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• • D. Epstein Further Delays His Guilty Plea The addendum did not bring the case to conclusion. Instead, the matter entered a new, protracted phase, which involved the upper echelons of the Department of Justice. Despite the fact that Epstein and his attorneys had signed the NPA, they pursued a new strategy of appealing to senior Department managers with the goal of setting aside the NPA entirely. Although ultimately unsuccessful, the strategy delayed the entry of Epstein's guilty plea by months. On October 29, 2007, Villafafia emailed Sloman, raising several issues that s wanted Sloman to address with Lefkowitz. Among other things, Villafana pointed out t t t e NPA required Epstein to use his "best efforts" to comply with the agreement, but he had f • ply with the timeline established by the NPA when he sought and obtain ea earing postponement from October 26 to November 20. Responding to Lefkowitz' o limit the USAO's communications with various entities and individuals, Villafana the USAO needed to be able to communicate with the State Attorney's Office an s' attorney "to [e]nsure that Epstein is abiding by the terms of the agreement." That same day, Assistant State Attorney Belohlavek in assigned to the case had scheduled Epstein's plea and sente assured Sloman that the "plea and sentence will definite was agreed on by all for the sentencing."t' 9 Nonethel show that the USAO, the State Attorney's Office, regarding the date of the guilty plea, with the date for the entry of Epstein's guilty plea w Epstein had not agreed to any date. Final potential dates, on December 7, 200 pstei Hearing, setting the case for January 130 E. Epstein Seeks m al Review of the NPA's § 2255 Provision Relating to Monetary D ages the Victims With Epstein's plea hea delayed, he launched a new effort to undermine the validity of the NPA, this time wi eparUnent. On November 16,2007, Epstein attorney Kenneth Starr called the office f Ass Attorney General for the Criminal Division Alice Fisher and left a message that was ing regarding Epstein."' At Fisher's request, Lourie, who in late September 2 7 d begun serving his detail as Fisher's Principal Deputy and Chief of Staff, returned Fisher told OPR that she had no recollection of this call, and Lourie also could Sloman that the state judge January 2008. Belohlavek ore the January 4th date that ver the course of the next month counsel continued to communicate asse ing that a proposed January 7, 2008 able," while the defense contended that Itiple communications referring to various ttomey Jack Goldberger issued a Notice of 149 The NPA had required Epstein's plea and sentencing to occur by October 26, 2007, but provided that Epstein could report to begin serving his sentence on January 4, 2008. ISO State v. Epstein, No. 2006-CF-9454, Notice of Hearing (Fifteenth Judicial Circuit, Dec. 7, 2007). 191 In a meeting with Acosta and Sloman on November 21, 2007, Lefkowitz informed them that Starr had placed a call to Fisher. 94 CA/Aronberg-000562 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736200 • • for lal half hour talking about IFIepperdine," refening to the law school where Starr served as not recall for OPR the substance of his conversation with Starr, other than that it was likely about Epstein's wish to have the Department review the case.t52 On November 28, 2007, Starr requested, by letter, a meeting with Fisher. In his letter, Starr argued that the USAO improperly had compelled Epstein to agree to pay civil damages under 18 U.S.C. § 2255 as part of a state-based resolution of a criminal ease. On the same day, Lefkowitz emailed Sloman, complaining about the USAO's plan to notify victims about the § 2255 provision and alerting Sloman that Epstein's counsel were seeking a meeting with the Assistant Attorney General "to address what we believe is the unprecedented nature of the section 2255 ent" of the NPA. After Laurie sent to Sloman a copy of the Starr letter, Sloman fo it to Villafana, asking her to prepare a chronology of the plea negotiations and how the 5p 'sion evolved. Villafafla responded that she was "going through all of the ways in whi have tried to breach the agreement to convince you guys to let me indict." In Washington, D.C., Laurie consulted with CEOS Chief asking for his thoughts on defense counsel's arguments. At the same time, at Lou est, Villafaha sent the NPA and its addendum to Laurie and Oosterbaan. Oosterbaan o Laurie that he was "not thrilled" about the NPA; described Epstein's conduct as y "egregious," particularly because of its serial nature; and observed that the NPA was ' ntageous for the defendant and not all that helpful to the victims." He opined, how e Assistant Attorney General would not and should not consider or address the NP th to say that she agrees with it." During her OPR interview, Fisher did not recal r tit tarr's letter or discussing it with Oosterbaan, but believed the comment about a ag ing) with it" referred to a federal prosecution of Epstein, which she believed nate. She told OPR, however, that she "played no role in" the NPA and did not ra t or a rove the agreement either before or after it was signed. As set forth in more detail Three of this Report, Villafaha planned to notify the victims about the NPA and its p ision, as well as about the state plea hearing, and she provided a draft of the notif tion er to Lefkowitz for comments. On November 29, 2007, Lefkowitz sent Acosta a len m laining about the draft notification to the victims. Lefkowitz asked the USAO to ref in from 'tying the victims until after defense counsel met with Assistant Attorney General Fish h he anticipated would take place the following week. Internal emails indicate e contacted Oosterbaan about his availability for a meeting with Starr, but both Fish d Lou e told OPR that such a meeting never took place, and OPR found no evidence mptly responded to Lefkowitz by letter, directing him to raise his concerns about vi ion with Villafaha or Sloman. Acosta also addressed Epstein's evident efforts to stop a QPA from being enforced: In a short email to Fisher, the next day, Laurie reported simply: "He was very nice. aim on the phone 95 CA/Aronberg-000563 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736201 • • [S]ince the signing of the September 24th agreement, more than two months[] ago, it has become clear that several attorneys on your legal team are dissatisfied with that result. [You], Professor Dershowitz, former Solicitor General] Starr, former United States Attorney and Messrs. Black, Goldberger and Lefcourt previous y a te opportunity to review and raise objections to the terms of the Agreement. The defense team, however, after extensive negotiation, chose to adopt the Agreement. Since then counsel have objected to several st taken by the U.S. Attorney's Office to effectuate the terms Agreement, in essence presenting collateral challenges to ,p of the Agreement. It is not the intention of this Office ever to require a d enter a plea against his wishes. Your client has to trial. If your client is dissatisfied with his that it is unlawful or unfair, we st Agreement. In a separate, seven-page letter to S responded to the substance of Star's Nove Fisher told OPR that she did not recall wh but she conjectured that "probably I w ing Criminal Division wasn't] going to r 1.153 nt to to proceed , or believes unwind the with \III afafta's and Sloman's input, Acosta letter to Assistant Attorney General Fisher. her than her office, responded to the letter, make sure that somebody responded since [the In his seven-page letter, on December 4, 2007, Acosta wrote: The Non-Pro ti greement entered into between this Office and Mr. Epster nds to Mr. Epstein's desire to reach a global resoluti his state and federal criminal liability. Under this A reem is District has agreed to defer prosecution for umerat sections of Title 18 in favor of prosecution by the State orida, provided . . . Mr. Epstein satisfies three general federal sts: (I) that Mr. Epstein plead guilty to a "registerable" ense; (2) that this plea include a binding recommendation for a sufficient term of imprisonment; and (3) that the Agreement not harm the interests of his victims. Acosta explained in the letter that the USAO's intent was "to place the identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less." Acosta documented the USAO's understanding of the operation, of the NPA's § 2255 '" The USAO may have been asked to respond because Staffs letter raised issues that had not been previously raised with the USAO, and it would nomully fall to the USAO to address them in the first instance. 96 CAffironberg-000564 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736202 provision, recounted the history of NPA negotiations, and described the pbst-signing efforts by Epstein's counsel to challenge portions of the NPA. Acosta's letter concluded: Although it happens rarely, I do not mind this Office's decision being appealed to Washington, and have previously directed our prosecutors to delay filings in this case to provide defense counsel with the option of appealing our decisions. Indeed, although I am confident in our prosecutors' evidence and legal analysis, I nonetheless directed them to consult with the subject matter experts in [CEOS] to confirm our interpretation of the law before approving their [charges]. I am thus surprised to read a letter addressed to Department Headquarters that raises issues that either have not raised with this Office previously or that have been raised, fact resolved, in your client's favor. I am troubled, likewise, by the apparent lack of fin this Agreement. The AUSAs who have been negotiati wi ense counsel have for some time complained to me the tactics used by the defense team. It appears to a as soon as resolution is reached on one issue, defen n = finds ways to challenge the resolution collaterally. thus far has been that defense counsel is doing its ously represent the client. That said, there must be c s on t is matter. Some in our Office are deeply concerned en counsel will continue to mount collateral challeng rovi ons of the Agreement, even after Mr. Epstein has e his illy plea and thus rendered the agreement difficult, ifrl ppssible, to unwind. I would reite tha t is not the intention of this Office ever to force the hand of a endant to enter into an agreement against his wishes. lient has the right to proceed to trial. Although time is f the s nce . . . I am directing our prosecutors not to issue n fication letters until this Friday . . . to provide you with review these options with your client. . . . We expect a en decision by [December 7, 2007] at 5 p.m., indicating hether the defense team wishes to reaffirm, or to unwind, the Agreement. costa explained to OPR that he did not view his letter as "inviting" Departmental review, but he believed the Department had the "right" to address Epstein's concerns. Moreover, the USAO's only option at that time was to declare Epstein in breach of the NPA, which would have prompted litigation as to whether Epstein was, in fact, in breach. Acosta noted that defense counsel repeatedly proclaimed Epstein's intent to abide by the agreement, making any USAO effort to declare him in breach more difficult. In fact, the day after receiving Acosta's letter, Start and Lefkowitz responded to Acosta (with copies to Sloman and Assitant Attorney General Fisher) that 97 CA/Aronberg-000565 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736203 the defense "iflirst and foremost" reaffirmed the NPA and that Epstein "has no intention of unwinding the agreement." On December 7, 2007—the deadline set by Acosta in his December 4, 2007 letter to Starr— the defense transmitted to the USAO a one-sentence "Affirmation" of the NPA and its addendum, signed by Epstein.'" F. Despite Affirming the NPA, Defense Counsel Intensify Their Challenges to It and Accuse ViIlafafia of Improper Conduct 1. December 7 and II, 2007: Starr and Lefkowitz Send to o etters and "Ethics Opinions" Complaining about the Feder vesti ation and Villaimia On the same day that the defense team sent Epstein's "Affirm and Lefkowitz sent to Acosta two "independent ethics opinions" criminal defense attorney and former U.S. Attorney Joe Whitley, improprieties in the federal investigation of Epstein, and the of judge and former U.S. Attorney, arguing against the NPA' provision under 18 U.S.C. § 2255 "as a proxy for traditio Days later, on December II, 2007, Starr s submissions authored by Lefkowitz presenting "background and conduct of the investigation." raised by the defense but also asserted new, addressed the "improper involvement" Villafafia for a number of alleged i federal overreaching" by seekin Attorney's Office "charge Mr. significantly harsher than w guilty to a registrable often • Lefkowitz al was "tainted" by the interview su information involv I3-pa NPA, USAO, Starr ored by prominent assessed purported a prominent retired federal he civil damages recovery restitution." Acosta transmitting two lengthy tip challenges to the NPA and to the missions repeated arguments previously one submission, 20 pages long, Lefkowitz authorities in the investigation and criticized including having engaged in "unprecedented e Epstein federally, "insistring1" that the State violations of law and recommend a sentence that are e deemed appropriate," and requiring that Epstein plead s$' condition that was "unwarranted."'" ed that the federal investigation relied upon a state investigation that PD Detective's misrepresentation of key facts in affidavits and es, ding the USAO to make its charging decision based on flawed promised the federal investigation." Finally, Lefkowitz criticized federal he ate plea process as a violation of "the tenets of the Petite Policy." In a second, on, Lefkowitz reiterated Epstein's complaints about the § 2255 component of the among other things, that federal prosecutors "should not be in the business of ed victims of state crimes secure civil financial settlements." 'm The Affirmation read: "I, Jeffrey E. Epstein do hereby re-affirm the Non-Prosecution Agreement and Addendum to same dated October 30, 2007." 155 Villafana sent Lefkowitz a five-page letter responding to the accusations made against her personally. 98 C/VAronberg-000566 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736204 • • Notwithstanding these voluminous submissions, Lefkowitz added that Epstein "unconditionally re-asserts his intention to fulfill and not seek to withdraw from or unwind" the NPA. 2. As a Result of the Starr and Lefkowitz Submissions, the New USAO Criminal Chief Begins a Full Review of the Evidence, and Acosta Agrees to Meet Again with Defense Counsel After reviewing Starr's and Lefkowitz's letters, Sloman notified Villafaila that "i light of the recent Kirkland & Ellis correspondence" he had asked Robert Senior, who h su ed Menchel as Chief of the USAO's Criminal Division, to review de novo the evide ng the proposed revised indictment, and Sloman asked Villafafia to provide Senior all t e state and FBI investigative materials. In the meantime, Acosta agreed to meet with Starr and other E se attorneys to discuss the defense complaints raised in Lefkowitz's December 11, 07 s bmissions.1% The meeting took place in Miami on December 14, 2007. The defe m included Starr, Dershowitz, Lefcourt, and Boston attorney Weinberg. iTt7 1111SAO side included Acosta, Sloman, Villafafia, and another senior AUSA, with the Miami FBI Special Agent in Charge and Assistant Special Agent in Charge also present. In addition to previously raised arguments, during this meeting, Epstein's attorneys raised a new argument—that the state charge to which Epstein had agreed to plead guilty did not apply to the fact he case It May Pursue a Department Review 3. The Defense Notifies of the USAO's Acti Shortly after the December 1 raised at the meeting could not be but to seek review in Washin defense team might make an "to in fact review this case in Starr and Lefkowitz then sen defense submissions, a "prompt, indep ndent letter reiterat state law or a "improp claim; cu big, Lefkowitz notified Acosta that if the issues mptly, the defense team may "have no alternative notified Assistant Attorney General Fisher that the and he asked her to grant such a request for review and ted manner [in order] to preserve the January 4th plea date." Acosta a lengthy letter, with numerous previously submitted g issues discussed at the meeting, and advising that Epstein sought ited review" of the evidence by "you or someone you trust." The pstein' position that his conduct did not amount to a registrable offense under on of federal law, and with respect to the NPA's § 2255 provision, that it was uire Epstein to pay damages "to individuals who do nothing but simply assert a statute. '' As Assistant Attorney General Fisher's Chicf of Staff, Lourie had informed Starr that Fisher hoped Start would speak to Acosta to "resolve then fairly narrow issues" raised in Starr's corm-soon:knee with Acosta. Acosta had the Starr and Lefkowitz submissions of December II forwarded to Fisher. 99 CA/Aronberg-000567 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERIC. 3/28/2023 2:18:34 PM EFTA02736205 • • 4. Acosta Attempts to Revise the NPA § 2255 Language concerning Monetary Damages, but the Defense Does Not Accept It Acosta undertook to respond to defense counsel's continuing concern about the § 2255 provision. He sent to Deputy Assistant Attorney General Sigal Mandelker language that he proposed including in a revision to the NPA's § 2255 implementation section. Mandelker forwarded the language to her counterpart in the Civil Division, who responded to Mandelker and Acosta that he did not have "any insight" to offer. On December 19, 2007, after Acosta and Sloman had a phone conversation with Starr and Lefkowitz, Acosta sent to Sanche a letter proposing to resolve "our disagreements over interpretation[]" by replacing the exist I nguage of the NPA relating to § 2255 with a provision that would read: Any person, who while a minor, was a victim of a violation offense enumerated in Title 18, United States Code, Section will have the same rights to proceed under Section 212?5 a would have had, if Mr. Epstein [had] been tried facially) and convicted of an enumerated offense. For purposes f implemoting this paragraph, the United States shall pro attorneys with a list of individuals who it name . . . as victims of an enumerated off judicial authority interpreting this provj determining which evidentiary burd shall consider that it is the in identified victims in the same Mr. Epstein been convicted Epstein's repared to pstein. Any ing any authority plaintiff must meet, parties to place these ey would have been had more; no less. Acosta also noted that he had resisted tutors' urging to declare the NPA breached by the defense delays.'" Leflcowitz responded "several troubling questions' attempting to fit a federal civil letter to Acosta, to ad of his guilty ple Lefk cause of the d' and will possible.' few days later, suggesting that Acosta's proposal raised at "the problem arises from the incongruity that exists when tidies statute into a criminal plea agreement"13B In a follow-up USAO's concern that Epstein was intentionally delaying the entry asserted that "any impediment to the resolution at issue is a direct merit's between the parties," and that defense counsel had "at all times made make sincere efforts to resolve and finalize issues as expeditiously as told OPR that despite this assurance from defense counsel, he was "increasingly frus y Epstein's desire to take an "Ilth hour appeal" to the Department so soon before the IS) As described in detail in Chapter Three, Acosta's December 19,2007 letter also addressed defense objections to notifying the victims about the NPA and the state plea. iss After Sian and Lefkowitz had another conversation with Acosta and Sloman, Leflcowitz sent a second letter to Acosta reiterating concerns with the § 2255 provision and asserting that the provision was "inherently flawed and becoming truly unmanageable." In the end, the defense team rejected Acosta's Decenter 19, 2007 NPA modification letter. 100 CA/Aronberg-000568 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736206 • • scheduled January 4, 2008 plea hearing. As soon became apparent, Acosta was unable to achieve an expedited review so that Epstein could plead guilty and be sentenced by January 4, 2008, and the plea and sentencing date was rescheduled. On January 2, 2008, Sloman spoke with Assistant State Attorney Belohlavek, who confirmed that the change of plea hearing had been postponed. In an email reporting this to Acosta and Villafafia, Sloman said that Epstein's local defense attorney Goldberger had told Belohlavek the postponement was because the facts "did not fit the proposed state charge," and that Belohlavek told Sloman she agreed with that assessment.159 The next day, Villaftula sent to Acosta and Sloman a local newspaper article reporting that Epstein's state plea hearing was reset for March and in exchange for it t federal authorities would drop their investigation of him. Acosta also sent to Sloman and fans an email memorializing a statement made to him by Lefkowitz in a phone call [Lefkowitz] may have made a mistake 6 months ago. [Belohlavek] told us s ion is] not registrable. It turns out that the actual offense charged is:1"i° 5. January 7, 2008: Acosta and Sloman Meet w Who Makes Additional Allegations of USAO Misconduct On January 7, 2008, Acosta and Sloman met with defe at her request. According to meeting notes made by Sloman, among o r leged that the USAO's media spoliffion had improperly disclosed e Epstein case to a national news reporter, and "suggested that the US u id any potential ugliness in DC by agreeing to a watered-down resolution for Eps sta excused himself to attend another meeting and Sloman refused to speak h with "without a witness resent' she left. Later that day, Acosta and Sloman one with Starr, Lefkowitz, and , who expressed concern about the "leak" to ews edia, reiterated their objections tot e , and pressed for the "watered-down reso ' cli they specified would mean allowing Epstein to plead to a charge of coercion inst rement, avoid serving time in jail, and not register as a sexual offender. A note in e a of Sloman's handwritten notes of the conversation reads: "We're back to where s ed September." That evening, Villaf e ressed concern that the delay in resolving the matter was affecting the USAO' ability to go forward with a prosecution should Epstein renege on his agreement, and she ou r Acosta and Sloman the steps she proposed to take while Epstein was pursuing D rtm tal review. Those steps included re-establishing contact with victims, interviewing ms in ew York and one victim who lived in a foreign country, making contact with "pot I s of information" in the Virgin Islands, and re-initiating proceedings to obtain E stein co puters. eantime, USAO Criminal Division Chief Robert Senior performed a "soup to nuts" revi the Epstein investigation, reviewing the indictment package and all of the evidence Villaf a had compiled. He told OPR that he could not recall the reason for his review, but opined 159 Belohlavek told OPR that she did not recall this incident, but she noted that the PBPD report did set forth facts supporting the charge of procurement of a minor. Although the meeting Lefkowitz had with Lourie, Villafarla, Krischcr, and Bcloldavek to discuss the suite resolution was only four months prior, not six, Leficowitz's reference was likely to the September 12, 2007 meeting. I01 CA/Aronberg-000569 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736207 • • that it was to establish whether, if the plea fell apart, he, as Chief, would agree "that we can go forward with" the charges. He did recall being concerned, after completing the review, that "we did not have . . . a lot of victims .. . lined up and ready to testify" and that some victims might "not be favorable for us." Nevertheless, he concluded that the proposed charges were sound, and he told Acosta that he would approve proceeding with a federal case. 6. Acosta Asks CEOS to Review the Evidence that they "appreciate[d)" that the defense wanted a "fresh face" to conduct a review, a the Criminal Chief had not undertaken the "in-depth work associated with the issu defense." They told the defense team that Acosta had asked CEOS to "come o CEOS Chief Oosterbaan would designate an attorney having "a national perspeetti "to conduct a fresh review in light of the defense submissions. Oosterbaan assigned a CEOSITnal Attorney who Villafana understood was to review the case and prepare for trial i te ` nt'£pstein did not "consummate" the NPA. The CEOS Trial Attorney traveled to Firida,to review the case materials, and to meet with Villafana to discuss the case and inte one such meeting, Villafana wrote to Acosta and Sloman: Notwithstanding Senior's favorable review, Acosta and Sloman told Starr and Lefkowitz led that of the victims. After We just finished interviewing three of th tsh you could have been there to see how much this h them One girl broke down sobbing so twice within a 20 minute span. to continue a short time, but about Epstein coming afteriter a so we stopped the intervie4. e had to stop the interview galned her composure enough aid that she was having nightmares she started to break down again, The second girl .N\401d us that she was very upset about the 18 month deal she'fila'd t about in the paper. She said that 18 months was nothing 'and that she had heard that the girls could get restitution, but she'tvould rather not get any money and have Epstein spend 44 icant time in jail. Ohgirls deserve so much better than they have received so far, d I hate feeling that there is nothing I can do to help them.' CEOS Trial Attorney had substantial experience prosecuting child exploitation cases. She told OPR that in her view, the victim witnesses in this case presented a number of challenges for a prosecution: some of the victims did not want to admit they had sexual contact with Epstein; some had recruited other victims to provide Epstein massages, and thus could have been charged as accomplices; some had "drug histories and . . . things like that"; some could appear to have been "complicit"; and there was no evidence of physical violence against the victims. She did not regard 161 Vinufaila added, "We have four more girls coining in tomorrow. Can I persuade you to attend?" 102 CA/Aronberg-000570 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736208 • • these victim issues as insurmountable but, based on these alone, the CEOS Trial Attorney considered a potential prosecution of Epstein to be a "crap shoot." In addition, she told OPR that there were novel legal issues in the case that also presented difficulties, although she believed these difficulties could be overcome. Shortly after the CEOS Trial Attorney met with the victims, however, "things just stopped" when Oosterbaan instructed her to cease her involvement in the case and CEOS engaged in the Criminal Division review sought by Epstein's defense team. IX. FEBRUARY - JUNE 2008: THE DEPARTMENT'S REVIEW Epstein's defense attorneys sought a broad review from the Department, on th would encompass the defense complaints about federal jurisdiction, specific terms in th the various allegations of professional misconduct by USAO attorneys and othe nnel. The Department, however, only reviewed the issue of federal jurisdiction and nev the NPA or any specific provisions.162 Nonetheless, the process took several m s the defense appealed first to CEOS and the Department's Criminal Division, an Office of the Deputy Attorney General. The chart set forth on the following pa s the positions and relationships among the individuals in those offices involved in m ling with the USAO or defense beginning in November 2007 or in those offices' which continued through June 2008. 162 On February 28, 2008, USAO r ivision Chief Senior sent to the Civil Rights Division written notification of the USAO's "ongoing i f a child exploitation matter" involving Epstein and others "that may result in charges of violations § 1591." USAM § 8-3.120 required a U.S. Attorney to notify the Civil Rights Division, in writing, alt the set of a criminal investigation . .. that may implicate federal criminal civil rights statutes, ... and in no 1 r than tcn days before the commencement of the examination of witnesses before a grand jury." The rovision a so required notification to CEOS in cases involving sex trafficking of minors. The written notifications Sy the targets of the investigation, die factual allegations to be investigated, the ' statutes which may have vi aced, die U.S. Attorney's assessment of the significance of the case, whether the case was of "nati merest ' and the U.S. Attorney's proposed staffing of the matter. Vi aware of this requirement in late February 2008, and she prepared a written notification that was e who discussed it with Acosta. After briefly summarizing the facts, Senior advised: he Office anticipates charges of violations of Title 18, United States Code, Sections 371, 2422, 2423, and 1591. The investigation of the case by the City of Palm Reich Police Department has resulted in press coverage because of the titillating nature of tic facts, but we see this case as similar to other "child prostitution" cases charged by our office, and not a matter of "national interest" as defined by the U.S. Attorney's Manual. In the notification, Senior stated that CEOS "has been involved and is currently reviewing the matter," he anticipated the case would be staffed by USAO and Department personnel, and "[ill we determine that the case should be fehargAdJ, a copy lof the charging documenti will be forwarded to you." OPR did not locate a response from the Civil Rights Division to the notification. 103 CAJAronberg-000571 FILED: PA I .X1 BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736209 Criminal Division Androv tounr * Ptincipa Deputy Assistant Attorney General SigalM ndelker Deputy Assistant Attorney General Andrew Oosteibaan Chief CEOS Office of the Deputy Attorney General fylarjr, Deriuty Attcirney, Tginerar John Roth Senior Associae Deputy. ArLorne, Ger ,ral A. ruary — May 15, 2008: Review by CEOS and the•Criminal Division ary 21, 204)8, soon after the CEOS Trjal Attorney met with victims,, Ocisterbaan owitz about CEOS' s role. In a subsequentemail to Villa -Ma, Sloman, and Senior, explained: I told [Lefkowitz] that 'all I. want to do is help the process move forward, and if they think we best help the:process by taking a fresh and objective look at the case and their arguments [then] that is what I want to do. I told him that if that's what theywant — if that is what will help the process to move forward — then. '1 don't think it's advisable for GEOS to partner with the OSAO•on the case. He wants to think about That (and probably talk to his co-counsel. about 104 CA/Aronberg-000572 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736210 • • whether it is better to have us partnered in the case or just serve a review function) and he said he'd get back to me later today. Oosterbaan told OPR that this email reflects that he likely told Acosta that he intended to limit CEOS's role to review only, and Acosta asked him to "make sure the defense is okay with that," to preempt a possible defense complaint about CEOS's involvement in the review. Oosterbaan explained to 0PR that "the defense ke[pt] bringing up new arguments and new problems and [the USAO was saying] look if we're going to do this, if you've got a problem with it, tell us now." By February 25, 2008, Lefkowitz told Oosterbaan, who informed Sloman, t OS role should be "review only." Lourie had just then left the Department to ente to p ctice, and Oosterbaan continued to keep his direct supervisor, Deputy Assista y General Mandelker, informed of the defense team contacts. Sloman emailed Lefk tz a CEOS was "ready to proceed immediately" with a review of the matter. Sloman viscd L owitz that "in the event CEOS decides that a federal prosecution should not be undeti ken against Mr. Epstein, this Office will close its investigation," but that, "should CE disagree with Mr. Epstein's position, Mr. Epstein shall have one week to abide by [the NP oman forwarded this email to Villafafla, who responded, "Why would we possibly let tyke e same deal after all he has put us through? And after we have discovered 6 new girl The defense soon signaled that the CEOS Department's involvement. On February 29, 2 Oosterbaan on March 12, 2008.'63 Starr spo clear that [the defense team would] want a prosecution." On March 6, 2008, Acostaalerte had called him to express "concern" abouthipsterbaan's participation in the case, and indicated that "they may ask for more senio n ol ent." Acosta "informed them that they certainly had the right to ask whomever thep Iwhatever they thought appropriate, and that whatever process would be given thus up whomever they asked." not end Epstein's requests for the otZitz requested a defense meeting with nt Attorney General Fisher and "made it h her if [CEOS] decid[ed] to support the oman and Oosterbaan that Starr and Lefkowitz lowed up with Acosta in an email: iati that you will afford us as much time as Main Justice is appropriate for it to conduct a review of this matter. ou have suggested, we will initiate that review process with re Oosterbaan, and engage in a discussion with him about all of e facts and circumstances, as well as the legal and policy issues associated with this case. . . . However, due to our misgivings (engendered because Drew has told us that he sees himself as a prosecutor and has already made clear he would be ready and willing to prosecute this case himself[)] we may well find it necessary to 16$ The defense team meeting with CEOS was originally to be set for late January, but never got scheduled for that time. On February 25, Sloman informed Lefkowitz that the USAO was "very concerned about additional delays" in the Departmental review process, but would agree to a short extension of the March 3 deadline "to provide CEOS time to engage in a thorough mview." 105 CA/Aronberg-000573 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736211 • • appeal an adverse determination by him within the DOJ. Ken [Starr] and I appreciate that you understand this and have no objection to our seeking appellate review within DOJ. Start, Lefkowitz, ane Weinberg attended the March 12, 2008 meeting, as well as the former Principal Deputy Chief of CEOS, who had joined the Epstein defense team. Oosterbaan, Mandelker, and a current CEOS Deputy Chief represented the Department. The current CEOS Deputy Chief told 0PR that it was primarily a "listening session" with Starr doing most of the presentation. Oosterbaan told OPR that he recalled "some back and forth" b use the defense team was saying "some outrageous things." Both Oosterbaan and his Deput of were disturbed that the former CEOS Principal Deputy Chief, who had been an aggressi v for child exploitation prosecutions, was supporting the defense position, although ding to the CEOS Deputy Chief, the former Principal Deputy Chief gave only a "weajrphj t was not effective. After the meeting, Starr and Lefkowitz made multiple written s mts ons to the Criminal Division. One submission provided a lengthy list of USAO actig tha e caused us serious concern," including the following: "Federal involvement in a state criminal without any communication with state authorities".1 the issuance of legal process and nt equests for items that "had no connection to the con is '; the nomination "of an in ly associated with one of the Assistant United State me involved in this case" to serve as the victims' attome rive; the "insisten make sworn the pu law ft inst E notification letter inviting the victims to at Epstein's sentencing; and existence of a "relationship" between Sloman and a enting several of the alleged victims in civil suits ein. 165 complaint appeared to be at odds with Villafatla's understanding that the defense objected to USAO coma 'ons with the gale authorities. In November 2007, Simian noted to Lefkowitz, "Your recent COITC'.. ' crcc attempting to restrict our Office from communicating with the State Attorney's Office . . . raises concern" In a March 2008 email reporting to CEOS about the state case. Villafatia noted that she did not know whether a state "misdemeanor deal [was' back on the table because the defense demanded tint we have no contact with the Slate Attorney's Office, so I haven't spoken with the [Assistant State Attorney] in over 6 months." Villafana later reported to Acosta and Siouan that when Krischer coinplained to her that the USAO had not been communicating with him, she explained to Krischer that "it was the defense who were blocking the channels of communication." I65 In approximately 2001, Sloman briefly left the USAO and for a few months was in private practice with a Miami attorney, whose practice specialized in plaintiffs' sexual abuse claims. During 2007-2008, the attorney 106 CA/Aronberg-000574 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736212 • • In another letter, Starr renewed the defense accusation that the USAO improperly disclosed information about the case to the media, and accused Sloman and Villafafta of "encouraging civil litigation" against Epstein. Finally, in a letter to Assistant Attorney General Fisher on May 14, 2008, Starr thanked her for having spoken with him the previous day, reiterated the defense team's various complaints, and asked her to meet with him, Lefkowitz, and Whitley. Meanwhile, Oosterbaan's Deputy Chief drafted a decision letter to be sent from Oosterbaan to Lefkowitz, and over the course of several weeks, it was reviewed by and received input from Deputy Assistant Attorney General Mandelker and Assistant Attorney General Fisher, well as the Criminal Division's Appellate Section (regarding certain legal issues) an ice of Enforcement Operations (regarding the Petite policy). Oosterbaan told OPR that, i ding the defense submissions on a wide variety of issues and complaints, CEOS's red9was imited to determining whether there was a basis for a federal prosecution of Epsteir Oosterbaan's letter, sent to Lefkowitz on May 15, 2008, noti CEOS had completed its independent evaluation of whether prosecu criminal violations "would contradict criminal enforcement polic 'nter that CEOS's review addressed the "narrow question" of whe federal prosecution, and that CEOS did not conduct a de n relating to federal statutes that did not pertain to child ex or the prosecutorial misconduct allegations. The tette material relevant to its limited review of the matter in this case would not be improper or inapp discretion to authorize prosecution in this On May 19, 2008, Lefkowitz asked that Acosta "not shunt me off t of the request for a meeting: (I) would involve a "novel appli federal prosecution would n can; 167 (3) CEOS did not ad new evidence," in th fomi o ense team that Epstein for federal The letter specified timate basis existed for a of the facts, analyze issues review the terms of the NPA based on its examination of the concluded that "federal prosecution that Acosta "could properly use his o Acosta to request a meeting and specifically r staff." Lefkowitz made several points in support er acknowledged that federal prosecution of Epstein evant federal statutes;166 (2) CEOS's conclusion that use of discretion" was "hardly an endorsement" of the prosecutorial misconduct allegations; and (4) "critical ense counsel depositions of victims confirmed "that representediEpste in giros. The Epstein defense team alleged in the letter that Sbman's past association with the attorney ca d Shoran to take actions to favor victims' potential civil lawsuits against Epstein mr. Oosterbaan's letter stated, "Mr. Acosta can soundly exercise his authority to decide to pursue a prosecution OCR though it nught involve a novel application of a federal statute." This statement referred to a defense argument basal on a prior Departmental expression of concern about a Congressional proposal to expand federal law to "adult prostitution where no force, fraud or coercion was used." Oostabaan stated that "the Department'seffortsare properly focused on the commercial sexual exploitation of claildrcn"—even if wholly local—and "the exploitation of adults through force, fraud, or coercion." He then observed that the fact "that a prosecution of Mr. Epstein might not look precisely like the cases that came before it is rim dispositive.- 167 0osterbaan began his letter. however, by [making it clear that CEOS had considered "the narrow question as to whether titre is a legitimate basis for the U.S. Attorney's Office to proceed with a federal prosecution of Mr. Epstein.- 107 CA/Aronberg-000575 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736213 • • federal prosecution is not appropriate in this case."t65 Lefkowitz alluded to the possibility of seeking further review of the matter by the Deputy Attorney General or Attorney General, should the defense be unable to "resolve this matter directly with" Acosta. Acosta declined the request to respond personally and directed Lefkowitz to communicate with the "trial team." That same day, Sloman sent Lefkowitz a letter asking that all further communication about the case be made to Villafana or her immediate supervisor, and reiterating that Acosta would not respond personally to counsel's email or calls. Sloman noted that the USAO had "bent over backwards to exhaustively consider and re-consider" Epstein's obj s, but "these objections have finally been exhausted." Sloman advised that the USAO wo t inate the NPA unless Epstein complied with all 'of its terms by the close o on June 2, 2008. D. May — June 23, 2008: Review by the Office of the Depu Also on May 19, 2008, Starr and Whitley co-authored a letter t Mark Pilip asking for review "of the federal involvement in a quintesse the letter, they acknowledged that CEOS had recently compl Epstein case, but contended that "full review of all the fac the Justice Department." They argued that federal pro that "the irregularity of conduct by prosecutors and th any reasonable interpretation of the scope of a pro with a second letter on May 27, 2008, in which t enforcement of federal criminal laws" and " extension of federal laws . . . to a promine required Departmental review. On thi arena only by virtue of his dose pets there was "little doubt" that the U if Mr. Epstein were just anot Epstein's connection to Pres in the investigation was due oli cs. In the May 27, existing June 2, 2008 d for review of case " General w Wa May 28, com General Attorney General state matter." '69 In ery limited review" of the needed at senior levels of ern was "unwarranted," and terms of the [NPA] are beyond ponsibilities." They followed up "the bedrock need for integrity in the questions raised by the unprecedented re who has close ties to President Clinton" t, they argued that Epstein "entered the public ation with former President Bill Clinton," and that r would have contemplated a prosecution in this case This was the first defense submission mentioning and raising the insinuation that the federal involvement etter to the Deputy Attorney General, Starr and Whitley used the dli e for the entry of Epstein's guilty plea to argue that it made the need 1 the more exigent." John Roth, a Senior Associate Deputy Attorney dling the matter, instructed the USAO to rescind the deadline, and on an notified Lefkowitz that the USAO had postponed the deadline pending e review by the Deputy Attorney General's office."° Meanwhile, the Criminal 161 Under Florida Rule of Criminal Procedure 3.220, defendants are permitted to depose victims, and Epstein's counsel utilized that procedure aggressively and expansively to conduct sworn interviews of multiple victims, including victims who were not pan of the state prosecution, to learn infonnation about the federal investigation 169 In addition to (raving served as U.S. Attorney in two different districts, Whitley had served as Acting Associate Attorney General, the Depanment's third-highest position. 170 On May 28, 2008, Attorney General Mulcasey was in Miami for unrelated events and had lunch at the USAO with Acosta and other senior managers. OPR found no indication that the Epstein matter was discussed. 108 CAJAronberg-000576 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736214 • • Division forwarded to Roth the prior defense submissions, describing them as "an enormous amount of material" regarding the Epstein matter.. On June 3, 2008, Sloman sent to Roth a lengthy letter from Sloman to the Deputy Attorney General, recounting in detail the history of negotiations with Epstein's counsel culminating in the NPA, and addressing Epstein's claims of professional misconduct. Among the documents submitted with the letter were the prosecution memorandum, one of the proposed charging documents, and the NPA with its addendum and Acosta's December 19, 2007 letter to As the review was ongoing in the Office of the Deputy Attorney General, State ttomey Krischer mentioned to the USAO's West Palm Beach manager that Krischer and Ep et s local defense attorney Jack Goldberger had arrived at a resolution of Epstein's case that u olve a 90-day jail term, but Krischer provided no further information. Upon leaming Vi afaha wrote to her immediate supervisor: "Please tell me that you are joking. a uld throw him [Epstein] a party and tell him we are sorry to have bothered him." Vill er immediate supervisor later had phone and email exchanges with Krischer and wit p t oval counsel to insist that the state plea comply with the terms of the NPA, or "we will sicjer it a breach of the agreement and proceed accordingly."17I Deputy Attorney General Filip told OPR he had ne f Epstein before receiving Stares letter. Following the office's standard protocol, I r was handled by John Roth, an experienced senior federal prosecutor who had se ears before as an AUSA in the ici r Epstein. Roth explained to OPR USAO. Roth also told OPR that he had never bef that he did not conduct an independent investi *o , ew witnesses, or meet with Epstein's by Sloman to the Deputy Attomey General' ice, well as materials that the defense team and counsel, and instead limited his review to n t als submitted by Epstein's attorneys and d the USA() had previously provided to OS the Criminal Division front office, and that CEOS famished to him. Roth disc atter with two senior staff colleagues, as well as with the Deputy Attorney Genera a reviewed the submissions. Roth told OPR that i was t nderstanding that Epstein had reneged on the NPA, and because he believed the NPA s 'dead letter," he did not review the terms of the agreement or ratify it post hoc. On e other nd, Deputy Attorney General Filip told OPR he understood that the NPA was still in e that Epstein was trying to undermine the federal jurisdictional basis for the agreeme A rt rom addressing Epstein's federalism arguments, however, Deputy Attorney Gen Filip d d not believe it was the "mission" of the Office of the Deputy Attorney General to ie Epstein case de novo or to examine the NPA's terms or determine whether the NPA "right balance" between state and federal punishment. He told OPR, "[W]e heard . .. [Epstein] wanted a meeting to argue for relief. We didn't give him a meeting n t give him [any] relief." Deputy Attorney General Filip told OPR that no one in his offi who coked at Epstein's arguments "felt that it was a sympathetic appeal." In particular, he told OPR that defense counsel's argument that there was no basis for a federal prosecution was "ludicrous," and the assertion that the USAO's investigation of Epstein was politically motivated "just seemed unserious." Villarana urged Slontan, "Someone really needs to talk to Bum." 109 CAffironberg-000577 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736215 • • On Monday, June 23, 2008, Roth sent a brief letter to Starr and Lefkowitz informing them that the office had "completed a thorough review" of the USAO's handling of the Epstein matter and did not believe intervention by the Deputy Attorney General was warranted in view of the "considerable discretion" vested by the Department in U.S. Attorneys. He added, "Even if we were to substitute our judgment for that of the U.S. Attorney, we believe that federal prosecution of this case is appropriate." Immediately after receiving a copy of Roth's letter, Villafaha notified defense counsel that Epstein would have until close of business on Monday, June 30, 2008, to comply with e NPA by entering his guilty plea, being sentenced, and surrendering to begin serving hiss to ce. On June 26, 2008, Roth alerted the Office of the Attorney General that Epstein's coun to contact the Attorney General to request additional review and urged the Attom G neral not to take defense counsel's calls. Roth told OPR that he was concerned that Eps would try to take a further appeal in order to delay resolution of the case. Meanwhile, Starr sent a concluding email to Acosta, acknowled y had reached "the end of a long and arduous road" and adding, "While I am obviousl very py at what I believe is the government's treatment of my client, a man whom I have deeply admire, I recognize that we have filed and argued our 'appellate motions' and I ould like to have . . . some closure with you on this matter so that in the years to co of us will harbor any ill will over the matter." X. JUNE 2008 - JUNE 2009: EPSTE HIS PLEAS AND SERVES HIS CUSTODIAL SENTENCE On Friday, June 27, 2008, Vi ed her requests to Epstein's local attorneys Goldberger and Black for a copy of ea agreement reached with the State Attorney's Office, noting that their failure t vi was a material breach of the NPA. After receiving and reviewing the plea agreem t ich was not yet signed, Villafaha sent another letter to Goldberger and Black, info tng th at the proposed sentencing provision did not comply with the requirements of the NPA. fically, as written, the plea agreement called for a sentence of 12 months in "the Pal Beach my Detention Facility," followed consecutively by "18 months Community Control"~I special condition that the defendant serve "the first 6 months [of community con I] in e Palm Beach County Detention Facility." Villafana objected to the community s c I prov sion, reminding Goldberger and Black that the NPA required Epstein to "make a linding mmendation of eighteen months imprisonmeni, which means confinement twenty-f r h rs day at the County Jail." In a subsequent email to Sloman, Villafaha recounted that s ken about the issue with Goldberger, who "'swore' that Epstein would be in c ours-a-day during the community confinement portion of his sentence." Villafana add that Goldberger "let it slip that Epstein would not be at the jail, he would be at the stockade . . . . S ce we specifically discussed this at the meeting with [the State Attorney] months ago that Epstein would be at [the jail], this certainly violates the spirit of the [NPA] agreement.i173 Villafaha told Sloman,"[S]omething smells very bad." 172 The Main Detention Center for Palm Beach County is a facility housing maximum, medium, and minimum custody adult males, as %yell as juvenile and special population male and female inmates. See 110 CA/Aronberg-000578 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERIC. 3/28/2023 2:18:34 PM EFTA02736216 The next day, Villafana asked Goldberger to change the plea agreement by inserting the word "imprisoned" after "6 months," and Goldberger agreed to do so. Villafana, however, did not ask that the agreement be amended to clarify that the reference to "thei Palm Beach County Detention Facility" meant the jail, rather than the Stockade. The final signed plea agreement form further clarified the sentence, providing that after serving 12 months in the Palm Beach County Detention Facility, Epstein would be "sentenced to 6 months in the Palm Beach County Detention Facility . . . to be served consecutive to the 12 month sentence," followed by "12 months Community Control." The word "imprisoned" was hand written after "6 months" but then crossed out and replaced by' jail sentence."' A. June 30, 2008: Epstein Enters His Guilty Pleas in State Court Epstein, with his attorney lack Goldberger, appeared in Palm B court on June 30, 2008, and entered guilty pleas to the indictment charging him wit one lony count of solicitation of prostitution and to a criminal information charging hi t h elony count of procurement of a minor to engage in prostitution." At the plea heart whi h Villafafia and the FBI case agent attended as spectators, Assistant State Attorney Be lay not proffer the facts of the case; instead she only recited the charging language dictment and the criminal information: [B]etween August 1, 2004 and Octobe the defendant in Palm Beach County did solicit o r omeone to commit [prostitution] on three or more ions. And . . . between August 1, 2004 and October , defendant did procure a minor under the age of I8 mm prostitution in Palm Beach County also.'" The court found this to be " ut t factual basis to support the pleas," and engaged in a colloquy with Belohlavek em's victims: The Court: Are there more than one victim? Ms. Be There's several. rghnside-pbso/corrections/generall. The "Stockade" was a "lower security 'camp-stylc' facility" h the Palm Beach County Sheriffs Office. Both were administered by the Sheriffs Office. lea in the Circuit Court, signed June 30, 2008, and filed in court. Villafafta complained to Goldberger when she learned later about the change from "imprisoned" to "jail sentence." I" The Information is attached as Exhibit S. i's State v. Epstein, case nos. 06-CF-9454 and 08-CF-9381, Transcript of Plea Conference at 41-42 (Fifteenth Judicial Circuit, June 30, 2008) (Pica Hearing Transcript). Belohlavek told OPR that reciting the statutory language of the charge as the factual basis for the plea was the typical practice for a state court plea.- Ill CAJAronberg-000579 FILED: PALM BEACH COUNTY, FL, -ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736217 • • The Court: Are all the victims in both these cases in agreement with the terms of the plea? Ms. Belohlavek: I have spoken to several myself and 1 have spoken to counsel, through counsel as to the other victim, and I believe, yes. The Court: And with regard to the victims under age eighteen, is that victim's parents or guardian in agreement with the plea? Ms. Belohlavek: That victim is not under age 18 any more a that's why we spoke with her counsel.0 The Court: Ms. Belohlavek: (And she is in agreement with the lea.i....) Yes . 176 When the court asked if the plea was "in any way ti by any civil attorneys or other jurisdictions," Goldberger spoke with the judge at sidebar and disclosed the exist agreement with the USAO, and the court ordered tha romises or representations avek, with Epstein present, confidential" non-prosecution be filed under seal with the court. After the court accepted Epstein's gull and imposed stntence•on him pursuant to the plea agreement, Epstein was taken into c sect in serving his sentence immediately. In the aftermath of the plea, nu stn rduals familiar with the investigation expressed positive reactions to the outcom a fans received several congratulatory messages. Oosterbaan wrote, "Congratulat s, at long last! Your work on this matter was truly exceptional, and you obtained(a4te cant result that will serve the victims well." One senior colleague who was familiar with the se noted, "This case only resolved with the filthy rich bad guy going to jail because of your-dedication and determination." Another wrote, "If it had not been for you, he woul ave gotten away with it." The CEOS Trial Attorney who had worked briefly with Villafarla t , "But for your tenacity, he'd be somewhere wining another child's life." One victi y stated, "[G]reat job of not letting this guy off." But Villafaila was not satisfied with411 Qutcome, responding to one colleague, "After all the hell they put me through, I don't feelAi el ting l8 months. He should be spending 18 years in jail." ater publicly stated that the FBI Special Agent in Charge called him "to offer ons" and "to praise our prosecutors for holding firm against the likes of Messrs. Black, 96 Plea Hearing Transcript at 20, 42. OPR was unable to determine to which victims Btlohlavek was referring. and Beloldovek did not recall during her OPR interview, but it is possible that she was referring only to the victims of the charged crimes rather than to all of the victims identified in either the state or federal investigations. Bcloldavek told OPR that because of the nature of the charges (that is, involving prostitution), she did not know whether "technically under the law' the girls were "victims" whom she was required to notify of the plea hearing. 112 CA/Aronberg-000580 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736218 • • Dershowitz, Lefkowitz and Starr."'" In that same later public statement, Acosta noted that he received communications from Dershowitz, Starr, and Lefkowitz, who "all sought to make peace" with him; Acosta referred to it as "a proud moment." On July 7, 2008, an Epstein victim filed an emergency petition against the Department, in federal court in Miami, alleging violation of her rights under the CVRA; a second victim joined the petition soon thereafter. The history of the litigation and issues relating to it are discussed in Chapter Three of this Report. B. Epstein Is Placed on Work Release A few days after Epstein's guilty plea, Villafaila reported to Sloman t psterfi was incarcerated at the low-security Stockade, rather than the Main Detention ere county prisoners were usually housed. She also told Sloman that according to the Sh ice, Epstein was eligible for work release. Although the USAO had made clear that-if expect Epstein to be incarcerated 24 hours a day, every day, the subject of work release had not been addressed explicitly during the NPA negotiations, and the NPA itself was silent on the issue. Epstein's acceptance into the work release program as a convicted sex offender was seen by many as another special benefit given to Epstein. Because the de to allow Epstein into the work release program was made by the Palm Beach Sheriff's t R did not investigate whether any state, county, or Sheriff's Office rules were vi t PR did examine the USAO's consideration of work release prior to signing the a subsequent unsuccessful efforts to ensure that Epstein remained incarcerated 24 hgyfs ay. The first specific reference to wo when Lefkowitz asserted, in his Octob sentence does not explicitly violate t available to him, including but n made weeks after the NPA was signed, etter to Acosta, that, "so long as Mr. Epstein's the [NPA] he is entitled to any type of sentence gain time and work release." In November 2007, man lft an exchange of letters with Lefkowitz about the USAO's understanding that Epstein a to serve his full jail term in "continuous confinement," pointing out that the NPA "cl indicates that Mr. Epstein is to be incarcerated." Sloman noted that Florida's Depa f Corrections's rules did not allow individuals registered as sexual offenders to part ipate rk release, and thus Epstein would not be eligible for a work release program. Slo conch ed that the USAO "is putting you on notice that it intends to make certain that Mr. E treated no better and no worse than anyone else' convicted of the same offense,' at Epstein were to be granted work release, the USAO would "investigate the MEMO ception was granted in Mr. Epstein's case."178 ever, also in November, State Attorney Krischer told Sloman that Epstein was, in fact, eligib1 rto petition for work release because his sexual offender registration would not take place In Letter from R. Alexander Acosta "To whom it may concern" (Mar. 20, 201 I), published online in The Daily Beast. The FBI Special Agent in Charge told OPR that he had no recollection of such a call, but acknowledged that it could have occurred. Sloman provided a draft of this letter to Acosta for his approval before the letter was sera to Lefkowitz. 113 CA/Aronberg-000581 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736219 • • until after Epstein completed his sentence, but that Krischer would oppose such a petition "if it is in the agreement."'" On November 16, 2097, the case agents met with Belohlavek and asked if the State Attorney's Office would oppose a request that Epstein be granted work release. Belohlavek was noncommittal, and when the agents asked that she include language in the state's plea agreement prohibiting Epstein from participating in work release, she responded that she would have to discuss the issue with the State Attorney.'" Krischer later told OPR that work release was "within the control of the Sheriff's Office, not my office." The state's plea agreement with Epstein did not address the issue of work release. The day after Epstein entered his June 30, 2008 plea, Villafaha and h supervisor met with a Palm Beach Sheriff's Office official to discuss work Villafaha, the official told them, "Epstein would be eligible for work release and work release," a statement that contradicted the information the case agents jail supervisor the previous November, as well as statements made by Goldberger to Villafaha just days before the plea was entered, w [Villafaha] that [Epstein] would not get work release." Villafana a official that although Epstein told the court during his plea pr day" for a "couple of years" at the "Florida Science Founda until November 2007.181 Moreover, the address Epstein Science Foundation" was the office of Epstein's atto supervisor asked that the Sheriffs Office notify the mg to ensure that Epstein did not get or yAcosta told OPR that he was aware Vill as work release, and he would not have contra er orts. Acosta explained that the USA() expected Epstein would be "treated just lik on else," but that, as shown by "our subsequent communications with the [S]tate [Mao ice," having Epstein on work release "was not what our office envisioned." In August 2008, Villa di defense attomey Black about ensuring Epstein's compliance with the NPA, a e issue of work release. Villafana later reported to Acosta and Sloman that Black assu e had "reminded the team that . . . 18 months IN JAIL is a material term of the ement. ast ,ix The US • nev r ived notice of Epstein's work release application. On October 10, 2008, less th ree-and-a-half months after Epstein entered his guilty plea, the Palm Beach Sheriff's him into the work release program, permitting him to leave the Stockade to Sloman, Krischer explained that even without registration Epstein would be "treated" as a "sex that •just like any other sex offender, he can petition the court for work release." iso n the November 16, 2007 email, on which she copied Acosta, Villafana also indicated that site "reviewing all of the statutes" to Menem whetter there was any impediment to a state judge granting Epstein work release. In a subsequent email, the FBI case agems informed Villafada that they had also spoken with a "jail supervisor," who advised them that although Epstein, as a sexual offender, would not qualify for work release, the judge could nevertheless order him placed on work release if he was sentenced to a year or less of incarceration. 161 During the plea hearing, Epstein told the court he was "President" of the Florida Science Foundation, it had been in existence for 15 years, and he there "every day." Plea Hearing Transcript at 27-29. 114 CA/Aronberg-000582 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM release ediate g to e placed on ven by a fens a omey Jack en cificall$: told ed e Sheriff's Office e had worked "every t entity did not even exist • the court for the "Florida dberger. Villafana and her ern applied for work release. EFTA02736220 • • for up to 12 hours per day, six days per week, to work at the "Florida Science Foundation" office in West Palm Beach.1R2 In mid-November 2008, Villafaha learned that Epstein was on work release. She notified Acosta, Sloman, and the USAO Criminal Division Chief of this development in an email, and asked, "Can I indict him now?" On November 24, 2008, Vitiates sent defense attorney Black a letter, notifying him that the USAO believed Epstein's application to and participation in the work release program constituted a material breach of the NPA. Villafaha reminded Black that she had "more than a dozen e-mails" expressing the USAO's "insistence" that Epstein be incarcerated for It onths, in and that her June 27, 2008 letter to counsel made clear that this meant "confinement wenty- four hours a day." Villafana noted that Goldberger had not inserted the word "i 'sorted" into the plea agreement, as he had agreed to do, but instead inserted the term "jail sentence" Villafaha told counsel: The [USAO's] Agreement not to prosecute Mr. Epstein, was based' upon its determination that eighteen months' incarceration (i.e., confinement twenty-four hours a day) was sufficient to`satisfy the federal interest in Mr. Epstein's crimes. Ac iii1Wgly, the U.S. Attorney's Office hereby gives notice that the [NPA] by failing to remain incarcerat for the eighteen-month term of impris will exercise any and all rights Mr. Epstein immediately ceases agreement. ein has violated ur hours a day e United States the [NPA] unless rom his breach of this According to Villafaha, the FB1,case ent spoke with the Stockade's work release coordinator and reported back that that thew srk release coordinator told her he had been led to believe the government knew Epstein had applied for the program, and that he had been threatened with legal action if he did not allowEpstein to participate in work release. On November 26, 2008, the USAO advised the Department that Acosta was recused from all matters involving the law firm of Kirkland & Ellis, which was still heavily involved in the Epstein case, because Acostai was discussing with the firm the possibility of employment.'" As a result, Sloman became t senior USAO official responsible for making final decisions related to Epstein. Epste that E the ember 26, 2008, Black responded to Villafaiia's letter, acknowledging that ing his sentence in the Palm Beach County Work Release Program, but denying sin breach of the NPA. 184 Black noted that the NPA did not prohibit work release; pressly provided that Epstein was to be afforded the same benefits as any other inmate; He Michele Dargan and David Rogers, "Palm Beach sex offender Jeffrey Epstein 'treated differently,"' Palm Beach Daily News, Dec. 13, 2008. 