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The Epstein Chronicles
Mega Edition: The OIG Report Detailing The Investigation Into Epstein's NPA (Part 38-40) (4/7/26)
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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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Podcast Host
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Podcast Narrator
dreaded question that you can get when you tell people you host a podcast called the Lapsed Fan? Ugh. It's what is it about? And why is that, do you think? Because to like pro wrestling is to lose the respect of others. Now what if we told you there's a podcast that explains exactly why that is and why it's kind of deserved? For over a decade we've taken fact finding missions through the thicket of half truths that is wrestling history. We watch old matches, call out carnies, laugh at our own jokes, and have so much fun doing it that some people actually can't handle it. Think wrestling is an escape from real life? Think again. Same power games, same office politics, same people lying to your face just with entrance music and absolutely no company health insurance under any circumstances. All I offer is opportunity, not benefits. As do we, Vince. The Lapsed Fan Podcast Come for the wrestling history. Stay for the uncomfortable truth about why it used to be better and why you still care.
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Legal Analyst
What's up everyone? And welcome back to the program. In this episode, we're getting back to the Jeffrey Epstein OIG report into the NPA. OPR's investigation did not reveal evidence establishing that Epstein cooperated in other federal investigations or receive special treatment on that basis. One final issue OPR explored stemmed from media reports suggesting that Epstein may have received special treatment from the USAO in return for his cooperation in another federal investigation. Media reports in mid-2009 suggested Epstein was released from his state incarceration early because he was assisting in a financials crimes investigation in the Eastern District of New York involving Epstein's former employer, Bear Stearns. At the time, Vilafana was notified by the ASUA's handling of the matter that they had never heard of Epstein and he was providing absolutely no cooperation to the government. In 2011, Vilafana reported to senior colleagues that this urban myth the FBI and I looked into this and do not believe that any sort of it is true. Vilafana told OPR that the rumor that Epstein had cooperated with the case in New York was completely false. Acosta told OPR that he did not have any information about Epstein cooperating in a financial investigation or relating to media reports that Epstein had been an intelligence asset. In addition to the contemporaneous record attesting that Epstein was not a cooperating witness in a federal matter, OPR found no evidence suggesting that Epstein was such a cooperating witness or intelligence asset or that anyone, including any of the subjects of OPR's investigation, believed that to be the case or that Epstein was afforded any benefit on such a basis. OPR did not find any reference to Epstein's purported cooperation or even a suggestion that he had assisted in a different matter in any of the numerous communications sent by defense counsel to the USAO and the Department. It is highly unlikely that defense counsel would have omitted any reason warranting leniency for Epstein if it had existed. Accordingly, OPR concludes that none of the subjects of OPR's investigation provided Epstein with any benefits on the basis that he was a cooperating witness in an unrelated federal investigation, and OPR found no evidence establishing that Epstein had received benefits for cooperation in any matter. Part 5 Acosta exercised poor judgment by resolving the federal investigation through through the npa. Although the OPR finds that none of the subjects committed professional misconduct in this matter, OPR concludes that Acosta exercised poor judgment when he agreed to end the federal investigation through the npa. Acosta's flawed application of petit policy principles to this case and his concerns with overstepping the boundaries of federalism led to a decision to resolve the federal investigation through through an NPA that was too difficult to administer, leaving Epstein free to manipulate the conditions of his sentence to his own advantage. The NPA relied on state authorities to implement the key terms leading to an absence of control by federal authorities over the process. Although the prosecutors considered certain events that they addressed in the npa, such as gang time and community control, many other key issues were not, such as work release and mechanisms for implementing the section 2255 provision. Important provisions such as promising not to prosecute all potential co conspirators were added with little discussion or consideration by the prosecutors. In addition, although there were evidentiary and legal challenges to a successful federal prosecution, Acosta prematurely decided to resolve the case without adequately addressing ways and in which a federal case potentially could have been strengthened, such as by obtaining Epstein's missing computer equipment. Finally, a lack of coordination within the USAO compounded Acosta's flawed reasoning and resulted in insufficient oversight over the process of drafting the npa, a unique document that required more detailed attention and review than it received. These problems were, moreover, entirely avoidable by because federal prosecution and potentially a federal plea agreement existed as viable alternatives to the NPA