175 Epstein’s state guilty plea.250 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.251 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 the NPA is also troubling because the USAO reached agreement on the terms of the NPA without fully pursuing evidence that could have changed the complexion of the case or afforded the USAO significant leverage in negotiating with Epstein. Acosta told OPR that his decision to resolve the federal investigation through the NPA was, in part, due to concerns about the merits of the case and concerns about whether the government could win at trial. Yet, Acosta made the decision to resolve the case through a state-based resolution and extended that proposal to Epstein’s defense attorneys before the investigation was completed. As the investigation progressed, the FBI continued to locate additional victims, and many had not been interviewed by the FBI by the time of the initial offer. In other words, at the time of Acosta’s decision, the USAO did not know the full scope of Epstein’s conduct; whether, given Epstein’s other domestic and foreign residences, his criminal conduct had occurred in other locations; or whether the additional victims might implicate other offenders. In addition, Villafaña planned to approach the female assistants to attempt to obtain cooperation, but that step had not been taken.252 Most importantly, Acosta ended the investigation without the USAO having obtained an important category of potentially significant evidence: the computers removed from Epstein’s home prior to the PBPD’s execution of a search warrant. The PBPD knew that Epstein had surveillance cameras stationed in and around his home, which potentially captured video evidence of people visiting his residence, and that before the state 250 Acosta told OPR that he understood that if Epstein had pled to the original charges contemplated by the state, he would have received a two-year sentence, and in that circumstance, the PBPD would not have brought the case to the FBI. OPR was unable to verify that charges originally contemplated by the state would have resulted in a two- year sentence. OPR’s investigation confirmed, however, that the PBPD brought the case to the FBI because the PBPD Chief was dissatisfied with the state’s handling of the matter. 251 In commenting on OPR’s draft report, Acosta’s attorney stated that Acosta “accept[ed] OPR’s conclusion that deferring prosecution of Jeffrey Epstein to the State Attorney rather than proceeding with a federal indictment or a federal plea was, in hindsight, poor judgment.” Acosta also acknowledged that the USAO’s handling of the matter “would have benefited from more consistent staffing and attention. No one foresaw the additional challenges that the chosen resolution would cause. And the [NPA] relied too much on state authorities, who gave Epstein and his counsel 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.” 252 Although the FBI interviewed numerous employees of Epstein and Villafaña identified three of his female assistants as potential co-conspirators, at the time that the USAO extended the terms of its offer, there 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.

176 search warrant was executed on that property, the computer equipment associated with those cameras had been removed. Villafaña 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 evidence. Villafaña told OPR that the FBI had information that Epstein used hidden cameras in his New York residence to record his sexual encounters, and one victim told agents that Epstein’s assistant photographed her in the nude. Based on this evidence, and experience in other sex cases involving minors, Villafaña and several other witnesses opined to OPR that the computers might have contained child pornography. Moreover, Epstein lived a multi-state lifestyle; it was reasonable to assume that he may have transmitted still images or videos taken at his Florida residence over the internet to be accessed while at one of his other homes or while traveling. The interstate transmission of child pornography was a separate, and serious, federal crime that could have changed the entire complexion of the case against Epstein.253 Villafaña told OPR, “[I]f the evidence had been what we suspected it was . . . [i]t would have put this case completely to bed. It also would have completely defeated all of these arguments about interstate nexus.” Because she recognized the potential significance of this evidence, Villafaña attempted to obtain the missing computers. After Villafaña learned that an individual associated with one of Epstein’s attorneys had possession of the computer equipment that was removed from Epstein’s home, she consulted with Department subject matter experts to determine how best to obtain the evidence. Following the advice she received and after notifying her supervisors, Villafaña took legal steps to obtain the computer equipment. Epstein’s team sought to postpone compliance with the USAO’s demand for the equipment. In late June 2007, defense attorney Sanchez requested an extension of time to comply; in informing Sloman, Menchel, and Lourie of the request, Villafaña stressed that “we want to get the computer equipment that was removed from Epstein’s home prior to the state search warrant as soon as possible.” She agreed to extend the date for producing the computer equipment by one week until July 17, 2007. On that day, Epstein initiated litigation regarding the computer equipment. That litigation was still pending at the end of July, when Acosta decided to resolve 253 18 U.S.C. § 2251(a) provides, in pertinent part: Any person who . . . induces . . . any minor to engage in . . . any sexually explicit conduct for the 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 . . . commerce or in or affecting interstate . . . commerce . . . [or] if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or . . . commerce by any means, including by computer.

177 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, Villafaña continued to press ahead to have the court resolve the issue concerning the defense production of the computer equipment. On August 10, 2007, she asked Lourie for authorization to oppose Epstein’s efforts to stay the litigation until after an anticipated meeting between the USAO and the defense, informing Lourie that a victim interviewed that week claimed she started seeing Epstein at age 14 and had been photographed in the nude. A few days later, Villafaña told defense counsel that she had “conferred with the appropriate people, and we are not willing to agree to a stay.” Defense counsel then contacted Lourie, who agreed to postpone the hearing until after the upcoming meeting with Acosta. After the meeting, and when the court sought to reschedule the hearing, Villafaña emailed Sloman to ask if she should “put it off”; he replied, “Yes,” and the hearing was re-set for September 18, 2007. As negotiations towards the NPA progressed, however, the hearing was postponed indefinitely. Ultimately the NPA itself put the issue to rest by specifying that all legal process would be held in abeyance unless and until Epstein breached the agreement. Villafaña told OPR that she had learned through law enforcement channels that the defense team had reviewed the contents of Epstein’s computers. She told OPR that, in her view, “the fact that the defense was trying desperately to put off the hearing . . . was further evidence of the importance of the evidence.” OPR questioned Acosta about the decisions to initiate, and continue with, the NPA negotiations while the litigation concerning the computers was still pending, and to agree to postpone the litigation rather than exhausting all efforts to obtain and review the computer evidence. Acosta told OPR that he had no recollection of Villafaña’s efforts to obtain the missing computers, but he believed that “there was a desire to move quickly as opposed to slowly” regarding the plea. Menchel, Sloman, and Lourie also all told OPR that they did not remember Villafaña’s efforts to obtain the computers or recalled the issue only “vaguely.” Menchel expressed surprise to OPR that a prosecutor could obtain “an entire computer” through the method utilized by Villafaña, telling OPR, “I had not heard of that.” However, the contemporaneous records show that Sloman, Menchel, and Lourie had each been aware in 2007 of Villafaña’s efforts to obtain Epstein’s missing computer equipment. Villafaña 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. Villafaña told OPR that Lourie was involved in early discussions about her proposal to obtain the evidence. Lourie also received Villafaña’s July 16, 2007 email discussing the computer equipment and the plan to obtain it, and on one occasion he spoke directly

178 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 Villafaña 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 was signed, he was informed about the use of legal process for obtaining the computer equipment. The NPA itself provides that “the federal . . . investigation will be suspended, and all pending [legal process] will be held in abeyance,” that Epstein will withdraw his “motion to intervene and to quash certain [legal process],” and, further, that the parties would “maintain . . . evidence subject 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 process would be “deemed withdrawn.” (Emphasis added.) Acosta’s numerous edits on the NPA’s final draft suggest that he gave it a close read, and OPR expects that Acosta would not have approved the agreement without understanding what legal process his office was agreeing to withdraw, or why the only type of evidence specified was “certain computer equipment.” In addition, Acosta told OPR that he worked closely with Sloman and Menchel, consulted with them, and relied on their counsel about the case. Among other things, Acosta said he discussed with them concerns about the law and the evidentiary issues presented by a federal criminal trial. Therefore, although it is possible that Sloman made the decision to postpone the hearing concerning the USAO’s efforts to obtain the computer equipment without consulting Acosta, once Acosta reviewed the draft NPA, Acosta was on notice of the existence of and the ongoing litigation concerning Epstein’s missing computer equipment. Villafaña knew where the computers were; litigation over the demand for the equipment was already underway; there was good reason to believe the computers contained relevant—and potentially critical—information; and it was clear Epstein did not want the contents of his computers disclosed. Nothing in the available record reveals that the USAO benefitted from abandoning pursuit of this evidence when they did, or that there was any significant consideration of the costs and benefits of forgoing the litigation to obtain production of the computers.254 Instead, the USAO agreed to postpone and ultimately to abandon its efforts to obtain evidence that could have significantly changed Acosta’s decision to resolve the federal investigation with a state guilty plea or led to additional significant federal charges. By agreeing to postpone the litigation, the USAO gave away leverage that might have caused the defense to come to an agreement much earlier and on terms more favorable to the government. The USAO ultimately agreed to a term in the NPA that permanently ended the government’s ability to obtain possible evidence of significant crimes and did so with apparently little serious consideration of the potential cost. 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. Lourie 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 Villafaña or her supervisors were concerned that the court would do so, and Villafaña had consulted with the Department’s subject matter experts before initiating her action to obtain the equipment.

179 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 consequences of pursing the course of action that he proposed and particularly about the consequences flowing from the express terms of the NPA. In deciding to resolve the case pre-charge, Acosta lost sight of the bigger picture that the investigation was not completed and viable leads remained to be pursued. The decision to forgo the government’s efforts to obtain the computer evidence and to pursue significant investigative steps should have been made only after careful consideration of all the costs and benefits of the proposed action. OPR did not find evidence that Acosta fully considered the costs of ending the investigation prematurely.255 C. OPR Was Unable to Determine the Basis for the Two-Year Term of Incarceration, That It Was Tied to Traditional Sentencing Goals, or That It Satisfied the Federal Interest in the Prosecution The heart of the controversy surrounding the Epstein case is the apparent undue leniency afforded him concerning his sentence. After offering a deal that required a “non-negotiable” 24-month term of incarceration, Acosta agreed to resolve it for an 18-month term of incarceration, knowing that gain time would reduce it further, and indeed, Epstein served only 13 months. Epstein ultimately did not serve even that minimal sentence incarcerated on a full-time basis because the state allowed Epstein into its work release program within the first four months of his sentence. As Lourie told OPR, “[E]verything else that happened to [Epstein] is exactly what should have happened to him. . . . He had to pay a lot of money. He had to register as a sex offender,” but “in the perfect world, [Epstein] would have served more time in jail.” Due to the passage of time and the subjects’ inability to recall many details of the relevant events, OPR was unable to develop a clear understanding of how the original two-year sentence requirement was developed or by whom. Two possibilities were articulated during OPR’s subject interviews: (1) the two years represented the sentence Epstein would have received had he pled guilty to an unspecified charge originally contemplated by the state; or (2) the two years represented the sentence the USAO determined Epstein would be willing to accept, thus avoiding the need for a trial. As to the former possibility, Acosta told OPR that his “best understanding” of the two-year proposal was that it correlated to “one of the original state charges.” He elaborated, 255 In commenting on OPR’s draft report, 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 Acosta was not involved in that 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 USAO was giving up and the appropriateness of doing so.

180 “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. Villafaña was not asked for her views on a two-year sentence, and she had no input into the decision before it was made. Villafaña 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 applicable state statutes and the Florida sentencing guidelines, but could not confirm that Epstein was, in fact, facing a potential two-year sentence under charges contemplated by the PBPD. On the other hand, during his OPR interview, Lourie “guess[ed]” that “somehow the defense conveyed . . . we’re going to trial if it’s more than two years.” Menchel similarly told OPR that he did not know how the two year sentence was derived, but “obviously it was a number that the office felt was palatable enough that [Epstein] would take” it. Sloman told OPR that he had no idea how the two-year sentence proposal was reached. The contemporaneous documentary record, however, provides no indication that Epstein’s team proposed a two-year sentence of incarceration or initially suggested, before the USAO made its offer, that Epstein would accept a two-year term of incarceration. As late as July 25, 2007— only days before the USAO provided the term sheet to defense counsel—Epstein’s counsel submitted a letter to the USAO arguing that the federal government should not prosecute Epstein at all. Furthermore, after the initial “term sheet” was presented and negotiations for the NPA progressed, Epstein’s team continued to strongly press for less or no time in jail. The USAO had other charging and sentencing options available to it. The most obvious alternative to the two-year sentence proposal was to offer Epstein a plea to a federal offense that carried a harsher sentence. If federally charged, Epstein was facing a substantial sentence under the federal sentencing guidelines, 168 to 210 months’ imprisonment. However, it is unlikely that he would have agreed to a plea that required a guidelines sentence, even one at the lower end of the guidelines. Menchel told OPR that he and his colleagues had been concerned that Epstein would opt to go to trial if charged and presented with the option of pleading to a guidelines sentence, and as previously discussed, there were both evidentiary and legal risks attendant upon a trial in this case. If federally charged, Epstein’s sentencing exposure could have been managed by offering him a plea under Federal Rule of Criminal Procedure 11(c) for a stipulated sentence, which requires judicial approval. Acosta rejected this idea, however, apparently because of a perception that the federal district courts in the Southern District of Florida did not view Rule 11(c) pleas favorably and might refuse 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 Villafaña 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, Villafaña 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

181 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 plea would be sufficient to prevent manifest injustice. Menchel told OPR, “I don’t believe anybody at the time that this resolution was entered into was looking at the two years as a fair result in terms of the conduct. I think that was not the issue. The issue was whether or not if we took this case to trial, would we risk losing everything?” During the course of negotiations over a potential federal plea, the USAO agreed to accept a plea for an 18-month sentence, a reduction of six months from the original “non-negotiable” two- year term. The subjects did not have a clear memory of why this reduction was made. Villafaña attributed it to a conversation between Acosta and Lefkowitz, but Acosta attributed it to a decision made during the negotiating process by Villafaña and Lourie, telling OPR that he understood his attorneys needed flexibility to reach a final deal with Epstein. OPR found no contemporaneous documents showing the basis for the two-year term. Despite extensive subject interviews and review of thousands of contemporaneous records, OPR was unable to determine who initially proposed the two-year term of incarceration or why that term, as opposed to other possible and lengthier terms, was settled on for the initial offer. The term was not tied to statutory or guidelines sentences for potential federal charges or, as far as OPR could determine, possible state charges. Furthermore, while the USAO initially informed the defense that the two-year term was “non-negotiable,” Acosta failed to enforce that position and rather than a “floor” for negotiations, it became a “ceiling” that was further reduced during the negotiations. OPR was unable to find any evidence indicating that the term of incarceration was tied either to the federal interest in seeking a just sentence for a serial sexual offender, or to other traditional sentencing factors such as deterrence, either of Epstein or other offenders of similar crimes. Instead, as previously noted, it appears that Acosta primarily considered only a punishment that was somewhat more than that to which the state had agreed. As a result, the USAO had little room to maneuver during the negotiations and because Acosta was unwilling to enforce the “non-negotiable” initial offer, the government ended up with a term of incarceration that was not much more than what the state had initially sought and which was significantly disproportionate to the seriousness of Epstein’s conduct. In sum, it is evident that Acosta’s desire to resolve the federal case against Epstein led him to arrive at a target term of incarceration that met his own goal of serving as a “backstop” to the state, but that otherwise was untethered to any articulable, reasonable basis. In assessing the case only through the lens of providing a “backstop” to the state, Acosta failed to consider the need for a punishment commensurate with the seriousness of Epstein’s conduct and the federal interest in addressing it.

182 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, individual 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 collateral attack, I think I would have looked at this very differently.” Once the NPA was signed, Acosta could have ignored Epstein’s requests for further review by the Department and, if Epstein failed to fulfill his obligations under the NPA to enter his state guilty plea, declared Epstein to be in breach and proceeded to charge him federally. When questioned about this issue, Acosta explained that he believed the Department had the “right” to address Epstein’s concerns. He told OPR that because the USAO is part of the Department of Justice, if a defendant asks for Departmental review, it would be “unseemly” to object. During his OPR interview, Sloman described Acosta as very process-oriented, which he attributed to Acosta’s prior Department experience. Sloman, however, believed the USAO gave Epstein “[t]oo much process,” a result of the USAO’s desire to “do the right thing” and to the defense team’s ability to keep pressing for more process without triggering a breach of the NPA. Furthermore, Epstein’s defense counsel repeatedly and carefully made clear they were not repudiating the agreement. Acosta told OPR that the USAO would have had to declare Epstein in breach of the NPA in order to proceed to file federal charges, and Epstein would undoubtedly have litigated whether his effort to obtain Departmental review constituted a breach. Acosta recalled that he was concerned, as was Sloman, that a unilateral decision to rescind the non-prosecution agreement would result in collateral litigation that would further delay matters and make what was likely a difficult trial even harder. Acosta’s and Sloman’s concerns about declaring a breach were not unreasonable. A court would have been unlikely to have determined that defense counsel’s appeal of the NPA to the Department and unwillingness to set a state plea date while that appeal was ongoing was sufficient to negate the agreement. However, some of the difficulty the USAO faced in declaring a breach was caused by decisions Acosta made before and shortly after the NPA was signed. For example, and significantly, it was Acosta who changed the language, “Epstein shall enter his guilty plea and be sentenced not later than October 26, 2007” to “Epstein shall use [his] best efforts to enter his guilty plea and be sentenced not later than October 26, 2007.” (Emphasis added.) Acosta also agreed not to enforce the NPA’s October 26, 2007 deadline for entry of Epstein’s plea, and he told defense counsel that he had no objection if they decided to pursue an appeal to the Department. Following these decisions, the USAO would have had significant difficulty trying to prove that Epstein 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

183 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. As OPR has set forth in substantial detail in this Report, OPR did not find evidence to support 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 Villafaña 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 Acosta engaged in greater consultation with his staff before making key decisions. The contemporaneous records revealed problems with communication and coordination among the five key participants. Acosta was involved to a greater extent and made more decisions than he did in a typical case. Lourie told OPR that it was “unusual to have a U.S. Attorney get involved with this level of detail.” Menchel told OPR, “I know we would have spoken about this case a lot, okay? And I’m sure with Jeff as well, and there were conversations -- a meeting that I had with Marie and Andy as well.” Lourie similarly told OPR: Well, . . . he would have been talking to Jeff and Matt, talking to me to the extent that he did, he would have been looking at the Pros Memo and . . . the guidance from CEOS, he would have been reading the defense attorney’s letters, maybe talking to the State Attorney, I don’t know, just . . . all these different sources of information he was -- I’m comfortable that he knew the case, you know, that he was, he was reading everything. Apparently, he, you know, read the Pros Memo, he read all the stuff . . . . At the same time, Acosta was significantly removed, both in physical distance and in levels in the supervisory chain, from the individuals with the most knowledge of the facts of the case— Villafaña and, to a lesser extent, Lourie. Lourie normally would have signed off on the prosecution memorandum on his own, but as he told OPR, he recognized that the case was going to go through the front office “[b]ecause there was front office involvement from the get go.” Yet, although Acosta became involved at certain points in order to make decisions, he did not view himself as overseeing the investigation or the details of implementing his decisions. OPR observed that as a consequence, management of the case suffered from both an absence of ownership of the investigation and failures in communication that affected critical decisions. On occasion, Villafaña included Acosta directly in emails, but often, information upon which Acosta relied for his decisions and information about the decisions Acosta had made traveled through multiple layers between Acosta and Villafaña. Villafaña did draft a detailed, analytical 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 Villafaña’s concerns and objections to a state-based resolution or the final NPA. 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

184 which Villafaña and Lourie believed that the state had intentionally failed to aggressively pursue a broader state indictment. One example illustrates this communication gap. In a September 20, 2007 email to Lourie 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]ali cartel agreements, so this should not be the first.” (Emphasis added.) In his email to Villafaña, Lourie attached Acosta’s email and instructed Villafaña to “change the signature block to your name and send as final to Jay [Lefkowitz].” (Emphasis added.) Villafaña raised no objection to signing the agreement. Acosta told OPR that he wanted to give the “trial team” a chance to “speak up and let him know” if they did not feel comfortable with the agreement. Villafaña, however, told OPR that she did not understand that she was being given an opportunity to object to the agreement; rather, she believed Acosta wanted her to sign it because he was taking an “arm’s length” approach and signaling this “was not his deal.” The fact that the top decision maker believed he was giving the line AUSA an opportunity to reflect and stop the process if she believed the deal was inappropriate, but the line AUSA believed she was being ordered to sign the agreement because her boss wanted to distance himself from the decision, reflects a serious communication gap. As another example, at one point, Villafaña, frustrated and concerned about the decisions being made concerning a possible resolution, requested a meeting with Acosta; in a sternly worded rebuke, Menchel rejected the request. Although Menchel told OPR that he was not prohibiting Villafaña from speaking to Acosta, Villafaña interpreted Menchel’s email to mean that she could not seek a meeting with Acosta. As a consequence, Acosta made his decision about a state resolution and the term of incarceration without any direct input from Villafaña. Acosta told OPR that he was unaware that Villafaña had sought a meeting with him and he would have met with her if she had asked him directly. OPR did not find any written evidence of a meeting involving both Acosta—the final decision maker—and Villafaña—the person most knowledgeable about the facts and the law—before Acosta made his decision to resolve the case through state charges or to offer the two-year term, and Villafaña said she did not have any input into the decision. Although a U.S. Attorney is certainly not required to have such direct input, and it may be that Menchel presented what he believed to be Villafaña’s views, OPR found no evidence that Acosta was aware of Villafaña’s strong views about, and objections to, the proposed resolution.256 Two logistical problems hindered effective communication. First, the senior managers involved in the case—Acosta, Sloman, and Menchel—had offices located in Miami, while the offices of the individuals most familiar with facts of the case—Villafaña and, to a lesser extent, Lourie—were located in West Palm Beach. Consequently, Villafaña’s discussions with her senior 256 In her 2017 Declaration in the CVRA litigation, Villafaña stated that, given the challenges of obtaining victims’ cooperation with a federal prosecution, “I believed and still believe that a negotiated resolution of the matter was in the best interests of the [USAO] and the victims as a whole. The [USAO] had also reached that same conclusion.” Several subjects pointed to this statement as indicating that Villafaña in fact supported the NPA. In her OPR interview, however, Villafaña drew a distinction between resolving the investigation through negotiations that led to what in her view was a reasonable outcome, which she would have supported, and “this negotiated resolution”— that is, the NPA—which she did not support.

185 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.257 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 options as key provisions were continuously added or modified while Villafaña pressed to meet her late- September deadline. Although Lourie was involved with the negotiations during this period, he was at the same time transitioning not only to a new job but to one in Washington, D.C., and was traveling between the two locations. Sloman was on vacation in the week preceding the signing, when many significant changes were made to the agreement, and he did not participate in drafting or reviewing the NPA before it was signed. Accordingly, during the key negotiation period for a significant case involving a unique resolution, no one involved had both a thorough understanding of the case and full ownership of the decisions that were being made. Villafaña certainly felt that during the negotiations, she was only implementing decisions made by Acosta. Acosta, however, told OPR that when reviewing the NPA, “I would have reviewed this for the policy concerns. Did it do the . . . bullet points, and my assumption, rightly or wrongly, would have been that Andy and Marie would have looked at this, and that this was . . . appropriate.” The consequences flowing from the lack of ownership and effective communication can be seen in the NPA itself. As demonstrated by the contemporaneous communications, the negotiations were at times confusing as the parties considered multiple options and even revisited proposals previously rejected. Meanwhile, Villafaña sought to keep to a deadline that would allow her to charge Epstein when she had planned to, if the parties did not reach agreement. In the end, Acosta accepted several terms with little apparent discussion or consideration of the ramifications. The USAO’s agreement not to prosecute “any potential co-conspirators” is a notable example. As previously noted, the only written discussion about the term that OPR found was Villafaña’s email to Lourie and the incoming West Palm Beach manager, with copies to her co-counsel and direct supervisor, stating that she did not believe the provision “hurts us,” and neither Acosta, Lourie, nor Villafaña recalled any further discussion about the provision. Although OPR did not find evidence showing that Acosta, Lourie, or Villafaña intended the scope of the provision to protect anyone other than Epstein’s four assistants, the plain language of the provision precluded the USAO from prosecuting anyone who engaged with Epstein in his criminal conduct, within the limitations set by the overall agreement. This broad prosecution declination would likely be unwise in most cases but in this case in particular, the USAO did not have a sufficient investigative basis from which it could conclude with any reasonable certitude that there were no other individuals 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 257 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.”

186 parties.258 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 that the defense interpreted the provision as precluding the USAO from informing the victims about the status of the investigation. Agreeing to a provision that restricted the USAO’s ability to disclose or release information as it deemed appropriate mired the USAO in disputes about whether it was or would be violating the terms of the NPA by disclosing information to victims or the special master. Decisions about disclosure of information should have remained within the authority and province of the USAO to decide as it saw fit. There is nothing improper about a U.S. Attorney not having a meeting with the line AUSA or other involved members of the prosecution team before he or she makes a decision in a given case; indeed, U.S. Attorneys often make decisions without having direct input from line AUSAs. And Acosta did have discussions with Menchel, and possibly Sloman, before making the critical decision to resolve the matter through a state plea, although the specifics of those discussions could not be recalled by the participants due to the passage of time. This case, however, was different from the norm, and Acosta was considering a resolution that was significantly different from the usual plea agreement. Contemporaneous records show that Acosta believed the case should be handled like any other, but Acosta’s decision to fashion an unorthodox resolution made the case unlike any other, and it therefore required appropriate and commensurate oversight. Acosta may well have decided to proceed in the same fashion even if he had sought and received a full briefing 258 CEOS Chief Oosterbaan told OPR this provision was “very unusual.” Principal Associate Deputy Attorney General John Roth commented, “I don’t know how it is that you give immunity to somebody who’s not identified. I just don’t know how that works.” Villafaña’s co-counsel told OPR: [I]t’s effectively transactional immunity which I didn’t think we were supposed to do at the Department of Justice. . . . I’ve never heard of anything of the sort. . . . [W]e go to great lengths in most plea agreements to go and not give immunity for example, for crimes of violence, . . . for anything beyond the specific offense which was 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 the wife 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 Filip 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 commented that it was “horrendous” to provide immunity for participants in such conduct.

