/Jeffrey Epstein prosecution could rise or fall on a single word

Jeffrey Epstein prosecution could rise or fall on a single word

United States Attorney for the Southern District of New York Geoffrey Berman

U.S. Attorney for the Southern District of New York Geoffrey Berman speaks during a news conference in New York on Monday. | Richard Drew/AP Photo

07/09/2019 12:16 AM EDT

The new sex-trafficking prosecution against Jeffrey Epstein could rise or fall on how a judge interprets a single, rather mundane word.

The pivotal term — “globally” — lurks on the second page of a seven-page agreement signed in 2007 and finalized the following year, detailing a pledge by federal prosecutors in Florida not to prosecute Epstein for serial sexual abuse of underage girls if he pleaded guilty to two prostitution-related felonies in state court.

“IT APPEARING that Epstein seeks to resolve globally his state and federal criminal liability…” reads the document laying out what critics have described as a sweetheart deal well-connected defense lawyers won from the then-U.S. Attorney for Southern Florida Alex Acosta, who now serves as Labor secretary.
Some lawyers say Epstein’s future may turn on how much weight the courts give to that tricky adverb.

“That word is his best hope,” said Loyola Law School law professor Laurie Levenson, a former federal prosecutor.

Epstein’s attorneys are already arguing that the decade-old pact was intended to dispose of all potential claims that Epstein engaged in sexual abuse, sex trafficking, soliciting prostitution and similar crimes relating to his penchant for hiring underage girls to give him massages that included sex acts.

“How in the world can that deal be undone?” Epstein defense lawyer Reid Weingarten asked at Epstein’s arraignment Monday in Manhattan, where Epstein entered a plea of not guilty. “It sure seemed like a global [resolution] to everyone at the time, including my client.”

Prosecutors disagree. Before Epstein even appeared in court Monday, Geoffrey Berman, the U.S. Attorney in Manhattan, said the unusual non-prosecution agreement didn’t affect his office’s ability to go after Epstein in New York.

“That agreement only binds — by its terms, only binds the Southern District of Florida. The Southern District of New York is not bound by that agreement and is not a signatory to that agreement,” Berman said.

However, a careful reading of the earlier deal reveals some ambiguity about the geographic scope of the agreement. Some ex-prosecutors say they’re surprised at the vagueness of the document on that point.

For one thing, it lacks language commonly included in many federal plea agreements, explicitly warning defendants that the deal only binds the local U.S. Attorney’s office.

“It is really weird it doesn’t have the standard language,” said former federal prosecutor Ken White.

Part of the reason may be that Epstein’s settlement with Acosta’s office wasn’t a typical plea agreement. It was a pledge not to prosecute Epstein if he fulfilled certain conditions. It also involved contingencies related to state court action that would rarely be included in a federal plea agreement.

“It wasn’t done on a normal form. That seems like part of the explanation,” said White. “But given how incendiary it was and high profile it was, I find it incredibly suspicious that it didn’t have that language.”

There is some variability in standard plea agreements from district to district, leaving it unclear just what language on not binding other districts was typical a decade or so ago in Florida. (The federal court in South Florida has also eliminated online, remote access to most plea agreements from the time, complicating research on the point.)

Part of what’s puzzling about the agreement not mentioning any geographic limits is that when the deal was negotiated it was well known to prosecutors and defense attorneys that the wealthy Epstein had homes in New York and on a private island in the U.S. Virgin Islands, both of which fall under the jurisdiction of other U.S. Attorneys’ offices.

Emails released through a lawsuit challenging Epstein’s non-prosecution deal show that federal prosecutors scrutinized Epstein’s conduct on Little Saint James Island, but couldn’t find evidence of “assaults” there. It’s unclear to what extent Epstein’s activities in New York were examined during the earlier probe.

The non-prosecution agreement does include several references to South Florida and to a specific grand jury there that investigated Epstein’s conduct. It also says that if Epstein complies with the terms of the deal “no prosecution…will be instituted in this District.”

One possibility is that the decision to not detail the geographic scope of the Epstein deal was intentional. An explicit agreement not to prosecute Epstein in New York or the Virgin Islands would likely have required formal clearance through U.S. Attorneys’ offices in those places.

That could have delayed, complicated or even scuttled the deal Epstein’s high-priced, high-powered legal team had managed to cut for him in Florida, where he wound up serving only 13 months in county jail, with much of that time on “work release” at his office during the day.

“I wonder whether this level of ambiguity was bargained for,” said White.

“They had a really sweet deal in Florida. It looks like they were really trying to keep it on the QT,” said Levenson, noting language in the agreement about allowing Epstein notice to fight any Freedom of Information Act request for the terms of the deal.

Ultimately, Epstein’s current lawyers’ argument seems unlikely to prevail, in part because defendants rarely win arguments about implied promises in their plea deals.

Prosecutors have already told the court that precedents in the 2nd Circuit, which covers New York, indicate it is “well settled” that plea agreements are limited to prosecutors in the district that signs them, absent some agreement to the contrary.

Epstein’s defense could and likely will argue the deal should be interpreted under 11th Circuit precedents given that it was largely hashed out in Florida. Judges there sometimes look at evidence beyond the written agreement, but New York federal courts seem to interpret plea deals under the prevailing precedents in the 2nd Circuit.

And while some defendants could argue they were duped into a vague deal by inattentive or ineffective lawyers, that will be tough for Epstein to argue, since he was represented by the likes of former judge and independent counsel Kenneth Starr and Harvard Law Professor Alan Dershowitz.

“Here’s a guy who’s got sophisticated counsel,” Levenson said of Epstein. “I don’t think a judge is going to say: ‘You just didn’t get good lawyering on this.’”

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