resolution. In evaluating Acosta's conduct, OPR has considered and taken into account the fact that some of Epstein's conduct known today was not known in 2007 and that other circumstances have changed in the interim, including some victims willingness to testify. OPR has also evaluated Acosta's decision in a framework that recognizes and allows for decisions that are made in good faith, even if the decision in question may not have led to the best result that potentially could have been obtained. Nonetheless, after considering all of the available evidence and the totality of the then existing circumstances, OPR concludes that Acosta exercised poor judgment and that he chose an action or course of action that was in marked contrast to that which the Department would reasonably expect of an attorney exercising good judgment. A Acosta's decision to resolve the federal investigation through a state plea under terms incorporated into the NPA was based on a flawed application of the petite policy and federalism concerns and fail to consider the significant disadvantages of a state based resolution. The Department formulated the Petite policy in response to a series of Supreme Court opinions hold holding that the Constitution does not deny the state and federal governments the power to prosecute for the same act. Responding to the Court's concerns about the potential for abuse in a rule permitting duplicate prosecutions, the Department voluntarily adopted a policy of declining to bring a federal prosecution following a completed state prosecution for the same conduct except when necessary to advance a compelling federal interest. Sir Rinaldi v. United States, 434 U.S. at 28. On its face, the petit policy applies to federal prosecutions that follow completed State Prosecutions Section 92031. This policy applies whenever there has been a prior state prosecution resulting in an acquittal, a conviction including one resulting from a plea agreement or a dismissal or other termination of the case or on the merits after jeopardy has attached. When a state investigation or prosecution is still pending, the policy does not apply. Indeed, even when a state prosecution has resulted in a decision on the merits, the policy permits a subsequent federal prosecution when three substantive prerequisites are satisfied, a substantial federal interest exists, the result in the prior state prosecution was manifestly inadequate in light of the federal interest involved, and there is sufficient admissible evidence to obtain and sustain a conviction on federal charges. The policy also does not apply when the prior prosecution involved only a minor part of the contemplated federal charges. No one with whom OPR spoke disputed that the federal government had a substantial interest in prosecuting Epstein. In her prosecution memorandum, Vilafana identified five federal statutes that Epstein had potentially violated. The CEO's chief described Vilafana's assessment of those statutes as exhaustive, and he concurred with her analysis of their applicability to the facts of the case. Epstein's crimes involved the sexual exploitation of children, interstate travel, and the use of a facility of interstate commerce, all of which were areas of federal concern. Notably, in the early 2000s, the department had begun pursuing specific initiatives such as to combat child sex trafficking, including Project Save Childhood, and Congress had then recently passed the PROTECT Act. Acosta himself told OPR that the exploitation of minors was an important federal interest, which in Epstein's case was compounded by the sordidness of the acts involved and the number of victims. It is also clear that because the state case against Epstein was still pending and had not reached the conviction, acquittal, or other decision on the merits, the Petit policy did not apply and certainly did not preclude a federal prosecution of Epstein. He had been charged with one state charge of solicitation to prostitution on three occasions involving one or more other persons without regard to age, a charge that would have addressed only a scant portion of the conduct under federal investigation. Acosta acknowledged to OPR that the petite policy on its face did not apply. Moreover, the state attorney did not challenge the federal government's assumption of prosecutorial responsibility and, despite having having obtained an indictment, held back on proceeding with the state prosecution. In deference of the federal government's involvement in these circumstances, the USAO was free to proceed with a prosecution sufficient to ensure vindication of the federal interests. In prosecuting a man who traveled interstate repeatedly to prey on minors, the federal government was uniquely positioned to fully investigate the conduct of an individual who engaged in repeated criminal conduct in Florida but who also traveled extensively and and at residences outside of Florida. Even if the Petit policy had applied. OPR has little doubt that the USAO could have obtained authorization from the Department to proceed with a prosecution under the circumstances of this case. Despite the undeniable federal interest in prosecuting Epstein, the fact that the Petit policy did not apply, and the state attorney's willingness to hold the state prosecution in abeyance pending the federal government's assumption of the case, Acosta viewed the federal government's role in prosecuting Epstein as limited by principles of federalism. In essence, Acosta believed that a federal prosecution would have interfered improperly with the state's authority. He explained his reasoning to the prosecution was going forward on the part of the state, and so here is the big bad