110 The mensal was formally approved by the Department on December 8, 2008. 184 Black forwarded the email to Etonian, noting that Villafaiti "is very concerned about anything Epstein does" and that the defense team would "abide by Slotnan's decision on the issue. 115 CA/Aronberg-000583 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736221 • • Florida law treated work release as part of confinement; and the Palm Bach County Sheriff's Office had discretion to grant work release to any inmate. Black also. claimed that Acosta "recognized that Mr. Epstein might serve a portion of his sentence through the Work Release Program" and pointed out that the December 6, 2007 draft victim notification letter sent to Lefkowitz for review specifically referred to the victim's right to be notified "if [Epstein] is allowed to participate in a work release program." On December 3, 2008, in advance of a scheduled meeting with Black, Villafaha sent Sloman and Criminal Division Chief Senior an email about Epstein's participation in e work release program: It appears that, since Day 1, Goldberger and Krisher (sic) . . . ha been scheming to get Epstein out on work release. For examp indictment incorrectly charges Epstein for an offense thft have made him ineligible for work release if it had ',earth correctly. (Remember that Krisher [sic] also went along ith I ing us believe that Epstein was pleading to a registr: when Epstein's folks and Krisher [sic] believed that offense was not registrable.) Krisher [sic] and Goldb a so old us that Epstein would be housed at the Palm [B ] Jail, not the Stockade, but he would not have been b work release if at the jail. . . . Ai l.As part of his work release, s ' hired off-duty Sheriff's deputies to provide him • ' rot ion." It appears that he is paying between $3000 10 r week for this service, despite the work release rules yone from the Sheriffs Office (and the Sheriff's Offs tt I m having "any business transactions with inmates . are in the custody or supervision of the Sheriff.. . ." Villafaha added that s e and heTllfrmediate supervisor believed that the USAO "should not budge on the 24-hour-a-day i ion" requirement. Referring to the CVRA litigation, Villafaha also pointed out that o vic sad brought suit against the USAO "for failing to keep them informed about the inv anon,' and the office had "an obligation to inform all of the victims upon Epstein's r mber 11, 2008, Villafaila wrote to the Corrections Division of the Palm Beach s Office to express the USAO's view that Epstein was not eligible for work release an a rt the Sheriff's Office that Epstein's work release application contained several inaccu cies and omitted relevant information. Villafaha pointed out that Epstein's application identified his place of employment as the "Florida Science Foundation," and the telephone number listed in the application for the "Florida Science Foundation" was the telephone number to the law firm of Epstein's attorney Jack Goldberger. Villafaha also noted that the individual identified in the work release file as Epstein's "supervisor" at the "Florida Science Foundation" had submitted publicly available sworn filings to the Internal Revenue Service indicating that Epstein worked only one hour per week and earned no compensation, but that same individual had represented to 116 CA/Aron berg -000584 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736222 the Sheriff's Office that Epstein's duties required him to work six days a week for 12 hours per day. Finally, Villafana pointed out that Epstein's purported "supervisor"—who as the Foundation's vice president was subordinate to Epstein, the Foundation's president—had promised to alert the Sheriff's Office if Epstein failed to comply with his work schedule, but the "supervisor" lived and worked in the New York metropolitan area and was unable to monitor Epstein's activities on a day-to-day basis. The Sheriff's Office neither acknowledged nor responded to Villafana's letter. In March 2009, Sloman met in Miami with Dershowitz for, as Dershowitz chars 'zed it in a subsequent email, "a relaxed drink and conversation," which included a dis to of the Epstein case. After that encounter, Dershowitz emailed Sloman, expressing aApprecia for Sloman's "assurance that the feds will not interfere with how the Palm Beach shefiff administers" Epstein's sentence "as long as he is treated like any similarly situated inmate " Slornan responded: Regarding Mr. Epstein, the United States Attorney's Office will not interfere with how the Palm Beach Sheriff's Office administers the sentence imposed by the Court. That being said, th. doeiheeimean that the USAO condones or encourages the P mitigate the terms and conditions of his sentence. Furthe not mean that, if contacted for our position concemi the custody or in-home detention, we would not obj T ear, if contacted we will object. Naturally, I also o one on behalf of Mr. Epstein will use my assuran to to affirmatively represent ;S t to PBSO that the USAO doespOt o • an alternative custody or home detention. A week later, Dershowitz Sloman's "willingness to call the on how he handled Epstein's adding,"[L]et's put any call e an again, this time expressing appreciation for advise him that your office would take no position long as Epstein did not receive special treatment, but ile." Epstein's sentence reg3REd that he be confined to his home for a 12-month period following his release from p4,son. On July 22, 2009, almost 13 months after he began serving his sentence, Epstein was releaied from the Stockade and placed on home confinement's' At this time, he registered as a sexual offender. XI. PAST-RELEASE DEVELOPMENTS ummer of 2009, allegations surfaced that Epstein had cooperated with the U.S. ffice for the Eastern District of New York's investigation of investment bank Bear Steam and that he had been released early from his 18-month imprisonment term because of that na In Florida, what is commonly referred to as house arrest is actually the Community Control supervision program. Florida Statute § 948.001(3) defines the prognun as "a form of intensive. supervised custody in the community." 1 I 7 CNAronberg-000585 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736223 cooperation.' When Villafafta spoke with attorneys in the Eastern District of New York, however, an AUSA there told Villafafta that "[t]hey had never heard of Epstein, and he had not cooperated with the Bear Stearns case.'" During her OPR interview, Villafafta told OPR that to her knowledge, the rumor of Epstein's cooperation was "completely false." Villafafta and the USAO continued to monitor Epstein's compliance with the terms of the NPA. In August 2009, Villafarla alerted her supervisors that Epstein was in apparent violation of his home detention—he had been spotted walking on the beach, and when stopped by the police, he claimed that he was walking "to work" at an office nearly eight miles from his home. illafafta passed this information along to the Palm Beach County probation office.' By September 1, 2009, Black wrote to Sloman seeking the USAO's agreement to tran of the community control phase of Epstein's sentence to the U.S. Virgin Islan maintained his "primary residence." In response, Villafafta notified Black th such a request and would view it as a violation of the NPA. Three months I Dershowitz and, among other issues, informed him that the USA() opposed earls termination of Epstein's community control supervision and would object to a r est to transfer Epstein's supervision to the U.S. Virgin Islands. After serving his year on home detention in Florid completed his sentence on % July 21, 2010. n" New York Post, July 23, 2009. 186 er, S ett su r dated sion ere pstein opposed man met with 127 York AUSA had mailed Villarada, "We're the prosecutors in lilt Bear Stearns easel . . . . We article from the New York Post and wanted to ask you about this defendant, Epstein, who we had never heard f until this morning. We've since learned that he is pretty unsavory." Villafana reported to Sloman and other supervisors that she "just got off the phone with the prosecutors from the Bear Stearns case in [the Eastern District ofl New York. They had seen lit NY Post article that claimed that Epstein got such a low sentence because he was cooperating with the feds on the Bear Steams prosecution. They had never heard of him." In a second email, she confirmed, "There has been absolutely no cooperation here or in New York, from what they told me." Black later wrote a letter to Villafana claiming that Epstein had "specific authorization to walk to work," the distance between his home and office was "less than three tidies," and when the matter was "fully investigated," Epstein was found to be in "total compliance" with the requirements of his sentence. 118 CNAronberg-000586 I II ED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736224 CHAPTER TWO PART TWO: APPLICABLE STANDARDS I. OPR'S ANALYTICAL FRAMEWORK OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy. In determining whether an attorney has engaged in professional misconduct, OPR uses the preponderance of the evidence standard ...y akelpctual findings. An attorney intentionally violates an obligation or standard when th an° y (1) engages in conduct with the purpose of obtaining a result that the obligation orslandard-tinambiguously prohibits; or (2) engages in conduct knowing its natural or probable consequence, and that consequence is a result that the obligation or standard unambiguo chhibits An attorney acts in reckless disregard of an obligation or standard when (I) t alto ey knows or should know, based on his or her experience and the unambiguous nattiTo a ligation or standard, of an obligation or standard; (2) the attorney knows or should k on his or her experience and the unambiguous applicability of the obligation or sta d d, e attorney's conduct involves a substantial likelihood that he or she will violate, or e a *illation of, the obligation or standard; and (3) the attorney nonetheless engages in the n t, which is objectively unreasonable under all the circumstances. Thus, an attorney's di ar of obligation is reckless when it represents a gross deviation from the standard of con t thaf an objectively reasonable attorney would observe in the same situation. If OPR determines that _atfiinor y did not engage in professional misconduct, OPR . ,F. determines whether the attorney_exes-cised poor judgment, engaged in other inappropriate conduct, made a mistake, or acted appropriately under all the circumstances. An attorney exercises poor judgment when, faced with alternative courses of action, he or she chooses a course of action that is in marked contrastito the action that the Department may reasonably expect an attorney exercising good judgmept‘fake. Poor judgment differs from professional misconduct in that an attorney may ac .napprOpriately and thus exhibit poor judgment even though he or she may not have violet acted in reckless disregard of a clear obligation or standard. In addition, an attorney inay..c,ex bit poor judgment even though an obligation or standard at issue is not sufficiently clear and unambiguous to support a professional misconduct finding. A mistake, on the other hand .iesults from an excusable human error despite an attorney's exercise of reasonable c tar the circumstances. attorney who makes a good faith attempt to ascertain the obligations and standards imposed on the attorney 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 to, the fact that the attorney reviewed materials that define or discuss one or more potentially applicable obligations and standards, consulted with a supervisor or ethics advisor, notified the tribunal or the attorney representing a party or person with adverse interests of an intended course of conduct, or took 119 CA/Aronberg-000587 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736225 • affirmative steps the attorney reasonably believed were required to comply ,with an obligation or standard. II. APPLICABLE STANDARDS OF CONDUCT A. The United States Attorneys' Manual Among its many provisions, the United States Attorneys' Manual (USAM) includes general statements of principles that summarize appropriate considerations to be weighed, and desirable practices to be followed, by federal prosecutors when discharging their p s utorial responsibilities 189 The goal of the USAM is to promote "the reasoned exercise o ros rial authority and contribute to the fair, evenhanded administration of the Federal cri laws," and to promote public confidence that important prosecutorial decisions will be prank t'onally and objectively on the merits of each case." USAM § 9-27.001. i4\ Because the USAM is designed to assist in structuring the decision-making process of government attorneys, many of its principles are cast in general terms:with/a view to providing guidance rather than mandating results. ld.; see also USAM § 947.120, comment ("It is expected that each Federal prosecutor will be guided by these principles in carrying out his/her criminal law enforcement responsibilities . .. . However, it is not intended that reference to these principles will require a particular prosecutorial decision in any given can't USAM § 9-27.110 comment ("Under the Federal criminal justice system, the pro uninhaswide latitude in determining when, whom, how, and even whether to prosecute fo ap ent violations of Federal criminal law."). However, USAM § 9-27.130 provides that o depart from the principles of federal prosecution articulated in the USAM may xe bjedPto internal discipline. In particular, USAM § 9-27.130 states that each U.S. Attornenhoul tablish internal office procedures to ensure that prosecutorial decisions are made at art(tplicop_riate level of responsibility and are consistent with the principles set forth in the USAM-, and that serious, unjustified departures from the principles set forth in the USAM are followenctiyiemedial action, including the imposition of disciplinary sanctions when warranted an deemotappropriate. U.S. Attorneys have "p ary authority with regard to federal criminal matters" and may modify 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 §§ 9-2.001, 9.27-140. The UM provisions are supplemented by the Department's Criminal Resource Manual, w " h *fides additional guidance relating to the conduct of federal criminal prosecut USAM Provisions Relating to the Initiation and Declination of a Federal Prosecution Federal prosecutors do not open a case on every matter referred to them. USAM § 9-2.020 explicitly authorizes a U.S. Attorney "to decline prosecution in any case referred directly to 169 In 2018, the USAM was revised and reissued as the Justice Manual. In assessing the subjects' conduct, OPR relies upon the standards of conduct in effect at the time of the events in issue. Accordingly, wdess otherwise noted, citations in this Repon are to the 1997 edition of the USAM, as revised through January 2007. 120 CA/Aronberg-000588 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736226 • • him/her by an agency unless a statute provides otherwise." Whenever a U.S. Attorney closes a case without prosecution, the file should reflect the action taken and the reason for it. USAM § 9-27.220 sets forth the grounds to be considered in making the decision whether to commence or decline federal prosecution. A federal prosecutor should commence or recommend prosecution if he or she believes that admissible evidence will probably be sufficient to obtain and sustain a conviction of a federal offense, unless (1) the prosecution would serve no federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate alternative to prosecution. A comment to this provision indicates that it is the prosecutor's task to determine whether these circumstances exist, and in making that determination, the secutor "should" consult USAM §§ 9-27.230, 9-27.240, or 9-27.250, as appropriate. USAM § 9-27.230 sets forth a non-exhaustive list of consideration t a federal prosecutor should weigh in determining whether a substantial federal intere served by initiating prosecution against a person: 1. Federal law enforcement priorities.,1% C.) 2. The nature and seriousness of the offense" 3. The deterrent effect of prosecution. 4. The person's culpability in th the offense; 5. The person's history wi o criminal activity; 6. The person's willin to rate in the investigation or prosecution 7. The prob or other consequences if the person is cony The USAM contempl j$t, on occasion, a federal prosecutor will decline to open a case in deference to pro on by the state in which the crime occurred. USAM § 9-27.240 directs that in evaluating the eness of prosecution in another jurisdiction, the federal prosecutor should weigh " 1 rele t considerations," including the strength of the other jurisdiction's interest in pra tion, the other jurisdiction's ability and willingness to prosecute effectively, and the proba or other consequences the person will be subject to if convicted in the other jurisdi t mment to this provision explains: 190 A conunent to this provision directs the prosecutor to consider carefully the extent to which a federal prosecution would be consistent with established federal prosecutorial priorities. 191 A continent to this provision explains that an assessment of the nature and seriousness of the offense must also include consideration of the impact on the victim. The comment further cautions that When restitution is at issue, "care should be taken . . . to ensure against contributing to an impression that an offender can escape prosecution merely by returning the spoils of his/her crime." 121 CA/Aronberg-000589 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736227 • • Some offenses, even though in violation of Federal law, are of particularly strong interest to the authorities of the state or local jurisdiction in which they occur, either because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by state or local investigators, or some other circumstance. Whatever the reason, when it appears that the Federal interest in prosecution is less substantial than the interest of state or local authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a Federal prosecution. Mother comment cautions that in assessing whether to defer to state or I Federal prosecutor should be alert to any local conditions, attitudes circumstances that might cast doubt on the likelihood of the state or I thorough and successful prosecution." USAM § 9-27.260 identifies impermissible considerati to initiate or decline a federal prosecution. Specifically, consideration of the person's race, religion, sex, national or beliefs; the prosecutor's "own personal feelings" a effect of the decision on the prosecutor's own p opting to decline federal prosecution, the pro are communicated to the investigating agenc 'ties, "the hips or other conducting a ng to the decision whether on may not be based on itical association, activities, or the victim; or the possible or personal circumstances. When sure that the reasons for that decision ed in the office files. USAM § 9-27.270. 2. USAM § 9-2.03 'te Policy Although the Constitution federal authorities, even when Department has a long-stand charged after the initiation o conduct.192 The gene al prina forth in USAM § 9-2. contains guideli for a ed a federal pro ion based on the substantially same act or transaction involved in a prior state or federal p The policy applies "whenever there has been a prior state or federal prosecue 1li gin an acquittal, a conviction, including one resulting from a plea agreement, or a other termination on the merits after jeopardy has attached." rcumstances in which the policy applies, a prosecutor nonetheless can initiate a new federa 'rosecution when three substantive prerequisites exist. The prerequisites are as follows: (I) The matter must involve a substantial federal interest. The determination whether a substantial federal interest is involved is made on a case-by-case basis. Matters rohibit prosecutions of a defendant by both state and charged is identical in both charging jurisdictions, the nown as the Petite policy, governing federal prosecutions tion in another jurisdiction based on the same or similar applicable to the prosecution or declination decision are set al and Successive Prosecution Policy (Petite Policy)," which ral prosecutor's exercise of discretion in determining whether to bring 192 See Rinoldi v. United States, 434 U.S. 22, 27-29 (1977); Petite v. United States, 361 U.S. 529 (1960). 122 CA/Aronberg-000590 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736228 • • that come within the national investigation and prosecution.priorities established by the Department are more likely to satisfy this requirement than other matters. (2) The prior prosecution must have left the substantial federal interest "demonstrably unvindicated." In general, the Department presumes that a prior prosecution has vindicated federal interests, but that presumption may be overcome in certain circumstances. As relevant here, the presumption may be overcome when the choice of charges in the prior prosecution was based on factors such as incompetence, corruption, intimidation, or undue influence. The presum on may be overcome even when the prior prosecution resulted in a convictio f e prior sentence was "manifestly inadequate in light of the federal interest nd a substantially enhanced sentence—including forfeiture and rest as well as imprisonment and fines—is available through the federal prosecution." (3) The government must believe that the defendant's uct nstitutes a federal offense, and that the admissible evidence probabl icient to obtain and sustain a conviction. However, the satisfaction of the prerequisites does not federal investigation or charges nor is the Depa prosecution. The Petite policy cautions that whene jurisdiction, federal prosecutors should con appropriate single forum in which to p involved." If a substantial question prosecution, the prosecutor should for resolution. Prior approval f before bringing a prosecuti 3. USAM iosecutor to proceed with a red to approve the proposed involves overlapping federal and state r state counterparts "to determine the most tisfy the substantial federal and state interests whether the Petite policy applies to a particular matter to the appropriate Assistant Attorney General ropriate Assistant Attorney General must be obtained y this policy. isions Relating to Plea Agreements Federal prosecu ave discretion to resolve an investigation or pending case through a plea agreemen S § 9-27.330; 9-27.400. Negotiated pleas are also explicitly sanctioned by Federal R e Criminal Procedure 11(c)(1). I" Regardless of whether the plea agreement is offered ge post-charge, the prosecutor's plea bargaining "must honestly reflect the totalit d se ousness of the defendant's conduct." USAM § 9-27.400, comment.' The im electing a charge that reflects the seriousness of the conduct is echoed in USAM which directs the prosecutor to require a defendant to plead to an offense that is the most serious readily provable charge consistent with the nature and extent of the As previously noted, Rule I 1(c)(1)(C) permits the panics to agree to resolve the case in exchange for a specific sentence, subject to the court's acceptance of the agreement 194 See also USAM § 9-27.300 ("Once the decision to prosecute has been made, the attorney for the government should charge ... the moss serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction."). 123 CA/Aronberg-000591 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736229 • • 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. USAM § 9-27.420 specifies: In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including: 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 peoffeor l charged; 4. The defendant's remorse or con rill and his/her willingness to assume responsibility for the onduct; 5. The desirability of prom in disposition of the case; 6. The likelihood of taitS~g a conviction at trial; 7. The probabl on witnesses; 8. The pg$ 42e.septence or other consequences if the defendant i Convieted; 9. e public interest in having the case tried rather than ch ose of by a guilty plea; i rietp„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 § 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 when, 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 conviction, bargaining for 124 CA/Aronberg-000592 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736230 • cooperation as part of a plea agreement, or compelling cooperation under a "use immunity" order. The comment observes that these alternative means "are clearly preferable to permitting an offender to avoid any liability for his/her conduct" and "should be given serious consideration in the first instance." USAM §§ 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 § 9-27.600 comment. However, USAM § 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 of major public interest." These USAM provisions do not address the uses of non-prosecutiorSeem ents in circumstances other than when needed to obtain cooperation. 5. USAM Provisions Relating to Grants of Imm Nothing in the USAM directly prohibits the government from u e criminal exposure of third parties in negotiating with a criminal defendant. In i.e provision that addresses immunity relates only to the exchange of limited immunity t tes mony of a witness who has asserted a Fifth Amendment privilege against self-incrim' tikpn. USAM §§ 9-23.100 et seq. 6. USAM/C.F.R. Provisions R>QtidktoTinancial Conflicts of Interest Department employees are expected t f, and to comply with, all ethics-related laws, rules, regulations, and policies. See USAM § 1-4.000 et seq. Specifically, a government attorney is prohibited b m statute from participating personally and substantially in any particular matt hic e has a financial interest or in which such an interest can be imputed to him. Se § 208 and 5 C.F.R. §§ 2635.401-402. In addition, a Department employee shoul from an ethics official before participating in any matter in which his impartia questioned. If a conflict of interest exists, in order for the employee to participate matter, the head of the employee's component, with the concurrence of an ethics offici ust make a determination that the interest of the government in the employee's partici utweighs the concern that a reasonable person may question the integrity of the pepart en s programs and operations. The determination must be made in writing. See 5 .R. §§ 635.501-502. Ba) th Department Policies • Department Policies Relating to the Disposition of Charges e 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 in 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" (Ashcroft Memo). The Ashcroft Memo, which explicitly superseded all previous Departmental guidance on the subject, set forth policies "designed to ensure that all federal 125 CNAronborg-000593 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736231 • • ; prosecutors adhere to the principles and objectives" of the Sentencing Reform Act of 1984, the Sentencing Guidelines, and the PROTECT Act "in their charging, case dispo;sition, and sentencing practices."'" The Ashcroft Memo directed that, "in all federal cases, federal prosecutors must charge and pursue the most serious, readily provable offense 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, bas n either the law or the evidence, as to the government's ability to prove the charge at trial. shcroft Memo explains that the "basic policy" "requires federal prosecutors to charge p all charges that are determined to be readily provable" and would yield the most su al sentence under the Sentencing Guidelines. The policy set forth six exceptions, including a catch-all excepti ts a prosecutor to decline to pursue readily provable charges "in other exceptional cir Stan " with the written or otherwise documented approval of an Assistant Attorney Gener U. mey, or "designated supervisory attorney." As examples of circumstances in ch declination would be appropriate, the Ashcroft Memo cites to situations in t. .S. Attorney's Office is "particularly over-burdened," the trial is expected to •tionally long duration, and proceeding to trial would significantly reduce the tote m cases the office could resolve. The Ashcroft Memo specifically notes that "[op e declined . . . pursuant to a plea agreement only to the extent consistent" with th tablished by the Memo. On January 28, 2005, Deputy A entitled "Department Policies and Pr reiterated that federal prosecutors "in provable offenses," and defined sentence" under the Senten statutorily required consecuti al James Comey issued a memorandum onceming Sentencing." That memorandum tie to charge and pursue the most serious readily he offenses that would "generate the most substantial nes, any applicable mandatory minimum, and any Importantly, although Ashcroft and Comey memoranda limit an individual line prosecutor's ability to ' "readily provable" charges in their entirety, no such restriction is placed upon the .S. A eys, who retained authority to approve exceptions to the policy. In addition, the prey app/ es to "readily provable" charges, thus inherently allowing a prosecutor 195 Ashcroft Memo was issued before the Supreme Cowl decided United Stales v. Booker, 543 U.S. 220 (200 which stuck down the provision of the federal sentencing statute that requited federal dist het judges to impose a seine within the applicable Federal Sentencing Guidelines range. Those Guidelines were the product of the United States Sentencing Commission, which was created by the Sentencing Refomt Act of 1984. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. 108-21, 117 Stat. 650, was directed at preventing child abuse. It included a variety of provisions designed to improve the investigation aml prosecution of violent crimes against children. Among other things the PROTECT Act provided for specific sentencing considerations for certain sex-related offenses, such as those involving multiple occasions of prohibited sexual conduct or those involving material with depictions of violence or with specified numbers of images. 126 CA/Aronberg-000594 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736232 flexibility to decline to bring a particular charge based on a "good faith doubt" that the law or evidence supports the charge. 2. 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, this memorandum notes that prosecutors can make a major contribution to the ex ditious deportation of criminal aliens by effectively using available prosecution tools for al g with alien defendants. These tools include (1) stipulated administrative deportaion in connection with plea agreements; (2) deportation as a condition of supervi ease under 18 U.S.C. § 3853(d); and (3) judicial deportation orders pursuant to 8 U.S a(d). The memorandum further directs: r ekAll deportable criminal aliens should be deported upless extraordinary circumstances exist. Accordingly, absent/such circumstances, Federal prosecutors should see the deportation of deportable alien defendants in whatever mann is deemed most appropriate in a particular case. Exceptionsjo)itis, icy must have the written approval of the United Stat See also USAM § 9-73.520. A "criminal alien" crime.196 ational who has been convicted of a Stipulated administrative deportation o can be based "on the conviction for an offense to which the alien will plead guilty," 'ded hat the offense is one of those enumerated in 8 U.S.C. § 1251 as an offense at u an alien to be deported. Under 8 U.S.C. • § 1251(aX2)(AXi), any alien r red of a crime of "moral turpitude" within five years after the date of entry (or 1 rs e case of an alien provided lawful permanent resident status), and is either senten to 4orrfrnement or confined to prison for one year or longer, is deportable. C. Case La Prosecutorial Discretion occasions, the Supreme Court has discussed the breadth of the prosecutor's discret iding whether and whom to prosecute. In Bordenkircher v. Hayes, 434 U.S. 357 0 ourt considered the propriety of a prosecutor's threat during plea negotiations to seek more ous charges against the accused if the accused did not plead guilty to the offense origin ly charged. The defendant, Hayes, opted not to plead guilty to the original offense, and 196 According to the U.S. Customs and Border Protection, -The term 'criminal alien' refers to aliens who have been convicted of one or more crimes, whether in the United States or abroad, prior to interdiction by the U.S. Border Patrol." See U.S. Dept. of Homeland Security, U.S. Customs and Border Protection, CBP Enforcement Statistics, Criminal Alien Statistics Fiscal Year 2020, available at Imps://www.cbp.govinewsroomistatskbrenforcement- statistics/criminal-alien-statistics. 127 CA/Aronberg-000595 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736233 the prosecutor indicted him on more serious charges. Hayes was thereafter convicted and sentenced under the new indictment. The state court of appeals rejected Ha'yes's challenge to his conviction, concluding that the prosecutor's decision to indict on more serious charges was a legitimate use of available leverage in the plea-bargaining process. Hayes filed for 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 Sixth Circuit concluded that the prosecutor's conduct constituted impermissible vindictive prosecution. The Supreme Court reversed the Sixth Circuit's ruling. The Court opined that "a ptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion uilty plea is involuntary in a constitutional sense simply because it is the end result of L ining process." Id. at 363. A long as the prosecutor has probable cause to believe e has been committed, "the decision whether or not to prosecute, and what charge to before a grand jury, rests entirely in his discretion." Id. at 364 (emphasis added) plained that selectivity in enforcement of the criminal law is not improper unless b unjustifiable standard such as race, religion, or other arbitrary classification. Id. These principles were reiterated in Wayte v. United S involving the government's policy of prosecuting only th u as having failed to register with the Selective Service s that the self-reported non-registrants were "vocal" op being punished for the exercise of their First argument, stating that the government has "br that the limits of that discretion are reached unjustifiable standard. Id. at 607-08. B have a discriminatory effect, the claim 0 U.S. 598 (1985), a case s who reported themselves petitioner in Wayte claimed e registration program who were . The Supreme Court rejected this in deciding whom to prosecute, and he prosecutor's decision is based on an ve enforcement policy was not intended to prosecution failed. In Imbler v. Pachtman, 42 1976), the Supreme Court considered whether a state prosecutor acting within the s as ties could be sued under 42 U.S.C. § 1983 for violation of the defendant's constituti al ri hen the defendant alleged that the prosecutor and others had unlawfully conspired t hat e and convict him. The Court held that "in initiating a prosecution and in p renting State's case," conduct that is "intimately associated with the judicial phase of the c rocess," the prosecutor enjoyed absolute immunity from a civil suit for damages. Id. t 43 n Harrington v. A/my, 977 F.2d 37 (1st Cir. 1992), the court applied Imbler to a c nge to prosecutor's decision not to prosecute. The court noted that "given the availabilit nity for the decision to charge, it becomes even more important that symmet ion be available for the decision not to charge." Id. at 41 (emphasis in origi in Ily, in an analogous area of the law, in Heckler v. Chaney. 470 U.S. 821 (1985), the Suprer 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.C. §§ 500-706. 2. 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 voluntarinesi of the resulting plea 128 CA/Aronberg-000596 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736234 • • • ! when prosecutors have used third parties as leverage in plea negotiations. Numerous courts have made clear, however, that a plea is not invalid when entered under an agreement that includes a promise of leniency towards a third party or in response to. sr tor's threat to prosecute a third party if a plea is not entered. See, e.g., United States v. 909 F.26738, 741-42 (2d Cir. 1990) (rejecting 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 Cir. 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 charg against the defendant's pregnant wife had to establish that government lacked probable cau believe the defendant's wife had committed a crime at the lime it threatened to charge State, 839 So. 2d 906, 909 (Fla. App. 2003) ("In cases involving . . . a promise prosecute a third party, the government must act in good faith . . . [and] must have pr to charge the third party."). The second context concerns situations in which courts h promises of leniency to third parties. For example, in State v. F 1997), as consideration for the defendant's guilty plea, the p open court that the government would dismiss charges aga who had all been charged as a result of the same incide to prosecute the niece and nephew, the trial court disrgj appealed. The appellate court affirmed the di principles, the niece and nephew were third-p therefore entitled to enforce it. Apart from voluntariness or prosecutor's promise not to pro prosecutorial discretion. D. State Bar Ru During the pe bar in several different which they heldylembe the U.S. Dis provisions practice, Adm' go Stat in Court .od relev e I V. breed prosecutors' r, o. 2d 944 (Fla. App. agreed and announced in dant' s niece and nephew, e state reneged and attempted arges against them, and the state ncluding that under contract law eficiaries of the plea agreement and were concerns, courts have not suggested that a party amounts to an inappropriate exercise of to this Report, the five subject attorneys were members of the d were subject to the rules of professional conduct in each state in In determining which rules apply, OPR applied the local rules of the Southern District of Florida (Local Rules) and the choice-of-law icable bar. Local Rule 11.1(f) incorporates rules governing the admission, w, and discipline of attorneys (Attorney Admission Rules).'" Attorney 4(d) provides that any U.S. Attorney or AUSA employed full-time by the t ay appear and participate in particular actions or proceedings on behalf of the United e attorney's official capacity without petition for admission. Any attorney so appearing 1% The subjects' membership in state bass other than Florida would not affect OPR's conclusions in this case. These rules have been in effect since December 1994. 129 CA/Aronberg-000597 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736235 • • is subject to all rules of the coun.199 Attorney Admission Rule 6(bX2)(A) makes clear that attorneys practicing before the court are subject to the Florida Bar's Rules of'Professional Conduct (FRPC). Moreover, the choice-of-law provisions contained within the relevant state's rules of professional conduct make the FRPC applicable to their conduct. 1. FRPC 4-1.1—Competence FRPC 4-1.1 requires that a lawyer provide competent representation to a client.200 Competent representation requires the legal knowledge, skill, thoroughness, and p aration reasonably necessary for the representation. A comment to the rule clarifies that th factors relevant to determining a lawyer's competence to handle a particular matter inclu Live complexity and specialized nature of the matter, the lawyer's general expene a la er's training and experience in the field in question, the preparation and study the le to give the matter, and whether it is feasible to refer the matter to, or associate or nsul h, a lawyer of established competence in the field." The comment further notes tharti m instances the required proficiency is that of a general practitioner." With respect toi particular matters, competence requires inquiry into and analysis of the factual and legal elements of the problem. The comment to Rule 4-1.1 explains that "[tJhe required attentidei and preparation are determined in part by what is at stake; major litigation and complex ransactions ordinarily require more extensive treatment than matters of lesser complexity an eq ence." 2. FRPC 4-1.3 — Diligence FRPC 4-1.3 specifies that a lawyer sho t reasonable diligence and promptness in representing a client. A comment to this ru lai A lawyer should pursue a matter on behalf of a client despite opposition, obstruc nal inconvenience to the lawyer and take whatever lawful and ethical measu to vindicate a client's cause or endeavor." A lawyer must exercise "zeal" in a or the client, but is not required "to press for every advantage that might be realiz 3. FRP andor in Dealing with Others FRPC 4-4.1 pr is a lawyer from knowingly making a false statement of material fact or law to a third rsot d u g the course of representation of a client. A comment to this rule explains that " tsrepr nations can also occur by partially true but misleading statements or omissions th the equivalent of affirmative false statements," and "[w]hether a particular statemenysf d b garded as one of fact can depend on the circumstances." 199 See also 28 U.S.C. § 5308(a), providing that government attorneys are subject to state laws and state and local federal court rules governing attorneys in each state where the government attorney engages in his duties. ' 00 The federal prosecutor does 1431 have an individual "client," but rather represent's the people of the United States. See generally 28 U.S.C. § 547 (duties of U.S. Attorney); 28 C.F.R. § 0.5(b) (the Attorney General represents the United States in legal matters). 130 CAJAronberg-000598 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736236 4. FRPC 0-8.4 —Conduct Prejudicial to the Administration of Justice FRPC 4-8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. FRPC 4-8.4(d) 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 v. Frederick, 756 So. 2d 79, 87 (Fla. 2000), the court noted th t FRPC 4-8.4(d) is not limited to conduct that occurs in a judicial proceeding, but can bg a lied to "conduct in connection with the practice of law." In Florida Bar v Shankman, 41 S."384 6 172 (Fla. 2010), for example, an attorney's continuous hiring and firing of fines to as the tent's matter resulted in delayed resolution of the case and constituted a violation o -8.4(d) due to the delay in the administration of justice and the increased costs to the cli nt. Ac 9 ) \ 'OPR also examined FRPC 4-3.8, Special Responsibilities of a Prosecutor. Nothing in the text of that rule. however, was relevant to the issues addressed in this Report. A comment to FRPC Rule 4.3.8 notes that Florida has adopted the American Bar Association (ABA) Standards of Criminal Justice Relating to the Prosecution Function. These "standards." however, are not binding rules of conduct but rather provide guidance to prosecutors. Indeed, the ABA has expressly stated that these standards "are not intended to serve as the basis for the imposition of professional discipline. to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate fora motion to suppress evidence or disiniss a charge." OPR does not consider the ABA standards as binding on the conduct of Department prosecutors. 131 CA/Aronberg-000599 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736237 • • [Page Intentionally Left Blank] 132 CNAronberg-0O0600 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736238 CHAPTER TWO PART THREE: ANALYSIS I. OVERVIEW Following the Miami Herald report in November 2018, media scrutiny of and public attention to the USAO's handling of its Epstein investigation has continued unabated. At the heart of the public's concern is the perception that Epstein's 18-month sentence, which res ed iln a 13- month term of actual incarceration, was too lenient and inadequately punished Ep 'n's ' inal conduct. Although many records have been released as part of civil litigati ming from Epstein's conduct, the public has received only limited information regardin .n-making process leading to the signed NPA. As a result, questions have arisen ab t cost d his staff's motivations for entering into the NPA. Publicly released communi n prosecutors and defense counsel, the leniency of the sentence, and an unusual non- sec ion provision in the NPA have led to allegations that Acosta and the USAO gave Eps theart deal" because they were motivated by improper influences, such as their p and personal relationships with his attorneys, or even corrupt influences, such as the t onal benefits from Epstein. Through its investigation, OPR has sought to er lowing core questions: (1) who was responsible for the decision to resolve the fe in gation through the NPA and for its specific terms; (2) did the NPA or any of its pro su no ate Department policies or other rules or regulations; and (3) were any of the subj ry to resolve the federal investigation by improper factors, such as corruption or fav the extent that available records and witness interviews shed light on these question R sh in detail the process that led to the NPA, from the initial complaint to the USAO intense and often confusing negotiation process. After a thorough and detailed exa thousands of contemporaneous records and extensive interviews of subjects and wi is able to answer most of the significant questions concerning the NPA's origin and dQ opment. Although some questions remain, OPR sets forth its conclusions and the bases thdm in this Part. U. ACOSTA QED AND APPROVED THE TERMS OF THE NPA AND IS ACCOU TAB E R IT Alt sta did not sign the NPA, he approved it, with knowledge of its terms. He revised NPA and added language that he thought appropriate. Acosta told OPR that he ei formed of, or had access to information concerning, the underlying facts of the pstein. OPR did not find any evidence suggesting that any of his subordinates misled him out the facts or withheld information that would have influenced his decision, and Acosta did no ake such a claim to OPR. As Acosta affirmed in his OPR interview, the "three pronged resolution, two years . . . , registration and restitution, . . . ultimately that was approved on my authority. . I approved it, and so, I . . . accept that. I'm not . . . pushing away responsibility for it." • In making its misconduct assessments, OPR considers the conduct of subjects individually. Menchel, Sloman, Lourie, and Villafana were involved in the matter to varying degrees, at 133 CA/Aronberg-000601 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736239 different points in time, and regarding different decisions. Menchel, 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 part of the most intense negotiations in September 2007 and did not see the final, signed version' of the NPA until he returned. Villafaila and Lourie participated in the negotiations, and Lourie 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's, Menchel's, Lourie's, and Villafaila's involvement, they acted with the knowledge and approval of Acosta. Under OPR's analytical framework, an attorney who makes a good ascertain the obligations and standards imposed on the attorney and to comply wi situation does not commit professional misconduct. Evidence that an attorn attempt to ascertain and comply with the obligations and standards impos limited to, the fact that the attorney consulted with a supervisor." framework is similar to a standard provision of the professional cond which specify that a subordinate lawyer does not engage in m_ •nd accordance with a supervisory lawyer's reasonable resol professional duty. See. e.g., FRPC 4-5.2(b). Therefore, i find a violation of a clear and unambiguous standard Menchel, Sloman, Lourie, and Villafaila did not con any aspect of the NPA because they acted under A HI. OPR FOUND THAT NONE OF UNAMBIGUOUS STATUTE, STANDARD, OR DEPA NEGOTIATING, APPRO A central issue OPR ad the subjects, in developin unambiguous standard estab misconduct unless a subject atto standard. OPR consid a federal court investigation NPA's pro below, decisi dicfreti and standa to in a given good faith d {fin e, but is not regard, OPR's of most state bars, that lawyer acts in an arguable question of the fact that OPR did not below, OPR concludes that onal misconduct with respect to ion and with his approval. TS VIOLATED A CLEAR AND ESgfONAL RESPONSIBILITY RULE OR REGULATION OR POLICY, IN ENTERING INTO THE NM s investigation relating to the NPA was whether any of g, or entering into the NPA, violated any clear and y rule, regulation, or policy. OPR does not find professional ey intentionally or recklessly violated a clear and unambiguous specific areas: (I) standards implicated by the decision to decline osec ion (2) standards implicated by the decision to resolve the federal a on-prosecution agreement; and (3) standards implicated by any of the ons,peluding the promise not to prosecute unidentified third parties. As discussed cl des that in each area, and in the absence of evidence establishing that his based on corrupt or improper influences, the U.S. Attorney possessed broad authority to proceed as he saw fit, authority that he could delegate to subordinates, Acosta's exercise of his discretionary authority did not breach any clear and unambiguous As a result, OPR concludes that none of the subject attorneys violated a clear and xe The failure to fully advise a supervisor of relevant and material facts can warrant a finding that the subordinate attorney has not acted in "good faith." OPR did not find evidence supporting such a conclusion hue, and Acosta did not claim that he was unaware of material facts needed to make his decision. 134 CA/Aronberg-000602 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736240 • • unambiguous standard or 'engaged in professional misconduct. in develdping, negotiating, or enteringintolhe NPA,includingits addendum. A. U.S. Attorneys Have Broad Discretion to Resolve Investigations or Cases as They Deem Appropriate, and Acosta Decision to Decline to Prosecute Epstein-Federally Does Not Constitute Professional Misconduct The U.S. Autinitys ekettite broad discretion in enforcing the nation's criminal laws.W As a general matter, federal prOsecutors"are designated by statute as the.President's del-,sates to help him discharge his constitutional responsibility to 'take Care that the Laws Ihfully executed."' ilniketStotes v. Armstrong 517 U.S. 456; 464 (1990) (quoting U.S. II, § 3). Unless Wised on an impermissible standard such as race, religion, itrary classificatioti,:a proseCulors.charging decisiOns—including declinations—ar ed by law or statute and. are not subject to judicial review. .See United Slates v. 1486 U.S. 751, 762 (1997) ("Such discretion:is an :integral feature of the criminal justices •s appropriate, so long as it is not based upon improperfactors."). Department policy guidance in effect &She time the U o standling the Epstein case helped ensure "thoreasoned exercise of prosecutorial autho , id not:require "a particular prosecutorial decision.in any given case." USAM §§9-2 0 9A. 20 (comment). Rather than • mandating specific actions, the USAM identified si efations that should. factor into a prosecutors.charging decisions, including that the was "sulaksetto effective prosecution. in anotherjurisdiction." 'USAM q927.220. y, .S. Attomeystad "plenary authority with regard. to federal criminal matters".and • ' v. or depart from the printi plea. set forth in the.USAM as:deemed necessary:in the in and effectivelaw enforcement within their individual judicial districts. USAM §§ .001 27.140, As stated in•theUSAM, "[t]tle United States Attomey,is invested by statute lion. from the Attorney General with the broadest discretion in the exercise of such e) authority," which includes the authority to decline prosecution. USAM.§ 9-2.001 In Addition, the USA emplated that federal prosecutors would sometimes decline federal prosecution in deferent a state.prosecution of the same conduct and provided guidance in the: form of factors t sidered in. making the decision, including the strength of the other jurisdiction's int' est in ro ecution, the other jurisdiction's ability and willingness to. prosecute effeetively, e pith le sentence or other consequences if the person is convicted in the other jurisdiction . § 9,27i240:2°4 A comment to this provision stated 'that the' factors are "illustrat' „a d she attorney for the government shouldal so consider any others that appear releva er in a particular case." 2°3 See. e.g., Vase, 470: U.S. m 607; United SI4te,s v. Godwin, 457 U.S. 305, 380 0.1 (1982); Bordenkircher, 434 U.S. at364;imater, 424 U.S. 409. 2°4 TIE discretionary authority; under USAM §.9.27.240 to defer prosecution in favor of another jurisdiction is distinct from the:Petite palicy,;_whicbcstablishcs guidelines for the exercise of discretion in determining whether to bring a federal prosecution. based. on conduct substantially the same as that involved. in a prior state or federal proceeding. See USAM *9,2:031. 135 CA/Aronberg-000603 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736241 • • As the 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, or the 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. B. No Clear and Unambiguous Standard Precluded Acosta's of a Non-Prosecution Agreement to Resolve the Federal Investigatiytl~f in OPR found no statute or Department policy that was violated by resolve the federal investigation of Epstein through a non-prosecution agre The prosecutor's broad charging discretion includes the option reso ving a case through a non-prosecution agreement or a related and similar mechanism, eferred prosecution 2016). These agreements it believes that a criminal lateral consequences for a ould not evade accountability sions, the choice to resolve a case on agreement "resides fundamentally agreement. United States v. Fokker Servs. B.Y., 818 F.3d 733 "afford a middle-ground option to the prosecution when, f conviction may be difficult to obtain or may result in defendant or third parties, but also believes that the altogether." Id. at 738. As with all prosecutorial c through a non-prosecution agreement or a deferr with the Executive" branch. M. at 741. ecision to OPR found no clear and unambi ard in the USAM prohibiting the use of a non- prosecution agreement in the circum sented in Epstein's case. The USAM specifically authorized and provided guidance non-prosecution agreements or deferred prosecution agreements made in exchange f r s timely cooperation when such cooperation would put the person in potential cri coal j rdy and when alternatives to full immunity (such as testimonial immunity) were' s ible or impracticable." USAM § 9-27.600 (comment).?05 The "cooperation" conte lated w cooperation in the criminal investigation or prosecution of another person. In ce umstances, government attorneys were required to obtain approval from the approp • to As stant Attorney General before entering into a non-prosecution agreement in exchange f perat on. ho ever, was not providing "cooperation" as contemplated by the USAM, and the US s s ent as to whether a prosecutor could use a non-prosecution agreement in ci other than in exchange for cooperation in the investigation or prosecution of ano r. otably, although the USAM provided guidance and approval requirements in cases involv g cooperation, the USAM did not prohibit the use of a non-prosecution agreement in other situations. Accordingly, OPR concludes that the USAM did not establish a clear and unambiguous obligation prohibiting Acosta from ending the federal investigation through a non-prosecution USAM § 9-27.650 required that non-prosecution agreements in exchange 'for cooperation be fully memorialized in writing. Although this requirement was not applicable for the masons givektabove, the NPA complied by fully memorializing the terms of the agreement. 136 CA/Aronberg-000604 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736242 agreement that did not require Epstein's cooperation nor did the USAM require Acosta to obtain Departmental approval before doing so. C. 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 t NPA. Specifically, OPR examined Acosta's decision to permit Epstein to resolve he federal investigation by pleading guilty to state charges of solicitation of minors to engage ion and solicitation to prostitution, with a joint, binding recommendation for an 18- sent nce of incarceration. Because, as noted above, OPR found no clear guidance to non- prosecution agreements not involving cooperation, OPR examined Dep m licies relating to plea offers to assess the propriety of the NPA's charge and senten ts. OPR also examined the provision declining to prosecute Epstein's unidentified co-conspirators," to determine whether that provision violated Departmental polic grants of immunity. Finally, OPR considered whether there was a clear and u ous obligation under the Department's policy regarding the deportation of crimin h. hich would have required further action to be taken against the two Epstein assist foreign nationals. After considering the applicable rules and resolve the federal investigation through the standards and that Acosta had the authority to and through the terms that he chose. A professional misconduct in developin subjects who implemented his decisi 1. Acosta Epste Incar Federal pros plea agreement, i i cludi USAM §§ 9 R finds that Acosta's decision to violate any clear and unambiguous ederal investigation through a state plea PR concludes that Acosta did not commit g, or approving the NPA, nor did the other spect to the resolution.x* rity to Approve an Agreement That Required to Offenses Resulting in an 18-Month Term of ve discretion to resolve a pending case or investigation through a ea that calls for the imposition of a specific, predetermined sentence. -27.400; see also Federal Rule of Criminal Procedure 11(cX1). considered whether Acosta, Sloman, Mendel, Londe, or Villafafla failed to comply with standards requiring that attorneys exercise competence and diligence in their representation of a vs have a duty to provide competent, diligent representation to their clients, which generally requires knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See. e.g., FRPC .3. The requirement of diligence obligates an attorney to exercise "zeal" in advocating for the client, but does not require the attorney "to press for every advantage that might be realized for a client." See FRPC 4-1.3 (cortunent). Although OPR criticizes certain decisions made during the USAO's investigation of Epstein, those decisions, even if flawed, did not violate the standard requiring the exercise of competence or diligence. The subjects exhibited sufficient knowledge, skill, preparation. thoroughness, and zeal during the federal investigation and the NM negotiations to satisfy the general standards established by the professional responsibility rules. An attorney may attain a flawed result but still exercise sufficient competence and diligence throughout the representation to meet the requirements of the standard. 137 CA/Aronberg-000605 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736243 • Longstanding Department policy directs prosecutors to require the defends& to plead to the most serious readily provable charge consistent with the nature and extent of the: defendant's criminal conduct, that has an adequate factual basis, is likely to result in a 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 §§ 9.27.430, 9-27-300, 9-27.400 (comment). The genesis of this policy, the Ashcroft Memo, specifically requires federal prosecutors to charge and pursue all readily 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 at does not comport with this policy.207 Moreover, the Ashcroft Memo explains that a is not "readily provable" if the prosecutor harbors "a good faith doubt," based on eithe 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 t e most ous readily provable charge" requirement. The draft indictment prepared by Vi .osed charging Epstein with a variety of federal crimes relating to sexual conduct wi rid t flicking of minors, and Epstein's sentencing exposure under the federal guidelines s in range of 168 to 210 months' imprisonment. The original "term sheet" present" defense proposed a "non- negotiable" requirement that Epstein plead guilty to three s , in addition to the original state indictment, with a joint, binding recommendatio year term of incarceration. Instead, Epstein was permitted to resolve his federa I t xposure with a plea to the state indictment and only one additional state offense, 1. .nth sentence. As discussed more fully later in Acosta, Sloman, Menchel, and Lourie perceived risks to going forward to trial on a era arges Villafaha outlined in the prosecution memorandum and identified for OPR ms both the evidence and legal theories on which a federal prosecution would be p he other hand, Villafaha felt strongly that federal charges should be brought, and th ief reviewed the prosecution memorandum and twice opined that the charges were n OPR found it unnecessary to resolve the question whether federal charges a nst Ep in were readily provable, however, because Acosta had ' P7 In addition to Circwnstances," as follows: utors ntay decline to pursue or may dismiss readily provable charges in ceptional circumstances with the written or otherwise documented al of an Assistant Attorney General, United States Attorney, or designated penisory attorney. This exception recognizes that the aims of the Sentencing bnn Act must be sought without ignoring the practical limitations of tic federal criminal justice system. For example, a case-specific approval to dismiss charges in a particular CM might be given because the United States Attorney's Office is particularly over-burdened, the duration of the trial would be exceptionally long, and proceeding to trial would significantly reduce the total number of cases disposed of by the office. However, such case-by-case exceptions should be raze; otherwise the goals of fairness and equity will be jeopardized. Ashcroft Memo at § I.B.G. See also USAM §§ 9-2.001 and 27.140 (U.S. Attorneys' atithority to depart from the USAM) "Limited Exceptions," this authorization is available in "Other Exceptional 138 CA/Aronberg-0 00606 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736244 • authority to deviate from the Ashcroft Memo's "most serious readilS, 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 how 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" req Furthermore, the Ashcroft Memo does not appear to preclude a U.S. Attorney from d state prosecution, so it is not clear that the Memo's terms apply to a situation' charges. Accordingly, OPR concludes that the negotiation of an agreement tha to resolve the federal investigation in return for the imposition of an 18-mo not violate a clear and unambiguous standard and therefore does not misconduct. rement. 'ng to a olvr tate ed pstein ~rttence did professional 2. The USAO's Agreement Not to Pros to id)entified "Potential Co-Conspirators" Did Not Violat ear and Unambiguous Department Policy Several witnesses told OPR that they believed t ent's agreement not to prosecute unidentified "potential co-conspirators" amount sactional immunity," which the witnesses asserted is prohibited by Department though "use immunity" protects a witness only against the government's use of his Vie munized testimony in a prosecution of the witness, and is frequently used by prosecutors, tAfsactional immunity protects a witness from prosecution altogether and is relatively OPR found no policy proh Attorney from declining to prosecute third parties or providing transactional imm section of the USAM related to immunity but applied only to the exchange of "u unman for the testimony of a witness who has asserted a Fifth Amendment privilege. See § 9-23.100 et seg. Statutory provisions relating to immunity also address the same context. e 18 U.S.C. § 6002; 21 U.S.C. § 884. Moreover, apart from voluntariness or enforc concerns, courts have not suggested that a prosecutor's promise not to prosecute a t pa ounts to an inappropriate exercise of prosecutorial discretion. See, e.g., F.2d t 741-43; Kemp, 760 F.2d at 1248; Stinson, 839 So. 2d at 909; Hazier, 697 So. 2d found no clear and unambiguous standard that was violated by the USAO's agreeme' to •rosecute "potential co-conspirators," and therefore cannot conclude that nego proving this provision violated a clear and unambiguous standard or constituted misconduct. otwithstanding this finding, in Section IV of this Part, OPR includes in its criticism of Acosta's decision to approve the NPA his approval of this provision without considering its potential consequences, including to whom it would apply. 