section 3853 and 3 judicial deportation orders pursuant to U.S. code 8, Section 12, 52A and D. The memorandum further directs all deportable criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, absent such circumstances, federal prosecutors should seek the deportation of deportable alien defendants in whatever manner is deemed most appropriate to in a particular case. Exceptions to this policy must have the written approval of the United States attorney. See also USAM 973 520. A criminal alien is a foreign national who has been convicted of a crime. Stipulated administrative deportation orders can be based on the conviction for an offense to which the alien will plead guilty provided that the offense is one of Those enumerated in U.S. code 8, Section 1251 as an offense that will cause an alien to be deported under US Code 8, Section 1251A, 2A and I any alien who is convicted of a crime of moral turpitude within five years after the date of entry or 10 years in the case of an alien provided lawful permanent resident status and is either sentenced to confinement or confined to prison for one year or longer is deportable all right, we're going to end this episode here and in the next episode we're going to pick up where we left off. All of the information that goes with this episode can be found in the Description box. What's up everyone? And welcome back to the Epstein Chronicles. In this episode, we're picking up where we left off with the OIG report into the non prosecution agreement. See case law 1. Prosecutorial discretion on many occasions, the Supreme Court has discussed the breadth of the prosecutor's discretion and in deciding whether and whom to prosecute. In Borden Kirker v. Hayes, 434 U.S. 357, 1978, the court considered the propriety of a prosecutor's threat during plea negotiations to seek more serious charges against the accused if the accused did not plead guilty to the offense originally charged. The defendant, Hayes opted not to plead guilty to the original charges and the prosecutor indicted him on a more serious charge. Hayes was thereafter convicted and sentenced under the new indictment. The State Court of Appeals rejected Hayes challenge to his conviction, concluding that the prosecutor's decision to indict on more serious charges was a legitimate use of available leverage in plea bargaining process. Hayes filed for a review of his conviction and sentence in federal court, and although Hayes lost at the district court level, the U.S. court of Appeals for the 6th Circuit concluded that the prosecutor's conduct constituted impermissible vindictive prosecution. The Supreme Court reversed the Sixth Court's ruling. The Court opined that acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it's the end result of the bargaining process idea.363 as long as the prosecutor has probable cause to believe a crime has been committed, the decision whether or not to prosecute and what charge to file or bring before a grand jury rests entirely in his discretion. The Court explained that selectively an enforcement of the criminal law is not improper unless based upon an unjustifiable standard such as race, religion, or other arbitrary classification. These principles were reiterated In Weight v. United States, 470 U.S. 598, 1985, a case involving the government's policy of prosecuting only those individuals who reported themselves as having failed to register with the Selective Service system. The petitioner in Waite claimed that the self reported non registrants were vocal opponents of the registration program who were being punished for the exercise of the First Amendment rights. The Supreme Court rejected this argument, stating that the government has broad discretion in deciding whom to prosecute and and that the limits of that discretion are reached only when the prosecutor's decision is based on an unjustifiable standard. Because the passive enforcement policy was not intended to have a discriminatory effect, the claim of selective prosecution failed. In imbler v. Packman, 424 U.S. 409, 1976, the Supreme Court considered whether a state prosecutor acting within the scope of his duties could be sued under US Code 42 Section 1983 for violation of the defendant's constitutional rights when the defendant alleged that the prosecutor and others had unlawfully conspired to charge and convict him. The court held that in initiating a prosecution and in presenting the state's case conduct that is intimately associated with the judicial phase of the criminal process, the prosecutor enjoyed absolute immunity from civil suit for damages. In Harrington v. Olney, 977 F.2d 37, First Circuit, 1992, the court applied Imbler to a challenge to a prosecutor's decision not to prosecute. The court noted that given the availability of immunity for the decision to charge, it becomes even more important that symmetrical protection be available for the decision not to charge. Finally, in the area of the law, in Heckler v. Cheney, 470 U.S. 821, 1985, the Supreme Court concluded that an agency's decision not to undertake an enforcement action is not reviewable under the Federal Administrative Procedure Act, 5 U.S. code Section 500 through 706. Plea agreement promises of Leniency Towards a Third Party Case law regarding promises made during plea negotiations not to prosecute a third party arises in two contexts. First, defendants have challenged the voluntariness of the resulting plea when prosecutors have used third parties as leverage in plea negotiations. Numerous courts have made clear, however, that a plea is not