federal government stepping on a sovereign state saying you're not doing enough, when to my mind, the whole idea of the Petite policy is recognized that the state is an independent entity, and that we should presume that what they're doing is correct even if we don't like the outcome except in the most unusual of circumstances. Acosta told OPR that absent USAO intervention, the state's prosecution of Epstein would have become final, and accordingly, it was prudent to employ Petite Policy analysis. In Acosta's view, the federal responsibility in this unique situation was was merely to serve as a backstop to the state authorities to ensure that there was no miscarriage of justice. Acosta told OPR that he understood the Palm beach police would not have brought EPSTEIN to the FBI's attention if the state attorney had pursued the charges that required Epstein's incarceration. Acosta therefore decided that the USAO could avert a manifest injustice by forcing the state to do more and require Epstein to serve at jail time and register as a sexual offender. Acosta's reasoning was flawed and unduly constricted. Acosta repeated references to a miscarriage of justice or a manifest injustice echoes the manifestly inadequate language used in the Petit policy to define the circumstances in which the federal government may proceed with a criminal case after a completed state prosecution. Nothing in the Petit policy, however, requires similar restraint when the federal government pursues a case in the absence of a completed state prosecution, even if the state is already investigating the same offense. The goal of the PETIT policy is to prevent multiple prosecutions for the same offense, not to compel the federal government to defer to a parallel state interest in a case, particularly one in which state officials involved in the state prosecution expressed significant concerns about it and there were questions regarding the state prosecutor's commitment to the case. Acosta told OPR that there are any number of instances where the federal government or the state government can proceed and the state charges are substantially less and different, and the federal government stands aside and lets the state proceed. The fact that the federal government can allow the state to proceed with a prosecution, however, does not mean the federal government is compelled to do so, particularly in a matter in which a distinct and important federal interest exists. Indeed, the state attorney told OPR that the federal government regularly takes over cases initiated by state investigators, typically because federal charges result in the best sentence alright folks, we're gonna wrap up right here and in the next episode on the topic, we're gonna 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 this episode. We're picking up where we left off with the OIG report into Jeffrey Epstein's non prosecution agreement. Epstein was facing a substantial sentence under the Federal Sentencing Guidelines. Despite the Ashcroft memos directive that federal prosecutors pursue the most serious, readily provable offense. Acosta's decision to push the state to do a little bit more does not approach that standard. In fact, Acosta conceded during his OPR interview that the NPA did not represent an appropriate punishment in the federal system, nor even the best outcome in the state system, and that if the investigation of Epstein had originated with the FBI rather than a referral from the PBD, the outcome might have been different. As U.S. attorney, Acosta had the authority to depart from the Ashcroft memo. He told opr, however, that he did not recall discussing the Ashcroft memo with his colleagues and and nothing in the contemporaneous documentary record suggests that he made a conscious decision to depart from it when he decided to resolve the federal investigation through the npa. Instead, it appears that Acosta simply failed to consider the tension between federal charging policy and a strong federal interest in the case on the one hand, and his broad reading of the Petit policy and his general concerns about federalism on the other hand. OPR concludes that Acosta viewed the federal government's role in prosecuting Epstein too narrowly and through the wrong prism. Furthermore, Acosta's federalism concerns about intruding on the state's autonomy resulted in an outcome the NPA that intruded far more on the state's autonomy than a decision to pursue a federal prosecution would have by means of the npa, the federal government dictated to the state the charges, the sentence, the timing, the certain conditions that the state had to obtain during the state's own prosecution. Acosta acknowledged during his OPR interview that his attempts to backstop the state here rebounded because in the process it ended up being arguably more intrusive. Acosta's concern about invading the state's authority led to additional negative consequences. Acosta revised the draft NPA in several respects to soften its tone by substituting provisions requiring Epstein to make his best efforts for language that appeared to dictate certain actions to the state. In doing so, however, Acosta undermined the enforceability of the agreement, making it difficult later to declare Epstein in breach when he failed to comply. OPR found no indication that when deciding to resolve the federal prosecution through a mechanism that relied completely on state action opinion, Acosta considered the numerous disadvantages of having Epstein plead guilty in the state court system, a system in which none of the subjects had practiced and with which they were unfamiliar. Vilafana recognized that there were a lot of ways to manipulate state sentences, and she told