139 CA/Aronberg-000607 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736245 3. The NPA Did Not Violate Department Policy Relating to Deportation of Criminal Aliens During the negotiations, the USAO rejected a defense-offered provision prohibiting the USAO from "request[ing], initiat[ing], or in any way encouraging] immigration authorities to institute immigration proceedings" against two female assistants. However, OPR considered whether the April 28, 1995 memorandum imposed any obligation on the USAO to prosecute Epstein's two female assistants who were known to be foreign nationals—as Villafafia urged in her prosecution memorandum—and thus trigger their removal, or conversely, whether it ecluded the USAO from agreeing not to prosecute them as part of a negotiated resolution. P found nothing in the policy that created a clear and unambiguous standard in either regar The Attorney General's April 28, 1995 memorandum regarding "De Criminal Miens" directed federal prosecutors to become involved actively and dir ly in h process of removing criminal aliens from the United States, and, along with US , provided that laill deportable criminal aliens should be deported unless extraordi ry ci mstances exist." However, Epstein's two assistants were not "deportable" unless an • unti icted of a crime that would have triggered their removal. But neither the policy me m nor the USAM imposed an obligation on the USAO to prosecute or secure a conic a foreign national nor did either provision preclude the USAO from declining top utg alien using the same broad discretion that otherwise applies to charging decision The policy guidance also requires "p lose coordination" with immigration officials in cases involving alien defendants a t hat prosecutors must notify immigration authorities before engaging in plea negoti s wt alien defendants. OPR learned during its investigation that an ICE agent parti ' ted he Epstein investigation in its early stages. Moreover, because the USAO never plea negotiations with the two female assistants, who, in any event, had not b and were therefore not "defendants," no further notification was required. IV. THE EVIDENCE OE NOT ESTABLISH THAT THE SUBJECTS WERE INFLUENCED BY 1 OPER MOTIVES TO INCLUDE IN THE NPA TERMS FAVORABLE PSTEIN OR TO OTHERWISE EXTEND BENEFITS TO EPSTE OPR Tnv ted whether any of the subjects—Acosta, Sloman, Menchel, Lourie, or Villafafi to enced by corruption, bias, or other improper motive, such as Epstein's wealth, status,A or polio I associations, to include terms in the NPA that were favorable to Epstein, or Alper such motives otherwise affected the outcome of the federal investigation. OPR coladered the case-specific reasons the subjects identified as the motivation for the USAO's July 31, 2007 "term sheet" and Acosta's approval of the NPA in September 2007. OPR also thoroughly examined various factors forming the basis for allegations that the subjects were motivated by improper influences, including the subjects' preexisting relationships with defense counsel; the subjects' numerous meetings with Epstein's team of nationally known attorneys; emails between the subjects—particularly Vi II afafia—and defense counsel that appeared friendly, casual, and deferential to defense counsel; and inclusion in the NPA of a broad provision declining 140 CA/Aronberg-000608 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736246 • • to prosecute all of Epstein's co-conspirators. These factors are analy$ed in the following discussions throughout this Section of the Report. As a threshold matter, OPR's investigation of the subjects' decisions and actions in the Epstein matter uncovered no evidence of corruption such as bribery, gratuity, or illegal political or personal consideration. In addition, OPR examined the extensive contemporaneous documentary record, interviewed witnesses, and questioned the subject attorneys. The evidence shows three sets of issues influenced Acosta's decision to resolve the case through the NPA. The first—of main concern to Acosta—involved considerations of federalism and deference to state The second arose from an assessment by Acosta's senior advisers—Sloman, Lourie—that the case carried substantial litigation risks, including both witness some viewed as a novel application of certain federal statutes to the facts of the The third was Acosta's aim of obtaining a greater measure of justice for conduct and for the community than that proposed by the state. Although the NPA and the process for reaching it can be critici d, as QPR does, OPR did not find evidence supporting a conclusion that the subjects were otiv y a desire to benefit Epstein for personal gain or because of other improper consi such as Epstein's wealth, status, or associations. That is not to say that Epstein nefit from his enormous wealth. He was able to hire nationally known attorn prestige, skill, and extensive experience in federal and state criminal law and in co otiations. He had the resources to finance an aggressive approach to the case tha n lu e preparation of multiple written submissions reflecting extensive research and a s, a well as multiple in-person meetings involving several of his attorneys and USA() i711pe a assembled a defense team well versed in the USAO and the Department, with t owl ge to maneuver through the Department's various levels and offices, a process un n to ny criminal defense attorneys and infrequently used even by those familiar with ent's hierarchy. Access to highly skilled and prominent anus is not unusu al cases involving corporations and their officers or collar defe t is not so typical for defendants charged with sex crimescertain other or violent offenses. Nonet less, e recognizing that Epstein's wealth played a role in the outcome because he was ab to ire skilled and assertive attorneys, OPR concludes that the subjects were not mot' factors. thority. el, and what emcase."8 Epstein's ated to resolve the federal investigation to Epstein's benefit by improper A. R Fo d No Evidence of Criminal Corruption, Such as Bribery, Gratuity, or al Political or Personal Consideration S e p iblic criticism of the USAO's handling of the Epstein matter implied that the su ecisions or actions may have been motivated by criminal corruption, although no ormation substantiating such implications was identified. Throughout its investigation, 201 Shaman asserted throughout his OPR interview that he did not participate in substantive discussions about the Epstein investigation before the NPA was signed, and his attorney argued in his comments on OPR's draft report that OPR should not attribute to Sloman any input in Acosta's decisions about how to resolve the case However, Sloman was included in numerous entails discussing the merits of and issues relating to the investigation, participated in meetings with the defense team, and, according to Acosta, was one of the senior managers whom Acosta consulted in determining how to resolve the Epstein investigation. 141 CA/Aronberg -000609 FILED: PAI.N1 BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736247 • • OPR was attentive to any evidence that any of the subjects was motivated by bribes, gratuities, or other illegal political or personal considerations, and found no such indication.299 Witnesses, including law enforcement officials, were specifically asked whether they: had any information indicating such corruption, and all—notwithstanding the harsh criticism by some of those same witnesses of the Epstein matter's outcome—stated that they did not. Specifically, the FBI case agent told OPR that she did not believe there had been any illegal influence, and that if she had perceived any, she "would have gone screaming" to the FBI's public corruption unit. The co-case agent and the FBI supervisors up through the Special Agent in Charge likewise told OPR that they were unaware of any indication that a prosecutor acted in the matter because of illegal fa rs such as a gratuity or bribe or other corrupt influence, and that any such indication would s iately have been referred for criminal investigation by the FBI. B. Contemporaneous Written Records and Witness and Su4jettInterviews Did Not Reveal Evidence Establishing That the Subje We' Improperly Influenced by Epstein's Status, Wealth, or Associati s Although Epstein's name is now nationally recognized, s 1 20 2007, he was not a familiar national figure or even particularly well known in Flo ' five subjects told OPR that when they first learned of the investigation, they had not h in. Similarly, the FBI case agent told OPR that when the investigation began, no I appeared to have heard of Epstein, and other witnesses also told OPR that t w ttially unfamiliar with Epstein. However, news reports about Epstein's July 2 the state indictment, which were contemporaneous with the beginning of the fede s i s if; tion, identified him as a wealthy Palm i,Beach resident with influential contacts, incl g 1 Clinton, Donald Trump, Kevin Spacey, and Alan Dershowitz, and other "prominen nes en, academics and scientists."2a Villafana, Lourie, Sloman, and Acosta learned o s pr coverage early in the investigation, and thus understood that Epstein was wealth sated with notable public figures.2" The FBI case agent also told OPR that "we had been on his plane, we knew . . . some of his connections." 1. The raneous Records Did Not Reveal Evidence Establishing hat the NPA Resulted from Improper Factors OPR f. no tidence in the extensive contemporaneous documentary record that the terms of the 'A restlied from improper factors, such as Epstein's wealth or influential connectio 's legal team overtly raised Epstein's financial status in arguing fora sentence that did t in I de a term of imprisonment on the ground that Epstein would be extorted in prison, but this, nsisted that Epstein serve a term of incarceration. Defense counsel mentioned ent Clinton in one pre-NPA letter, but that reference was made in the context of a Z9 R's jurisdiction does not extend to the investigation of allegations of criminal activity. If OPR had found indication of criminal activity, it would have referred the matter to the appropriate Department investigative agencies. too Larry =, "Billionaire solicited prostitutes three times, indictment says," Palm Beach Post, July 24, 2006; Nicole Janok, "Consultant to the rich indicted, jailed," Palm Beach Post, July 24, 2006. Lourie later madc Mcnchcl aware of Epstein's prominence in the course of forwarding to Mencbel the initial prosecution memorandum. 142 CNAronberg-000610 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736248 • narrative of Epstein's philanthropic activities, rather than presented as a suggestion that Epstein's association to the former President warranted leniency and, in any case, the USAO rejected the defense argument that the matter should be left entirely to the state's discretion.312 The defense submission to the Deputy Attorney General contained a direct reference to Epstein's connection to former President Clinton, but that submission was made well after the NPA was negotiated and signed, and in it, counsel contended that the USAO had treated Epstein too harshly because of his association with the former President.' 2. The Subjects Asserted That They Were Motivated by Rerlsonable Strategic and Policy Considerations, Not Improper Influet In addition to reviewing the documentary evidence, OPR question=• !1 rve uubject attorneys, all of whom denied being personally influenced by Epstein's weal in making decisions regarding the investigation, in the decision to resolve the case t NPA, or in negotiating the NPA. Villafana, in particular, was concerned from of the federal investigation that Epstein might try to employ against the USAO t s pressure that she understood had been used with the State Attorney's Office, a he ively took steps to counter Epstein's possible influence by meeting with Acost and oman to sensitize them to Epstein's tactics. Both Acosta and Sloman told OPR that t O ad handled cases involving wealthy, high-profile defendants before, including the e. Acosta told OPR, "[W]e tried to treat [the case] fairly, not looking at . . . how h e, but also not saying we need to do this because he is so wealthy." Menchel expre r view, telling OPR that he did not believe "it's appropriate to go after somebody b u their status one way or the other." Lourie told OPR that Epstein's status may have ge t "front office" involvement in the case, but it did not affect the outcome, and SI p many disagree[d)" with the suggestion that the USAO's handling of the case had b ffect, by Epstein's wealth or influential connections. Other witnesses corroborated the su ony on this point, including the FBI case agents, who told OPR that no one ever un ted to them that they should treat Epstein differently because of his wealth. The hi told OPR that he did not recall anyone at the USAO expressing either qualms or about proceeding against Epstein because of his wealth and influence. OPR takes n ut does not consider dispositive the absence of any affirmative evidence that t subj s were acting from improper motivations or their denial of such motivations. more significance, and as discussed more fully below, was the fact that contempo rds support the subjects' assertions that the decision to pursue a pre-charge resolutio on various case-specific legal and factual considerations.21° OPR also 212 pre-NPA teller to the USAO, counsel recited a litany of Epstein's purported good deeds and charitable works, ncluding a trip Epstein took to Africa with former President Clinton to raise awareness of AIDS, and counsel also not that the former President had been quoted by New York Magazine describing Epstein as "a eonunitted phikinthropist." In the letter to the Deputy Attorney General, counsel suggested that the prosecution may have been "politically motivated" due to Epstein's "close personal association with former President Bill Clinton." 2" OPR also considered that all five subjects provided generally consistent explanations regarding the factors that influenced Acosta's decision to resolve the federal investigation through the NPA. Sloinan Menchel, Loud; and Villafaila all had long careers with the Depanme is, and OPR considers it unlikely that they would all haw joined with 143 CNAronberg-000611 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736249 • • of discussions about the challenges presented by a potential Acosta's decision to resolve the federal investigation th identified for OPR several case-specific factors, unrelat either did or likely would have been included in those influenced Acosta's decision-making. These evidentiary risks and the potential impact of a these factors appear more aptly to pertain to disposition, but do not directly explain through a guilty plea in state court. That about intruding into an area he bell authorities. In a declaration sub litigation, Villafaha explain through the NPA: considered that the USAO's most pivotal decisions—to resolve the case throligh an NPA requiring Epstein to serve time in jail, register as a sexual offender, and provide monetary damages to victims—had been made by July 31, 2007, when the USAO presented it§ "term sheet" to the defense. This was before Acosta had ever met with defense counsel and when he had not indicated any plans to do so. It also was well before Acosta's October 12, 2007 breakfast meeting with defense counsel Lefkowitz, which received strong public and media criticism. OPR also considered significant the fact that although the USAO made numerous concessions in the course of negotiating the final NPA, the USAO did not accede to the defense request that the USAO end federal involvement altogether and return the matter to the state authorities to handle as ey saw fit, and the USAO refused to eliminate its requirement that Epstein register as a sex ender, despite a strong push by the defense that it do so. 3. Subject and Witness Interviews and Contem Records Identified Case-Specific Considerations Relatiqg nce, Legal Theories, Litigation Risk, and a Trial's Poten InTI on Victims ot L eild Acosta, Sloman, Menchel, and Lourie told OPR that they did n the specific content prosecution or reasons for A, but they and Villafana s wealth or associations, that and that OPR concludes likely ns included assessment of the ictims. For the most part, however, sr to resolve the case through a pre-charge cos chose to resolve the federal investigation pears to have stemmed from Acosta's concerns traditionally handled by state law enforcement e district court in 2017 in connection with the CVRA SAO's rationale for terminating the federal investigation Prior to trice making its decision to direct me to engage in °bah s with Epstein's counsel, I discussed the strengths and nesses of the case with members of the Office's management, d informed them that most of the victims had expressed gnificant concerns about having their identities disclosed.. .. It is my understanding from these and other discussions that these factors, that is, the various strengths and weaknesses of the case and the various competing interests of the many different victims (including the privacy concerns expressed by many), together with the Office's desire to obtain a guaranteed sentence of incarceration for Epstein, the equivalent of uncontested restitution for the victims, Acosta to improperly benefit Epstein or would have remained silent if they suspected that Acosta, or any of their colleagues, was motivated by improper influences. 144 CA/Aronberg-000612 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736250 and guaranteed sexual offender registration by Epstein . . . were among the factors [that led to the NPA]. 2" During her OPR interview, Villaftuia similarly described the victims' general reluctance to go forward with a trial: [W]hen we would meet with victims, we would ask them how they wanted the case to be resolved. And most of them wanted the case to be resolved via a plea. Some of them wanted him not to be prosecuted at all. Most of them did not want to have to come to court and testify. They were very worried about their privacy, ri ghts. 21' 4 In his written response to OPR, Lourie stated that although he did iffcally recall the issues Villafana set forth in her declaration, he believed they would bate portant to the USAO in 2007. Lourie also told OPR that he generally recalled coneetvit in the USAO about the charges and a potential trial: [M]y vague recollection is that I and others was a substantial chance we would not pr appeal after a conviction, resulting i 313 Doe v. United States, No. 9:08-cv-80736 (S Government's Response and Opposition to Petitions Summary Judgment at 8.9 (June 2, 2017). 116 These concerns are also reflected in in which she stated, "During interviews Epstein be prosecuted." She further de Throughout the A majority of the identities to the p testify a Additiona s that there trial and on e, no criminal titration of A. MI Villafaila in Support of Partial Summary Judgment and Cross-Motion for aration filed by the FBI case agent in the CVRA litigation, m 2006 to 2008, no victims expressed a strong opinion that ncems of some of the victims: we interviewed many [of Epstein's!' victims . . . . %pressed concern about the possible disclosure of their A number of the victims raised concerns about having to it parents finding out about their involvement with Mr. Epstein. me victims, learning of the Epstein investigation and possible ~eQosure ofrir identities caused them emotional distress. Overall, nigh of the nts were troubled about the existence of the investigation. They displayed of embarrassment and humiliation and were reluctant to talk to gators. Sonic victims who were identified through the investigation refused n to speak to us. Our concerns about the victims' well-being and getting to truth were always at the forefront of our handling of the investigation. In addition, during the CVRA litigation, an attorney representing several victims filed a pleading to protect the ano "mitt' of his clients by preventing disclosure of their identities to the CVRA petitioners. See Response to Court Order of July 6, 2015 and United States' Notice of Partial Compliance (July 24, 2015). It is noteworthy that in 2020, when OPR attempted to contact victims, through their counsel, for interviews or responses to written questions regarding contacts with the USAO, OPR was informed that most of the victims were still deeply concerned about remaining anonymous. One victim described to OPR how she became distraught when, during the USAO's investigation, the FBI left a business card at her parents' home and, as a result, her parents learned that she was a victim of Epstein At the time, the victim was a teenager, was "nervous, scared, and ashamed": and did not wart her parents to know about the case. 145 CA/Aronberg-000613 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736251 record, no restitution, no sex offender status, publication at a trial of the names of certain victims that didn't want their names revealed and the general difficulties of a trial for the victims and their families. Although his emails showed that, at the time, he advocated for prosecution of Epstein, Lourie told OPR it was also his general recollection that "everybody at the USAO working on the matter had expressed concerns at various times about the long-term viability of a federal prosecution of Epstein due to certain factual and legal hurdles, as well as issues ith the cooperation and desires of the victims." Similarly, Menchel—who had experience prosecuting sexual assault understanding that many of the victims were unwilling to go forward and w additional trauma as a result of a trial, and some had made stateme Menchel told OPR he believed that if the USAO had filed the propo Epstein would have elected to go to trial. In Menchel's view, the US the risk of losing at trial, and thereby re-traumatizing the victi through a negotiated result, which ensured that Epstein sew offender, and made restitution to his victims. Sloman also recalled witness challenges an\114A s about the viability of the government's legal theories. He told OPR: led perienced tmg Epstein. gainst Epstein, efore had to weigh the benefits gained jail, registered as a sexual [I]t seemed to me you had a tra to be reliable. You had a t be severely impeached. thought he was a Sven was 18 years old. You had wit being shown very vulnerable Acosta t general credit,' factored into "granule but esses who were not going tnesses who were going to ho loved Jeffrey Epstein who o were going to say I told him I were scared to death of the public light because their parents didn't even know -- had ms. You had all of these concerns. ha he recalled discussions with his senior managers about the victims' uctance to testify and the evidentiary strength of the case, all of which ution. He acknowledged that his understanding of the facts was not of encompass a detailed understanding of each victim's expected testimony, that his "team" had already "done the diligence necessary" to make ons about the evidentiary strength of the case. Acosta recalled discussing the facts wit om and Menchel, and possibly Lourie, none of whom had as detailed an understanding of the cts as Villafafia. Nevertheless, OPR credits Acosta's statement that he reasonably believed, based on his conversations with others who expressed this view, that a trial would pose significant evidentiary challenges. Other witnesses corroborated the subjects' testimony regarding witness challenges, including the FBI co-case agent, who recalled during his OPR interview that some of the victims had expressed concern for their safety and "a lot of them d[id]n't want to take the stand, and 146 CAJAronberg-000614 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736252 • • d[id]n't want to have to relive what happened to them."212 The co-case agent told OPR that one of the "strategies" for dealing with the victims' fear was "to keep them off the stand," and he generally remembered discussions about resolving the Epstein case in a way that protected the victims' identities. In addition, the CEOS Trial Attorney who briefly worked with Villafafia on the case after the NPA was signed told OPR that in her meetings with some of the victims, she formed the impression that they were not interested in the prosecution going forward. The CEOS Trial Attorney told OPR that "[the victims] would have testified," but would have required an extensive amount of "victim management" because they were "deeply embarrassed" about potentially being labeled as prostitutes. The CEOS Trial Attorney also told OPR that "there were obvious weaknesses in the case," from an evidentiary perspective.' The contemporaneous records also reflect discussions of, or reference ' <nou§ legal and factual issues or other concerns about the case. For example, in an Menchel, Lourie noted that two key issues raised by Villafafia's proposed charges a wh er the USAO could prove that Epstein traveled for the purpose of engaging in sex a fact that some minor victims had told Epstein they were 18. He later opined to Acos and enchel that "there is some risk on some of the statutes [proposed in Villafana's pro no orandum] as this is uncharted territory to some degree." In his July 5, 2007 email t a, Menchel cited Acosta's and Sloman's "concerns about taking this case because of icy and a number of legal issues" and Acosta's concerns about "hurting Project S " Defense counsel raised myriad legal and factual challenges in their volumin e e USAO. Defense submissions attacked the legal theories for a federal pros ti detailed factors that could have undermined victims' credibility, including victi t ents favorable to Epstein and evidence of victim drug and alcohol use, as well as thejtct t me victims recruited other victims and purportedly lied to Epstein about their ag Acosta also recalled that al "team" had expressed concern about the "trial issues," his own focus had been t e I side of things." Notably, during his prior tenure as the Assistant Attorney Gene r of the Department's Civil Rights Division, Acosta had been involved in efforts to dress trafficking. He told OPR that one of the "background issues" that the Civil Rights n addressed under his leadership, and which influenced his view of the Epstein e, was the distinction between sex trafficking and solicitation of prostitution. Specifics as concerned about avoiding the creation of potentially unfavorable federal precede n the 'lit of delineation between prostitution, which was traditionally a matter of state concgl and se trafficking, which remained a developing area of federal interest in 2007.219 217 affidavit filed in the CVRA litigation, the co-case agent noted that in early 2007, when he located a victi 'ving outside of the United States, she claimed only to "know Jeffrey Epstein," and stated that she "moved away to istance herself from this situation," and "asked that Itic agent) not bother her with this again" as In April 2007, a victim who was represented by an attorney paid by Epstein participated in a video-recorded interview with the FBI, with her attorney and his investigator present. This victim denied being involved in, or being a victim of, criminal activity. Later, the victimobtained new counsel and joined the CVRA litigation as "Jane Doe #2." 019 In his March 20, 2011 letter, addressed "To whom it may concern," and published online in The Daily Beast, Acosta described "a year-long assault on the prosecution and the prosecutors" by "an army of legal superstars." Most of the allegations node against the prosecutors occurred after the NPA was signed and certainly alter Acosta approved 147 CA/Aronberg-000615 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736253 • • The USAO might have been able to surmount the evidentiary, legal, and policy issues presented by a federal prosecution of Epstein. Villafaria, in particular, believed she could have prevailed had she taken the case to trial, and even after the NPA was negotiated, she repeatedly recommended declaring Epstein in breach and proceeding with an indictment, because she continued to have confidence in the case.2" Oosterbaan and others also believed that the government would succeed at trial. Furthermore, the victims were not a uniform group. Some of them were afraid of testifying or having their identities made public; others wanted Epstein prosecuted, but even among those, it is not clear how many expressed a willingness to testify at a trial; and still others provided information favorable to Epstein. In the end, Acosta sumed responsibility for deciding how to resolve the Epstein investigation and weighing ks and benefits of a trial versus those of a pre-charge disposition. His determination t arge disposition was appropriate was not unreasonable under the circumstances. Although evidentiary and witness issues explain the subject su winning a potential trial and why the USAO would have sought disposition, they do not fully explain why Acosta decided to pursue opposed to a traditional federal plea agreement. OPR did not fin a memorandum or other memorialization of the reasoning un state-based resolution or the terms offered to the defense cems about of pre-charge ased resolution as emporaneous records costa's decision to offer a 07 According to Acosta, "In 2006, it would have b exl$pr€ly unusual for any United States Attorney's Office to become involved in a state sofrata case, even one involving underage teens," because solicitation was "the province of state prosecutors." Acosta told OPR that he developed "a preference for deferring to th state" to "make it clear that [the USAO was] not stepping on something that is a purely I tier, because we [didn't] want bad precedent for the sake of the larger human traffickin sta also told OPR that it was his understanding that the PBPD would not have bro e to federal investigators if the State Attorney's Office had pursued a sanction a st that included jail time and sexual offender registration. Acosta viewed t O role in the case as limited to preventing the "manifest injustice" that, in Acosta's iew, d have resulted from the state's original plea proposal. Acosta acknowledged that if i ligation had begun in the federal system, he would not have viewed the terms set out in the NPA as a satisfactory result, but it was adequate to serve as a "backstop" to the state's prosecution, which he described as "a polite way of saying[, ']encouraging t tate do a little bit more.[']" In sum, Acosta told OPR that the Epstein case lay in "uncha • erritory," there was no certainty that the USAO would prevail if it went to trial, and a pot vocable outcome had to be "weighed against a certain plea with registration that wou sure that the public knew that this person was a sex offender." sta told OPR that he discussed the case primarily with Sloman and Menchel, and both told R that while they did not share Acosta's federalism concerns, they recalled that Acosta had the terms offered to the defense on July 31, 2007. Therefore, any allegations apinst the prosecutors could not have played a significant role in Acosta's decisions as reflected in the term sheet. 220 Sloman told OPR that Villafalta "always believed in the case." 148 CA/Aronberg-000616 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736254 • • been concerned about policy and federalism issues.22t Sloman told OPR that although he did not remember specific conversations, he generally recalled that Acosta had been "sensitive to" Petite policy and federalism concerns, which Sloman described as whether the USAO was "overstepping our bounds by taking what is a traditional state case that was in the State Attorney's Office that was resolved by the State Attorney's Office at some level." During his OPR interview, Menchel remembered that Acosta approached the case from "a broader policy perspective" and was worried about "the impact that taking the case in federally may have on . . . other programs," although Menchel did not recall specifically what those programs were. C. Other Significant Factors Are Inconsistent with a Conclusio at the Subjects' Actions Were Motivated by Improper Influences OPR considered additional aspects of the Epstein case that were nt with a suggestion that Acosta's decision to offer the July 31, 2007 terms was d en b rruption, a desire to provide an improper benefit to Epstein, or other improper infl First, OPR considered highly significant the fact that if Acosta ary motivation was to benefit Epstein, he had an option even more favorable to E vailable to him. The NPA required Epstein to serve time in jail and register as a sex and provided a mechanism for the victims to seek monetary damages—outcomes u e matter had been abandoned and sent back to the state for whatever result state o eemed appropriate. Epstein's attorneys had vehemently argued to the USAO that t r federal interest in the investigation and that his conduct was exclusively a matter a cent. If the USAO had declined to intervene in the case, as Epstein's counsel rep trongly argued it should, the state would have meted out the sole punishment for his ior. nder the state's original plan, Epstein likely would have received a sentence of prob ' n. chel described such a result as a mere "slap on the wrist," with "no jail time, no fel ense, no sexual offender registration, [and] no restitution for the victims." Instea cc g to Epstein's proposal, however, the USAO devised a resolution of the federal inve n t, although widely criticized as inadequate to address the seriousness of Epstein's nduct ertheless penalized Epstein more than a guilty plea to the state's original charge, stan lone, would have done. Acosta's affirmative decision to intervene and to com a more tringent and just resolution than the state had proposed, rather than exercising his dispi o quietly decline prosecution, is strong circumstantial evidence that he was not actinglor th rpose of benefiting Epstein.222 Similarly, despite defense counsel's repeated request\ to eli mate the sexual offender registration requirement, Acosta refused to 121 ted that although Acosta "was sensitive to [Medic policy concerns. federalism concerns, . . . I was not." M I uofrwtented. "I don't think it would have been a concern of mine." Menchel also pointed out during his OPR interview that Acosta was Republican and "had nothing to gain" by show favoritism to Epstein, who had been portrayed in the media as "this big Democratic donor." Villafaila recounted for OPR an exchange between the USAO team and a defense attorney who argued in one meeting that— we were prosecuting lEpsleinl because he was Jewish. We then pointed out that a nwnber of members of OM USAO) chain of command were Jewish. Then Ic said, well we're prosecuting him because he was a Democrat. And again, we pointed out that a number of us were Democrats. So then it went to, we were prosecuting him because he was wealthy.... That one didn't work so well. 149 CA/Aronberg-000617 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736255 reconsider the provision. Acosta could certainly have modified or eliminated the provision entirely if his motivation was to benefit Epstein or Epstein's attorneys. Second, Epstein himself was not satisfied with the NPA. Immediately after signing the agreement, he sought to have the Department nullify it by declaring federal involvement in the investigation inappropriate. In addition to repeatedly attacking the NPA in his submissions to the Department, Epstein added to his evidentiary challenges and federalism claims allegations of misconduct and improper bias on the part of specific USAO personnel. Epstein's dissatisfaction with the NPA, and his personal attacks on individual prosecutors involved in negotiating the agreement, appear inconsistent with a conclusion that the subjects designed the NPA for Epstein's benefit. D. OPR Does Not Find That the Subjects' Preexisting Relationships with Defense Counsel, Decisions to Meet with Defense Counsel, and Other Factors Established That the Subjects Acted from Imprope Influences or Provided Improper Benefits to Epstein In evaluating the subjects' conduct, OPR considered variefintirr factors featured in media accounts to show that the subjects provided improper benefits to Epstein or which purportedly suggested that the subjects acted from improper influence< OPR examined these factors but did not find that they supported a finding that the subjects were influenced by favoritism, bias, or other improper motivation. 1. The Evidence Does Not Establish That the Subjects Extended Any Improper Benefit to Epstein because of Their Preexisting Relationships with His Attorneys Epstein's wealth enabled im to hire multiple attorneys who had preexisting personal connections to some of the gov in qaitomeys involved in his case, in the State Attorney's Office, in the USAO, and els ere the Department. Based on the attorneys Epstein selected to represent him, a reasonabl infer nce can be drawn that Epstein believed that hiring attorneys with relationships to the prose s would be beneficial to him. One of the first attorneys who contacted the USAO oti Epstein's behalf was Guy a former AUSA in and U.S. Attorney for the Southern District( a Villafana and Lourie had worked for and Lourie was close friends one or law partners. Epstein also retained Lilly Ann a former AUSA who h n Menchel's deputy and with whom he had socialized. Later, when Epstein was see ng st s personal involvement in the case, Epstein hired Kenneth Starr and Jay Lefko it pro inent attorneys from Kirkland & Ellis with whom Acosta was acquainted from his rev ployment with that firm. Villafaiia told OPR that she believed Acosta "was influenced by the stature of Epstein's attorneys." Critically, however, other than the information regarding Menchel that is discussed in the following subsection, neither Villafafia nor any of the other individuals OPR interviewed identified any specific evidence suggesting that Acosta, or any of the other subjects, extended an improper favor or benefit to Epstein because of a personal relationship with defense counsel (or for any other improper reason). Villafafia explained how, in her view, the "legal prowess" of Epstein's attorneys had an impact on the case: 150 CA/Aronberg-000618 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736256 • [O]ne of the issues in the case was the . . . defense's ability to describe the case or characterize the case as being legally complex. It was not as legally complex as they made it out to be. But because they were able to convince members of our office that it was somehow extremely novel and legally complex, the issue became who was likely to succeed in arguing these legal issues. And because of that, the legal prowess, if you will, of the attorneys [ ] [became] something to consider. I think that the ability of Alan Dershowitz and Ken Starr and J Leflcowitz to convince Alex Acosta that I didn't know what talking [about] also, all came into play. So I think then number of factors and it all came together. Although Villafafia was critical of Acosta's consideratio f th ense arguments, she conceded that the defense team's tactics demonstrated effectiveicAacy. Certainly, throughout the case, Epstein's attorneys prepared lengthy memoranda analyzing the evidence and arguing nuanced legal points concerning federalism, the elements ofnu erous federal criminal statutes, and the evidence relevant to those statutes, but it is not unus unreasonable for prosecutors to carefully consider well-crafted legal arguments fro d feney nsel. There is little question that Epstein' s team of attorneys was able to obtain negotiated benefits for Epstein—althou a AO never wavered from its three core requirements, it did agree to a reduction in prison e from its original offer, and it granted Epstein certain other concessions during the l‘gotiations. Epstein's wealth provided him with skilled, experienced negotiators who co inually sought various incremental concessions, and with attorneys who knew how to tam Department review of a USAO matter, thereby delaying undesired outcomes for as lo asp 223 Despite Epstein's evident intentions, however, OPR did not find evidence warrant a nclusion that the NPA or its terms resulted from the subjects' relationships with the tomeys e had selected to represent him. 2 e ubjects Asserted That Their Relationships with Defense Counsel Di Not Influence Their Actions e chel, Sloman, and Lourie each asserted that Epstein's choice of counsel did not a ndling of the case. Menchel told OPR that once in private practice, former co en became adversaries. In Menchel's view, such preexisting relationships were use e they afforded a defense attorney initial credibility and an insight into the issues a prosec or would likely view as areas of concern, which enabled the defense attorney to "tailor" arguments in a way that would maximize their persuasive impact on the USAO. Menchel told OPR, however, that these advantages did not "move the needle in any major way," and he "reject[ed] the notion" that anyone in the USAO had been "swayed" because of preexisting 223 As Chief Reiter later observed in his deposition testimony, "Mhe Epstein case was an instance of a many million dollars defense and what it can accomplish." 151 CA/Aronberg-000619 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736257 • • friendships or associations with any of Epstein's attorneys. In fact, Menchet told OPR that he and his USAO colleagues viewed Epstein's attempt to exert influence through his choice of counsel as "ham-fisted" and "clumsy." and aril told OPR that although he became aware that Lourie was friends with Guy law partner, he was unaware of personal relationships between any of his other colleagues and any of Epstein's attorneys, but that in any event his attitude regarding cases involving former colleagues "was that we would give them process, but we didn't pull any punches with them." In Sloman's view, preexisting relationships with defense counsel did not "c nge the equation" because as AUSAs, he and his colleagues were motivated by what they per i to be best for the case. Laurie told OPR that his preexisting associations with Epstein's atto influence anything." Notably, at the outset of the Epstein case, bathe sought guida fr. e USAO's Professional Responsibility Officer about theariety of his rol a isor in the investigation, because of his acquaintance with I= and long-time f dsh p with law partner. OPR considered Lourie's caution in seeking and obtainin he P tonal Responsibility Officer's advice as an indication that he was alert to his responsibilities regarding relationships with defense counsel, including avoiding the pp nc of a conflict of interest. Acosta said during his OPR interview that he the term sheet—a sentence of incarceration, sexua for the victims—before he engaged directly wi added Starr and Leflcowiu, the Kirkland & the USAO continued to insist on a resolu Kirkland & Ellis became involved in th Acosta took other actions Leflcowitz. On several occasi them to address their comm October 12, 2007 breakfast Sloman about their conversatio was considering and instructed SI behalf, the U approval of employ cogn the three criteria reflected on stration, and monetary damages attorneys and before Epstein s, to his team. Acosta pointed out that isfied all three of those criteria even after r inconsistent with an intent to benefit Starr and rectly appealed to by Lefluswitz or Starr, he directed o Villafana, Sloman, and other subordinates. After his with Lefkowitz, Acosta immediately communicated with late 2008, when Acosta anticipated leaving the USAO and pursuing employment with Kirkland & Ellis, he recognized the conflict of interest man t stop copying him on emails relating to the Epstein matter. On Acosta's s Pro ssional Responsibility Officer sought and obtained formal Department ecusal from the case based on the fact that he had "begun to discuss possible 'th irkland & Ellis. These actions support Acosta's assertion that he was ethical responsibilities concerning relationships with defense counsel.221 ari In addition, in May 2008, the USAO's Professional Responsibility Officer consulted with the Department's Professional Responsibility Officer about whether Acosta should remise from the Epstein matter because he was considering seeking a visiting professorship al Harvard Law School in 2009, and Dashowitz—a Harvard Law School professor—was representing Epstein "as a private, paying client, and not as any pan of a Harvard Law School clinic or law school teaching program" and "should have no role in deciding whether Mr. Acosta is offered any position as a visiting professor." The Departmem advised that these facts provided no basis for recusal. 152 CA/Aronberg-000620 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736258 • • In its review of the documentary record, 0PR examined an email written by Villafafta in 2018, more than a decade after the NPA was negotiated, in which she suggested that the two-year sentence requirement in the initial "term sheet" provided to the defense was developed by Menchel as a favor to defense attorney 0PR examined the facts surrounding this allegation and determined that there was no merit to it. Specifically, in December 2018, after the Miami Herald investigative report renewed public attention to the case, Villafafia recounted in an email to a supervisory AUSA, a conversation she recalled having had with Sloman about the case.22$ In the email, Villafafia stated that she had not been a participant in discussions that IS to Acosta's decision to offer a two-year plea deal, but she added the following: "Months (or possi years) later, I asked formeraissistant Jeff Sloman where the two-year figure came fr e said that Lily [sic] Ann (attorney for Epstein) asked Mr. Menchel to `do and convince Mr. Acosta to offer two years." 0PR questioned both Villafafia and Sloman about the u ed "d t olid" remark. Villafafia told 0PR that she had been aware that Menchel and rt e e 1 s. During her 0PR interview, Villafah explained: [A] lot later, I asked Jeff. I said, you know, "J did this two years come from?" And he said, "Well, I red that . . . Lilly asked Matt to do her a solid," wh' was such a strange term, . . . "and to get her a good t i she would be in Epstein's good graces" and that th s w e two years came from. Although strangely enou t sev al years after that, Jeff Sloman asked me where the came from, and I had to remind him of that conversalilln S eff doesn't know where the two years came from. Because the email had b ed in more definitive terms, 0PR asked Villafafia whether Sloman had affirmativ se that the two-year deal was a favor from Menchel to defense counsel, or whether had s that he merely "figured" that was the case, but Villafaila could not recall precisely w Slo an had said. At a follow-up interview, Villafafia again said that she was unable to ecall w er Sloman's specific statement was "Lilly asked Matt to do her a solid, and he did it," ays figured Matt just wanted .. . to do her a solid." Villafafia stated that she was un are any information that "expressly [indicated] that there was any sort of exchange of . favor i either direction." s R interview, Sloman did not recall making such a remark, although he could not ossibility that Villafafia, for whom he repeatedly expressed great respect, "heard th s pion" He told 0PR that if he did say something to Villafafia about Menchel having don a so id" for Epstein's counsel, he could not have meant it seriously, and he explained, "[I]t's not so thing that I would have believed. Him doing her a solid. I mean that's the furthest thing from my recollection or impression even after years later." 223 Villafaitals email stemmed from a congressional inquiry received by the Department concerning the Epstein investigation and the NPA, to which the USAO had been asked to assist in responding. In her email, Villafaila addressed several issues that she perceived to be the "three main questions" raised by the press coverage. 153 CA/Aronberg-000621 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736259 • • Menchel told OPR that when he and were in the USAO, they had a social relationship, which included, in 2003, "a handful of dates over a period of two to three weeks. We decided that . . . this was probably best not to pursue, and we mutually agreed to not do that."'s Apart from that, he stated they were "close" and "hung out," and he asserted that this was known in the office at the time. Menchel said that his relationship with "changed dramatically" when she left the office for private practice, and that by the time he became involved in the Epstein investigation, he had dated and married his wife, and his contact with would "most likely" have been at office events and when she attended his wedding.227 Menchel added, "(T]hat was three and a half years (prior] for a very brief period of time, and I don't think I gave it a ent's thought." When asked by OPR about the basis for the decision to make an offer o year term of incarceration, Menchel said that he did not recall discussions about the r and did not recall how the office arrived at that figure. In response to OPR's ques hel stated that his relationship with did In]ot at all" affect his handling of th se. Moreover, Menchel asserted that the contemporaneous documentary record supp a nclusion that it was Acosta, not Menchel, who made the decision to resolve the case the year term. OPR carefully considered the documentary record th t, as well as the statements to OPR from Menchel, Villafafia, Sloman, and Acosta, n t.des that there is no evidence supporting the suggestion that the plea was instigated I as a favor to defense counsel. The USAO's first plea overture to defense counse tc k place sometime before June 26, 2007, occurred when Menchel spoke with San out t e possibility of resolving the federal case with a state plea that required jail time offender registration. According to the email, "[i]t was a non-starter" for the def In t lengthy email exchange with Villafafia in early July 2007, Menchel told her that ' on with about a state-based resolution was made with Acosta's "full know sta corroborated this statement, telling OPR that although he did not remember a nversation with Menchel concerning a state-based resolution, he was certain Men I not have discussed this potential resolution with defense counsel "without having dis sect d th me. ”228 Moreover, the defense did not immediately 226 Acosta, Sloman, and Laurie each told OPR that in 2007, he was not aware that Menchel had previously dated OPR questioned the t%AO's Professional Responsibility Officer regarding whether Mcnchel had an obligation to infornehis supervisors of his dating relationship. The Professional Responsibility Officer said that it would depend on "how long the relationship was and how compromised the individual felt he might appear to be," but he would lune expected Menchel to raise the issue with Acosta. The Professional Responsibility Officer told OPR that if he been approached for advice at the time, he would have asked for more facts, but "Igliven the sensitivity of the matter, [my advice] would probably have been to tell him to step back and let somebody else take it Id have advised his supervisors. Although li ,oes not conclude Menchel's prior relationship with over." OPR that if his relationship with had turned into something more than a handful of Sanch influenced the Epstein investigation, OPR assesses that it would have been prudent for Menchel to have infon his supervisors so they could make an independent assessment as to whether his continued involvement in the Epstein investigation might create the appearance of a loss of impartiality. Menchers Outlook records also indicate he scheduled lunch with on at least one occasion, in early 2006, after she left the USAO. 22° In addition. Villafaiia recalled Menchel stating at the July 26, 2007 meeting that "Alex has decided to offer a two year state deal." 154 CA/Aronberg -000622 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736260 • • accept the two-year proposal when it was made, but instead continued to press for a sentence of home confinement, suggesting that the defense had not requested the two-year term as a favor and did not view it as such. The defense had previously rejected the state's offer of a sentence of probation, and there is no indication in the contemporaneous records that Epstein viewed any jail sentence favorably and certainly that did not appear to be the view of the defense team in the early stages of the negotiations. As discussed below, after extensive questioning of the subjects about the basis for the two- year offer, and a thorough review of the documentary record, OPR was unable to determine the reasoning underlying the decision to offer two years as the term of incarceration, as opposed to any other term of years. Nonetheless, OPR concludes from the evidence that Acos was aware of and approved the initial offer to the defense, which included the two-year term incarceration. The only evidence suggesting that the offer of two years stemmed from an i r ivation of Menchel's was a single second-hand statement in an email drafted many . Sloman, the purported declarant, told OPR that he could not recall whether he made t, but he firmly disputed that the email accurately reflected either the reason for th way ar proposal or his understanding of that reason. Villafalla herself could rem about the critical conversation with Sloman, including whether she had recorde' ely what Sloman had said. Given the lack of any corroborating evidence, and the a owing Epstein's vigorous resistance to the proposal, OPR concludes that there is d n to support the statement in Villafafia's 2018 email that Menchel had extended plea deal as a favor to one of Epstein's attorneys. NEE. The Evidence Does Not Est Otis h the Subjects' Meetings with Defense Counsel Were Improper OPR considered whether deci defense counsel while possible c NPA was signed and before E toward or the provision of an is t pstein costa, Sloman, Menchel, and Lourie to meet with e under consideration or during the period after the his state guilty pleas evidenced improper favoritism enefit to the Epstein defense team. 1. The Evince Shows That the Subjects' Decisions to Meet with Epstein's Legal Team Were Warranted by Strategic Considerations Althou pre-inettment negotiations are typical in collar criminal cases involving financial cri nesses told OPR that pre-charge meetings with defense counsel are infrequent in sex off se . As the lead prosecutor, Villafafla vehemently opposed meeting with Epstein's alto iced her concerns to her supervisors, but was overruled by them. In Villaffula's vie mance of the early meetings granted to the defense team was that, but for those m , e USA() would not have offered the disposition set forth in the July 31, 2007 "term sheet" nd, moreover, "that term sheet would never have been offered to anyone else." OPR's investigation established that while the defense attorneys persistently contacted the subjects through emails, correspondence, and phone calls, relatively few in-person meetings actually occurred with the USAO personnel involved in the matter. As shown in the chart on the following page, while the case was under federal investigation and before the NPA was signed, the subject supervisors and defense counsel had five substantive meetings about the case- 155 CA/Aronberg-000623 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736261 • • inctuding:one called by the USA° to offer the NPA term sheet resolutionc and',a sixth meeting. together with the .State Attmey:andtlielead4tate proSeentor ro discuss the state plea Acosta anetidccim4 one. pre-NPA meeting. After the )41!4 iims-Siguedind before.Ensteiii.eitterect state guilty gleas,:thcsubject supervisors and the defense team.had'que substantive meeting,, ,one unscheduled meeting on a procedural Matter, and a meeting: with one: :defense. attorney tin preparation for &conference call; in addition, Acosta had the breitWaSimeetitig:wittil.,c_thoW429 ... cDate .,_ 11- . D.Participants Defense ' 47111 Participants 7.., Tiikarriturpos —. '.- -- — ' * —. . Pre-NPA .. _ ... Feb 1.2007 Lourte / Villafana .• Lercourft Sruktjiez , ' . . - — Defense preients investigation Unproptietes ruid federal - inaisdictioiiigereeS_. _ . Feb 20.'2007 tonne / Villafaita tefcatirt / Defense presents. witness.issues. June 26, 2007 SI9filall / Menclrel / ' :Conic / Itillafaila, :Dershowitz. / Black / Lefcourt/ Sanch: ' ' tense presents legal:issuei; Inv,' tigstioniimproprieties. and. ral jurisdiction issues Jul 31,x2007 IMencliel / Sloman [Annie [An e / Villafafta ' .Blaek/.. Lel ' . , \ 'Saneher - SAO presents NPA term sheet ,Sepi. 7, 2907 Acosta./ Dostertisanf ,..Stait Sloman / Villain& / Villafilita's.eocotunel /. • ivi ' 'SRI3/444 Defense Presentsco:m*04er .,Sept I;;2007 Loluie / LottrM. successor/VS*3(8.4a. Lefkowiti/ Lefeciint; / Goldberger 'JOint meeting-with Kiiicher/, .ffelgjilavek re state-plea pitiViSiont'cifNPA - ,-- ---r- .:-.;.tm.- . .., PostN VA .,. :-...Y., r7r."Ittte—'4frtm.*.:".tif 1., Oct. 12. 2007 Acosta "Letkowitz Defense discussion ONPA. terms and likely..itppetd.to Department: Nov. 21,/20(17 ecp(ttisch04 - • _ . .SI' : tibly: z''LtfkoWitt onit Acosta. (possibly itocisimwitz)• . _ Defense discussion of VictiinSt; attorney tepriscntative procedure. - Dec. lif : O . ,..:\ . osta / Mom*/ . vt lafana / another . . . senior AOSA, Starr /Weinberg / ' •DershoWiti / Lefcotut- . Defense presents federal.: . jurisdiction, issues, legal tisues, ind request torde_novo review Jan 7.20b8. (1) Acosta I Sloirien. r(2) Acosta /SIOnnui (Contetence CAW (I) Sanchez (2) Starr / Lef1;0Witz/SatiChaz Defense presents USAO' ..improprieties and "watered-, ..dotyn"Tesottition 1" In addition_ all of clic'subjtos took phone,calls froth %trials. dothOsc. ChM** and although numerous documentary records refei to such calls, there may have beau othCrs for which OMlocatecl no record: 154 CA/Aronberg-000624 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736262 • • OPR explored the subject supervisors' reasoning for accommodating the defense requests for in-person meetings and whether such accommodation was unusual. OPR questioned each of the four supervisory subject attorneys about his rationale for engaging in multiple meetings with the defense. Lourie could not recall his reasoning for meeting with Epstein's defense counsel, but he told OPR that his general practice was to meet with defense counsel when asked to do so. Lourie recognized that some prosecutors—like Villafana—viewed meeting with the defense as a sign of "weakness," but in Lourie's view, "information is power," and as long as the USAO did of share information with the defense but rather listened to their arguments, meetings were " wet to us." Lourie explained that by meeting with the defense, "[Y]ou're getting the i a that they think is important; that they're going to focus on. The witnesses that they j e liars . . . . And so you can form all of that into your strategy." Lourie also told OP' g defense counsel the opportunity to argue the defense position is an important " rocess" that helped ensure procedural fairness, allowing them to "believe that they e g eard." When asked whether he afforded the same access to all defendants, Lourie res nd "I don't recall ever getting . . . so many requests for meetings . . . and so many apt an many audiences that [Epstein's attorneys] got. But this was I think the first time the really happened." Menchel, too, told OPR that his general view was defense attorney "an audience," and there was no r "[W]hat happens a lot of times is the govemmen raised by the defense, and it's good to know" w Ily it's appropriate" to give a ' to doing so. Menchel added, around those points that are being se will be. During his OPR interview, Acosta r th'?6otion that his meeting with defense counsel was unusual or outside the norm. He O hat his initial meeting with the defense team, before the NPA was signed, was "not d only time that I granted a meeting... to defense attorneys" who requested one. Ac t di t believe it was "atypical" for a U.S. Attorney to meet with opposing counsel, parti se was coming to resolution. Sloman corroborated Acosta on this point, telling PR t costa typically met with defense attorneys, and that the USAO handled requests for tin from Epstein's counsel "in the normal course." Furthermore, Acosta said that notwithstanding that meeting and all the other "process" granted to the defense by the USAO and the Department, "we successfully held firm in our positions" on the key elements ,.of the resolutionr —that' s, the requirements that Epstein be incarcerated, register as a sexual offender, andfo vide m netary damages to the victims. N • ed the circumstances surrounding each subject's decisions to have the indiv ngs with defense counsel to determine if those meetings had a neutral, strategic pun s. irst meeting, on February I, 2007, followed a phone call between Lourie and one o tern s attorneys, in which the attorney asked for a chance to "make a pitch" about the victim lack of credibility and suggested that Epstein might agree to an interview following that pitch. Villafana objected to meeting with the defense, but she recalled that Lourie told her she was not being a "strategic thinker," and that he believed the meeting could lead to a debriefing of Epstein. The meeting did not result in a debriefing of Epstein, but in advance of the follow-up meeting on February 20, 2007, defense counsel gave the USAO audio recordings of the state's witness interviews. Contemporaneous documents indicate that Lourie was unpersuaded by the defense arguments. After Villafana circulated the prosecution memorandum, Lourie suggested 157 CA/Aronberg-000625 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736263 • • preparing a "short" charging document "with only 'clean' victims that they have not dirtied up already."23° The fact that Laurie apparently used information gleaned from the defense about the victims' credibility to formulate his charging recommendation supported his statements to OPR that such meetings were, in his experience, a useful source of information that could be factored into the government's charging strategy. The two February 2007 Villafana/Lourie-level meetings focused on witness issues and claims of misconduct by state investigators, but in late May 2007, defense attorneys requested another meeting—this time with higher-level supervisors Menchel and Sloman—t make a presentation concerning legal deficiencies in a potential federal prosecution. The t was granted after Laurie recommended to Menchel and Sloman that "[i]t would probab a ul to us . . . to hear their legal arguments in case we have missed something." The r ed eeting took place on June 26, 2007. Before the meeting, at Menchel's direction, vided to the defense a list of statutes the USAO was considering as the basis for f es. Defense counsel used that information to prepare a 19-page letter, submitted to the day before the June 26 meeting, as "an overview" of the defense position. In ems I to his colleagues, Laurie evaluated the defense submission, noting its weaker d ger arguments. A contemporaneous email indicates that Menchel, Laurie, and V' iewed the meeting itself as primarily a "listening session."23t After the meeting, Epst s ubmitted a second lengthy letter to the USAO detailing Epstein's "federalism" ar e USAO should let the state handle the matter. Menchel apparently scheduled the next witlI defense counsel, on July 31, 2007, to facilitate the USAO's presentation to the defepSe the "term sheet" describing the proposed terms of a non-prosecution agreement. By early August, after the K' lis attorneys—Starr and Lefkowitz—joined the defense team, Acosta believed th w ely "go to DC on the case, on the grounds . . . that I have not met with them." th the defense team was eventually scheduled for September 7, 2007, when A sta, S an, Villafana, and Oosterbaan met with Starr, Leflcowitz, and . In an email to Acosta explained that he intended to meet with the defense, with Oosterbaan parti ating, discuss general legal policy only." In another email to Sloman and Laurie, Acosta ex "This will end up [in the Department] anyhow, if we don't meet with them. I'd r' er k i here. Bringing [the CEOS Chief] in visibly does so. If our deadline has to slip a b do that, it's worth it." Acosta told OPR that the meeting "was not a negotiation," but a than efense to present their federalism arguments. Acosta said that he had already decided ted to resolve the case, and "[t]he September meeting did not alter or shift our positi 210 Lourie also recommended that the initial charging document "should contain only the victims they have nothing on at all." ah During her OPR interview, the FBI case agent recalled that defense counsel asked questions about the government's case, including the number of victims and the type of sexual contact involved, and that during a break in the meeting, she engaged in a "discussion" with Menchel about providing this information to Uo defense. She did not recall specifics of the discussion, however. 158 CA!Aronberg-000626 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736264 • • The meeting of USAO representatives and Epstein's defense attorneys, together with the State Attorney and the lead state prosecutor on September 12, 2007, was a necessary part of the NPA negotiation process. Even after the NPA was signed, the defense continued to request meetings and reviews of the case, both within the USAO and by the Department's Criminal Division and the Deputy Attorney General. Although limited reviews were granted, during this period there was only one substantive meeting with Acosta, on December 14, 2007.232 This meeting occurred in lieu of the meeting Starr had requested of Assistant Attorney General Fisher, most likely because th defense submissions to the Department's Criminal Division had raised issues not previously at with the USAO and the Department determined that Acosta should address those in the f ins n~ Acosta told 0PR that he did not ask for the Department review, but he also did t to ppear as if he "fear(ed)" that review. Acosta's nuanced position, however, r to the Department attorneys who responded to Epstein's appeals and who percei e o be in favor of a Department review, rather than merely tolerant of it. Notably, thou n. hose meetings or reviews resulted in the USAO abandoning the NPA, and Epst gajned no substantial advantage from his continued entreaties. In sum, in evaluating the subjects' conduct, OPR co d number of meetings, their purpose, the content of the discussions, and decisions m ds. OPR cannot say that the number of meetings, particularly those occurring bef h was signed, was so far outside the norm—for a high profile case with skilled def a ys—that the quantity of meetings alone shows that the subjects were motivated b m er avoritism. In evaluating the subjects' conduct, OPR considered that the meetings w h different levels of USAO managers and that the explanations for the decisions to te the meetings reflected reasonable strategic goals. Although OPR cannot rule out pos Iity that because Acosta, Menchel, Lourie, or Sloman knew or knew of the defen they may have been willing to meet with them, it is also true that prosecutors routin th defense attorneys, including those who are known to them and those who are no ore, meetings are more likely to occur in high profile cases involving defendants octal resources to hire skilled defense counsel who request meetings at the highest level th USAO and the Department. Most significantly, OPR did not find evidence support' a cone usion that the meetings themselves resulted in any substantial benefit to the defense. ebIt meeting, defense counsel strongly pressed the USAO—on factual, legal, and policy oun to forgo its federal investigation and to return the matter to the state to proceed as it fit. e USAO never yielded on that point. Accordingly, OPR did not find evidence •rti conclusion that Acosta, Sloman, Menchel, Lourie, or Villafana met with defense for the purpose of benefiting Epstein or that the meetings themselves caused Acostlf.Q er subjects to provide improper benefits to Epstein. 