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Jeffrey Epstein's Forlorn Hope

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

[pdf-embedder url="/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.

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