OPR that she was concerned from the outset of negotiations about entering into the NPA because by sending the case back to the state, the USAO was was giving up all control over what was going on. Vilafana also told OPR that defense counsel had a lot of experience with the state system. We did not Epstein's ability to obtain work release a provision directly contrary to the USAO's intent with respect to Epstein's sentence. And it's a clear example of the problem faced by the prosecutors when trying to craft a plea that depended on a judicial system with which they were unfamiliar and over which they had no control. Although the issue of gain time was considered and addressed in the npa, none of the subject attorneys negotiating the NPA realized until after the NPA was signed that Epstein might be eligible for work release. Acosta in particular, told OPR that if it was typical to provide that kind of work release in these cases, that would have been news to me. Because work release was not anticipated, the NPA did not specifically address it, and the USAO was unable to foreclose Epstein from applying for admission to the program. The sexual offender registration provision is yet another example of how Acosta's decision to create an unorthodox mechanism that relied on state procedures to resolve the federal investigation led to unanticipated consequences benefiting Epstein. Acosta told OPR that one of the core aspects of the NPA was the requirement that Epstein plead guilty to a state charge requiring registration as a sexual offender. He cited it as a provision that he insisted on from the beginning and from which he never wavered. However, the USAO failed to anticipate certain factors that affected the sexual offender registration requirement in other states where Epstein had a residence. In selecting the conduct for the factual basis for the crime requiring sexual offender registration, the state chose conduct involving a victim who was at least 16 years old at the time of her interactions with Epstein. Even though Epstein had sexual contact with a 14 year old victim, the victim's age made a difference as the age of consent in New Mexico where Epstein had residence was 16. Therefore, Epstein was not required to register in that state. As the 2006 letter from Defense counsel left court to the state Attorney's office made clear, the defense team had thoroughly researched the details and ramifications of Florida's sexual offender registration requirement. OPR did not find evidence indicating similar research and consideration by the usao. Finally, Acosta was well aware that the PBD brought the case to the FBI's attention because of a concern that the State Attorney's office had succumbed to pressure and from defense counsel, Vilafana told OPR that she informed both Acosta and Sloman of this when she met them at the start of the federal investigation. Although Acosta did not remember the meeting with Vilafana, he repeatedly told OPR during his interview that he was aware that PBD was dissatisfied with the State Attorney's office handling of the case shortly before the NPA was signed. Moreover, additional information came to light that suggested the State Attorney's office was predisposed to to manipulating the process in Epstein's favor. Specifically, during the September 12, 2007 meeting, at the state prosecutor's suggestion, the USAO team agreed with Acosta's subsequent approval to permit Epstein to plead guilty to one state charge of solicitation of minors to engage in prostitution rather than the three charges the USAO had originally specified. The state prosecutor assured Lori that the selected charge would require Epstein to register as a sexual offender. Shortly thereafter, the USAO was told by defense counsel that despite the assurances made to Lori, the state prosecutor had advised Epstein incorrectly. It turned out that a plea to the particular offense would not require him to register as a sexual offender. Yet, despite this evidence, which at least suggested that the state authorities should not have been considered to be a reliable partner in enforcing the npa, Acosta did not alter his decision about proceeding with a process that depended completely on state authorities for its successful execution. OPR finds that Acosta was reasonably aware of the facts and circumstances presented in this case. He stated that he engaged in discussions about various aspects of the case with Sloman and Menshel and relied upon them for their evaluation of the legal and evidentiary issues and for their assessment of trial issues. Acosta was copied on many substantive emails, reviewed and revised drafts of the npa, and approved the final agreement. Yet, rather than focusing on whether the state's prosecution was sufficient to satisfy the federal interest in prosecuting Epstein, Acosta focused on achieving the minimum outcome necessary to satisfy the state's interest as defined in part by the state's indictment, by using the threat of federal prosecution to dictate the terms of of Epstein's state guilty plea. As U.S. attorney, Acosta had the authority to resolve the case in this manner, but OPR concludes that in light of all the surrounding circumstances, his decision to do so reflected poor judgment. Acosta's application of petite policy principles was too expansive, his view of the federal interest in prosecuting Epstein was too narrow, and his understanding of the state system was too imperfect to justify the decision to to use the npa. The assessment of the merits of a potential federal prosecution was undermined by the failure to obtain evidence or take other investigative steps that could have changed the complexion of the case. The leniency resulting from