232 Acosta's October 12,2007 breakfast meeting with Lefkowitz is discussed separately in the following section 2.13 Stan and other defense attorneys only obtained one meeting at the Depanment level, with Deputy Assistant Attorney General Mandellter and CEOS Chief Oosterbaan in Mardi 2008. Although Starr requested a meeting with Assistant Attorney General Fisher and another with Deputy Attorney General Filip, those requests were not granted. 159 CA/Aronberg-000627 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736265 • • 2. The Evidence Does Not Establish That Acosta Negotiated a Deal Favorable to Epstein over Breakfast with Defense Counsel OPR separately considered the circumstances of one specific meeting that has been the subject of media attention and public criticism. The Miami Heralds November 2018 reporting on the Epstein investigation opened with an account of the October 12, 2007 breakfast meeting that defense counsel Jay Lefkowitz arranged to have with Acosta at the West Palm Beach Marriott hotel. According to the Miami Herald article, "a deal was struck" at the meeting to allow Epstein to serve "just 13 months" in the county jail in exchange for the shuttering oft federal investigation, and Acosta also agreed to "conceal" the full extent of Epstein's cri m the victims and the public.' Although public criticism of the meeting has focused that the meeting occurred in a hotel far from Acosta's Miami office, the evidence s hat costa traveled to West Palm Beach on October 11 for a press event and stayed o the hotel, near the USAO's West Palm Beach office, because at midday on Oct r to speak at the Palm Beach County Bench Bar Conference. After carefully onsi the evidence surrounding the breakfast meeting, including contemporaneous email mun cations and witness accounts, OPR concludes that Acosta did not negotiate the ake any significant concessions relating to it, during or as a result of the October meeting. Epstein and his attorneys signed the NPA on S 007—more than two weeks before the October 12 breakfast meeting. The sign ained all of the key provisions resulting from the preceding weeks of negotiate s be n the parties, and despite a later addendum and ongoing disputes about interpreti t dam ges provision of the agreement, those key provisions remained in place thereafter. OPR that throughout the negotiations with the defense, he sought three goals: s guilty plea in state court to an offense requiring registration as a sexual offen (2) ntence of imprisonment; and 3) a mechanism through which victims could obtain amages from Epstein. As noted previously, the USAO's original plea offer in a ugust 3, 2007 letter expressed a "non-negotiable" demand that Epstein agree to ea ern of imprisonment, and the final NPA required only an 18-month sentence, but th feces o o reduce the required term of imprisonment from 24 to 18 months was made well befo ta's breakfast meeting with counsel. The NPA signed on September 24, 2007, uired 8 months' incarceration, sexual offender registration, and a mechanism for the vict obtain monetary damages from Epstein, and OPR found that these terms were not ndon or materially altered after the breakfast meeting. At tim Acosta's October breakfast meeting with Lefkowitz, two issues involving the NPA di pute. Neither of those issues was ultimately resolved in a way that materially than provisions of the NPA. First, at Sloman's instigation, the USAO sought to change th ism for appointing an attorney representative for the victims. This USAO-initiated requ ha prompted discussions about an "addendum" to the NPA. Sloman sent the text of a propos NPA addendum to Lefkowitz on October I I, 2007.2 Although OPR found no decisive 3.14 Julie K. MI. "Perversion of Justice: How a future Tnnnp Cabinet member gave a serial sex abuser the deal of a lifetime." Miami Herald, Nov. 28, 2018. ns In his December 19, 2007, letter to defense attorney Acosta represented that he had proposed the addendum at the breakfast meeting. but it is clear the addendum was being developed before then. 160 CAthronberg-000628 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736266 • • proof that this led to the breakfast meeting, email exchanges between Lefkowitz and Acosta show that it was under discussion at the time they were scheduling the meeting. Shortly after the breakfast meeting, Sloman, in Miami, sent an email to Lefkowitz (copying Acosta and Villafafia), noting that he "just got off the phone with Alex" and offering a slightly revised portion of the addendum relating to the mechanism for selection of the attorney representative. Sloman later clarified for Villafafia that "lay's suggested revision has been rejected." A second area of continuing negotiation arose from the defense claim that Epstein's obligation under the NPA to pay the attorney representative's fees did not obligate him pay the fees and costs of contested litigation filed against him. Although this was at odds with a SAO'S interpretation of the provision, the USAO and defense counsel reached agreement and cla the provision in the NPA addendum that was finalized several weeks after the October breakfast Epstein to see fees and did not materially impede the victims' ability Picini meeting. Although the revised provision was to Epstein's advantage, thd mages i revisicl‘concemed attorney's under § 2255. The fact that the negotiations continued after the break meeting indicates that Acosta did not make promises at the meeting that resolved the issue. OPR found limited contemporaneous evidence cone discussion between Acosta and Leflcowitz. In a letter sent to Acosta on October 23 weeks after the breakfast meeting, Lefkowitz represented that Acosta made three si i cessions during the meeting. Specifically, Lefkowitz claimed that Acosta had a of to intervene with the State Attorney's Office's handling of the case, (2) not y of the victim-witnesses or their counsel, and (3) not to intervene regarding the n stein received. Acosta told OPR that he did not remember the breakfast meeting n recall making the commitments defense counsel attributed to him. Acosta also to t t Leflcowitz was not a reliable narrator of events, and on several occasions in w • unications had inaccurately and misleadingly characterized conversations he had Of more significance October 25, 2007 draft respo and edited for signature by S I speci in ccura in ice evaluation was a contemporaneous document—an witz's letter, which Sloman drafted, and Acosta reviewed at disputed Lefkowitz's claims. The draft letter stated: ant to clarify one of the items that I believe was hat October 23rd letter. Your letter claimed that this would not intervene with the State Attorney's Office regarding this matter; or contact any of the identified individuals, potential witnesses, or potential civil claimants and their respective counsel in this matter; and neither your Office nor the [FBI] would intervene regarding the sentence Mr. Epstein receives pursuant to a plea with the State, so long as that sentence does not violate state law. As we discussed and, hopefully, clarified, and as the United States Attorney previously explained in an earlier conference call, such a 161 CA/Aronberg-000629 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736267 • • promise equates to the imposition of a gag order. Our Office cannot and will not agree to this. It is the intent of this Office to treat this matter like any other case. Acosta told OPR that this was a polite way of chastising Lefkowitz for mischaracterizing what Acosta said during the breakfast meeting. Although OPR could not find evidence that the letter was sent to Lefkowitz, OPR nonetheless considers it persuasive evidence that Acosta, shortly after the breakfast meeting, disagreed with Lefkowitz's description of their discussion nd had discussed those disagreements with Sloman. 1,91 Nevertheless, OPR examined the three specific concessions that Lefko z escri ed in the October 23 letter, to determine whether evidence reflected that Acosta hid -ma e them during the breakfast meeting. First, Lefkowitz claimed that Acosta agreed during the breakfast meeting that he did not intend to interfere with the state's handling of the 'se Contemporaneous documents show that well before the breakfast meeting, Acosta had ex essed the view that he did not want to "dictate" actions to the State Attorney or the state court. For ple, during the NPA negotiations, Acosta asked Villafana to "soften" certain langua pared to require the State Attorney's Office or the state court to take specific actions, 'ring that Epstein enter his guilty plea or report to begin serving his sentence by a a Although Acosta may have made a statement during the breakfast meeting expre inclination to interfere with the state's proceedings, such a statement would have ration of his prior position on the subject, rather than any new concession. Lefkowitz also claimed in his Oct of the victims or potential witnesses o Chapter Three, OPR concludes that stem from the breakfast meetin consideiations discussed inte Sloman, and Villafaha. Finally, Lefkowitz's O regarding the senten "entitled to any type release." Lat that Acosta to make for altho allst of mun letter that Acosta agreed not to contact any sel. For the reasons discussed more fully in not to notify the victims about the NPA did not er reflected an assessment of multiple issues and subjects who participated in that decision: Acosta, r 23 letter suggested that Acosta had agreed not to intervene n received from the state court, and it asserted that Epstein was nce available to him, including but not limited to gain time and work Lions between the USA() and defense counsel, however, show clearly andon the NPA's explicit sentencing provision. The NPA required Epstein mmendation with the State Attorney's Office for an 18-month jail sentence, ies understood that he would receive the same "gain time" benefits available to es. After the October breakfast meeting, Sloman and Villafaha, on behalf of the S eatedly made clear that it would hold Epstein to that requirement, and the USAO also subseq ntly insisted that Epstein was ineligible for work release. For example, in a November 5, 2007 letter, Sloman requested confirmation from defense counsel that "Epstein intends to abide by his agreement to plead guilty to the specified charges and to make a binding recommendation that the Court impose a sentence of 18 months of continuous confinement in the county jail." Shortly before Epstein entered his plea in June 2008, Villafaha wrote to the State Attorney to remind him that the NPA required Epstein to plead in state court to an offense that required an 18-month , re 162 CA/Aronberg-000630 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736268 sentence of incarceration, and the USAO would consider a plea that differed from that requirement a breach of the NPA and would "proceed accordingly." The guilty plea Epstein entered in state court in June 2008 was consistent with the dictates of the NPA, and pursuant to that plea, the court imposed a sentence of 18 months' incarceration. Epstein, however, applied for and was accepted into the work release program, and was able to serve a substantial portion of his sentence outside of the jail. The NPA did not reference work release nor authorize Epstein to receive such benefits during his tenure at the Palm Beach County Stockade. Moreover, Villafafia received assurances from defense counsel that Epstein w Id serve his entire sentence of confinement "in custody." Responsibility for the decision to r pstein work release privileges during his incarceration rested with state officials, whpEa sole authority for administering the work release program. After considering the substantial record documenting the decision October 12, 2007 breakfast meeting with Lefkowitz, OPR found nothi that the meeting resulted in a material change to the NPA, affected t pursuant to the NPA, or contributed to state officials' decision to it release. er Acosta's to suggest nee Epstein served o participate in work F. Villafafia's Emails with Defense At n tcowitz during the NPA Negotiations Do Not Establish That a r Other Subjects, Intended to Give Epstein Preferential Treats t t o re Motivated by Favoritism or Other Improper Influences During the CVRA litigation, the under seal, a redacted series of email eacc (and others with Acosta and Sloman and thereafter. These emails h communications, and cons communications to Lefkowi Epstein's objections.236 M proof that Villafafla and the "sweetheart" deal a s tanned from Epstein's attorney, and filed ween Epstein attorney Lefkowitz and Villafafia ember 2007 when the NPA was being finalized, acted to delete most of Leflcowitz's side of the did not reflect the full context of Villafafia's acted emails were later unsealed and made public over rage pointed to the content and tone of Villafafia's emails as O worked in concert with Epstein's attorneys to keep the m the victims and the public. Statements in several emails in particular were led evidence of the USAO's improper favoritism towards Epstein. In one example, Vill a told Lefkowitz that she was willing to include in the NPA a provision agreeing not to pros , but would "prefer not to highlight for the judge all of the other crimes and all of the • ons that we could charge." She also offered to meet with him "`off campus" to fi • iations. She also proposed, lo]n an 'avoid the press' note," that filing federal chi r st Epstein in Miami rather than West Palm Beach would substantially reduce press cov ge. 216 The USAO did not object to the unsealing but requested additional redactions of portions that would reveal protected information United States' Response to Petitioners' Motion to Use Correspondence to Prove Violations of the ICVRAI and to Have Their Unredacted Pleadings Unsealed (Apr. 7, 2011). The court declined to order the additional redactions. 163 CA/Aronberg -000631 FILED: PA I.\1 BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736269 • • OPR asked Villafana about these emails and about the tenor of her interactions with Lefkowitz during the NPA negotiations and with other defense attorneys generally. Villafana acknowledged that their tone was collegial and collaborative, and explained that generally, the tone of these emails reflected her personality and her commitment to complete the task her supervisors had assigned to her: [I]f you were to pull all my e-mails on every case, you would find that that is how I communicate with people. I'm a Minnesota girl, and I prefer not to be confrontational until I have to be. And I can be when I need to be. But my instructions from my supervisors were to engage in these negotiations and to complete them. So I felt tha given that task, the best way to complete them was to reach agreement and, keeping in mind the terms that . . . our offi agreed to, and do that in a way that is civil. So . . alth language in the kind of introductory or prefatory comm with Mr. Lefkowitz was casual and was friendly, when ou I k at the terms and when he would come back to me as fo nges, my response was always, "No, I will not make ge." Villafafla denied any intention to keep the victims an improper benefit for Epstein, and she explained the in which Villafana expressed reluctance to "highli of the other persons that we could charge" was in the federal plea agreement the parties wer to prosecute Epstein's assistants and oth agreement state, "Epstein's fulfilling th initiation of any and all criminal ch [four named female assistants] or any criminal charge that arises the USAO was not intending could be charged, and thus Villafafla was concern require the govemmen lead Epstein toylaim court not di only one t such pro had n requ about the NPA or to provide e emails in question. The email dge all of the other crimes and all response to a defense proposal to include dering a promise by the government not oyes. Lefkowitz had proposed that the plea conditions of the Agreement also precludes the might otherwise in the future be brought against yee of [a specific Epstein-owned corporate entity] for ngoing federal investigation." Villafafla told OPR that pstein's assistants and was not aware of anyone else who oppose the request not to prosecute third parties. However, that an overly detailed federal plea agreement would prompt the court to vide further information about the uncharged conduct, which might govemment breached the agreement by providing information to the nnec ed to the charges to which he was pleading guilty. Villafafia was not the ncem about how deeply a federal court might probe the facts, and whether Id interfere with the viability of a plea agreement. In an earlier email, Lourie arging Epstein by complaint to allow the USAO more flexibility in plea s and avoid the problem that a court might not accept a plea to a conspiracy charge that dismissal of numerous substantive counts. As to Villafafla's offer to meet with Lefkowitz "off campus" to resolve outstanding issues in the NPA negotiation, she explained to OPR that she believed a face-to-face meeting at a "neutral" location—with "all the necessary decision makers present or 'on car— might facilitate completion of the negotiations, which had dragged on for some time. 164 CA/Aronberg-000632 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736270 • • With regard to her comment about "avoid(' ng] the press," Villafaha told OPR that her goal was to protect the anonymity of the victims. She said that the case was far more likely to be covered by the Palm Beach press, which had already written articles about Epstein, than in Miami, and "if (the victims) wanted to attend [the plea hearing], I wanted them to be able to go into the courthouse without their faces being splashed all over the newspaper." In evaluating the emails, OPR reviewed all the email exchanges between Villafaha, as well as Sloman and Acosta, and Lefkowitz and other defense counsel, including the portions redacted from the publicly released emails (except for a few to or from Acosta, copies of which4)PR did not locate in the USAO records). OPR also considered the emails in the broaden coittext of Villafaha's overall conduct during the federal investigation of Epstein. The documentary record, as well as witness and subject interviews, establishes that Villafana consistently advocated in favor of prosecuting Epstein and worked for months toward that goal. She repeatedly pressed her supervisors for permission to indict Epstein and made numerous efforts to ex and the scope of the case. She opposed meetings with the defense team, and nearly withd her supervisors agreed to those meetings. Villafaha objected to the d through a guilty plea in state court, and she engaged in a lengthy Menchel about that subject. When she was assigned the tas that resolution, Villafana fought hard during the ensuing ne despite defense counsel's aggressive tactics. e case because to resolve the case email exchange with ng an agreement to effect hold the USAO's position OPR also considered statements of her sup rding her interactions with defense counsel. Sloman, in particular, told OPR that tha Villafaha "was soft on Epstein . . . couldn't have been further from the truth." SI e d that Villafaha "did her best to implement the decisions that were made and to hold in a ntable." Lourie similarly told OPR that when he read the district court's Feb 201 inion in the CVRA litigation and the emails from Villafaha cited in that opinion, rprised to see how nice she was to them. And she winds up taking it on the chin for ce to them. When I know the whole time she was the one who wanted to go after hi a ost The AUSA who assisted Villafana on the investigation told OPR "everything that illafall did . . was, as far as I could tell, [ ] completely pro prosecution." Because the em' uestion were publicly disclosed without context and without other information sho ng Vi 'Mina's consistent efforts to prosecute Epstein and to assist victims, a eveloped that Villafaha colluded with defense counsel to benefit Epstein at the s. After thoroughly reviewing all of the available evidence, OPR finds that naccurate. The USAO's and Villafaha's interactions with the victims can be does in several respects in this Report, but the evidence is clear that any missteps ay have made in her interactions with victims or their attorneys were not made for the e of silencing victims. Rather, the evidence shows that Villafaha, in particular, cared deeply pstein's victims. Before the NPA was signed, she raised to her supervisors the issue of consulting with victims, and after the NPA was signed, she drafted letters to notify victims identified in the federal investigation of the pending state plea proceeding and inviting them to appear. The draft letters led defense counsel to argue to Department management that Villafaha and Sloman committed professional misconduct by "threaten[ing] to send a highly improper and unusual 'victim notification letter' to all" of the listed victims. Given the full context of Villafaha's conduct throughout her tenure on the case, OPR concludes that her explanations for her emails are vi public narrati expense o narrative to 1 crifi • V purp about 165 CNAronberg-000633 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736271 • • entitled to significant weight, and OPR credits them. OPR finds, therefore, that the emails in question do not themselves establish that Villafafta (or any other subject) acted to improperly benefit Epstein, was motivated by favoritism or other improper influences, or sought to silence victims. G. The Evidence Does Not Establish That Acosta, Lourie, or Villafaila Agreed to the NPA's Provision Promising Not to Prosecute "Potential Co-conspirators" in Order to Protect Any of Epstein's Political, Celebrity, or Other Influential Associates OPR examined the decision by the subjects who negotiated the NPA—Vil rie, and Acosta—to include in the agreement a provision in which the USAO agree o p •secute "any potential co-conspirators of Epstein," in addition to four named indiv)duals, r. determine whether that provision resulted from the subjects' improper favoritism tdwards'iEi or an improper effort to shield from prosecution any of Epstein's known a aces Other than various drafts of the NPA and of a federal plea agreement, OPR found littl in the contemporaneous records mentioning the provision and nothing indicating that the su 'ects ssed or debated it— or even gave it much consideration. Drafts of the NPA and that the final broad language promising not to prosecute "an evolved from a more narrow provision sought by the defe and defense counsel exchanged drafts of, first, a pro NPA, with apparently little analysis and no subst provision.237 As the NPA drafting process co supervisor a draft that contained the n [defense counsel's] requested langu commenting only, "I don't think,] \ed, illafana circulated to Lourie and another ion provision, telling Lourie it was "some of ng promises not to prosecute other people," and In a reply email, Lourie responded to another issue eral plea agreement show nspirators of Epstein" vision expanded as Villafafta plea agreement and, then, of the ssion within the USAO about the 737 As set forth in OPR's f 1 discus376n, early in the negotiations over a federal plea agreement, the defense sought a non-prosecution pro pl blc to only four female named assistants of Epstein and to unnamed employees of one of his companies. lafaila initially countered with "standard language" referring to unnamed "co-conspirators" so as to "highlightlingt for the judge all of the other crimes and all of the other persons that we could charge: Nona, farts of the NM sent by Lefkowitz after Vinafafta's entail continued to include language referring the fo ),,named assistants and unnamed employees. Villatalia, however, internally circulated drafts of a fede agreement that included language stating, "This agreement resolves the federal criminal liability coconspirators in the Southern District of Florida growing out of any criminal conduct by it to the IUSAOI as of the date of this plea agreement." The federal plea agreement draft revised on September 20, 2007, included that language. When the defense team reverted to negotiation Intifada advised them, "In the context of a non-prosecution agreement, the (USAOI may be more ific about not pursuing charges against others." The next day, Leflcowitz sent a revised draft NPA to the four named assistants, "any employee" of the mined company, and "any unnamed co-conspirators for any criminal charge that arises out of the ongoing federal investigation." The language was finally revised by Villafana to prohibit prosecution of "any potential co-conspirators of Epstein, including but not limited to [the four mined assistantsl." In commenting on OPR's draft report. Villafaila's counsel and Lourie both noted that the non-prosecution provision could bind only the USAO, and Lourie further opined that it was limited to certain specified federal charges and a time-limited scope of conduct. Although the non-prosecution provision in the NPA did not explicitly contain such limitations, those limitations were included in other parts of the agreement. of the defe those persc by Lo of state c will reran 166 CA/Aronberg-000634 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736272 • • Villafana had raised (defense counsel's attempt to insert an immigration waiver into the agreement), but Lourie did not comment on the provision promising not to prosecute co- conspirators or ask Villataha to explain why she believed the provision did not harm the government's interests. In a subsequent email about the draft NPA, Villafaha asked Lourie for "[a]ny other thoughts," but there is no indication that he provided further input. OPR found no document that suggested Villafaha and Lourie discussed the provision further, or that the other individuals who were copied on Villafaha's email referencing the provision—her immediate supervisor, the supervisor designated to succeed Lourie as manager of the West Palm Beach office, and Villafaha's co-counsel—commented on or had substantive discussions about it. Villafana told OPR that because none of the three supervisors responded to her observation t t e non- prosecution provision "doesn't hurt us," Villafaha assumed that they agreed with ent. Villafaha told OPR that she could not recall a conversation specifical provision agreeing not to prosecute "any potential co-conspirators," but she re e • g nerally that defense counsel told her Epstein wanted "to make sure that he's the onl one kes the blame for what happened." Villafaha told OPR that she and her colleagues lieu Epstein's conduct was his own "dirty little secret." Villafaha said that press cove at t e of Epstein's 2006 arrest did not allege that any of his famous contacts participated n E n's illicit activity and that none of the victims interviewed by the case agents before th 'A wa .gned told the investigators about sexual activity with any of Epstein's well-known ntacts out whom allegations arose many years later.23° Villafaha acknowledged that itariigators were aware of Epstein's longtime relationship with a close female friend who w a well-known socialite, but, according to Villafaha, in 2007, they "didn't have any specifiosvidence against her."2' 9 Accordingly, Villafaha believed that the only "co-conspirators" of Epstein leo/would benefit from the provision were the four female assistants identified by name. VillafafiE also told OPR that the focus of the USAO's investigation was Epstein, and the office was not inclined to prosecute his four assistants if he entered a plea.' Because Vitiator) Was unaware of anyone else who could or would be charged, she perceived no reason to obj to rision promising not to prosecute other, unspecified "co-conspirators." Villafaha t t t given her understanding of the facts at that time, it did not occur to her that the refer tee toio er "potential co-conspirators" might be used to protect any of Epstein's influential assoc Lourie, who w tioning to his detail at the Department's Criminal Division at the time Villafaha f rd t him the draft NPA containing the non-prosecution provision, told OPR that he did n ow h the provision developed and did not recall any discussions about it. rx involved them It was only Jeffrey Epstein." 239 The FBI had interviewed one victim who implicated the female friend in Epstein's conduct, but the conduct involvi the then minor did not occur in Florida. Id OPR that "none of . . . the victims that we spoke with ever talked about any other men being D10 The FBI had learned that one of Epstein's female assistants had engaged in sexual activity with at least one girl in Epstein's presence; this assistant was one of the mined individuals for whom the defense sought the govenunent's agreement not to prosecute from the outset. Villafafta explained to OPR that this individual was herself believed to also have been at one time a victim. 241 Villafaila told OPR that the USAO had decided that girls who recruited other girls would not be prosecuted. 167 CA/Aronberg-000635 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736273 • • Lourie described the promise not to prosecute "potential co-conspirators" as "unusual," and told OPR that he did not know why it was included in the agreement, but added that it would be "unlike me if 1 read that language to just leave it in there unless I thought it was somehow helpful." Lourie posited that victims who recruited other underage girls to provide massages for Epstein "theoretically" could have been charged as co-conspirators. He told OPR that when he saw the provision, he may have understood the reference to unnamed "co-conspirators" as "a message to any victims that had recruited other victims that there was no intent to charge them." Acosta did not recall any discussions about the non-prosecution provision. B he told OPR that Epstein was always "the focus" of the federal investigation, and he would v viewed the federal interests as vindicated as long as Epstein was required to fa • gful consequences" for his actions. Acosta told OPR that when he reviewed the d A, "[ ]o the extent I reviewed this co-conspirator provision, I can speculate that my thin • have been the focus is on Epstein[ ] . . going to jail. Whether some of his emplo go jail, or other, lesser involved [individuals], is not the focus of this." Acosta also at he assumed Villafaha and Lourie had considered the provision and decided that i propriate. Finally, Sloman, who was not involved in negotiating the NPA, told OPR tin spect, he understood the non-prosecution provision was designed to protect Epst r assistants, and it "never dawned" on him that it was intended to shield anyone else. This broad provision promising not to pr t potential co-conspirators" is troubling and, as discussed more fully later in this did not find evidence showing that the subjects gave careful consideration to the p en pe of the provision or whether it was warranted given that the investigation ha ailed and the USAO lacked complete information regarding possible co-conspi Vt afaiia precipitously revised a more narrow provision sought by the defense. Give evo ion from a provision sought by the defense, it appears unlikely to have been desi the victims, and there is no indication that at the time, the subjects believed that w . However, the USAO had not indicated interest in prosecuting anyone other t f r named female assistants, and OPR found no record indicating that Epstein had e ress ncem about the prosecutive fate of anyone other than the four assistants and unnam oyees of a specific Epstein company. Accordingly, OPR concludes that the evi nce does not show that Acosta, Lourie, or Villafaha agreed to the non- prosecution provision sect any of Epstein's political, celebrity, or other influential associates.242 te i Lne final issue OPR explored stemmed from media reports suggesting that Epstein may have ived special treatment from the USAO in return for his cooperation in another federal Investigation Did Not Reveal Evidence Establishing That Epstein °operated in Other Federal investigations or Received Special Treatment on hat Basis 242 As previously stated, Slontan was onvacation when Villafafla included the provision in draft plea agreements and did nbt monitor the cast or COITLIIICIII on the various iterations of the NPA that were circulated during his absence. Menthel left the USAO on August 3, 2007, before the panics drafted the NPA. 168 CA/Aronberg-000636 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736274 investigation.2c Media reports in mid-2009 suggested Epstein was released from his state incarceration "early" because he was assisting in a financial crimes investigation in the Eastern District of New York involving Epstein's former employer, Bear Steams. At the time, Villafana was notified by the AUSAs handling the matter that they "had never heard of Epstein and he was providing "absolutely no cooperation" to the government. In 2011, Villafafla reported to senior colleagues that "this is urban myth. The FBI and I looked into this and do not believe that any of it is true." Villafafla 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 hadreen an "intelligence asset." 244 In addition to the contemporaneous record attesting that Epstein was pdrating witness in a federal matter, OPR found no evidence suggesting that Epstein w. perating witness or "intelligence asset," or that anyone—including any of of OPR's investigation—believed that to be the case, or that Epstein was afford efit on such a basis. OPR did not find any reference to Epstein's purported ition, oy 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 unlike that fense counsel would have omitted any reason warranting leniency for Epstein if it ha Accordingly, OPR concludes that none of th Epstein with any benefits on the basis that he was, investigation, and OPR found no evidence es cooperation in any matter. OPR's investigation provided ng witness in an unrelated federal g that Epstein had received benefits for V. ACOSTA EXERCISED POOILJUO MENT BY RESOLVING THE FEDERAL INVESTIGATION THROU NM Although OPR finds th o the subjects committed professional misconduct in this matter, OPR concludes that costa rcised poor judgment when he agreed to end the federal investigation through the NP Ac ta's flawed application of Petite policy principles to this case and his concerns with verstepping the boundaries of federalism led to a decision to resolve the federal investigation th n NM that was too difficult to administer, leaving Epstein free to manipulate the nditi s of his sentence to his own advantage. The NPA relied on state authorities to ement is key terms, leading to an absence of control by federal authorities over the proces Ith. h the prosecutors considered certain events that they addressed in the NPA, such as in tt e and community control, many other key issues were not, such as work release and m is for implementing the § 2255 provision. Important provisions, such as promising n ecute all "potential co-conspirators," were added with little discussion or consideration by t prosecutors. In addition, although there were evidentiary and legal challenges to a 243 See, e.g., Julie K. "Perversion of Justice: How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime, iami Herald: Nov. 28, 2018. When OPR asked Acosta about his apparent equivocation during his 2019 press conference, in answering a media question about whether he had knowledge of Epstein being an "intelligence asset," Acosta stated to OPR that "the answer is no." Acosta %%as made aware that OPR could use a classified setting to discuss intelligence information. 169 CA/Aronberg-000637 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736275 • • successful federal prosecution, Acosta prematurely decided to resolve the case without adequately addressing ways 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 USA() 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 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 act that some of Epstein's conduct known today was not known in 2007 and that other circum an have changed in the interim, including some victims' willingness to testify. OPR has e ated Acosta's decisions in a framework that recognizes and allows for decisions that de in good faith, even if the decision in question may not have led to the "best" result ally could have been obtained. Nonetheless, after considering all of the available evi the totality of the then-existing circumstances, OPR concludes that Acosta exercis p ent in that he chose an action or course of action that was in marked contrast to that w Department would reasonably expect of an attorney exercising good judgment. A. Acosta's Decision to Resolve the Federal under Terms Incorporated into the NP of the Petite Policy and Federalism Significant Disadvantages of a Sta on through a State Plea on a Flawed Application and Failed to Consider the esolution The Department formulated the Petit response to a series of Supreme Court opinions holding that the Constitution d den tate and federal governments the power to prosecute for the same act. Respondin the rt's concerns about the "potential for abuse in a rule permitting duplicate prosecutio partment voluntarily adopted a policy of declining to bring'a federal prosecution folio a pleted state prosecution for the same conduct, except when necessary to advance a rn eral interest. See Renal& v. United States, 434 U.S. at 28. On its face, the Petit polio plies to federal prosecutions that follow completed state prosecutions. USAM § 9-2. is policy applies whenever there has been a prior state . prosecution resulting i an acq 1, a conviction, including one resulting from a plea agreement, or a dismissal or other lion of the case on the merits after jeopardy has attached."). When a state investigation or ution is still pending, the policy does not apply. Indeed, even when a state prosecuti has r tilted in a decision on the merits, the policy permits a subsequent federal prosecutio whe ee substantive prerequisites are satisfied: a "substantial federal interest" exists, "t a res t i the prior state prosecution was manifestly inadequate in light of the federal inte i Iv ," and there is sufficient admissible evidence to obtain and sustain a conviction arges. The policy also does not apply when "the prior prosecution involved only a min art 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, Villafana identified five federal statutes that Epstein had potentially violated. The CEOS Chief described Villafaxia's assessment of these 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. 170 CNAronberg-000638 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736276 • • Notably, in the early 2000s, the Department had begun pursuing specific initiatives to combat child sex trafficking, including Project Safe 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 a conviction, acquittal, or other decision on the merits, the Petite policy did not apply and certainly did not preclude a federal prosecution of Epstein. He had been charged with ne state charge of solicitation to prostitution on three occasions, involving one or more r ons without regard to age—a charge that would have addressed only a scant portion the duct under federal investigation. Acosta acknowledged to OPR that the Petite polic is face" did not apply. Moreover, the State Attorney did not challenge the federal gov sumption of prosecutorial responsibility, and despite having obtained an indictment, on proceeding with the state prosecution in deference to the • federal government' ent. In these circumstances, the USAO was free to proceed with a prosecution suffi Sent t ensure vindication of the federal interest in prosecuting a man who traveled interstat to prey upon minors. The federal government was uniquely positioned to fully inv e conduct of an individual who engaged in repeated criminal conduct in Florida but veled extensively and had residences outside of Florida. Even if the Petite policy , OPR has little doubt that the USAO could have obtained authorization from the Deydlltpe proceed with a prosecution under the circumstances of this case.245 Despite the undeniable federal interes p tng Epstein, the fact that the Petite policy did not apply, and the State Attorney's nes to hold the state prosecution in abeyance pending the federal government's assu n o e case, Acosta viewed the federal government's role in prosecuting Epstein as limit ples of federalism.24 In essence, Acosta believed that a federal prosecution wool htjye, erfered improperly with the state's authority. He explained his reasoning to OP 343 In 2008, the Of orr.ement Operations, the office charged with reviewing Petite policy waiver requests, opined it en if I Petite policy applied with respect to the victims of the indicted state charges, it would not apply to f rosecuuon of charges relating to any other victim. The office also noted that if other factors existed, sue interne. to contact victims, those factors might warrant a waiver of the policy, if it did apply. :46 I m ling on OPR's draft report, Acosta's counsel argued that OPR inappropriately bifurcated Acosta's come of the other subjects. However, OPR's investigation made clear that, although Acosta shared his concerns about the strength of the care, victim-witness credibility, and the novelty of some legal der he alone focused on federalism issues. Acosta's comet also asserted that OPR "misunderstands and devalue- ram Acosta's vcry real and legitimate interest in the development of human trafficking laws," and counsel further noted Acosta's concerns that "bringing a case with serious evidentiary challenges pressing novel legal issues could result in an outcome that set back the development of trafficking laws and resulted in an aggregate greater harm to trafficking victims." Although OPR carefully considered counsel's arguments and agrees that it was appropriate to consider any implications the proposed prosecution of Epstein might have for the Department's anti- uafficking efforts, OPR does not believe that thosc concerns warranted resolving the matter through the NPA, which, for the reasons discussed in this Section, failed to satisfy the federal interest and allowed Epstein to manipulate the state system to his benefit. 171 CA/Aronberg-000639 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736277 • • [The prosecution] was going forward on the pan 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 [P]etite policy is to recognize 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 o Epstein would have become final, and accordingly, it was "prudent" to employ Petite policy a sis. In Acosta's view, "the federal responsibility" in this unique situation was merely to s as ack- stop [to] state authorities to ensure that there [was] no miscarriage ofjustice."" a tol OPR that he understood the PBPD would not have brought Epstein to the FBI's I the State Attorney had pursued charges that required Epstein's incarceration. Acosta decided that the USA() could avert a "manifest injustice" by forcing the state to d equi re Epstein to serve time in jail and register as a sexual offender. Acosta's reasoning was flawed and unduly constricted c. .'s repeated references to a "miscarriage of justice" or "manifest injustice" echoes the" inadequate" language used in the Petite policy to define the circumstances in which t :overnment may proceed with a criminal case Wier a completed state prosecution. N g Petite policy, however, requires similar restraint when the federal government pu n the absence of a completed state prosecution, even if the state is already investi tt t e same offense. The goal of the Petite policy is to prevent multiple prosecutions e offense, not to compel the federal government to defer to a parallel state int e n a se, particularly one in which state officials involved in the state prosecution expres sigm nt concerns about it, and there were questions regarding the state prosecutor's the case. Acosta told OPR that "there are any number of instances where the f ment or the state government can proceed, and state charges are substantially less t, and . . . the federal government . . . stands aside and lets the state proceed." The ct tha i e federal government can allow the state to proceed with a prosecution, however, does n the federal government is compelled to do so, particularly in a matter in which a di nct an important federal interest exists. Indeed, the State Attorney told OPR that the federal ment regularly takes over cases initiated by state investigators, typically becaus' edera harges result in "the best sentence." Ep facing a substantial sentence under the federal sentencing guidelines.' Despite e A cro Memo's directive that federal prosecutors pursue "the most serious readily prov " Acosta's decision to push "the state to do a little bit more" does not approach th In fact, Acosta conceded during his OPR interview that the NPA did not represent an" ropriate punishment" in the federal system, nor even "the best outcome in the state system," and th if the investigation of Epstein had originated with the FBI, rather than as a referral from the PBPD, the outcome might have been different. As U.S. Attorney, Acosta had the authority to 247 Letter from R. Alexander Acosta "To whom it may concern" at I (Mar. 20, 2011), published online in The Daily Beast. 242 Villafada estimated that the applicable sentencing guidelines range was 168 to 210 months' imprisonment 172 CA/Aronberg-000640 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736278 • • depart from the Ashcroft Memo. He told OPR, however, that he did not recall discussing the Ashcroft Memo with his colleagues 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 the strong federal interest in this case, on the one hand, and his broad reading of the Petite 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' a tonomy resulted in an outcome—the NPA—that intruded far more on the state's autonomy n *sion to pursue a federal prosecution would have.' By means of the NPA, the f ove ent dictated to the state the charges, the sentence, the timing, and certain conditi • state had to obtain during the state's own prosecution. Acosta acknowledged durin OP i terview that his "attempt to backstop the state here[] rebounded, because in the pro ss nded up being arguably more intrusive." Acosta's concern about invading the state's auth, ty to additional negative consequences. Acosta revised the draft NM in several respects to"so en" its ton; by substituting provisions requiring Epstein to make his "best efforts" for leguag at appeared to dictate certain actions to the state. In so doing, however, Acosta and • nZ4 the enforceability of the agreement, making it difficult later to declare Epstein in brea en led to comply. OPR found no indication that when d c resolve the federal prosecution through a mechanism that relied completely on state? n, A sta considered the numerous disadvantages of having Epstein plead guilty in the stet urt em, a system in which none of the subjects had practiced and with which they were u illafana recognized that there were "a lot of ways to manipulate state sentences," h OPR that she was concerned from the outset of negotiations about entering int ecause by sending the case back to the state the USAO was "giving up all control ov r what going on." Villafatia also told OPR that defense counsel "had a lot of experience wit to system. We did not." Epstein's ability to obtain work release, a provision di ly ry to the USAO's intent with respect to Epstein's sentence, is a clear example of the p faced by the prosecutors when trying to craft a plea that depended on a judicial sy em th hich they were unfamiliar and over which they had no control. Although the a of g n time was considered and addressed in the NPA, none of the subject attorneys is the NPA realized until after the NPA was signed that Epstein might be eligible f re ease. Acosta, in particular, told OPR that "if it was typical to provide that kind of w n these cases, that would have been news to me." Because work release was not , e NPA did not specifically address it, and the USAO was unable to foreclose Epstein yang for admission to the program. 249 The Petite policy only applies to the Depanment of Justice and federal prosecutions. It does not prevent state authorities from pursuing state charges after a federal prosecution. See, e.g., United States v. Nichols and State v. Nichols (dual prosecution for acts conunitted in the bombing of the Oklahoma City federal building). However, in practice and to use their resources most efficiently, state authorities often choose not to pursue state charges if the federal prosecution results in a conviction. 173 CA/Aronberg-000641 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736279 • • 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 benefitting 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 at the ti of her interactions with Epstein, even though Epstein also had sexual contact with a I4-y victim. The victim's age made a difference, as the age of consent in New Mexico, wher stet ad a residence, was 16; therefore, Epstein was not required to register in that state. 2 letter from defense counsel Lefcourt to the State Attorney's Office made clear, a team had thoroughly researched the details and ramifications of Florida's sexu I r registration requirement; OPR did not find evidence indicating similar research aeration by the USAO. Finally, Acosta was well aware that the PBPD brou se to the FBI's attention because of a concern that the State Attorney's Office had to "pressure" from defense counsel. Villafafia told OPR that she informed both Ac Sj. an of this when she met with them at the start of the federal investigation. Althou s not remember the meeting with Villafafia, he repeatedly told OPR during his int t e was aware that the PBPD was dissatisfied with the State Attorney's Office's d oft e case. Shortly before the NPA was signed, moreover, additional information cargtto at suggested the State Attorney's Office was predisposed to manipulating the prr66ccesss in pstein's favor. Specifically, during the September 12, 2007 meeting, at the s oscattor's suggestion, the USAO team agreed, with Acosta's subsequent approval, to p in to plead guilty to one state charge of solicitation of minors to engage in prosti ra than the three charges the USAO had originally specified. The state prosecut9Plas ne that the selected charge would require Epstein to register as a sexual offender. Shortly t eafter, the USA() was told by defense counsel that despite the assurances made to Lourie, state prosecutor had advised Epstein—incorrectly, it turned out—that a plea to th articular offense would not require him to register as a sexual offender. Yet, despite this evide ch at least suggested that the state authorities should not have been considered to relic partner in enforcing the NPA, Acosta did not alter his decision about proceeding v process that depended completely on state authorities for its successful execution s that Acosta was reasonably aware of the facts and circumstances presented by e stated that he engaged in discussions about various aspects of the case with Sloman and nchel, and relied upon them for their evaluation of the legal and evidentiary issues and for their a sessment 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 a federal prosecution to dictate the terms of 174 CA/Aro n berg-000642 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736280 • • 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 use the NPA.2il B. 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 t also troubling because the USAO reached agreement on the terms of the NPA with uing evidence that could have changed the complexion of the case or afforded t • ignificant leverage in negotiating with Epstein. Acosta told OPR that his decision the federal investigation through the NPA was, in part, due to concerns about t the case and concerns about whether the government could win at trial. Yet, A tam de the decision to resolve the case through a state-based resolution and extended th ro o Epstein's defense attorneys before the investigation was completed. As the j yes tion progressed, the FBI continued to locate additional victims, and many had not b intervi ed by the FBI by the time of the initial offer. In other words, at the time of Acosta' decisio* , the USA() did not know the full scope of Epstein's conduct; whether, given Epsteiri's other domestic and foreign residences, his criminal conduct had occurred in other locati implicate other offenders. In addition, Villaf attempt to obtain cooperation, but that step ha the investigation without the USAO ha significant evidence: the computers re of a search warrant. ••or-whether the additional victims might neeto approach the female assistants to ken.2S2 Most importantly, Acosta ended ed an important category of potentially Epstein's home prior to the PBPD's execution The PBPD knew that E t a surveillance cameras stationed in and around his home, which potentially captured vi evi, ce of people visiting his residence, and that before the state Acosta told OPR that he und2ISfbod that if Epstein had pled to the original charges contemplated by the state, he would have received a t r sentence, and in that Circumstance, the PBPD would not have brought the case to the FBI. OPR was unable t e that charges originally contemplated by the state would have resulted in a two- year sentence. OP invest' ton confirmed, however, that the PBPD brought the cast to the FBI because the PBPD Chief was dissa with the state's handling of the matter. 23i I om m on OPR's draft report, Acosta's attorney stated that Acosta "acceptredl OPR's conclusion that defcm pro bon of Jeffrey Epstein to the State Attorney rather than proceeding with a federal indictment or a Wend plea , in hindsight, poor judgment." Acosta also acknowledged that the USAO's handling of the matter "wtfald have benefited from more consistent staffing and attention. No one foresaw the additional challenges that the chosen resolution would cause. And the [NPAI relied too much on state authorities, who gave Epstein and his cotutsel too much wiggle-room.- Acosta's counsel also noted that Acosta welcomed the public release of the Report, "did not challenge OPR's authority, welcomed the review, and cooperated fully." 232 Although the FBI interviewed numerous employees of Epstein and Villafafta identified three of his female assistants as potential co-conspirators, at the time that the USAO extended the tenns of its offer, them had been no significant effort to obtain these individuals' cooperation against Epstein. The FBI attempted unsuccessfully to make contact with two female assistants on August 27, 2007, as Epstein's private plane was departing for the Virgin Islands, but agents were unable to locate them on board the plane. 175 CA/Aronberg-000643 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736281 • search warrant was executed on that property, the computer equipment associated with those cameras had been removed. Villafana knew who had possession of the computer equipment. Surveillance images might have shown the victims' 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 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 avid told OPR that the FBI had information that Epstein used hidden cameras in his N to record his sexual encounters, and one victim told agents that Epstein's a her in the nude. Based on this evidence, and experience in other sex Villafafia and several other witnesses opined to OPR that the corn pu child pornography. Moreover, Epstein lived a multi-state lifestyle; it that he may have transmitted still images or videos taken at his F•• to be accessed while at one of his other homes or while traveli g child pornography was a separate, and serious, federal crime that complexion of the case against Epstein.253 Villafatia to d PR, "[ we suspected it was . . . [i]t would have put this pletely to bed. It also would have completely defeated all of these arguments about i xus." fans residence tographed n lying mi nors, ave contained as onable to assume a r nce over the internet e interstate transmission of Id have changed the entire f the evidence had been what Because she recognized the potential of this evidence, Villafafia attempted to obtain the missing computers. After Vill ear that an individual associated with one of Epstein's attorneys had possession of the comp r equipment that was removed from Epstein's home, she consulted with Departmr •subject matter experts to determine how best to obtain the evidence. Following the advice she received and after notifying her supervisors, Villafafia took legal steps to obtain the comp ter equipment e ense attorney postpone waive with the USAO's demand for the requested an extension of time to comply; , and Lourie of the request, Villafafia stressed that "we want to get at was removed from Epstein's home prior to the state search warrant Sh6 agreed to extend the date for producing the computer equipment by one 2007. On that day, Epstein initiated litigation regarding the computer t litigation was still pending at the end of July, when Acosta decided to resolve Epstein's team sou equipment. In late Ju 2007, in informing Sloman, the computer egpipmen as soon as po week unti equipm I. e," to .S.C. § 2251(a) provides, in pertinent part Any person who . . . induces . . . any minor to engage in . . . any sexually explicit conduct for thc purpose of producing any visual depiction of such conduct, shall be punished . . . if such person knows or has reason to know that such visual depiction will be . . . transmitted using any means or facility of interstate . . conunerce or inor affecting interstate ... commerce ... lorl if that visual depiction was produced or Uansmiticd using materials that have been mailed, shipped, or transported in or affecting interstate or . . . commerce by any means, including by computer. 176 CA/Aronberg-000644 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736282 • • 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 Menchel 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, Villafatla ction of oppose the continued to press ahead to have the court resolve the issue concerning the defense pr the computer equipment. On August 10, 2007, she asked Lourie for authorizatio Epstein's efforts to stay the litigation until after an anticipated meeting between the defense, informing Lourie that a victim interviewed that week claimed she start mg Epstein at age 14 and had been photographed in the nude. A few days later, Villafafi told defense counsel that she had "conferred with the appropriate people, and we are not wil in to agree to a stay." Defense counsel then contacted Lourie, who agreed to postpone t eating until after the upcoming meeting with Acosta. After the meeting, and when the cou sou t to reschedule the hearing, Villafafia emailed Sloman to ask if she should "put it ed, "Yes," and the hearing was re-set for September 18, 2007. As negotiati rds the NPA progressed, however, the hearing was postponed indefinitely. Ultimat itself put the issue to rest by specifying that all legal process would be held in abp ug s and until Epstein breached the agreement. Villafafia told OPR that she had learned team had reviewed the contents of Epstein's that the defense was trying desperately t importance of the evidence." OPR questioned Acosta negotiations while the litigat postpone the litigation rath evidence. Acosta told OPR computers, but he be 'eyed tha regarding the plea. Menc efforts to to OPR Villafi th Epsi law enforcement channels that the defense She told OPR that, in her view, "the fact ff dfe hearing . . was further evidence of the decisions to initiate, and continue with, the NPA ng the computers was still pending, and to agree to austing all efforts to obtain and review the computer ad no recollection of Villafafia's efforts to obtain the missing 'there was a desire to move quickly as opposed to slowly" Slom , and Lourie also all told OPR that they did not remember Villafafta's mputers or recalled the issue only "vaguely." Menchel expressed surprise ecutor could obtain "an entire computer" through the method utilized by OPR, "1 had not heard of that." However, the contemporaneous records show enchel, and Lourie had each been aware in 2007 of Villafana's efforts to obtain 's missing computer equipment. Villafafia kept Menchel, in particular, well informed of her efforts to obtain the computer equipment. She sent to Menchel, 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. Villafafia told OPR that Lourie was involved in early discussions about her proposal to obtain the evidence. Lourie also received Villafafta's July 16, 2007 email discussing the computer equipment and the plan to obtain it, and on one occasion he spoke directly 177 CAlAronberg-000645 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736283 • • 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 Villafaha 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 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 w signed, he was informed about the use of legal process for obtaining the computer equipmetr 7 e NPA itself provides that "the federal.. . investigation will be suspended, and all pending [lega will be held in abeyance," that Epstein will withdraw his "motion to intervene and to quash certain [legal process]," and, further, that the parties would "maintain . . . evidepce subhet to [legal process] that have been issued, and including certain computer equipment, inviolate" until the NPA's terms had been fully satisfied, at which point the legal pr tess would be "deemed ktit( withdrawn." (Emphasis added.) Acosta's numerous edits on the NPA' mai draft suggest that he gave it a close read, and OPR expects that Acosta would not have rov e agreement without understanding what legal process his office was agreeing to or why the only type of evidence specified was "certain computer equipment." lira• Acosta told OPR that he worked closely with Sloman and Menchel, consulted wi h • relied on their counsel about the case. Among other things, Acosta said he discuss concerns about the law and the evidentiary issues presented by a federal cumin fore, although it is possible that Sloman made the decision to postpone the heap ceming the USAO's efforts to obtain the computer equipment without consulting Aco sta reviewed the draft NPA, Acosta was on notice of the existence of and the ong iga on concerning Epstein's missing computer equipment. Villafaha knew where th were; litigation over the demand for the equipment was already underway; there son to believe the computers contained relevant—and potentially critical—inform it was clear Epstein did not want the contents of his computers disclosed. Nothi e available record reveals that the USAO benetitted from abandoning pursuit of is evidence when they did, or that there was any significant consideration of the costs and ben forgoing the litigation to obtain production of the computers.254 Instead, the US S agr to postpone and ultimately to abandon its efforts to obtain evidence that could have si candy hanged Acosta's decision to resolve the federal investigation with a state guilty pl eel ditional significant federal charges. By agreeing to postpone the litigation, the USA t gay. away leverage that might have caused the defense to come to an agreement much earli rms more favorable to the government. The USAO ultimately agreed to a term in permanently ended the government's ability to obtain possible evidence of significant CA1M and did so with apparently little serious consideration of the potential cost. 254 If the USAO had significant concerns about its likelihood of prevailing, postponing the litigation to use it as leverage in the negotiations might have been strategically reasonable. Louric suggested in his response to his interview transcript that the court might have precluded production of the computers. However, OPR saw no evidence indicating that Villafaria or her supervisors were concerned that the court would do so, and Villafaria had consulted with the Department's subject matter experts before initiating her action to obtain the equipment. 