valid when entered under an agreement that includes a promise of leniency towards a third party or in response to a prosecutor's threat to prosecute a third party if a plea is not entered. CEG United States v. Marquez, 909 F.2d 738, 741 and 42 Second Circuit, 1990, rejecting a claim that plea was involuntary because of pressure placed upon a defendant by the government's insistence that a defendant's wife would not be offered a plea bargain unless he pled guilty. Martin v. Kemp, 760 F.2d 1244, 1248 11th Circuit, 1985. In order to satisfy heavy burden of establishing that the government had not acted in good faith, a defendant challenging voluntariness of his plea on grounds that the prosecutor had threatened to bring charges against the defendant's pregnant wife had to establish that government lacked probable cause to believe the defendant's wife had committed a crime at the time it threatened to charge her. Stinson v. State, 839-906-909, Florida Appeals Court, 2003. In cases involving a promise not to prosecute a third party, the government must act in good faith and must have probable cause to charge the third party. The second context concerns situations in which courts have enforced prosecutors promises of leniency to third parties. For example, in State v. Frazier, 697 2nd District 944 Florida Appeals Court, 1997, as consideration for the defendant's guilty plea, the prosecutor agreed and announced in open court that the government would dismiss charges against the defendant's niece and nephew who had all been charged as a result of the same incident. When the state reneged and attempted to prosecute the niece and nephew, the trial court dismissed the charges against them and the state appealed. The appellate court affirmed the dismissal, concluding that under contract law principals, the niece and nephew were third party beneficiaries of the plea agreement and were therefore entitled to enforce it. Apart from voluntariness or enforceability concerns, court courts have not suggested that a prosecutor's promise not to prosecute a third party amounts to an inappropriate exercise of prosecutorial discretion. D. State Bar Rules during the period relevant to this report, the five subject attorneys were members of the bar in several different states and were subject to the rules of professional conduct in each state in which they held membership. In determining which rules apply, OPR applied the local rules of the U.S. district Court for the Southern District of Florida, and the choice of law provisions of each applicable bar. Local Rule 11.1 incorporates rules governing the admission, practice, peer review, and discipline of attorneys. Attorney Admission Rules attorney admission rule 4D provides that any U.S. attorney or a USA employed full time by the government may appear and participate in particular actions or proceedings on behalf of of the United States in the attorney's official capacity without petition for admission. Any attorney so appearing is subject to the Rules of the Court attorney admission rule 6b 2amakes clear that attorneys practicing before the court are subject to the Florida Bar Rule of Professional Conduct. Moreover, the choice of law provisions contained within the relevant State Rules of professional conduct make FRPC applicable to their 1. FRPC 4.1.1 competence FRPC 4.1.1 requires that a lawyer provide a competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A comment to the rule clarifies that the factors relevant to determining a lawyer's competence to handle a particular matter include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it's feasible to refer the matter to or associate or consult with a lawyer of established competence in the field. The comment further notes that in many instances the required proficiency is that of a general practitioner with respect to particular matters. Competence requires inquiry into the analysis of the factual and legal elements of the problem. The comment to Rule 4.1.1 explains that the required attention and preparation are determined in part by what is at stake. Major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. 2. FRPC 4.1.3 diligence FRPC 4.1.3 specifies that a lawyer should act with reasonable diligence and promptness in representing a client. A comment to this rule explains a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must exercise zeal in advocating for the client, but is not required to press for every advantage that might be realized for a client. 3. FRPC 4.4.1 Candor in dealing with others FRPC 4.4.1 Prohibits a lawyer from knowingly making false statements of material fact or law to a third person during the course of representation of a client. A comment to this rule explains that misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements, and whether a particular statement should be regarded as one of fact can depend on the circumstances. 4. FRPC 4. 84 Conduct Prejudicial to the Administration of Justice FRPC 4. 84 states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or or misrepresentation. FRPC 4.8.4 prohibits a lawyer from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice. In Florida Bar vs Frederick, 756 Southern 2nd District, 7987 Florida 2000, the court noted that FRPC 4.8 4D is not limited to conduct that occurs in a judicial proceeding, but can be applied to conduct in connection with the practice of law. In Florida. Barr v. Schankman, 41 Southern 3rd District, 166, 172 Florida 2010. For example, an attorney's continuous hiring and firing of firms to assist in the client's matter resulted in delayed resolution of the case and constituted a violation of FRPC 4.8.4 due to the delay in the administration of justice and and the increased costs to the client all right, we're going to wrap this episode up right here and then the next episode we're going to pick up where we left off. All of the information that goes with this episode can be found in the description box.