187 from Villafaña 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 Villafaña 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 this done and get a jail term, mean that we didn’t take a step back and say, let’s evaluate how this train is moving?” Many features of the NPA were given inadequate consideration, including core provisions like the term of incarceration and sexual offender registration, with the result that Epstein was able to manipulate the process to his benefit. Members of his senior staff held differing opinions about some of the issues that Acosta felt were important and that factored into his decision-making. There does not seem to be a point, however, at which those differing opinions were considered when forming a strategy; rather, Acosta seems to have made a decision that everyone beneath him followed and attempted to implement but without a considered strategy beyond attaining the three core elements. As the U.S. Attorney, Acosta had authority to proceed in this manner, but many of the problems that developed with the NPA might have been avoided with a more thoughtful approach. As Acosta belatedly recognized, “[I]f I was advising a fellow U.S. Attorney today, I would say, think it through.”259 No one of the individual problems discussed above necessarily demonstrates poor judgment by itself. However, in combination, the evidence shows that the state-based resolution was ill conceived from the start and that the NPA resulted from a flawed decision-making process. From the time the USAO opened its investigation, Acosta recognized the federal interest in prosecuting Epstein, yet after that investigation had run for more than a year, he set the investigation on a path not originally contemplated. Having done so, he had responsibility for ensuring that he received and considered all of the necessary information before putting an end to a federal investigation into serious criminal conduct. Acosta’s failure to adequately consider the full ramifications of the NPA contributed to a process and ultimately a result that left not only the line AUSA and the FBI case agents dissatisfied but also caused victims and the public to question the motives of the prosecutors and whether any reasonable measure of justice was achieved. Accordingly, OPR concludes that Acosta exercised poor judgment in that he chose a course of action that was in marked contrast to the action that the Department would reasonably expect an attorney exercising good judgment to take. 259 In commenting on OPR’s draft report, Acosta’s attorney acknowledged that “[t]he matter would have benefited from more consistent staffing and attention.”

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189 CHAPTER 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 interactions and communications with victims in the Epstein case, and should be read in conjunction with the factual background set forth in Chapter Two, Part One. This chapter sets forth the pertinent legal authorities and Department policies and practices regarding victim notification and consultation, as well as OPR’s analysis and conclusions. OPR discusses key events relating to the USAO’s and the FBI’s interactions with victims before and after the signing of the NPA, beginning with the FBI’s initial contact with victims through letters informing them that the FBI had initiated an investigation. A timeline of key events is provided on the following page. II. THE CVRA, 18 U.S.C. § 3771 A. History In December 1982, the President’s Task Force on Victims of Crime issued a final report outlining recommendations for the three branches of government to improve the treatment of crime victims. The Task Force concluded that victims have been “overlooked, their pleas for justice have gone unheeded, and their wounds—personal, emotional and financial—have gone unattended.”260 Thereafter, the government enacted various laws addressing victims’ roles in the criminal justice system: the Victim and Witness Protection Act of 1982, the Victims of Crime Act of 1984, the Victims’ Rights and Restitution Act of 1990 (VRRA), the Violent Crime Control and Law Enforcement Act of 1994, the Antiterrorism and Effective Death Penalty Act of 1996, the Victim Rights Clarification Act of 1997, and the Justice for All Act of 2004.261 The CVRA, enacted on October 30, 2004, as part of the Justice for All Act, was designed to protect crime victims and to make them “full participants in the criminal justice system.”262 The CVRA resulted from a multi-year bipartisan effort to approve a proposal for a constitutional amendment guaranteeing victims’ rights, some of which had previously been codified as a victims’ 260 President’s Task Force on Victims of Crime Final Report at ii (Dec. 1982). 261 See Pub. L. No. 97-291 (Victim and Witness Protection Act) (1982); Pub. L. No. 98-473 (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). 262 Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006); United States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007); and Justice for All Act.

190 Aug 10 FBI begins mterv,ev. mg \'ICtlmS Aug 24 - Villafana e-mail to supervisors indicating that she sent victim notification letters to ··all of the girls" Aug 28 FBI begins sending Vl\"S Jeners to victims Time line of Key Events for Crime Victims' Rights Act Analysis July 9 - USAO begins sending leucrs to victims concerning resolution of federal investigation Aug Sep Dec .IH - .Ju■ I --------1111111.!l 2006 Oct - FBI agents meet with 3 victims to infonn them of the NPA, but then raise impeachment concerns Oct - Nov - FBI agent~ mtcn ,cw add1t1onal victuns for the first tune Feb 19 - Villafada completes third update 10 prosecution memorandum Feb 28 - USAO nmifies DOJ Civli Rights Division that Epstem investigation is ongoing Additional Key Dates Dec 17.2010 - DOJ Office of Legal Counsel issues opinion regarding CVRA Oct 20 I I - DOJ revises AG Guidelines May 29, 2015 - CVRA amended to include two new rights Feb 21, 2019- Dist. Ct. issues opinion finding U.S. violated the CVRA Jul 6. 2019 - Epstein arrested on SONY charges Aug 10, 2019 - Epstein dies in custody Sep 16, 2019 - Dist. Ct. closes CVRA case and denies petitioners' reqi,est for remedies Apr 14. 2020 - llth Cfrcuit Coun of Appeals denies Mandamus petition Aug 7. 2020- Pctitioners' petition for rehearing en bane gramed

191 Bill of Rights in the VRRA.263 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.264 B. Enumerated Rights The CVRA defines the term “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.”265 Initially, and at the time relevant to the federal Epstein investigation, the CVRA afforded crime victims the following eight rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. 263 See 150 Cong. Rec. S4260-01 at 1, 5 (2004). The VRRA identified victims’ rights to (1) be treated with fairness and with respect for the victim’s dignity and privacy; (2) be reasonably protected from the accused offender; (3) be notified of court proceedings; (4) be present at all public court proceedings that relate to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial; (5) confer with an attorney for the Government in the case; (6) restitution; and (7) information about the conviction, sentencing, imprisonment, and release of the offender. 42 U.S.C. § 10606(b) (1990). The relevant text of the VRRA is set forth in Chapter Three, Part Two, Section 1.B of this Report. 264 150 Cong. Rec. S4260-01 at 1, 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 Awareness, Modifying the Complaint Process and Enhancing Compliance Monitoring Will Improve Implementation of the Act at 16 (Dec. 2008) (GAO CVRA Awareness Report). 265 The relevant text of the CVRA is set forth in Chapter Three, Part Two, Section I.A of this Report.

192 (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 federal court or by administrative complaint to the Department, and obligated the court to ensure that such rights were afforded. The passage of the CVRA repealed the rights portion of the VRRA (42 U.S.C. § 10606), but kept intact the portion of the VRRA directing federal law enforcement agencies to provide certain victim services, such as counseling and medical care referrals (42 U.S.C. § 10607(c)). Department training emphasizes that the VRRA obligates the Department to provide victim services, which attach upon the detection of a crime, while the CVRA contains court- enforceable rights that attach upon the filing of a charging instrument. In 2015, Congress amended the CVRA and added the following two rights:266 (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 and the services described in section 503(c) of the Victims’ Rights and 5HVWLWXWLRQ $FW RI   86& F DQG SURYLGHG FRQWDFW information for the Office of the Victims’ Rights Ombudsman of the Department of Justice. III. THE DEPARTMENT’S INTERPRETATION OF THE CVRA’S DEFINITION OF “CRIME VICTIM” AT THE TIME OF THE EPSTEIN INVESTIGATION A. April 1, 2005 Office of Legal Counsel “Preliminary Review” In 2005, Department management requested informal guidance from the Department’s Office of Legal Counsel (OLC) regarding interpretation of the CVRA’s definition of “crime victim.”267 On April 1, 2005, OLC provided “preliminary and informal” guidance by email, concluding that “the status of a ‘crime victim’ may be reasonably understood to commence upon the filing of a complaint, and that the status ends if there is a subsequent decision not to indict or prosecute the Federal offense that directly caused the victim’s harm.”268 266 H. Rep. No. 114-7 (Jan. 27, 2015). 267 OLC is responsible for providing legal advice to the President, Department components, and other executive branch agencies. 268 The 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. 17, 2010), published as Office of Legal Counsel,

193 OLC concluded that because the CVRA defines “‘crime victim’ as a ‘person directly and proximately harmed by the commission of a Federal offense,’ . . . the definition 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 interpretation. For example, the first right grants a victim protection from “the accused,” not a suspect. Additionally, the second, third, and fourth rights refer to “victim notification, and access to, public proceedings involving release, plea, sentencing or parole—none of which commence prior to the filing of a complaint.” B. 2005 Attorney General Guidelines for Victim and Witness Assistance In May 2005, the Department updated its Attorney General Guidelines for Victim and Witness Assistance (2005 Guidelines) to include the CVRA.269 The 2005 Guidelines specifically cited the CVRA requirement that agencies “engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded” their CVRA rights, which in 2005 encompassed the initial eight CVRA rights. The 2005 Guidelines provided detail regarding implementation of the Department’s CVRA duties and divided criminal cases into an “investigation stage,” a “prosecution stage,” and a “corrections stage.” The individuals responsible for notifying crime victims of their CVRA rights varied depending on the stage of the proceedings. During the “investigation stage” of cases in which the FBI was the investigating agency, the Special Agent in Charge was responsible for identifying the victims “[a]t the earliest opportunity after the detection of a crime” and notifying them of their rights under the CVRA and services available under the VRRA and other federal statutes. [D]uring the investigative stage, [the Department] mandates compliance with the Victims’ Rights and Restitution Act, 42 U.S.C § 10607, which requires federal officials to, among other things, identify victims, protect victims, arrange for victims to receive reasonable protection from suspected offenders, and provide The Availability of Crime Victims’ Rights Under the Crime Victims’ Rights Act of 2004 (Dec. 17, 2010) (“OLC Availability of Crime Victims’ Rights (2010)”) and available at https://www.justice.gov/sites/default/files/olc/ opinions/2010/12/31/availability-crime-victims-rights.pdf. “That [2005] informal guidance did not foreclose the possibility that other definitions would also be reasonable.” OLC Availability of Crime Victims’ Rights (2010) at 1. 269 The 2005 Guidelines are set forth in relevant part in Chapter Three, Part Two, Section II of this Report. The Department promulgated the guidelines in response to a congressional directive in a predecessor 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.

194 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]epartment may provide certain services to victims that may serve the same function as some CVRA rights.270 The 2005 Guidelines stated that the “prosecution stage” of the case began when “charges are filed and continue[d] through postsentencing legal proceedings.” The “U.S. Attorney in whose district the prosecution is pending” was responsible for making “best efforts to see that crime victims are notified” of their rights under the CVRA. During the prosecution stage, the 2005 Guidelines required the U.S. Attorney, or a designee, to notify crime victims of case events, such as the filing of charges; the release of an offender; the schedule of court proceedings; the acceptance of a guilty plea or nolo contendere or rendering of a verdict; and any sentence imposed. The 2005 Guidelines required the responsible official to “provide the victim with reasonable, accurate, and timely notice of any public court proceeding . . . that involves the crime against the victim.” The 2005 Guidelines specifically required federal prosecutors to “be available to consult with victims about [their] major case decisions,” such as dismissals, release of the accused, plea negotiations, and pretrial diversion. In particular, the 2005 Guidelines required the responsible official to make reasonable efforts to notify identified victims of, and consider victims’ views about, prospective plea negotiations. Nevertheless, the 2005 Guidelines cautioned prosecutors to “consider factors relevant to the wisdom and practicality of giving notice and considering [the victim’s] views” in light of various factors such as “[w]hether the proposed plea involves confidential information or conditions” and “[w]hether 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.” Lastly, the 2005 Guidelines stated that “[a] strong presumption exists in favor of providing rather than withholding assistance and services to victims and witnesses of crime.” The “corrections stage” involved both pretrial detention of the defendant and incarceration following a conviction. Depending on the agency having custody of the defendant, the U.S. Attorney or other agencies were responsible for victim notifications during this stage. IV. USAO AND FBI VICTIM/WITNESS NOTIFICATION PRACTICE AT THE TIME OF THE EPSTEIN INVESTIGATION A. USAO Training As U.S. Attorney, Acosta disseminated the May 2005 updated Guidelines to USAO personnel 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 270 GAO CVRA Awareness Report at 66.

195 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 for United States Attorneys. The 2005 Guidelines mandated that “victim contact information and notice to victims of events . . . shall, absent exceptional circumstances (such as cases involving juvenile or foreign victims), be conducted and maintained using VNS.” The VNS is separate from agency case management systems maintained by the FBI and the USAO. Both the FBI and the USAO use the VNS to generate form letters to victims at various points in the investigation and the prosecution of a criminal case. Although each form letter can be augmented to add some limited individual matter-specific content, the letters contain specific language concerning the purpose of the contact that cannot be removed (such as the arrest of the defendant or the scheduling of a sentencing hearing).271 In the usual course of a criminal case, the FBI collects victim contact information during the investigation stage, which it stores in its case management system. The FBI’s Victim Specialist exports the victim information data from the FBI’s case management system into the VNS database. Victim information stored in the VNS is linked to the investigation’s VNS case number. At the time of the Epstein investigation, the FBI’s Victim Specialist could use the VNS to generate seven different form notification letters: (1) initial notification; (2) case is under investigation; (3) arrest of the defendant; (4) declination of prosecution; (5) other; (6) advice of victim rights; and (7) investigation closed. After a charging document has been filed and the “prosecution stage” begins, the USAO’s Victim Witness Specialist assumes responsibility for victim notification.272 The USAO imports data from its case management system into the VNS and links to the previously loaded FBI VNS data. The USAO’s Victim Witness Specialist uses the VNS to generate form letters providing notice of case events, such as charges filed; an arraignment; a proposed plea agreement; change of plea hearings; sentencing hearings; and the result of sentencing hearings. 271 U.S. Dept. of Justice Office of the Inspector General Audit Division Audit Report 08-04, The Department of Justice’s Victim Notification System at 29 (Jan. 2008), available at https://oig.justice.gov/reports/EOUSA/a0804/ final.pdf. The 2008 audit identified concerns with the VNS templates, including that “VNS users . . . cannot alter the format to ensure that it fits with the specific case for which it is being sent,” and many users had noted that “information in notifications became confusing and sometimes contradictory when various types of notifications were 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.”

196 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 occurring after the indictment of an individual for the crime, and it will be the responsibility of the prosecuting United States Attorney’s Office to ensure you are afforded those rights.” The case agent in the Epstein investigation told OPR that she provided victims with the FBI pamphlet upon the conclusion of an interview. The pamphlet entitled “The Department of Justice Victim Notification System” provided an overview of the VNS and instructions on how to access the system. V. THE INTRODUCTORY USAO AND FBI LETTERS TO VICTIMS A. August 2006: The FBI Victim Notification Letters On August 8, 2006, shortly after the FBI opened its investigation into Epstein, the Victim Specialist for the West Palm Beach FBI office, under the case agent’s direction, prepared a “Victim Notification Form” naming 30 victims in the Epstein investigation and stating that “additional pertinent information” about them was available in the VNS.273 Thereafter, the Victim Specialist entered individual victim contact information she received from the case agent into the VNS whenever the case agent directed the Victim Specialist to generate an initial letter to a particular victim. The FBI case agent told OPR that formal victim notification was “always handled by the [FBI’s Victim Specialist].”274 According to the VNS records, beginning on August 28, 2006, the FBI Victim Specialist used the VNS to generate FBI letters to be sent to the victims, over her signature, identifying the eight CVRA rights and inviting victims to provide updated contact information in order to receive current status information about the matter. The FBI letters described the case as “currently under investigation” and noted that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.” The letters also stated that some of the CVRA rights did not take effect until after an arrest or indictment: “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.” A sample letter follows. 273 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 OPR, “[O]nce we 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 [her], the Victim Specialist.”

197 Auvust 28, 2006 U.S. D•p1rlrn1nl of JuiOte Pcdcnl Bureau ortnvc.:1tl~1tLJou FBI · West Pahn !leach SujteS00 SOS Sou1h Flogl•r Drivt Wo,t Polm llc=h, FL 33401 Phone (S61) 833-7517 Fax: (561) tll-7970 Your name wu rere:red to tho FBl'll Vlcll,n Asslsiance Program as being a i:osslblc victim ot a fcdeml crime. We appreciate your assistance and cooperation while we are investigating this cas.e. We would like to make you awm of the victim services that may be available to you and to a."\Swer any questions you may have r<garding !he criminal justie< process lluoughout the inves1igation. Our program is part of the FBl's effort to ensure the victims ere treated with respect and are provided infonnatlon about 1he:r rights un<lcr federal law. Tho,e rlghlS Include nod6cation of the status of the case. Th• enclosed brochures provide Information about the PB l's Victim Autstanc<> Proaram, resources and Instructions for aocessl111 tho Victim Notlncallon Syr.em (VNS). VNS ls dcslgnC<i 10 p,ovldo you wkh lnfomiatlon rogordlng tho ttarus of your oase. This case Is Cl!1Tel1dy unde, lnvestlptlon. This can be • lengthy process and we request your condnuecl patience while we CX)ltduct a thorough investigation. As• crime viclim, you have tl10 following ri&h" undor 18 United State:$ C<xk) § 3771: (1) The: right to be rca:10111Wly protoctcsd from d,o IIC'-113cd; (2) Tho rliht tu n::a.wm,bh:s, 11ocu111tc, u.nd timely not.lco urtiny publlo court p1occcd.lng. or any parole prococ:dlng, lnvolvlng the crime or of any rclcuc or escape of the accused; (3) Tho right not lo be excluded from nny such public court proccedlng, unlou the court, after receMng clear and convincing ovidcno&, determines that te3C-imony by tile viotim would be nio.tcric.Jly altered if the victim heo.rd other teitimoay at that prooof>din,g; (4) The right to lie rcuoono.bly heard at aoy public proceeding in the distriot court invotviog release, plea, .sentencing. or any parole proceedJngi (5) Tho reuonable right to conf'er wi1h th& attorney (CC' tho Government in the case; (6) The right to run and timely mstin1tion a, provided In tawi (1) Tha rlsht. to proceedlns, free from un, .. ,onnble d<I•~; (I) The right to be 1re1ted with fhlmeu •nd with reipect for tho vlc~m•a dignity and prlvocy. We will make our bC!I effom 10 ensure you are accorded the ri&lts dcscnood. Most of these> riiJ,15 pertain IO events ooc.urrinJ after the arrest or indictment of an individual !or the crime. and it will become the responsibiHty of the prosocuring Uni1ed Srates Attorneys Office lo onsur, you are aoe<>nled dx>so righls. You may·also seek tho advice of a private attomoy with respect to these rights. The Victim Notlflcadoo System (VNS) Is desljned to provldeycu with db-eet tnfonnallon roaardlna the ..,. as It proceeds tbrouQh the criminal Justice sys Nim. You may obtain cu nt lntormlltlon "11out tills in,tte, on the Internet at WWW.Not! , t II Ccn:erat In addition,, you may use thc,Co.11 Ccn1eror lntemet to update your contact infonnat.ion and/or change your decision ibout participation in lhc notification prograin. If you up:fatt your lnfonnatlo• to Include a current email a~ress. VNS wltl send lnformllllon to that address. You will need the followlna Vl«lm Jdentlfleadon Number (VIN) ■••1t,na Personal tden1tncat1on NLlmber (PIN) _ ,nytlmo you contGCI the Cell Center anti the ftnn time you tos on to VNS on Ille Internet In addition, the nr11 tJmc you 1tc~1 the VNS Intcrnc, altc, you wlll bo p1orr.ptcd to enter your Jast name (or budnc$1 no.me) as cu.1·rcndy conta.lncd In VNS. Tho name yo·, should coler ls

198 VNS data logs, correspondence maintained in the FBI’s case management system, and FBI interview reports for the Epstein investigation reflect that, during the Epstein investigation, the FBI generally issued its victim notification letters after the victim had been interviewed by FBI case agents, but its practice was not uniform.275 B. August 2006: The USAO’s Letters to Victims During the time that the FBI Victim Specialist was preparing and sending FBI victim notification letters, Villafaña was also preparing her own introductory letter in anticipation of meeting with each victim receiving the letter. Villafaña told OPR that she was “generally aware that the FBI sends letters” but believed the FBI’s “process didn’t . . . have anything to do with my process.” Villafaña told OPR the “FBI had their own victim notification system and their own guidelines for when information had to be provided and what information had to be provided.” Moreover, Villafaña “didn’t know when [FBI] letters went out” or “what they said.”276 Nevertheless, Villafaña told OPR that she did not intend for the letters she drafted to interfere with the FBI’s notification responsibilities. In August 2006, Villafaña drafted her letters to victims who had been initially identified by the FBI based on the PBPD investigative file. Villafaña told OPR that she “made the decision to make contact with victims early,” and she composed the introductory letter and determined to whom they would be sent. Although these letters contained CVRA rights information, Villafaña mainly intended to use them as a vehicle to “introduce” herself and let the victims know the federal investigation “would be a different process” from the State Attorney’s Office investigation in which “the victims felt they had not been particularly well-treated.” Villafaña told OPR that in a case in which she “needed to be talking to young girls frequently and asking them really intimate 275 OPR found no uniformity in the time lapse between the FBI’s interview of a victim and the issuance of an FBI letter to that particular victim, as the span of time between the two events varied from a few days to months. Furthermore, not every victim interviewed by the FBI received an FBI letter subsequent to her interview, and some FBI letters were sent to victims who had not been interviewed by the case agents. Finally, OPR’s review of FBI VNS data revealed some letters that appeared to have been generated in the VNS and not included in the FBI case file. OPR could not confirm whether such letters were mailed or delivered. 276 Villafaña, 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 gathered them for production in the CVRA litigation, which was initiated after Epstein pled guilty on June 30, 2008. f)ID hav~~I~ q~J:l$ '1'.1tleli I al~mhi Btltt'1pft.a9: oon1nclthc0Hi0:il.isttdabo • WhCJ'! y~ cam, pk~c provide the liil1:1munk, located s.' thi; twpoffhis I~ F~ W; yourpsriieip n.011:in the notificruton p.1111¢ of : JJnisram is V(JJ _nruy; In order to cmit~nneto rccci\'e ru:itifiomonSiJ it is your - ptll~lbl]rty lo, keep :,'-OU" Cim1l'lct in.fur.motion cumn Vli;tim Spci:aia!list

199 questions,” she wanted to “make sure that they . . . feel like they can trust me.” Villafaña directed the FBI case agents to hand deliver the letters “as they were conducting interviews.” Villafaña told OPR that the USAO had “no standardized way to do any victim notifications prior to” the filing of federal charges, and therefore Villafaña did not use a template or VNS-generated letter for content, but instead used a letter she “had created and crafted [herself] for another case.”277 The letters contained contact information for Villafaña, 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 stated that, in addition to their rights under the CVRA, victims were entitled to counseling, medical services, and potential restitution from the perpetrator, and that, upon request, the government would provide a list of counseling and medical services.278 Lastly, the letters advised that investigators for the defense might contact the victims and those who felt threatened or harassed should contact Villafaña or the FBI case agent. Although the USAO letters did not contain any language limiting CVRA rights to the post- arrest or indictment stage, Villafaña told OPR that she did not intend for the letters to activate the USAO’s CVRA obligations, which she believed attached only after the filing of a criminal charge. Villafaña told OPR that she did not think that victims potentially receiving both an FBI letter and a USAO letter would be confused about their CVRA rights because the USAO letter “was coming with an introduction from the agents [who were hand delivering them].” Later, in the course of the CVRA litigation, Villafaña stated that she and the investigative team “adopted an approach of providing more notice and assistance to potential victims than the CVRA may have required, even before the circumstances of those individuals had been fully investigated and before any charging decisions had been made.”279 Villafaña informed Lourie and Sloman about the letters, but the letters were not reviewed by any of Villafaña’s supervisors, who considered such correspondence to be a non-management task. Acosta told OPR, “I’ve had no other case where I’m even aware of victims being notified, because I assume it all operates without it rising to management level.” Similarly, Menchel told OPR, 277 Villafaña told OPR that she thought that “at one point,” she showed the letter to the USAO’s Victim Witness Specialist who “said it was fine.” The USAO’s Victim Witness Specialist told OPR that because the USAO did not file a charging document in the Epstein matter, the USAO did not obtain VNS information from the FBI and did not assume responsibility 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. 278 Through its administration of the Crime Victims Fund, the Department’s Office for Victims of Crime supports programs and services to help victims of crime. 279 Villafaña informed OPR that, as the USAO Project Safe Childhood Coordinator [focusing on prosecutions of individuals who exploit children through the internet], she “treated the [Guidelines] as a floor and tried to provide a higher standard of contact.”