178 CA/Aronberg-000646 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736284 • • To be clear, OPR is not suggesting that prosecutors must obtain all available evidence before reaching plea agreements or that prosecutors cannot reasonably determine that reaching a resolution is 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 than what had been 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 for obtaining evidence revealing serious additional criminal conduct, Acosta had a responsibility to ensure that he was fully informed about the con uences of pursing the course of action that he proposed and particularly about the conseque owing from the express terms of the NPA. In deciding to resolve the case pre-charge, Acosta lo fight of the bigger picture that the investigation was not completed and viable leads remain to be pursued. The decision to forgo the government's efforts to obtain the coin vidence and to pursue significant investigative steps should have been made only after ul nsideration of all the costs and benefits of the proposed action: OPR did not find iden at Acosta fully considered the costs of ending the investigation premature' y.2" C. OPR Was Unable to Determine the Ba Incarceration, That It Was Tied to Tract' Satisfied the Federal Interest in the Pr the Two-Year Term of tencing Goals, or That It The heart of the controversy surrounding t st se is the apparent undue leniency afforded him concerning his sentence. After a eal that required a "non-negotiable" 24-month term of incarceration, Acosta a it for an 18-month term of incarceration, knowing that gain time would reduce it indeed, Epstein served only 13 months. Epstein ultimately did not serve even t rot al sentence incarcerated on a full-time basis because the state allowed Epstein in elease program within the first four months of his sentence. As Lourie told OPR, a ng else that happened to [Epstein) is exactly what should have happened to him e d to pay a lot of money. He had to register as a sex offender," but "in the perfect orld, would have served more time in jail." Due to the pas e of time and the subjects' inability to recall many details of the relevant events, OPR was unab elop a clear understanding of how the original two-year sentence requirement was evel or by whom. Two possibilities were articulated during OPR's subject interviews: e two ears represented the sentence Epstein would have received had he pled guilty to ns 'fled charge originally contemplated by the state; or (2) the two years represen en ence the USAO determined Epstein would be willing to accept, thus avoiding the n al. As to the former possibility, Acosta told OPR that his "best understanding" of th9rp r proposal was that it correlated to "one of the original state charges." He elaborated, 1SS In commenting on OPR's draft triton, Acosta's attorney objected to OPR's conclusion that Acosta knew or should have known about the litigation regarding the computers and that he should have given greater consideration to pursuing the computers before the NPA was signed. Acosta's attorney asserted that ACOSla was not involved in tint level of "granularity"; that his "'small thoughts' edits" on the NPA were limited and focused on policy; and that it was appropriate for him to rely on his staff to raise any issues of concern to him. For the reasons stated above, OPR nonetheless concludes that having developed a unique resolution to a federal investigation, Acosta had a greater obligation to understand and consider what the USA° was giving up and the appropriateness of doing so. 179 CA/Aronberg-000647 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736285 • • "I'm reconstructing 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 could not recall who initially proposed this method, but he believed that it 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 that it would have been Lourie, Menchel, or Sloman. Villafaha was not asked for her views on a two-year sentence, and she had no input into the decision before it was made. Villafaha told OPR that she examined the state statutes and could not validate that a state charge would have resulted in a 24-month sentence. OPR also examined appli le state statutes and the Florida sentencing guidelines, but could not confirm that Epstein n fact, facing a potential two-year sentence under charges contemplated by the PBPD. <n) On the other hand, during his OPR interview, Lourie "guess[ed]" hat "somehow the defense conveyed . . . we're going to trial if it's more than two years." nchel similarly told OPR that he did not know how the two year sentence was derived, but" vio sly it was a number that the office felt was palatable enough that [Epstein] would take" it. lom n told OPR that he had no idea how the two-year sentence proposal was reached. The contemporaneous documentary record, howeve o indication that Epstein's team proposed a two-year sentence of incarceration or ini 1 ted, before the USAO made its offer, that Epstein would accept a two-year term o on. As late as July 25, 2007— only days before the USAO provided the term fense counsel—Epstein's counsel submitted a letter to the USAO arguing that the go emment should not prosecute Epstein at all. Furthermore, after the initial "term resented and negotiations for the NPA progressed, Epstein's team continued to str n p for less or no time in jail. The USAO had other chargin encing options available to it. The most obvious alternative to the two-year senten o was to offer Epstein a plea to a federal offense that carried a harsher sentence. If y gal, Epstein was facing a substantial sentence under the federal sentencing guidel' es, 1 210 months' imprisonment. However, it is unlikely that he would have agreed to a p th required a guidelines sentence, even one at the lower end of the guidelines. Men el told that he and his colleagues had been concerned that Epstein would opt to go to to arged and presented with the option of pleading to a guidelines sentence, and as vi I discussed, there were both evidentiary and legal risks attendant upon a trial in this If fe rally charged, Epstein's sentencing exposure could have been managed by offerin a under Federal Rule of Criminal Procedure 11(c) for a stipulated sentence, which requir "udicial approval. Acosta rejected this idea, however, apparently because of a perception that e federal district courts in the Southern District of Florida did not view Rule 11(c) pleas favorably and might refine to accept such a plea and thus 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 Villafafia circulated the prosecution memorandum to her supervisors, Lourie recommended to Acosta charging Epstein by criminal complaint and offering a plea to conspiracy "to make a plea attractive." Similarly, before learning that Menchel had already discussed a state-based resolution with Epstein's counsel, Villafaha had considered offering Epstein a plea to one count of conspiracy and a substantive charge, to be served concurrently with any sentence he might receive separately as a result of the state's outstanding 180 CA/Aronberg-000648 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736286 • • 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 is questionable whether Epstein would have accepted such a plea offer, but the USAO did not even extend the offer to determine what his response to it 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 the 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 state p would be sufficient to prevent manifest injustice. Menchel told OPR, "I don't believe an at the time that this resolution was entered into was looking at the two years as a fair r s of the conduct. I think that was not the issue. The issue was whether or not if w this se to trial, would we risk losing everything?" During the course of negotiations over a potential federal plea, t SI aWeed to accept a plea for an 18-month sentence, a reduction of six months from the on -negotiable" two- year term. The subjects did not have a clear memory of why this uc as made. Villafafia attributed it to a conversation between Acosta and Lefkowitz, yj to attributed it to a decision made during the negotiating process by Villafafia and Lou PR that he understood his attorneys needed flexibility to reach a final deal with Ep -4 OPR found no contemporaneous docume the basis for the two-year term. Despite extensive subject interviews and review sands of contemporaneous records, OPR was unable to determine who initially propo year term of incarceration or why that term, as opposed to other possible and le r t s, was settled on for the initial offer. The term was not tied to statutory or guide s se ces for potential federal charges or, as far as OPR could determine, possible state rthermore, while the USAO initially informed the defense that the two-year term w o °liable," Acosta failed to enforce that position and rather than a "floor" for negot e a "ceiling" that was further reduced during the negotiations. OPR was una a to fin ny evidence indicating that the term of incarceration was tied either to the federal inte tin king a just sentence for a serial sexual offender, or to other traditional sentencing actors s as deterrence, either of Epstein or other offenders of similar crimes. Instead, as sly noted, it appears that Acosta primarily considered only a punishment that as s ewhat more than that to which the state had agreed. As a result, the USAO had li maneuver during the negotiations and because Acosta was unwilling to enforce th ' .tiable" initial offer, the government ended up with a term of incarceration that was of ch more than what the state had initially sought and which was significantly disp to the seriousness of Epstein's conduct. sum, it is evident that Acosta's desire to resolve the federal case against Epstein led him to am 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, Acosta failed to consider the need for a punishment commensurate with the seriousness of Epstein's conduct and the federal interest in addressing it. 181 CA/Aronberg-000649 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736287 • • D. Acosta's Decisions Led to Difficulties Enforcing the NPA; After the agreement was reached, the collateral attacks and continued appeals raised the specter that the defense had negotiated in bad faith. At various points, indilridual members of the USAO team became frustrated by defense tactics, and in some instances, consideration was given to whether the USAO should declare a unilateral breach. Indeed, on November 24, 2008, the USAO gave notice that it deemed Epstein's participation in work release to be a breach of the agreement but ultimately took no further action. Acosta told OPR: "I was personally very frustrated with the failure to report on October 20, and had I envisioned that entire collaterQ attack, I think I would have looked at this very differently." Once the NPA was signed, Acosta could have ignored Epstein's requests her feview by the Department and, if Epstein failed to fulfill his obligations under the his state guilty plea, declared Epstein to be in breach and proceeded to charge ly. When questioned about this issue, Acosta explained that he believed the De e the "right" to address Epstein's concerns. He told OPR that because the USAO is art o the Department of Justice, if a defendant asks for Departmental review, it would be" e o object. During his OPR interview, Sloman described Acosta as very process-orie ch he attributed to Acosta's prior Department experience. Sloman, however, believed gave Epstein "(t]oo much process," a result of the USAO's desire to "do the right t the defense team's ability to keep pressing for more process without triggering a e NPA. Furthermore, Epstein's defense counsel repeatedly and carefully made c e e not repudiating the agreement. Acosta told OPR that the USAO would have ha are pstein in breach of the NPA in order to proceed to file federal charges, and Epstei oubtedly have litigated whether his effort to obtain Departmental review constituted ch. costa recalled that he was concerned, as was Sloman, that a unilateral decision to nd non-prosecution agreement would result in collateral litigation that would furth ers and make what was likely a difficult trial even harder. Acosta's and Sloman's on about declaring a breach were not unreasonable. A court would have been unlikely to have etermined that defense counsel's appeal of the NPA to the Department and unwil ess to set a state plea date while that appeal was ongoing was sufficient to negate the agreeme wever, some of the difficulty the USAO faced in declaring a breach was caused by d sions costa made before and shortly after the NPA was signed. For example, and signifies t was costa who changed the language, "Epstein shall enter his guilty plea and be senten of than October 26, 2007" to "Epstein shall use (his] best efforts to enter his guilty 'e sentenced not later than October 26, 2007." (Emphasis added.) Acosta also a orce the NPA's October 26, 2007 deadline for entry of Epstein's plea, and he told nsel that he had no objection if they decided to pursue an appeal to the Department. Foll 'ng these decisions, the USAO would have had significant difficulty trying to prove that Epstei was not using his "best efforts" to comply with the NPA and was intentionally failing to comply, as opposed to pursuing a course to which the U.S. Attorney had at least implicitly agreed. E. Acosta Did Not Exercise Sufficient Supervisory Review over the Process The question at the center of much of the public controversy concerning the USAO's handling of its criminal investigation of Epstein is why the USAO agreed to resolve a case in which 182 CNAronberg-000650 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736288 • • the defendant faced decades in prison for sexual crimes against minors with: such an insignificant term of incarceration, and made numerous other concessions to the defense. j As OPR has set forth in substantial detail in this Report, OPR did not find evidence to suppott allegations that the prosecutors sought to benefit Epstein at the expense of the victims. Instead, the result can more appropriately be tied to Acosta's misplaced concerns about interfering with a traditionally state crime and intruding on state authority. Acosta was also unwilling to abandon the path that he had set, even when Villafafta and Lourie advocated to end the negotiations and even though Acosta himself had learned that the state authorities may not have been a reliable partner. Many of the problems that developed might have been avoided had Acos greater consultation with his staff before making key decisions. The contempo revealed problems with communication and coordination among the five key pa was involved to a greater extent and made more decisions than he did in a told OPR that it was "unusual to have a U.S. Attorney get involved wjh Menchel told OPR, "I know we would have spoken about this case a lo Jeff as well, and there were conversations -- a meeting that I had with Lourie similarly told OPR: Well, . . . he would have been talking to Jeff to the extent that he did, he would have Memo and . . . the guidance from reading the defense attorney's left Attorney, I don't know, just information he was — I'm co know, that he was, he was r know, read the Pros Me n ged in rds ts. Acosta Lourie of detail." I'm sure with d Andy as well." (king to me g at the Pros ould have been alking to the State different sources of at he knew the case, you hing. Apparently, he, you all the stuff . . . . At the same time, Acosta nay removed, both in physical distance and in levels in the supervisory chain, from als with the most knowledge of the facts of the case— Villafana and, to a lesser exte t, Lou rie normally would have signed off on the prosecution memorandum on his own, bu old OPR, he recognized that the case was going to go through the front office lb] use the as front office involvement from the get go." Yet, although Acosta became involv am points in order to make decisions, he did not view himself as overseeing the i estiga on or the details of implementing his decisions. OPR observed that as a consequence, agem nt of the case suffered from both an absence of ownership of the investigaf res in communication that affected critical decisions. on, Villafaha included Acosta directly in emails, but often, information upon relied for his decisions and information about the decisions Acosta had made tray t trough multiple layers between Acosta and Villafaha. Villafaha did draft a detailed, analyt'iagl prosecution memorandum, but it is not clear that Acosta read it and instead may have relied on conversations primarily with Menchel and later with Sloman after Menchel's departure. Despite these discussions, though, it is not clear that Acosta was aware of certain information, such as Oosterbaan's strong opinion from the outset in favor of the prosecution or of Villafruia's concerns and objections to a state-based resolution or the final NM. Acosta interpreted the state indictment on only one charge as a sign that the case was weak evidentially,' but it is not clear that when making his decision to resolve the matter though a state-based plea, he knew the extent to 183 CAJAronberg-000651 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736289 • • which Villafaha and Laurie believed that the state had intentionally failed tb aggressively pursue a broader state indictment. One example illustrates this communication gap. In a September 20, 2007 email to Laurie asking him to read the latest version of the proposed "hybrid" federal plea agreement (calling for Epstein to plead to both state and federal charges), Acosta noted, "I don't typically sign plea agreements. We should only go forward if the trial team supports and signs this agreement. I didn't even sign the public corruption or [C cartel agreements, so this should not be the first." (Emphasis added.) In his email to Villafaha, Lourie attached Acosta's email and i tructed Villafaha to "change the signature block to your name and send as final to Jay [ fk witz)." (Emphasis added.) Villafaha raised no objection to signing the agreement. Acost that he wanted to give the "trial team" a chance to "speak up and let him know" if id not feel comfortable with the agreement. Villafaha, however, told OPR that she di stand that she was being given an opportunity to object to the agreement; rather, she b sta wanted her to sign it because he was taking an "arm's length" approach and • s "was not his deal." The fact that the top decision maker believed he was giving the SA an opportunity to reflect and stop the process if she believed the deal was in op , but the line AUSA believed she was being ordered to sign the agreement because wanted to distance himself from the decision, reflects a serious communication gap. As another example, at one point, Villafaha, concerned about the decisions being made concerning a possible resolution, reque g with Acosta; in a sternly worded rebuke, Menchel rejected the request. Althou old OPR that he was not prohibiting Villafaha from speaking to Acosta, Villafana' Menchel's email to mean that she could not seek a meeting with Acosta. As a ue , Acosta made his decision about a state resolution and the term of incarceration out direct input from Villafaha. Acosta told OPR that he was unaware that Villafaha h a meeting with him and he would have met with her if she had asked him directly. of find any written evidence of a meeting involving both Acosta—the final decisio d Villafana—the person most knowledgeable about the facts and the law—before A stn m is decision to resolve the case through state charges or to offer the two-year term, and of a said she did not have any input into the decision. Although a U.S. Attorney is ce nly not required to have such direct input, and it may be that Menchel presented what he belie be Villafaha's views, OPR found no evidence that Acosta was aware of Villafaha's st g vi about, and objections to, the proposed resolution.2 Tw problems hindered effective communication. First, the senior managers involved e—Acosta, Sloman, and Menchel—had offices located in Miami, while the offi ividuals most familiar with facts of the case—Villafaita and, to a lesser extent, orated in West Palm Beach. Consequently, Villafaha's discussions with her senior ro In her 2017 Declaration in the CVRA litigation, Villafana stated that, given the challenges of obtaining victims' cooperation with a federal prosecution. "I believed and still believe that a negotiattml resolution of the matter was in the best interests of the IUSAOI and the victims as a whole. The IUSAOI had also reached that same conclusion." Several subjects pointed to this statement as indicating that Villafafia in fact supported the NPA. In her OPR interview, however, Villafana drew a distinction between resolving the investigatiori through negotiations that led to what in her view was a reasonable outcome, which she would have supported, and "MO negotiated resolution's— that is. the NPA—which she did not support. 184 CAthronberg-000652 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736290 • • managers required more effort than in other offices, where a line AUSA can more easily just stop by a supervisor's office to discuss a case. 2" Second, key personnel were absent at varying times. Menchel's last day in the office was August 3, 2007, the day he sent to the defense his letter making the initial offer, and presumably in the immediate period before his departure date, Menchel would have been trying to wrap up his outstanding work. Yet, this was also the time when Acosta was deciding how to resolve the matter. Similarly, in the critical month of September, the NPA and plea negotiations intensified and the NPA evolved significantly, with the USAO having to consider multiple different opti as key provisions were continuously added or modified while Villafafia pressed to m r late- September deadline. Although Lourie was involved with the negotiations durin pe , he was at the same time transitioning not only to a new job but to one in Washing' , a d was traveling between the two locations. Sloman was on vacation in the week p e signing, when many significant changes were made to the agreement, and he did n t rtict a e in drafting or reviewing the NPA before it was signed. Accordingly, during the k at on period for a significant case involving a unique resolution, no one involved had bot ugh understanding of the case and full ownership of the decisions that were being m fia certainly felt that during the negotiations, she was only implementing decisions ade Acosta. Acosta, however, told OPR that when reviewing the NPA, "1 would have revi ed this r the policy concerns. Did e . . . bullet points, and my assumption, rightly or wiongly, ould have been that Andy and would have looked at this, and that this was . . ipproprtatc " The consequences flowing from the lac o alp and effective communication can be seen in the NPA itself. As demonstra th contemporaneous communications, the negotiations were at times confusing as th es sidered multiple options and even revisited proposals previously rejected. Meanw Villa a sought to keep to a deadline that would allow her to charge Epstein when she had I if the parties did not reach agreement. In the end, Acosta accepted several terms wi t e rent discussion or consideration of the ramifications. The USAO's agree nt n prosecute "any potential co-conspirators" is a notable example. As previously no t only written discussion about the term that OPR found was Villafafia's email to rie an the incoming West Palm Beach manager, with copies to her co-counsel and direct or, stating that she did not believe the proVision "hurts us," and neither Acosta, tie, r tllafafia recalled any further discussion about the provision. Although OPR did not ce showing that Acosta, Lourie, or Villafaila intended the scope of the provision yone other than Epstein's four assistants, the plain language of the provision preclucl A• from prosecuting anyone who engaged with Epstein in his criminal conduct, withi tions set by the overall agreement. This broad prosecution declination would I' wise in most cases but in this case in particular, the USAO did not have a sufficient inve rive basis from which it could conclude with any reasonable certitude that there were no other i ividuals who should be held accountable along with Epstein or that evidence might not be developed implicating others. Prosecutors rarely promise not to prosecute unidentified third Z7 In his OPR interview, Acosta commented that although Menchel's office was on the same floor as Acosta's, he was in a different suite, which "affects interaction." 185 CA/Aronberg-000653 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736291 • • parties.2" The rush to reach a resolution should not have led the USAO to agree to such a significant provision without a full consideration of the potential consequences and justification for the provision. It is highly doubtful that the USAO's refusal to agree to that term would have itself caused the negotiations to fail; the USAO's rejection of the defense proposal concerning immigration consequences did not affect Epstein's willingness to sign the agreement. The possibility that individuals other than Epstein's four female assistants could have criminal culpability for their involvement in his scheme could have been anticipated and should have caused more careful consideration of the provision. Similarly, the confidentiality provision was also accepted with little apparent consideration of the implications of the provision for the victims, and it eventually became clear hat the interpreted the provision as precluding the USAO from informing the victims Ow the status of the investigation. Agreeing to a provision that restricted the USAO's ability 0-disclose or release information as it deemed appropriate mired the USAO in disputes about Cher it was or would be violating the terms of the NPA by disclosing information to vice s o he special Decisions about disclosure of information should have remained within a authority and province of the USAO to decide as it saw fit. There is nothing improper about a U.S. Attorney no eeting with the line AUSA or other involved members of the prosecution team bef r makes a decision in a given case; indeed, U.S. Attorneys often make decisions wt direct input from line AUSAs. And Acosta did have discussions with Menchel, an ioss loman, before making the critical decision to resolve the matter through a state plea, al thocgh t e specifics of those discussions could not be recalled by the participants due to the ass Mime. This case, however, was different from the norm, and Acosta was considenn ol on that was significantly different from the usual plea agreement. Contemporan ecor show that Acosta believed the case should be handled like any other, but Acosta' o fashion an unorthodox resolution made the case unlike any other, and it therefore propriate and commensurate oversight. Acosta may well have decided to proceed i ashion even if he had sought and received a full briefing CEOS Chief Oo General John Roth con= just don't know how that cad R this provision was "very unusual." Principal Associate Deputy Attorney n't know how it is that you give inununity to somebody who's not identified. I illafana's co-counsel told OPR: s effectively transactional immunity which I didn't think we were supposed he Department ofJusticc.. . . I've never heard of anything of the son.. . . go to great lengths in most plea agreements to go and not give immunity for mple, for crimes of violence, . . . for anything beyond the specific offense Ouch Ards being investigated during the specific time periods and for you and nobody else. I mean on rare occasion I've seen cases where say someone was dealing drugs and their wife was involved.... And they've got kids.... (and] it's understood that roc wifc probably could be prosecuted and sent to jail too, but you know the husband's willing to go and take the weight . . This is not one of those. Deputy Attorney General Fillip called the provision "pretty weird." Menchel's successor as Criminal Chief told OPR that he had never heard of such a thing in his 33 years of experience as a prosecutor. A senior AUSA with substantial experience prosecuting sex crimes against children conunented that it was "horrendous" to provide immunity for participants in such conduct. 186 CA/Aronberg-000654 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736292 • • 1 from Villafana and others, but given the highly unusual procedure being considered, his decision should have been made only after a full consideration of all of the possible ramifications and consequences of pushing the matter into the state court system, with which neither Villafafta nor the other subjects had experience, along with consideration of the legal and evidentiary issues and possible means of overcoming those issues. OPR did not find evidence indicating that such a meeting or discussion with the full team was held before the decision was made to pursue the state-based resolution, before the decision was made to offer a two-year term of incarceration, or before the NPA, with its unusual terms, was signed. As Acosta later recognized and told OPR, "And a question that I think is a valid one in my mind is, did the focus on, let's just get is done and get a jail term, mean that we didn't take a step back and say, let's evaluate ho train is moving?" Many features of the NPA were given inadequate consideration, incl rovisions like the term of incarceration and sexual offender registration, with the res I s ein was able to manipulate the procesi to his benefit. Members of his senior staff he opinions about some of the issues that Acosta felt were important and that factored s decision-making. There does not seem to be a point, however, at which those di g ons were considered when forming a strategy; rather, Acosta seems to have made a that everyone beneath him followed and attempted to implement but without a conside s beyond attaining the three core elements. As the U.S. Attorney, Acosta had autho • in this manner, but many of the problems that developed with the NPA might ha b voided with a more thoughtful approach. As Acosta belatedly recognized, "[I]f Jtwaja ' ng a fellow U.S. Attorney today, I would say, think it through."2" No one of the individual probl above necessarily demonstrates poor judgment by itself. However, in comb' on, t evidence shows that the state-based resolution was ill conceived from the start and resulted from a flawed decision-making process. From the time the USAO open i i ligation, Acosta recognized the federal interest in prosecuting Epstein, yet aft h in tigation had run for more than a year, he set the investigation on a path not gin ntemplated. Having done so, he had responsibility for ensuring that he received an ered all of the necessary information before putting an end to a federal investigation ' to serious criminal conduct. Acosta's failure to adequately consider the full ramifications of th ntributed to a process and ultimately a result that left not only the line AUSA and FBI se agents dissatisfied but also caused victims and the public to question the motives a prosecutors and whether any reasonable measure of justice was achieved. Accordin. •P ncludes that Acosta exercised poor judgment in that he chose a course of action th t wa n marked contrast to the action that the Department would reasonably expect an attom ng good judgment to take. In commenting on OPR's draft report, Acosta's attorney acknowledged that "itlhe matter would have benefited from more consistent staffing and attention." 187 CA/Aronberg -000655 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736293 [Page Intentionally Left Blank] els 188 CA/Ananberg-000656 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CI ERK 3282023 2:18:34 PM EFTA02736294 CHAFFER THREE ISSUES RELATING TO THE GOVERNMENT'S INTERACTIONS AND COMMUNICATIONS WITH VICTIMS PART ONE: FACTUAL, BACKGROUND I. OVERVIEW Chapter Three describes the events pertaining to the federal government's communications with victims in the Epstein case, and should be read in con factual background set forth in Chapter Two, Part One. This chapter sets fo authorities and Department policies and practices regarding victim notifi as well as OPR's analysis and conclusions. OPR discusses key events the FBI's interactions with victims before and after the signing of th FBI's initial contact with victims through letters informing th investigation. A timeline of key events is provided on the foil H. THE CVRA, 18 U.S.C. § 3771 A. History In December 1982, the President's T outlining recommendations for the three br victims. The Task Force concluded t have gone unheeded, and their unattended."i60 Thereafter, the criminal justice system: the Vj of 1984, the Victims' Rights Law Enforcement Act of I Victim Rights Clarifi The CV to protect cn CVRA amendm , ena 'ctims and on with the neat legal consultation, e USAO's and beginning with the BI had initiated an n Victims of Crime issued a final report vernment to improve the treatment of crime ave been "overlooked, their pleas for justice ersonal, emotional and financial—have gone nacted various laws addressing victims' roles in the itness Protection Act of 1982, the Victims of Crime Act lion Act of 1990 (VRRA), the Violent Crime Control and Antiterrorism and Effective Death Penalty Act of 1996, the 'on Act of 1997, and the Justice for All Act of 2004.261 ed on October 30, 2004, as part of the Justice for All Act, was designed nd to make them "full participants in the criminal justice system."262 The a multi-year bipartisan effort to approve a proposal for a constitutional eeing victims' rights, some of which had previously been codified as a victims' 'dent's Task Force on Victims of Crime Final Report at ii (Dec. 1982). 261 e Pub. L. No. 97-291 (Victim and Witness Protection Act) (1982); Pub. L. No. 98473 (Victims of Crime Act) (1984); Pub. L. No. 101-647 (Victims' Rights and Restitution Act) (1990); Pub. L. No. 103.322 (Violent Crime Control and Law Enforcement Act) (1994); Pub. L. No. 104-132 (Antiterrorism and Effective Death Penalty Act) (1996); Pub. L No. 105.6 (Victim Rights Clarification Act) (1997); and Pub. L No. 108-405 (Justice for All Act) (2004). 261 Kenna v. U.S. Dist. (bun, 435 F.3d 1011, 1016 (9th Cir. 2006); United Stares v. illoussnoui, 483 F.3d 220, 234 (4th Cir. 2007); and Justice for AU Act. 189 CA/Aronberg-000657 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736295 rri ^v r 00 > a o Wd 17£:81:Z £ZOZ/8 '4 - %rabid' t : l tli:el)i4 not noufication kit rt of the bun . Atig ?.15;.; VIII begins sending.VNS leflerc Covicount ::.Crime Victims' Rights Act Analysis 2007 )00S reiginbliessius. se•U,a, nes. SL {Lc:. .... O :.crtTAirja1y da Den 20 dost, t.-- v e or 4atikel, 190 CA/Aronberg-000658 EFTA02736296 • Bill of Rights in the VRRA.' Following multiple Senate Judiciary CoMmittee subcommittee hearings and various revisions of the proposed amendment, the Senators determined that such an amendment was unlikely to be approved and, instead, they presented the CVRA as a compromise measure." B. Enumerated Rights The CVRA defines the term "crime victim" as "a person directly and proxim I armed as a result of the commission of a Federal offense or an offense in the District of o ',us Initially, and at the time relevant to the federal Epstein investigation, the CV crime victims the following eight rights- (1) The right to be reasonably protected from the accu 0 (2) The right to reasonable, accurate, and timely notice o blic court proceeding, or any parole proceeding, inv e crime or of any release or escape of the accused. (3) The right not to be excluded fr a ch public court proceeding, unless the court, after re&ivi ear and convincing evidence, determines that testimony 'by e victim would be materially altered if the vic 'm Its erfrother testimony at that proceeding. 4,c ‘ (4) The right to be reasonably heard at any public proceeding in the district court invo t g reuse, plea, sentencing, or any parole proceeding. (5) The bl right to confer with the attorney for the Government in t case. 263 See 150 Rcc. 260-01 at 1, 5 (2004). The VRRA identified victims' rights to (1) be treated with fairness and wit t for the victim's dignity and privacy; (2) be reasonably protected from the accused offender, (3) be notif u logs; (4) be present at all public court proceedings that relate to the offense, unless the court dew t t timony by the victim would be materially affected if the victim heard other testimony at trial; (5) co r ttomcy for the Government in the case; (6) restitution; and (7) infornution about the conviction. sentcnci n i nment, and release of the offender. 42 U.S.C. § 1060609 (1990). The relevant text of the VRRA is hooter Three, Pan Two, Section I .B of this Report. xa 50 Cong. Roc. S4260-01 at I, 5 (2004). Although nine congressional hearings were held between 1996 and 2003 concerning amending the Constitution to address victims' rights, neither chamber of Congress voted on legislation proposing an amendment. United States Government Accountability Office (GAO), GAO-09-54, Report to Congressional Committees: Crime Victims' Rights Act - Increasing .4warenesx Modifying the Complaint Process and Enhancing Compliance Monitoring IVIII Improve Implementation of the Act at 16 (Dec. 2008) (GAO CVRA Awareness Report). 1 M5 The relevant text of the CVRA is set forth in Chapter That, Part Two, Section I.A of this Report. 191 CA/Aronberg-00q659 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736297 • • I (6) The right to full and timely restitution as provided in law.: (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. Although many of the rights included in the CVRA already existed in federal law as part of the VRRA, the CVRA afforded crime victims standing to assert their rights in feder court or by administrative complaint to the Department, and obligated the court to ensure th u rights were afforded. The passage of the CVRA repealed the rights portion of the S.C. § 10606), but kept intact the portion of the VRRA directing federal law enfor agencies to provide certain victim services, such as counseling and medical care 2 U.S.C. § 10607(c)). Department training emphasizes that the VRRA obligates th t part ent to provide victim services, which attach upon the detection of a crime, while t contains court- enforceable rights that attach upon the filing of a charging instrument. In 2015, Congress amended the CVRA and added the two rights:2" (9) The right to be informed in a timely m y plea bargain or deferred prosecution agreement. (10) The right to be informed of services described in sectio Restitution Act of 1990 (4 C. information for the Offi Department of Justi 1/4 s udder this section and the the Victims' Rights and 1 7(c)) and provided contact ms' Rights Ombudsman of the HI. THE DEPARTMEN RETAT1ON OF THE CVRA'S DEFINITION OF "CRIME VICTIM" T CTiIME OF THE EPSTEIN INVESTIGATION A. April I 005 0 e me of Legal Counsel "Preliminary Review" In 2005 nt management requested informal guidance from the Department's Office of Le ounse (OLC) regarding interpretation of the CVRA's definition of "crime victim."267 1 1, 2005, OLC provided "preliminary and informal" guidance by email, concludi 'the status of a 'crime victim' may be reasonably understood to commence upon the fi mplaint, and that the status ends if there is a subsequent decision not to indict or p e Federal offense that directly caused the victim's harm."7" 266 H. Rep. No. 114.7 (Jan. 27, 2015). 26? OLC is responsible for providing legal advice to the President, Dcparuncm comprnients, and other executive branch agencies. X.8 Tic OLC 2005 Informal Guidance is summarized in a Memorandum Opinion to the Acting Deputy Attorney General from Deputy Assistant Attorney General John E. Bies (Dec. I7, 2010), published as Office of Legal Counsel, 192 CA/Aronberg-000660 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736298 • • I OLC concluded that because the CVRA defines "'crime victim' as I 'person directly and proximately harmed by the commission of a Federal offense,' . . . the defin tion of victim is thus tethered to the identification of a 'Federal offense,' an event that occurs with the filing of a complaint." OLC further concluded that because the House Report stated that the CVRA codifies the "'rights of crime victims in the Federal judicial system" and a complaint "commences the 'judicial process' and places an offense within the 'judicial system,' the legislature must have intended for CVRA rights to commence upon the filing of a complaint. OLC also found that the language of the CVRA rights supported its interpret n. For example, the first light grants a victim protection from "the accused," not a suspect. t onal I y, the second, third, and fourth rights refer to "victim notification, and access to, pubJi j i ngs involving release, plea, sentencing or parole—none of which commence prior filing of a complaint." B. 2005 Attorney General Guidelines for Victim and NV tante In May 2005, the Department updated its Attorney Ge I ines for Victim and Witness Assistance (2005 Guidelines) to include the CVRA.269 The 05 Guidelines specifically cited the CVRA requirement that agencies "engaged in the ection, vestigation, or prosecution of crime shall make their best efforts to see that crime victims are tified of, and accorded" their CVRA rights, which in 2005 encompassed the initial ight CVRA rights. The 2005 Guidelines provided detail re t mplentation of the Department's CVRA duties and divided criminal cases into an " n stage," a "prosecution stage," and a "corrections stage." The individuals respo t for otifying crime victims of their CVRA rights varied depending on the stage of the pyceeding a Nay During the "investigationifage" of cases in which the FBI was the investigating agency, the Special Agent in Charge as responsible for identifying the victims "[ti]t the earliest opportunity after the detecti4 of a crime" and notifying them of their rights under the CVRA and services available under the VRRA and other federal statutes. [D]urin investigative stage, [the Department] mandates plia th the Victims' Rights and Restitution Act, 42 U.S.0 10607, hich requires federal officials to, among other things, victims, protect victims, arrange for victims to receive onable protection from suspected offenders, and provide try of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004 (Dec. 17, 2010) COLC Ave fl of Crime Victims' Rights (2010)") and available at Impsfiwww.justice.govisites/defauliffiles/old opinio 010/12/31/availability-crime-victims-rights.pdf. "That 120051 informal guidance did not foreclose the possibility that other definitions would also be reasonable," OLC Availability ofCrime Victims' Rights (2010) at I. )59 The 2005 Guidelines are set forth in relevant pan in Chapter Three., Pan Two, Section II of this Repon. The Department promulgated the guidelines in response to a congressional directive in a prededessor statute to the CVRA, which instructed the Attorney General to develop and implement such guidelines. Victim and Witness Protection Act, Pub. L. No. 97.291, § 6, 96 Stat. 1248 (1982). The 2005 Guidelines were superseded in October 2011, as explained below. 193 CA/Aronberg-000661 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736299 information about available services for victims. Therefore, even though [the Department] may not afford CVRA rights to victims if charges have not been filed in their cases, the [D]epartmeitt may provide certain services to victims that may serve the same function as some CVRA rights.210 The 2005 Guidelines stated that the "prosecution stage" of the case began when "charges are filed and continue[d] through posisentencing legal proceedings." The "U. S. Attorney in whose district the prosecution is pending" was responsible for making "best efforts to see crime victims are notified" of their rights under the CVRA. During the prosecution stage, the 2005 Guidelines required the U designee, to notify crime victims of case events, such as the filing of char offender; the schedule of court proceedings; the acceptance of a guilty pl rendering of a verdict; and any sentence imposed. The 2005 Guidelin official to "provide the victim with reasonable, accurate, and timely proceeding . . . that involves the crime against the victim." The 2005 Guidelines specifically required federal p with victims about [their] major case decisions," such a negotiations, and pretrial diversion. In particular, th official to make reasonable efforts to notify identj about, prospective plea negotiations. Neverthel "consider factors relevant to the wisdom an victim's] views" in light of various fac confidential information or conditions" and "[w me , or a the release of an nolo contendere or he responsible any public court to "be available to consult release of the accused, plea elines required the responsible s of, and consider victims' views Guidelines cautioned prosecutors to y of giving notice and considering [the "[w]hether the proposed plea involves her the victim is a possible witness in the case and the, effect that relaying any informatioaapay have on the defendant's right to a fair trial." Lastly, the 2005 Guidelines stated that "relostrong presumption exists in favor of providing rather than withholding assistance an -erv'oes 6 victims and witnesses of crime." The "corrections stag my ved both pretrial detention of the defendant and incarceration following a convictio Depe ng on the agency having custody of the defendant, the U.S. Attorney or other agen e responsible for victim notifications during this stage. IV. USA° CTIM/WITNESS NOTIFICATION PRACTICE AT THE TIME OF INVESTIGATION SAO Training .S. Attorney, Acosta disseminated the May 2005 updated Guidelines to USAO person~tel with a transmittal memorandum dated February 27, 2006, stating that he expected each recipient "to read and become familiar with the [2005] Guidelines." Acosta noted in the memorandum that the USAO had recently held an "all office training" addressing the 2005 Guidelines and that new USAO attorneys who missed the training were required to view a videotaped version of the training "immediately." Acosta further noted that the USAO's 770 GAO CVRA Awareness Report at 66. 194 CA/Aronberg-000662 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736300 • • victim/witness staff were "ready to assist you with the details of victim notification, and other areas for which United States Attorney[']s Offices are now explicitly responsible under the act." The USAO's Victim Witness Program Coordinator told OPR that the USAO provided annual mandatory office-wide training on victim/witness issues and training for new employees. B. The Automated Victim Notification System Both the FBI and the USAO manage contacts with crime victims through the Victim Notification System (VNS), an automated system maintained by the Executive Office f United States Attorneys. The 2005 Guidelines mandated that "victim contact information d tice to victims of events . . . shall, absent exceptional circumstances (such as cases involv*ng)u e or foreign victims), be conducted and maintained using VNS." The VNS is sepa c from gency case management systems maintained by the FBI and the USAO. Both th FBI and the USAO use the VNS to generate form letters to victims at various points in t e vestigali on and the prosecution of a criminal case. Although each form letter can be au t d some limited individual matter-specific content, the letters contain specific language on ing the purpose of the contact that cannot be removed (such as the arrest of the d d the scheduling of a sentencing hearing).271 In the usual course of a criminal case, the FBI • contact information during the investigation stage, which it stores in its case mana The FBI's Victim Specialist exports the victim information data from the F:. anagement system into the VNS database. Victim information stored in the VNS' to he investigation's VNS case number. At the time of the Epstein investigation, the F Cc h pecialist could use the VNS to generate seven different form notification letters: itial otification; (2) case is under investigation; (3) arrest of the defendant; (4) decline Hon; (5) other; (6) advice of victim rights; and (7) investigation closed. After a charging docum ti filed and the "prosecution stag!" begins, the USAO's Victim Witness Specialist a mes nsibility for victim notification. v 2 The USAO imports data from its case managem sys m into the VNS and links to the previously loaded FBI VNS data. The USAO's Vctim Wt s Specialist uses the VNS to generate form letters providing notice of case events, c harges filed; an arraignment; a proposed plea agreement; change of plea hearings; s encm h ngs; and the result of sentencing hearings. 271 U.S. Dept. of Justice Office of the Inspector General Audit Division Audit Report 'pa-04, The Department of Justice' dim Notification System at 29 (Jan 2008), available at hups://oig.justice.gcw/reponsfEOUSA/a0804/ final.pdf. The 2008 audit identified con:ems with the VNS templates, including that "VNS users .. . cannot alter the format to ensure that it fits with thc specific case for which it is beingsent," and many users liad noted that "information in notifications became confusing and sometimes contradictory whenvarious types of notifications %sere combined in the same letter." 272 The FBI and the USAO have different titles for the individual who maintains victiM contact: the FBI title is "Victim Specialist?" and the USAO title is "Victim Witness Specialist." 195 CA/Aronberg-000663 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736301 C. FBI Victim Notification Pamphlets The 2005 Guidelines recommended that "victims be given a printed brochure or card that briefly describes their rights and available services . . . and [contact information for] the victim- witness coordinator or specialist . . . ." At the time of the Epstein investigation, FBI agents nationwide routinely followed a practice of providing victims with pamphlets entitled, "Help for Victims of Crime" and "The Department of Justice Victim Notification System." The "Help for Victims of Crime" pamphlet contained a listing of the eight CVRA rights. The pamphlet stated: "Most of these rights pertain to events occulting after the indictment of an individual for e crime, and it will be the responsibility of the prosecuting United States Attorney's Office t re you are afforded those rights." The case agent in the Epstein investigation told OPR e p ided victims with the FBI pamphlet upon the conclusion of an interview. The pamp titled "The Department of Justice Victim Notification System" provided an overvi VNS and instructions on how to access the system. V. THE INTRODUCTORY USAO AND FBI LETTERS TO A. August 2006: The FBI Victim Notification On August 8, 2006, shortly after the FBI opened i "lion into Epstein, the Victim Specialist for the West Palm Beach FBI office, under t t's direction, prepared a "Victim Notification Form" naming 30 victims in the E t in gation and stating that "additional pertinent information" about them was availabl 273 Thereafter, the Victim Specialist entered individual victim contact informati ved from the case agent into the VNS whenever the case agent directed the Victi ecta t to generate an initial letter to a particular victim. The FBI case agent told OPR t ictim notification was "always handled by the [FBI's Victim Specialist]."274 According to the VNS inning on August 28, 2006, the FBI Victim Specialist used the VNS to generate F letters be sent to the victims, over her signature, identifying the eight CVRA rights and inviti vie ms to provide updated contact information in order to receive current status informs 'on abou a matter. The FBI letters described the case as "currently under investigation" and no "[t]his can be a lengthy process and we request your continued patience while con ct a thorough investigation." The letters also stated that some of the CVRA rights of tak effect until after an arrest or indictment: "We will make our best efforts to ensure are rded the rights described. Most of these rights pertain to events occurring after the r i dictment of an individual for the crime, and it will become the responsibility of th g United States Attorney's Office to ensure you are accorded those rights." A Cr ollows. " 3 These 30 were drawn from the PBPD investigative file and included individuals that the PBPD had not designated as victims and individuals the PBPD had identified but not interviewed. 274 The case agent told 0PFt, "[Olnee 'rye identify a victim, then we bring [the FBI Victim Specialist) in, and as far as anything pertaining to victim rights ... and any resources, federal resources these victims may need comes from that, the Victim Specialist" 196 CA/Aronberg-000664 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736302 • • Plipiltia OthOlici 'trOCMIKFC4c0firin,tiiallini • TM'- Wag folF1.13MCh. JVCSAWWW , %11/01 1; • Pietilet. 01 3,4 51 • 3istctOtP3.17r!: . • ^ - , .11x got liumbe,. 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Thgetteleemi texteees priii.ideihfriimbDon ibt4lAim 'FBI'YYtchlt(.A»itlwtra[kiiyi(eli,iHwrty cad gi4ltuctbnr be 0:c..,-MsleDsUAYICD11111.1b11(.144 1*1 4,41 ''OrtiSMS'iritled.)0F4WRIPV/4245100.1111101#161iinirdint iko ISoki of YO111•50e; 14 8Dyfireetie.itivi ifetietthe$17.061141d;! Il: 197 CA/Aronberg-000665 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736303 • . brialiettlitiliittafirlytee wait dim olitiwarim itpi';ott oifIS.i toe We manta *and ritkriirirAitheln44104inernba;*a illiklP9010011 ctbenotlficalecrinnofibii prigrimk.rulyiAnY/ lIniloat to tis-i4 sc. *eh'? ttiffilimim it irYtiug :400,110 , i0keininrjeoesocilafimullioncintalL•,. - •TvItlieslorektin., VNS data logs, correspondencsmaintainedin the. FBI's casemanage interview reports for the Epstein investigation 'reflect that, during the Efts FBI generally issued its victim notification letters after the victim ha case agents, but its practice was not uniform. 275 B. August 2006: The USAO's Letters to. Victi During the time that the FBI Victim Specialist notification letters, Villafalla. was also preparing her meeting with each victim receiving the letter. Vil that the FBI sends letters' but believed the FBI' prOcesst Villafana told OPR the "FBI. had guidelines for when information lad to Moreover, Villafana "didn't know Neverthelest, Villeafia told OPR th the FBI's notification responsibil' , and FBI ugati0n, the 'ewed by FBI ng an4 sending FBI victim uctory letter in anticipation of PR that she was "genetally aware sdidn't .. .have anything to do with my ictim notification system and their own and what information had to be, provided." letters went out" or "what they said." 276 t intend for the letters she drafted to interfere with. In August 2006, Vill fads ed her• letters to victims: who had been initially identified by the FBI based on the PBP native file. Villafana told OPR that she "made the decision to make contact with: ims early," and she composed the Introductory letter and determined to whom they would be s though 'these letters contained: CVRA rights information, Villafaha mainly intend uset as a vehicle to "introduce" herselfand let the victims knout the federal investigation • Id be a. different process" from the State Attorney's Office investigition in which ' it they had `not been particularly . well treated *Villafaita told OPR that ins case in e' needed to be talking toyoung girls frequently and asking them really intimate. found no uniforinity in the time Uapsc between the FBI's interview of a victim and the issuance of an FBI I r to that particular victim, as the span ottime between the two events varied from a few days to months. Furthe re; not every victim interviewed by the FBI received an FBI letter subsequent to:herintorview, and some FBI letteraweie Sent to victims ult.) had not been interviewed by the case agents. Finally,:OPWareview of FBI VNS data revealed some letters that appeared to have.been generated in the VNS and not included in the Fill ensc:fde. OPR could not confirm whether such letters wcit mailed or delivered. Sib Villafafla, who did not have supervisory authority over the:FBI's Victim Specialist, told OPR that she did not review the FBI notification letters and did not see them until she labeled them for production in the CVRA litigalion,which was initiated.aller Epstein.pled guilty on June 30, 2008. 198 CA/Aronberg-000666 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736304 • • questions," she wanted to "make sure that they . . . feel like they can trust mt." Villafaha directed the FBI case agents to hand deliver the letters "as they were conducting interviews." Villafaha told OPR that the USAO had "no standardized way to do any victim notifications prior to" the filing of federal charges, and therefore Villafaha did not use a template or VNS-generated letter for content, but instead used a letter she "had created and crafted [herself] fdr another case."'" The letters contained contact information for Villaftuia, the FBI case agent, and the Department's Office for Victims of Crime in Washington, D.C., and itemized the CVRA rights. The USAO letters described the case as "under investigation" and stated that the victim would be notified "[i]f anyone is charged in connection with the investigation." The letters s addition to their rights under the CVRA, victims were entitled to counseling,.medi potential restitution from the perpetrator, and that, upon request, the government list of counseling and medical services."' Lastly, the letters advised that ' defense might contact the victims and those who felt threatened or Ito h Villafana or the FBI case agent. Although the USAO letters did not contain any language limitin arrest or indictment stage, Villafaha told OPR that she did not USAO's CVRA obligations, which she believed attached on Villafaha told OPR that she did not think that victims po a USAO letter would be confused about their CVRA ri with an introduction from the agents [who were h the CVRA litigation, Villafaha stated that she a providing more notice and assistance to pote before the circumstances of those individu decisions had been made."'" Villafaha informed Lourie by any of Villafana's superviso task. Acosta told OPR, "I'v because I assume it all opera OPR, vv* that, in ery and d pr vide a rs for the Id contact t rights to the post- the letters to activate the filing of a criminal charge. ving both an FBI letter and the USAO letter "was coming g them]." Later, in the course of tgative team "adopted an approach of han the CVRA may have required, even fully investigated and before any charging n about the letters, but the letters were not reviewed sidered such correspondence to be a non-management er case where I'm even aware of victims being notified, out it rising to management level." Similarly, Menchel told "77 Villafada to R that she thought that "at one point," she showed the letter to the USAO's Victim Witness Specialist who it vas fine." The USAO's Victim Witness Specialist told OPR that because the USAO did not file a chargng mcnt in the Epstein matter, the USAO did not obtain VNS information from the FBI and did not assume respell ity for victim contact. The USAO's Victim Witness Specialist had no contact with Epstein's victims. and OPR's examination of VNS data revealed no USAO case number linked to the FBI's VNS data concerning the Epstein investigation. OPR did locate some victim contact information in the VNS relating to the USAO's case number associated with the Epstein-related CVRA litigation filed in July 2008. 213 Through its administration of the Crime Victims Fund, the Depanment's Office for Victims of Crime supports programs and services to help victims of crime. • 279 Villafana informed OPR that, as the USAO Project Safe Childhood Coordinator ifocusing on prosecutions of individuals who exploit children through the interact], she 'treated the [Guidelines] as a floor and tried to provide a higher standard of contact." 199 CA/Aronberg-000667 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736305 • • [A]s Chief of the Criminal Division of the USAO, I did not cinsider it to be within my purview to ensure that appropriate ,victim notifications occurred in every matter investigated or broughOy the Office. I also recall that the USAO employed one or more victim- witness coordinators to work with line prosecutors to ensure that appropriate victim notifications occurred in every matter investigated or brought by the Office. C. USAO and FBI Letters Are Hand Delivered The FBI case agent told OPR that the FBI made its notifications "at the ti met [with) the girls." The case agent recalled that she hand delivered the USAO lett FBI etters to some victims following in-person interviews, and in the instances when provide a victim with a letter, she provided an FBI pamphlet containing CVRA rights ti n similar to that set forth in the FBI letters.28° The co-case agent also recalled that e delivered "a few" letters to victims. The FBI Victim Specialist told OPR that she me FBI letters to victims and she provided some FBI letters to the case agent for h d Nevertheless, the case agent told OPR that she "di n ere and go through every right" with the victims. She stated, however, "(I)n the b n I ether it was through [the FBI Victim Specialist) giving the letter, me giving a letter, t let, I believed that the girls knew that they were victims and had rights, and they ha a s [the FBI Victim Specialist], that they could call for that." The FBI case agent fu r air that once the case agents connected the FBI Victim Specialist with each victim, t m ecialist handled the victims' "rights and resources." VI. AUGUST 2006 - SEPTE 7: FBI AND USAO CONTACTS WITH VICTIMS BEFORE IGNED Early in the investi afaha informed her supervisors that, up to that point, "everyone whom the agents ve ken with so far has been willing to tell her story. Getting them to tell their stori in fron a jury at trial may be much harder." Between August 2006 and September 24, 2007, NPA was signed, the FBI case agents interviewed 22 victims. On a few occasions, illafa a et with victims together with the FBI. Villafaha's May 1, 2007 draft indictment in ed su tantive crimes against multiple victims, and Villafaha described the circumst: of their encounters with Epstein in her prosecution memorandum. ome evidence indicating that during interviews, some of the victims expressed to th I gents and Villafaha concerns about participating in a federal trial of Epstein, and thos tscu mons touched upon, in broad terms, the victims' views regarding the desired outcome of the 'nvestigation. Before the USAO entered into the NPA, however, no one from the 2° The cast agent told OPR, "I remember giving letters to the girls when we would talk to them at . . the conclusion, or. . . if I didn't have the file on mei,' I had pamphlets in my car, or I made sum Idle victims had contact infonnation for the FBI's Victim Specialistl." 200 CNAronberg-000668 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736306 government informed any victim about the potential for resolving the federallinvestigation through a state plea. A. The Case Agents and ViIlafaiia Solicit Sonic Victims' Opinions about Resolving the Federal Investigation Villafarla told OPR that when she and the case agents met with victims, "we would ask them how they wanted the case to be resolved."S8' And most of them wanted the case to be resolved via a plea. Some of them wanted him not to be prosecuted at all. Most of them did not want to have to come to court and testify. They were v worried about their privacy rights. Some of them wanted hi to jail. But . . . [s]ome of them talked about bad experie the State Attorney's Office. And so, I felt like sending t the State Attorney's Office was not something that they ave supported. Villafaha told OPR that she also recalled that some their safety," and were worried that Epstein would fi investigation. In her 2017 declaration submitted in th two CVRA petitioners "never communicated [thei role was to evaluate the entire situation, consid t allow the Office to exercise its prosecutorial deter on pressed . . . concern about ut their participation in the gation, Villafana stated that the me or the FBI case agents and my received from all of the victims, and rdingly."282 She also noted that some victims "leaded] having their involvement igth Epstein revealed and the negative impact it would have on their relationships with familyy%tbergyboyfriends, and others." In the FBI case agent's 20 interviews conducted from 2 prosecuted." She further des on filed in the CVRA litigation, she stated, "During no victims expressed a strong opinion that Epstein be cents of some of the victims: Throu out thelRsestigation, we interviewed many [of Epstein's] victims majority of the victims expressed concern about the ible sc osure of their identities to the public. A number of the tims ra sed concerns about having to testify and/or their parents out about their involvement with Mr. Epstein. Additionally, created for OPR a chat listing victims identified in the state and federal investigations, with ng several with whom Villafaila recalled discussing their opinions about resolving the case. The chart, ;ever, does not indicate what the victims said, and Villafafia told OPR that the information contained in the chart w baud on her memory of her interactions with each victim. OPR was unable to determine the details or extent of any such discussions occurring before September 24, 2007, because Villain did not have contemporaneous notes of the interviews, and the FBI reports and corresponding notes of the interviews did not contain information about the victims' desired outcomes. The victims who provided information to OPR did not recall discussing potential resolution of the federal investigation with anyone from the government. In the declaration, Villafalta stated, "Jane Doe 2 specifically told me that she did not want Epstein prosecuted." 201 CA/Aronberg-000669 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736307 • • for some victims, learning of the Epstein investigation and ppssible exposure of their identities caused them emotional distress. Overall, many of the victims were troubled about the existence of the investigation. They displayed feelings of embarrassment and humiliation and were reluctant to talk to investigators. Some victims who were identified through the investigation refused even to speak to us. Our concerns about the victims' well-being and getting to the truth were always at the forefront of our handling of the investigation. The case agent told OPR that although she encountered victims who we "believable," she did not encounter any who vigorously advocated for the prosec Rather, "they were embarrassed," "didn't want their parents to know," and "fin As of September 24, 2007, the date the NPA was signed, V' attorney Leflcowitz that she had compiled a preliminary list of victim minors" and 6 other potential minor victims who had not yet Although the government had contacted many victims befo acknowledged during the CVRA litigation that "individu the agreement." and of Epstein. orget."n3 ormed Epstein ing "34 confirmed in awed by the FBI?' PA was signed, Villafafia re not consulted regarding B. Before the NPA Is Signed, Villaf ses Concern That Victims Have Not Been Consulted Before the NPA was signed, Villa government's failure to consult with vi Srated to her supervisors concerns about the I. July 2007: 's Email Exchanges with Menchel In July 2007, Villafi a possible state resolution information, and sent strong of their email exchang told him that it etas "in unacceptable at Menchel had discussed with defense counsel eral investigation of Epstein. Villafafla was upset by this hided email to Menchel voicing her concerns. (A full account orth at Chapter Two, Part One, Section 1V.A.2.) In that email, she pp opriate [for you] to make a plea offer that you know is completely CE, the victims, and me. These plea negotiations violate . .. all of the 313 The case agent also noted that the victim who became CVRA petitioner lane Doc #2 Ind expressed in her April2 video-recorded FBI interview her opinion that "nothing should happen to Epstein." The "victims' list" for puiposes of the NPA was intended to include the names of all individuals whom the government was prepared to name in a charging document "as victims of an offense enumerated in 18 U.S.C. § 2235." Although the charges Villafaita proposed on May I, 2007, were based on crimes.against 13 victims, thereafter, as explained in Chapter Two of this Report, she continued to revise the proposed charges, adding and removing victims as the federal investigation developed further evidence. At the time the NPA was signed, ihe proposed charges were based on crimes against 19 victims, but others had been identified for potential inclusion. 