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who's ready for the trust fall? What's up everyone? And welcome back to the Epstein Chronicles. In this episode, we're getting right back to the OIG report into Jeffrey Epstein's non prosecution agreement Chapter 2, Part 3 Analysis 1 Overview following the Miami Herald's report in November of 2018, media scrutiny of and public attention to the USAO's handling of its Epstein investigation and has continued unabated. At the heart of the public's concern is the perception that Epstein's 18 month sentence, which resulted in a 13 month term of actual incarceration, was too lenient and inadequately punished Epstein's criminal conduct. Although many records have been released as part of civil litigation stemming from Epstein's conduct, the public has received only limited information regarding the decision making process leading to the signed npa. As a result, questions have arisen about Acosta and his staff's motivations for entering into the NPA publicly released communications between prosecutors and defense counsel. The leniency of the sentence and the unusual non prosecution provision in the NPA have led to allegations that Acosta and the USAO gave Epstein a sweetheart deal because they were motivated by improper influences such as their pre existing and personal relationships with his attorneys, or even corrupt influences such as the receipt of personal benefits from Epstein. Through its investigation, OPR has sought to answer the following core one who was responsible for the decision to resolve the federal investigation through the NPA and for its specific terms? Two did the NPA or any of its provisions violate department policies or other rules or regulations? And three Were any of the subjects motivated to resolve the federal investigation by improper factors such as corruption or favoritism? To the extent that the available records and witness interviews shed light on these questions, OPR shows in detail the process that led the NPA from the initial complaint to the USAO through the intense and often confusing negotiation process. After thorough and detailed examination of thousands of contemporaneous records and and extensive interviews of subjects and witnesses, OPR is able to answer most of the significant questions concerning the NPA's origins and development. Although some questions remain, OPR sets forth its conclusions and the basis for them in this part. 2 Acosta reviewed and approved the terms of the NPA and is accountable for it. Although Acosta did not sign the npa, he approved it with knowledge of its terms. He revised drafts of the NPA and added language that he thought appropriate. Acosta told OPR that he either was informed of or had access to information concerning the underlying facts of the case against Epstein. OPR did not find any evidence suggesting that any of his subordinates misled him about the facts or withheld information that would have influenced his decision and Acosta did not make such a claim to opr. As Acosta affirmed in his OPR interview, the three pronged resolution two years registration and restitution, ultimately was approved on my authority. Ultimately I approved it and so I accept that I'm not pushing away responsibility for it. In making misconduct assessments, OPR considers the conduct of subjects individually. Menschel, Sloman, Laurie, and Vilafana were involved in the matter to varying degrees at different points in time and and regarding different decisions. Menshel, for example, participated in formulating the USAO's initial written offer to the defense, but he had no involvement with actions or decisions made after August 3, 2007. Sloman was absent during the part of the most intense negotiations in September 2007 and did not see the final signed version of the NPA until he returned. Villefana and Laurie participated in the negotiations and Lori either made decisions during the September 12, 2007 meeting with the Defense and State Attorney's office or at least indicated agreement pending Acosta's approval. In any event, whatever the level of Sloman, Menschel's, Lorre's, and Vilafana's involvement, they acted with the knowledge and approval of Acosta. Under OPR's analytical framework, an attorney who makes a good faith attempt to ascertain the obligations and standards imposed on the attorney and and to comply with them in a given situation does not commit professional misconduct. Evidence that an attorney made a good faith attempt to ascertain and comply with the obligations and standards imposed can include, but is not limited, the fact that the attorney consulted with a supervisor. In this regard, OPR's framework is similar to a standard provision of the Professional Conduct Rules of most A bars which specify that a subordinate lawyer does not engage in misconduct if that lawyer acts in accordance with a supervisory lawyer's reasonable solution of an arguable question of Professional Duty CEG FRPC Form 5.2and therefore, in addition to the fact that OPR did not find a violation of a clear and unambiguous standard as discussed below, OPR concludes that Menschel, Sloman, Laurie, and Vilafana did not commit professional