200 [A]s Chief of the Criminal Division of the USAO, I did not consider it to be within my purview to ensure that appropriate victim notifications occurred in every matter investigated or brought by 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 time that we met [with] the girls.” The case agent recalled that she hand delivered the USAO letters and FBI letters to some victims following in-person interviews, and in the instances when she did not provide a victim with a letter, she provided an FBI pamphlet containing CVRA rights information similar to that set forth in the FBI letters.280 The co-case agent also recalled that he may have delivered “a few” letters to victims. The FBI Victim Specialist told OPR that she mailed some FBI letters to victims and she provided some FBI letters to the case agent for hand delivery. Nevertheless, the case agent told OPR that she “did not sit there and go through every right” with the victims. She stated, however, “[I]n the beginning whether it was through [the FBI Victim Specialist] giving the letter, me giving a letter, the pamphlet, I believed that the girls knew that they were victims and had rights, and they had a resource, [the FBI Victim Specialist], that they could call for that.” The FBI case agent further explained that once the case agents connected the FBI Victim Specialist with each victim, the Victim Specialist handled the victims’ “rights and resources.” VI. AUGUST 2006 – SEPTEMBER 2007: FBI AND USAO CONTACTS WITH VICTIMS BEFORE THE NPA IS SIGNED Early in the investigation, Villafaña informed her supervisors that, up to that point, “everyone whom the agents have spoken with so far has been willing to tell her story. Getting them to tell their stories in front of a jury at trial may be much harder.” Between August 2006 and September 24, 2007, when the NPA was signed, the FBI case agents interviewed 22 victims. On a few occasions, Villafaña met with victims together with the FBI. Villafaña’s May 1, 2007 draft indictment included substantive crimes against multiple victims, and Villafaña described the circumstances of each of their encounters with Epstein in her prosecution memorandum. There is some evidence indicating that during interviews, some of the victims expressed to the FBI case agents and Villafaña concerns about participating in a federal trial of Epstein, and those discussions touched upon, in broad terms, the victims’ views regarding the desired outcome of the investigation. Before the USAO entered into the NPA, however, no one from the 280 The case 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 me[,] I had pamphlets in my car, or I made sure [the victims had contact information for the FBI’s Victim Specialist].”

201 government informed any victim about the potential for resolving the federal investigation through a state plea. A. The Case Agents and Villafaña Solicit Some Victims’ Opinions about Resolving the Federal Investigation Villafaña told OPR that when she and the case agents met with victims, “we would ask them how they wanted the case to be resolved.”281 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 rights. Some of them wanted him to go to jail. But . . . [s]ome of them talked about bad experiences with the State Attorney’s Office. And so, I felt like sending them back to the State Attorney’s Office was not something that they would have supported. Villafaña told OPR that she also recalled that some victims “expressed . . . concern about their safety,” and were worried that Epstein would find out about their participation in the investigation. In her 2017 declaration submitted in the CVRA litigation, Villafaña stated that the two CVRA petitioners “never communicated [their] desires to me or the FBI case agents and my role was to evaluate the entire situation, consider the input received from all of the victims, and allow the Office to exercise its prosecutorial discretion accordingly.”282 She also noted that some victims “fear[ed] having their involvement with Epstein revealed and the negative impact it would have on their relationships with family members, boyfriends, and others.” In the FBI case agent’s 2017 declaration filed in the CVRA litigation, she stated, “During interviews conducted from 2006 to 2008, no victims expressed a strong opinion that Epstein be prosecuted.” She further described the concerns of some of the victims: Throughout the investigation, we interviewed many [of Epstein’s] victims . . . . A majority of the victims expressed concern about the possible disclosure of their identities to the public. A number of the victims raised concerns about having to testify and/or their parents finding out about their involvement with Mr. Epstein. Additionally, 281 Villafaña created for OPR a chart listing victims identified in the state and federal investigations, with notations indicating several with whom Villafaña recalled discussing their opinions about resolving the case. The chart, however, does not indicate what the victims said, and Villafaña told OPR that the information contained in the chart was based 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 Villafaña 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. 282 In the declaration, Villafaña stated, “Jane Doe 2 specifically told me that she did not want Epstein prosecuted.”

202 for some victims, learning of the Epstein investigation and possible 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 were “strong” and “believable,” she did not encounter any who vigorously advocated for the prosecution of Epstein. Rather, “they were embarrassed,” “didn’t want their parents to know,” and “wanted to forget.”283 As of September 24, 2007, the date the NPA was signed, Villafaña informed Epstein attorney Lefkowitz that she had compiled a preliminary list of victims including “34 confirmed minors” and 6 other potential minor victims who had not yet been interviewed by the FBI.284 Although the government had contacted many victims before the NPA was signed, Villafaña acknowledged during the CVRA litigation that “individual victims were not consulted regarding the agreement.” B. Before the NPA Is Signed, Villafaña Expresses Concern That Victims Have Not Been Consulted Before the NPA was signed, Villafaña articulated to her supervisors concerns about the government’s failure to consult with victims. 1. July 2007: Villafaña’s Email Exchanges with Menchel In July 2007, Villafaña learned that Menchel had discussed with defense counsel Sanchez a possible state resolution to the federal investigation of Epstein. Villafaña was upset by this information, and sent a strongly worded email to Menchel voicing her concerns. (A full account of their email exchange is set forth at Chapter Two, Part One, Section IV.A.2.) In that email, she told him that it was “inappropriate [for you] to make a plea offer that you know is completely unacceptable to the FBI, ICE, the victims, and me. These plea negotiations violate . . . all of the 283 The case agent also noted that the victim who became CVRA petitioner Jane Doe #2 had expressed in her April 2007 video-recorded FBI interview her opinion that “nothing should happen to Epstein.” 284 The “victims’ list” for purposes 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. § 2255.” Although the charges Villafaña proposed on May 1, 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, the proposed charges were based on crimes against 19 victims, but others had been identified for potential inclusion.

203 various iterations of the victims’ rights legislation.”285 Villafaña explained to OPR her reference to the victims: [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.286 In his reply to Villafaña’s email, and after noting that he found her email “totally inappropriate,” Menchel denied that he had violated any Departmental policy, and he noted that “[a]s Chief of the Criminal Division, I am the person designated by the U.S. Attorney to exercise appropriate discretion in deciding whether certain pleas are appropriate and consistent with” Departmental policy. Perceiving Menchel’s rebuke as a criticism of her judgment, Villafaña responded, “[R]aising concerns about the forgotten voices of victims in this case should not be classified as a lapse in judgment” and that her “first and only concern in this case . . . is the victims.” Menchel told OPR that he did not view his conversation with Sanchez as a plea offer, asserted that he was not obligated to consult with victims during preliminary settlement negotiations, and noted that he left the USAO before the NPA was fully negotiated or signed. Menchel told OPR that “you have discussions . . . with [the] defense all the time, and the notion that even just having a general discussion is something that must be vetted with victims . . . is not even . . . in the same universe as to how I think about this.” Menchel also observed that on the very day that Villafaña criticized him for engaging in settlement negotiations without consulting her, the FBI, or the victims, Villafaña had herself sent an email to Sanchez offering “to discuss the possibility of a federal resolution of Mr. Epstein’s case that could run concurrently with any state resolution,” without having spoken to the victims about her proposal.287 285 Villafaña told OPR that “some victims, I felt strongly, would have objected to [a state-only disposition].” Villafaña stated to OPR that at the time Menchel engaged in such negotiations, he would only have been aware of the victim information contained in her prosecution memorandum, which included information about the “effects on the victims” but did not likely contain information as to “how they would like the case resolved.” Villafaña asserted that Menchel “never reached out to any of the victims to find out what their position would be.” Menchel told OPR that the allegations in Villafaña’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 are.” 286 As discussed, the Department’s position at the time was that the CVRA did not apply before charges were filed against a defendant. 287 In commenting on OPR’s draft report, Villafaña’s counsel asserted that her email to Sanchez was intended only to determine whether Epstein was interested in opening plea negotiations.

204 2. Villafaña Asserts That Her Supervisors Gave Instructions Not to Consult Victims about the Plea Discussions, but Her Supervisors Do Not Currently Recall Such Instructions Villafaña told OPR that during an “early” meeting with Acosta, Sloman, and Menchel, which took place when “we were probably just entering into plea negotiations,” she raised the government’s obligation to confer with victims.288 Initially, Villafaña 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, Villafaña recalled that when she raised the issue of notification during the meeting, she was told, “Plea negotiations are confidential. You can’t disclose them.”289 Villafaña remained uncertain who gave her this instruction, but believed it may have been Acosta. Neither Acosta, Sloman, nor Menchel recalled a meeting at which Villafaña was directed not to notify the victims. Acosta told OPR that the decision whether to solicit the victims’ view “is something [that] I think was the focus of the trial team and not something that I was focused on at least at this time,” and he did not “recall discussions about victim notification until after the NPA was signed.” Sloman also told OPR that he did not recall a meeting at which victim notification was discussed. Menchel wrote in his response to OPR, “I have no recollection of any discussions or decisions regarding whether the USAO should notify victims of its intention to enter into a pre-charge disposition of the Epstein matter.” Furthermore, Menchel told OPR he could not think of a reason why the issue of victim notification would have arisen before he left the USAO, because “we were way off from finalizing or having anything even close to a deal,” and it would have been “premature” to consider notification.290 3. September 6, 2007: Villafaña Informs Sloman, Who Informs Acosta, of Oosterbaan’s Opinion That Consultation with Victims Was Required On September 6, 2007, in a lengthy email to Sloman responding to his question about the government’s then-pending offer to the defense, Villafaña raised the victim consultation issue, advising that, “the agents and I have not reached out to the victims to get their approval, which as [CEOS Chief Oosterbaan] politely reminded me, is required under the law” and that “the [PBPD] 288 Villafaña could not recall the specific date of the meeting, but Menchel left the USAO on August 3, 2007. 289 Villafaña also 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.” 290 In commenting on OPR’s draft report, Menchel’s counsel reiterated his contention that Villafaña’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 comments but did not conclude that the evidence to which Menchel’s attorney pointed necessarily refuted Villafaña’s assertion that she had received an instruction from a supervisor not to inform victims about the plea negotiations. However, it is also true that OPR did not find any reference in the emails 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. This is one of several events about which Menchel and Villafaña 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.

205 Chief wanted to know if the victims had been consulted about the deal.”291 Sloman forwarded this email to Acosta. Villafaña 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.” Villafaña did not recall Sloman explaining at the time the reason for that instruction. Villafaña 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 think that we had to consult with victims prior to entering into the NPA,” and “we did not have to seek approval from victims to resolve a case. We did have an obligation to notify them of the resolution in . . . filed cases.” Sloman said that no one other than Villafaña raised the notification issue, and because the USAO envisioned a state court resolution of the matter, Sloman “did not think that we had to consult with victims prior to entering into the NPA.” Lourie told OPR that he had no memory of Villafaña being directed not to speak to the victims about the NPA.292 Similarly, the attorney who assumed Lourie’s supervisory duties after Lourie transitioned to his detail in the Department told OPR that he did not recall any discussions regarding victim notification and he “assumed that was being handled.”293 Acosta did not recall the September 6, 2007 email, but told OPR that “there is no requirement to notify [the victims], because it’s not a plea, it’s deferring in favor of a state prosecution.” Acosta told OPR that he could not recall any “pre-NPA discussions” regarding victim notification or any particular concern that factored into the decision not to consult with the victims before entering into the NPA.294 Ultimately, Acosta 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].” CEOS Chief Oosterbaan told OPR that he disagreed with the USAO’s stance that the CVRA did not require pre-charge victim consultation, but in his view the USAO “posture” was not “an abuse of discretion” or “an ethical issue,” but rather reflected a “serious and legitimate 291 Villafaña told OPR that she referred to Oosterbaan in the email because “he was the head of CEOS and because I think they were tired of hearing me nag them [to notify the victims].” As previously noted, Villafaña’s statement that victim approval had to be obtained was incorrect. Even when applicable, the CVRA only requires consultation with victims, not their approval of a plea agreement. Moreover, Villafaña’s comments concerning the pre-charge application of the USAO’s CVRA obligation to consult with the victims appear at odds with her statement to OPR that the CVRA applied to the USAO only after a defendant was charged and that she did not intend to activate the USAO’s CVRA obligations when she sent letters to victims in August 2006. 292 Lourie noted that during this period, he had left Florida and was no longer the supervising AUSA in the office, but was “help[ing] [] out” from offsite because he had “historical knowledge” of the case. 293 The AUSA who for a time served as Villafaña’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 [NPA] negotiations.” 294 Villafaña 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 victim[s].”

206 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 on this and maybe it doesn’t sway you. You still do what you’re going to do but . . . it’s hard to say it was a complete, completely clean exercise of . . . prosecutorial discretion when [the USAO] didn’t really know what [the victims] would say. Sloman told OPR, “I don’t think we had a concern about entering into the NPA at that point in terms of notifying victims. . . . I was under the perception that once the NPA was entered into and [Epstein] was going to enter a guilty plea in state court that we were going to notify the victims.” VII. SEPTEMBER 24, 2007 – JUNE 30, 2008: AFTER THE NPA IS SIGNED, THE USAO MAKES VARIOUS VICTIM NOTIFICATION DECISIONS The contemporaneous emails make clear that once the NPA was signed, Villafaña and the case agents planned to inform the victims about the resolution of the federal investigation. However, the emails also show that the USAO was unclear about how much information could be given to the victims in light of the NPA’s nondisclosure provision and consulted with Epstein’s defense counsel regarding victim notifications.296 As a result, although the expectation in the USAO was that the victims would be informed about the NPA, the monetary damages provision, and the state plea, the USAO became entangled in more negotiations with the defense attorneys, who strongly objected to the government’s notification plan. In addition, Villafaña and the case agents grew concerned that notifying the victims about the NPA monetary damages provision would damage the victims’ credibility if Epstein breached the NPA and the case went to trial. In the end, Acosta decided to defer to the State Attorney’s discretion whether to notify the victims about the state plea, and information about the NPA and the monetary damages provision was not provided to victims until after Epstein pled guilty in June 2008. 295 Oosterbaan stated that, in retrospect, “maybe I should have been more aggressive with how . . . I dealt with [the USAO].” 296 The NPA nondisclosure provision stated: “The parties anticipate that this agreement will not be made 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.”

207 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 Villafaña on September 24, 2007, defense attorney Lefkowitz asked Villafaña to “do whatever you can to prevent [the NPA] from becoming public.”297 Villafaña 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 as required by law or [FOIA]” and noted that because the USAO would not proactively inform the media about the NPA, “this is the State Attorney[’]s show.”298 Acosta added, “In other words, what more does he want?” Villafaña responded, “My guess is that if we tell anyone else (like the police chief or FBI or the girls), that we ask them not to disclose.” Lourie agreed, noting that “there really is no reason to tell anyone all the details of the non pros or provide a copy. The [PBPD] Chief was only concerned that he not get surprised by all this.”299 Acosta responded that he would set up a call on September 26, 2007, to talk “about who we can tell and how much.”300 Also on September 24, 2007, Villafaña emailed the new West Palm Beach manager to inform him that once the attorney representative was appointed for the victims, she planned to “meet with the girls myself to explain how the system [for obtaining relief under 18 U.S.C. § 2255] will work.” Villafaña also emailed Lefkowitz stating that she planned to discuss with him “what I can tell [the attorney representative] and the girls about the agreement,” and she assured Lefkowitz that her office “is telling Chief Reiter not to disclose the outcome to anyone.” Villafaña also provided Lefkowitz with a list of potential candidates for the attorney representative position and advocated for an attorney representative who would minimize press coverage of the matter. On September 26, 2007, Villafaña emailed Lefkowitz to request guidance on informing the victims about the NPA: “Can you give me a call . . . I am meeting with the agents and want to give them their marching orders regarding what they can tell the girls.” Villafaña told OPR that because the government and the defense had not agreed on the attorney representative for the victims, she reached out to the defense at the direction of either Acosta or Sloman in order to coordinate how to inform the victims about the resolution of the case and the fact that there would be an attorney to assist them in recovering monetary damages from Epstein. Villafaña told OPR that the defense responded to her email by complaining to her supervisors that she should not be 297 Villafaña had assured Lefkowitz that the NPA “would not be made public or filed with the Court, but it would remain part of our case file. It probably would be subject to a FOIA request, but it is not something that we would distribute without compulsory process.” 298 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.” 299 Lourie told OPR that the § 2255 provisions of the NPA “that benefitted 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.

208 involved in such notifications. According to Villafaña, Sloman then directed her to have the case agents make the victim notifications. Accordingly, Villafaña 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 Marie 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.” Villafaña believed that if “victims were properly notified of the terms [of the NPA] that applied to them, regarding their right to seek damages from [Epstein], and he paid those damages, that the rest of the [NPA] doesn’t need to be disclosed.” Villafaña “anticipated that [the case agents] would be able to inform the victims of the date of the state court change of plea [hearing], but that date had not yet been set by state authorities at the time the first victims were notified [by the FBI].” Villafaña told OPR that it was her belief that because the USAO had agreed to a confidentiality clause, the government could not disclose the NPA to the general public, but victims could be informed “because by its terms they needed to be told what the agreement was about.” Villafaña told OPR that no one in her supervisory chain expressed a concern that if victims learned of the NPA, they would try to prevent Epstein from entering a plea. Within a week after the NPA was signed, news media began reporting that the parties had reached a deal to resolve the Epstein case. For example, on October 1, 2007, the New York Post reported that Epstein “has agreed to plead guilty to soliciting underage prostitutes at his Florida mansion in a deal that will send him to prison for about 18 months,” and noted that Epstein would plead guilty in state court and that “the feds have agreed to drop their probe into possible federal criminal violations in exchange for the guilty plea to the new state charge.”301 The case agent recalled informing some victims that “there was an agreement reached” and “we would not be pursuing this federally.” In October 2007, for example, the case agents met with victim Courtney Wild, “to advise her of the main terms of the Non-Prosecution Agreement.” According to the case agent, during that meeting, the case agents told Wild “that an agreement had been reached, Mr. Epstein was going to plead guilty to two state charges, and there would not be a federal prosecution.”302 However, in a declaration filed in 2015 in the CVRA litigation, Wild described the conversation differently: [T]he agents explained that Epstein was also being charged in State court and may plea [sic] to state charges related to some of his other victims. I knew that State charges had nothing to do with me. 301 Dan Mangan, “‘Unhappy Ending’ Plea Deal—Moneyman to Get Jail For Teen Sex Massages,” New York Post, Oct. 1, 2007. See also “Model Shop Denies Epstein Tie,” New York Post, Oct. 6, 2007; “Andrew Pal Faces Sex List Shame,” Mail on Sunday, Oct. 14, 2007; “Epstein Eyes Sex-Rap Relief,” New York Post, Oct. 9, 2007; “Sex Case ‘Victims’ Lining Up,” New York Post “Page Six,” Oct. 15, 2007; Dareh Gregorian and Mathew Nestel, “I Was Teen Prey of Pervert Tycoon,” New York Post, Oct. 18, 2007. The following month, the Palm Beach Post reported the end of the federal investigation as well. See “Epstein Has One Less Worry These Days,” Palm Beach Post, Nov. 9, 2007; “How Will System Judge Palm Beach Predator?,” Palm Beach Post “Opinion,” Nov. 16, 2007. 302 The co-case agent recalled meeting with the victims about the resolution of the case, but could not recall the specifics of the discussions.

209 During this meeting, the Agents did not explain that an agreement 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 their reactions to Villafaña in an email: Jane Doe #14 asked me why [Epstein] was receiving such a lite [sic] jail sentence and Jane Doe #13 has asked for our Victim Witness coordinator to get in touch with her so she can receive some much needed [p]rofessional counseling. Other than that, their response was filled with emotion and grateful to the Federal authorities for pursuing justice and not giving up.303 The case agent told OPR that when she informed one of these victims, that individual cried and expressed “a sense of relief.” Counsel for “Jane Doe #13” told OPR that while his client recalled meeting with the FBI on a number of occasions, she did not recall receiving any information about Epstein’s guilty plea. In a letter to OPR, “Jane Doe #14’s” attorney stated that although her client recalled speaking with an FBI agent, she was not told about the NPA or informed that Epstein would not face federal charges in exchange for his state court plea. After meeting with these three victims, the FBI case agent became concerned that, if Epstein breached the NPA and the case went to federal trial, the defense could use the victims’ knowledge of the NPA’s monetary damages provision as a basis to impeach the victims.304 The case agent explained to OPR that she became “uncomfortable” talking to the victims about the damages provision, and that as the lead investigator, “if we did end up going to trial . . . [if] Mr. Epstein breached this that I would be on the stand” testifying that “I told every one of these girls that they could sue Mr. Epstein for money, and I was not comfortable with that, I didn’t think it was right.” Similarly, the co-case agent told OPR, “[T]hat’s why we went back to Marie [Villafaña] and said we’re not comfortable now putting this out there . . . because . . . it’s likely that [the case agent] and I are going to have to take the stand if it went to trial, and this could be a problem.” Villafaña told OPR that the case agents were concerned they would be accused of “offering a bribe 303 The case agent did not record any of the victim notifications in interview reports, because “it wasn’t an interview of them, it was a notification. . . . [I]f 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 report].” 304 Within limitations set by the Federal Rules of Evidence, a defendant may attack the credibility of a witness through evidence of bias, which may include the witness having received money, or expecting to receive money, from the government, the defendant, or other sources as a result of the witness’s allegations or testimony.

210 for [victims] to enhance their stories” and that the defense would try to have Villafaña or the case agents removed from the case. Both the lead case agent and Villafaña told OPR that after the FBI raised with Villafaña 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. Villafaña 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 2017 CVRA declaration, the case agent stated that after conferring with the USAO, the case agents stopped notifying victims about the NPA. B. October 2007: Defense Attorneys Object to Government Victim Notifications While the case agents and Villafaña considered the impact that notifying the victims about the resolution of the case might have on a potential trial, defense counsel also raised concerns about what the victims could be told about the NPA. As discussed in Chapter Two, after the NPA was signed on September 24, 2007, the USAO proposed using a special master to select the attorney representative for the victims, which led to further discussions about the § 2255 provision. On October 5, 2007, when defense attorney Lefkowitz sent Villafaña a letter responding to the USAO’s proposal to use a special master, he cautioned that “neither federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the case” because such communications would “violate the confidentiality of the agreement” and would prevent Epstein from having control over “what is communicated to the identified individuals at this most critical stage.” Lefkowitz followed this communication with an October 10, 2007 letter to Acosta, arguing that “[n]either federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the case.”306 Rather, Lefkowitz wanted to “participate in crafting a mutually acceptable communication to the identified individuals.” On October 23, 2007, Villafaña raised the issue of victim notification with Sloman, stating: We also have to contact the victims to tell [them] about the outcome of the case and to advise them that an attorney will be contacting them regarding possible claims against Mr. Epstein. If we don’t do that, it may be a violation of the Florida Bar Rules for the selected attorney to ‘cold call’ the girls. As discussed in greater detail in Chapter Two, on October 23, 2007, Lefkowitz sent Acosta a letter stating that Epstein expected to enter a guilty plea in state court on November 20, 2007, 305 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. Villafaña 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 [any] context for it.” 306 Lefkowitz also argued that direct contact with the victims could violate grand jury secrecy rules.

211 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.”307 Shortly thereafter, Sloman drafted a response to Lefkowitz’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 obligation to contact the victims to inform them that either [the Special Master], or his designee, will be contact[ing] them. Rest assured that we will continue to treat this matter as we would any similarly situated case.308 In a November 5, 2007 letter, Sloman complained to Lefkowitz that private investigators working for Epstein had been contacting victims and asking whether government agents had discussed financial settlement with them. Sloman noted that the private investigators’ “actions are troublesome because the FBI agents legally are required to advise the victims of the resolution of the matter, which includes informing them that, as part of the resolution, Mr. Epstein has agreed to pay damages in some circumstances.” The same day, Villafaña emailed Sloman expressing her concern that “if we [file charges] now, cross-examination will consist of- ‘and the government told you that if Mr. Epstein is convicted, you are entitled to a large amount of damages, right?’”309 C. October – November 2007: The FBI and the USAO Continue to Investigate, and the FBI Sends a Notice Letter to One Victim Stating That the Case is “Under Investigation” Although Villafaña and the FBI case agents decided to stop informing victims about the NPA, the FBI continued its investigation of the case, which included locating and interviewing potential victims. In October and November 2007, the FBI interviewed 12 potential new victims, 8 of whom had been identified in a “preliminary” victim list in use at the time Epstein signed the 307 Villafaña later emailed Sloman stating that she planned to meet with the case agents to have a “general discussion about staying out of the civil litigation.” 308 Sloman’s draft also stated that Acosta had informed the defense in a previous conference call that the USAO would not accept a “gag order.” OPR recovered only a draft version of the communication and was unable to find any evidence 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 emailed Villafaña, Acosta, and Sloman expressing his understanding that the “victims were not consulted [concerning the NPA] . . . because [the USAO] did not believe the [CVRA] 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 [a] key part of [the] agree[ment].”