Acosta's decision to resolve the case through the NPA is also troubling because the USAO reached agreement on the terms of the NPA without fully pursuing any evidence that could have changed the complexion of the case or afforded the USAO significant leverage in negotiating with Epstein. Acosta told OPR that his decision to resolve the federal investigation through the NPA was in part due to concerns about the merits of the case and concerns about whether the government could win at trial. Yet Acosta made the decision to resolve the case through a state based resolution and extended that proposal to Epstein's defense attorneys on before the investigation was completed. As the investigation progressed, the FBI continued to locate additional victims and many had not been interviewed by the FBI by the time of the initial offer. In other words, at the time of Acosta's decision, the USAO did not know the full scope of Epstein's conduct, whether, given Epstein's other domestic and foreign residences, his criminal conduct had occurred in other locations or whether the additional victims might implicate other offenders. In addition, Vilafana planned to approach the female assistants to attempt to obtain cooperation, but that step had not been taken. Most importantly, Acosta ended the investigation without the USAO having obtained an important category of potentially significant evidence. The computer is removed from Epstein's home prior to the PBD's execution of a search warrant. The PBD knew that Epstein had surveillance cameras stationed in and around his home, which potentially captured video evidence of people visiting his residence, and that before the state search warrant was executed on that property, the computer equipment associated with those cameras had been removed. Vilafana knew who had possession of the computer equipment. Surveillance images might have shown the victim's visits, and photographic evidence of their appearance at the time of their encounters with Epstein could have countered the anticipated argument that Epstein was unaware that these girls were minors. The surveillance video might have shown additional victims the investigators had not yet identified. Such images could have been powerful visual evidence of the large number of girls Epstein victimized and the frequency of their visits to his home potentially persuasive proof to a jury that this was not a simple solicitation case. Epstein's personal computers possibly contained even more damning evidence. The lafana told OPR that the FBI had information that Epstein used hidden cameras in New York residents to record his sexual encounters. And one victim told the agents that Epstein's assistant photographed her in the nude. Based on this evidence and experience in other sex cases involving minors, Vilafana and several other witnesses opined to OPR that the computers might have contained damning information. Moreover, Epstein lived in a multi state lifestyle. It was reasonable to assume that he may have transmitted still images or videos taken at his Florida residence over the Internet to be accessed while at one of his other homes or while traveling the interstate. Transmission of such things was a separate and serious federal crime and could have changed the entire complexion of the case against Epstein. Vilafana told OPR in if the evidence had been what we suspected it was, it would have put this case completely to bed. It also would have completely defeated all of these arguments about interstate nexus. Because she recognized the potential significance of this evidence. Villefana attempted to obtain the missing computers After Vilafana learned that an individual associated with one of Epstein's attorneys had possession of the computer equipment that was removed from Epstein's home. She consulted with the department subject matter experts to determine how best to obtain the evidence. Following the advice she received and after notifying her supervisors, Vilafana took the legal steps to obtain the computer equipment. Alright, we're going to wrap up this episode 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. 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 Jeffrey Epstein's NPA. Epstein's team sought to postpone compliance with the USAO's demand for the equipment. In late June 2007, defense attorney Sanchez requested an extension of time to comply. In informing Sloman, Menshell and Laurie of the request, Vilafana stressed that we want to get the computer equipment that was removed from Epstein's home prior to the state search warrant as soon as possible. She agreed to extend the date for producing the computer equipment by one week until July 17, 2007. On that day, Epstein initiated litigation regarding the computer equipment and that litigation was still pending at the end of July when Acosta decided to resolve the federal investigation in exchange for a plea in state court to a charge that carried a two year sentence. The FBI co case agent told OPR that in a meeting to discuss the resolution at which the FBI was present, the CO case agent specifically suggested that the USAO wait to pursue a resolution until after the litigation was resolved. But this suggestion was pushed under the rug without comment. Although the co case agent could not recall who was present, the case agent recalled that Menshel led the meeting which occurred while the litigation was still pending. Even after the NPA two year state plea resolution was presented to the defense, Vilafana continued to press ahead to have the court resolve the issue concerning the defense production of the computer equipment. On August 10, 2007, she asked Laurie for authorization to oppose Epstein's efforts to stay