misconduct with respect to any aspect of the NPA because they acted under Acosta's direction and and with his approval. Three OPR found that none of the subjects violated clear and unambiguous statute, professional responsibility, rule or standard, or department regulation or policy in negotiating, approving, or entering into the npa. A central issue OPR addressed in its investigation relating to the NPA was whether any of the subjects in developing, negotiating, or entering into the NPA violated any clear or unambiguous standard established by rule, regulation, or policy. OPR does not find professional misconduct unless a subject attorney intentionally or recklessly violated a clear and unambiguous standard. OPR considered three specific 1 standards implicated by the decision to decline in federal court prosecution two standards implicated by the decision to to resolve the federal investigation through a non prosecution agreement and three standards implicated by any of the NPA's provisions, including the promise not to prosecute unidentified third parties. As discussed below, OPR concludes that in each area and in the absence of evidence establishing that his decisions were based on corrupt or improper influences, the U.S. attorney possessed broad discretionary authority to proceed as he saw fit, authority that he could delegate to subordinates, and that Acosta exercised of his discretionary authority did not breach any clear and unambiguous standard. As a result, OPR concludes that none of the subject attorneys violated a clear and unambiguous standard or engaged in professional misconduct in developing, negotiating, or entering into the NPA, including its Addendum A. U.S. attorneys have broad discretion to resolve investigation or cases they deem appropriate, and Acosta's decision to decline to prosecute Epstein federally does not constitute professional misconduct. The U.S. attorney exercised broad discretion in enforcing the nation's criminal laws. As a general matter, federal prosecutors are designated by statute as the President's delegates to help him discharge his constitutional responsibility to take care that the laws be faithfully executed. United States v. Armstrong, 517 U.S. 456, 464, 1996 quoting U.S. constitution Article 2, Section 3. Unless based on an impermissible standard such as race, religion, or other arbitrary classification of prosecutors, charging decisions, including declinations, are not dictated by law or statute and are not subject to judicial review. See United States v. Labonte, 520 U.S. 751, 762, 1967. Such discretion is an integral feature of the criminal justice system and is appropriate so long as it's not based upon improper factors. Department policy guidance in effect at the time the USAO was handling the Epstein case, helped ensure the reasonable exercise of prosecutorial authority, but it did not require a particular prosecutorial decision in any given case. USAM Section 9.27.001927120 Rather than mandating specific actions, the USAM identified considerations that should factor into a prosecutor's charging decisions, including that the defendant was subject to effective prosecution in another jurisdiction. USAM Section 9.27.220 Importantly, US Attorneys had plenary authority with regard to federal criminal matters and commodify or depart from the principles set forth in the USAM as deemed necessary in the interest of fair and effective law enforcement within their individual judicial districts. USAM Section 920019.27.140 as stated in the USAM, the United States Attorney is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such prosecutive authority, which includes the authority to decline prosecution. USAM section 92001. In addition, the USAM contemplated that federal prosecutors would sometimes decline federal prosecution in deference to a state prosecution of the same conduct, and provided guidance in the form of factors to be considered in making the decision, including the strength of the other jurisdiction's interest in prosecution, the other jurisdiction's ability and willingness to prosecute effectively, and the probable sentence or other consequences if the person is convicted in the other jurisdiction. USAM Section 9.27.240
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zebra.com who's ready for the trust fall? A comment to this provision stated that the factors are illustrative only and the attorney for the government should be considered any others that appear relevant to him or her in a particular case. As a U.S. attorney and in the absence of evidence establishing that his decision was motivated by improper factors, Acosta had the plenary authority under federal law and under the USAM to resolve the case as he deemed necessary and appropriate. As discussed in detail below, OPR did not find evidence establishing that Acosta was or other subjects were motivated or influenced by improper considerations because no clear and unambiguous standard required Acosta to indict Epstein on federal charges or prohibited his decision to defer prosecution to the state. OPR does not find misconduct based on Acosta's decision to decline to initiate a federal prosecution of Epstein. All right, we're going to wrap up this episode here and then the next episode we're going to pick up with B. No clear and unambiguous standard precluded Acosta's use of a non prosecution agreement to resolve the federal investigation of Epstein. All of the information that goes with this episode can be found in the description box. What's up everyone? And welcome back to the