202 CNAronberg-000670 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736308 various iterations of the victims' rights legislation."285 Villafafta explained to the victims: to OPR her reference [M]y concern was that [Menchel] was violating the CVRA which requires the attorneys for the government, which() includes me[,] to confer with the victims, and the [VRRA], which requires the agents to keep the victims apprised of what's happening with the case. So in essence, I felt like he was exposing both myself and the agents to allegations of not abiding by our obligations by engaging in these plea negotiations without letting us know about it. In his reply to Villafafia's email, and after noting that he found h ail `totally inappropriate," Menchel denied that he had violated any Departmental poll noted that "[a]s Chief of the Criminal Division, I am the person designated by the U.S to exercise appropriate discretion in deciding whether certain pleas are approp insistent with" Departmental policy. Perceiving Menchel's rebuke as a criticism dgment, Villafarla responded, "[R]aising concerns about the forgotten voices of vic s case should not be classified as a lapse in judgment" and that her "first and only co rn this case . .. is the victims." Menchel told OPR that he did not view his co io th as a plea offer, asserted that he was not obligated to consult wi vi during preliminary settlement negotiations, and noted that he left the USAO be A was fully negotiated or signed. Menchel told OPR that "you have discussions . th defense all the time, and the notion that even just having a general discussion is some n at must be vetted with victims . . . is not even . . . in the same universe as to how I think ab this." Menchel also observed that on the very day that Villafafla criticized him f ngaB in settlement ne otiations without consulting her, the FBI, or the victims, Villafana f nt an email to offering "to discuss the possibility of a federal resolution case that could run concurrently with any state resolution," without having s cums about her proposal.287 • '$ a old a PR that "some victims, I felt strongly, would have objected to la state-only dispositioni." Villaf: ed to a PR that at the time Menchel engaged in such negotiations, he would only have been aware of the victim i contained in her prosecution memorandum, which included infonnation about the -effects on the vi d not likely contain information as to "how they would like the case resolved." Villafafta asserted that Menc "never reached out to any of the victims to find out what their position would be." Menchel told OPR that the alle 'dons in Villafafta's email that he violated the Ashcroft Memo. USAM, and the CVRA were "way out of line in terms of what the law is and the policies arc." As discussed, the Depanment's position at the time was that the CVRA did not apply before charges were Wed against a defendant. 1 In conunenting on OPR's draft report, Vilbfaila's counsel asserted that her email to only to determine whether Epstein was interested in opening plea negotiations. 203 was intended CAthronberg-000671 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736309 • • 2. Villafafia Asserts That Her Supervisors Gave Instructions Not to Consult Victims about the Plea Discussions, but Her Supervisors Do Not Currently Recall Such Instructions Villafana told OPR that during an "early" meeting with Acosta, Sloman, and Menchel, which took place when "we were probably just entering into plea negotia ions," she raised the government's obligation to confer with victims.m Initially, Villafafia told OPR she was instructed, "Don't talk to [the victims]. Don't tell them what's happening,' but she was not told why she should not speak to the victims, and she could not recall who gave her this instruction. In a subsequent OPR interview, Villafafia recalled that when she raised the issue of tification during the meeting, she was told, "Plea negotiations are confidential. You can't dis 1.289 Villafafia remained uncertain who gave her this instruction, but believed it may hAt n Acosta. Neither Acosta, Sloman, nor Menchel recalled a meeting at whit Ilafa as directed not to notify the victims. Acosta told OPR that the decision whether t victims' view "is something [that] I think was the focus of the trial team and not s thin that I was focused on at least at this time," and he did not "recall discussions about V Um cation until after the NPA was signed." Sloman also told OPR that he did not meeting at which victim notification was discussed. Menchel wrote in his response ave no recollection of any discussions or decisions regarding whether the USA() sh mums of its intention to enter into a pre-charge disposition of the Epstein matter." F enchel told OPR he could not think of a reason why the issue of victim notificati ve arisen before he left the USAO, because "we were way off from finalizing or ha ythi g even close to a deal," and it would have been "premature" to consider notiftcati 3. September 6, 2007: Villafana Informs Sloman, Who Informs Acosta, of Oosterbaan's Opinion That Consultation with Victims Was Required On September 6, 200 government's then-pending advising that, "the age ts and [CEOS Chief Oosterba thy email to Sloman responding to his question about the the defense, Villafafia raised the victim consultation issue, eve not reached out to the victims to get their approval, which as tely reminded me, is required under the law" and that "the [PBPD] Villafa Id not recall the specific date of the meeting, but Menchel left the 0SM/on August 3, 2007. 39 Vlllafa1l ptso recalled Menchel raising a concern that "telling them about the negotiations could cause vicuna to eragger3le their stories because of their desire to obtain damages from Epstein." in commenting on OPR's draft report, Menchel's counsel reiterated his contention that Villafafta's claim about a meeting involving Menchel in which she was instructed not to consult with victims was inaccurate and inconsistent with other evidence. OPR carefully considered the continents but did not conclude that the evidence to which Menchers attorney pointed necessarily refuted Villafaib's assertion that she had received an instruction from a supervisor not to infonn victims about the plea negotiations. However, it is also true that OPR did not fund any reference in the entails and other documents dated before the NPA was signed to a ,meeting at which victim consultation was discussed or to a specific instruction not to consult with the victims. Tltis is one of several events about which Menchel and Villafafta disagreed, but given OPR's conclusion that the Department did not require prosecutors to consult with victims before charges were brought, OPR does not reach a; conclusion regarding the alleged meeting and instruction. • 204 CA/Aronberg-000672 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736310 • • Chief wanted to know if the victims had been consulted about the dear"' Sloman forwarded this email to Acosta. Villafafta recalled that Sloman responded to her email by telephone, possibly after he had spoken to Acosta, and stated, "[Y]ou can't do that now." Villafaia did not recall Sloman explaining at the time the reason for that instruction. Villafaha told OPR that shortly before the NPA was signed, Sloman told her, "[W]e've been advised that . . . pre-charge resolutions do not require victim notification." Sloman did not recall any discussions, before the NPA was signed, about contacting the victims or conferring with them regarding the potential resolution of the case. Sloman told OPR that he "did not ink that we had to consult with victims prior to entering into the NPA," and "we did not ve to seek approval from victims to resolve a case. We did have an obligation to notify them a tion in . . . filed cases." Sloman said that no one other than Villafaila raised the notif issue, and because the USAO envisioned a state court resolution of the matter, Sloman " nk that we had to consult with victims prior to entering into the NPA." Lourie d• at he had no memory of Villafafta being directed not to speak to the victims about Similarly, the attorney who assumed Lourie's supervisory duties after Lourie trans to his detail in the Department told OPR that he did not recall any discussions notification and he "assumed that was being handled.""3 Acosta did not recall the September 6, 2007 requirement to notify [the victims], because it's not prosecution." Acosta told OPR that he could not victim notification or any particular concern that victims before entering into the NPA.294 UI given the way it's played out, it may have b CEOS Chief Oosterbaan col CVRA did not require pre-charge not "an abuse of discretion" or old OPR that "there is no deferring in favor of a state pre-NPA discussions" regarding b the decision not to consult with the sta acknowledged to OPR, "[C]learly, ter if we had (consulted with the victims]." thatIte disagreed with the USAO's stance that the Itation, but in his view the USAO "posture" was issue," but rather reflected a "serious and legitimate Z9 Vinafana told OPl pe referred to Oosterbaan in the email because "he was the head of CEOS and because I think they were u hearing me nag them Ito notify the victims]." As previously noted. Villafafta's statement that victim approv had to be obtained was incorrect. Even when applicable, the CVRA only requires consultation with victims, not their approval of a plea agreement. Moreover, Villafafla's comments concerning the pre-charge applit,ation of the USAO's CVRA obligation to consult with the victims appear at odds with her statement to OPR d the CVRA applied to the USAO only after a defendant was charged and that she did not intend to activate the U O V obligations when she sent tenets to victims in August 2006. noted that during this period, he had len Florida and was no longer the supervising AUSA in the office, was "helpling] i] out" from offsite because he had "historical knowledge" of the case. 293 The AUSA who for a time served as Villafafta's co-counsel on the Epstein investigation similarly did not "know anything about" discussions in the USAO regarding the need to inform victims of the likely disposition of the case. The AUSA stated that he stopped working on the case "months earlier" and that he "didn't have anything to do with the INPAI negotiations." Villafaila told OPR that she was not aware of any "improper pressure or promise made to (Acosta) in order to . . . instruct [her] not to make disclosures to the victimIs1.- 205 CA/Aronberg-000673 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERIC. 3/28/2023 2:18:34 PM EFTA02736311 • • disagreement" regarding the CVRA's requirements.295 Oosterbaan's disagreement was based on policy considerations, and he told OPR that "from a policy perspective," CEOS would not "take a position that you wouldn't consult with [the victims]." Oosterbaan also told OPR that whether or not the law required it, the victims should have been given an opportunity "to weigh in directly," but he did not fault the USAO's motivations for failing to provide that opportunity: The people I know, Andy [Lourie], Jeff [Sloman], . were trying to do the right thing. .. . [T]hey weren't acting unethically. I just disagree with the outcome . . . but the point is they weren't trying . . . to do anything improper . . . it was more of this question of . you can let the victims weigh in on this, you can get their input o this and maybe it doesn't sway you. You still do what you're goi to do but . . . it's hard to say it was a complete, completely clean, exercise of . . . prosecutorial discretion when (the USAO] really know what [the victims] would say. I Sloman told OPR, "I don't think we had a concern about en nng nto the NPA at that point in terms of notifying victims.. . . 1 was under the perception t' the NPA was entered into and [Epstein] was going to enter a guilty plea in state cojiU were going to notify the victims." VII. SEPTEMBER 24, 2007 - JUNE 30, 2 A TEE NPA IS SIGNED, THE USAO MAKES VARIOUS VICTIM A ION DECISIONS The contemporaneous emails case agents planned to inform the However, the emails also show that given to the victims in light of th defense counsel regarding vi USAO was that the victims and the state plea, the USA who strongly object agents grew concern would damage t the end, Aco about the provided nce the NPA was signed, Villafaha and the t the resolution of the federal investigation. as unclear about how much information could be ondisclosure provision and consulted with Epstein's ons. As a result, although the expectation in the formed about the NPA, the monetary damages provision, e entangled in more negotiations with the defense attorneys, o the govemment's notification plan. In addition, Villafaha and the case tifying the victims about the NPA monetary damages provision victi s' credibility if Epstein breached the NPA and the case went to trial. In ecided o defer to the State Attorney's discretion whether to notify the victims d information about the NPA and the monetary damages provision was not ms until after Epstein pled guilty in June 2008. 95 Oosterbaan slated that, in retrospect; "maybe I should have been more aggressive with how .. . I dealt with µhe USAO1." 36 The NPA nondisclosure provision stated: "The panics anticipate that this agnxritent will not be node part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." 206 CA/Aronberg-000674 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736312 • • A. September — October 2007: The Case Agents Notify Some Victims about the NPA, but Stop When the Case Agent Becomes Concerned about Potential Impeachment In transmitting the signed NPA to Villafalia on September 24, 2007, defense attorney Lefkowitz asked Villafaha to "do whatever you can to prevent [the NPA] from becoming public."' Villafana forwarded this email to Acosta, Lourie, and the new West Palm Beach manager noting that, "I don't intend to do anything with it except put it in the case file." Acosta responded that he "thought the [NPA] already binds us not to make [it) public except a uired by law or [FOIA]" and noted that because the USAO would not proactively info th media about the NPA, "this is the State Attorney[ s]s show." Acosta added, "In other w w ore does he want?" Villafana responded, "My guess is that if we tell anyone else (Ii olice chief or FBI or the girls), that we ask them not to disclose." Lourie agreed, notin: really is no reason to tell anyone all the details of the non pros or provide a copy. sT Chief was only concerned that he not get surprised by all this.." 299 Acosta resporniat would set up a call on September 26, 2007, to talk "about who we can tell and how M VI 3 ea ? Also on September 24, 2007, Villafaha emailed the n t Palm Beach manager to inform him that once the attorney representative was appointed for e victims, she planned to "meet with the girls myself to explain how the system [for obtainin eller under 18 U.S.C. § 2255] will work." Villafaria also emailed Lefkowitz statin that she planned to discuss with him "what I can tell [the attorney representative) and the Lefkowitz that her office "is telling Chief Reiter also provided Lefkowitz with a list of potenti and advocated for an attorney representativ4o w abed the agreement," and she assured sclose the outcome to anyone." Villafaha for the attorney representative position d minimize press coverage of the matter. On September 26, 2007, Vill ed Lefkowitz to request guidance on informing the victims about the NPA: "Can y e a call . I am meeting with the agents and want to give them their marching ord i what they can tell the girls." Villafaha told OPR that because the government an the d se had not agreed on the attorney representative for the victims, she reached out to de nse at the direction of either Acosta or Sloman in order to coordinate how to inf the vi ms about the resolution of the case and the fact that there would be an attorney to assis n recovering monetary damages from Epstein. Villafafia told OPR that the defenseytispon d to her email by complaining to her supervisors that she should not be assured Lefkowitz that the NPA "would not be made public or filed with the Court, but it would case file. It probably would be subject to a FOIA request, but it is not something that we would ut compulsory process." Acosta told OPR that he believed that the NPA "would see the light of day" because the victims would have to "hear about (their § 2255 rights) from somewhere" and "given the press interest, eventually this would be FOIA'd." :$9 Lourie told OPR that the § 2255 provisions of the NPA "that benellued the victims were there for the victims to take advantage of. ... and they did. How. .. they were going to receive that information and when they were going to receive it is a different question, but there's no . . . issue with the fact that they were going to get that information?" 300 OPR was unable to determine whether the call took place. 207 CA/Aronberg-000675 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736313 involved in such notifications. According to VilLatvia, Sloman then directed her to have the case agents make the victim notifications. Accordingly, Villafaha directed the case agents to "meet with the victims to provide them with information regarding the terms of the [NPA] and the conclusion of the federal investigation." The case agent told OPR, "[T]here was a discussion that and I had as to . . . how we would tell them, and what we would tell them, and what that was I don't recall, but it was the terms of the agreement." Villafaha believed that if "victims were properly notified of the terms [of the NPA] that applied to them, regarding their right to seek damages from [ pstein], and he paid those damages, that the rest of the [NPA] doesn't need to be disclosed' llafaha "anticipated that [the case agents] would be able to inform the victims of the date o e s rt change of plea [heating], but that date had not yet been set by state authorities a me the first victims were notified [by the FBI]." Villafaha told OPR that it was her ecause the USAO had agreed to a confidentiality clause, the government could not i NPA to the general public, but victims could be informed "because by its terms t y n o be told what the agreement was about." Villafaha told OPR that no one in her su iso chain expressed a concern that if victims learned of the NPA, they would try to prey Eps rom entering a plea. Within a week after the NPA was signed, news gaXreporting that the parties had reached a deal to resolve the Epstein case. a pfe, on October I, 2007, the New York Post reported that Epstein "has agreed t I I to soliciting underage prostitutes at his Florida mansion in a deal that will send h' t nso for about IS months," and noted that Epstein would plead guilty in state court an a h eds have agreed to drop their probe into possible federal criminal violations in exc n for e guilty plea to the new state charge."301 The case agent recalled inform victims that "there was an agreement reached" and "we would not bepursuing this f October 2007, for example, the case agents met with victim "to ad the main terms of the Non-Prosecution Agreement." According to the case agent, meeting, the case agents told -"that an agreement had been reached, Mr. Epstein w: to plead guilty to two state charges, and there would not be a federal prosecution."303 However, in a declaration filed in 2015 in the CVRA litigation, - described the converse erently: he age is explained that Epstein was also being charged in State d may plea [sic] to state charges related to some of his other I knew that State charges had nothing to do with me. Mangan, "'Unhappy Ending' Plea Deal—Moneyman to Get Jail For Teen Sex Massages," New York Post, 1. 1, 2007. See also "Model Shop Denies Epstein Tk," New York Post, Oct 6, 2007; "Andrew Pal Faces Sex List Sha ." Alai! on Sunday, Oct 14, 2007; "Epstein EyesSex-Rap Relief," New York Post, Oct. 9, 2007; "Sex Case 'Victims' Liming Up," New York Past "Page Six," Oct. IS. 2007; Dwell Gregorian and Mathew Nestel, "I Was Teen Prey of Perven Tycoon," New York Post, Oct. 18, 2007. The following month, the Palm Beach Post reposed the end of the federal investigation as well. See "Epstein Has One Less Worry These Days," Paha Beach Post, Nov. 9, 2007; "How Will System Judge Palm Beach Predator7," Palm Beach Post "Opinion," Nov. 16, 2007. 3°2 The co-casc agent malted meeting with the victims about the resolution of the case, but could not recall the specifics of the discussions. 208 CA/Aronberg-000676 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736314 • • During this meeting, the Agents did not explain that an agrepment had already been signed that precluded any prosecution of Epstein for federal charges against me. I did not get the opportunity to meet or confer with the prosecuting attorneys about any potential federal deal that related to me or the crimes committed against me. My understanding of the agents' explanation was that the federal investigation would continue. I also understood that my own case would move forward towards prosecution of Epstein. In addition, the case agent spoke to two other victims and relayed th 's , Villafana in an email: Jane Doe #14 asked me why [Epstein] was receiving such a It jail sentence and Jane Doe #13 has asked for our Victi coordinator to get in touch with her so she can receive came uch needed [p]rofessional counseling. Other than that the .once was filled with emotion and grateful to the F thorities for pursuing justice and not giving up.303 The case agent told OPR that when she informed one t e ims, that individual cried and expressed "a sense of relief." Counsel for "Jane D 1 of OPR that while his client recalled meeting with the FBI on a number of occasions, s of all receiving any information about Epstein's guilty plea. In a letter to OPR, "Jan # " attorney stated that although her client recalled speaking with an FBI agent, she not about the NPA or informed that Epstein would not face federal charges in exch or tate court plea. After meeting with these s, the FBI case agent became concerned that, if Epstein breached the NPA and tffb, t to federal trial, the defense could use the victims' knowledge of the NPA's mo wary ges provision as a basis to impeach the victims.30' The case agent explained to OP hat e became "uncomfortable" talking to the victims about the damages provision, and that e lead investigator, "if we did end up going to trial . . . [if] Mr. Epstein breached mat I would be on the stand" testifying that "I told every one of these girls that they co Id sue r. pstein for money, and I was not comfortable with that, I didn't think it was right." s to , co-case agent told OPR, "[T]hat's why we went back to [Villafana] and s comfortable now putting this out there . . . because . . . it's likely that [the case agent] going to have to take the stand if it went to trial, and this could be a problem." Vt Id OPR that the case agents were concerned they would be accused of "offering a bribe The ease agent did not record any of the victim notifications in interview reports, because "it wasn't an interview of them, it was a notification... . Ulf there was something . . . relevant 'that' came up pertaining to the investigation, or something that I thought was noteworthy ... I might have [recorded it in an interview reponr JO1 Within limitations set by the Federal Rules of Evidence, a defendant nuy attack the credibility of a witness through evidence of bias, which may include the witness having received money, or expecting to receive money, froin the government, the defendant, or other sources as a result of the witness's allegations or testimony. 209 CA/Aronberg -000677 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736315 • • for [victims) to enhance their stories" and that the defense would try to have Villafaha or the case agents removed from the case. Both the lead case agent and Villafaha told OPR that after the FBI raised with Villafaha the concern that notifying the victims would create potential impeachment material in the event of a breach and subsequent trial, they contacted the USAO's Professional Responsibility Officer for advice. Villafana recalled that during a brief telephone consultation, the Professional Responsibility Officer advised her and the case agent that "it's not really that big a concern, but if you're concerned about it then you should stop making the notification."305 In her 20 CVRA declaration, the case agent stated that after conferring with the USAO, the case agr s topped notifying victims about the NPA. B. October 2007: Defense Attorneys Object to Government• "cZpifications While the case agents and Villafaha considered the impact that > victims about the resolution of the case might have on a potential trial, defense sel so raised concerns about what the victims could be told about the NPA. As discussed in C wo after the NPA was signed on September 24, 2007, the USAO proposed us to select the attorney representative for the victims, which led to further d' bout the § 2255 provision. On October 5, 2007, when defense attorney Lefkowitz t l a. a a letter responding to the USAO's proposal to use a special , he caution ther federal agents nor anyone from your Office should contact the identified indi • al form them of the resolution of the case" because such communications would "v ate the confidentiality of the agreement" and would prevent Epstein from having contr "what is communicated to the identified individuals at this most critical stage." Le itz owed this communication with an October 10, 2007 letter to Acosta, arguing that " ral agents nor anyone from your Office should contact the identified individuals to m of the resolution of the case."706 Rather, Lefkowitz wanted to "participate i fit mutually acceptable communication to the identified individuals." On October 23, 2007, 'lief a raised the issue of victim notification' with Sloman, stating: We al t contact the victims to tell [them) about the outcome of the ea a d to advise them that an attorney will be contacting em reg ing possible claims against Mr. Epstein. If we don't do it may be a violation of the Florida Bar Rules for the selected otley to 'cold call' the girls. ssed in greater detail in Chapter Two, on October 23, 2007, Leticowitz sent Acosta ng that Epstein expected to enter a guilty plea in state court on November 20, 2007, 3°5 The Professional Responsibility Officer told OPR that he did not recall the case agent contacting him about victim notification, nor did he recall being involved in the Epstein matter before the CVRA litigation was instituted in July 2008 and he was assigned to handle the litigation. Villaftha told OPR that they consulted the Professional Responsibility Officer over the telephone, the call took no more than "five minutes," and the Professional Responsibility Officer had no other exposure to the case and thus "wouldn't have lanyl context for it." 306 Lefkowitz also argued that direct contact with the victims could violate rand jury; secrecy rules. 210 CA/Aronberg-000678 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736316 • • and thanking Acosta for agreeing on October 12, 2007, not to "contact any of the identified individuals, potential witnesses, or potential civil claimants and their respective counsel in this matter."707 Shortly thereafter, Sloman drafted a response to Leflcowitz's! letter, which Acosta revised to clarify the "inaccurate" representations made by Lefkowitz, in particular noting that Acosta did not agree to a "gag order" with regard to victim contact. The draft response, as revised by Acosta, stated: You should understand, however, that there are some communications that are typical in these matters. As an example, our Office has an obi shtai to contact the victims to inform them that either [the Special, or his designee, will be contact[ing) them. Rest assured that we will continue to treat this matter as would any similarly situated case.3." In a November 5, 2007 letter, Sloman complained to Leflcow: working for Epstein had been contacting victims and asking wheth discussed financial settlement with them. Sloman noted that the pti troublesome because the FBI agents legally are required to advise the matter, which includes informing them that, as part of to pay damages in some circumstances." The same day, concern that "if we [file charges] now, cross-examina you that if Mr. Epstein is convicted, you are entitl e investigators mment agents had to gators' "actions are victims of the resolution of on, Mr. Epstein has agreed ailed Sloman expressing her sist of- 'and the government told amount of damages, right?'"3" C. October — November 2007: e d the USAO Continue to Investigate, te and the FBI Sends a Not' B ettee tt to One Victim Stating That the Case is "Under Investigation" Although Villafana and t NPA, the FBI continued its in potential victims. In Octobe 8 of whom had been identifi JD' Vi agents decided to stop informing victims about the of the case, which included locating and interviewing ber 2007, the FBI interviewed 12 potential new victims, preliminary" victim list in use at the time Epstein signed the mailed Sloman stating that she planned to meet with the cast agents to have a "general discussion bout ying out of the civil litigation" ken o idraft also stated that Acosta had informed the defense in a previous conference call that the USAO pt a "gag order." OPR recovered only a draft version of the communication and was unable to find nce that the draft letter was finalized or sent to defense counsel. 309 Subsequent records also referred to the prosecutors' concerns about creating impeachment evidence and that such concerns played a role in their decision not to notify victims of the NPA until after Epstein pled guilty. In August 2008, the AUSA handling the CVRA litigation entailed Villafaila, Acosta, and Sloman expressing his understanding that the "victims were not consulted [concerning the NPAI. . . because Ithe USAOI did not believe the ICVRAI applied." Acosta responded: "As I recall, we also believed that contacting the victims Would compromise them as potential witnesses. Epstein argued very forcefully that they were doing this for the money and we did not want to discuss liability with them, which was lal key pan of [the' agnximentl." 211 CA/Aronberg-000679 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736317 • • NPA.31° The FBI reports of the victim interviews do not mention the NPA or indicate that the victims were asked for their input regarding the resolution of the case. Vil:lafarla acknowledged that she and the case agents did not tell any of the "new" post-NPA-signing victims about the agreement because "at that point we believed that the NPA was never going to be performed and that we were in fact going to be [charging] Mr. Epstein." On October 12, 2007, the FBI Victim Specialist sent a VNS form notice letter to a victim the casd agents had interviewed two days earlier. This letter was identical to the VNS form notice letter the FBI Victim Specialist sent to other victims before the NPA was signed, desc ing the case as "under investigation" and requesting the victim's "patience." The letter lis t e eight CVRA rights, but made no mention of the NPA or the § 2255 provision. Villafan I she was unaware the FBI sent the letter, but she knew "there were efforts to make hat we had identified all victims of the crimes under investigation." In response to OPR' about the accuracy of the FBI letter's characterization of the case as "under inves illafana told OPR that the NM required Epstein to enter a plea by October 26, 2 this point we weren't actively looking for additional charges," but "the investi wasn't technically suspended until he completed all the terms of the NPA." D. The USAO Informs the Defense That It about Epstein's State Plea Hearing Investigation, but the Defense Stron Notify Victims by Letter esolution of the Federal to the Notification Plan In anticipation of Epstein's state court p , a reported on November 16, 2007, to Acosta, Sloman, and other supervisors tha e d ed, from FBI agents who met with Assistant State Attorney Belohlavek, that t e to torney's Office wanted the USAO to notify victims of the state plea hearing. [Belohlavek] woul s to do the victim notifications. The State does no pr ure (like we do federally) where the Court has top ovide a ante room for victims who want to attend judicial proce n so I do not know how many victims will actuall want to present.3" Belohlavek told a PR tat he did not recall the conversation referenced by the FBI nor any coordination een he office and federal officials to contact or notify victims about Epstein's state plea th writs ber 19, 2007, Villafafia decided that to avoid any misconduct accusations from out the information given to victims, she "would put the victim notification in e provided Sloman with a draft victim notification letter, in which among other things, 310 Not all the individuals interviewed qualified for inclusion on the victim list. For example, ore would not cooperate with investigators; a second claimed to have simply massaged Epstein with no sexual activity; and a third claimed she had no contact with Epstein 31 Villafana told OPR that she understood the state took the position that because "there was eitheronly one or two victims involved in their case," they "could not do victim notifications to all of the victims." 212 CA/Aronberg-000680 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736318 • • she would inform victims of the terms of the resolution of the federal case, including Epstein's agreement to plead guilty to state charges and serve 18 months in county jail, and the victims' ability to seek monetary damages against Epstein. The letter also would invite victims to appear at the state court hearing and make a statement under oath or provide a written statement to be filed by the State Attorney's Office. Sloman and Villafafia exchanged edits on the draft victim notification letter, and Villafafia also informed Sloman that "(t)here are a few girls who didn't receive the original letters, so I will need to modify the introductory portion of the letter for those."312 Sloman informed Lefkowitz of the government's need to•meet its "statuto igation (Justice for All Act of 2004) to notify the victims of the anticipated upcoming is heir rights associated with the agreement" and his intent to "notify the victims by afte COB Thursday, November 29." Lefkowitz objected to the proposal to notify the • fling that it was "incendiary and inappropriate" and not warranted under the Justice of 2004. He argued that the defense "should have a right to review and make obj at submission prior to it being sent to any alleged victims." He also insisted that if roil ication letters were sent to "victims, who still have not been identified to us, it shoul ly after Mr. Epstein has entered his plea" and that the letter should come from th o representative rather than the government. On November 28, 2007, at Sloman's inst ti. V lafana provided Lefkowitz with the draft victim notification letter, which would ad, C that the state court plea was to ocriir on December 14, 2007.313 In a November 29, 2007 letter to Acosta, tz Strongly objected to the proposed draft notification letter, arguing that the govemme a of ligated to send any letter to victims until after Epstein's plea and sentencing. Lefk als contended that the victims had no right to appear at Epstein's state plea hearing a me g or to provide a written statement for such a proceeding. In a November 30, 2 letter to Lefkowitz, Acosta did not address the substance of Lefkowitz's argum is b sed the defense team of "in essence presenting collateral challenges" delayi ion of the NPA, and asserted that if Epstein was dissatisfied with the NPA, " star dy to unwind the Agreement" and proceed to trial. Shortly thereafter, Acosta informed ns counsel Starr by letter that he had directed prosecutors "not to issue victim notificati e s letters until this Friday [December 7) at 5 p.m., to provide you with time to review these options '1'„r. • r client." In the letter, Acosta also refuted defense allegations that Villafana had acted imp ,! perly by informing the victims of the potential for receiving monetary damages, statingilcts"t e victims were not told of the availability of Section 2255 relief during .the inves n p e of this matter." .. mber 5, 2007, Starr and Lefkowitz sent a letter to Acosta, with copies to Sloman nt Attorney General Fisher, "reaffirm[ing]" the NPA, but taking "serious issue" with 71t r n November 28, 2007, two months alter the NPA was signed, the lead case agent informed Villafana that only 15 of the then-known victims had received victim notification letters from either the FBI or the USAO. On December 6, 2007, the lead case agent reported to Villafana that she was "still holding many of the original V/W letters addressed to victims from the USAO." 3•3 Villafatia understood the slate prosecutors had sct the December 14, 2007 date, and entailed them for confiroution, stating, "Rif the matter is set for the 14th, please let me know so I can include that in my victim notifications." 213 CA/Aronberg-000681 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736319 • • the USAO's interpretation of the agreement and "the use of Section 22155." The Starr and Leflcowitz letter asserted it was "wholly inappropriate" for the USAO to send the proposed victim notification letter "under any circumstances," and "strongly urg[ed]" Adusta to withhold the notification letter until after the defense was able "to discuss this matter with Assistant Attorney General Fisher." The following day, Sloman sent a letter to Lefkowitz, with copies to Acosta and Villafafia, asserting that the VRRA obligated the government to notify victims of the 18 U.S.C. § 2255 proceedings as "other relief" to which they were entitled. Sloman also stated that th4 VRRA obligated the government to provide the victims with information concerning restituf t which they may be entitled and "the earliest possible" notice of the status of the investipptiQn, ling of charges, and the acceptance of a plea.314 (Emphasis in original). Sloman ad Just as in 18 U.S.C. § 3771 [the CVRA], these sections limited to proceedings in a federal district court. Prosecution Agreement resolves the federal inves allowing Mr. Epstein to plead to a state offens identified through the federal investigation sh informed, and our Non-Prosecution Agreem U.S. Attorney's Office to forego [sic) its I Sloman also addressed the defense objection to a FBI case agent with questions or concerns: " 'reasonable right to confer with the attorney the defense: "The three victims who were to Mr. Epstein's punishment, not the civ law enforcement." by Tflllw(ctims ropriately require the 5,313 ictims to contact Villafafia or the eder5l law requires that victims have the emment in this case.' Sloman advised or to your objection had questions directed Those questions are appropriately directed to Along with this letter, S rded to Leflcowitz for comment a revised draft victim notification letter that was s stank similar to the prior draft provided to the defense. The letter stated that "the federal don of Jeffrey Epstein has been completed," Epstein would plead guilty in state court, the p es would recommend 18 months of imprisonment at sentencing, and Epstein would cot victims for damage claims brought under 18 U.S.C. § 2255. The letter provided s fie fo ation concerning the upcoming change of plea hearing: A mentioned above, as part of the resolution of the federal Ci eye igation, Mr. Epstein has agreed to plead guilty to state charges. r. Epstein's change of plea and sentencing will occur on mber 14, 2007, at _ a.m., before Judge Sandra K.. McSorley, 311 e12 U.S.C. § I0607(c)(1O) and (cX3). 313 Emphasis in original. Sloman also slated that the USAO did not seek to "federalize" a state pleat but "is simply informing the victims of their riglas." Villafana informed OPR that Sloman approved and signed the letter, but she was the primary author of the document. OPR notes that Villafafla was the principal author of most correspondence in the Epstein case, and that following the signing of the NPA, regardless of whether the letter went out with her, Sloman's, or Acosta's signature, the three attorneys reviewed and edited drafts of most correspondence before a final version was sent to the defense. 214 CAiAronberg-000682 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736320 • • in Courtroom I IF at the Palm Beach County Courthouse, 2051Nonh Dixie Highway, West Palm Beach, Florida. Pursuant to Florida Statutes Sections 960.001(1Xk) and 921.143(1), you are entilled to be present and to make a statement under oath. If you choose, you can submit a written statement under oath, which may be filed by the State Attomey's Office on your behalf. If you elect to prepare a written statement, it should address the following: the facts of the case and the extent of any harm, including social, psychological, or physical harm, financial losses, loss A of earnings directly or indirectly resulting from the crime for )r which the defendant is being sentenced, and any man relevant to an appropriate disposition and sentence. Stat. [§] 921.143(2). Sloman told OPR that he was "proceeding under the belief that we victims], even though it wasn't a federal case. Whether we were told OPR that while "we didn't think that we had an obligati letters . . . I think . . . and . . . the agents . . . were level." On December 7, 2007, Villafafia prepared sent to multiple victims and emailed Acosta an Sloman, however, had that day received a lett was scheduled for January 4, 2008, and ng oing to notify [the not." Sloman also d them victim notification victims apprised at some ning the above information to be questing permission to send them J16 advising that Epstein's plea hearing the USAO "hold off" sending the victim notification letters until "we can further discuss1 a contents." Also that day, Staff and Lefkowitz submitted to Acosta the two lengthy "Ind/pendent ethics opinions" supporting the defense arguments against the federal investigation and the NPA's use of 18 U.S.C. § 2255. Sloman responded to Villafaha's reque with an email instructing her to "Hold the letter."317 Sloman told OPR that he "wanted to pus the [violin notification] letter out," but his instruction to Villafaha was "the product of me spea t somebody," although he could not be definitive as to whom. Sloman further told O R that o ce the NPA "looked like it was going to fall apart," the USAO "had concerns that if e them the victim notification letter . . . and the deal fell apart, then the victims woyl4 be t stantly impeached by the provision that you're entitled to monetary compensatio mbar 10, 2007, Villafafia contacted the attorney who at the time represented the became CVRA petitioner "Jane Doe #2" to inform him that she "was preparing non letters." In her 2017 declaration filed in the CVRA litigation, Villafafia noted reached out to Jane Doe #2's counsel, despite the fact that the USAO no longer considered The FBI case agent had emailed Villafmla the day before stating, "The letter that is currently being revised needs to take into account that several victims have never been notified by your office or mine." The case agent also stated, "I do not feel that [the defense' should have anything to do with the drafting or issuing of this letter. My primary concern is that we meet our federal obligations to the victims in accordance with f?deral law." 317 Villafaila told OPR that she did not recall asking Sloman for an explanation for no(sending the Icitcrs: rather. she "just remember's:di putting them all in the Rcdwcld and putting them in a drawer and being disgusted." 215 CA/Aronberg-000683 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736321 • • her a victim for purposes of the federal charges, and continued to treat her 8.4 a victim because she wanted "to go above and beyond in terms of caring for the victims."318 E. December 19, 2007: Acosta Advises the Defense That the :USAO Will Defer to the State Attorney the Decision Whether to Notify Victiins of the State Plea Hearing, but the USAO Would Notify Them of the Federal Resolution, "as Required by Law" On December I I, 2007, Starr transmitted to Acosta two lengthy submissions au ored by Lefkowitz presenting substantive challenges to the NPA and to "the background an co duct of the investigation" into Epstein. Regarding issues relevant to victim notification, in ittal letter, Starr asserted that the "latest episodes involving [§] 2255 notification to ed ictims put illustratively in bold relief our concerns that the ends of justice, time an' n, are not being served." By way of example, Starr complained the government had r-• propriately provided "oral notification of the victim notification letter" to one girl' even though it was clear from the girl's recorded FBI interview that she "did not in an er view herself as a victim." In his submissions, Lefkowitz argued that the goyem as not required to notify victims of the § 2255 provision: Villafafia's decision to utilize a civi tute in the place of a restitution fund for the alleged ' eli mates the notification requirement under the Justice f 2004, a federal law that requires federal authorities oti ictims as to any available restitution, not of any tial it remedies. Despite this fact, [she] proposed a Victit ation letter to be sent to the alleged federal victims. Lefkowitz also argu victim trust fund would provide a more appropriate mechanism for compensatin ms than the government's proposed use of 18 U.S.C. § 2255, and a trust fund woul not vi Epstein's due process rights. Lefkowitz took issue with the government's "asserti the USAO was obligated to send a victim notification letter to the alleged victims, even a it was appropriate for the USAO to do so. Lefkowitz further argued that the gove erpreted both the CVRA and the VRRA, because neither applied to a public, slat ing involving the entry of a plea on state charges. er from Villafafia to Lefkowitz, responding to his allegations that she had co conduct, she specifically addressed the "false" allegations that the government had 318 As noted previously, in April 2007, this victim gave a video-recorded interview to the FBI that was favorable to Epstein Villafaha told OPR she was instructed by either Slott= or Acosta "not to consider (this individual' as a victim for purposes of the NPA because she was not someone whom the Office was prepareidl to include in" a federal charging document. Accordingly, the victim who became "Jane Doe #2" was not included on the victim list ultimately furnished to the defense. The attorney who was representing this victim at the time of her FBI interview was paid by Epstein, and she subsequently obtained different counsel. 216 CA/Aronberg-0006B4 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736322 informed victims "of their right to collect damages prior to a thorough investigation of their allegations against Mr. Epstein": None of the victims were informed of the right to sue under Section 2255 prior to the investigation of the claims. Three victims were notified shortly after the signing of the [NPA) of the general terms of that Agreement. You raised objections to any victim notification, and no further notifications were done. Throughout this process you have seen that I have prepared this case as though it would proceed to trial. Notifying the witnesses of the possibility of damages claims prior to concluding the matter by plea or tria would only undermine my case. If my reassurances are insuffici the fact that not a single victim has threatened to sue Mr. should assure you of the integrity of the investigation. On December 14, 2007, Villafafta forwarded to Acosta the draC,,victtr notification letter previously sent to the defense, along with two draft letters addressed to Sia e Attorney Krischer; Villafatla's transmittal email to Acosta had the subject line, " die le the draft letters to Krischer, to be signed by Villafana, was enclosed victim notification letter to specified identified of the identified victims and their contact informati with any further notification regarding their rights to Krischer, for Acosta's signature, request allegations that the State Attorney's Offi sentence because it believed that the case s registration. OPR found no evidence t A few days later, in an app emailed Sloman, stating, "[Is Sloman that "[the FBI case are the subject of an OPR in an unrelated matter). e seem email. In the lengthy fol their obj rs you requested." One of hat the USAO had sent an referred to an enclosed "list ou are required to provide them a law.s719 The second draft letter ri'scher respond to defense counsel's mfortable with the proposed plea and olved with probation and no sexual offender ers were sent to Krischer.110 to move forward with victim notifications, Villaftula g that I or the agents should be doing?" Villaftula told worked up because another agent and [a named AUSA] ion for failing to properly confer with and notify victims [in e in a Catch 22."111 OPR did not find a response to Villafafta's ecembeY 14, 2007 meeting with Acosta and other USAO personnel and in their er to Acosta on December 17, 2007, Starr and Lgflcowitz continued to press e USAO's involvement in the Epstein matter. They requested that Acosta 3 victim notification letter was identical to the draft victim notification letter sent to the defense on rkcei r 6, 2007, except that it contained a new plea date of January 4, 2008. 320 Moreover, the letters were not included in the publicly released State Attorney's file, which included other correspondence from the USAO. See Palm Beach State Attorney's Office Public Records/Jeffrey Epstein, available at http://sa15.org/stateattomey/NewsRoonVindexPR OPR was unable to locate any records indicating that such allegations had ever been referred to OPR. Villafaila told OPR that "Catch 22" was a reference to insinictions from supervisors "Itlhat we can't go forward on" filing federal charges and "I was told not to do victim notifications and confer at the time.", 217 CA/Aronberg-000685 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736323 • • review the appropriateness of the potential federal charges and the government's "unprecedentedly expansive interpretation" of 18 U.S.C. § 2255. In a December 19, 2007 response to the defense team, Acosta offered to revise two paragraphs in the NPA to resolve "disagreements" with the defense and to clarify that the parties intended Epstein's § 2255 liability to "place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less." Acosta also advised that although the USAO intended to notify the victims of the resolution of the federal investigation, the USAO would leave to the State Attorney the decision whether to notify victims about he state proceedings: I understand that the defense objects to the victims being giv notice of Ethel time and place of Mr. Epstein's state court sent hearing. 1 have reviewed the proposed victim notification le the statute. I would note that the United States provid letter to the defense as a courtesy. In addition, First Assi ant U ited States Attorney Sloman already incorporated in tie le veral edits that had been requested by defense couns, e that (the C V RAJ applies to notice of proceedings and r vestigations of federal crimes as opposed to the state cri r end to provide victims with notice of the federal resolu fired by law. We will defer to the discretion of the S e regarding whether he wishes to provide victims wi n ce o the state proceedings, although we will provide himftit t e ormation necessary to do so if he wishes. Acosta told OPR that he "w e sent this letter without running it by [Sloman], if not other individuals in the offi ds show he sent a draft to Sloman and Villafana. Acosta explained to OPR that concerned about deferring to Krischer on the issue of whether to notify the victims proceedings because he did not view it as his role, or the role of the USAO, "to direct St e Attorney's Office on its obligations with respect to the state outcome."' Acosta rther exp aimed to OPR that despite the USAO's initial concerns about the State Attorney's Offi ling of the Epstein case, he did not believe it was appropriate to question that o s a ity to "fulfill whatever obligation they have," and he added, "Let's not assume . . . t e Stet Attorney's Office is full of bad actors." Acosta told OPR that it was his understan t the victims would be aware of what was happening in the state court and have an oppo nit speak up at the state court hearing." Acosta also told OPR that the state would 's handwritten notes from a December 21, 2007 telephone conference indicate that Acosta asked the deft "Art there concerns re: 3771 langluagel," to which Lefkowitz replied, "The state should have their own mccl it" At the time of the Epstein matter, under the Florida Constitution, upon request, victims were afforded the "right to reasonable, accurate, and timely notice of, and to be present at" a defendant's plea and sentencing. Fla. Corot. an. I, § 16(b)(6). Similarly, pursuant to state statute, "Law enforcement personnel shall ensure" that victims are given information about "tithe stages in the criminal or juvenile justice process which are of significance to the victiml.l" Fla. Stat. § 960.001(1Xa)(2007). Victims were also entitled to submit an oral of written impact statement. Fla. Stat. § 960.001(1)(k) (2007). Moreover, "in a case in which the victim is a minor child," the guardian or family of the victim must be consulted by the state attorney "in order to obtain the views of the victim or family about the disposition of any criminal or juvenile case" including plea agreements. Fla. Stat. § 960.001(1Xg) (2007). 218 CA/Aronberg-000686 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736324 • • have "notified [the victims] that that was an all-encompassing plea, that that state court sentence would also mean that the federal government was not proceeding" Sloman told OPR that he thought Acosta and Criminal Division Deputy Assistant Attorney General Sigal Mandelker had agreed that the decision whether to notify the victims of the state court proceedings should be "left to the state." t23 Mandelker, however, had no memory of advising Acosta to defer the decision to make notifications to the State Attorney, and she noted that the "correspondence [OPR] provided to me from that time period" discussing such a decision "demonstrates that all of the referenced language came from Mr. Acosta and/or his tea nd that I did not provide, suggest, or edit the language." Sloman told OPR that he initially to ed that "the victims were going to be notified at some level, especially because they had r tun 'ghts under § 2255'; but, his expectations changed after "there was an agreement m at w were going to allow the state, since it was going to be a.state case, to decide how t ere going to be notified." Assistant State Attorney Belohlavek told OPR that she did not any e receive a victim list from the USAO. She further said she did not receive any requ st fr USAO with regard to contacting the victims. In response to Acosta's December 19, 2007 letter, not communicate with the victims, and that the state, n heard at the sentencing hearing: (\lour letter also suggests t jection to your Office's proposed victims notificaf tier s that the women identified as victims of federal c' d not be notified of the state proceedings. That is our previous letter clearly states. Putting aside our t o ntention that many of those to whom [CVRA] notifi are intended are in fact not victims as defined in e A ey General's 2000 Victim Witness Guidelines— tarn requiring physical, emotional or pecuniary injury of the ]—it was and remains our position that these women e notified of such proceedings but since they are n 'ther n ses nor victims to the state prosecution of this matter, ey shou not be informed of fictitious "rights" or invited to make written or in-court testimonial statements against Mr. Epstein . Villafafia repeatedly maintained they d the right to do. Additionally, it was and remains our position that any notification should be by mail and that all proactive efforts by the FBI to have communications with the witnesses after the execution of the Agreement should finally come to an end. We agree, however, with your December 19 modification of the previously drafted federal notification letter and agree that the asserted that the FBI should , should determine who can be 323 In his June 3, 2008 letter to Deputy Attorney General Mark Fillip, Sloman wrote, "Acosta again consulted with DAAG Mandelker who advised him to make the following proposal Ito defer notification to the State Attorney's Officer OPR found no other documentation relating to Mandelker's purported involvement in the decision. 219 CA/Aronberg-000687 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736325 decision as to who can be heard at a state sentencing is, amongst many other issues, properly within the aegis of state decision making.324 Following a conversation between Acosti and Lefkowitz, in which Acosta asked that the defense clarify its positions on the USAO proposals regarding, among other things, notifications to the victims, Leflcowitz responded with a December 26, 2007 letter to Acosta, objecting again to notification of the victims. Lefkowitz argued that CVRA notification was not appropriate because the Attorney General Guidelines defined "crime victim" as a person harmed as a res It of an offense charged in federal district court, and Epstein had not been charged in f court. Nevertheless, Lefkowitz added that, despite their objection to CVRA notification •0 not object (as we made clear in our letter last week) that some form of notice be gi t the a eged victims." Leflcowitz requested both that the defense be given an opportunity v any notice sent by the USAO, and that "any and all notices with respect to the alleged vi e offenses should be sent by the State Attorney rather than [the USAO1," and at the USAO "should defer to the discretion of the State Attorney regarding all m with regard to those victims and the state proceedings." Months later, in April 2008, Epstein's attorneys co Sloman and Villafafia committed professional miscon improper and unusual 'victim notification letter' to all; a letter to Mandelker that tening to send a "highly F. January—June 2008: While the Defense Presses Its Appeal to the Department in an Effort to Undo the NP FRI and the USAO Continue Investigating Epstein As described in Chapter Two of-this Report, from the time the NPA was signed through the end of June 2008, the defe employed various measures to delay, or avoid entirely, implementation of the NPA. y7 defense counsel's advocacy resulted in the USA0's decision to have the federal afresh. A review of the evidence was undertaken first by USA() Criminal Chief Senior and then, briefly, by an experienced CEOS trial attorney. A review of the cas ight of the defense challenges was then conducted by CEOS Chief Oosterbaan, in ation with his staff and with Deputy Assistant Attorney General Sigal Mandelker and Assist A omey General Alice Fisher, and then by the Office of the Deputy Attorney Gene Each iew took weeks and delayed Epstein's entry of his state guilty plea. AQI rt low, during that time, Villafafia and the FBI continued investigating and worki potential federal charges. 1. Villafafia Prepares to Contact Victims in Anticipation That Epstein Will Breach the NPA On January 3, 2008, the local newspaper reported that Epstein's plea conference in state court, at that point set for early January, had been rescheduled to March 2008, at which time he would plead guilty to felony solicitation of prostitution, and that "in exchange" for the guilty plea, 324 The 2000 Guidelines were superseded by the 2005 Guidelines. 220 CA/Aronberg-000688 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736326 • • "federal authorities are expected to drop their probe into whether Epstein broke any federal laws."325 Nevertheless, as Epstein's team continued to argue to higher levels of the Department that there was no appropriate federal interest in prosecuting Epstein and thus no basis for the NPA, and with his attorneys asserting that "the facts had gotten better for Epstein," Viltafaha came to believe that Epstein would likely breach the NPA.326 In January 2008, Villafaha informed her supervisors that the FBI "had very tight contact with the victims several months ago when we were prepared to [file charges], but all the shenanigans over the past few months have resulted in no con act with the vast majority of the victims." Villafaha then proposed that the FBI "re-establish con ct with all the victims so that we know we can rely on them at trial."3t7 Villafaha told t this point, "[w]hile the case was being investigated] and prepared for indictment, I d prepare or send any victim notification letters—there simply was nothing to update. ceive any victim calls during this time." 2. The FBI Uses VNS Form Letters to Re-Estab tact with Victims On January 10, 2008, the FBI Victim Specialist mailed letters to 14 victims articulating the eight CVRA rights a contact information with the FBI in order to obtain cur case agent informed Villafaha in an email that the Vi letter to all the remaining identified victims." Th letters the Victim Specialist had sent to victims Like those previous letters, most of which we 2007, the 2008 letters described the case a can be a lengthy process and we reque investigation." The letters also stated. 323 Michele Dargan, "Jeff Sheet," Jan. 3, 2008. 326 Epstein's attorney unflattering details or pote exclusion of those yib the federal p Villafatta Ju 50, 51 (Fe higWy Epstein knew Worked 2018. nerated victim notification recipients to update their on about the matter.328 The ist sent a "standard form [FBI] rs were identical to the FBI form A gust 28, 2006, and October 12, 2007. the NPA was signed on September 24, under investigation" and noted that "[t]his inued patience while we conduct a thorough ca Hearing Moved to March," Palm Beach Daily News "Tic Shiny discovery proceedings in the state case to depose federal victims, and as they teamed peachment information concerning likely federal victims, they argued for the inn from the federal case. For example, defense attorneys questioned one victim as to whether or FBI agents told her that she was entitled to receive money from Epstein. See Exhibit 9 to Landon: Deposition of (REDACTED], State v. Epstein. Case No. 2006•CF•9454, at 44, ).'One victim's attorney told OPR that the defense attorneys tried to "smear victims by asking al questions about "terminations of pregnancies . . . sexual encounters . . . masturbation." used similar tactics in questioning victims who filed civil cases against their client. For example, raid reported that, "One girl was asked about her abortions, and nts, who were Catholic and ping about the abortions, were also deposed and questioned." See Julie Perversion of Just ice: Cops o Put a Serial Sex Abuser in Prison. Prosecutors Worked to Cut Him a Break," Miami Herald, Nov. 28, 327 Villafaita also told her supervisors that she wanted the FBI to interview two specific victims. 3n The Victim Specialist later generated an additional letter dated May 30, 2008. After Epstein's June 30, 2008 state court pleas, she sent out substantially similar notification letters to two victims who resided outside of the United States. 221 CA/Aronberg-000689 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736327 We will make our best efforts to ensure you are accorded the rights described. Most of these rights pertain to events occurring after the arrest or indictment of an individual for the crime, and it will become the responsibility of the prosecuting United States Attorney's Office to ensure you are accorded those rights. You may also seek the advice of a private attorney with respect to these rights. The FBI case agent informed Villafaha that the Victim Specialist sent the letters and would follow up with a phone call "to offer assistance and ensure that [the victims] have received thei etter." A sample letter is shown on the following pages. Villafaha told OPR that she did not recall discussing the content of the I they were sent to the victims, or reviewing the letters until they were coil litigation, sometime after July 2008. Rather, according to Villafana, "The letter and the wording of those letters were exclusively FBI decisions.. asserted to OPR that from her perspective, the language regarding the absolutely true and, despite being fully advised of our ongoing in esti my supervisory chain ever told me that the case was not under' various investigative activities in which she engaged from " 2008," such as collecting and reviewing evidence; in victims; identifying new charges; developing new prosecution memoranda; revising the charging pac the FBI case agent told OPR that at the time th the investigation was continuing." The never been shut down." Victim course of the CVRA litigation, sh was still being investigated an prosecution of Epstein for hi at e time e CVRA n to issue the ess, Villafana Investigation "was activities, no one in tion." Villafaha identified 2007 until he end of June ew victims; re-interviewing ategies; drafting supplemental sparing to file charges. Similarly, sent the "case was never closed and ed that the "the case was open . . . it's e January 10, 2008 FBI letters; much later, in the t her "understanding of this letter was that [her] case and prosecutors were moving forward on the Federal inst [her]."' 329 CVRA petitioner Jane Doc #2 also received a January 10, 2008 FBI letter that was sent to her counsel. 222 CA/Aronberg-000690 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736328 • • January 10.2008 NM= Re; Case gumbo Dear D.S. Department of Justice Federal Bureau of InvesUgation FBI - West Palm Beach Suite 600. 