212 NPA.310 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. Villafaña 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 case 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, describing the case as “under investigation” and requesting the victim’s “patience.” The letter listed the eight CVRA rights, but made no mention of the NPA or the § 2255 provision. Villafaña told OPR she was unaware the FBI sent the letter, but she knew “there were efforts to make sure that we had identified all victims of the crimes under investigation.” In response to OPR’s questions about the accuracy of the FBI letter’s characterization of the case as “under investigation,” Villafaña told OPR that the NPA required Epstein to enter a plea by October 26, 2008, and “at this point we weren’t actively looking for additional charges,” but “the investigation wasn’t technically suspended until he completed all the terms of the NPA.” D. The USAO Informs the Defense That It Intends to Notify Victims by Letter about Epstein’s State Plea Hearing and the Resolution of the Federal Investigation, but the Defense Strongly Objects to the Notification Plan In anticipation of Epstein’s state court plea, Villafaña reported on November 16, 2007, to Acosta, Sloman, and other supervisors that she had learned, from FBI agents who met with Assistant State Attorney Belohlavek, that the State Attorney’s Office wanted the USAO to notify victims of the state plea hearing. [Belohlavek] would still like us to do the victim notifications. The State does not have a procedure (like we do federally) where the Court has to provide a separate room for victims who want to attend judicial proceedings, so I do not know how many victims will actually want to be present.311 Belohlavek told OPR that she did not recall the conversation referenced by the FBI nor any coordination between her office and federal officials to contact or notify victims about Epstein’s state plea hearing. On November 19, 2007, Villafaña decided that to avoid any misconduct accusations from the defense about the information given to victims, she “would put the victim notification in writing.” She 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, one 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. 311 Villafaña told OPR that she understood the state took the position that because “there was either only one or two victims involved in their case,” they “could not do victim notifications to all of the victims.”

213 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 Villafaña exchanged edits on the draft victim notification letter, and Villafaña 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 “statutory obligation (Justice for All Act of 2004) to notify the victims of the anticipated upcoming events and their rights associated with the agreement” and his intent to “notify the victims by letter after COB Thursday, November 29.” Lefkowitz objected to the proposal to notify the victims, asserting that it was “incendiary and inappropriate” and not warranted under the Justice for All Act of 2004. He argued that the defense “should have a right to review and make objections to that submission prior to it being sent to any alleged victims.” He also insisted that if any notification letters were sent to “victims, who still have not been identified to us, it should happen only after Mr. Epstein has entered his plea” and that the letter should come from the attorney representative rather than the government. On November 28, 2007, at Sloman’s instruction, Villafaña provided Lefkowitz with the draft victim notification letter, which would advise victims that the state court plea was to occur on December 14, 2007.313 In a November 29, 2007 letter to Acosta, Lefkowitz strongly objected to the proposed draft notification letter, arguing that the government was not obligated to send any letter to victims until after Epstein’s plea and sentencing. Lefkowitz also contended that the victims had no right to appear at Epstein’s state plea hearing and sentencing or to provide a written statement for such a proceeding. In a November 30, 2007 reply letter to Lefkowitz, Acosta did not address the substance of Lefkowitz’s arguments, but accused the defense team of “in essence presenting collateral challenges” delaying effectuation of the NPA, and asserted that if Epstein was dissatisfied with the NPA, “we stand ready to unwind the Agreement” and proceed to trial. Shortly thereafter, Acosta informed defense counsel Starr by letter that he had directed prosecutors “not to issue victim notification letters until this Friday [December 7] at 5 p.m., to provide you with time to review these options with your client.” In the letter, Acosta also refuted defense allegations that Villafaña had acted improperly by informing the victims of the potential for receiving monetary damages, stating that “the victims were not told of the availability of Section 2255 relief during the investigation phase of this matter.” On December 5, 2007, Starr and Lefkowitz sent a letter to Acosta, with copies to Sloman and Assistant Attorney General Fisher, “reaffirm[ing]” the NPA, but taking “serious issue” with 312 On November 28, 2007, two months after the NPA was signed, the lead case agent informed Villafaña 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 Villafaña that she was “still holding many of the original V/W letters addressed to victims from the USAO.” 313 Villafaña understood the state prosecutors had set the December 14, 2007 date, and emailed them for confirmation, stating, “[I]f the matter is set for the 14th, please let me know so I can include that in my victim notifications.”

214 the USAO’s interpretation of the agreement and “the use of Section 2255.” The Starr and Lefkowitz letter asserted it was “wholly inappropriate” for the USAO to send the proposed victim notification letter “under any circumstances,” and “strongly urg[ed]” Acosta 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 Villafaña, 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 the VRRA obligated the government to provide the victims with information concerning restitution to which they may be entitled and “the earliest possible” notice of the status of the investigation, the filing of charges, and the acceptance of a plea.314 (Emphasis in original). Sloman added: Just as in 18 U.S.C. § 3771 [the CVRA], these sections are not limited to proceedings in a federal district court. Our Non- Prosecution Agreement resolves the federal investigation by allowing Mr. Epstein to plead to a state offense. The victims identified through the federal investigation should be appropriately informed, and our Non-Prosecution Agreement does not require the U.S. Attorney’s Office to forego [sic] its legal obligations.315 Sloman also addressed the defense objection to advising the victims to contact Villafaña or the FBI case agent with questions or concerns: “Again, federal law requires that victims have the ‘reasonable right to confer with the attorney for the Government in this case.’” Sloman advised the defense: “The three victims who were notified prior to your objection had questions directed to Mr. Epstein’s punishment, not the civil litigation. Those questions are appropriately directed to law enforcement.” Along with this letter, Sloman forwarded to Lefkowitz for comment a revised draft victim notification letter that was substantially similar to the prior draft provided to the defense. The letter stated that “the federal investigation of Jeffrey Epstein has been completed,” Epstein would plead guilty in state court, the parties would recommend 18 months of imprisonment at sentencing, and Epstein would compensate victims for damage claims brought under 18 U.S.C. § 2255. The letter provided specific information concerning the upcoming change of plea hearing: As I mentioned above, as part of the resolution of the federal investigation, Mr. Epstein has agreed to plead guilty to state charges. Mr. Epstein’s change of plea and sentencing will occur on December 14, 2007, at ___ a.m., before Judge Sandra K. McSorley, 314 See 42 U.S.C. § 10607(c)(1)(B) and (c)(3). 315 Emphasis in original. Sloman also stated that the USAO did not seek to “federalize” a state plea, but “is simply informing the victims of their rights.” Villafaña informed OPR that Sloman approved and signed the letter, but she was the primary author of the document. OPR notes that Villafaña 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.

215 in Courtroom 11F at the Palm Beach County Courthouse, 205 North Dixie Highway, West Palm Beach, Florida. Pursuant to Florida Statutes Sections 960.001(1)(k) and 921.143(1), you are entitled 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 Attorney’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 of earnings directly or indirectly resulting from the crime for which the defendant is being sentenced, and any matter relevant to an appropriate disposition and sentence. Fl[a]. Stat. [§] 921.143(2). Sloman told OPR that he was “proceeding under the belief that we were going to notify [the victims], even though it wasn’t a federal case. Whether we were required or not.” Sloman also told OPR that while “we didn’t think that we had an obligation to send them victim notification letters . . . I think . . . Marie and . . . the agents . . . were keeping the victims apprised at some level.” On December 7, 2007, Villafaña prepared letters containing the above information to be sent to multiple victims and emailed Acosta and Sloman, requesting permission to send them.316 Sloman, however, had that day received a letter from Sanchez, advising that Epstein’s plea hearing was scheduled for January 4, 2008, and requesting that the USAO “hold off” sending the victim notification letters until “we can further discuss the contents.” Also that day, Starr and Lefkowitz submitted to Acosta the two lengthy “independent ethics opinions” supporting the defense arguments against the federal investigation and the NPA’s use of 18 U.S.C. § 2255. Sloman responded to Villafaña’s request with an email instructing her to “Hold the letter.”317 Sloman told OPR that he “wanted to push the [victim notification] letter out,” but his instruction to Villafaña was “the product of me speaking to somebody,” although he could not be definitive as to whom. Sloman further told OPR that once the NPA “looked like it was going to fall apart,” the USAO “had concerns that if we g[a]ve them the victim notification letter . . . and the deal fell apart, then the victims would be instantly impeached by the provision that you’re entitled to monetary compensation.” On December 10, 2007, Villafaña contacted the attorney who at the time represented the victim who later became CVRA petitioner “Jane Doe #2” to inform him that she “was preparing victim notification letters.” In her 2017 declaration filed in the CVRA litigation, Villafaña noted that she reached out to Jane Doe #2’s counsel, despite the fact that the USAO no longer considered 316 The FBI case agent had emailed Villafaña 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 federal law.” 317 Villafaña told OPR that she did not recall asking Sloman for an explanation for not sending the letters; rather, she “just remember[ed] putting them all in the Redweld and putting them in a drawer and being disgusted.”

216 her a victim for purposes of the federal charges, and continued to treat her as 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 Victims of the State Plea Hearing, but the USAO Would Notify Them of the Federal Resolution, “as Required by Law” On December 11, 2007, Starr transmitted to Acosta two lengthy submissions authored by Lefkowitz presenting substantive challenges to the NPA and to “the background and conduct of the investigation” into Epstein. Regarding issues relevant to victim notification, in his transmittal letter, Starr asserted that the “latest episodes involving [§] 2255 notification to the alleged victims put illustratively in bold relief our concerns that the ends of justice, time and time again, are not being served.” By way of example, Starr complained the government had recently inappropriately provided “oral notification of the victim notification letter” to one girl’s attorney, even though it was clear from the girl’s recorded FBI interview that she “did not in any manner view herself as a victim.” In his submissions, Lefkowitz argued that the government was not required to notify victims of the § 2255 provision: Villafaña’s decision to utilize a civil remedy statute in the place of a restitution fund for the alleged victims eliminates the notification requirement under the Justice for All Act of 2004, a federal law that requires federal authorities to notify victims as to any available restitution, not of any potential civil remedies. Despite this fact, [she] proposed a Victims Notification letter to be sent to the alleged federal victims. Lefkowitz also argued that a victim trust fund would provide a more appropriate mechanism for compensating the victims than the government’s proposed use of 18 U.S.C. § 2255, and a trust fund would not violate Epstein’s due process rights. Lefkowitz took issue with the government’s “assertion” that the USAO was obligated to send a victim notification letter to the alleged victims, or even that it was appropriate for the USAO to do so. Lefkowitz further argued that the government misinterpreted both the CVRA and the VRRA, because neither applied to a public, state court proceeding involving the entry of a plea on state charges. In a letter from Villafaña to Lefkowitz, responding to his allegations that she had committed misconduct, 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. Villafaña told OPR she was instructed by either Sloman or Acosta “not to consider [this individual] as a victim for purposes of the NPA because she was not someone whom the Office was prepare[d] 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.

217 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 trial would only undermine my case. If my reassurances are insufficient the fact that not a single victim has threatened to sue Mr. Epstein should assure you of the integrity of the investigation. On December 14, 2007, Villafaña forwarded to Acosta the draft victim notification letter previously sent to the defense, along with two draft letters addressed to State Attorney Krischer; Villafaña’s transmittal email to Acosta had the subject line, “The letters you requested.” One of the draft letters to Krischer, to be signed by Villafaña, was to advise that the USAO had sent an enclosed victim notification letter to specified identified victims and referred to an enclosed “list of the identified victims and their contact information, in case you are required to provide them with any further notification regarding their rights under Florida law.”319 The second draft letter to Krischer, for Acosta’s signature, requested that Krischer respond to defense counsel’s allegations that the State Attorney’s Office was not comfortable with the proposed plea and sentence because it believed that the case should be resolved with probation and no sexual offender registration. OPR found no evidence that these letters were sent to Krischer.320 A few days later, in an apparent effort to move forward with victim notifications, Villafaña emailed Sloman, stating, “[Is there] anything that I or the agents should be doing?” Villafaña told Sloman that “[the FBI case agent] is all worked up because another agent and [a named AUSA] are the subject of an OPR investigation for failing to properly confer with and notify victims [in an unrelated matter]. We seem to be in a Catch 22.”321 OPR did not find a response to Villafaña’s email. In their December 14, 2007 meeting with Acosta and other USAO personnel and in their lengthy follow-up letter to Acosta on December 17, 2007, Starr and Lefkowitz continued to press their objections to the USAO’s involvement in the Epstein matter. They requested that Acosta 319 The draft victim notification letter was identical to the draft victim notification letter sent to the defense on December 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/stateattorney/NewsRoom/indexPR htm. 321 OPR was unable to locate any records indicating that such allegations had ever been referred to OPR. Villafaña told OPR that “Catch 22” was a reference to instructions from supervisors “[t]hat we can’t go forward on” filing federal charges and “I was told not to do victim notifications and confer at the time.”

218 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 the state proceedings: I understand that the defense objects to the victims being given notice of [the] time and place of Mr. Epstein’s state court 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 [the CVRA] applies to notice of proceedings and results of investigations of federal crimes as opposed to the state crime. We intend to provide victims with notice of the federal resolution, as required by law. We will defer to the discretion of the State Attorney regarding whether he wishes to provide victims with notice of the state proceedings, although we will provide him with the information necessary to do so if he wishes. Acosta told OPR that he “would not have sent this letter without running it by [Sloman], if not other individuals in the office,” and records show he sent a draft to Sloman and Villafaña. Acosta explained to OPR that he was not concerned about deferring to Krischer on the issue of whether to notify the victims of the state proceedings because he did not view it as his role, or the role of the USAO, “to direct the State Attorney’s Office on its obligations with respect to the state outcome.”322 Acosta further explained to OPR that despite the USAO’s initial concerns about the State Attorney’s Office’s handling of the Epstein case, he did not believe it was appropriate to question that office’s ability to “fulfill whatever obligation they have,” and he added, “Let’s not assume . . . that the State Attorney’s Office is full of bad actors.” Acosta told OPR that it was his understanding “that the victims would be aware of what was happening in the state court and have an opportunity to speak up at the state court hearing.” Acosta also told OPR that the state would 322 Sloman’s handwritten notes from a December 21, 2007 telephone conference indicate that Acosta asked the defense, “Are there concerns re: 3771 lang[uage],” to which Lefkowitz replied, “The state should have their own mechanism.” 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. Const. art. I, § 16(b)(6). Similarly, pursuant to state statute, “Law enforcement personnel shall ensure” that victims are given information about “[t]he stages in the criminal or juvenile justice process which are of significance to the victim[.]” Fla. Stat. § 960.001(1)(a) (2007). Victims were also entitled to submit an oral or 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(1)(g) (2007).

219 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.”323 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 team, and that I did not provide, suggest, or edit the language.” Sloman told OPR that he initially believed that “the victims were going to be notified at some level, especially because they had restitution rights under § 2255”; but, his expectations changed after “there was an agreement made that we were going to allow the state, since it was going to be a state case, to decide how the victims were going to be notified.” Assistant State Attorney Belohlavek told OPR that she did not at any time receive a victim list from the USAO. She further said she did not receive any request from the USAO with regard to contacting the victims. In response to Acosta’s December 19, 2007 letter, Lefkowitz asserted that the FBI should not communicate with the victims, and that the state, not the USAO, should determine who can be heard at the sentencing hearing: [Y]our letter also suggests that our objection to your Office’s proposed victims notification letter was that the women identified as victims of federal crimes should not be notified of the state proceedings. That is not true, as our previous letter clearly states. Putting aside our threshold contention that many of those to whom [CVRA] notification letters are intended are in fact not victims as defined in the Attorney General’s 2000 Victim Witness Guidelines—a status requiring physical, emotional or pecuniary injury of the [victim]—it was and remains our position that these women may be notified of such proceedings but since they are neither witnesses nor victims to the state prosecution of this matter, they should not be informed of fictitious “rights” or invited to make sworn written or in-court testimonial statements against Mr. Epstein at such proceedings, as Ms. Villafaña repeatedly maintained they had 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 323 In his June 3, 2008 letter to Deputy Attorney General Mark Filip, Sloman wrote, “Acosta again consulted with DAAG Mandelker who advised him to make the following proposal [to defer notification to the State Attorney’s Office].” OPR found no other documentation relating to Mandelker’s purported involvement in the decision.

220 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 Acosta and Lefkowitz, in which Acosta asked that the defense clarify its positions on the USAO proposals regarding, among other things, notifications to the victims, Lefkowitz 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 result of an offense charged in federal district court, and Epstein had not been charged in federal court. Nevertheless, Lefkowitz added that, despite their objection to CVRA notification, “[W]e do not object (as we made clear in our letter last week) that some form of notice be given to the alleged victims.” Lefkowitz requested both that the defense be given an opportunity to review any notice sent by the USAO, and that “any and all notices with respect to the alleged victims of state offenses should be sent by the State Attorney rather than [the USAO],” and he agreed that the USAO “should defer to the discretion of the State Attorney regarding all matters with regard to those victims and the state proceedings.” Months later, in April 2008, Epstein’s attorneys complained in a letter to Mandelker that Sloman and Villafaña committed professional misconduct by threatening to send a “highly improper and unusual ‘victim notification letter’ to all” victims. F. January – June 2008: While the Defense Presses Its Appeal to the Department in an Effort to Undo the NPA, the FBI 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 defense employed various measures to delay, or avoid entirely, implementation of the NPA. Ultimately, defense counsel’s advocacy resulted in the USAO’s decision to have the federal case reviewed afresh. A review of the evidence was undertaken first by USAO Criminal Chief Robert Senior and then, briefly, by an experienced CEOS trial attorney. A review of the case in light of the defense challenges was then conducted by CEOS Chief Oosterbaan, in consultation with his staff and with Deputy Assistant Attorney General Sigal Mandelker and Assistant Attorney General Alice Fisher, and then by the Office of the Deputy Attorney General. Each review took weeks and delayed Epstein’s entry of his state guilty plea. As set forth below, during that time, Villafaña and the FBI continued investigating and working toward potential federal charges. 1. Villafaña 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.

221 “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,” Villafaña came to believe that Epstein would likely breach the NPA.326 In January 2008, Villafaña 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 contact with the vast majority of the victims.” Villafaña then proposed that the FBI “re-establish contact with all the victims so that we know we can rely on them at trial.”327 Villafaña told OPR that at this point, “[w]hile the case was being investigat[ed] and prepared for indictment, I did not prepare or send any victim notification letters—there simply was nothing to update. I did not receive any victim calls during this time.” 2. The FBI Uses VNS Form Letters to Re-Establish Contact with Victims On January 10, 2008, the FBI Victim Specialist mailed VNS generated victim notification letters to 14 victims articulating the eight CVRA rights and inviting recipients to update their contact information with the FBI in order to obtain current information about the matter.328 The case agent informed Villafaña in an email that the Victim Specialist sent a “standard form [FBI] letter to all the remaining identified victims.” These 2008 letters were identical to the FBI form letters the Victim Specialist had sent to victims between August 28, 2006, and October 12, 2007. Like those previous letters, most of which were sent before the NPA was signed on September 24, 2007, the 2008 letters described the case as “currently under investigation” and noted that “[t]his can be a lengthy process and we request your continued patience while we conduct a thorough investigation.” The letters also stated: 325 Michele Dargan, “Jeffrey Epstein Plea Hearing Moved to March,” Palm Beach Daily News “The Shiny Sheet,” Jan. 3, 2008. 326 Epstein’s attorneys used discovery proceedings in the state case to depose federal victims, and as they learned unflattering details or potential impeachment information concerning likely federal victims, they argued for the exclusion of those victims from the federal case. For example, defense attorneys questioned one victim as to whether the federal prosecutors or FBI agents told her that she was entitled to receive money from Epstein. See Exhibit 9 to Villafaña June 2, 2017 Declaration: Deposition of [REDACTED], State v. Epstein, Case No. 2006-CF-9454, at 44, 50, 51 (Feb. 20, 2008). One victim’s attorney told OPR that the defense attorneys tried to “smear” victims by asking highly personal sexual questions about “terminations of pregnancies . . . sexual encounters . . . masturbation.” Epstein’s attorney used similar tactics in questioning victims who filed civil cases against their client. For example, the Miami Herald reported that, “One girl was asked about her abortions, and her parents, who were Catholic and knew nothing about the abortions, were also deposed and questioned.” See Julie Brown, “Perversion of Justice: Cops Worked to Put a Serial Sex Abuser in Prison. Prosecutors Worked to Cut Him a Break,” Miami Herald, Nov. 28, 2018. 327 Villafaña also told her supervisors that she wanted the FBI to interview two specific victims. 328 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.

222 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 Villafaña 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 their letter.” A sample letter is shown on the following pages. Villafaña told OPR that she did not recall discussing the content of the letters at the time they were sent to the victims, or reviewing the letters until they were collected for the CVRA litigation, sometime after July 2008. Rather, according to Villafaña, “The decision to issue the letter and the wording of those letters were exclusively FBI decisions.” Nevertheless, Villafaña asserted to OPR that from her perspective, the language regarding the ongoing investigation “was absolutely true and, despite being fully advised of our ongoing investigative activities, no one in my supervisory chain ever told me that the case was not under investigation.” Villafaña identified various investigative activities in which she engaged from “September 2007 until the end of June 2008,” such as collecting and reviewing evidence; interviewing new victims; re-interviewing victims; identifying new charges; developing new charging strategies; drafting supplemental prosecution memoranda; revising the charging package; and preparing to file charges. Similarly, the FBI case agent told OPR that at the time the letters were sent the “case was never closed and the investigation was continuing.” The co-case agent stated that the “the case was open . . . it’s never been shut down.” Victim Courtney Wild received one of the January 10, 2008 FBI letters; much later, in the course of the CVRA litigation, she stated that her “understanding of this letter was that [her] case was still being investigated and the FBI and prosecutors were moving forward on the Federal prosecution of Epstein for his crimes against [her].”329 329 CVRA petitioner Jane Doe #2 also received a January 10, 2008 FBI letter that was sent to her counsel.