Epstein Chronicles. In this episode, we're getting right back to it and we're going to pick up where we left off with the OIG report into Jeffrey Epstein's non prosecution agreement. No clear and unambiguous standard precluded Acosta's use of a non prosecution agreement to resolve the federal investigation of Epstein. OPR found no statute or department policy that was violated by Acosta's decision to resolve the federal investigation of Epstein through a non prosecution agreement. The prosecutor's broad charging discretion includes the option of resolving the case through a non prosecution agreement or a related and similar mechanism, a deferred prosecution agreement. United States v. Fokker serves BV 818 F.3d 733 D.C. circuit Court, 2016. These agreements afford a middle ground option to the prosecution when, for example, it believes that a criminal conviction may be difficult to obtain or may result in unwanted collateral consequences for a defendant or third parties, but also believes that the defendant should not evade accountability altogether. Idaho 738 as with all prosecutorial charging decisions, the choice to resolve a case through a non prosecution agreement or a deferred prosecution agreement resides fundamentally with the Executive Branch. OPR found no clear and unambiguous standard in the USAM prohibiting the use of a non prosecution agreement in the circumstances presented. In Epstein's case, the USAM specifically authorized and provided guidance regarding non prosecution agreements or deferred prosecution agreements made in exchange for a person's timely cooperation, when such cooperation would put the person in potential criminal jeopardy and when alternatives to full immunity, such as testimonial immunity, were impossible or impractical. Section 9 27, 600 the cooperation contemplated was cooperation and in the criminal investigation or prosecution of another person in certain circumstances, government attorneys were required to obtain approval from the appropriate Assistant Attorney General before entering into a non prosecution agreement in exchange for cooperation. Epstein, however, was not providing cooperation as contemplated by the usam, and the USAM was silent as to whether a prosecutor could use a non prosecution agreement in the circumstances other than in exchange for cooperation in the investigation or prosecution of another. Notably, although the USAM provided guidance and approval requirements in cases involving cooperation, the USAM did not prohibit the use of non prosecution agreement in other situations. Accordingly, OPR concludes that USAM did not establish a clear and unambiguous obligation prohibiting Acosta from ending the federal investigation through a non prosecution agreement that did not require Epstein's cooperation, nor did the USAM require Acosta to obtain departmental approval before doing so. The NPA's individual provisions did not violate any clear and unambiguous standards, although Acosta as U.S. attorney had discretion generally to resolve the case through a non prosecution agreement that deferred prosecution to the state. OPR also considered whether a clear and unambiguous standard governed any of the individual provisions of the npa. Specifically, OPR examined Acosta's decision to permit Epstein to resolve the federal investigation by pleading guilty to state charges of solicitation of minors to engage in prostitution and solicitation to prostitution with a joint binding recommendation for an 18 month sentence of incarceration. Because, as noted above, OPR found no clear guidance applicable to non prosecution agreements not involving cooperation, OPR examined departmental policies relating to plea offers to assess the propriety of the NPA's charge and sentence requirements. OPR also examined the provision declining to prosecute Epstein's unidentified potential co conspirators to determine whether that provision violated departmental policy regarding grants of immunity. Finally, OPR considered whether there was a clear and unambiguous obligation to under the Department's policy regarding the deportation of criminal aliens, which would have required further action to be taken against the two Epstein assistants who were foreign nationals. After considering the applicable rules and policies, OPR finds that Acosta's decision to resolve the federal investigation through the NPA did not violate any clear and unambiguous standards and that Acosta had the authority to resolve the federal investigation through a state plea and through the terms that he chose. Accordingly, OPR concludes that Acosta did not commit professional misconduct in developing, negotiating or approving the npa, nor did the other subjects who implemented his decisions with respect to the resolution. 1. Acosta had authority to approve an agreement that required Epstein to plead to offenses resulting in an 18 month term of incarceration. Federal prosecutors have discretion to resolve a pending case or investigation through a plea agreement, including a plea that calls for the imposition of a specific predetermined sentence. USAM Section 9, 27, 339. 