506 South Floater Dina Wad Palm beach, M. 33401 Phone: (561)833-7517 Fa)C (561) 833.7070 CO This case Is currently under frivisligation. Tide can be elannit ylrlQoejl and wo request your continued patience wile we conduct a therotigh investigation. Ac a crime victim, you have the following rights untellt io jai Code $3171: (1) The right to be reasonably protected horn the accused: (2) The right to COO O0eurote. and timely notice Many plate court proceeding, or any parole proceeding, InvoMng the crime or of any release or escape of the accused: (3) The Flight not to be exduded.from only such pu biro court proceeding. unless the coon, after receiving clear and convincing evidence, delernerple that testimony try the victim would be materially altered If that vlullin Tigard other testimony at Unit putkartnilny; (4).Tlrr right tube reasonably heard at any public proceeding In the diselci court inioNing release. plea. Sentendng, or any parole proceeding; (5) The reasonable right to confer with the attorneyfor tho Government In the case; (6) The riots to full and timely restIttrJon as proYided In law: (7) The r to bcdhvgs free from unreasonable delay; (8) The dght to be treated with fairness end with reap b dignItyand privacy. We will make our bast aifarle to to you are accorded the rights described. Most of these rights pertain to events occurrhg after pie artest or Iodic:milt of an individual for the cdme, and It will become the responsbility of the prosecuting Lifiltradttatee Attorney's Office to ensure you era accorded those Vile. You may aiso seek the advice of a private attorney vAlii respect to these rights. The Victim Notification System (VNS) Is designed to provide you With direct information regarding the case os It proceeds through the criminal justice system. You may obtain co o e t JW.NOU U DOJ.GOV or from the VIJS ca Center at In addition, you may use the Coll Center of Internet to update your contact IntermatIon andfor c nue your dation about participation In tho notification program. If you update your Information to Include a currant emelt address, VNS will send Information to Mal address. You will need the following Viet imIdentificaliun Number (VIN) Pfirs Identification Number (PIN) IIIIInnylima you contact the Otnntend the first Umo you log on to VN tho Internet. In addition, the first time you access the VNS Internet site, you will be prompted to enter your list name (or business name) as currently contained In VHS. The name you should enter Is 223 CA/Aronberg-000691 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736329 • • i ,. .. n .. . . If you have pclilli icpaliolattortsyddel,lityolyes this,re oder, please conti3qt tlicieffIrieslatitli(iitkf ,?tliskri- you call, please pteirlde.titeille;plunitiltoorilealtitio top or this letter: Plea Serornembiy,'vnir.parecipatkar In the notihcanoa,part of Otte PrpiponflalVernit#0. fin order to condnus.to retilvii.inethcetitiOritAtia ur‘ro responsibility to.keop yovrounklethgnyiellitc ePelant: Siiieerelii. ACZ3. Villatana, the FBI, and the CEOS Trial Attorney I ' Victims As Villafaila resumed organizing the case for charging and trial, I case agent provided Villafafia with a list of "the 10 identified victims we are planni,g on using in" the federal charges and noted that she and her corcase agent wanted to er evaluate some additional victims.a10 In WaShington, D.C., CEOS assigned a Trial Atto he Epstein case in order to bring expertise and "I national perspective" to the matter." .On January 18; .2008,. one attorney representin vi d her.family contacted Sloman by telephone, stating that he planned to file civil Ill not: Epstein on behalf of his clients, who were "fru st rated with th0 lack:of progress in est vestigati on" of Eps.tei n. The atiomey staked Sloman if the :USAO. "Could file crimin en though the statb was looking into the matter," but Slottian declined to answer s esti s concerning the investigation.332 In late January, the New York Post reported t e a ey's clients had filed a $50 million civil suit against Bpstein in Florida and that" expected to be sentenced to 1.8 months in prison when he pleads guilty in March 1 arge of soliciting an underage' prostitute."333 Between January 31,, additional victims and reint signed.310 In late Jan ry 200 ay 28, 2008, the FBI, with the prosecutors, interviewed several who had been interviewed before the NPA was Villafafia and the CEOS Trial Attorney prepared to participate. 70 The also informed Villafaila that she expected to ask for legal pmccso soon in.order to obtain additionall Trial Attorney told 0PR thatahe was under the impression that she was brought in to help prepare bribe tn the Plea had fallen through" 3)2 Because Slontan and the attorney were torturer Igot practice partners, $loptan reported the interaction, to Acosta, nd the USA0 reposed the iriciderd to QPR *illy thereafter. OPR rovigted the matter as an inquiry and determined that no further action Was warranted'. 3" Darch Gregorian. "Tycoon Peeved Me at 14 -$50M Suit Hits NY Creep Over Mansion Massage," New tork Post, Jan. 25, 2008. 334 An FBI interview repon from May 28,2008; indicates that one victim "believes Epstein should be prosecuted for his actions." 224 CA/Aronberg-000692 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736330 • • , in FBI interviews of and other victims, Villafafia informed CEOS Chief Oosterbaan that she anticipated the victims "would be concerned about the status of the case." On JanuaryLL2008, Villafafia, the CEOS Trial Attorney, and the FBI interviewed three victims, including =. Prior to the interview, had received the FBI's January L0 2008 letter stating that the case was under investigation; however, according to the case agent, and two other victims had also been told bySie FBI, in October 2007, that the case had been resolved. In her 2015 CVRA-case declaration, stated that after receiving the FBI letter, she believed that the FBI was investigating the case, and she was not told "about any [NPA] or any otenteal resolution of the federal criminal investigation I was cooperating in. If I had bee I of a[n NPA], I would have obj ed." In Villafafia's 2017 declaration in the CVRA ling fafia recalled interviewing on January 31, 2008, along with FBI agents, and Vi a tot OPR she "asked [M] whether she would be willing to testify if there were a tria a recalled responding that she "hoped Epstein would be prosecuted and t willing to testify."335 After the first three victim interviews on January 31, 200 Ila described for Acosta and Sloman the toll that the case had taken on two of the victi One girl broke down sobbing so that we twice . . she said she was having nigh after her and she started to break interview. The second girl . . . was ve read about in the paper.3 that she had heard that rather not get any in jail.333 the interview t Epstein coming so we stopped the t the 18 month deal she had hat 18 months was nothing and Id get restitution, but she would have Epstein spend a significant time Villafafia closed the email by u ng that Acosta and Sloman attend the interviews with victims scheduled for the following da ut neither did so.335 Acosta told OPR that it "wasn't typical" 333 erview did not reflect a discussion of intentions. n5 See r i h rian, "Tycoon Perved Me at t 4 - 550M Suit Hits NY Creep Over Mansion Massage," New York Post, an. 21 r As early as October 2007, the New York Post reported the 18-month sentence and that "Itlhe f ve a ed to drop their probe into possible federal criminal violations in exchange for the guilty plea to the new ." Dan Mangan, "'Unhappy Ending' Plea Deal - Moneyman to Get Jail For Teen Sex Massages," I. Oct. 1, 2007. 337 costa told OPR, "The United States can't unwind an agreement just because some victim indicates tat they don't like it." The CEOS Trial Attorney recalled that she did not "think that any one of these girls was interested in this prosecution going forward." Furthermore, as previously noted, the CEOS Trial Attorney also opined that "(the vietims1 would have testified for us." but the case would have required an extensive amount of "victim maingement," as the girls were "deeply embarrassed" that they "were going to be called prostitutes." OPR located FBI interview reports relating to only one February I, 2008 victim interview. Although Villafatta's entails indicated that two additional victims were scheduled to be interviewed on Febniary I, 2008, OPR located no corresponding reports for those victim interviews. OPR located undated handwritten notes Villafafia 225 CA/Aronberg-000693 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736331 • • for him, as U.S. Attorney, to attend witness interviews, and farther, that no one in the USAO "was questioning the pain or the suffering of the victims." Sloman told OPR that he himself had "never gone to a line assistant's victim or witness interview." Villafaha told OPR that although three of the victims interviewed during this period had been notified by the FBI in October 2007 about the resolution of the case, at this point Villafaha did not specifically tell these victims that "there was a signed non-prosecution agreement that had these terms." Villafaha also told OPR she "didn't talk about money" because she "didn't want there to be an allegation at the time of trial . . . that [the victims] were either exagg ng their claims or completely making up claims in order to increase their damages amou ather, according to Villafaha, she told the three victims that "an agreement had bee here [Epstein] was going to be entering a guilty plea, but it doesn't look like he inlkE to actually perform . . . [and] now it looks like this may have to be charged, and may t to trial." Villafana recalled "explaining that the case was under investigation," th t ere preparing the case [for charging] again," and "expressing our hope that charges w ght." Villafaha recalled one victim "making a comment about the amount of [impriso ime and why was it so low" and Villafaha answered, "that was the agreement that th tce reached."' With regard to the victims Villafaha interviewed who had of ceived an FBI notification in October 2007, Villafalla recalled discussing one victim's safety ncems but not whether they irn that "we thought we had reached an y sure' that she did not mention the ana explained that she likely did not discussed the agreement. She recalled telling another agreement with [Epstein] and then we didn't," but agreement during the interview of the third vi discuss the agreement because at that point I just felt . .. know anything about_ going to end up b if you tell peop like, I didn't the facts of th The CEOS Tri about the NPA the s prosecution t agent told intervie for t re onexistent. [The victim] didn't d, and as far as I could tell it was the heap, and I didn't want to -- he's already admitted that he's guilty, color her statement. I just wanted to get ey told OPR that she did not recall any discussion with the victims us of the case.3' 0 She did remember explaining the significance of the wen who "did not think anything should happen" to Epstein. The FBI case e did not recall the January 2008 interviews. OPR located notes to an FBI that one of the victims wanted another victim to be prosecuted. Attorneys who had been notified by the FBI in October 2007 about the e case informed OPR that as of 2020, their clients had no memory of meeting with audio concerning one of the two victims that contained no information regarding a discussion of the status of the investigation or the resolution of the cast Through her attorney, this victim told OPR that she did not recall having contact with anyone from the USAO. Villafana did not recall any other specific questions from victims. ito The CEOS Trial Attorney noted that CEOS did not issue victim notifications; ratlier, such notifications were generally handled by a Victim Witness Specialist in the assigned USAO. 226 CA/Aronberg-000694 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736332 prosecutors and did not recall learning any information about Epstein's guilty plea until after the plea was entered on June 30, 2008. When asked whether she was concerned that her statements would mislead the victims, Villafaha told OPR: From my perspective we were conducting an investigation and it was an investigation that was going to lead to an indictment. You know, I was interviewing witnesses, I was issuing [legal processl.. . I was doing all [these] things to take the case to a federal indictment and a federal trial. So to me, saying to a victi the case is now back under investigation is perfectly accurate. 4. February — March 2008: Villafana Takes Addi io (to Prepare for a Prosecution of Epstein, Arranges for Attorneys for Victims, and Cautions about Continued Dela In February 2008, Villafaha revised the prosecutio memorandum. Villafaha removed some victims known to and others subject to impeachment as a result of civil suit discovered victims, and made changes to the propos While the defense appealed the USAO's the Department, Villafana sought help for vic attempting to subpoena for depositions as, victims had brought against him, as well Villafaha reported to her supervisors organization" to provide attorney victims to provide contact info the victims service organize Villafana also informed her s suicide last week," enough how important answer is reallyyyCCearin forced to wait the sid tnes." dum and supplemental m the PBPD investigation gainst Epstein, added newly prosecute Epstein to higher levels of efense investigators were harassing and of tein's defense in civil lawsuits that some edly in connection with the state criminal case. as able to locate a "national crime victims service urns, and the FBI Victim Specialist contacted some the attome s.341 During this period, an attorney from e to help avoid an improper deposition. rs, including Sloman, that "one of the victims tried to commit d advoca aggressively for a resolution to the case: "I just can't stress these girls to have a resolution in this case. The 'please be patient' , especially when Epstein's group is still on the attack while we are March — April 2008: Villafana Continues to Prepare for Filing Federal Charges faha continued to revise the proposed charges by adding new victims and by removing others o had filed civil suits against Epstein. Villafaha also prepared search warrants for digital The FBI Victim Specialist informed Villafaria that she spoke "directly to seven victints" and informed them of the pro bono counsel and explained that her "job as a Victim Specialist is to ensure that Vfictimsil of a Federal crime are afforded their rights, information and resource referral." 227 CA/Aronberg-000695 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736333 • • camera memory cards seized by the PBPD in order to have them forensically examined for deleted images that could contain child pornography.342 By early April 2008, as the defense pursued its appeal to the Department's Criminal Division, Acosta predicted in an email to Villafaila and Sloman that federal charges against Epstein were "more and more likely." Villafaha asked Oosterbaan for help to "move this [Criminal Division review] process along," noting that the defense continued to undermine the government's case by deposing the victims "under the guise of 'trial prep' for the state case" and that the "agents and the victims" were "losing their patience." On April 24, 2008, Villafaha emailed Sloman and USAO Criminal Divisi asking whether she had the AIlight" to file charges and raising the same expressed to Oosterbaan. Vi a Ma further cautioned that, although she charges on May 6, if that was not going to happen, "then we all need to mee agents, and the police officers to decide how the case will be resolved a explanation for the delay." Because the Department's Criminal Di review of Epstein's appeal by May 6, however, Villafaha did not for s she had ng to file e victims, the e them with an id not conclude its that day. VIII. USAO SUPERVISORS CONSIDER CVRA OB S IN AN UNRELATED MATTER AND IN LIGHT OF A NEW FIFTyt OPINION During the period after the NPA was sign by entering his state guilty pleas, the USAO su between the Department's position that C criminal charge and a new federal app communications confirm that in 2008, regarding the issue. Unrelated to the Epste citizen complaint from an a Florida Bar had violated hi guaranteed him "an a the victim of a federal Chief, who info ed under [the C Division readin trigg re Epstein complied with the NPA re explicitly made aware of a conflict s' rights attached upon the filing of a to the contrary. The contemporaneous loman were aware of the Department's policy ion, on April 18, 2008, Acosta and Sloman received a requested to meet with them regarding his belief that the Amendment rights. The attorney asserted that the CVRA lute rig t to meet" with USAO officials because he believed that he was Acosta forwarded the message to the USAO Appellate Division A to and Sloman that, according to the 2005 Guidelines, "our obligations are not triggered until charges are filed." On April 24, 2008, the Appellate Acosta and Sloman, stating that she had "confirmed with DO.1 that [her] 5 Guidelines] is correct and that our obligations under [the CVRA] are not case is filed "N3 n May 7, 2008, the Appellate Division Chief sent Acosta and Sloman a copy of a U.S. Court Appeals for the Fifth Circuit opinion issued that day, In re S holding that a victim's 1.2 The forensic examination did not locate useful evidence on the memory cards. Hs The Appellate Division Chief advised Acosta that Acosta could inform the cornplainint that. prior to the initiation of charges, the investigating agency was responsible forcarrying out the Department's statutory obligations to the victim. • 228 CA!Aronberg-000696 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736334 • • ' I CVRA rights attach prior to the filing of criminal charges.144 The Appellate, Division Chief noted that, although the holding conflicted with the 2005 Guidelines, the "court's dpinion makes sense." involved a federal prosecution arising from a 2005 explosiL at an oil refinery operated by BP Products North America, Inc. (BP) that killed 15 people and injured more than 170. Before bringing criminal charges, the government negotiated a guilty plea with BP without notifying the victims. The government filed a sealed motion, alerting the district court to the potential plea and claiming that consultation with all the victims was impractical and that such notification could result in media coverage that would undermine the plea negotiations. The court then entered an order prohibiting the government from notifying the victims of the p ding plea agreement until after it had been signed by the parties. Thereafter, the government inal information, the government and BP signed the plea agreement, and the govemm led notices of the plea hearing to the victims informing them of their right to be heard. h later, 12 victims asked the court to reject the plea because it was entered into in vi ono o their rights under the CVRA. The district court denied their motion, but conclud that VRA rights to confer with the prosecutor in the case and to be treated with fairness res t for the victim's dignity and privacy vested prior to the initiation of charges.]°' dis court noted that the legislative history reflected a view that "the right to confer w 4 y ed to be broad," as well as being a "mechanism[]" to ensure that victims were treated In denying the victims relief, the Fifth Circuit "failed to accord the victims the rights conferred b cited the district court's acknowledgement tha apply before any prosecution is underway." was not "an infringement" on the govern only a requirement that the goveinme ultimately exercising its broad disc components wrote separate mem whether the CVRA right to co fitc e nfer in concluded that the district court " 34 In particular, the Fifth Circuit e are clearly rights under the CVRA that ircuit also noted that such consultation pendent prosecutorial discretion, but "it is some reasonable way with the victims before the wake of the opinion, two Department e Solicitor General with opposing views concerning prosecution vests prior to the initiation of a prosecution. IX. JUNE 2008: vra 'S PRE-PLEA CONTACTS WITH THE ATTORNEY REPRESENTING T VICTIMS WHO LATER BECAME THE CVRA PETITIONE A retai the [US Epst 344 which is Atkin S Eleventh Circuit. to an :davit filed in the CVRA litigation by her attorney, s in June 2008 to represent her "because she was unable to get anyone II er what was actuaring on with the federal criminal case against Jeffrey lafana told OPR that did not contact her directly and she was not aware of re `527 F.3d 391 (5th Cir. 2008). The Fifth Circuit opinion was not binding precedent in Florida, '" United States v. BP Products North America. Inc., 2008 WI, 501321, at '11 (S.D. Tex. 2008). Victims who wished to be heard %Vele permitted to speak at the plea hearing. it' MI, 527 F.3d at 394. h Before Epstein's state court plea hearing, also beloresent tog the vieltim who became lane Doc Although 0PR focuses on Villafafta's conununications wit in this section. OPR notes that Villafafta 229 343 #2 CAJAronberg 000697 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736335 • • I an instance in which "asked a question that wasn't answered" of anyohe in the USAO or of the FBI case agents. contacted Villafaha by email and telephone in mid-Jun e "information and concerns that [he] would like to share.""" his affidavit: ,al that he had i In alleged that during multiple telephone calls with Villafaha, he "asked very specific questions about what stage the investigation was in," and Villafaiia replied that she could not answer his questions because the matter "was an on-going active investigation[.]" attested that Villafana gave him "the impression that the Federal investigation was on-going, very expansive, and continuously owing, both in the number of identified victims and [in] complexity."B9 In her written response to OPR, Villafaha said that she "listened more h poke" during these interactions with which occurred before the state cou Given the uncertainty of the situation — Epstein was still our ability to prosecute him federally, pressing al prosecutorial misconduct, and trying to negotiate better rrns, while the agents, my supervisors, and I were alfarAtxting towards [filing charges] — I did not feel comfortable s ring any information about the case. It is also my practice not about status before the grand jury. In her 2017 declaration in the CVRA exchanges, Villafaha did not inform Edward know whether the NPA remained viable at guilty plea that would trigger the NPA.""35° illafaha explained that during these ence of the NPA because she "did not hether Epstein would enter the state court ha told OPR that she did not inform also had interactions with other vier sTFor example, another attorney informed OPR that he spoke to Villafana two to five times to t us of the case and each time was told that the cast was under investigation. The attorney noted, k nev got any information out of Willafailaj. We were never told what was happening or going on to any one ihfana's counsel told OPR that Villafafia did not have any interaction with the attorney or his law partner until a cr Epstein's state court plea hearing, and that in her written conununications responding to the attorney's i nquirigs, she provided information to the extent possible. OPR found no documentation that Villafafia's conununications With the attorney occurred prior to June 30, 2008. Villafana also Ind more ministerial interactions with °di& victims' counsel, as well as contact regarding their ongoingcivil cases. For example, in March 2008, one victim's attorney informed Villafafta of his representation of a victim and requested that the government provide hint-with photographs of the victim and information concerning the tail registration number for Epstein's airplane. illafaila responded that she was unabk to provide the requested information but asked that counsel keep her u ut fle civil litigation ana later stated in a July 9, 2008 declaration filed in the CVRA litigation that, although she invited Edwarh<to provide her with information, "Inlothing was provided." attorneysiPere representing victims. 3" The government later admitted in coup filings that Villafaila and discussed the possibility of federal charges being filed in tic future and that the NPA was not mentio . Goveminent's Response to Petitioners' Statement of Undisputed Material Facts in Support of Petitioners' Motion for Partial Summary Judgment at 14, 1101 (June 6, 2017). did not respond to OPR's request to interview him, although he did assist OPR in locating other 230 CA/Aronberg-000698 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736336 about the NPA because it was "confidential" and because the case was under "investigation and leading towards" the filing of charges. Villafafta recalled mentioning the conversation to her supervisors and the case agents because she "thought he was somebody who could be of assistance to us and . . . could perhaps persuade Alex Acosta that this was a case that was meritorious and should be prosecuted." information that the FBI and she had provided to Nevertheless, when OPR asked Villafana wh did not inform of the same in October 2007 and January 2008, Villafana explained that she felt "prohibited": At the time that I spoke with him, you know, there had been all of, this . . . letter writing or all of these concerns and instructions th had been given by Alex [Acosta] and Jeff [Sloman] not to di things further and not to have any involvement i notification, and so I felt like that prohibited me from about the existence of the NPA. X. JUNE 2008: EFFORTS TO NOTIFY VICTIMS AB HE JUNE 30, 2008 PLEA REARING The Epstein team's appeals through the Depa ed on June 23, 2008, when the Deputy Attorney General determined that "federa r of this case is appropriate" and Epstein's allegations of prosecutorial misconduc i t ri to a level that would undermine such a decision. Immediately thereafter, at Slo st etion, Villafaila notified Lefkowitz that Epstein had until "the close of business on day, ne 30, 2008, to comply with the terms and conditions of the agreement . . . includ' ent a guilty plea, sentencing, and surrendering to begin his sentence of imprisonment e day, Villafafia made plans to file charges on July 1, 2008, if Epstein did not enter h' by the June 30 deadline. On Friday, June 27, 8, Vt afta received a copy of the proposed state plea agreement and leamed that the plea h w scheduled for 8:30 a.m. on Monday, June 30, 2008. Also on that Friday, Villafana submitt o Sloman and Criminal Division Chief Senior a "final final" proposed federal indict Epstein. Villaf: and the BI finalized the government's victim list that they intended to disclose, for § 2255 to Epstein after the plea and, at Sloman's instruction, Villafafia contacted PBPD C te to ask him to notify the victims of the plea hearing. Villafafta told OPR that Slom hief Reiter could contact the victims from the state case, and tell them about the PI t13 • aturday, June 28, 2008, Villafafia emailed Sloman to inform him that PBPD Chief Re: "Is going to notify victims about the plea."352 351 Villafafla further stated. "I requested permission to make oral notifications to idle victims regarding the upcoming change of plea, but the Office decided that victim notification could only come from a state investigator, and Jeff Slontin asked PBPD Chief Reiter to assist." nz Sloman replied, "Good." 231 CA/Aronberg-000699 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736337 • • Villafaha told OPR that before the state plea hearing, she sent Reite a list of the victims, including their telephone numbers, to notify and asked him to destroy the list. Villafaha recalled that Reiter told her that he would "try to contact as many as he could" and hat he would destroy the list afterwards. Villafaha did not recall being "asked [to] provide a list of all our victims to the State Attorney's Office." In his 2009 deposition, Reiter stated that Villafaha sent him a letter "around the time of sentencing," listing the victims in the federal investigation, and that she asked him to destroy the letter after he reviewed it. Reiter recalled that he requested the list because he was awar that the state grand jury's indictment of Epstein did not include all of the victims that th P D had identified and he "wanted to make sure that some prosecution body had consi VialMS." 3" In her 2017 declaration in the CVRA litigation, Villafaha stated t the PBPD "attempted to notify the victims about [the June 30] hearing in the sh able to us " 3" In her 2008 declaration, however, Villafaha conceded that "all known ctim were not notified." Villafaha told OPR that was the only victi contact—she thought probably by Sloman—about the June 3 "had ex sim sed specific interest in the outcome." Vil inform of (the plea date], but I still couldn' declaration in the CVRA litigation, Villafaila stat the plea hearing scheduled for Monday; Villaf attend the,iin but "someone" would be however, asserted that Villafaha solicitation of prostitution charges invo the federally-identified victims."356 inform him that the "guilty pleas•• prosecution pursuant to the pl OPR that her expectation w the ability to comment on th ey she was authorized to hearing because ed, "I was told that I could m of the NPA."355 In her 2008 and informed him of told her that he could not a later filing in the CVRA litigation, y that "Epstein was leading guilty to state victims—not Mr. clients nor any of unher claimed that because Villafaha failed to n would bring an end to the possibility of federal " his clients did not attend thejlarAtl Villafaha told ate plea proceeding would allow and his clients Reiter the letter to the lead Detective so he could "confirm that all of die victims that we had for the stale rase % n that." The Detective "looked at it and he said they're all there and then [Reiter] destroyed it." The led viewing the list in Reiter's office, but he could not recall when Reiter showed it to him co-case agem told OPR that "I don't think the [EBB reached out to anyone." Villafaila told OPR that she thought that it was Sloman who gave her the instructions, but sic could not "rentetrt r the specifics of the conversation" neither the state court chargi ' rent nor the factum.alo proffer limited the procurements& prostitution charge to a 356 yillafaila stated that she "never told Attorney that the state charges involved 'other victims,' and i iti speed' ' • '' Although criticized Villarafta's conduct in his CVRA filings) recently in his published book, described s Vil i al as a "kindhearted prosect, tried to do right." noting that she "believledl in the victims a irricidl. .. to bring down Jeffrey Epstein." 3. with Brittany Rekniless Pursuit at 380 (Gallery Books 2020). i 232 CA/Aronberg-000700 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736338 • • hearing or directing her specifically not to contact anyone about it. Acosta told OP believed the state would notify the victims of the "all-encompassing plea" resolvin case "and [the victims would] have an opportunity to speak up at the state Nevertheless, Acosta did not know whether the state victims overlapped with t or whether the USAO "shared that list with them." Villafafia told OPR "understood that the state would notify the state victims" but that neither the state only believed they had one victim."358 Villafafia told OPR communication between the USAO and the State Attorney's Office, an factual proffer with the State Attorney's Office and "the fact that the identified additional victims," she did not recall discussing "w considered victims in the state case."3s9 '% 1Sloman told OPR that the "public perception. . at of this resolution from the victims" was incorrect. e p ' ed: [M]y expectation of what was going [to] happen at the plea was that it would be like a federal plea where there would be a factual proffer that was read, and where the judge would ask if there were any victims resent who wanted to be heard, and that at that point if Brad wanted to address the court or if his clients wanted to address the court, they would be given the opportunity to do so.357 Sloman told OPR that he did not recall directing Villafafla to contact anyone about the plea that he federal 'ng." eral victims nd Acosta re aware "that as "very little" gh she discussed a ral investigation had ific people were that they ed to hide the fact of the results [Elven though we didn't havf'a TL^~,>a 6 ligation, I felt that the victims were going to be notified and the state was going . . . to fulfill that obligation, %yen as another failsafe, [the victims] would be notified of itution mechanism that we had set up on their behalf Sloman acknowledged that although wither the NPA terms nor the CVRA prevented the USAO from exercising its discretion to notify the victims, it was [I t'll... m that this was going to break down and . . . result i pr. - ting Epstein and that the victims were going to bejs e esses and if we provided a victim notification indicating, hey, going to get $150,000, that's . . going to be instant peachment for the defense. ' r ant Stale Attorney Belohlavek told OPR that federal victims who were not a party to the state case wou t have been able to simply appear at the state plea hearing and participate in the proceedings. Rather, such a presenta ion would have required coordination between the USAO and the State Attorney's Office and additional investigation of the victims' allegations and proposed statements by the Slate Attorney's Office. me In an email a few months earlier, Villafada noted. "The state indictment [for solicitation of adult prostitution] is related to two gds. One of those girls is included in the federal [charging document], the other is nor rsv As noted in Chapter Two, Villgana had stopped communicating with the Stale Attorney's Office regarding the state case following Epstein's defense team's objections to those communications. 233 CAffironberg-000701 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736339 • • When asked why the USAO did not simply notify the victims of the change of plea hearing, Sloman responded that he "was more focused on the restitution provisions. j I didn't get the sense that the victims were overly interested in showing up . . . at the change of plea." Also, in late June, Villafana drafted a victim notification letter concerning the June 30, 2008 plea.366 Villafana told OPR that, because "Mr. Acosta had agreed in December 2007 that we would not provide written notice of the state change of plea, the written victim notifications were prepared to be sent immediately following Epstein's guilty plea."' As she did with prior draft victim notification letters, Villafafia provided the draft to the defense for comments.362 Although Epstein's plea hearing was set for June 30, 2008, Villafana took s the filing of federal charges on July I, 2008, in the event he did not plead guilty OPR reviewed voluminous Epstein-related files that the State A Office made available online, but OPR was unable to locate any document establish' g h. . e the hearing date, the state informed victims of theJune 30, 2008 plea. On March 12 008, he State Attorney's Office issued trial subpoenas to three victims and one non-law en 'tness commanding the individuals to "remain on call" during the week of July 8 However, the Palm Beach County Sheriff was unable to serve one of the victims in peen e the victim was "away [at] college." STXI. JUNE 30, 2008: EPSTEIN ENTERS H U PLEAS IN A STATE COURT HEARING AT WHICH NO VICTI PRESENT On June 30, 2008, Epstein appea t tate un in West Palm Beach, with his attorney Jack Goldberger, and pled guilty to an i ati charging him with procuring a person under 18 for prostitution, as well as the indict • g him with felony solicitation of prostitution. The information charged that betwee u us 2004, and October 9, 2005, Epstein "did knowingly and unlawfully procure for pro caused to be prostituted, [REDACTED], a person under the age of 18 years," and ref to other victims. The indictment did not identify any victims and alleged only that Epstein in the charged conduct on three occasions between August 1, 2004, and October 2005. Although the charges did not indicate whether they applied to multiple victims, durin rig, Assistant State Attorney Belohlavek informed the court that "[t]here's sever victi When the court asked Belohlavek whether "the victims in both these cases [were] • reement with the terms of this plea," Belohlavek replied, "I have spoken to several m n ave spoken to counsel, through counsel as to the other victim, and I believe, n forwarded the draft victim notification letter to Acosta, who responded with his own edited version stating, hat do you think?" Villafafta edited it funkier. 361 The letter began with the statement, "On June 30,2008, Jeffrey Epstein ... entered a plea of guilty." A week after Epstein's state guilty plea, Villafatia notified Acosta, Sloinan, and other supervisors that "[Epstein's local attorney) Jack Goldberger is back in town today, so I am hoping that we will finalize the last piece of our agreement— the victim list and Notification. If I face resistance on that front, I will let you know." 362 According to Villafafta, either Acosta or Stoma made the decision to send the notifications following the state plea and to share the draft notification letters with the defense. 234 CPJAronberg-000702 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736340 • yes." The court also asked Belohlavek if the juvenile victim's parents or guardian agreed with the plea, and Belohlavek stated that because the victim was no longer under ageII8, Belohlavek spoke with the victim's counsel, who agreed with the plea agreement.343 Both Villafafia and the FBI case agent were present in the courtroom 'gallery to observe the plea hearing. Later that day, Villafafia met with Goldberger and gave him the list of 31 individuals the government was prepared to name as victims and to whom the § 2255 provision applied. In her 2015 CVRA case declaration, stated that, "I did not have any reason attend that hearing because no one had told me that this guilty plea was related to the FBI's i ve igation of Epstein's abuse of me." She stated that she "would have attended and tried t the judge and prevent that plea from going forward," had she known that the slat a "had some connection to blocking the prosecution of my case." Similarly, CVRA petitioner Jane Doe #2 stated that "no one notified me that (Epstein's) plea had anything to do with y case against him." An attorney who represented several victims, including e w om the state had subpoenaed for the potential July trial, told OPR that he was present in June 30, 2008, in order to serve a complaint upon Epstein in connection with a wsuit brought on behalf of one of his clients. The USAO had not informed him abo t hearingJ64 Moreover, the attorney informed OPR that, although one of the victims led had been interviewed in the PBPD's investigation and had been deposed by E in eys in the state case (with the Assistant State Attorney present), he did not recall iv y notice of the June 30, 2008 plea hearing from the State Attorney's Office.365 i y, nother of the victims the state had subpoenaed for the July trial told OPR throw n ey that she received subpoenas from the State Attorney's Office, but she was not in too ware of the state plea hearing. Belohlavek told OPR that she did not recall wheth she cted any of the girls to appear at the hearing, and she noted that given the charge of5oli citAtion of prostitution, they may not have "technically" been victims for purposes of noti er Florida law but, rather, witnesses. On July 24, 2008, the State Attorney's Office sent let wo victims stating that the case was closed on June 26, 2008 (although the plea occurred , 2008) and listed Epstein's sentence. The letters did not mention the NPA or the fede invjstigation. XII. SIGNIFICAN bmpiA. ‘ Ji media y After Epstein's State Guilty Pleas, Villafaha Notifies Some VI • s' Attorneys -PLEA DEVELOPMENTS s contemporaneous notes show that immediately after Epstein's June 30, 2008 attempted to reach by telephone five attorneys representing various victims in 363 illafaila, who was present in court and heard BeloWavelis representation. told OPR that she had no infornwition as to whether or how the slate had notified the victims about the plea hearing. 361 Viliatafia did contact this attorney's law partner later that day. 36$ When interviewed by OPR in 2020, this saint attorney indicated that he was surprised to learn that despite the fact that his client was a minor at the time Epstein victimized her, she was not the minor victim that the state identified in the information charging Epstein 235 CNAronberg-000703 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERIC. 3/28/2023 2:18:34 PM EFTA02736341 • • civil suits that were pending against Epstein.366 Villafafia also nailed !one of the pro bono attorneys she had engaged to help victims avoid defense harassment, informing him that the federal investigation had been resolved through a state plea and that Epstein had an ragreement" with the USAO "requir[ing] him to make certain concessions regarding possible civil suits brought by the victims." Villafafia advised Goldberger: "The FBI has received several calls regarding the [NPA]. I do not know whether the title of the document was disclosed when the [NPA] was filed under seal, but the FBI and our Office are declining comment if asked." B. July 7, 2008: The CVRA Litigation Is Initiated A On July 3, 2008, victims' attorney spoke to Villafafta by telephone as t the resolution of the state case against Epstein "and the next stage of the federal prosecution.' 7 In his 2017 affidavit filed in the CVRA litigation, asserted that during this conversation, Villafafia did not inform him of the NPA, but that during the call, he sensed hat the USAO "was beginning to negotiate with Epstein concerning the federally identifi n " owever, in an email Villafana sent after the call, she informed Sloman that during t call, wards stated that "his clients can name many more victims an wanted to know ' we et out of the deal." Villafafia told Sloman that after she told that t ment was bound by the agreement, assuming Epstein completed it, ere is the slightest bit of hesitation on Epstein's part of completing his pe ornJ gt e and his [three] clients be allowed to consult with [the USAO] before making a That same day, wrote a letter sentence was "grossly inadequate for a preda forward with the traditional indictments a Mr. Epstein has committed." to a, complaining that Epstein's state court agnitude" and urged Villafafia to "move in prosecution commensurate with the crimes On July 7, 2008, mergenc etition in the U.S. District Court for the Southern District of Florida o o ourtney who was then identified only as "Jane Doe." She was soon joined a seco petitioner, an t ey were respectively referred to as "Jane Doe 1" and "Jane Doe 2." J69 s claimed that the government had violated his clients' rights under the CVRA by n otiating resolve the federal investigation of Epstein without consulting with the victims. The requested that the court order the United States to comply with the CVRA. The US O op the petition, arguing that the CVRA did not apply because there were 0 365 ccording to Villafana's handwritten notes from June 30, 2008, Villafarla left a message for two of the attorney . 36' In his 2017 affidavit filed in the CVRA case, recalled that his telephone conversation occurred on June 30. 2008, but noted that it could possibly have occurred on July 3, 2008. Sloman responded, "Thanks." 369 Later attempts by two additional victim to join the ongoing CVRA litigation wan denied by the cowl. 236 CA/Aronberg-000704 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736342 no federal charges filed against Epstein as a result of the government's agreement in mid-2007 to defer prosecution to the state.370 C. July 2008: Villafana Prepares and Sends a Victim Notification Letter to Listed Victims On July 8, 2008, Villafafta provided Goldberger with an updated victim list for 18 U.S.C. § 2255 purposes, noting that she had inadvertently left off one individual in her June 30, 2008 letter. Villafana also informed the defense that, beginning the following day, she would stribute notifications to each of the 32 victims and their counsel informing them that Epst would be the contact for any civil litigation, if the victim decided to pursue dama letter informed the defense that the government would consider a denial by Eps of these victims is entitled to proceed under 18 U.S.C. § 2255" to be consi terms of the NPA. After exchanging emails and letters with the defense concerni letter, Villafatla drafted a letter she sent, on July 9 and 10, to n retained counsel. The letter informed the victims and their June 30, 2008 state court plea to felony solicitation of pros s engage in prostitution, and his sentence of a total of 1 months' community control, "the United States has a this state plea and sentence, subject to certain con 18 U.S.C. § 2255 provision of the NPA, and language from Acosta's December 19, 2007 the damages provision. The paragraph b Epstein has agreed": Any person, who t a or, was a victim of a violation of an offense enume 18, United States Code, Section 2255, will have the same is to proceed under Section 2255 as she would have Mr. Epstein had been tried federally and convic of an enumerated offense. For purposes of implementing this pa the United States shall provide Mr. Epstein's apomeys wt a list of individuals whom it was prepared to victims of an enumerated offense by Mr. Epstein. Any authority interpreting this provision, including any authority tefmining which evidentiary burdens if any a plaintiff must meet, all consider that it is the intent of the parties to place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less. ttomey ,the at any "one ch of the ntent of the notice who had previously at, "[i]n light of" Epstein's procurement of minors to prisonment followed by 12 federal prosecution in favor of e letter included a reference to the th defense had neveribed to it, used Rein defense attorney clarifying scribed as "[o]ne such condition to which On July 10, 2008, Villafaila sent Goldberger a "Final Notification of Identified Victims," highlighting the defendant's obligations under the NPA concerning victim lawsuits pursuant to As described in Section X11.G of this Part, the matter continued in litigation for years and resulted in the district court's February 21, 2019 opinion concluding that tic government violated tic victims' rights under the CVRA by failing to consult with them before signing the NPA. 237 CIVAronberg-000705 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736343 • • I8 U.S.C. § 2255 and again listing the 32 "individuals whom the United States was prepared to name as victims of an enumerated offense." 371 The same day, Villafafia sent Goldberger a second letter, noting that the defense would receive copies of all victim notificationi on a rolling basis. Villafaha informed her managers that the FBI case agents would reach out by telephone to the listed victims who were unrepresented, to inform them that the case was resolved and to confirm their addresses for notification by mail. With regard to the content of the telephone calls, Villafana proposed the following language to the case agents: We are calling to inform you about the resolution of the Epstein investigation and to thank you for your help. Mr. Epstein pled guilty to one child sex offense that will requi to register as a sex offender for life and received a senten months imprisonment followed by one year of home Mr. Epstein also made a concession regarding the 4ymegt of restitution. All of these terms are set out in a letter that A afia is going to send out. Do you have a lawyer? Get If not[,) where do you want [the] letter sent? questions when you receive the letter, please under al e cannot provide legal advice but the lawyers owing victim rights organizations are able to help y o to you. (Provide names and phone numbers) Also ask about counse available even thou On July 21, 2008, Vil the FBI had by that time con the letter sent to each victim, D. hem know that counseling is still igation is closed. e letter to the II unrepresented victims whose addresses illafaha provided Epstein's defense counsel with a copy of y or though counsel (with the mailing addresses redacted). July — A 2008: The FBI Sends the Victim Notification Letter to Victims esiding utside of the United States ting to locate and contact the unrepresented victims, the FBI obtained contact info t for o victims residing outside of the United States. On July 23 and August 8, 2008, res FBI Victim Specialist transmitted an automated VNS form notification letter to through the FBI representative at the U.S diplomatic mission for each country. This 371 A month later, in an August 18, 2008 letter to the USAO, the defense sought to limit the government's victim list to those victims who were identified before the September 24, 2007 execution of tic NPA. Villafaiia also raised with Acosta. Sidman, and other supervisors the question whether tic USAO had developed sufficient evidence to include new victims it had identified since creation of the July 2008 list and whether Jane Doe 42, who had previously given a statement in suppon of Epstein, should be added back to the list. Ultimately, Villafana sent the defense a letter confirming that the government's July 10, 2008 victim list was "the final list." 238 CA/Aronberg-000706 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736344 • • letter was substantially identical to the previous FBI victim notification letter the FBI had sent to victims (in 2006, 2007, and 2008) in that it identified each recipient as "a possible victim of a federal crime" and listed her eight CVRA rights. The letter did not indicate that Epstein had pled guilty in state court on June 30, 2008, or that the USAO had resolved its investigation by deferring federal prosecution in favor of the state plea. Rather, like the previous FBI VNS-generated letter, the letter requested the victims' "assistance and cooperation while we are investigating the case." For each of the two victims residing outside of the United States, Villafafla a fled a notification letter concerning the June 30, 2008 plea and the 18 U.S.C. § 2255 proc ere to be hand delivered along with the FBI's letters. However, FBI records do n ether the USAO's letter was delivered to the two victims. E. August — September 2008: The Federal Court Orders the USA() to Disclose the NPA to Victims, and the USA() Sends a Revised Victim Notification Letter `/ a motion seeking access to I ity portion of the NPA.372 e petitioners with a copy of ed the government to produce On August 1, 2008, the petitioners in the CVRA litigati the NPA. The USAO opposed the motion by relying on the On August 21, 2008, the court ordered the government the NPA subject to a protective order. In addition, th the NPA to other identified victims upon request: (d) If any individuals who ha victims of Epstein and/or request the opportunity t• evie produce the [NPA] to also agree that they, third party ab opportunity f In September 2008, th for represented victim contest liability i victi appeared to a ess con notification I e proposed had n 372 for the NPA. ratified by the USA() as y(s) for those individuals e [NPA], then the USA() shall uals, so long as those individuals isclose the [NPA] or its terms to any rt order, following notice to and an counsel to be heard[.]313 AO sent a revised notification letter to victims, and attorneys cerning Epstein's state court guilty plea and his agreement to not ci suits brought under 18 U.S.C. § 2255.374 The September letter ins raised by Epstein attorney Lefkowitz that the government's earlier ferenced language concerning 18 U.S.C. § 2255 that the government had st s December 19, 2007 letter to Epstein attorney M, but that the defense 375 As a result of the defense objection, Villafafla determined that she was Pursuant to paragraph 13 of the NPA, Villafana made Epstcin's attorneys aware of the petitioners' request 373 Doe, Order to Compel Production and Protective Order at 1-2 (Aug. 21, 2008). 374 The USAO also sent a notification letter to additional victims who had not received a notification klier in July. 375 11155 issue is discussed more fully in Chapter Two. 239 CA/Aronberg -000707 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736345 • • obligated to amend her prior letter to victims to correct the reference to 'hip December letter.776 Accordingly, the September letter contained no information about the parties' intent in implementing 18 U.S.C. § 2255, but merely referred to the NPA language concerning Epstein's waiver of his right to contest liability under the provision. In addition, !the September letter described the appointment of a special = the special selection of an attorney to represent the victims in their 18 U.S.C. § 2255 litigation against Epstein, and Epstein's agreement to pay the attorney representative's fees arising out of such litigation. The letter also clarified that Epstein's agreement to pay for attorneys' fees did not extend to contested litigation against him. The government also intended for the letter to comply with the court's ord ruing providing victims with copies of the NPA. The initial draft included a paragraphs vi the victims that they could receive a copy of the NPA: In addition, a judge has ordered that the United States available to any designated victim (and/or her attorney the actual agreement between Mr. Epstein and the Unit so long as the victim (and/or her attorney) reviews, si an to be bound by a Protective Order entered by the [the victim] would like to review the Agreement, please and I will forward a copy of the Protective Order fo The government shared draft versions of tleept b r letter with Epstein's counsel and responded to criticism of the content of the pro ed letter For example, in response to the above language regarding the August 21, 2008 cou itithe CVRA litigation, the defense argued that there was "no court order requiring the gbnm to provide the alleged 'victims' with notice that the [NPA] is available to them upo uest doing so is in conflict with the confidentiality provisions of the (NPA)." In respon consultation with USAO management, Villafafia revised the paragraph as follows: In addition, t re has litigation between the United States and two other vi s re arding the disclosure of the entire agreement betwee the Um States and Mr. Epstein. (The attorney selected by the s aster] can provide further guidance on this issue, or if ou s ect another attorney to represent you, that attorney can iew th Court's order in the [CVRA litigation]. mkler 18, 2009, a state court judge unsealed the copy of the NPA that had been filed case.177 " 6 in the letter, Villafaha expressed frusuation with defense counsels' claim relative to the December 19, 2007 letter that was included in the July 2008 notification letter, noting that the July 2008 letter had been approved by defense counsel before being sent. 3" See Susan Spencer-Wendel, "Epstein's Seam Pact With Fed Reveals 'Highly Unusual' Tcrms," Palm Beath Post, Sept. 19, 2009. 240 CAJAronberg-000708 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736346 • • F. 2010 — 2011: Department and Congressional Actions Regarding Interpretation of the CVRA In connection with the Department's 2010 effort to update its 2005 Guidelines, the Office of the Deputy Attorney General convened a Victim of Crimes Working Group that asked OLC to revisit its 2005 preliminary review concerning the definition of "crime victim" under the CVRA and solicited input conceming the issue from Department components and federal law enforcement agencies. In response, OLC issued a December 17, 2010 opinion entitled, The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004. Based on the VRA's language, relevant case law, and memoranda opinions from Department comp OLC reaffirmed its 2005 conclusion that CVRA rights do not vest until a criminal char be fled (by complaint, information, or indictment) and the rights cease to be available' charges are dismissed either voluntarily or on the merits (or if the fg)ovemment dec ' re 'ng formal charges after the filing of a complaint)."3Th After OLC issued its opinion, the Department revised the 2005 es in October 2011 but did not change its fundamental position that the CVRA righ until after criminal charges were filed. The 2011 revision did, however, add Ian ing victim consultation before a defendant is charged: "In circumstances where pl ons occur before a case has been brought, Department policy is that this should in able consultation prior to the filing of a charging instrument with the court." 39 s the word "should" in the 2011 Guidelines indicates that "personnel are expect t to the action . . . unless there is an appropriate, articulable reason not to do so." 3" eless, the required'consultation "may be general in nature" and "does not have to be t a particular plea offer." 3" The revisions also specified that AUSAs were to ensure a cti s had a right to be reasonably heard at plea proceedings.382 On November 2, 2011, Jon Kyl, a co-sponsor of the CVRA, sent a letter to Attorney General Eric Holder n hat the 2011 Guidelines revisions "conflict[ed] quite clearly with the CVRA's plain langua e" because the 2011 Guidelines did "not extend any rights to victims until charges have been tiled." The Department's response emphasized that the 3" OLC"exp led] on as to whether it is a matter of "good practice" to inform victims of their CVRA rights prior to the "ng of a lain or after the dismissal of charges. 3/9 Sc I lines, An. V, 1 G.2, available at Itups://vnywjustice.govisiies/defaWtailes/olp/docs/ mi_guideli s20 pdf. In its 2011 online (mining video rewinding the Guidelines. the Department encouraged such consul ale isorsible, but it also continued to maintain that there was ix) CVRA right to confer for pre- incletme gotiations. ni See 2011 Guidelines, An. I, ¶ B.2. See 2011 Guidelines, An. V,1 O.2. 382 The 2005 Guidelines contained no specific provision requiring AUSAs to ensure that victims were able to exercise their right to be reasonably heard at plea proceedings, only at sentencing See 2005 Guidelines, Art. IV, C.3.b.(2). However, the 2005 Guidelines generally require AUSAs to use their best efforts to comply with the CVRA, and the CVRA specifically affords victims the right to be heard at plea proceedings. The 2011 revision remedied this omission. 241 CA/Aronberg -000709 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736347 • • Department had made its "best efforts in thousands of federal and District of Columbia cases to assert, support, and defend crime victims' rights." The response also referenced OLC's December 2010 opinion concluding that CVRA rights apply when criminal proceedings are initiated, noting that "the new AG Guidelines go further and provide that Department protecutors should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations, even prior to the filing of a charging instrument with the court."3" In 2015, Congress amended the CVRA, and added the following two rights: (9) The right to be informed in a timely manner of any plea bargain or deferred prosecution agreement. (10) The right to be informed of the rights under this section a services described in section 503(c) of the Victims' Ri Restitution Act of 1990 (42 U.S.C. 10607(c)) and provi information for the Office of the Victims' Rights Ombuti4itan tjfthe Department of Justice. G. The CVRA Litigation Proceedings and C While the CVRA litigation was pending. in federal civil suits against Epstein, brought in the as "related cases," as a matter of judicial econ agreed on settlements in those civil cases, th settled their civil cases filed a pleading in t anonymity" and not "further dissemina District of Florida, numerous were transferred to the same judge rsuant to the Local Rules. As the parties issed.3" Several of the victims who had tigation asking the court to "maintain their ntities to the CVRA petitioners.3" In the CVRA case, the pe 'med that the government violated their CVRA rights to confer by (1) negotiatin a t n he NPA without victim input; (2) sending letters to the victims claiming that the er wa nder investigation" after the NPA was already signed; and (3) not properly informing ctims that the state plea would also resolve the federal investigation. In addi • , the petitioners alleged that the government violated their CVRA right to be treated with faint ncealing the NPA negotiation and also violated their CVRA right to reasonable n ice by cealing that the state court proceeding impacted the enforcement of the NPA and resc4 the federal investigation. litigation, the USAO argued that (1) the victims had no right to notice or conf he NPA because the CVRA rights did not apply pre-charge; (2) the government's 7 Cong. Rec. S7359-02 (2011) (Kyl letter and Depanment response). 384 Epstein also resolved some county croup civil cases during this time period as well. In addition, numerous other cases were resolved outside of formal litigation. For example. one attorney told OPR that he resolved 16 victim cases, but did not file all cases with the court. Court data indicate that the attorney Med only 3 of the 16 cases he said he resoled. as Doe. Response to Coun Order ofJuly 6, 2015 and United States' Notice of Panial Compliance at 1 (July 24, 2015). 242 CA/Aronberg-000710 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736348 • • letters to victims sent after the NPA was signed were not misleading in stating that the matter was "under investigation" because the government continued to investigate given its uncertainty that Epstein would plead guilty; and (3) Villafafia contacted the petitioners' attorney prior to Epstein's state plea to advise him of the hearing. Nonetheless, Villafafia told OPR that, while there were valid reasons for the government's position that CVRA rights do not apply pre-charge, "[T]his is a case where I felt we should have done more than what was legally required. I was obviously prepared to spend as much time, energy and effort necessary to meet with each and every [victim]." Over the course of the litigation, the district court made various rulings interp ting the provisions of the CVRA, including the court's key conclusion that victim CVRA t attach before the Government brings formal charges against a defendant." The court that (I)"the CVRA authorizes the rescission or 'reopening' of a prosecutorial agreemen incl ding a non-prosecution agreement, reached in violation of a prosecutor's conferral obligat under the statute"; (2) the CVRA authorizes the setting aside of pre-charge pro ecutona1 eements"; (3) the CVRA's "reasonable right to confer" "extends to the pre arge state of criminal investigations and proceedings"; (4) the alleged federal sex crimes co mitt by Epstein render the Doe petitioners "victims" under the CVRA; and (5) "questi •e ng to [the] equitable defense[s] are properly left for resolution after development o ful identiary record." On February 21, 2019, the district court gran • tioners' Motion for Partial Summary Judgment, ruling that "once the Govern o advise the victims about its intention to enter into the NPA, a violation of th rred." The government did not dispute the fact that it did not confer with the p tt p or to signing the NPA, and the court concluded that "[a]t a bare minimum, the CVRA requ the Government to inform Petitioners that it intended to enter into an agreement nol to prosecute Epstein." The court found that the post- NPA letters the government sent to victims describing the investigation as ongoing "misled the victims to believe that federal pros cation was still a possibility" and that "[i]t was a material omission for the Government to estya the victims that they have patience relative to an investigation about which it h dy ound itself not to prosecute."1" The court relied on r d BP Products to support its holding and noted that the government's action *th respect to the NPA was especially troubling because, unlike a plea agreement for which th s could voice objection at a sentencing hearing, "[o]nce an NPA is entered into wit the matter is closed and the victims have no opportunity to be heard regarding an t of e case." The court also highlighted the inequity of the USAO's failure to comm a the victims while it simultaneously engaged in "lengthy negotiations" with Epstein' 1 and assured the defense that the NPA would not be "made public or filed with the C Although the USAO defended its actions by citing the 2005 Guidelines for the Depan ent's position that CVRA rights do not attach until after a defendant is charged, the court was "not persuaded that the [G]uidelines were the basis for the Government's decision to withhold information about the NPA from the victims." The court found that the government's reliance on 3/16 Tfie court did not resolve the factual question as to whether the victims wcre given adequate notice of Epstein's state court plea heating. 243 CA/Aronberg-000711 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736349 • • the 2005 Guidelines was inconsistent with positions the USAO had taken in'correspondence with Epstein's attorneys, in which the government acknowledged that "it had obligations to notify the victims." The court ordered the parties to submit additional briefs regarding the appropriate remedies. Accordingly, the petitioners requested multiple specific remedies, including rescission of the NPA; a written apology to all victims from the government; a meeting with Acosta, Villafaila, and her supervisors; access to government records, including grand jury materials; training for USAO employees; and monetary sanctions and attorneys' fees.3" Following Epstein's indictment on federal charges in New York and subsequ t death while in custody, on September 16, 2019, the district judge presiding over the CVR denied the petitioners' motion for remedies and closed the case, stating that Epstein's dea n the most significant issue that was pending before the Court, namely, whether t vernment's violation of Petitioners' rights under the CVRA invalidated the NPA, moot." rt did not order the government to take corrective measures, but stated that it "fully Government will honor its representation that it will provide training to its employ abou CVRA and the proper treatment of crime victims." 