The Epstein Defense: Arguing Case Ended in Florida Is Risky
The Epstein Defense: Arguing Case Ended in Florida Is Risky Bet
(Bloomberg) -- Jeffrey Epstein wants a federal judge to find that sex-trafficking charges against him unsealed Monday in New York are preempted by a controversial plea deal the financier struck with prosecutors in Florida more than a decade ago.
Don’t count on it, say legal experts.
That plea agreement, signed in September 2007, quietly put an end to a U.S. investigation into whether Epstein had engaged in sexual activity with dozens of girls he paid for erotic massages and sometimes had sex with. Epstein pleaded guilty in June 2008 to two state prostitution charges and spent 13 months in a Florida prison -- though released regularly to ply his trade as a fund manager.
Crucially, the U.S. prosecutors probing Epstein agreed to not prosecute him in federal court.
During Epstein’s first court appearance in Manhattan, on Monday, one of his lawyers made it clear he’d use that nonprosecution deal as a central part of Epstein’s defense, setting up a fight that could draw renewed scrutiny of the decisions made by federal prosecutors in southern Florida.
The 2007 agreement was a “global resolution” that was approved at a “very, very high level” of the Justice Department, lawyer Reid Weingarten said at the hearing. He called the new allegations “ancient stuff” and said the government was trying to get a second shot at a defunct case.
The indictment unsealed Monday alleges that Epstein sexually abused dozens of girls at his mansions in Manhattan and Palm Beach, Florida, some of whom were not part of the original Florida investigation. Prosecutors say he paid hundreds of dollars for massages that often ended in sexual acts, and hundreds more if they recruited more victims.
Mimi Rocah, a former federal prosecutor in Manhattan who isn’t involved in the case, said the nonprosecution agreement in Florida can’t be used to tie the hands of New York prosecutors, even though they’re part of the same Justice Department. If anything, she said, such a defense could serve to highlight actions by the Justice Department that “are not normal.”
“There’s no doubt they let him off way too easy,” said Rocah, a criminal justice fellow at Pace University’s law school. “There was clearly something wrong in the way that the plea was reached. It was a slap on the wrist.”
The deal was approved by Alex Acosta, President Donald Trump’s labor secretary, when he was the top federal prosecutor for southern Florida.
Brian Michael, a former federal prosecutor who’s now a partner with King & Spalding, also said a deal made with the U.S. Attorney’s office in Florida doesn’t prevent prosecutors in New York from charging Epstein -- especially since they claim new evidence and victims who weren’t involved in the Florida probe. And the news may prompt other alleged victims or witnesses to come forward.
The Florida deal may become “a moot issue,” Michael said.
Not So Simple
Defense lawyers are likely to argue that the issue isn’t nearly that simple.
Critical questions remain, including what the non-prosecution agreement specifically covers and whether the actions of federal prosecutors in Florida and the Justice Department officials in Washington block the U.S. from accusing Epstein years later in New York; the Constitution’s double jeopardy clause generally prohibits prosecuting a person twice for the same crimes.
Peter Henning, a law professor at Wayne State University in Detroit, pointed to a passage in Epstein’s nonprosecution agreement that says Epstein “seeks to resolve globally his state and federal criminal liability.”
“He can make the argument that this binds the entire U.S. Justice Department,” Henning said. Epstein’s legal team will likely use the issue to try to get the charges dismissed early on, he said.
Epstein, 66, was arrested after flying to the U.S. from Paris on his private jet. The U.S. is fighting to keep him locked up during the case, citing as flight-risk factor his wealth and easy access to international travel and the decades-long prison sentence he is looking at if convicted. His bail hearing will continue Monday.
Prosecutors in New York appear to have anticipated Epstein’s attempt to lean on the earlier plea deal. In a letter filed with the court before Monday’s hearing, they said they weren’t bound by an agreement negotiated by prosecutors in another federal district and that the new case involves victims outside Florida.
In fact, the agreement specifically says prosecution “in this district” would be “deferred in favor” of a case brought by the state. Further, the New York indictment relies on “dozens of victims who were abused in this district in addition to dozens of victims who were abused in Florida” and covered by the Florida investigation, prosecutors wrote.
More details of Epstein’s alleged acts may be coming soon.
A federal judge recently ordered the unsealing of other documents. That decision was made in connection with a defamation lawsuit by Virginia Giuffre, one of Epstein’s alleged victims, against British socialite Ghislaine Maxwell. Giuffre claims Epstein and Maxwell recruited her into a forced-sex ring at his home in Florida when Giuffre was a minor.
The case is U.S. v. Epstein, 19-cr-490, U.S. District Court, Southern District of New York (Manhattan).
To contact the reporters on this story: Erik Larson in New York at elarson4@bloomberg.net;Bob Van Voris in federal court in Manhattan at rvanvoris@bloomberg.net
To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Peter Jeffrey
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