the litigation until after an anticipated meeting between the USAO and the defense, informing Lori that a victim interviewed that week claimed she started seeing Epstein after at age 14 and he had photographed her in the nude. A few days later, Villefana told defense counsel that she had conferred with the appropriate people and we are not willing to agree to a stay. Defense counsel then contacted Lori, who agreed to postpone the hearing until after the upcoming meeting with Acosta. After the meeting and when the court sought to reschedule the hearing, Vilafana emailed Sloman to ask if she should put it off. He replied yes and the hearing was reset for September 18, 2007. As negotiations towards the NPA progressed, however, the hearing was postponed indefinitely. Ultimately, the NPA itself put the issue to rest by specifying that all legal process would be held in abeyance unless and until Epstein breached the agreement. Vilafana told OPR that she had learned through law enforcement channels that that the defense team had reviewed the contents of Epstein's computers. She told OPR in her view, the fact that the defense was trying desperately to put off the hearing was further evidence of the importance of the evidence. OPR questioned Acosta about the decisions to initiate and continue with the NPA negotiations while the litigation concerning the computers was still pending and to agree to postpone the litigation rather than exhausting all efforts to obtain and review the computer evidence. Acosta told OPR that he had no recollection of Villefana's efforts to obtain the missing computers, but he believed that there was a desire to move quickly as opposed to slowly. Regarding the plea, Menchel, Sloman and Lori also told OPR that they did not remember Vilafana's efforts to obtain the computers or recall the issue only vaguely. Menschel expressed surprise to OPR that a prosecutor could obtain an entire computer through the method utilized by Villefana, telling opr, I had not heard of that. However, the contemporaneous records show that Sloman, Menschel, and Lori each had been aware in 2007 of Vilafana's efforts to obtain Epstein's missing computer equipment. Vilafana kept Menschel, in particular, well informed of her efforts to obtain the computer equipment she sent to Menschel or copied him on several emails about her plan to obtain the computer equipment. Specifically, her emails on May 18, 2007, July 3, 2007, and July 16, 2007 all discussed her proposed steps. Vilafana told OPR that Lori was involved in early discussions about her proposal to obtain the evidence. Lori also received Vilafana's July 16, 2007 email discussing the computer equipment and the plan to obtain it, and on one occasion he spoke directly with one of Epstein's defense attorneys about it. Sloman told OPR during his interview that he vaguely remembered the computer issue. The documentary evidence confirms that he had at least some contemporaneous knowledge of the issue. When asked by Vilafana whether to put off a September 12, 2007 hearing on the litigation, he told her to do so. Finally, as noted previously, the FBI co case agent proposed at a meeting with the USAO personnel that the USAO wait until the litigation was resolved before pursuing plea negotiations. Contemporaneous records show that Acosta was likely aware before the NPA was signed of the USAO's efforts to obtain custody of Epstein's computers and that after the NPA was signed, he was informed about the use of legal process for obtaining the computer equipment. The NPA itself provides that the federal investigation will be suspended and all pending legal process will be held in abeyance that Epstein will withdraw his motion to intervene to quash certain legal processes and further that the parties would maintain evidence subject to the legal process that may have been issued and including certain computer equipment inviolate until the NPA's terms had been fully satisfied, at which point the legal process would be deemed withdrawn. Acosta's numerous edits on the NPA's final draft suggest that he gave it a close read, and OPR expects that Acosta would not have approved the agreement without understanding what legal process his office was agreeing to withdraw or why the only type of evidence specified was certain computer equipment. In addition, Acosta told OPR that he worked closely with Sloman and Menshel, consulted with them, and relied on their counsel about the case. Among other things, Acosta said he discussed with them concerns about the law and the evidentiary issues presented by a federal criminal trial. Therefore, although it's possible that Sloman made the decision to postpone the hearing concerning the USAO's efforts to obtain the computer equipment without consulting Acosta, once Acosta reviewed the draft npa, Acosta was on notice of the existence of and and the ongoing litigation concerning Epstein's missing computer equipment. Vilafana knew where the computers were. Litigation over the demand for the equipment was already underway. There was good reason to believe the computers contained relevant and potentially critical information, and it was clear Epstein did not want the contents of his computers disclosed. Nothing in the available record reveals that the USAO benefited from abandoning pursuit of this evidence when they did, or that there was a significant consideration of the costs and benefits of foregoing the litigation to obtain production of the computers. Instead, the USAO agreed to postpone and ultimately abandon its efforts to obtain evidence that could have significantly changed Acosta's decision to resolve the federal investigation with a state plea or led to additional significant federal