223 Jan1Jary 10, 2008 Re: case Number. Dear u.s. Department of JusUce Federal Bureau of Investigation FBI - West Palm Beach Suite 600 506 South Flagler Drive West Palm Beach, Fl 33401 Phone; (561) 833-7517 Fax: (561) 833-7970 This case Is currently under invesllgallon. This can be a lengthy process and we request your contlnu&d patience while we conduct a thorough inveslfgation. As a crime victim, y•ou have the following rights under 18 United States C-Ode § 3771: (1) The right to be reasonably protected from Uie accused;· (2) The right to reasonable, accurate, and timely nollce of any publlc court proceeding, or any parole proceedl119, lnvoMng the crime or of any 1relaasa or escape of the accused; (3) The right not to be excluded from any such publfo oourt prooeedin9, unless Iha court, after receMng cteer and oonvlnclng evidence, determfnes that testimony by the vlctlm would be materlall;' altered if the ,,1011111 h9ard olht!f l11sUmony !ii ltuit p1oceedlng; (4) Thet right to be reuonably heard at ilny publiv proceeding In lhe dl~lrlct co·urt involving release. plea, sentencing, or any parola· proc1:1eding; (5) Tha reasonable right to confer with the altomey for tho Government In the case; (6) The right to full and timely restitution as provided In law: (7) The rlght to proceedings free from unraasonab'la delay; (8) The right to be treated wfth fairness and wllh respect ror the victim's dignity and privacy. We wi!I make our best efforts to ensure you aro aooorded Iha rights described. Most or these rights pertain to events occurring after the airest or Indictment of an lndlvlduaf for the crime, ~nd It will become the responslbiUly of the prosec1.1ting United Stat&s Attorney'~ Office to ensure you are accorded those rights. You may also seek the advlce of II private attorney with respect to theee right&, The Vfotim Notl1lcaNon Syetem (VNS) Is designed to provide you wilh direct information regarding the case as It prooeecls through !he criminal Justice system. Yoo may obtain cu • • r on the Internet at WWW.No1l .USDOJ.GOV or from the VNS Call Oanler at In addition, you may use the Cell Center or Internet to llf)date your contact tnfoimauon and/or change your decision aboul participation In the noliRcaUon program. If you update your information lo Include a current email address, VNS wm send lnformaUon to tnat address. You will need the following Vlctim'ldentif,catlon Number (VIN) ~ nd Personal ldenllfloation Number (PIN) nytime you cootact the Call Center and 1he 0rst ~me you log on to VNS on the Internet. In addition, the first time you access the VNS Internet site, you wm be prompted to enter your last name (or business· name) as currently colilained In VNS. The name you should enter Is-

224 3. Villafaña, the FBI, and the CEOS Trial Attorney Interview Victims As Villafaña resumed organizing the case for charging and trial, the FBI case agent provided Villafaña with a list of “the 19 identified victims we are planning on using in” the federal charges and noted that she and her co-case agent wanted to further evaluate some additional victims.330 In Washington, D.C., CEOS assigned a Trial Attorney to the Epstein case in order to bring expertise and “a national perspective” to the matter.331 On January 18, 2008, one attorney representing a victim and her family contacted Sloman by telephone, stating that he planned to file civil litigation against Epstein on behalf of his clients, who were “frustrated with the lack of progress in the state’s investigation” of Epstein. The attorney asked Sloman if the USAO “could file criminal charges even though the state was looking into the matter,” but Sloman declined to answer his questions concerning the investigation.332 In late January, the New York Post reported that the attorney’s clients had filed a $50 million civil suit against Epstein in Florida and that “Epstein is expected to be sentenced to 18 months in prison when he pleads guilty in March to a single charge of soliciting an underage prostitute.”333 Between January 31, 2008, and May 28, 2008, the FBI, with the prosecutors, interviewed additional victims and reinterviewed several who had been interviewed before the NPA was signed.334 In late January 2008, as Villafaña and the CEOS Trial Attorney prepared to participate 330 The case agent also informed Villafaña that she expected to ask for legal process soon in order to obtain additional information. 331 The CEOS Trial Attorney told OPR that she was under the impression that she was brought in to help prepare for the trial because the “plea had fallen through.” 332 Because Sloman and the attorney were former legal practice partners, Sloman reported the interaction to Acosta, and the USAO reported the incident to OPR shortly thereafter. OPR reviewed the matter as an inquiry and determined that no further action was warranted. 333 Dareh Gregorian, “Tycoon Perved Me at 14 - $50M Suit Hits NY Creep Over Mansion Massage,” New York Post, Jan. 25, 2008. 334 An FBI interview report from May 28, 2008, indicates that one victim “believes Epstein should be prosecuted for his actions.” if you have addftiohal questions which Involve this matter, please contact the office listed above. When you call, please provfde the file number located at the top of this lelter. Please remember, your participation In the notlflcatlon part or fhis program is voluntary. In order to continue to receive notlf!catlons, It is your responsiblllty to keep your contact information current. Sincerely,

225 in FBI interviews of Wild and other victims, Villafaña informed CEOS Chief Oosterbaan that she anticipated the victims “would be concerned about the status of the case.” On January 31, 2008, Villafaña, the CEOS Trial Attorney, and the FBI interviewed three victims, including Wild. Prior to the interview, Wild had received the FBI’s January 10, 2008 letter stating that the case was under investigation; however, according to the case agent, Wild and two other victims had also been told by the FBI, in October 2007, that the case had been resolved. In her 2015 CVRA-case declaration, Wild 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 potential resolution of the federal criminal investigation I was cooperating in. If I had been told of a[n NPA], I would have objected.” In Villafaña’s 2017 declaration in the CVRA litigation, Villafaña recalled interviewing Wild on January 31, 2008, along with FBI agents, and Villafaña told OPR she “asked [Wild] whether she would be willing to testify if there were a trial.” Villafaña recalled Wild responding that she “hoped Epstein would be prosecuted and that she was willing to testify.”335 After the first three victim interviews on January 31, 2008, Villafaña described for Acosta and Sloman the toll that the case had taken on two of the victims: One girl broke down sobbing so that we had to stop the interview twice . . . she said she was having nightmares about Epstein coming after her and she started to break down again so we stopped the interview. The second girl . . . was very upset about the 18 month deal she had read about in the paper.336 She said that 18 months was nothing and that she had heard that the girls could get restitution, but she would rather not get any money and have Epstein spend a significant time in jail.337 Villafaña closed the email by requesting that Acosta and Sloman attend the interviews with victims scheduled for the following day, but neither did so.338 Acosta told OPR that it “wasn’t typical” 335 The FBI report of the interview did not reflect a discussion of Wild’s intentions. 336 See Dareh Gregorian, “Tycoon Perved Me at 14 - $50M Suit Hits NY Creep Over Mansion Massage,” New York Post, Jan. 25, 2008. As early as October 2007, the New York Post reported the 18-month sentence and that “[t]he feds have agreed to drop their probe into possible federal criminal violations in exchange for the guilty plea to the new state charge.” Dan Mangan, “‘Unhappy Ending’ Plea Deal – Moneyman to Get Jail For Teen Sex Massages,” New York Post, Oct. 1, 2007. 337 Acosta told OPR, “The United States can’t unwind an agreement just because . . . some victim indicates that 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 victims] would have testified for us,” but the case would have required an extensive amount of “victim management,” as the girls were “deeply embarrassed” that they “were going to be called prostitutes.” 338 OPR located FBI interview reports relating to only one February 1, 2008 victim interview. Although Villafaña’s emails indicated that two additional victims were scheduled to be interviewed on February 1, 2008, OPR located no corresponding reports for those victim interviews. OPR located undated handwritten notes Villafaña

226 for him, as U.S. Attorney, to attend witness interviews, and further, 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.” Villafaña 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 Villafaña did not specifically tell these victims that “there was a signed non-prosecution agreement that had these terms.” Villafaña 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 exaggerating their claims or completely making up claims in order to increase their damages amount.” Rather, according to Villafaña, she told the three victims that “an agreement had been reached where [Epstein] was going to be entering a guilty plea, but it doesn’t look like he intends to actually perform . . . [and] now it looks like this may have to be charged, and may have to go to trial.” Villafaña recalled “explaining that the case was under investigation,” that they “were preparing the case [for charging] again,” and “expressing our hope that charges would be brought.” Villafaña recalled one victim “making a comment about the amount of [imprisonment] time and why was it so low” and Villafaña answered, “that was the agreement that the office had reached.”339 With regard to the victims Villafaña interviewed who had not received an FBI notification in October 2007, Villafaña recalled discussing one victim’s safety concerns but not whether they discussed the agreement. She recalled telling another victim that “we thought we had reached an agreement with [Epstein] and then we didn’t,” but was “pretty sure” that she did not mention the agreement during the interview of the third victim. Villafaña explained that she likely did not discuss the agreement because at that point I just felt . . . like it was nonexistent. [The victim] didn’t know anything about it beforehand, and as far as I could tell it was going to end up being thrown on the heap, and I didn’t want to -- . . . if you tell people, oh, look, he’s already admitted that he’s guilty, like, I didn’t want that to color her statement. I just wanted to get the facts of the case. The CEOS Trial Attorney told OPR that she did not recall any discussion with the victims about the NPA or the status of the case.340 She did remember explaining the significance of the prosecution to one victim who “did not think anything should happen” to Epstein. The FBI case agent told OPR that she did not recall the January 2008 interviews. OPR located notes to an FBI interview report, stating that one of the victims wanted another victim to be prosecuted. Attorneys for the two victims other than Wild who had been notified by the FBI in October 2007 about the resolution of the case informed OPR that as of 2020, their clients had no memory of meeting with authored concerning one of the two victims that contained no information regarding a discussion of the status of the investigation or the resolution of the case. Through her attorney, this victim told OPR that she did not recall having contact with anyone from the USAO. 339 Villafaña did not recall any other specific questions from victims. 340 The CEOS Trial Attorney noted that CEOS did not issue victim notifications; rather, such notifications were generally handled by a Victim Witness Specialist in the assigned USAO.

227 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, Villafaña 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 process], . . . I was doing all [these] things to take the case to a federal indictment and a federal trial. So to me, saying to a victim the case is now back under investigation is perfectly accurate. 4. February – March 2008: Villafaña Takes Additional Steps to Prepare for a Prosecution of Epstein, Arranges for Pro Bono Attorneys for Victims, and Cautions about Continued Delay In February 2008, Villafaña revised the prosecution memorandum and supplemental memorandum. Villafaña removed some victims known to Epstein from the PBPD investigation and others subject to impeachment as a result of civil suits they filed against Epstein, added newly discovered victims, and made changes to the proposed indictment. While the defense appealed the USAO’s decision to prosecute Epstein to higher levels of the Department, Villafaña sought help for victims whom defense investigators were harassing and attempting to subpoena for depositions as part of Epstein’s defense in civil lawsuits that some victims had brought against him, as well as purportedly in connection with the state criminal case. Villafaña reported to her supervisors that she was able to locate a “national crime victims service organization” to provide attorneys for the victims, and the FBI Victim Specialist contacted some victims to provide contact information for the attorneys.341 During this period, an attorney from the victims service organization was able to help Courtney Wild avoid an improper deposition. Villafaña also informed her supervisors, including Sloman, that “one of the victims tried to commit suicide last week,” and advocated aggressively for a resolution to the case: “I just can’t stress enough how important it is for these girls to have a resolution in this case. The ‘please be patient’ answer is really wearing thin, especially when Epstein’s group is still on the attack while we are forced to wait on the sidelines.” 5. March – April 2008: Villafaña Continues to Prepare for Filing Federal Charges Villafaña continued to revise the proposed charges by adding new victims and by removing others who had filed civil suits against Epstein. Villafaña also prepared search warrants for digital 341 The FBI Victim Specialist informed Villafaña that she spoke “directly to seven victims” and informed them of the pro bono counsel and explained that her “job as a Victim Specialist is to ensure that victims[] of a Federal crime are afforded their rights, information and resource referral.”

228 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 Villafaña and Sloman that federal charges against Epstein were “more and more likely.” Villafaña 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, Villafaña emailed Sloman and USAO Criminal Division Chief Senior asking whether she had the “green light” to file charges and raising the same concerns she had expressed to Oosterbaan. Villafaña further cautioned that, although she was planning to file charges on May 6, if that was not going to happen, “then we all need to meet with the victims, the agents, and the police officers to decide how the case will be resolved and to provide them with an explanation for the delay.” Because the Department’s Criminal Division did not conclude its review of Epstein’s appeal by May 6, however, Villafaña did not file charges that day. VIII. USAO SUPERVISORS CONSIDER CVRA OBLIGATIONS IN AN UNRELATED MATTER AND IN LIGHT OF A NEW FIFTH CIRCUIT OPINION During the period after the NPA was signed, and before Epstein complied with the NPA by entering his state guilty pleas, the USAO supervisors were explicitly made aware of a conflict between the Department’s position that CVRA’s victims’ rights attached upon the filing of a criminal charge and a new federal appellate ruling to the contrary. The contemporaneous communications confirm that in 2008, Acosta and Sloman were aware of the Department’s policy regarding the issue. Unrelated to the Epstein investigation, on April 18, 2008, Acosta and Sloman received a citizen complaint from an attorney who requested to meet with them regarding his belief that the Florida Bar had violated his First Amendment rights. The attorney asserted that the CVRA guaranteed him “an absolute right to meet” with USAO officials because he believed that he was the victim of a federal crime. Acosta forwarded the message to the USAO Appellate Division Chief, who informed Acosta and Sloman that, according to the 2005 Guidelines, “our obligations under [the CVRA] are not triggered until charges are filed.” On April 24, 2008, the Appellate Division Chief emailed Acosta and Sloman, stating that she had “confirmed with DOJ that [her] reading of [the 2005 Guidelines] is correct and that our obligations under [the CVRA] are not triggered until a case is filed.”343 On May 7, 2008, the Appellate Division Chief sent Acosta and Sloman a copy of a U.S. Court of Appeals for the Fifth Circuit opinion issued that day, In re Dean, holding that a victim’s 342 The forensic examination did not locate useful evidence on the memory cards. 343 The Appellate Division Chief advised Acosta that Acosta could inform the complainant that, prior to the initiation of charges, the investigating agency was responsible for carrying out the Department’s statutory obligations to the victim.

229 CVRA rights attach prior to the filing of criminal charges.344 The Appellate Division Chief noted that, although the holding conflicted with the 2005 Guidelines, the “court’s opinion makes sense.” Dean involved a federal prosecution arising from a 2005 explosion 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 pending plea agreement until after it had been signed by the parties. Thereafter, the government filed a criminal information, the government and BP signed the plea agreement, and the government mailed notices of the plea hearing to the victims informing them of their right to be heard. One month later, 12 victims asked the court to reject the plea because it was entered into in violation of their rights under the CVRA. The district court denied their motion, but concluded that the CVRA rights to confer with the prosecutor in the case and to be treated with fairness and respect for the victim’s dignity and privacy vested prior to the initiation of charges.345 The district court noted that the legislative history reflected a view that “the right to confer was intended to be broad,” as well as being a “mechanism[]” to ensure that victims were treated with fairness. In denying the victims relief, the Fifth Circuit nevertheless concluded that the district court “failed to accord the victims the rights conferred by the CVRA.”346 In particular, the Fifth Circuit cited the district court’s acknowledgement that “[t]here are clearly rights under the CVRA that apply before any prosecution is underway.” The Fifth Circuit also noted that such consultation was not “an infringement” on the government’s independent prosecutorial discretion, but “it is only a requirement that the government confer in some reasonable way with the victims before ultimately exercising its broad discretion.” In the wake of the Dean opinion, two Department components wrote separate memoranda to the Solicitor General with opposing views concerning whether the CVRA right to confer with the prosecution vests prior to the initiation of a prosecution. IX. JUNE 2008: VILLAFAÑA’S PRE-PLEA CONTACTS WITH THE ATTORNEY REPRESENTING THE VICTIMS WHO LATER BECAME THE CVRA PETITIONERS According to an affidavit filed in the CVRA litigation by her attorney, Bradley Edwards, Wild retained Edwards in June 2008 to represent her “because she was unable to get anyone from the [USAO] to tell her what was actually going on with the federal criminal case against Jeffrey Epstein.”347 Villafaña told OPR that Wild did not contact her directly and she was not aware of 344 In re Dean, 527 F.3d 391 (5th Cir. 2008). The Fifth Circuit opinion was not binding precedent in Florida, which is within the Eleventh Circuit. 345 United States v. BP Products North America, Inc., 2008 WL 501321, at *11 (S.D. Tex. 2008). Victims who wished to be heard were permitted to speak at the plea hearing. 346 Dean, 527 F.3d at 394. 347 Before Epstein’s state court plea hearing, Edwards also began representing the victim who became Jane Doe #2. Although OPR focuses on Villafaña’s communications with Edwards in this section, OPR notes that Villafaña

230 an instance in which Wild “asked a question that wasn’t answered” of anyone in the USAO or of the FBI case agents. Edwards contacted Villafaña by email and telephone in mid-June, stating that he had “information and concerns that [he] would like to share.”348 In his affidavit, Edwards alleged that during multiple telephone calls with Villafaña, he “asked very specific questions about what stage the investigation was in,” and Villafaña replied that she could not answer his questions because the matter “was an on-going active investigation[.]” Edwards attested that Villafaña gave him “the impression that the Federal investigation was on-going, very expansive, and continuously growing, both in the number of identified victims and [in] complexity.”349 In her written response to OPR, Villafaña said that she “listened more than [she] spoke” during these interactions with Edwards, which occurred before the state court plea: Given the uncertainty of the situation – Epstein was still challenging our ability to prosecute him federally, pressing allegations of prosecutorial misconduct, and trying to negotiate better plea terms, while the agents, my supervisors, and I were all moving towards [filing charges] – I did not feel comfortable sharing any information about the case. It is also my practice not to talk about status before the grand jury. In her 2017 declaration in the CVRA litigation, Villafaña explained that during these exchanges, Villafaña did not inform Edwards of the existence of the NPA because she “did not know whether the NPA remained viable at that time or whether Epstein would enter the state court guilty plea that would trigger the NPA.”350 Villafaña told OPR that she did not inform Edwards also had interactions with other victims’ attorneys. For example, another attorney informed OPR that he spoke to Villafaña two to five times concerning the status of the case and each time was told that the case was under investigation. The attorney noted, “[W]e never got any information out of [Villafaña]. We were never told what was happening or going on to any extent.” Villafaña’s counsel told OPR that Villafaña did not have any interaction with the attorney or his law partner until after Epstein’s state court plea hearing, and that in her written communications responding to the attorney’s inquiries, she provided information to the extent possible. OPR found no documentation that Villafaña’s communications with the attorney occurred prior to June 30, 2008. Villafaña also had more ministerial interactions with other victims’ counsel, as well as contact regarding their ongoing civil cases. For example, in March 2008, one victim’s attorney informed Villafaña of his representation of a victim and requested that the government provide him with photographs of the victim and information concerning the tail registration number for Epstein’s airplane. Villafaña responded that she was unable to provide the requested information, but asked that counsel keep her updated about the civil litigation. 348 Villafaña later stated in a July 9, 2008 declaration filed in the CVRA litigation that, although she invited Edwards to provide her with information, “[n]othing was provided.” 349 Edwards did not respond to OPR’s request to interview him, although he did assist OPR in locating other attorneys who were representing victims. 350 The government later admitted in court filings that Villafaña and Edwards “discussed the possibility of federal charges being filed in the future and that the NPA was not mentioned.” Doe, Government’s Response to Petitioners’ Statement of Undisputed Material Facts in Support of Petitioners’ Motion for Partial Summary Judgment at 14, ¶101 (June 6, 2017).

231 about the NPA because it was “confidential” and because the case was under “investigation and leading towards” the filing of charges. Villafaña 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.” Nevertheless, when OPR asked Villafaña why she did not inform Edwards of the same information that the FBI and she had provided to Wild in October 2007 and January 2008, Villafaña 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 that I had been given by Alex [Acosta] and Jeff [Sloman] not to disclose things further and not to have any involvement in victim notification, and so I felt like that prohibited me from telling him about the existence of the NPA. X. JUNE 2008: EFFORTS TO NOTIFY VICTIMS ABOUT THE JUNE 30, 2008 PLEA HEARING The Epstein team’s appeals through the Department ended on June 23, 2008, when the Deputy Attorney General determined that “federal prosecution of this case is appropriate” and Epstein’s allegations of prosecutorial misconduct did not rise to a level that would undermine such a decision. Immediately thereafter, at Sloman’s instruction, Villafaña notified Lefkowitz that Epstein had until “the close of business on Monday, June 30, 2008, to comply with the terms and conditions of the agreement . . . including entry of a guilty plea, sentencing, and surrendering to begin his sentence of imprisonment.” That same day, Villafaña made plans to file charges on July 1, 2008, if Epstein did not enter his guilty plea by the June 30 deadline. On Friday, June 27, 2008, Villafaña received a copy of the proposed state plea agreement and learned that the plea hearing was scheduled for 8:30 a.m. on Monday, June 30, 2008. Also on that Friday, Villafaña submitted to Sloman and Criminal Division Chief Senior a “final final” proposed federal indictment of Epstein. Villafaña and the FBI finalized the government’s victim list that they intended to disclose, for § 2255 purposes, to Epstein after the plea and, at Sloman’s instruction, Villafaña contacted PBPD Chief Reiter to ask him to notify the victims of the plea hearing. Villafaña told OPR that Sloman said, “Chief Reiter could contact the victims from the state case, and tell them about the plea.”351 On Saturday, June 28, 2008, Villafaña emailed Sloman to inform him that PBPD Chief Reiter “is going to notify victims about the plea.”352 351 Villafaña further stated, “I requested permission to make oral notifications to the victims regarding the upcoming change of plea, but the Office decided that victim notification could only come from a state investigator, and Jeff Sloman asked PBPD Chief Reiter to assist.” 352 Sloman replied, “Good.”

232 Villafaña told OPR that before the state plea hearing, she sent Reiter a list of the victims, including their telephone numbers, to notify and asked him to destroy the list. Villafaña recalled that Reiter told her that he would “try to contact as many as he could” and that he would destroy the list afterwards. Villafaña 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 Villafaña 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 aware that the state grand jury’s indictment of Epstein did not include all of the victims that the PBPD had identified and he “wanted to make sure that some prosecution body had considered all of our victims.”353 In her 2017 declaration in the CVRA litigation, Villafaña stated that she and the PBPD “attempted to notify the victims about [the June 30] hearing in the short time available to us.”354 In her 2008 declaration, however, Villafaña conceded that “all known victims were not notified.” Villafaña told OPR that Edwards was the only victim attorney she was authorized to contact—she thought probably by Sloman—about the June 30, 2008 plea hearing because Edwards “had expressed a specific interest in the outcome.” Villafaña recalled, “I was told that I could inform [Edwards] of [the plea date], but I still couldn’t inform him of the NPA.”355 In her 2008 declaration in the CVRA litigation, Villafaña stated that she called Edwards and informed him of the plea hearing scheduled for Monday; Villafaña stated that Edwards told her that he could not attend the hearing but “someone” would be present. In a later filing in the CVRA litigation, however, Edwards asserted that Villafaña told him only that “Epstein was pleading guilty to state solicitation of prostitution charges involving other victims—not Mr. Edwards’ clients nor any of the federally-identified victims.”356 Edwards further claimed that because Villafaña failed to inform him that the “guilty pleas in state court would bring an end to the possibility of federal prosecution pursuant to the plea agreement,” his clients did not attend the hearing. Villafaña told OPR that her expectation was that the state plea proceeding would allow Edwards and his clients the ability to comment on the resolution: 353 Reiter showed the letter to the lead Detective so he could “confirm that all of the victims that we had for the state case were included on that.” The Detective “looked at it and he said they’re all there and then [Reiter] destroyed it.” The Detective recalled viewing the list in Reiter’s office, but he could not recall when Reiter showed it to him. 354 The FBI co-case agent told OPR that “I don’t think the [FBI] reached out to anyone.” 355 Villafaña told OPR that she thought that it was Sloman who gave her the instructions, but she could not “remember the specifics of the conversation.” 356 Villafaña stated that she “never told Attorney Edwards that the state charges involved ‘other victims,’ and neither the state court charging instrument nor the factual proffer limited the procurement of prostitution charge to a specific victim.” Although Edwards criticized Villafaña’s conduct in his CVRA filings, in his recently published book, Edwards described Villafaña as a “kindhearted prosecutor who tried to do right,” noting that she “believ[ed] in the victims and tr[ied] . . . to bring down Jeffrey Epstein.” Bradley J. Edwards with Brittany Henderson, Relentless Pursuit at 380 (Gallery Books 2020).

233 [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 present who wanted to be heard, and that at that point if Brad Edwards 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 Villafaña to contact anyone about the plea hearing or directing her specifically not to contact anyone about it. Acosta told OPR that he believed the state would notify the victims of the “all-encompassing plea” resolving the federal case “and [the victims would] have an opportunity to speak up at the state court hearing.” Nevertheless, Acosta did not know whether the state victims overlapped with the federal victims or whether the USAO “shared that list with them.” Villafaña told OPR that she and Acosta “understood that the state would notify the state victims” but that neither of them were aware “that the state only believed they had one victim.”358 Villafaña told OPR that there was “very little” communication between the USAO and the State Attorney’s Office, and although she discussed a factual proffer with the State Attorney’s Office and “the fact that . . . the federal investigation had identified additional victims,” she did not recall discussing “who the specific people were that they considered victims in the state case.”359 Sloman told OPR that the “public perception . . . that we tried to hide the fact of the results of this resolution from the victims” was incorrect. He explained: [E]ven though we didn’t have a legal obligation, I felt that the victims were going to be notified and the state was going . . . to fulfill that obligation, and even as another failsafe, [the victims] would be notified of . . . the restitution mechanism that we had set up on their behalf. Sloman acknowledged that although neither the NPA terms nor the CVRA prevented the USAO from exercising its discretion to notify the victims, it was [of] concern that this was going to break down and . . . result in us prosecuting Epstein and that the victims were going to be witnesses and if we provided a victim notification indicating, hey, you’re going to get $150,000, that’s . . . going to be instant impeachment for the defense. 357 Assistant State Attorney Belohlavek told OPR that federal victims who were not a party to the state case would not have been able to simply appear at the state plea hearing and participate in the proceedings. Rather, such a presentation 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 State Attorney’s Office. 358 In an email a few months earlier, Villafaña noted, “The state indictment [for solicitation of adult prostitution] is related to two girls. One of those girls is included in the federal [charging document], the other is not.” 359 As noted in Chapter Two, Villafaña had stopped communicating with the State Attorney’s Office regarding the state case following Epstein’s defense team’s objections to those communications.

234 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. I didn’t get the sense that the victims were overly interested in showing up . . . at the change of plea.” Also, in late June, Villafaña drafted a victim notification letter concerning the June 30, 2008 plea.360 Villafaña 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.”361 As she did with prior draft victim notification letters, Villafaña provided the draft to the defense for comments.362 Although Epstein’s plea hearing was set for June 30, 2008, Villafaña took steps to facilitate the filing of federal charges on July 1, 2008, in the event he did not plead guilty in state court. OPR reviewed voluminous Epstein-related files that the State Attorney’s Office made available online, but OPR was unable to locate any document establishing that before the hearing date, the state informed victims of the June 30, 2008 plea. On March 12, 2008, the State Attorney’s Office issued trial subpoenas to three victims and one non-law enforcement witness commanding the individuals to “remain on call” during the week of July 8, 2008. However, the Palm Beach County Sheriff was unable to serve one of the victims in person because the victim was “away [at] college.” XI. JUNE 30, 2008: EPSTEIN ENTERS HIS GUILTY PLEAS IN A STATE COURT HEARING AT WHICH NO VICTIMS ARE PRESENT On June 30, 2008, Epstein appeared in state court in West Palm Beach, with his attorney Jack Goldberger, and pled guilty to an information charging him with procuring a person under 18 for prostitution, as well as the indictment charging him with felony solicitation of prostitution. The information charged that between August 1, 2004, and October 9, 2005, Epstein “did knowingly and unlawfully procure for prostitution, or caused to be prostituted, [REDACTED], a person under the age of 18 years,” and referred to no other victims. The indictment did not identify any victims and alleged only that Epstein engaged in the charged conduct on three occasions between August 1, 2004, and October 31, 2005. Although the charges did not indicate whether they applied to multiple victims, during the hearing, Assistant State Attorney Belohlavek informed the court that “[t]here’s several” victims. When the court asked Belohlavek whether “the victims in both these cases [were] in agreement with the terms of this plea,” Belohlavek replied, “I have spoken to several myself and I have spoken to counsel, through counsel as to the other victim, and I believe, 360 Sloman forwarded the draft victim notification letter to Acosta, who responded with his own edited version stating, “What do you think?” Villafaña edited it further. 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, Villafaña notified Acosta, Sloman, 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 Villafaña, either Acosta or Sloman made the decision to send the notifications following the state plea and to share the draft notification letters with the defense.