27.400 See also Federal Rule of Criminal Procedure 11 c.1 Long standing departmental policy directs prosecutors to require the defendant to plead to the most serious readily provable charge consistent with the nature and extent of the defendant's criminal conduct and has an adequate factual basis, is likely to result in sustainable conviction, makes likely the imposition of an appropriate sentence and restitution order, and does not adversely affect the investigation or prosecution of others. See USAM Section 9274-309273-00927.400 the genesis of this policy is the Ashcroft Memo specifically requires federal prosecutors to charge and pursue already provable charges that would yield the most substantial sentence under the Sentencing Guidelines. However, the Ashcroft Memo articulates an important exception a U.S. attorney or a designated supervisory attorney may authorize a plea that does not comport with this policy. Moreover, the Ashcroft memo explains that a charge is not readily provable and if the prosecutor harbors a good faith doubt based on either the law or the evidence as to the government's ability to prove the charge at trial. By its plain terms, the NPA arguably does not appear to satisfy the most serious readily provable charge requirement. The draft indictment prepared by Vilafauna proposed charging Epstein with a variety of federal crimes relating to sexual conduct with and trafficking of minors and Epstein's sentencing exposure under the federal guidelines, which was in the range to 168 to 210 months imprisonment. The original term sheet presented to the defense proposed a non negotiable requirement that Epstein plead guilty to three state offenses in addition to the original state indictment with a joint binding recommendation for a two year term of incarceration. Instead, Epstein was permitted to resolve his federal criminal exposure with a plea to the state indictment and only one additional state offense and an 18 month sentence. As discussed more fully later in this report, Acosta, Sloman, Menchel and Lori perceived risks to going forward to trial on federal charges Vilafana outlined in the prosecution memorandum and identified for OPR concerns with both the evidence and legal theories on which a federal prosecution would be premised. On the other hand, Vilafana felt strongly that federal charges should be brought and the CEO's chief reviewed the prosecution memorandum and twice opined that the charges were appropriate. OPR found it unnecessary to resolve the question whether federal charges against Epstein were readily provable, however, because Acosta had authority to deviate from the Ashcroft memo most serious readily provable offense requirement. Although Acosta could not recall specifically how or by whom the decision was made to allow Epstein to plead to only one of the three charges identified on the original term sheet or by whom the decision was made to reduce the sentencing requirement from two years to 18 months. Acosta was aware of these changes. He reviewed and approved the final NPA before it was signed. Department policy gave him the discretion to approve the agreement notwithstanding any arguable failure to comply with the most serious readily provable offense requirement. Furthermore, the Ashcroft memoir does not appear to preclude a US Attorney from deferring to a state prosecution, so it's not clear that the memo's terms apply to a situation involving state charges. Accordingly, OPR concludes that the negotiations of an agreement that allowed Epstein to resolve the federal investigation in return for the imposition of an 18 month sentence did not violate a clear and unambiguous standard and therefore does not constitute professional misconduct. 2. The USAO's agreement not to prosecute unidentified potential CO conspirators did not violate a clear and unambiguous departmental policy. Several witnesses told OPR that they believed the government agreement not to prosecute unidentified potential CO conspirators amounted to transactional immunity, which the witnesses asserted is prohibited by Department policy. Although use immunity protects a witness only against the government's use of his or her immunized testimony in a prosecution of the witness and is frequently used by prosecutors, transactional immunity protects a witness from prosecution altogether and is relatively rare. OPR found no policy prohibiting a U.S. attorney from declining to prosecute third parties or providing transactional immunity. One section of the USAM related to immunity, but applied only to the exchange of yous of immunity for the testimony of a witness who has asserted a Fifth Amendment privilege. See USAM Section 9. 23. 100. Statutory provisions relating to immunity also address the same context. See U.S. code 18, Section 6002, U.S. code 21, Section 884. Moreover, apart from voluntariness or enforceability concerns, courts have not suggested that a prosecutor is promised not to prosecute a third party or amounts to an appropriate exercise of prosecutorial discretion. CEG Marquez, 909F.2d at 7, 41. 43 Kent, 760F.2d at 1248 Stinson, 839 Southern 2nd District at 9:09 Fraser, 967 Southern District 945. OPR found no clear and unambiguous standard that was violated by the USAO's agreement not to prosecute potential co conspirators and therefore cannot conclude that negotiating or approving this provision violated a clear and unambiguous standard or constituted professional misconduct. Notwithstanding, this finding in section 4 of this part includes in it its criticism of Acosta's decision to approve the MPA with approval of the provision without considering its potential consequences, including to whom it would apply. Alright folks, we're gonna wrap up this episode here and in the next episode we're gonna pick up with three the NPA did not violate Department policy relating to deportation of criminal aliens. All of the information that goes with this episode can be found in the Description box.
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