charges. By agreeing to postpone the litigation, the USAO gave away leverage that might have caused the defense to come to an agreement much earlier on terms more favorable to the government. The USAO ultimately agreed to a term in the NPA that permanently ended the government's ability to obtain possible evidence of significant crimes and did so with apparently little serious consideration of the potential cost. To be clear, OPR is not suggesting that prosecutors must obtain or all available evidence before reaching plea agreements or that prosecutors cannot reasonably determine that reaching a resolution more beneficial than continuing to litigate evidentiary issues. Every case is different and must be judged on its own facts. In this case, however, given the unorthodox nature of the state based resolution, the fact that Acosta's decision to pursue it set the case on a wholly different track then what would have originally contemplated by his experienced staff the nature and scope of Epstein's criminal conduct, the circumstances surrounding the removal of the computers from Epstein's residence, and the potential of obtaining evidence revealing serious additional criminal conduct. Acosta had a responsibility to ensure that he was fully informed about the consequences of pursuing the course of action that he proposed and particularly about the consequences flowing from the express terms which of the npa. In deciding to resolve the case pre charge, Acosta lost sight of the bigger picture that the investigation was not completed and viable leads remained to be pursued. The decision to forego the government's efforts to obtain the computer evidence and to pursue significant investigative steps should have been made only after careful consideration of all the costs and benefits of the proposed action. OPR did not find evidence that Acosta fully considered the costs of ending the investigation prematurely. OPR was unable to determine the basis for the two year term of incarceration, that it was tied to traditional sentencing goals, or that it satisfied the federal interest in the prosecution. In the heart of the controversy surrounding the Epstein case is the apparent undue leniency afforded him concerning his sentence. After offering a deal that required a non negotiable 24 month term of incarceration, Acosta agreed to resolve it for 18 month term of incarceration, knowing that gain time would reduce it further and indeed Epstein served only 13 months. Epstein ultimately did not serve even that minimal sentence incarcerated on a full time basis because the state allowed Epstein into its work release program within the first four months of his sentence. As Lori told opr, everything else that happened to Epstein is exactly what should have happened to him. He had a pay a lot of money, he had to register as a sex offender, but in the perfect world Epstein would have served more jail time due to the passage of time and the subject's inability to recall many details of the relevant events, OPR was unable to develop a clear understanding of how the original two year sentence requirement was was developed or by whom two possibilities were articulated during OPR's Subject 1. Two years presented the sentence Epstein would have received if he had pled guilty to an unspecified charge originally contemplated by the State or two, the two years represented the sentence the USAO determined Epstein would be willing to accept, thus avoiding the need for a trial. As to the former possibility of Acosta told OPR that his understanding of the two year proposal was that it correlated to one of the original State charges. He elaborated, I'm constructing memories of 12 years ago. I can speculate that at some point the matter came up and I or someone else said what would the original charges have likely brought and someone said this amount. Acosta told OPR that he cannot recall who initially proposed this method, but he believed that it's likely did not result from a single specific discussion, but rather from conversations over a course of time. Acosta could not recall specifically with whom he had these discussions other than it would have been Laurie Menshel or Sloman. Vilafana was not asked for her views on a two year sentence and she had no input into the decision before it was made. Vilafana told OPR that she examined the state statutes and could not validate that that a state charge would have resulted in a 24 month sentence. OPR also examined applicable state statutes and the Florida Sentencing Guidelines but could not confirm that Epstein was in fact facing a potential two year sentence under charges contemplated by Palm Beach. On the other hand, during OPR interview, Laurie guessed that somehow the defense conveyed we're going to trial if it's more than two years. Menschel similarly told OPR that he did not know the two year sentence was derived, but obviously it was a number that the office felt was palatable enough that Epstein would take it. Sloman told OPR that he had no idea how the two year sentence proposal was reached. The contemporaneous documentary record, however, provides no indication that Epstein's team proposed a two year sentence of incarceration or initially suggested before the USAO made its offer that Epstein would accept the two year term of incarceration. As late as July 25, 2007, only days before the USAO provided the term sheet to defense counsel, Epstein's counsel submitted a letter to the USAO arguing that the federal government should not prosecute Epstein at all. Furthermore, after the initial term sheet was presented and negotiations for the NPA progressed, Epstein's team continued to strongly press for less or no jail time. The USAO had other