235 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 age 18, Belohlavek spoke with the victim’s counsel, who agreed with the plea agreement.363 Both Villafaña and the FBI case agent were present in the courtroom gallery to observe the plea hearing. Later that day, Villafaña 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, Wild stated that, “I did not have any reason to attend that hearing because no one had told me that this guilty plea was related to the FBI’s investigation of Epstein’s abuse of me.” She stated that she “would have attended and tried to object to the judge and prevent that plea from going forward,” had she known that the state plea “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 my case against him.” An attorney who represented several victims, including one whom the state had subpoenaed for the potential July trial, told OPR that he was present in court on June 30, 2008, in order to serve a complaint upon Epstein in connection with a civil lawsuit brought on behalf of one of his clients. The USAO had not informed him about the plea hearing.364 Moreover, the attorney informed OPR that, although one of the victims he represented had been interviewed in the PBPD’s investigation and had been deposed by Epstein’s attorneys in the state case (with the Assistant State Attorney present), he did not recall receiving any notice of the June 30, 2008 plea hearing from the State Attorney’s Office.365 Similarly, another of the victims the state had subpoenaed for the July trial told OPR through her attorney that she received subpoenas from the State Attorney’s Office, but she was not invited to or aware of the state plea hearing. Belohlavek told OPR that she did not recall whether she contacted any of the girls to appear at the hearing, and she noted that given the charge of solicitation of prostitution, they may not have “technically” been victims for purposes of notice under Florida law but, rather, witnesses. On July 24, 2008, the State Attorney’s Office sent letters to two victims stating that the case was closed on June 26, 2008 (although the plea occurred on June 30, 2008) and listed Epstein’s sentence. The letters did not mention the NPA or the federal investigation. XII. SIGNIFICANT POST-PLEA DEVELOPMENTS A. Immediately After Epstein’s State Guilty Pleas, Villafaña Notifies Some Victims’ Attorneys Villafaña’s contemporaneous notes show that immediately after Epstein’s June 30, 2008 guilty pleas, she attempted to reach by telephone five attorneys representing various victims in 363 Villafaña, who was present in court and heard Belohlavek’s representation, told OPR that she had no information as to whether or how the state had notified the victims about the plea hearing. 364 Villafaña did contact this attorney’s law partner later that day. 365 When interviewed by OPR in 2020, this same 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.

236 civil suits that were pending against Epstein.366 Villafaña also emailed 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 “agreement” with the USAO “requir[ing] him to make certain concessions regarding possible civil suits brought by the victims.” Villafaña 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 On July 3, 2008, victims’ attorney Edwards spoke to Villafaña by telephone about the resolution of the state case against Epstein “and the next stage of the federal prosecution.”367 In his 2017 affidavit filed in the CVRA litigation, Edwards asserted that during this conversation, Villafaña did not inform him of the NPA, but that during the call, he sensed that the USAO “was beginning to negotiate with Epstein concerning the federally identified crimes.” However, in an email Villafaña sent after the call, she informed Sloman that during the call, Edwards stated that “his clients can name many more victims and wanted to know if we can get out of the deal.” Villafaña told Sloman that after she told Edwards that the government was bound by the agreement, assuming Epstein completed it, Edwards asked that “if there is the slightest bit of hesitation on Epstein’s part of completing his performance, that he and his [three] clients be allowed to consult with [the USAO] before making a decision.”368 That same day, Edwards wrote a letter to Villafaña, complaining that Epstein’s state court sentence was “grossly inadequate for a predator of this magnitude” and urged Villafaña to “move forward with the traditional indictments and criminal prosecution commensurate with the crimes Mr. Epstein has committed.” On July 7, 2008, Edwards filed his emergency petition in the U.S. District Court for the Southern District of Florida on behalf of Courtney Wild, who was then identified only as “Jane Doe.” She was soon joined by a second petitioner, and they were respectively referred to as “Jane Doe 1” and “Jane Doe 2.”369 Edwards claimed that the government had violated his clients’ rights under the CVRA by negotiating to resolve the federal investigation of Epstein without consulting with the victims. The petition requested that the court order the United States to comply with the CVRA. The USAO opposed the petition, arguing that the CVRA did not apply because there were 366 According to Villafaña’s handwritten notes from June 30, 2008, Villafaña left a message for two of the attorneys. 367 In his 2017 affidavit filed in the CVRA case, Edwards recalled that his telephone conversation occurred on June 30, 2008, but noted that it could possibly have occurred on July 3, 2008. 368 Sloman responded, “Thanks.” 369 Later attempts by two additional victims to join the ongoing CVRA litigation were denied by the court.

237 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: Villafaña Prepares and Sends a Victim Notification Letter to Listed Victims On July 8, 2008, Villafaña 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. Villafaña also informed the defense that, beginning the following day, she would distribute notifications to each of the 32 victims and their counsel informing them that Epstein’s attorney would be the contact for any civil litigation, if the victim decided to pursue damages. Finally, the letter informed the defense that the government would consider a denial by Epstein that any “one of these victims is entitled to proceed under 18 U.S.C. § 2255” to be considered a breach of the terms of the NPA. After exchanging emails and letters with the defense concerning the content of the notice letter, Villafaña drafted a letter she sent, on July 9 and 10, to nine victims who had previously retained counsel. The letter informed the victims and their counsel that, “[i]n light of” Epstein’s June 30, 2008 state court plea to felony solicitation of prostitution and procurement of minors to engage in prostitution, and his sentence of a total of 18 months’ imprisonment followed by 12 months’ community control, “the United States has agreed to defer federal prosecution in favor of this state plea and sentence, subject to certain conditions.” The letter included a reference to the 18 U.S.C. § 2255 provision of the NPA, and although the defense had never agreed to it, used language from Acosta’s December 19, 2007 letter to Epstein defense attorney Sanchez clarifying the damages provision. The paragraph below was described as “[o]ne such condition to which Epstein has agreed”: Any person, who while a minor, was a victim of a violation of an offense enumerated in Title 18, United States Code, Section 2255, will have the same rights to proceed under Section 2255 as she would have had, if Mr. Epstein had been tried federally and convicted of an enumerated offense. For purposes of implementing this paragraph, the United States shall provide Mr. Epstein’s attorneys with a list of individuals whom it was prepared to name . . . as victims of an enumerated offense by Mr. Epstein. Any judicial authority interpreting this provision, including any authority determining which evidentiary burdens if any a plaintiff must meet, shall 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. On July 10, 2008, Villafaña sent Goldberger a “Final Notification of Identified Victims,” highlighting the defendant’s obligations under the NPA concerning victim lawsuits pursuant to 370 As described in Section XII.G of this Part, the matter continued in litigation for years and resulted in the district court’s February 21, 2019 opinion concluding that the government violated the victims’ rights under the CVRA by failing to consult with them before signing the NPA.

238 18 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, Villafaña sent Goldberger a second letter, noting that the defense would receive copies of all victim notifications on a rolling basis. Villafaña 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, Villafaña 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 require him to register as a sex offender for life and received a sentence of 18 months imprisonment followed by one year of home confinement. Mr. Epstein also made a concession regarding the payment of restitution. All of these terms are set out in a letter that AUSA Villafaña is going to send out. Do you have a lawyer? Get name or address. If not[,] where do you want [the] letter sent? If you have questions when you receive the letter, please understand that we cannot provide legal advice but the lawyers at the following victim rights organizations are able to help you at no cost to you. (Provide names and phone numbers) Also ask about counseling and let them know that counseling is still available even though the investigation is closed. On July 21, 2008, Villafaña sent the letter to the 11 unrepresented victims whose addresses the FBI had by that time confirmed. Villafaña provided Epstein’s defense counsel with a copy of the letter sent to each victim, directly or though counsel (with the mailing addresses redacted). D. July – August 2008: The FBI Sends the Victim Notification Letter to Victims Residing Outside of the United States While attempting to locate and contact the unrepresented victims, the FBI obtained contact information for two victims residing outside of the United States. On July 23 and August 8, 2008, respectively, the FBI Victim Specialist transmitted an automated VNS form notification letter to each victim 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 the NPA. Villafaña also raised with Acosta, Sloman, and other supervisors the question whether the USAO had developed sufficient evidence to include new victims it had identified since creation of the July 2008 list and whether Jane Doe #2, who had previously given a statement in support of Epstein, should be added back to the list. Ultimately, Villafaña sent the defense a letter confirming that the government’s July 10, 2008 victim list was “the final list.”

239 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, Villafaña also drafted a notification letter concerning the June 30, 2008 plea and the 18 U.S.C. § 2255 process, which were to be hand delivered along with the FBI’s letters. However, FBI records do not reflect whether the USAO’s letter was delivered to the two victims. E. August – September 2008: The Federal Court Orders the USAO to Disclose the NPA to Victims, and the USAO Sends a Revised Victim Notification Letter On August 1, 2008, the petitioners in the CVRA litigation filed a motion seeking access to the NPA. The USAO opposed the motion by relying on the confidentiality portion of the NPA.372 On August 21, 2008, the court ordered the government to provide the petitioners with a copy of the NPA subject to a protective order. In addition, the court ordered the government to produce the NPA to other identified victims upon request: (d) If any individuals who have been identified by the USAO as victims of Epstein and/or any attorney(s) for those individuals request the opportunity to review the [NPA], then the USAO shall produce the [NPA] to those individuals, so long as those individuals also agree that they shall not disclose the [NPA] or its terms to any third party absent further court order, following notice to and an opportunity for Epstein’s counsel to be heard[.]373 In September 2008, the USAO sent a revised notification letter to victims, and attorneys for represented victims, concerning Epstein’s state court guilty plea and his agreement to not contest liability in victim civil suits brought under 18 U.S.C. § 2255.374 The September letter appeared to address concerns raised by Epstein attorney Lefkowitz that the government’s earlier notification letter referenced language concerning 18 U.S.C. § 2255 that the government had proposed in Acosta’s December 19, 2007 letter to Epstein attorney Sanchez, but that the defense had not accepted.375 As a result of the defense objection, Villafaña determined that she was 372 Pursuant to paragraph 13 of the NPA, Villafaña made Epstein’s attorneys aware of the petitioners’ request for the NPA. 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 letter in July. 375 This issue is discussed more fully in Chapter Two.

240 obligated to amend her prior letter to victims to correct the reference to the December letter.376 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 master, the special master’s 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 order concerning providing victims with copies of the NPA. The initial draft included a paragraph advising the victims that they could receive a copy of the NPA: In addition, a judge has ordered that the United States make available to any designated victim (and/or her attorney) a copy of the actual agreement between Mr. Epstein and the United States, so long as the victim (and/or her attorney) reviews, signs, and agrees to be bound by a Protective Order entered by the Court. If [the victim] would like to review the Agreement, please let me know, and I will forward a copy of the Protective Order for her signature. The government shared draft versions of the September letter with Epstein’s counsel and responded to criticism of the content of the proposed letter. For example, in response to the above language regarding the August 21, 2008 court order in the CVRA litigation, the defense argued that there was “no court order requiring the government to provide the alleged ‘victims’ with notice that the [NPA] is available to them upon request and doing so is in conflict with the confidentiality provisions of the [NPA].” In response, and in consultation with USAO management, Villafaña revised the paragraph as follows: In addition, there has been litigation between the United States and two other victims regarding the disclosure of the entire agreement between the United States and Mr. Epstein. [The attorney selected by the special master] can provide further guidance on this issue, or if you select another attorney to represent you, that attorney can review the Court’s order in the [CVRA litigation]. On September 18, 2009, a state court judge unsealed the copy of the NPA that had been filed in the state case.377 376 In the letter, Villafaña expressed frustration 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. 377 See Susan Spencer-Wendel, “Epstein’s Secret Pact With Fed Reveals ‘Highly Unusual’ Terms,” Palm Beach Post, Sept. 19, 2009.

241 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 concerning 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 CVRA’s language, relevant case law, and memoranda opinions from Department components, OLC reaffirmed its 2005 conclusion that CVRA rights do not vest until a criminal charge has been filed (by complaint, information, or indictment) and the rights cease to be available if “all charges are dismissed either voluntarily or on the merits (or if the [g]overnment declines to bring formal charges after the filing of a complaint).”378 After OLC issued its opinion, the Department revised the 2005 Guidelines in October 2011 but did not change its fundamental position that the CVRA rights did not vest until after criminal charges were filed. The 2011 revision did, however, add language concerning victim consultation before a defendant is charged: “In circumstances where plea negotiations occur before a case has been brought, Department policy is that this should include reasonable consultation prior to the filing of a charging instrument with the court.”379 The use of the word “should” in the 2011 Guidelines indicates that “personnel are expected to take the action . . . unless there is an appropriate, articulable reason not to do so.”380 Nevertheless, the required consultation “may be general in nature” and “does not have to be specific to a particular plea offer.”381 The revisions also specified that AUSAs were to ensure that victims had a right to be reasonably heard at plea proceedings.382 On November 2, 2011, U.S. Senator Jon Kyl, a co-sponsor of the CVRA, sent a letter to Attorney General Eric Holder, arguing that the 2011 Guidelines revisions “conflict[ed] quite clearly with the CVRA’s plain language” because the 2011 Guidelines did “not extend any rights to victims until charges have been filed.” The Department’s response emphasized that the 378 OLC “express[ed] no opinion” as to whether it is a matter of “good practice” to inform victims of their CVRA rights prior to the filing of a complaint or after the dismissal of charges. 379 See 2011 Guidelines, Art. V, ¶ G.2, available at https://www.justice.gov/sites/default/files/olp/docs/ ag_guidelines2012. pdf. In its 2011 online training video regarding the Guidelines, the Department encouraged such consultation when reasonable, but it also continued to maintain that there was no CVRA right to confer for pre- indictment plea negotiations. 380 See 2011 Guidelines, Art. I, ¶ B.2. 381 See 2011 Guidelines, Art. V, ¶ G.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.

242 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 prosecutors 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.”383 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 and the services described in section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10F DQG SURYLGHG FRQWDFW information for the Office of the Victims’ Rights Ombudsman of the Department of Justice. G. The CVRA Litigation Proceedings and Current Status While the CVRA litigation was pending in the Southern District of Florida, numerous federal civil suits against Epstein, brought in the same district, were transferred to the same judge as “related cases,” as a matter of judicial economy pursuant to the Local Rules. As the parties agreed on settlements in those civil cases, they were dismissed.384 Several of the victims who had settled their civil cases filed a pleading in the CVRA litigation asking the court to “maintain their anonymity” and not “further disseminate[]” their identities to the CVRA petitioners.385 In the CVRA case, the petitioners claimed that the government violated their CVRA rights to confer by (1) negotiating and signing the NPA without victim input; (2) sending letters to the victims claiming that the matter was “under investigation” after the NPA was already signed; and (3) not properly informing the victims that the state plea would also resolve the federal investigation. In addition, the petitioners alleged that the government violated their CVRA right to be treated with fairness by concealing the NPA negotiation and also violated their CVRA right to reasonable notice by concealing that the state court proceeding impacted the enforcement of the NPA and resolved the federal investigation. During the litigation, the USAO argued that (1) the victims had no right to notice or conferral about the NPA because the CVRA rights did not apply pre-charge; (2) the government’s 383 157 Cong. Rec. S7359-02 (2011) (Kyl letter and Department response). 384 Epstein also resolved some county court 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 filed only 3 of the 16 cases he said he resolved. 385 Doe, Response to Court Order of July 6, 2015 and United States’ Notice of Partial Compliance at 1 (July 24, 2015).

243 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) Villafaña contacted the petitioners’ attorney prior to Epstein’s state plea to advise him of the hearing. Nonetheless, Villafaña 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 interpreting the provisions of the CVRA, including the court’s key conclusion that victim CVRA rights “attach before the Government brings formal charges against a defendant.” The court also held that (1) “the CVRA authorizes the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute”; (2) the CVRA authorizes the setting aside of pre-charge prosecutorial agreements”; (3) the CVRA’s “reasonable right to confer” “extends to the pre-charge state of criminal investigations and proceedings”; (4) the alleged federal sex crimes committed by Epstein render the Doe petitioners “victims” under the CVRA; and (5) “questions pertaining to [the] equitable defense[s] are properly left for resolution after development of a full evidentiary record.” On February 21, 2019, the district court granted the petitioners’ Motion for Partial Summary Judgment, ruling that “once the Government failed to advise the victims about its intention to enter into the NPA, a violation of the CVRA occurred.” The government did not dispute the fact that it did not confer with the petitioners prior to signing the NPA, and the court concluded that “[a]t a bare minimum, the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not 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 prosecution was still a possibility” and that “[i]t was a material omission for the Government to suggest to the victims that they have patience relative to an investigation about which it had already bound itself not to prosecute.”386 The court relied on Dean and BP Products to support its holding and noted that the government’s action with respect to the NPA was especially troubling because, unlike a plea agreement for which the victims could voice objection at a sentencing hearing, “[o]nce an NPA is entered into without notice, the matter is closed and the victims have no opportunity to be heard regarding any aspect of the case.” The court also highlighted the inequity of the USAO’s failure to communicate with the victims while it simultaneously engaged in “lengthy negotiations” with Epstein’s counsel and assured the defense that the NPA would not be “made public or filed with the Court.” Although the USAO defended its actions by citing the 2005 Guidelines for the Department’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 386 The court did not resolve the factual question as to whether the victims were given adequate notice of Epstein’s state court plea hearing.

244 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, Villafaña, and her supervisors; access to government records, including grand jury materials; training for USAO employees; and monetary sanctions and attorneys’ fees.387 Following Epstein’s indictment on federal charges in New York and subsequent death while in custody, on September 16, 2019, the district judge presiding over the CVRA case denied the petitioners’ motion for remedies and closed the case, stating that Epstein’s death “rendered the most significant issue that was pending before the Court, namely, whether the Government’s violation of Petitioners’ rights under the CVRA invalidated the NPA, moot.”388 The court did not order the government to take corrective measures, but stated that it “fully expects the Government will honor its representation that it will provide training to its employees about the CVRA and the proper treatment of crime victims.”389 The court also denied the petitioners’ request for attorneys’ fees, finding that the government did not act in bad faith, because, “[a]lthough unsuccessful on the merits of the issue of whether there was a violation of the CVRA, the Government asserted legitimate and legally supportable positions throughout this litigation.” On September 30, 2019, Wild appealed the district court’s rejection of the requested remedies, through a Petition for a Writ of Mandamus filed with the U.S. Court of Appeals for the Eleventh Circuit.390 In its responsive brief, the government expressed sympathy for Wild and “regret[] [for] the manner in which it communicated with her in the past.”391 Nevertheless, the government argued that, “as a matter of law, the legal obligations under the CVRA do not attach prior to the government charging a case” and thus, “the CVRA was not triggered in SDFL because no criminal charges were brought.”392 The government conceded, however, that with regard to the New York prosecution in which Epstein had been indicted, “[p]etitioner and other Epstein 387 Doe, Jane Doe 1 and Jane Doe 2’s Submission on Proposed Remedies (May 23, 2019). 388 Doe, Opinion and Order (Sept. 16, 2019). Among other things, the court rejected the petitioners’ contention that it did not address whether the government had violated the victims’ CVRA right to be treated with fairness and to receive fair notice of the proceedings, noting that “[t]hese rights all flow from the right to confer and were encompassed in the Court’s ruling finding a violation of the CVRA.” 389 The Department’s Office of Legal Programs provided a training entitled Crime Victims’ Rights in the Federal System to the USAO on January 10, 2020. 390 See In re Wild, No. 19-13843, Petition for a Writ of Mandamus Pursuant to the Crime Victims’ Rights Act, 18 U.S.C. § 3771(d)(3) (Sept. 30, 2019). 391 Wild, 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. 392 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 court involvement.

245 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.” During oral argument on January 16, 2020, the government apologized for the USAO’s treatment of Wild: The issue is whether or not the office was fully transparent with Ms. Wild 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 Ms. Wild, and for that, we are genuinely sorry.393 On April 14, 2020, a divided panel of the Court of Appeals for the Eleventh Circuit denied Wild’s petition for a writ of mandamus, concluding that “the CVRA does not apply before the commencement of criminal proceedings—and thus, on the facts of this case, does not provide the petitioner here with any judicially enforceable rights.”394 The court conducted a thorough analysis of the language of the statute, the legislative history, and previous court decisions. The court distinguished In re Dean as “dictum” consisting of a “three-sentence discussion . . . devoid of any analysis of the CVRA’s text, history, or structural underpinnings.” The court noted that its interpretation of the CVRA was consistent with the Department’s 2010 OLC opinion concerning victim standing under the CVRA and the Department’s efforts in “implementing regulations.” Finally, the court raised separation of powers concerns with Wild’s (and the dissenting judge’s) interpretation of victim standing under the CVRA, noting that such an interpretation would interfere with prosecutorial discretion. Nevertheless, the court was highly critical of the government’s conduct in the underlying case, stating that the government “[s]eemingly . . . defer[red] to Epstein’s lawyers” regarding information it provided victims about the NPA and that its “efforts seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation.” The court concluded that although it “seems obvious” that the government “should have consulted with petitioner (and other victims) before negotiating and executing Epstein’s NPA,” the court could not conclude that the government was obligated to do so. In addition, the dissenting judge filed a lengthy and strongly worded opinion asserting that the majority’s statutory interpretation was “contorted” because the “plain and unambiguous text of the CVRA does not include [a] post-indictment temporal restriction.” On May 5, 2020, Wild filed a petition for rehearing en banc. On August 7, 2020, the court granted the petition for rehearing en banc and vacated the panel’s opinion; as of the date of this Report, a briefing schedule has been issued and oral argument is set for December 3, 2020. 393 Audio recording of Oral Argument, Wild, No. 19-13843 (Jan. 16, 2020). 394 In re Wild, 955 F.3d 1196, 1220 (11th Cir. 2020).

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247 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 public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. (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. . . . . (c) Best Efforts To Accord Rights.— (1) Government.—Officers and employees of the Department of Justice . . . shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a). . . . . (e) Definitions. . . . . (2) Crime victim.— (A) In general. —The term “crime victim” means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.

248 B. The Victims’ Rights and Restitution Act of 1990 (VRRA), 34 U.S.C. § 20141, Services to Victims (formerly cited as 42 USCA § 10607) (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— (1) identify the victim or victims of a crime; (2) inform the victims of their right to receive, on request, the services described in subsection (c); and (3) inform each victim of the name, title, and business address and telephone number of the responsible official to whom the victim should address a request for each of the services described in subsection (c). (c) Description of services (1) A responsible official shall— (A) inform a victim of the place where the victim may receive emergency medical and social services; (B) inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained; (C) inform a victim of public and private programs that are available to provide counseling, treatment, and other support to the victim; and (D) assist a victim in contacting the persons who are responsible for providing the services and relief described in subparagraphs (A), (B), and (C). (2) A responsible official shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender. (3) During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of— (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; (B) the arrest of a suspected offender; (C) the filing of charges against a suspected offender; (D) the scheduling of each court proceeding that the witness is either required to attend or, under section 10606(b)(4) of Title 42, is entitled to attend; (E) 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.

249 (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 . . . . (2) the term “victim” means a person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime . . . . II. DEPARTMENT POLICY: THE 2005 ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE (2005 GUIDELINES) In 2005, the Department revised its guidelines for victim and witness assistance in order to incorporate the provisions of the CVRA. The purpose of the 2005 Guidelines was “to establish guidelines to be followed by officers and employees of Department of Justice investigative, prosecutorial, and correctional components in the treatment of victims of and witnesses to crime.” The relevant portions of the 2005 Guidelines are as follows: Article IV: Services to Victims and Witnesses A. Investigation Stage The investigative agency’s responsibilities begin with the report of the crime and extend through the prosecution of the case. In some instances, when explicitly stated, the investigative agency’s responsibility for a certain task is transferred to the prosecuting agency when charges are filed. . . . . 2. Identification of Victims. At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation, the responsible official of the investigative agency shall identify the victims of the crime. 3. Description 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 printed brochure or card that briefly describes their rights and the available services, identifies the local

250 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. § 3771(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 be entitled under this or any other applicable law and the manner in which such relief may be obtained. (f) Public and private programs that are available to provide counseling, treatment, and other support to the victim. . . . . (i) The availability of services for victims of domestic violence, sexual assault, or stalking. (j) The option of being included in VNS. (k) Available protections from intimidation and harassment. . . . . (3) Notice during the investigation. During the investigation of a crime, a responsible official shall provide the victim with the earliest possible notice concerning— (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.

