How Epstein's secret deal could affect sex trafficking case

By Michael R. Sisak, Jim Mustian
and Curt Anderson
Associated Press

NEW YORK (AP) — Financier Jeffrey Epstein pleaded not guilty this week to sex trafficking charges in a case brought a decade after he secretly cut a deal with prosecutors to dispose of nearly identical allegations.

Epstein is accused of paying underage girls hundreds of dollars in cash for massages and then molesting them at various locations, including homes in Palm Beach, Florida, and New York from 2002 through 2005.
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WHO IS JEFFREY EPSTEIN?

Epstein, 66, is a hedge fund manager who came to prominence in 2002 after shuttling former President Bill Clinton and other notables to Africa on his private jet for an AIDS relief mission.

Epstein owns a private island in the Caribbean, homes in Paris and New York City, a New Mexico ranch, and a fleet of high-price cars. His friends have included Clinton and President Donald Trump, both of whom said this week that they haven’t seen Epstein in years and knew nothing of his alleged misconduct.

Under a 2008 non-prosecution agreement, Epstein pleaded guilty to state charges in Florida of soliciting and procuring a minor for prostitution. That allowed him to avert a possible life sentence, instead serving 13 months in a work-release program. He was required to make payments to victims and register as a sex offender.
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HOW IS THIS CASE DIFFERENT FROM 11 YEARS AGO?

The new case charges Epstein with the federal crimes of sex trafficking and conspiracy, and a conviction could put him in prison for 45 years. The case, which sets the stage for another #MeToo-era trial fraught with questions of wealth and influence, is being brought amid increasing scrutiny of Alexander Acosta, Trump’s labor secretary who oversaw Epstein’s deal while U.S. Attorney in Miami.

Federal prosecutors in New York acknowledged there is some overlap between the Florida and New York cases. It’s not clear how much of the case involves the same acts or accusers; none of the alleged victims were identified in Monday’s indictment.
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WHAT IS A NON-PROSECUTION AGREEMENT?

A non-prosecution agreement is essentially a contract between prosecutors and a defendant in a criminal case. It typically entails a list of conditions a defendant must meet in exchange for a promise that he or she won’t be indicted. Unlike typical plea bargains, these agreements are not made public.

For most people, a parallel would be a diversion program for a relatively minor offense, such as misdemeanor marijuana possession. The charges are dropped as long as the defendant meets a series of conditions, such as no further arrests. In Epstein’s case, no federal charges were ever filed in Florida.
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HOW DOES THAT AFFECT EPSTEIN’S CURRENT CASE?

Manhattan U.S. Attorney Geoffrey Berman says it doesn’t. He contends the agreement that spared Epstein from a lengthy sentence a decade ago is binding only on federal prosecutors in Florida, where the deal was made.

Epstein’s lawyers dispute that and call the allegations “ancient stuff.”

There are two parts of the agreement that are at issue.

The first states: “Epstein seeks to resolve globally his state and federal criminal liability ...”

The U.S. is carved up into 94 federal judicial districts, each with its own separate federal prosecution office, known as a U.S. Attorney’s office.

In most cases, a non-prosecution agreement only applies to the federal district where a case is being brought, meaning a defendant could still face charges from another district or a wing of the Justice Department.

But Epstein’s lawyers argue that because of the use of the phrase “resolve globally,” the agreement covered all districts.

The second part of the agreement at issue states: “... on authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida ...”

Prosecutors in New York argue that means the agreement is limited to Florida’s southern district.
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WHAT DOES “RESOLVE GLOBALLY” MEAN?

That depends on who’s interpreting it.

The phrase might make you think that the agreement resolves all matters pending or being contemplated anywhere, former federal prosecutor David Weinstein said.

But given the other language in the document, “globally” could be interpreted to mean that only federal prosecutors working for Southern District of Florida and the state of Florida were bound by the agreement.

Fordham law professor James Cohen said the phrasing “Epstein seeks to resolve globally” sounds aspirational and is tempered by the subsequent passage noting Acosta’s authority extended only to the Southern District of Florida.

Federal authorities in New York say they were years away from charging Epstein when the Florida deal was reached — and therefore weren’t contemplating charges at the time. Prosecutor Alex Rossmiller said Monday that the investigation in the new case “began in the Southern District of New York.”

William Sweeney, the assistant director in charge of the FBI’s New York office, added that investigators were driven by facts uncovered through investigative reporting — a reference to the Miami Herald’s three-part series last November on the matter.
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COULD THE NEW YORK CASE BE THROWN OUT ON DOUBLE JEOPARDY GROUNDS?

Weinstein said it’s unlikely because Epstein’s guilty plea involved only state crimes, while the current case involves alleged violations federal law.

The U.S. Supreme Court has long held that a defendant can be charged by both state and federal authorities for the same conduct.
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WHAT OTHER LEGAL TROUBLE DOES EPSTEIN FACE?

Two of Epstein’s victims sued the federal government years ago claiming the Miami U.S. attorney’s office failed to consult them on his plea agreement, as required under the Crime Victims’ Rights Act.

A federal judge in Florida recently agreed there was a violation but did not rule on whether Epstein’s plea deal and non-prosecution agreement should be thrown out. Federal prosecutors say, essentially, a deal’s a deal and the agreement must stand.

Victims’ attorneys want it changed to at least make possible a new federal prosecution in Florida. That may be moot now that Epstein has been charged with sex trafficking in New York, but the victims’ rights case continues.

In addition, Epstein could lose one of the homes where he’s alleged to have abused the girls. Federal prosecutors in New York are seeking the forfeiture of Epstein’s Manhattan mansion, a seven-story, 21,000-square-foot (nearly 2,000 square-meter) townhouse less than a block from Central Park that’s been valued at about $77 million.

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