charging and sentencing options available to it. The most obvious alternative to the two year sentence proposal was to offer Epstein a plea to federal offense that carried a harsher sentence if federally charged. Epstein was facing a substantial sentence under the Federal Sentencing Guidelines 168 to 210 months imprisonment. However, it's unlikely that he would have agreed to a plea that required a guideline sentence, even one at a lower end of the guidelines. Menschel told OPR that he and his colleagues had been concerned that Epstein would opt to go to trial if charged and presented with the option of pleading to a guideline sentence. And as previously discussed, there were both evidentiary and legal risks attendant upon trial. In this case, if federally charged, Epstein's sentencing exposure could have been managed by offering him a plea under federal Rule of Criminal Procedure 11C for a stipulated sentence which requires judicial approval. Acosta rejected this idea, however, apparently because of a perception that the federal district court in the Southern District of Florida did not rule 11C pleas favorably and might refuse to accept such a plea and limit the USAO's options. Another alternative was to offer Epstein a plea to conspiracy, a federal charge that carried a maximum five year sentence. Shortly after Villefana circulated the prosecution memorandum to her supervisors, Lori recommended to Acosta charging Epstein by criminal complaint and offering a plea to conspiracy to make a plea attractive. Similarly, before learning that Menshel had already discussed a state based resolution with Epstein's counsel, Vilafana had considered offering Epstein a plea to one count of conspiracy and a substantive charge to to be served concurrently with any sentence he might receive separately as a result of the state's outstanding indictment. Given Epstein's continued insistence that federal charges were not appropriate and defense counsel's efforts to minimize the amount of time Epstein would spend in jail, it's questionable whether Epstein would have accepted such a plea offer. But the USAO did not even extend the offer to determine what his response would be. Weighed against possible loss at trial were some clear advantages to a negotiated resolution that ensured a conviction, including sexual offender registration and the opportunity to establish a mechanism for victims to recover damages. These advantages added to Acosta's concern about intruding on the state's authority, led him to the conclusion that a two year estate plea would be sufficient to prevent manifest injustice. I don't believe anybody at the time that this resolution was entered into was looking at the two years as a fair result. In terms of the conduct, I think that was not the issue. The issue was whether or not if we took this case to trial, would we risk losing everything? During the course of negotiations over a potential federal plea, the USAO agreed to accept a plea for 18 month sentence, a reduction of six months from the original non negotiable two year term. The subjects did not have a clear memory or why this reduction was made. Villefana attributed it to a conversation between Acosta and Lefkowitz. But Acosta attributed it to a decision made during the negotiation process by Vilafana and Laurie, telling OPR he understood his attorneys needed flexibility to reach a final deal with Epstein. OPR found no contemporaneous documents showing the basis for the two year term. Despite extensive subject interviews and review of thousands of contemporaneous records, OPR was unable to determine who initially proposed the two year term of incarceration or why that term, as opposed to other possible and lengthier terms, was settled on for the initial offer. The term was not tied to statutory or guideline sentences for potential federal charges or, as far as OPR could determine, possible state charges. Furthermore, while the USAO initially informed the defendants that the two year term would was non negotiable, Acosta failed to enforce that position and rather than a floor for negotiations, it became a ceiling that was further reduced. During the negotiations. OPR was unable to find any evidence indicating that the term of incarceration was tied either to the federal interest in seeking a just sentence for a serial sexual offender or to other traditional sentencing factors such as deterrence either of Epstein or other offenders of of similar crimes. Instead, as previously noted, it appears that Acosta primarily considered only a punishment that was somewhat more than what to which the state had agreed. As a result, the USAO had little room to maneuver during the negotiations, and because Acosta was unwilling to enforce the non negotiable initial offer, the government ended up with the term of incarceration that was not much more than what the state had initially sought and which was significantly disproportionate to the seriousness of Epstein's conduct. In sum, it's evident that Acosta's desire to resolve the federal case against Epstein led him to arrive at a target term of incarceration that met his own goal of serving as a backstop to the state, but that otherwise was untethered to any articulable, reasonable basis. In assessing the case only through the lens of providing a backstop to the state, the Acosta feld to consider the need for a punishment equal with the seriousness of Epstein's conduct and the federal interest in addressing it. All right, we're going to wrap this episode up here and then the next episode we're going to pick up with D. Acosta's decisions led to difficulties enforcing the npa. All of the information that goes with this episode can be found in the description box.