251 1. 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 (1) Notice of Rights. Officers and employees of the Department of Justice shall make their best efforts to see that crime victims are notified of the rights enumerated in 18 U.S.C. § 3771(a). (2) Notice of Right To Seek Counsel. The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in 18 U.S.C. § 3771(a). (3) Notice of Right To Attend Trial. The responsible official should inform the crime victim about the victim’s right to attend the trial regardless of whether the victim intends to make a statement or present any information about the effect of the crime on the victim during sentencing. (4) Notice of Case Events. During the prosecution of a crime, a responsible official shall provide the victim, using VNS (where appropriate), with reasonable notice of— (a) The filing of charges against a suspected offender. (b) The release or escape of an offender or suspected offender. (c) The schedule of court proceedings. (i) The responsible official shall provide the victim with reasonable, accurate, 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.

252 (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 with the attorney for the Government in the case. The victim’s right to confer, however, shall not be construed to impair prosecutorial discretion. Federal prosecutors should be available to consult with victims about major case decisions, such as dismissals, release of the accused pending judicial proceedings (when such release is for noninvestigative purposes), plea negotiations, and pretrial diversion. Because victims are not clients, may become adverse to the Government, and may disclose whatever they have learned from consulting with prosecutors, such consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information. Consultations should comply with the prosecutor’s obligations under applicable rules of professional conduct. Representatives of the Department should take care to inform victims that neither the Department’s advocacy for victims nor any other effort that the Department may make on their behalf constitutes or creates an attorney-client relationship between such victims and the lawyers for the Government. Department personnel should not provide legal advice to victims. (2) Prosecutor Availability. Prosecutors should be reasonably available to consult with victims regarding significant adversities they may suffer as a result of delays in the prosecution of the case and should, at the appropriate time, inform the court of the reasonable concerns that have been conveyed to the prosecutor. (3) Proposed Plea Agreements. Responsible officials should make reasonable efforts 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.

253 (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. III. 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 material fact or law to a third person during the course of representation of a client. A comment to this rule explains that “[m]isrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements,” and “[w]hether a particular statement should be regarded as one of fact can depend on the circumstances.” B. FRPC 4-8.4 – 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. As previously noted, courts have determined that FRPC 4-8.4(d) is not limited to conduct that occurs in a judicial proceeding, but can be applied to “conduct in connection with the practice of law.” Frederick, 756 So. 2d at 87; see also Shankman, 41 So. 3d at 172.

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255 CHAPTER THREE PART THREE: ANALYSIS I. 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 victims. In the CVRA litigation and in more recent media reports, victims complained that they were not informed about the government’s intention to end its investigation of Epstein because the government did not consult with victims before the NPA was signed; did not inform them of Epstein’s state plea hearing and sentencing, thereby denying them the opportunity to attend; and actively misled them through statements that the federal investigation was ongoing. The district court overseeing the CVRA litigation concluded that the government violated the Crime Victims’ Rights Act and “misl[ed] the victims to believe that federal prosecution was still a possibility” and that “[i]t was a material omission for the Government to suggest to the victims that they have patience relative to an investigation about which it had already bound itself not to prosecute.”395 The government’s conduct, which involved both FBI and USAO actions, led to allegations that the prosecutors had purposefully failed to inform victims of the NPA to prevent victims from complaining publicly or in state court. OPR examined the government’s course of conduct when interacting with the victims, including the lack of consultation with the victims before the NPA was signed; Acosta’s decision to defer to state authorities the decision to notify victims of Epstein’s state plea; and the decision to delay informing victims about the NPA until after Epstein entered his plea on June 30, 2008. OPR considered whether letters sent to victims by the FBI after the NPA was signed contained false or misleading statements. OPR also evaluated representations Villafaña made to victims in January and February 2008, and to an attorney for a victim in June 2008. II. THE SUBJECTS DID NOT VIOLATE A CLEAR AND UNAMBIGUOUS STANDARD BY ENTERING INTO THE NPA WITHOUT CONSULTING THE VICTIMS During the CVRA litigation, the government acknowledged that the USAO did not consult with victims about the government’s intention to enter into the NPA. In its February 21, 2019 opinion, the district court concluded that “once the Government failed to advise the victims about its intention to enter into the NPA, a violation of the CVRA occurred.” OPR considered this finding as part of its investigation into the USAO’s handling of the Epstein case, and examined whether, before the NPA was signed on September 24, 2007, federal prosecutors were obligated to consult with victims under the CVRA, and if so, whether any of the subject attorneys—Acosta, Sloman, Menchel, Lourie, or Villafaña—intentionally violated or recklessly disregarded that obligation. 395 Doe v. United States, 359 F. Supp. 3d 1201, 1219, 1221 (S.D. Fla. Feb. 21, 2019).

256 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 consultation was part of a series of government interactions with victims that ultimately led to public and court condemnation of the government’s treatment of the victims, reflected poorly on the Department as a whole, and is contradictory to the Department’s mission to “minimize the frustration and confusion that victims of a crime endure in its wake.”396 A. At the Time, No Clear and Unambiguous Standard Required the USAO to Notify Victims Regarding Case-Related Events until after the Filing of Criminal Charges Although the rights enumerated in the CVRA are clear on their face, the threshold issue of whether an individual qualifies as a victim to whom CVRA rights attach was neither clear nor unambiguous at the time the USAO entered into the NPA with Epstein in September 2007. At that time, the Department interpreted the CVRA in a way that differed markedly from the district court’s later interpretation in the CVRA litigation. The CVRA defines a “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” On April 1, 2005, soon after the CVRA was enacted, OLC 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 subsequent decision not to indict or prosecute the Federal offense that directly caused the victim’s harm.” Beginning with the 2005 OLC guidance, the Department has consistently taken the position that CVRA rights do not apply until the initiation of criminal charges against a defendant, whether by complaint, indictment, or information. OLC applied its definition to all eight CVRA rights in effect in 2005, but noted that the obligation created by the eighth CVRA right—to “treat[] victims with fairness and respect”—is “always expected of Federal officials, and the Victims’ Rights and Restitution Act of 1990 [(VRRA)] indicates that this right applies ‘throughout the criminal justice process.’”397 Consistent with the OLC interpretation, in May 2005, the Department issued the 2005 Guidelines to implement the CVRA. The 2005 Guidelines assigned CVRA-related obligations to prosecutors only after the initiation of federal charges. Specifically, the 2005 Guidelines stated that during the “prosecution stage,” the “responsible official” should make reasonable efforts to notify identified victims of, 396 2005 Guidelines, Foreword. 397 Nevertheless, 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.

257 and consider victims’ views about, prospective plea negotiations.398 The “prosecution stage” began when charges were filed and continued through all post-sentencing legal proceedings.399 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—Dean and its underlying district court opinion, BP Products—were decided after the NPA was signed. The CVRA litigation and proposed federal legislation—both pending as of the date of this Report—show that the interpretation of victim standing under the CVRA continues to be a matter of debate.401 In a November 21, 2019 letter to Attorney General William Barr, a Congressional Representative stated that she had recently introduced legislation specifically to “[c]larify that victims of federal crimes have the right to confer with the Government and be informed about key pre-charging developments in a case, such as . . . non-prosecution agreements.”402 The CVRA litigation arising from the Epstein case shows the lack of clarity regarding when CVRA rights apply: the district court concluded that CVRA rights applied pre-charge, but a sharply divided panel of the Eleventh Circuit Court of Appeals came to a contrary conclusion, a decision that has now been vacated while the entire court hears the case en banc. Because the Supreme Court had not addressed the issue of when CVRA rights apply, the lower courts had reached divergent conclusions, and the Department had concluded that CVRA rights did not apply pre-charge, OPR concludes that the subjects’ failure to consult with victims before signing the NPA did not constitute professional misconduct because at that time, the CVRA did not clearly and unambiguously require prosecutors to consult with victims before the filing of federal criminal charges.403 398 2005 Guidelines, Art. IV, ¶ B.2.c.(3). Under the 2005 Guidelines, the term “should” means that “the employee is expected to take the action or provide the service described unless there is an appropriate, articulable reason not to do so.” Id., Art. II, ¶ C. 399 Id., Art. IV, ¶ B.1. 400 Searcy v. Paletz, 2007 WL 1875802, at *5 (D.S.C. June 27, 2007) (an inmate is not considered a crime victim for purposes of the CVRA until the government has filed criminal charges); United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (victims are not entitled to CVRA rights until the government has filed charges, but courts have discretion to take a more inclusive approach); and United States v. Guevara-Toloso, 2005 WL 1210982, at *2 (E.D.N.Y. May 23, 2005) (order sua sponte) (in case involving a federal charge of illegal entry after a felony conviction, the court determined that victims of the predicate state conviction were not victims under the CVRA). 401 See Wild, 955 F.3d at 1220; Courtney Wild Crime Victims’ Rights Reform Act of 2019, H.R. 4729, 116th Cong. (2019). 402 165 Cong. Rec. E1495-01 (2019). 403 Violations of an unambiguous obligation concerning victims’ rights could result in a violation of the rules of professional responsibility. For example, in Attorney Griev. Comm’n of Md. v. Smith, 109 A.3d 1184 (Md. 2015), the Court of Appeals of Maryland concluded that a prosecutor’s failure to provide any notice to the minor victim’s foster family about the resolution of a sex abuse case during the ten months the prosecutor was responsible for the matter was a “consistent failure” amounting to “gross negligence in the discharge of the prosecutorial function” that deprived the victim of his rights under the Maryland Constitution. The court found violations of Maryland Rules of Professional

258 In Wild, 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 to provide certain victim services such as counseling and medical care referrals remained in effect following passage of the CVRA. Furthermore, two of the VRRA requirements—one requiring a responsible official to “inform a victim of any restitution or other relief to which the victim may be entitled,” and another requiring that a responsible official “shall provide a victim the earliest possible notice of the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation”—may have applied to the Epstein investigation. However, the VRRA did not create a clear and unambiguous obligation on the part of the subject attorneys, as the 2005 Guidelines assigned the duty of enforcing the two requirements to the investigative agency rather than to prosecutors. Moreover, the VRRA did not require notice to victims before the NPA was signed because, at that point, the case remained “under investigation,” and the victims did not become entitled to pursue monetary damages under the NPA until Epstein entered his guilty pleas in June 2008. Once Epstein did so, and the victims identified by the USAO became entitled to pursue the § 2255 remedy, the USAO furnished the victims with appropriate notification. B. OPR Did Not Find Evidence Establishing That the Lack of Consultation Was Intended to Silence Victims During her OPR interviews, Villafaña recalled more than one discussion in which she raised with her supervisors the issue of consulting with the victims before the NPA was signed on September 24, 2007. Acosta, Sloman, Menchel, and Lourie, however, had no recollection of discussions about consulting victims before the NPA was signed, and Menchel disputed Villafaña’s assertions. OPR found only one written reference before that date, explicitly raising the issue of consultation. Given the absence of contemporaneous records, OPR was unable to conclusively determine whether the lack of consultation stemmed from an affirmative decision made by one or more of the subjects or whether the subjects discussed consulting the victims about the NPA before it was signed. Villafaña’s recollection suggests that Acosta, Menchel, and Sloman may have been concerned with maintaining the confidentiality of plea negotiations and did not believe 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 Smith was based on Article 47 of the 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 court.” However, both the underlying statutory provisions and, significantly, the facts are substantially different from the Epstein investigation. In Smith, the criminal defendant had been arrested and charged before entering a plea.

259 did not find evidence showing that the subjects intended to silence victims or to prevent them from having input into the USAO’s intent to resolve the federal investigation. Although the contemporaneous records provide some information about 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, Villafaña raised the topic of victim consultation with Sloman: “The agents and I have not reached out to the victims to get their approval, which as [CEOS Chief Oosterbaan] politely reminded me, is required under the law. . . . [A]nd the [PBPD] Chief wanted to know if the victims had been consulted about the deal.”404 Sloman forwarded the email to Acosta with a note stating, “fyi.” Villafaña recalled that after she sent the email, Sloman told her by telephone, “[Y]ou can’t do that now.”405 Villafaña also 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.” Villafaña also recalled a discussion with Acosta, Menchel, and Sloman, during which she stated that she would need to get victims’ input on the terms being proposed to the defense, and she was told, “Plea negotiations are confidential. You can’t disclose them.”406 None of the other subjects recalled a specific discussion before the NPA was signed about the USAO’s CVRA obligations. Menchel told OPR he believed the USAO was not required to consult with victims during the preliminary “general discussion” phase of settlement negotiations; moreover, he left the USAO before the terms of the NPA were fully developed. Sloman told OPR that he “did not think that we had to consult with victims prior to entering into the NPA” and “we did not have to seek approval from victims to resolve a case.” Sloman believed the USAO was obligated only to notify victims about resolution of “the cases that we handled, filed cases.” Sloman recalled that because the USAO envisioned a state court resolution of the matter, he did not “think that that was a concern of ours at the time to consult with [the victims] prior to entering into . . . the NPA.” Lourie told OPR that he did not recall any discussions about informing the victims about the terms of the NPA or any instructions to Villafaña that she not discuss the NPA with the victims. He stated that everything the USAO did was “to try and get the best result as possible for the victims. . . . [O]nce you step back and look at the whole forest . . ., you will see that. . . . [I]f you look at each tree and say, well, you didn’t do this right for the victim, you didn’t tell the victim this and that, you’re missing the big picture.” 404 As noted, the Department’s position at the time was that the CVRA did not require consultation with victims because no criminal charges had been filed. In addition, Villafaña’s reference to victim “approval” was inaccurate because the CVRA, even when applicable, requires only “consultation” with victims about prosecutorial decisions. 405 Villafaña did not recall Sloman explaining the reason for the decision. 406 Villafaña 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.” Villafaña was uncertain of the date of the conversation, but Menchel’s presence requires it to have occurred before August 3, 2007.

260 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].”407 As indicated, the contemporaneous records reflect little about decisions made regarding victim consultation prior to when the NPA was signed. Villafaña raised the issue in writing to her supervisors in early September, but there is no evidence showing whether her supervisors affirmatively rejected Villafaña’s contention that the USAO was obligated to consult with victims, ignored the suggestion, or failed to address it for other reasons, possibly because of the extended uncertainty as to whether Epstein would ever agree to the government’s plea proposal. OPR notes that its subject interviews were conducted more than a decade after the NPA was signed, and the passage of time affected the recall of each individual OPR interviewed. Although Villafaña recalled discussions with her supervisors about notifying victims, her supervisors did not, and Menchel contended that Villafaña’s recollection is inaccurate. Assuming the discussions occurred, the timing is unclear. Sloman was on vacation before the NPA was signed, so a call with Villafaña about victim notification at that point in time appears unlikely. Any discussion involving Menchel necessarily occurred before August 3, 2007, when it was unclear whether the defense would agree to the government’s offer. Supervisors could well have decided that at such an early stage, there was little to discuss with victims. To the extent that Villafaña’s supervisors affirmatively made a decision not to consult victims, Villafaña’s recollection suggests that the decision arose from supervisors’ concerns about the confidentiality of plea negotiations and a belief that the government was not obligated to consult with victims about a pre-charge disposition. That belief accurately reflected the Department’s position at the time about application of the CVRA. Importantly, OPR did not find evidence establishing that the lack of consultation was for the purpose of silencing victims, and Villafaña told OPR that she did not hear any supervisor express concerns about victims objecting to the agreement if they learned of it. Because the subjects did not violate any clear and unambiguous standard in the CVRA by failing to consult with the victims about the NPA, OPR concludes that they did not engage in professional misconduct. However, OPR includes the lack of consultation in its criticism of a series of government interactions with victims 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 more straightforward and open approach would have been consistent with the government’s goal to treat victims of crime with fairness and respect. This was particularly important in a case in which victims 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 407 Villafaña 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 victim[s].”

261 require victim approval of the prosecutors’ plans, but it allows victims the opportunity 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, Villafaña and the FBI separately communicated with numerous victims and victims’ attorneys, both in person and through letters. Apart from three victims who likely were informed in October or November 2007 about a resolution ending the federal investigation, victims were not informed about the NPA or even more generally that the USAO had agreed to end its federal criminal investigation of Epstein if he pled guilty to state charges until after Epstein entered his guilty plea in June 2008. Despite the government’s agreement on September 24, 2007, to end its federal investigation upon Epstein’s compliance with the terms of the NPA, the FBI sent to victims in October 2007, January 2008, and May 2008, letters stating that the case was “currently under investigation.” In its February 21, 2019 opinion in the CVRA case, the district court found those letters “misl[ed] the victims to believe that federal prosecution was still a possibility” and that “[i]t was a material omission for the Government to suggest to the victims that they have patience relative to an investigation about which it had already bound itself not to prosecute.”409 In the discussions throughout this section, OPR examines the government’s course of conduct with victims after the NPA was signed. As set forth in the previous subsection, OPR did not find evidence supporting a finding that Acosta, Sloman, or Villafaña acted with the intent to silence victims. Nonetheless, after examining the full scope and context of the government’s interactions with victims, OPR concludes that the government’s inconsistent messages concerning the federal investigation led to victims feeling confused and ill-treated by the government. In this section, OPR examines and discusses letters sent to victims by the FBI that were the subject of the district court’s findings. OPR found no evidence that Acosta, Sloman, or Villafaña was aware of the content of the letters until the USAO received them from the FBI for production for the CVRA litigation. OPR determined that the January 10, 2008 and May 30, 2008 letters that the district court determined to be misleading, as well as the October 12, 2007 letter OPR located during its investigation, were “standard form letter[s]” sent by the FBI’s Victim Specialist. As noted previously in this Report, after the NPA was signed, Villafaña and the FBI agents continued to conduct their investigation in anticipation that Epstein would breach the NPA; absent such a 408 Villafaña told OPR that she recalled speaking to several victims along with FBI agents before the NPA was signed and “ask[ing] them how they wanted the case to be resolved.” FBI interview reports indicate that Villafaña was present with FBI agents for some of the interviews occurring well in advance of the NPA negotiations. See 2005 Guidelines, Art. IV, ¶ B.2.c (1) (consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information). However, Villafaña 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 1218. 409 Doe, 359 F. Supp. 3d at 1219, 1221.

262 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” was literally 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 CVRA rights and available services during the “investigative stage” of a case. During the Epstein investigation, the FBI case agents complied with the agency’s notification obligation by hand delivering pamphlets to victims following their interviews and through computer-generated letters sent to the victims by the FBI’s Victim Specialist. The FBI’s notification process is independent of the USAO’s. The USAO has its own Victim Witness Specialist who assumes the responsibility for victim notification after an indictment or complaint moved the case into the “prosecution stage.” The FBI’s Victim Specialist used the VNS to prepare the October 2007, January 2008, and May 2008 letters, a system the FBI regularly employs to comply with its obligations under the 2005 Guidelines to inform the victims of their rights and other services during the “investigative stage.” The stock language of that letter, however, was generic and failed to communicate the unique case-specific status of the Epstein investigation at that time. The FBI Victim Specialist who sent the letters acted at the case agent’s direction and was not aware of the existence of the NPA at the time she created the letters.410 Neither FBI case agent reviewed any of the letters sent by the FBI’s Victim Specialist.411 According to Villafaña, “The decision to issue the letters and the wording of those letters were exclusively FBI decisions.” Although the FBI case agents informed Villafaña after the fact that the FBI’s Victim Specialist sent her “standard form letter,” Villafaña had never reviewed an FBI-generated victim notification letter and was not aware of its contents.412 Villafaña told OPR she was unaware of the content of the FBI letters until they were collected for the CVRA litigation, sometime after July 2008. 410 The case agent told OPR 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 letters.” Similarly, the co-case agent told OPR, “I can’t think that I’ve ever reviewed any of them . . . they just go from the victim coordinator.” 412 Villafaña’s lack of familiarity with the language in the FBI letters led to some inconsistency in the information provided to victims concerning their CVRA rights. Beginning in 2006, the 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, Villafaña 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 Attorney’s Office.” Villafaña told OPR that in a case in which she “need[ed] 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 me.” Villafaña’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

263 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 Department and continued delay entering his guilty plea, Villafaña 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, Villafaña and the case agents continued their efforts to prepare for a likely trial with additional investigative steps. Among other actions, Villafaña, her supervisors, CEOS, and the case agents engaged in the following investigative activities: x The FBI interviewed victims in October and November 2007 and between January and May 2008, and discovered at least six new victims. x In January 2008, CEOS assigned a Trial Attorney to bring expertise and “a national perspective” to the matter. x In January and February 2008, Villafaña and the CEOS Trial Attorney participated in victim interviews. x Villafaña revised the prosecution memorandum to focus “on victims who are unknown to Epstein’s counsel.” x The USAO informed the Department’s Civil Rights Division “pursuant to USAM [§] 8-3.120,” of the USAO’s “ongoing investigation of a child exploitation matter” involving Epstein and others. x Villafaña secured pro bono legal representation for victims whose depositions were being sought by Epstein’s attorneys in connection with the Florida criminal case.413 x Villafaña prepared a revised draft indictment. x Villafaña sought and obtained approval to provide immunity to a potential government witness in exchange for that witness’s testimony. x Even after Epstein’s state plea hearing was set for June 30, 2008, Villafaña took steps to facilitate the filing of federal charges on July 1, 2008, in the event he did not plead guilty. Villafaña told OPR that from her perspective, the assertion in the FBI victim letter that the case was “currently under investigation” was “absolutely true.” Similarly, the FBI case agent told OPR that at 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. 413 According to the 2017 affidavit filed by Wild’s CVRA-case attorney, Edwards, the pro bono counsel that Villafaña secured assisted Wild in “avoiding the improper deposition.”

264 continuing.” The co-case agent also told OPR that, as of the time of his OPR interview in 2019, the “the case was open . . . it’s never been shut down.” 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 victims that a federal prosecution would go forward only if Epstein failed to fulfill his obligations under an agreement he had reached with the USAO. Victims receiving the FBI’s letter would logically conclude that the federal government was continuing to gather evidence to support a federal prosecution. CVRA petitioner Wild stated during the CVRA litigation that her “understanding of this letter was that [her] case was still being investigated and the FBI and prosecutors 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 September 2007 eventually came to light, the statement in the subsequent letters contributed to victims’ and the public’s conclusions that the government had purposefully kept victims in the dark. In sum, OPR concludes that the statement in the FBI victim letters that the matter was “currently under investigation” was not false because the USAO and the FBI did continue to investigate and prepare for a prosecution of Epstein. The letters, however, risked misleading the victims, and contributed to victim frustration and confusion, because the letters did not provide important information that would have advised victims of the actual status of the investigation. Nonetheless, OPR found no evidence that Villafaña or her supervisors participated in drafting those letters or were aware of the content of the FBI’s letters until the Department gathered them for production in the CVRA litigation. The use of FBI form letters that gave incomplete information about the status of the investigation demonstrated a lack of coordination between the federal agencies responsible for communicating with Epstein’s victims and showed a lack of attention to and oversight regarding communication with victims. Despite the fact that the case was no longer on the typical path for resolving federal investigations, form letters continued to be sent without any review by prosecutors or the case agents to determine whether the information provided to the victims was appropriate under the circumstances.415 414 The Department of Justice Inspector General’s Audit Report of the Department’s Victim Notification System indicates that letters the FBI system generated in 2006 contained stock language for the notification events of “Initial (Investigative Agency)” and “Under Investigation” and letters generated in 2008 contained stock language for the notification events of “Advice of Victims Rights (Investigative)” and “Under Investigation.” 415 After Epstein entered his guilty pleas, the FBI sent a similar form letter requesting “assistance and cooperation while we are investigating the case” to the two victims living outside the United States.

