Jeffrey Epstein’s Forlorn Hope


Here’s the Southern District of Florida’s Nonprosecution Agreement with Jeffrey Epstein:

[pdf-embedder url=”http://blog.bennettandbennett.com/wp-content/uploads/2019/07/Epstein-NPA-OCR.pdf” title=”Epstein NPA OCR”]

Being off Twitter for the moment, I might not have known of Epstein’s arrest on charges out of the Southern District of New York but for Scott Greenfield’s blog post. Scott’s take was that the fact that the NPA violated the CVRA should not be sufficient to undo the agreement, as a judge in the Southern District of Florida had suggested.

I tracked down the agreement, wondering whether the agreement, entered into by the U.S. Attorney for the Southern District of Florida, was even binding on the U.S. Attorney for the Southern District of New York.

The agreement is not unambiguous. It says (on page 2 of 7):

prosecution in this District for these offenses shall be deferred …

and

After timely fulfilling all the terms … no prosecution … will be instituted in this District.

If the parties had intended for the agreement to bind US Attorneys in other districts, surely the NPA would have said so.

On the other hand, the NPA says, “the United States also agrees that it will not institute any criminal charges against any potential co-conspirators,” purporting to bind all districts, but likely not binding anyone—if the Southern District of Florida had decided to prosecute Prince Andrew, could he invoke an agreement to which he wasn’t a party?

Plea agreements generally make it clear that the local US Attorney is binding only his own office, and not US Attorneys in other districts. I wondered whether that was optional or mandatory. I found a Department of Justice policy:

It is important that non-prosecution agreements be drawn in terms that will not bind other federal prosecutors or agencies without their consent. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. If such a limitation is not practicable and it can reasonably be anticipated that the agreement may affect prosecution of the person in other districts, the attorney for the government contemplating such an agreement shall communicate the relevant facts to the appropriate United States Attorney and/or Assistant Attorney General. United States Attorneys may not make agreements that prejudice other litigating divisions, without the agreement of all affected divisions. See also JM 9-16.000 et seq. for more information regarding plea agreements.

Epstein had the best criminal-defense lawyers money could buy. You can bet that they knew that the Southern District of Florida could not bind the Southern District of New York without that district’s agreement, and were hoping that Epstein’s political connections (and secreted blackmail tapes?) would protect him from prosecution elsewhere. Not “betting”—this agreement cost their client nothing, and bought him twelve years free of prosecution—but hoping.

That didn’t quite work out.

15 responses to “Jeffrey Epstein’s Forlorn Hope”

  1. This was typically informative. I miss you on Twitter, but know that you have found a better place, where the takes are of medium temperature, no one takes pictures of their food, and the children are above average.

  2. Spot on analysis, as usual.

    Looks as if Epstein’s defense team reasonably hoped that the plea deal and the case being out of the spotlight over time would deter additional prosecutions in other districts. But the plaintiff’s lawyers undermined that strategy by making sure that the media and social media continued to pay attention to the case.

    Interestingly, Dershowitz’s defamation lawsuit contributed to keeping Epstein’s case in the spotlight.

    Query: As Epstein’s defense counsel, did Dershowitz have a professional obligation to refrain from pursuing a lawsuit personally that risked undermining the defense strategy for the plea deal of his client?

    • That’s a really interesting question. I think the answer is “no.” I doubt that a duty of loyalty to former clients requires a lawyer to avoid any risk of harm to those former clients’ interests. That’d be a really broad and hard-to-manage rule.

    • Sure, between the parties. But it looks as though Epstein’s counterparty to this contract was the US Attorney for the Southern District of Florida.

      • Was it the “United States” prosecuting or “The United States (in right of the Federal District of South Florida)”.

        The DOJ policy is interesting but is it binding as a matter of law?

        • It is the United States prosecuting, but it was the US Attorney for the Southern District of Florida promising not to prosecute in that district—a promise that he has kept.

          If Acosta had possessed the apparent authority to bind the DOJ and had purported to do so, Epstein might argue that his prosecution in New York was barred by the agreement. But he had done neither.

  3. Fascinating catching up on this and reading the now (in)famous document. I am no lawyer but have spent my fair share of time reading contracts. The last paragraph of Page 5 (of 7):

    ‘..if Epstein successfully fulfils all the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any co-conspirators of Epstein, including, but not limited to….’

    How do these words not protect anyone against related offences? The term ‘the United States’ used in whatever sense of the English language I can think of would surely cover the various jurisdictions of ‘the United States’? How else can this sentence be read? I take the point on ‘policy’ but ‘policy’ is general and not specific to all circumstances.

    • I can think of three reasons off the top of my head: first (as discussed in the post) the US Attorney for the Southern District of Texas has no authority to bind other districts, so that the promise is not more binding than if you or I had made it; second, Maxwell (for example) would have to be a co-conspirator for this clause to apply to her; and third, even if she is a “co-conspirator,” Maxwell probably does not have standing as a third party to enforce the agreement between Epstein and the government.

  4. Thank you for the very fast and interesting reply.

    I find it intriguing that a US Court can have no more authority than a ‘hand shake’ deal – especially so with the quality of legal minds that Mr Epstein had at the time. Why would they bother to go to the effort if it was (as you no doubt correctly) state was essentially meaningless? Billable hours spring to mind immediately but surely that wouldn’t have applied to lawyers of that stature?

    On your second comment; demonstrably (through her arrest if nothing else) GMax must surely be a co-conspirator or she wouldn’t be residing in paper clothes at her current address?

    As she isn’t specifically named as a ‘co-conspirator’ I do take your ‘third party’ point, but wouldn’t that be covered in the all encompassing ‘co conspirators of Epstein, including, but not limited to…’ ?

    I note there is a discrepancy in the time frame on the charges – the current prosecution (from memory – I’m on a phone right now:) ) mentions the 1990’s but the plea deal (again from memory) the period ‘01-‘07. On those dates. I see a clear weakness in GMax’s (likely) position regarding the plea deal, but on the other points you raise, I can see a confident rebuttal of the arguments.

    The other great question I have, is how the hell could GMax expect a ‘fair’ trial? There seems to be zero ‘presumption of innocence’ in anything I’ve read, heard, or seen. Quite the contrary – it really seems to be a case of ‘get the trial over so we can move on to sentencing the deceased!’

    Despite having been involved in it (in my favour fortunately but in essence each time meaningless judgements) I find the US Court and judicial system a strange beast. I’m fascinated by this particular circumstance because it’s so all encompassing. Thanks for your site, your responses and your time!

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