389 The court also denied the petitio uest for attorneys' fees, finding that the government did not act in bad faith, because hit unsuccessful on the merits of the issue of whether there was a violation of th the Government asserted legitimate and legally supportable positions throughout thi On September 30, 2019, appealed the rt's rejection of the requested remedies, through a Petition for a Writ of Mand t the U.S. Court of Appeals for the Eleventh Circuit?" In its responsive brief, t ment expressed sympathy for and "regret[' [for] the manner in which it corn th her in the past."39 Nevertheless, the government argued that, "as a matter of la obligations under the CVRA do not attach prior to the government charging a case" thu the CVRA was not triggered in SDFL because no criminal charges were brought."3 ernment conceded, however, that with regard to the New York prosecution in w' n had been indicted, "(p)etitioner and other Epstein trr Doe, Jane Doe 1 and Jane S btnission on Proposed Remedies (May 23, 2019). 34 live, Opinion and rder (Sept. 16, 2019). Among other things, the court itjected the petitioners' contention that it did not address whet venunent had violated the victims' CVRA right to be treated with fairness and to receive fair noti of tl ings, noting that "[Wiese rights all flow from de right to confer and were encompassed in ourt's ng finding a violation of the CVRA." rev T 's Office of Legal Programs provided a training entitled Crime Victims' Rights in the Federal System to • on January 10, 2020. No. 19-13843, Petition for a Writ of Mandamus Pursuant to the Crime Victims' Rights Act, 71(dX3) (Sept. 30, 2019). rrt ski, Brief of the United States of America in Response to Petition for Writ of Mandamus Under the Crime Victims Rights Act at 14 (Oct. 31, 2019). As previously noted, at this point, the litigation was being handled by the U.S. Attorney's Office for the Northern District of Georgia The government also noted that although the CVRA was amended in 2015 to include a victim's right to be notified in a timely manner of plea bargains and deferred prosecution agreements, "the amendment did not extend to non-prosecution agreements- which, unlike plea agreements and deferred prosecution agreements, do not require cowl involvement. 244 CA/Aronbe rg -000712 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736350 • • victims deserve to be treated with fairness and respect, and to be conferred with on the criminal case, not just because the CVRA requires it, but because it's the right thing to do." Durijapral argument on January 16, 2020, the government apologized for the USAO's treatment of M. The is whether or not the office was fully transparent with about what it is that was going on with respect to the NPA, and they made a mistake in causing her to believe that the case was ongoing when in fact the NPA had been signed. The government should have communicated in a straightforward and transparent way with IMM and for that, we are genuinely sorry.J91 On April 14, 2020, a divided panel of the Court of Appeals for the Eleven tt denied petition for a writ of mandamus, concluding that "the CVRA does efore the commencement of criminal proceedings—and thus, on the facts of this case does o provide the petitioner here with any judicially enforceable rights."794 The court con ough analysis of the language of the statute, the legislative history, and previous rt d> isions. The court distinguished In re as "dictum" consisting of a "three-sente dis . . . devoid of any analysis of the CVRA's text, history, or structural underpi n The court noted that its interpretation of the CVRA was consistent with the Depart 0 r OLC opinion concerning victim standing under the CVRA and the Department' 'implementing regulations." Finally, the court raised separation of powers conce t d's (and the dissenting judge's) interpretation of victim standing under the C Qo at such an interpretation would interfere with prosecutorial discretion. Nevertheless, the court was highly e government's conduct in the underlying case, stating that the government "[s]ee . defer[red] to Epstein's lawyers" regarding information it provided victims about d that its "efforts seem to have graduated from passive nondisclosure to (or at leas awe misrepresentation." The court concluded that although it "seems obvious" tha ent "should have consulted with petitioner (and other victims) before negotiating a i g Epstein's NPA," the court could not conclude that the government was obligated t In addition, the dissenting judge filed a lengthy and strongly worded opinion asserting that ajority's statutory interpretation was "contorted" because the "plain and unambigu xt of the CVRA does not include [a] post-indictment temporal restriction." On 2020, filed a petition for rehearing en bane. On August 7, 2020, the court granted t tio r rehearing en bane and vacated the panel's opinion; as of the date of this Report, schedule has been issued and oral argument is set for December 3, 2020. 933 Audio recording of Oral Argument, M, No. 19-13843 (Jan. 16, 2020). 394 Inns 955 F.3d 1196, 1220 (I 1th Cir. 2020). 245 CA/Aronberg-000713 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736351 • • [Page Intentionally Lett Blank) A Cog 246 CA/Arenberg-000714 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CIFRK /28/2023 2:18:34 PM EFTA02736352 • • CHAPTER THREE PART TWO: APPLICABLE STANDARDS I. STATUTORY PROVISIONS Pertinent sections of the CVRA and the VRRA, applicable during the relevant time period, are set forth below. A. The CVRA, 18 U.S.C. § 3771 (a) Rights of Crime Victims. —A crime victim has the following rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any publ parole proceeding, involving the crime or of any release or e (3) The right not to be excluded from any such public cou receiving clear and convincing evidence, determines t materially altered if the victim heard other testimon (4) The right to be reasonably heard at any publ release, plea, sentencing, or any parole proc (5) The reasonable right to confer with the (6) The right to full and timely restitutio (7) The right to proceedings free from (8) The right to be treated with fai ACI)(c) Best Efforts To Accord ghts.0 (I) Government. best efforts to see subsection O SA cou proceeding, or any o accused. ing, unless the court, after y by the victim would be Sing. in the district court involving for the Government in the case. d in law. e delay. respect for the victim's dignity and privacy. icers and employees of the Department of Justice . . . shall make their ime victims are notified of, and accorded, the rights described in (2) Crime victim.— (A) In general. —The term "crime victim" means a person dirnctly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. 247 CA/Aronberg-000715 II ED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736353 B. The Victims' Rights and Restitution Act of 1990 (VRRA), 34 U.S.C. § 20141, Services to Victims (formerly cited as 42 USCA § 10607) i (b) Identification of victims At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation, a responsible official shall— (I) identify the victim or victims of a crime; (2) inform the victims of their right to receive, on request, the services described section (c); and (3) inform each victim of the name, title, and business address and teleph mber of the responsible official to whom the victim should address a request for e services described in subsection (c). (c) Description of services (1) A responsible official shall— (A) inform a victim of the place where the victirtrgly jeive emergency medical and social services; (B) inform a victim of any restitution or oilekre which the victim may be entitled under this or any other law and manner kn whieji suc relief may be obtained; (C) inform a victim of public and private progratifs that are available to provide counseling, treatment, and other support to the xrctini, and (D) assist a victim in contactin persotts who are responsible for providing the services and relief described in subp ), (B), and (C). (2) A responsible official ge for a victim to receive reasonable protection from a suspected offender and p sons qc g in concert with or at the behest of the suspected offender. (3) During the in tigation and prosecution of a crime, a responsible official shall provide a victim the earliest notice of— (A) t tus of (he investigation of the crime, to the extent it is appropriate to inform the vi he extent that it will not interfere with the investigation; rrest of a suspected offender, ling of charges against a suspected offender; the scheduling of each court proceeding that the witness is either required to attend or, under section 10606(bX4) of Title 42, is entitled to attend; ) the release or detention status of an offender or suspected offender, (F) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial; and (G) the sentence imposed on an offender, including the date on which the offender will be eligible for parole. 248 CA/Aronberg-000716 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736354 • • I (4) During court proceedings, a responsible official shall ensure that a victim is provided a waiting area removed from and out of the sight and hearing of the defendant and defense witnesses. (e) Definitions 4 41,(2) the term "victim" means a person that has suffered direct physical, emot iary harm as a result of the commission of a crime .. . . II. DEPARTMENT POLICY: THE 2005 ATTORNEY GENERAL INES FOR VICTIM AND WITNESS ASSISTANCE (2005 GUIDEL In 2005, the Department revised its guidelines for victim m assistance in order to incorporate the provisions of the CVRA. The purpose of the 005 'defines was "to establish guidelines to be followed by officers and employees opepa t of Justice investigative, prosecutorial, and correctional components in the treatmeaof victims of and witnesses to crime." The relevant portions of the 2005 Guidelines are as f ows Article IV: Services to Victims and Witnesses A\ A. Investigation Stage The investigative agency's through the prosecution investigative agency's agency when charges ( S 1 y~jties begin with the report of the crime and extend e. In some instances, when explicitly stated, the ty for a certain task is transferred to the prosecuting 2. ldent tcation of Victims. AI the earliest opportunity after the detection of a crime at whit ay be done without interfering with an investigation, the responsible official of the sti 've agency shall identify the victims of the crime. a 'ideL. ption of Services. a. Information, Notice, and Referral (1) Initial Information and Notice. Responsible officials must advise a victim pursuant to this section at the earliest opportunity after detection of a crime at which it may be done without interfering with an investigation. :To comply with this requirement, it is recommended that victims be given a priOted brochure or card that briefly describes their rights and the available services, identifies the local 249 CNAronberg-000717 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERIC. 3/28/2023 2:18:34 PM EFTA02736355 • • service providers, and lists the names and telephone numbers:of the victim-witness coordinator or specialist and other key officials. A victim must be informed of— (a) His or her rights as enumerated in 18 U.S.C. § 377I(a) (b) His or her right entitlement, on request, to the services listed in 42 U.S.C. § 10607(c). (c) The name, title, business address, and telephone number of the responsible official to whom such a request for services should be addressed. , (d) The place where the victim may receive emergency medical or social services. (e) The availability of any restitution or other relief (including crime victim compensation programs) to which the victim may bkentitIed under this or any other applicable law and the manner in which h reftermay be obtained. (f) Public and private programs that are le to provide counseling, cliptic y)treatment, and other support to the v.\ A '(i) The availability of se v"SgSs, tims of domestic violence, sexual assault, or stalking. (j) The option of being included in VNS./ (k) Avaliante p tecoons from intimidation and harassment. _ ** i' (3) Notbtluring the investigation. During the investigation of a crime, a r;eponsible official shall provide the victim with the earliest possible notice (cMicening— \\r'' (a) The status of the investigation of the crime, to' the extent that it is appropriate and will not interfere with the investigation (b) The arrest of a suspected offender. B. Prosecution Stage The prosecution stage begins when charges are filed and continues through postsentencing legal proceedings, including appeals and collateral attacks. 250 CA/Aronberg-000718 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736356 • • I. Responsible Officials. For cases in which charges have been instituted, the responsible official is the U.S. Attorney in whose district the prosecution is pending. 2. Services to Crime Victims b. Information, Notice, and Referrals (I) Notice of Rights. Officers and employees of the Department of shall make their best efforts to see that crime victims are notified of then ated in 18 U.S.C. § 3771(a). (2) Notice of Right To Seek Counsel. The prosecutor shall that the crime victim can seek the advice of an attome described in 18 U.S.C. § 377I(a). crime victim to the rights (3) Notice of Right To Attend Trial. The responsibil official should inform the crime victim about the victim's right to aimed In . I regardless of whether the victim intends to make a statement or pis by t formation about the effect of the crime on the victim during senten (4) Notice of Case Events. Duri shall provide the victim, usi of— osecution of a crime, a responsible official ere appropriate), with reasonable notice (a) The filing o h ainst a suspected offender. (b) The rCe . pe of an offender or suspected offender. (c) The s Ile of court proceedings. Me responsible official shall provide the victim with reasonable, urate, and timely notice of any public court proceeding or parole proceeding that involves the crime against the victim. In the event of an emergency or other last-minute hearing or change in the time or date of a hearing, the responsible official should consider providing notice by telephone or expedited means. This notification requirement relates to postsentencing proceedings as well. (ii) The responsible official shall also give reasonable notice of the scheduling or rescheduling of any other court proceeding that the victim or witness is required or entitled to attend. (d) The acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial. 251 CAfAronberg-000719 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736357 • • I (e) If the offender is convicted, the sentence and conditions of supervised release, if any, that are imposed. (6) Referrals. Once charges are filed, the responsible official shall assist the victim in contacting the persons or offices responsible for providing the services and relief [previously identified]. c. Consultation With a Government Attorney (1) In General. A victim has the reasonable right to confer wi ey for the Government in the case. The victim's right to confer, h shall not be construed to impair prosecutorial discretion. Fed on should be available to consult with victims about major case d on such as dismissals, release of the accused pending judicial proce ( .such release is for noninvestigative purposes), plea negotiations,. and etrial diversion. Because victims are not clients, may become adverspCo the emment, and may disclose whatever they have learned from consulting with osecutors, such consultations may be limited to gathering info alien front victims and conveying only nonsensitive data and public inf Consultations should comply with the prosecutor's obligations under a e rules of professional conduct. Representatives of the Dep t s Id take care to inform victims that neither the Department's adv for rims nor any other effort that the Department may make on their Stitutes or creates an attorney-client relationship between such vicf lawyers for the Government. Department ould not provide legal advice to victims. (2) Pr tor Availability. Prosecutors should be reasonably available to consult with vic garding significant adversities they may suffer as a result of delays fion of the case and should, at the appropriate time, inform the court e reasonable concerns that have been conveyed to the prosecutor. O) Proposed Plea Agreements. Responsible officials should make reasonable fforts to notify identified victims of, and consider victims' views about, prospective plea negotiations. In determining what is reasonable, the responsible official should consider factors relevant to the wisdom and practicality of giving notice and considering views in the context of the particular case, including, but not limited to, the following factors: (a) The impact on public safety and risks to personal safety. (b) The number of victims. (c) Whether time is of the essence in negotiating or entering a proposed plea 252 CA/Aronberg-000720 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736358 • • (d) Whether the proposed plea involves confidential information or conditions. (e) Whether there is another need for confidentiality. (f) Whether the victim is a possible witness in the case and the effect that relaying any information may have on the defendant's right to a fair trial. M. FLORIDA RULES OF PROFESSIONAL CONDUCT A. FRPC 4-4.1 — Candor in Dealing with Others FRPC 4-4.1 prohibits a lawyer from knowingly making a false statement of t_ at 'al fact or law to a third person during the course of representation of a client. A commyent to ' rule explains that "[m]isrepresentations can also occur by partially true but misleadi4g statements or omissions that are the equivalent of affirmative false statements," and "[ ]hether a particular ( statement should be regarded as one of fact can depend on the circumsta B. FRPC 4-8.4 — Conduct Prejudicial to the Administr FRPC 4-8.4(c) states that a lawyer shall not engage in deceit, or misrepresentation. Justice volving dishonesty, fraud, FRPC 4-8.4(d) prohibits a lawyer from engagi in connection with the practice of law that is prejudicial to the administration of j As previously noted, courts have det in thilf FRPC 4-8.4(d) is not limited to conduct that occurs in a judicial proceeding, but ph to "conduct in connection with the practice of law." Frederick, 756 So. 2d at 87; s so tkman, 41 So. 3d at 172. 253 CA/Aronberg-000721 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736359 [Page Left Intentionally Blank] co 254 CA/Arnnberg-000722 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736360 • • CHAPTER THREE PA R'T REE: ANALYSIS L OVERVIEW In addition to criticism of Acosta's decision to end the federal investigation by means of the NPA, public and media attention also focused on the government's treatment of vi ms. In the CVRA litigation and in more recent media reports, victims complained that th ere not informed about the government's intention to end its investigation of Epstei the government did not consult with victims before the NPA was signed; did no t em of Epstein's state plea hearing and sentencing, thereby denying them the opp ttend; and actively misled them through statements that the federal investigation w e district court overseeing the CVRA litigation concluded that the government V rime Victims' Rights Act and "misl[ed] the victims to believe that federal prosecution as st II a possibility" and that "[i]t was a material omission for the Government to sugg o t tims that they have patience relative to an investigation about which it had alread itself not to prosecute." 395 The government's conduct, which involved both FBI and Jd6A ons, led to allegations that the prosecutors had purposefully failed to inform victi o hg PA to prevent victims from complaining publicly or in state court. OPR examined the government's tours including the lack of consultation with the vi to defer to state authorities the decision to to delay informing victims about the OPR considered whether letters sen false or misleading statements. January and February 2008, a when interacting with the victims, the NPA was signed; Acosta's decision victims of Epstein's state plea; and the decision fter Epstein entered his plea on June 30, 2008. by the FBI after the NPA was signed contained aluated representations Villafafta made to victims in ey for a victim in June 2008. IL THE SUBJECTS VOT VIOLATE A CLEAR AND UNAMBIGUOUS STANDARD DY EN NG INTO THE NPA WITHOUT CONSULTING THE VICTIMS Durin CVR litigation, the government acknowledged that the USAO did not consult with viol e government's intention to enter into the NPA. In its February 21, 2019 opinion, c court concluded that "once the Government failed to advise the victims about its in nter into the NPA, a violation of the CVRA occurred." OPR considered this fi n of its investigation into the USAO's handling of the Epstein case, and examined wh r, before the NPA was signed on September 24, 2007, federal prosecutors were obligated to con It with victims under the CVRA, and if so, whether any of the subject attorneys—Acosta, Sloman, Menchel, Lourie, or Villafana—intentionally violated or recklessly disregarded that obligation. Doe v. United Sixes, 359 F. Supp. 3d 1201, 1219, 1221 (S.D. Fla. Feb. 21, 2019). 255 CNAronberg-000723 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736361 • • As discussed below, OPR concludes that none of the subject attorneys violated a clear and unambiguous duty under the CVRA because the USAO resolved the Epstein investigation without a federal criminal charge. In September 2007, when the NPA was signed, the Department did not interpret CVRA rights to attach unless and until federal charges had been 'filed, and the federal courts had not established a clear and unambiguous standard applying the CVRA before criminal charges were brought. Pursuant to OPR's established analytical framework, OPR does not find professional misconduct unless a subject attorney intentionally or recklessly violated a clear and unambiguous standard. Accordingly, OPR finds that the subject attorneys' conduct did not rise to the level of professional misconduct. OPR nevertheless concludes that the lack of co ultation was part of a series of government interactions with victims that ultimately led to public d court condemnation of the government's treatment of the victims, reflected poorly on di Depart t as a whole, and is contradictory to the Department's mission to "minimize th stration and confusion that victims of a crime endure in its wake."396 A. At the Time, No Clear and Unambiguous Standar Notify Victims Regarding Case-Related Events Criminal Charges Although the rights enumerated in the CVRA are cl whether an individual qualifies as a victim to whom C unambiguous at the time the USAO entered into the time, the Department interpreted the CVRA in a court's later interpretation in the CVRA litigati The CVRA defines a "crime victi arson directly and proximately harmed as a result of the commission of a Federal offense or offense in the District of Columbia." On April I, 2005, soon after the CVRA wassitettx141LC concluded that "the status of a 'crime victim' may be reasonably understood to commence upon the filing of a criminal complaint, and that the status ends if there is a sub cent decision not to indict or prosecute the Federal offense that directly caused the victim's Beginning with the 2005 0LC guidance, the Department has consistently taken the posit' that CVRA rights do not apply until the initiation of criminal charges against a def dant, w ether by complaint, indictment, or information. OLC applied its definition to all eight .ghts in effect in 2005, but noted that the obligation created by the eighth CVRA ri —to reat[] victims with fairness and respect"—is "always expected of Federal officials, and Victim ' Rights and Restitution Act of 1990 [(VRRA)] indicates that this right applies 't a criminal justice process.'"397 Consistent with the OLC interpretation, in May 2 epartment issued the 2005 Guidelines to implement the CVRA. 5 Guidelines assigned CVRA-related obligations to prosecutors only after the initi o federal charges. Specifically, the 2005 Guidelines stated that during the "prosecution stage," e "responsible official" should make reasonable efforts to notify identified victims of, the USAO to ter the Filing of face, the threshold issue of attach was neither clear nor in September 2007. At that ffered markedly from the district 2005 Guidelines, Foreword. 397 bleverthekss, the portion of the VRRA referenced in the OLC 2005 Informal Guidance, 42 U.S.C. § 10606, had been repealed upon passage of the CVRA. 256 CA/Aronberg-000724 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736362 • • and consider victims' views about, prospective plea negotiations.39s The "prosecution stage" began when charges were filed and continued through all post-sentencing legal proceedings.' At the time the parties signed the NPA in September 2007, few courts had addressed victim standing under the CVRA. Notably, district courts in New York and South Carolina had ruled that standing attached only upon the filing of federal charges.400 Two cases relied upon by the court in its February 2019 opinion— and its underlying district court opinion, BP Products—were decided after the NPA was sign The CVRA litigation and proposed federal legislation—both pending as of th a of this Report—show that the interpretation of victim standing under the CVRA continu er of debate.401 In a November 21, 2019 letter to Attorney General William Barr n sional Representative stated that she had recently introduced legislation specify larify that victims of federal crimes have the right to confer with the Government an about key pm-charging developments in a case, such as . . . non-prosecution a The CVRA litigation arising from the Epstein case shows the lack of clarity reg ding hen CVRA rights apply: the district court concluded that CVRA rights applied pr ar ut a sharply divided panel of the Eleventh Circuit Court of Appeals came to a con elusion, a decision that has now been vacated while the entire court hears the case en Because the Supreme Court had not addressed when CVRA rights apply, the 4lower courts had reached divergent conclusions, rent had concluded that CVRA a rights did not apply pre-charge, OPR concludes s jects' failure to consult with victims before signing the NPA did not constitute pro t I sconduct because at that time, the CVRA did not clearly and unambiguously require r cut to consult with victims before the filing of federal criminal charges.403 YJtl 2005 Guidelines, All. IV, employee is expected to take the reason not to do so." Id., An. II, 1 399 Id., An. IV, 1 8.1 4° Searcy v. Palm 2 for purposes of t 319, 326.27 (E. courts have at .2 (E.D conviction, nder the 2005 Guidelines, the term "should" means that 'the de the service described unless them is an appropriate, aniculable 1875802, at *5 (D.S.C. June 27, 2007) (an inmate is not considered a crime victim RA uytlyl the government has tiled criminal charges); United States e Darner, 367 F. Supp. 2d . 2005) (victims are not entitled to CVRA rights until the government has filed charges, but a more inclusive approach); and United States V. Guevara-Tolosa, 2005 WI. 1210982, , 2005) (order sun sponte) (in case involving a federal charge of illegal entry after a felony detennitxd that victims of the predicate state conviction were not victims under the CVRA). dd, 955 F.3d at 1220; Cong. 019). iD2 165 Cong, Rec. E1495-01 (2019). Crime Victims' Rights Reform Act of 2019, H.R. 4729, 116th C Violations of an wiainbiguous obligation condenting victims' rights could result in a violation of the rules of professional responsibility. For example, in Attorney Griev. Comm in ofitid. v. 109 A.3d 1184 (Md. 2015), the Cowl of Appeals of Maryland concluded that a prosecutor's failure to provide any notice to the minor victim's family about the resolution of a sex abuse case during the ten months the prosecutor was responsible for the nu was a "consistent failure" amounting to "gross negligence in the discharge of the prosecutorial function" that deprived the victimof his riglts under the Maryland Constitution The coun found violations of Maryland Rules of Professional 257 CA/Aronberg-000725 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736363 • In le the Eleventh Circuit panel compared the language of the CVRA to the language of the VRRA, noting that the VRRA "clearly extends victim-notice rights into the pre-charge phase" and opining that the government "may well have violated" the VRRA with regards to its investigation of Epstein. As a predecessor to the CVRA, the VRRA afforded 'victims various rights and services; however, it provided no mechanism for a victim to assert such rights in federal court or by administrative complaint. Like the CVRA, the rights portion of the VRRA established the victims' right to be treated with fairness and respect and the right to confer with an attorney for the government. However, the rights portion of the VRRA was repealed' upon passage of the CVRA and was not in effect at the time of the Epstein investigation. The portion of the VRRA directing federal law enforcement agencies t i E main victim services such as counseling and medical care referrals remained in effect f ng passage of the CVRA. Furthermore, two of the VRRA requirements—one requiring le official to "inform a victim of any restitution or other relief to which the vice titled," and another requiring that a responsible official "shall provide a victim th r t www ible notice of the status of the investigation of the crime, to the extent it is appropria to in orm the victim and to the extent that it will not interfere with the investigation"— i ha plied to the Epstein investigation. However, the VRRA did not create a clear and ous obligation on the part of the subject attorneys, as the 2005 Guidelines assi ty of enforcing the two requirements to the investigative agency rather than top oreover, the VRRA did not require notice to victims before the NPA was sign at that point, the case remained "under investigation," and the victims did not b e tt to pursue monetary damages under the NPA until Epstein entered his guilty pleas i n 008. Once Epstein did so, and the victims identified by the USAO became entitled to 2255 remedy, the USAO furnished the victims with appropriate notification. B. OPR Did Not Find Establishing That the Lack of Consultation Was Intended to Silen During her OPR int ie illafarla recalled more than one discussion in which she raised with her supervisors th of consulting with the victims before the NPA was signed on September 24, 2007. costa, oman, Menchel, and Lourie, however, had no recollection of discussions about co victims before the NPA was signed, and Menchel disputed Villafaha's asse ons. R found only one written reference before that date, explicitly raising the issue of Itation. Given the absence of contemporaneous records, OPR was unable to conclusively dote tie whether the lack of consultation stemmed from an affirmative decision made by one or ore of the subjects or whether the subjects discussed consulting the victims about the NPA b r t was signed. Villafaha's recollection suggests that Acosta, Menchel, and Sloman een concerned with maintaining the confidentiality of plea negotiations and did not belie that the government was obligated to consult with victims about such negotiations. OPR Conduct 1.3, lack of diligence, and 8.4(d), conduct prejudicial to the administration of justice. The holding in was based on Article 47 of die Maryland Constitution and various specific statutes affording victims the right, among others, to receive various notices and an opportunity to be heard concerning "a case originating by indictment or information filed in a circuit cowl." However, both the underlying statutory provisions and, significantly, the facts are substantially different from the Epstein investigation. In Smith, the criminal defendInt had been arrcstcd and charged before entering a plea. 258 CA/Aronberg-000726 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736364 • • did not find evidence showing that the subjects intended to silence victims OM to prevent them from having input into the USAO's intent to resolve the federal investigation. Although the contemporaneous records provide some information abo5ut victim notification decisions made after the NPA was signed on September 24, 2007, the records contain little about the subjects' views regarding consultation with victims before the NPA was signed. In a September 6, 2007 email primarily addressing other topics, as the plea negotiations were beginning in earnest and almost three weeks before the NPA was signed, Villafafia raised the topic of victim consultation with Sloman: "The agents and 1 have not reached out to the victims to et their approval, which as [CE0S Chief 0osterbaan] politely reminded me, is required undertthe aw.. [A]nd the [PBPD] Chief wanted to know if the Nictims had been consulted about the vt404 Sloman forwarded the email to Acosta with a note stating, "fyi." Villafafia recalled that a er she sent the email, Sloman told her by telephone, "[Y]ou can't do that now."405 Villafaila also told OPR that shortly before the NPA was signed, Sloman told her, "[W]e've b 4advised that . . . pre- charge resolutions do not require victim notification." Villafafia also led a discussion with Acosta, Menchel, and Sloman, during which she stated that she would eed t get victims' input on the terms being proposed to the defense, and she was told, "P eg ons are confidential. You can't disclose them."d06 None of the other subjects recalled a specific dis the USAO's CVRA obligations. Menchd told OPR consult with victims during the preliminary "gene moreover, he left the USAO before the terms of re the NPA was signed about the USAO was not required to " phase of settlement negotiations; were fully developed. Sloman told OPR that he"did not th• at wThad to consult with victims prior to entering into the NPA" and "we did not have t k ap val from victims to resolve a case." Sloman believed the USAO was obligated tt fy victims about resolution of "the cases that we handled, filed cases." Sloman th ecause the USAO envisioned a state court resolution of the matter, he did not "th th was a concern of ours at the time to consult with (the victims] prior to entering int th A." Lourie told OP that he id not recall any discussions about informing the victims about the terms of the NPA o ructions to Villafafia that she not discuss the NM with the victims. He stated that e rythi the USAO did was "to try and get the best result as possible for the victims.. . . [ you tep back and look at the whole forest . . ., you will see that.. . . [I]f you look at ea say, well, you didn't do this right for the victim, you didn't tell the victim this and missing the big picture." i11 As noted, the Department's position at the time was that the CVRA did not require consultation with victims because criminal charges had been filed. In addition. Villafaila's reference to victim "approval" was inaccurate because the CVRA, even when applicable, requires only "consultation" with victims about prosecutorial decisions. Villafalla did not recall Sloman explaining the reason for die decision. Villafafia also told OPR that she recalled Menchel raising a concern that "telling them about the negotiations could cause victims to exaggerate their stories because of their desire to obtain damages from Epstein." Villafaiia was uncertain of the date of the conversation. but Mcnchers presence requires it to have occurred before August 3, 2007. 259 Ii CA/Aronberg-000727 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736365 • • I Acosta told OPR that there was no requirement to notify the victims because the NPA was "not a plea, it's deferring in favor of a state prosecution." Acosta said, "[W]hether or not victims' views were elicited is something I think was the focus of the trial team and not something that I was focused on at least at this time." Acosta could not recall any particular concern that factored into the.decision not to consult with the victims before entering into the NPA, but he acknowledged to OPR, "(C]learly, given the way it's played out, it may have been much better if we had [consulted with the victims].."'07 As indicated, the contemporaneous records reflect little about decisions made garding victim consultation prior to when the NPA was signed. Villafaha raised the issue in ' t to her supervisors in early September, but there is no evidence showing whether sup 'sons affirmatively rejected Villafaha's contention that the USAO was obligated to con ith victims, ignored the suggestion, or failed to address it for other reasons, possibly because o extended uncertainty as to whether Epstein would ever agree to the government's pl gropola . OPR notes that its subject interviews were conducted more than a decade after th PANortigned, and the passage of time affected the recall of each individual OPR intervie ed. though Villafahe recalled discussions with her supervisors about notifying victims, her rvisors did not, and Menchel contended that Villafaha's recollection is inaccurate uming the discussions occurred, the timing is unclear. Sloman was on vacation before the NM igned, so a call with Villafana about victim notification at that point in time appears unl' k scussion involving Menchel necessarily occurred before August 3, 2007, when it hether the defense would agree to the government's offer. Supervisors could well avAd ed that at such an early stage, there was little to discuss with victims. To the extent that Villafana's sup rs a irmatively made a decision not to consult victims, Villafaha's recollection sugges at tit ecision arose from supervisors' concerns about the confidentiality of plea negotiati elief that the government was not obligated to consult with victims about a disposition. That belief accurately reflected the Department's position at the ti a ut plication of the CVRA. Importantly, OPR did not find evidence establishing that th lack sultation was for the purpose of silencing victims, and Villafaha told OPR that she ear any supervisor express concerns about victims objecting to the agreement if t learned of it. Because the subjects did not violate any clear and unambiguous standard VRA by failing to consult with the victims about the NPA, OPR concludes that t did engage in professional misconduct. Ho ever, includes the lack of consultation in its criticism of a series of government interacts ofts with vi tims that ultimately led to public and court condemnation of the government's treatment of the victims. Although the government was not obligated to consult with victims, a m at htforward and open approach would have been consistent with the government's goal to tr victims of crime with fairness and respect. This was particularly important in a case in which ictims felt excluded and mistreated by the state process. Furthermore, in this case, consulting with the victims about a potential plea would have given the USAO greater insight into the victims' willingness to support a prosecution of Epstein. The consultation provision does not "D7 Villafafla told OPR that she was not aware of any "improper pressure or prontiseinmde to (Acosta] in order to . . . instruct liter) not to make disclosures to the victiin[sl." 260 CPJAronberg-000728 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736366 • • require victim approval of the prosecutors' plans, but it allows victims the dpportunity to express their views and to be heard before a final decision is made. The lack of consultation in this case denied the victims that opportunity.408 III. LETTERS SENT TO VICTIMS BY THE FBI WERE NOT FALSE STATEMENTS BUT RISKED MISLEADING VICTIMS ABOUT THE STATUS OF THE FEDERAL INVESTIGATION After the NPA was signed on September 24, 2007, Villafafia and the FBI setarately communicated with numerous victims and victims' attorneys, both in person and thrdugh letters. Apart from three victims who likely were informed in October or Novembc-2007 about a resolution ending the federal investigation, victims were not informed about the IPA or even more generally that the USAO had agreed to end its federal criminal investiptio f Epstein if he pled guilty to state charges until after Epstein entered his guilty plea in J 200 Despite the government's agreement on September 24, 2007, to end its federal in estiga upon Epstein's compliance with the terms of the NPA, the FBI sent to victims in Octob 00 , January 2008, and May 2008, letters stating that the case was "currently under in atio In its February 21, 2019 opinion in the CVRA case, the district court found the s "misl[ed) the victims to believe that federal prosecution was still a possibility" an as a material omission for the Government to suggest to the victims that they have je alive to an investigation about which it had already bound itself not to prosecute." In the discussions throughout this sectiogt R examines the government's course of conduct with victims after the NPA was signed As-set orth in the previous subsection, OPR did not find evidence supporting a finding that(Acosta, Sloman, or Villafalia acted with the intent to silence victims. Nonetheless, after -fling ilk full scope and context of the government's interactions with victims, OPR cone e government's inconsistent messages concerning the federal investigation led to vi m g confused and ill-treated by the government. In this section, OPR amines nd discusses letters sent to victims by the FBI that were the subject of the district court's is. OPR found no evidence that Acosta, Sloman, or Villafafia was aware of the cont of the letters until the USAO received them from the FBI for production for the CVRA I itigatio determined that the January 10, 2008 and May 30, 2008 letters that the district court detern to be misleading, as well as the October 12, 2007 letter OPR located during its investiwtion, were "standard form letter[sj" sent by the FBI's Victim Specialist. As noted pm it is Report, after the NPA was signed, Villafana and the FBI agents continued to conr4u t thet investigation in anticipation that Epstein would breach the NPA; absent such a Vinafatia told OPR that she recalled creaking to several victims along with FBI agents before the NPA was signed a "asklingl them how they wanted the case to be resolved." FBI interview reports indicate that Villafana was present with FBI agents for sonic of the interviews occurring well in advance of the NPA negotiations. See 2005 Guidelines, An. IV, I 8.2.c (I) (consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information). However, Villafaita did not meet with all of the victims identified in the federal investigation, including the CVRA litigation petitioners, and the government conceded during the CVRA litigation that it entered into the NPA without conferring with the petitioners. Doe. 359 F. Supp. 3d at t218. 109 Doe. 359 F. Supp. M at 1219, 1221. 261 CA/Aron berg -000729 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736367 • • breach, however, Epstein would enter his state guilty plea and the federal investigation would end. Thus, the statement that the case was "currently under investigation" wasiliterally true, but the omission of important contextual information about the existence of the NPA deprived the victims of important information about the exact status of the investigation. A. The USAO Was Not Responsible for Victim Notification Letters Sent by the FBI in October 2007, January 2008, and May 2008 Describing the Status of the Case as "Under Investigation" The 2005 Guidelines charged the FBI with informing the victims of C is and available services during the "investigative stage" of a case. During the Epstein i figs the FBI case agents complied with the agency's notification obligation by hand deli pamphlets to victims following their interviews and through computer-generated letters ictims by the FBI's Victim Specialist. The FBI's notification process is independe t f the AO's. The USAO has its own Victim Witness Specialist who assumes the espo ity for victim notification after an indictment or complaint moved the case into the" sec tion stage." The FBI's Victim Specialist used the VNS to prepare t 2007, January 2008, and May 2008 letters, a system the FBI regularly employs to h its obligations under the 2005 Guidelines to inform the victims of their rights an s ces during the "investigative stage." The language of that letter, however, and failed to communicate the unique case-specific status of the Epstein investi to a time. The FBI Victim Specialist who sent the letters acted at the case agent's di ti and was not aware of the existence of the NPA at the time she created the letters?" N e agent reviewed'any of the letters sent by the FBI's Victim Specialist.'" Accord Vi ana, "The decision to issue the letters and the wording of those letters were exc vely I decisions." Although the FBI case agents informed Villafafia after the fact tha ' Victim Specialist sent her "standard fonn letter," Villafafia had never reviewed an I ed victim notification letter and was not aware of its contents.'"2 Villafafia told OP a naware of the content of the FBI letters until they were collected for the CVRA liti ion, sp time after July 2008. The case agent told 0PR that she did not recall specifically directing the Victim Specialist to send a letter, but acknowledged that 'she would come to us before she would approach a victim" 411 The case agent told OPR that she had no role in drafting the letters and believed them to be "standard form lasers." Si milady, the co-casc agent told OPR, "I can't think that I'vc ever reviewed any of them . . . they just go from the_vigkin coordinator." 412 .\t/illafaila's lack of familiarity with the language in the FBI letters led to some inconsistency in the information provided to victims comeming their CVRA rights. Beginning in 2006, thc FBI provided to victims standard letters advising victims of their CVRA rights but which also noted that only some of the rights applied pre•charge. During this period, Villafailla also crafted her own introductory letters to the victims to let them know of their CVRA rights and that the federal investigation "would be a different process" from the prior state investigation in which "the victims felt they had not been particularly well-treated by the State Anomey's Office." Villaftuia told OPR that in a case in which she "needled] to be talking to young girls frequently and asking them really intimate questions," she wanted to "make sure that they . . . feel like they can trust ine." Villafaita'S letter itemized the CVRA rights, but it did not explain that those rights attached only after a formal charge had been made. The letter was hand 262 CAJAronberg-000730 FILED: PALM BEACH COUNTY, FL, 'ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736368 • • B. Because the Federal Investigation Continued after the NPA Was Signed, the FBI Letters Were Accurate but Risked Misleading Victims regarding the Status of the Federal Investigation As described previously, given Epstein's appeal to the Departmen and continued delay entering his guilty plea, Villafana and other subjects came to believe that Epstein did not intend to comply with the NPA and that the USAO would ultimately file charges against Epstein. By April 2008, Acosta predicted in an email that charging Epstein was "more and more likely." As a result, Villafaha and the case agents continued their efforts to prepare for a likely trial with ditional investigative steps. Among other actions, Villafaha, her supervisors, CEOS, and th agents engaged in the following investigative activities: • The FBI interviewed victims in October and November 2007 and May 2008, and discovered at least six new victims. • In January 2008, CEOS assigned a Trial Attorney to bring pert se and "a national perspective" to the matter. • In January and February 2008, Villafaha and the victim interviews. January and Attorney participated in • Villafana revised the prosecution memorand 'on victims who are unknown to Epstein's counsel." • The USAO informed the Departm 's i VRights Division "pursuant to USAM in tigation of a child exploitation matter" [§] 8-3.120," of the USAO's " involving Epstein and others. • Villafaria secured pro bono r entation for victims whose depositions were being sought by Epstein's atto nection with the Florida criminal case .417 • Villafaila prepared a visedld indictment. • Villafrula sou and obtained approval to provide immunity to a potential government witness in exch r that witness's testimony. • Even Epst s state plea hearing was set for June 30, 2008, Villafana took steps to facilit to filing of federal charges on July I, 2008, in the event he did not plead guilty. told OPR that from her perspective, the assertion in the FBI victim letter that the dy under investigation" was "absolutely true." Similarly, the FBI case agent told the time the letters were sent the "case was never closed and the investigation was delivered, along with the FBI's own victim's rights pamphlet and notification letter. to victims following their FBI interviews. 411 According to the 2017 affidavit filed by CVRA-case aitomey, M, ,the pro bon° counsel that Villafatla secured assisted in "avoiding the improper deposition." 263 CA/Aronberg-000731 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736369 • • continuing." The co-case agent also told OPR that, as of the time of his OR interview in 2019, the "the case was open . . . it's never been shut down." 1 OPR found no evidence that the FBI's victim letters were drafted with the intent to mislead the victims about the status of the federal investigation. The "ongoing investigation" language generated by the VNS was generic template language in use nationwide at the time and identical to that contained in standard form notification letters the FBI generated and distributed from August 2006 through the 2007 signing of the NPA.414 Nevertheless, the FBI's letters omitted important information about the status of the case because they failed to notify the vice s that a federal prosecution would go forward only if Epstein failed to fulfill his obligations der an agreement he had reached with the USAO. Victims receiving the FBI's letter woul ' Ily conclude that the federal government was continuing to gather evidence to support a ederal prosecution. CVRA petitioner stated during the CVRA litigation that lyer "understanding of this letter was that [her] case was still being investigated and the FBI and pro4ecutors were moving forward on the Federal prosecution of Epstein for his crimes against" her Furthermore, when the fact that the USAO had agreed to end its federal investigation in Septe er 2 7 eventually came to light, the statement in the subsequent letters contributed to victi ' an public's conclusions that the government had purposefully kept victims in the dark In sum, OPR concludes that the statement in the€ letters that the matter was "currently under investigation" was not false becaus a and the FBI did continue to investigate and prepare for a prosecution of Epstei he rs, however, risked misleading the victims, and contributed to victim frustration a st , because the letters did not provide important information that would have advi m of the actual status of the investigation. Nonetheless, OPR found no evidence tha afati or her supervisors participated in drafting those letters or were aware of the come l's letters until the Department gathered them for production in the CVRA liti t use of FBI form letters that gave incomplete information about the status of th n t ion demonstrated a lack of coordination between the federal agencies responsible f m tcating with Epstein's victims and showed a lack of attention to and oversight re din munication with victims. Despite the fact that the case was no longer on the typical f resolving federal investigations, form letters continued to be sent without any revi by prosecutors or the case agents to determine whether the information provided to the victims propriate under the circumstances.' s CIN(C S' e 414 The Department of Justice Inspector General's Audit R f the Department's Victim Notifkation System indicates that letters the FBI system generated in 2006 contained language for the notification events of "Initial (Investigative Agency)" and "Under Investigation" and letters generated in 2008 contained language for the notification events of "Advice of Victims Rights (Investigative)" and "Under Investigation." 4is After Epstein entered his guilty pleas, the FBI sent a similar form letter requesting "assistance and cooperation while we am investigating the case" to the two victims living outside the United States. 264 CA/Aron berg-000732 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK 3/28/2023 2:18:34 PM EFTA02736370 • • IV. ACOSTA'S DECISION TO DEFER TO THE STATE ATTORNEY'S DISCRETION WHETHER TO NOTIFY VICTIMS ABOUT PSTEIN'S STATE COURT PLEA REARING DID NOT VIOLATE A CLEAR OR UNAMBIGUOUS STANDARD; HOWEVER, ACOSTA EXERCISED POOR JUDGMENT BY FAILING TO ENSURE THAT VICTIMS IDENTIFIED IN THE FEDERAL INVESTIGATION WERE ADVISED OF THE STATE PLEA HEARING As set forth in the factual discussion, within a few weeks of the NPA's signing, it became clear that the defense team disagreed with, and strongly objected to, the government' inform victims of their ability to recover monetary damages from Epstein, under th I § 2255 provision of the NpA, and about Epstein's state court plea hearing. The took the position that it was obligated to, and intended to, inform victims o including the § 2255 provision, and Epstein's change of plea hearing an victims who wanted to attend could do so. In November and December 2007, Epstein's attorneys challe ed t USAO's position regarding victim notification. Ultimately, Acosta made two disti t d s concerning victim notifications. Consistent with Acosta's concerns about intrudi to actions, Acosta elected to defer to state authorities the decision whether to notify ' u t the state's plea hearing pursuant to the state's own victim's rights requirements. o deterinined that the USAO would notify victims about their eligibility to obtain m ages from Epstein under § 2255, a decision that was implemented by letters sent t t ti er Epstein entered his state pleas. This decision, which postponed notification oft unti after Epstein entered his guilty pleas, was based, at least in part, on Villafafta's agents' strategic concerns relating to preserving the victims' credibility and is d' her in Section V, below. In this section, OPR analyzes ecision to defer to the state the responsibility for notifying victims of Epstein's pl n sentencing. OPR concludes that neither the CVRA nor the V1tRA required the g e en to notify victims of the state proceeding and therefore Acosta did not violate any st tes partment policy by deferring to the discretion of the State Attorney whether to notify vi ms f Epstein's state guilty pleas and sentencing. However, OPR also concludes that A sta ex sed poor judgment because by failing to ensure that the state intended to and woul victims of the federal investigation, he failed to treat victims forthrightly and ith t sensitivity expected by the Department. Through counsel, Acosta "strongly dis [d]" th OPR's conclusion and argued that OPR unfairly applied a standard "never be • ed of any U.S. Attorney." OPR addresses Acosta's criticisms in the discussi Acosta's Decision to Defer to the State Attorney's Discretion Whether to Notify Victims about Epstein's State Court Plea Hearing Did Not Violate Any Clear or Unambiguous Standard In November 2007, Villafana sought to avoid defense accusations of misconduct concerning her interactions with the victims by preparing a written notice to victims informing them of the resolution of the federal case and of their eligibility for monetary. damages, and inviting them to appear at the state plea hearing. Villafafta and Sloman exchanged edits of the draft letter and, at Sloman's instruction, she provided the draft to defense attorney Lifkowitz, who, in turn, 265 CA/Aronberg-000733 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736371 • • strongly objected to the government's plan to notify victims of the state proceedings, which he described as "highly inappropriate" and an "intrusion into state affairs, when the identified individuals are not even victims of the crime for which Mr. Epstein is being sentenced." Thereafter—at a time when the USAO believed Epstein's plea to be imminent—Villafaha drafted, and Sloman signed, the December 6, 2007 letter to Lefkowitz rejecting the defense arguments regarding notification and reiterating the USAO's position that the victims identified in the federal investigation be invited to appear at the state plea hearing. The letter took an expansive view of the applicable statutes by contending that both the CVRA and the VRRA refit fired the USAO to notify the victims of the state proceedings: [T]hese sections are not limited to proceedings in a federal distri court. Our Non-Prosecution Agreement resolves the f investigation by allowing Mr. Epstein to plead to a state o The victims identified through the federal investigatio appropriately informed, and our Non-Prosecution Agr not require the U.S. Attorney's Office to for obligations.O6 The letter also asserted that the VRRA obligat information concerning restitution to which they may b of the status of the investigation, the filing of char, the letter, Sloman forwarded a revised draft comments. This draft victim notification I completed, Epstein would plead guilty in imprisonment at sentencing, and Epstei brought under 18 U.S.C. § 2255. The concerning the upcoming change written statement to the State victim notifications until afte preparing letters for transmi Sloman recalled that he had "was with somebody" abou Villafaha to hol In misin this m to provide the victims with d "the earliest possible" notice acceptance of a plea. Along with 'cation letter to Lefkowitz for his that the federal investigation had been e parties would recommend 18 months of pensate victims for monetary damages claims m notification letter provided specific information ring and invited the victims to attend or provide a ice. When Lefkowitz asked Sloman to delay sending n of their contents, Sloman instructed Villafana, who was 0 victims, to "Hold the letter." During his OPR interview, ed to push the letter out," but he "must have had a conversation r the CVRA applied, and based on that conversation he directed se letter to Acosta, Lefkowitz contended that the government had of the CVRA and VRRA because neither applied to the "public proceeding in h] will be in state court for the purpose of the entry of a plea on state charges." 416 Sloman told Lefkowirz the USAO did not seek to "federalize" a state plea, but' "is simply infonning the victims of their rights." Sloman also addressed the defense attorneys' objection to advising de victims that they could contact Villafaiia or the FBI case agent with questions or concerns by referencing the CVRA, noting, "Again, federal law requires that victims have the 'reasonable right to confer with the attorney for the Government in this case." 266 CA/Aronberg-000734 FILED: PA \I BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736372 Thereafter, in his December 19, 2007 letter to defense counsel mainly addressing other matters, Acosta informed the defense that the USAO would defer to the State Attorney's discretion the responsibility for notifying victims about Epstein's state plea hearing: I I understand that the defense objects to the victims being given notice of [the] time and place of Mr. Epstein's state court [pica and] sentencing hearing. I have reviewed the proposed victim notification letter and the statute. I would note that the United States provided the draft letter to the defense as a courtesy. In addition, First Assistant United States Attorney Sloman already incorporated in the letter several edits that had been requested by defense counsel I agree that Section 3771 applies to notice of proceedings and results of investigations of federal crimes as opposed to the state crim . We intend to provide victims with notice of the federal reso utign, as required by law. We will defer to the discretion tithe St tiey regarding whether he wishes to provide victims with t ice the stale proceedings, although we will provide 'in the information necessary to do so if he wishes. (Emphasis added.) Acosta told OPR that he "would not have ] without running it by [Sloman], if not other individuals in the office." Acosta e th it was "not for me to direct the State Attorney, or for our office to direct the State a Office on its obligations with respect to the state outcome." Acosta acknowledged the AO initially had concerns about the state's handling of the case, but he told OP "t at sn't mean that they will not fulfill whatever obligation they have. Let's not assn the State Attorney's office is full of bad actors." Sloman initially believed that " were going to be notified at some level, especially because they had restitution n s er 2255"; but his expectations changed after "there was an agreement made that we ere got to allow the state, since it was going to be a state case, to decide how the victims were in be notified."' Sloman told OPR he had been "proceeding under the belief that e were ng to notify the victims," even though "this was not a federal case," but once the NP ed like it was going to fall apart," the USAO "had concerns that if we g[a]ve them e vict notification letter . . . and the deal fell apart, then the victims would be instantly im ed by t e provision that you're entitled to monetary compensation." adva n de 3n0o.t 2dooet8enneteitneepwinhetheheerir hearing KSritaeteeheArnteoirndeoyp' sR0th ffi atcethenSotta ifi teedAttaonmy Attorney's min i t ha s nd effective victim notification process and staff, but he was•not aware of whether or h t used in the Epstein case. Belohlavek told OPR that she could not recall whether victim were notified of the hearing nor whether the state law required notification for the 417 Sloman stated in his lure 3, 2008 letter to Deputy Attorney General Filip that Acosta made the decision together with the Department's Criminal Division Deputy Assistant Attorney General Mandelker. Acosta did consult with Mandelker about the * 2255 civil damages recovery process, but neither Acosta nor Mandelker recalled discussing the issue of victim notification, and OPR found no other documentation indicating that Mandelker played a role in the deferral decision. 267 CA/Aronberg-000735 FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736373 • •i particular charges and victims at issue. Once the hearing was scheduled, Skiman told Villafafia to contact PBPD Chief Reiter about notifying the victims, and on June 28, 2098, she reported back to Sloman that Reiter "is going to notify victims about the plea."43 Villafana recalled that she sent Reiter a list of the girls identified as victims during the federal investiglation, and Reiter said he would "contact as many as he could." The contemporaneous records do not show how many or which victims, if any, Reiter contacted, and no victims were present in the courtroom. No victim who provided information to OPR, either in person or through her attorney, recalled receiving notice of the plea hearing from federal or state officials. At the time Epstein pled guilty in state court, no one in the USA0 knew exactly who, if anyone, Reiter or the State Attorney's ice had notified about the proceeding. Accordingly, Villafafia, who was present in the court for the hearing, had no knowledge to whom Belohlavek referred when she told the court ims were "in agreement with the terms of this plea."'" OPR considered whether Acosta's decision to defer to the Sta decision to notify victims of the scheduled date for Epstein's plea heart misconduct. OPR could not conclude that the CVRA or VRRA provi notice of any public proceeding involving the crime against the vi to attend, unambiguously required federal prosecutors to notif Furthermore, as discussed previously, OLC had issued guidance apply to cases in which no federal charges had been filed 42° ,N1 requiting notice of court proceedings that the victim proceedings under 42 U.S.C. § I 0606(bX4), whit part of the CVRA (18 U.S.C. § 377 I (aX2))•421 Because Acosta had no clear or federal investigation of the state plea h Attorney the decision to notify victim so did not constitute professional 418 Sloman replied, " oral notifications to the victi could only come f tt a state 419 430 121098 Office the ed professional question, requiring the victim is entitled of state court proceedings. ng that the CVRA did not ver, the section of the VRRA o attend" referred specifically to e of the Epstein case, had become gut's duty to inform victims identified in the concludes that his decision to defer to the State ate's plea heating and the responsibility for doing .422 her written response to OPR, Villafana stated, "I requested permission to make ing the upcoming change of plea, but the Office decided that victim notification stigaior, and left Montan asked PBPD Chief Reiter to assist." ript at 42. CVRA Informal Guidance; see also United States v. Guevara-Tolosa, No. 04-1455, 2005 WL .N.Y. May 23, 2005) (in case involving a federal charge of illegal entry after a felony conviction, fined that victims of the predicate state conviction were not victims under the CVRA). 421 n s the Eleventh Circ-uit panel noted that the petitioner argued "only 111 passing" that the government violated her CVRA right "to reasonable, accurate, and timely notice of any public coun proceeding.. . involving the crime"; however the court concluded this provision "clearly applhesl only after the initiation of criminal proceedings." 955 F.3d at 1205 n.7, 1208. The government's letter to victims, following Epstein's guilty pleas, informing them of the resolution of the case by state plea and the availability of § 2255 relief, also appear to satisfy tic potemially applicable VRRA requirements to "inform a victim of any restitution or other relief to which the victim may be entitled," and to "provide a victim the earliest possible notice of the status of the investigation of the crime, to the extent it is appropriate to 268 CA/Arenberg-000736 I II ED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK. 3/28/2023 2:18:34 PM EFTA02736374