265 IV. 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 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’s plan to inform victims of their ability to recover monetary damages from Epstein, under the 18 U.S.C. § 2255 provision of the NPA, and about Epstein’s state court plea hearing. The USAO initially took the position that it was obligated to, and intended to, inform victims of both the NPA, including the § 2255 provision, and Epstein’s change of plea hearing and sentencing, so that victims who wanted to attend could do so. In November and December 2007, Epstein’s attorneys challenged the USAO’s position regarding victim notification. Ultimately, Acosta made two distinct decisions concerning victim notifications. Consistent with Acosta’s concerns about intruding into state actions, Acosta elected to defer to state authorities the decision whether to notify victims about the state’s plea hearing pursuant to the state’s own victim’s rights requirements. Acosta also determined that the USAO would notify victims about their eligibility to obtain monetary damages from Epstein under § 2255, a decision that was implemented by letters sent to victims after Epstein entered his state pleas. This decision, which postponed notification of the NPA until after Epstein entered his guilty pleas, was based, at least in part, on Villafaña’s and the case agents’ strategic concerns relating to preserving the victims’ credibility and is discussed further in Section V, below. In this section, OPR analyzes Acosta’s decision to defer to the state the responsibility for notifying victims of Epstein’s plea hearing and sentencing. OPR concludes that neither the CVRA nor the VRRA required the government to notify victims of the state proceeding and therefore Acosta did not violate any statutes or Department policy by deferring to the discretion of the State Attorney whether to notify victims of Epstein’s state guilty pleas and sentencing. However, OPR also concludes that Acosta exercised poor judgment because by failing to ensure that the state intended to and would notify victims of the federal investigation, he failed to treat victims forthrightly and with the sensitivity expected by the Department. Through counsel, Acosta “strongly disagree[d]” with OPR’s conclusion and argued that OPR unfairly applied a standard “never before expected of any U.S. Attorney.” OPR addresses Acosta’s criticisms in the discussion below. A. 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, Villafaña 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. Villafaña and Sloman exchanged edits of the draft letter and, at Sloman’s instruction, she provided the draft to defense attorney Lefkowitz, who, in turn,

266 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—Villafaña 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 required the USAO to notify the victims of the state proceedings: [T]hese sections are not limited to proceedings in a federal district court. Our Non-Prosecution Agreement resolves the federal investigation by allowing Mr. Epstein to plead to a state offense. The victims identified through the federal investigation should be appropriately informed, and our Non-Prosecution Agreement does not require the U.S. Attorney’s Office to forego [sic] its legal obligations.416 The letter also asserted that the VRRA obligated the USAO to provide the victims with information concerning restitution to which they may be entitled and “the earliest possible” notice of the status of the investigation, the filing of charges, and the acceptance of a plea. Along with the letter, Sloman forwarded a revised draft victim notification letter to Lefkowitz for his comments. This draft victim notification letter stated that the federal investigation had been completed, Epstein would plead guilty in state court, the parties would recommend 18 months of imprisonment at sentencing, and Epstein would compensate victims for monetary damages claims brought under 18 U.S.C. § 2255. The draft victim notification letter provided specific information concerning the upcoming change of plea hearing and invited the victims to attend or provide a written statement to the State Attorney’s Office. When Lefkowitz asked Sloman to delay sending victim notifications until after a discussion of their contents, Sloman instructed Villafaña, who was preparing letters for transmittal to 30 victims, to “Hold the letter.” During his OPR interview, Sloman recalled that he had “wanted to push the letter out,” but he “must have had a conversation with somebody” about whether the CVRA applied, and based on that conversation he directed Villafaña to hold the letter. In his response letter to Acosta, Lefkowitz contended that the government had misinterpreted both the CVRA and VRRA because neither applied to the “public proceeding in this matter [which] will be in state court for the purpose of the entry of a plea on state charges.” 416 Sloman told Lefkowitz the USAO did not seek to “federalize” a state plea, but “is simply informing the victims of their rights.” Sloman also addressed the defense attorneys’ objection to advising the victims that they could contact Villafaña 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.’”

267 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 understand that the defense objects to the victims being given notice of [the] time and place of Mr. Epstein’s state court [plea 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 crime. We intend to provide victims with notice of the federal resolution, as required by law. We will defer to the discretion of the State Attorney regarding whether he wishes to provide victims with notice of the state proceedings, although we will provide him with the information necessary to do so if he wishes. (Emphasis added.) Acosta told OPR that he “would not have sent this [letter] without running it by [Sloman], if not other individuals in the office.” Acosta explained that it was “not for me to direct the State Attorney, or for our office to direct the State Attorney’s Office on its obligations with respect to the state outcome.” Acosta acknowledged that the USAO initially had concerns about the state’s handling of the case, but he told OPR, “that doesn’t mean that they will not fulfill whatever obligation they have. Let’s not assume. . . that the State Attorney’s office is full of bad actors.” Sloman initially believed that “the victims were going to be notified at some level, especially because they had restitution rights under [§] 2255”; but his expectations changed after “there was an agreement made that we were going to allow the state, since it was going to be a state case, to decide how the victims were going to be notified.”417 Sloman told OPR he had been “proceeding under the belief that we were going to notify the victims,” even though “this was not a federal case,” but once the NPA “looked like it was going to fall apart,” the USAO “had concerns that if we g[a]ve them the victim notification letter . . . and the deal fell apart, then the victims would be instantly impeached by the provision that you’re entitled to monetary compensation.” OPR could not determine whether the State Attorney’s Office notified any victims in advance of the June 30, 2008 state plea hearing. Krischer told OPR that the State Attorney’s Office had a robust and effective victim notification process and staff, but he was not aware of whether or how it was used in the Epstein case. Belohlavek told OPR that she could not recall whether victims were notified of the hearing nor whether the state law required notification for the 417 Sloman stated in his June 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.

268 particular charges and victims at issue. Once the hearing was scheduled, Sloman told Villafaña to contact PBPD Chief Reiter about notifying the victims, and on June 28, 2008, she reported back to Sloman that Reiter “is going to notify victims about the plea.”418 Villafaña recalled that she sent Reiter a list of the girls identified as victims during the federal investigation, 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 USAO knew exactly who, if anyone, Reiter or the State Attorney’s Office had notified about the proceeding. Accordingly, Villafaña, who was present in the courtroom for the hearing, had no knowledge to whom Belohlavek referred when she told the court that the victims were “in agreement with the terms of this plea.”419 OPR considered whether Acosta’s decision to defer to the State Attorney’s Office the decision to notify victims of the scheduled date for Epstein’s plea hearing constituted professional misconduct. OPR could not conclude that the CVRA or VRRA provisions in question, requiring notice of any public proceeding involving the crime against the victim or that the victim is entitled to attend, unambiguously required federal prosecutors to notify victims of state court proceedings. Furthermore, as discussed previously, OLC had issued guidance stating that the CVRA did not apply to cases in which no federal charges had been filed.420 Moreover, the section of the VRRA requiring notice of court proceedings that the victim is “entitled to attend” referred specifically to proceedings under 42 U.S.C. § 10606(b)(4), which, at the time of the Epstein case, had become part of the CVRA (18 U.S.C. § 3771(a)(2)).421 Because Acosta had no clear or unambiguous duty to inform victims identified in the federal investigation of the state plea hearing, OPR concludes that his decision to defer to the State Attorney the decision to notify victims of the state’s plea hearing and the responsibility for doing so did not constitute professional misconduct.422 418 Sloman replied, “Good.” In her written response to OPR, Villafaña stated, “I requested permission to make oral notifications to the victims regarding the upcoming change of plea, but the Office decided that victim notification could only come from a state investigator, and Jeff Sloman asked PBPD Chief Reiter to assist.” 419 Plea Hearing Transcript at 42. 420 OLC 2005 CVRA Informal Guidance; see also United States v. Guevara-Toloso, No. 04-1455, 2005 WL 1210982, at *2 (E.D.N.Y. May 23, 2005) (in case involving a federal charge of illegal entry after a felony conviction, the court determined that victims of the predicate state conviction were not victims under the CVRA). 421 In Wild, the Eleventh Circuit panel noted that the petitioner argued “only in passing” that the government violated her CVRA right “to reasonable, accurate, and timely notice of any public court proceeding . . . involving the crime”; however, the court concluded this provision “clearly appl[ies] only after the initiation of criminal proceedings.” Wild, 955 F.3d at 1205 n.7, 1208. 422 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 the potentially 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

269 B. Acosta Exercised Poor Judgment When He Failed to Ensure That Victims Identified in the Federal Investigation Were Informed of the State Plea Hearing Although Acosta (or the USAO) was not required by law or policy to notify victims of the state’s plea hearing, he also was not prohibited by law or policy from notifying the victims that the federal investigation had been resolved through an agreement that included pleas to state charges. As the contemporary records indicate, Acosta consistently expressed hesitancy to interfere in the state’s processes or to “dictate” actions to the State Attorney. His decision that the USAO refrain from notifying victims about the state plea hearing and defer to the State Attorney’s judgment regarding whether and whom to notify was consistent with this view. However, OPR found no evidence that Acosta’s decision to defer victim notification “to the discretion of the State Attorney” was ever actually communicated to any state authorities or that Acosta recognized that the state, absent significant coordination with federal authorities, was unlikely to contact all of the victims identified in the state and federal investigations or that the state would inform the victims that it did notify that the state plea hearing was part of an agreement that resolved the federal investigation into their own cases.423 Even taking into account Acosta’s views on principles of federalism and his reluctance to interfere in state processes, Acosta should have recognized the problems that would likely stem from passing the task of notifying victims to the State Attorney’s Office and made appropriate efforts to ensure that those problems were minimized. Appropriate notification would have included advising victims identified in the federal investigation that the USAO had declined to bring charges and that the matter was being handled by the State Attorney, and, at a minimum, provided the victims with Belohlavek’s contact information. Acosta could have interacted with the State Attorney, or instructed Villafaña or others to do so, to ensure the state intended to make notifications in a way that reached the most possible victims and that it had the information necessary to accomplish the task. Instead, Acosta deferred the responsibility for victim notification entirely to the State Attorney’s discretion without providing that office with the names of individuals the USAO believed were victims and, apparently, without even informing the state prosecutors that he was deferring to them to make the notifications, if they chose to do so. Epstein was required by the NPA to plead to only two state charges, and even assuming that each charge was premised on a crime against a different victim, and the solicitation charge involved three separate victims, there were thus only at most four victims of the charged state offenses. Without at least inquiring into the state’s intentions, Acosta had no way of determining whether the state intended to notify more than those few victims. Moreover, the federal investigation had resulted in the identification of several victims who had not been identified by inform the victim and to the extent that it will not interfere with the investigation.” See 42 U.S.C. §§ 10607(c)(1)(B) and (c)(3)(A). 423 Through counsel, Acosta argued that OPR’s criticism of him for “electing to ‘defer’ the notification obligation to the state” was inappropriate and “a non sequitur” because “where no federal notification obligation exists, it cannot be deferred.” OPR’s criticism, as explained further below, is not with the decision itself, but rather with the fact that although Acosta intended for the federal victims to be notified of the state plea hearing, and believed that they should receive such notification, he nonetheless left responsibility for such notification to the state without ensuring that it had the information needed to do so and without determining the state’s intended course of action.

270 the PBPD during its investigation into Epstein’s conduct. Absent information from the USAO, the state would not have been in a position to notify those additional victims of the state plea proceeding, even if the State Attorney had decided to include other victims identified during the state investigation. Furthermore, at the time he made his decision, Acosta had already been advised by Villafaña that Belohlavek, in November 2007, had requested that the USAO notify victims, presumably those identified during the federal investigation, about the state plea hearing. Acosta told OPR that it had been his understanding at the time of Epstein’s plea that the victims would be made aware of the proceeding and would have an opportunity to speak. Acosta also told OPR that he expected the state would have “notified [the victims] that that was an all- encompassing plea, that the state court sentence would also mean that the federal government was not proceeding.” There is no evidence, however, that he verified this understanding with Sloman or Villafaña, let alone the State Attorney. OPR found no indication that Acosta ever communicated, or directed Sloman or Villafaña to communicate, his decision to the State Attorney or to provide the State Attorney’s Office with a complete list of victims identified during the federal investigation. OPR located a draft letter to the State Attorney’s Office that Villafaña prepared and forwarded to Acosta in December 2007, which did provide such information, but OPR found no evidence that the letter was ever sent, and it was not among materials publicly released from the State Attorney’s Office.424 OPR also found evidence that both Sloman and Villafaña interacted with the State Attorney’s Office in the months leading up to the June 30, 2008 plea hearing, but there is no indication that they discussed victim notification issues with that office, and Villafaña’s last minute request to PBPD Chief Reiter to notify victims indicates that the USAO had not coordinated with the State Attorney’s Office. Belohlavek told OPR that no one from the USAO provided her with a list of victims or coordinated any notification of victims to appear at the hearing. Krischer and Belohlavek were thus evidently unaware that Acosta had decided to leave it to them to decide whether to notify victims about the state proceeding. In the absence of some discussion of which or how many victims the state intended to notify, what the state intended to tell them about Epstein’s plea, and whether the state intended to let the victims speak at the plea hearing, Acosta had no way to ensure that his assumption about victim notification was accurate. In other words, Acosta failed to plan for how all of the identified victims of Epstein’s crimes, both federal and state, “would be aware of what was happening in the state court and have an opportunity to speak up at the state court hearing.” OPR did not find evidence that Acosta acted for the purpose of excluding victims from the plea hearing, and Acosta’s assumption that the state would handle victim notification appropriately was not unsupported. State prosecutors are subject to victim notification requirements under the Florida Constitution, and the state prosecution offices have victim witness personnel, resources, and processes to help accomplish notification. However, Acosta was aware—through the prosecution memoranda, the draft indictment, and email communications from Villafaña—that the USAO’s investigation had expanded beyond those victims identified in the original PBPD 424 The text of the letter indicated that Epstein’s attorneys asked the USAO not to inform victims of “any rights they may have as victims of the charges filed by the State Attorney’s Office” and that the USAO was providing the State Attorney’s Office with a list of the 33 identified federal victims “in case you are required to provide them with any further notification regarding their rights under Florida law.”

271 investigation. Because the state indictment and information appeared to pertain to far fewer than the total victims identified in either the state or the federal investigation, and no one at the USAO was certain which victims were covered by the state charges, it should have been apparent to Acosta that without advance planning between the USAO and the State Attorney’s Office, there was a substantial risk that most of the victims identified in the federal investigation would not receive notice of the hearing.425 Notification to the broadest possible number of identified victims could only have been successful if there was appropriate communication between the USAO and the state prosecutors, communication that had previously been lacking regarding other significant issues relating to Epstein. Villafaña and Sloman’s hastily arranged effort to enlist in the notification process PBPD Chief Reiter, who likely played little role in complying with the state’s victim notification obligations in a typical case, was not an adequate substitute for careful planning and coordination with the State Attorney’s Office.426 Even if the State Attorney’s Office had notified all of the identified victims of the upcoming plea hearing, there was no guarantee that such notification would have included information that the state plea was resolving not just the state’s investigation of Epstein, but the federal investigation as well. The State Attorney was not obligated by state statutes to inform the victims of the status of the federal investigation, and there was little reason to assume Krischer, or one of his staff, would voluntarily do so, thereby putting the State Attorney’s Office in the position of fielding victim questions and concerns about the outcome. Furthermore, as both the USAO and the defense had differing views as to who could lawfully participate in the state plea hearing, there is no indication that Acosta, Sloman, or Villafaña took steps to confirm that, if victims appeared, they could actually participate in the state court proceeding when they were not victims of the charged crimes.427 Through counsel, Acosta asserted to OPR that because Villafaña and Sloman both told OPR that they believed that state officials would notify the victims, “OPR identified no reason why Secretary Acosta should have distrusted his team on these points.” Acosta’s counsel further 425 Krischer told OPR that the state’s notification obligation extended to all victims identified in the state investigation. Nonetheless, which victims were encompassed in the state’s investigation was unclear. The PBPD’s probable cause affidavit included crimes against only 5 victims, not the 19 identified in the state investigation. According to state records made public, the state subpoenaed to the grand jury only 3 victims. After Epstein’s guilty plea, the state sent notification letters to only 2 victims. Belohlavek told OPR that because of the nature of the charges, she did not know whether “technically under the law” the girls were “victims” she was required to notify of the plea hearing. 426 The State Attorney’s Office had its own procedures and employees who handled victim notification, and Belohlavek told OPR that the Chief of the Police Department would not regularly play a role in the state victim notification process. 427 Although Villafaña’s notes indicate that she researched Florida Statutes §§ 960.001 and 921.143 when she drafted unsent letters to victims in November and December 2007 inviting them to participate in the state plea hearing pursuant to those statues, the caselaw was not clear that all federal victims would have been allowed to participate in the state plea hearing. In Lefkowitz’s November 29, 2007 letter to Acosta, he argued that the statutes afforded a right to speak at a defendant’s sentencing or to submit a statement only to the victims of the crime for which the defendant was being sentenced. In April 2008, a Florida District Court of Appeal ruled against a defendant who argued that Florida Statute § 921.143(l) did not allow the testimony of the victim’s relatives at the sentencing hearing. The court ruled that § 921.143(l) “should not be read as limiting the testimony Rule 3.720(b) allows trial courts to consider at sentencing hearings.” Smith v. State, 982 So. 2d 69, 72 (Fla. Dist. Ct. App. 2008).

272 argued that Acosta should have been able to rely on his staff to accomplish the victim notification task, and thus had no responsibility to personally confirm that Chief Reiter would notify the victims of the hearing.428 Acosta is correct that under usual circumstances, USAO management played no role in the victim notification process; however, in this case, the issue of victim notification had been elevated from a rote administrative task to a major area of dispute with the defense. Acosta personally involved himself by resolving the notification dispute with defense counsel in his December 19, 2007 letter. Villafaña provided Acosta with a draft letter to state officials that would have opened a dialogue concerning the notification of all the victims identified in the federal investigation. OPR found no evidence, however, that Acosta sent the letter or any similar communication to the State Attorney’s Office or that he provided Villafaña and Sloman with instructions concerning victim notification other than those contained in his December 19, 2007 letter. Having inserted himself into the notification process, Acosta had a responsibility to ensure that his expectation that the victims would be notified could be accomplished through the state process. Many victims only learned of Epstein’s state court pleas when they later received a letter from the USAO informing them that those pleas had resolved the federal investigation, and some victims only learned of the state court pleas and sentencing from the news media. In the end, although Villafaña and Sloman hastily attempted to ensure victim notification through Chief Reiter, their effort was too little and too late to ensure that victims had the opportunity to attend the plea hearing or were given sufficient information about its significance to their own cases.429 Although Acosta may have conferred with others about the decision to defer the responsibility for notifying victims to the State Attorney, Acosta was responsible for choosing this course of action. OPR concludes that under these unique circumstances, its criticisms are warranted because Acosta personally decided to change the process initiated by his staff, and although he expected that the federal victims would be notified, he did not take the necessary steps to ensure that they would be. Acosta could have authorized disclosure of the plea hearing to victims, even if he did not believe the CVRA required it, to ensure that the victims identified in the federal investigation were aware of the state court proceeding. Because the state pleas ended the federal investigation into Epstein’s conduct, ensuring that the victims were notified of the state plea hearing would have been consistent with the Department’s overarching commitment to treat victims with fairness, dignity, and sensitivity. Acosta’s failure to prioritize notification and coordinate communication about the 428 As noted, in his comments on OPR’s draft report, Acosta’s counsel strongly objected to OPR’s finding of poor judgment with respect to victim notification, arguing that OPR “unwarrantedly applies a standard never before expected of any US Attorney,” and inappropriately criticizes Acosta for “not personally confirming that the State Attorney had the information needed” to notify the victims and for “not personally confirming” that Chief Reiter had actually notified the victims. For the reasons discussed, the issue is not whether Acosta “personally” took certain specific steps but that he stopped his staff from implementing a notification plan they had devised, and instead, shifted responsibility for notification to another entity while failing to consider how or even whether that entity would be able to accomplish the notification that Acosta expected to happen. 429 OPR notes that Villafaña contacted Reiter soon after the state plea hearing was scheduled, and the resulting window of time for Reiter to make any notifications was short. Had the USAO coordinated with the State Attorney at some point in time closer to Acosta’s December 19, 2007 letter and decision, the USAO could have ensured that the State Attorney had an appropriate notification process in place to act quickly when the hearing was scheduled and that issues concerning the victims’ appearance at the hearing were appropriately considered by state authorities. Similarly, if the USAO believed that Reiter should make the notifications, it could have coordinated with Reiter in the months that the matter was under review by the Department.

273 resolution of the case to ensure Epstein’s victims were given an opportunity to attend the plea hearing, and to possibly speak about the impact of Epstein’s crimes, presented a glaring contrast with Acosta’s responsiveness to the demands of Epstein’s attorneys, which included the unusual courtesy of allowing them to preview and respond to the USAO’s draft victim notifications. This contrast added to the victims’ perception that they had been treated unfairly, a view shared by the public. Nothing in the documentary record suggests that Acosta thought through the issue of determining which victims would be notified by the state, or that he took any steps to ensure that all of the known federal victims received information about the state plea hearing. Instead, as with his decision to resolve the federal investigation through a state-based resolution, Acosta exercised poor judgment when he made critical decisions affecting the federal investigation and the victims, but also failed to consider the full consequences of those decisions or what was needed to implement them. Acosta’s failure to consider these issues before simply leaving the responsibility for making notifications entirely to the State Attorney’s discretion reflected poorly on the USAO and the Department as a whole. It left victims in the dark about an important proceeding that resolved the federal investigation, an investigation about which the USAO had communicated with victims for months. It also ultimately created the misimpression that the Department intentionally sought to silence the victims by keeping them uninformed about the NPA and the resulting state proceeding. Acosta failed to ensure that victims were afforded an opportunity to attend a hearing that was related to their own cases and thus failed to ensure that victims were treated with forthrightness and dignity. V. VILLAFAÑA DID NOT COMMIT PROFESSIONAL MISCONDUCT IN HER ORAL COMMUNICATIONS TO VICTIMS AND VICTIMS’ ATTORNEYS, IN WHICH SHE DESCRIBED THE CASE AS “UNDER INVESTIGATION” BUT DID NOT DISCLOSE THE EXISTENCE OF THE NPA TO SOME VICTIMS From September 24, 2007, when the NPA was signed, until after Epstein’s June 30, 2008 state court plea, the case agents, acting under Villafaña’s direction, directly informed only three victims that the government had signed an NPA and that, if Epstein complied with its terms, the federal investigation would be closed. During this time period, Villafaña and the case agents interacted with several victims and their attorneys, and Villafaña contacted victims’ attorney Bradley Edwards to encourage him to attend the state court plea hearing, but she did not inform victims or Edwards of the NPA or the resolution of the federal investigation. As described in Part One of this chapter, after the NPA was signed, the FBI case agent and co-case agent began notifying victims about the NPA.430 After speaking to three victims, however, the FBI case agent became concerned that informing the victims about the NPA and the monetary damages provision would create potential impeachment material for the victims and the agent should Epstein breach the NPA and the case proceed to indictment and trial. As the case agent told OPR, “I would . . . have to testify that I told every one of these girls that they could sue Mr. Epstein for money, and I was not comfortable with that, I didn’t think it was right.” The case 430 Although Wild disputed that she was informed of the resolution of the federal case, the case agent’s email to Villafaña from this time period reflects that at least one victim understood that the federal case was resolved and that she was unhappy with the resolution.

274 agent and Villafaña consulted with the USAO’s Professional Responsibility Officer about the matter, and thereafter stopped notifying the victims about the NPA and their ability to pursue monetary damages according to its terms. Villafaña advised Sloman by email of her concerns regarding the potential impeachment evidence, telling him, “One thing I am concerned about is that, if we [file charges] now, cross- examination will consist of- ‘and the government told you that if Mr. Epstein is convicted, you are entitled to a large amount of damages right?’” Explaining the decision in her later CVRA declaration, Villafaña said that after Epstein’s attorneys “complained that the victims were receiving an incentive to overstate their involvement with Mr. Epstein in order to increase their damages claims,” she “concluded that informing additional victims could compromise the witnesses’ credibility at trial if Epstein reneged on the agreement.” Acosta was aware of these concerns as he referred to them in an August 2008 email, “[W]e 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 [a] key part of [the] agree[ment].” The case agents interviewed victims in October and November 2007, but did not inform them about the NPA.431 On January 31, 2008, the FBI agents, Villafaña, and the CEOS Trial Attorney interviewed three victims, including Courtney Wild, and they interviewed at least one more victim the next day.432 Wild and two others had been contacted by the FBI in the fall of 2007 and may have been informed about the resolution of the federal investigation. Villafaña told OPR that during the January 31, 2008 interviews, she did not specifically tell the victims that “there was a signed non-prosecution agreement that had these terms.” She stated that she would not use “terminology” such as “NPA” because “most people don’t understand what that means.” Instead, with respect to the three victims who, according to Villafaña, had been informed by the FBI about the resolution, she stated that “an agreement had been reached where [Epstein] was going to be entering a guilty plea, but it doesn’t look [like] he intends to actually perform . . . [and] now it looks like this may have to be charged . . . and may have to go to trial.” Villafaña recalled telling some victims that Epstein “was supposed to enter a plea in state court” that would end the investigation, but she did not recall distinguishing between the “federal investigation versus a state investigation.” Villafaña told OPR she explained “the case was under investigation,” she and the agents “were preparing . . . again” to file charges, and they hoped “that charges would be brought.” An email from Villafaña to Sloman and Acosta during this time period reflects that she had such discussions with at least one victim interviewed on this date: “The second girl . . . was very upset about the 18 month deal she had read about in the paper. . . . [S]he would rather not get any money and have Epstein spend a significant time in jail.” Villafaña, however, did not recall telling all of the victims interviewed at this time of the state plea; rather, she likely only told those who knew about the resolution from the FBI. In her own 2015 CVRA- case declaration, Wild stated that she “was not told about any [NPA] or any potential resolution of 431 FBI agents also interviewed victims in March and May of 2008, without prosecutors, and did not inform the victims of the NPA. 432 Two additional victims were scheduled to be interviewed on February 1, 2008, but the evidence is unclear as to whether the interviews occurred.