EFTA00009116

change from, here is the date that you must comply, to, you
2 must use best efforts to comply?
3 A Possibly. I would -- whether it was that, or
4 others, or other parts of the agreement, we can talk about,
5 but how -- once the agreement was signed, and they do not --
6 and they start pushing the date, there becomes a legal issue
7 over, are they really in breach or not?
8 And I'm not -- I understand your perspective. I'm
9 just saying, you know, earlier I said that there was a
10 difference. You asked about the process, and I said from my
11 perspective, there's a difference between the pre-agreement
12 and the post-agreement time period.
13 And much of that difference is informed by, if we
14 declare a unilateral breach, how does this hold up in court?
15 Because now there's a signed agreement that the United States
16 is a party to.
17 Q And are you saying that part of the reason, or
18 maybe all of the reason that you continued to give
19 accommodations and process and delay was because of the
20 concern that you couldn't actually win a breach argument?
21 A I think that was a consideration. Another part of
22 the considerations are if someone -- if a party wants to
23 take -- I mean, main justice gave a lot of process. It
24 wasn't -- it wasn't, you know, it wasn't just to -- to
25 but it was up to the -- it was just up to the assistant
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1 attorney general for criminal division, to be polite, but it
2 was up to the DAG.
3 And so, if main justice is going to give this
4 degree of process, we should -- we should be in the position
5 of saying go forward, as opposed to, I don't think it looks
6 positive for the office to be viewed as fearing department
7 review.
8 Q But were you giving the impression to the
9 Department of Justice that you were the one who wanted this
10 review so that they felt like, well, it's not just these
defense attorneys who we can blow off, it is an United States
Attorney who is asking for this review, and so therefore we
13 need to give the courtesy of reviewing this?
14 A I don't think I asked for it as opposed to saying,
15 if you would -- so, from the very beginning, they said that
16 they're going to take this to the Deputy Attorney General and
17 Attorney General.
18 And I said, if you want to, fine. They just
19 finally did, but that was not -- that was not -- I think they
20 raised that as early as August or September. And so, I'm not
21 surprised that it ended up there. I also thought it was
22 important to not be in the position of fearing review.
23 think if you look at the contemporaneous record, there's an
24 effort on our part to expedite the review.
25 BY MS.
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1 Q But there's a difference between, have at it, go,
2 do what you want, up at main, and getting that --
3 Right.
4 Q -- that non-opposition, and actually sending a
5 signal to -- in the -- in the case of the criminal division,
6 the assistant attorney general, in the case of the DAG's
7 office, Mark Filip or his assignee, that you supported their
8 review, that the -- this appeal process. You could have
9 said, look, we're going to go ahead and get on with our
10 business.
11 If they want to -- if -- you could have not so much
12 opposed a review, but not seconded their request for -- the
13 defense request for reviews, or not in fact invited the
14 reviews.
15 A So, I'd be curious as to the timeline. I would
16 take issue with, I invited the reviews, and I question
17 whether, did they initiate the reviews on their own, and then
18 I said have at it, or did I -- based on -- I mean, you've got
19 more of a record than I do, or did I invite -- I don't -- I
20 would say I did not invite the reviews.
21 Q Well, let me -- bad terminology, perhaps. Let me
22 ask you this. If -- would've -- did you convey to the
23 criminal division that you wanted them to review this matter,
24 as requested by the defense attorneys?
25 A So, from my perspective, I'm thinking back 12 --
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1 Q Min-hmm.
2 A -- 12 years now. The very reason that we invited
3 to come down to Miami back in August was a sense that it
4 would end up up here. And so, if it's going to end up up
5 here, let's bring down.
6 Let's make him part of the initial meeting. You
7 know, if there are concerns, let's raise these. Let's
8 address them. Let's get them out so that we don't end up,
9 after we go forward with all of this, back in front of
10 and And it's much better to involve main justice
11 earlier.
12 And so, I would say I was trying, if anything,
13 to to involve main justice so that we didn't end up where
14 we were, and it had been my expectation that that October
15 date would have been met.
16 The collateral reviews afterwards, the collateral
17 appeals, obviously did not go as -- as we planned, and -- and
18 it was my sense, we were going to end up at main justice one
19 way or another.
20 Q So, my question is in December, after the December
21 meeting --
22 A Right.
23 Q -- that you had with defense counsel, and they told
24 you they were going to go to main justice.
25 A Correct.
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1 Q To the criminal division. Did you convey to main
2 justice criminal division that you wanted them to conduct the
3 review that defense counsel were seeking?
4 A So, I don't recall what I may or may not have
5 conveyed. I think my recollection was, if they want a
6 review, that's their right. We're not -- as a department,
7 we're not in the business of telling individuals that they
8 can't take something to your supervisor, or your superior.
9 Whether -- whether main justice takes this on or not is
10 ultimately at their discretion.
11 Q Would it surprise you to learn that the criminal
12 division front office understood you to be requesting their
13 review, the review that was sought by defense counsel?
14 A Would it surprise me? Perhaps. My -- my -- my
15 understanding -- recollection is we shouldn't fear it. If
16 they want it --
17 Q mm-hmm.
18 A -- that's their right. I thought by inviting
19 down in the first place that we had at least tried to address
20 that early on, but I also thought that we might end up there
21 in the first place.
22 Q Were you -- were you aware that a decision was made
23 to grant the decision by your office to grant defense
24 counsel's request their insistence that
25 role in the criminal division review be limited to review
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1 only, and that he not be permitted to -- or that the criminal
2 divisions -- that the -- I'm sorry, I misspoke. That because
3 IIIMINIMIllhad already been involved in essentially
4 being a prosecutor on the case --
5 A Right.
6 Q -- that the -- the criminal division and CEOs' role
7 vis a vis this review should be review only. That is, they
8 should be taken off the case as a -- as a partner?
9 A So, I sought e-mails to that affect in the record.
10 I don't have an independent recollection 12 years --
11 Q you --
12 A
13 Q Do you think you were involved in that decision?
14 A To take them off?
15 Q Yes.
16 A To my recollection, I wanted them on as a partner,
17 and I think the contemporaneous --
18 Q ME-hmm.
19 A -- e-mails from is, can you please come on
20 board?
21 Q But that was earlier, before this review process?
22 A No. No. Even after the --
23 Q All right.
24 A -- review process, I think there are
25 contemporaneous e-mails where we're saying it's important
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1 that you be part. If we go to trial, it's important that you
2 be part of the trial. As I -- as I went through the record,
3 at least I remember --
4 Q Me-hmm.
5 A -- an e-mail, perhaps from to that I'm
6 copied on saying, hey, can you reconsider? It's important
7 that you be part of this.
8 Q Reconsider the review only limitation?
9 A No, no. Reconsider being a part of the trial
10 Q Oh. All right.
11 A -- team.
12 Q All right. So, to be clear, do I understand that
13 you -- correct me, that you don't have a recollection one way
14 or the other whether you requested the criminal division to
15 conduct the review, or could it have happened, or --
16 A So --
17 Q -- what?
18 A -- to the extent I -- again, I'm going back --
19 Q Nm-hmm.
20 A -- 12 years. To the extent there is a request to,
21 it would be in the context of, this is going to Washington.
22 We're not fearful of this. Have at it.
23 Q And you would have conveyed that to Washington?
24 Not just to the defense attorneys, is that correct?
25 A I imagine in some way. It's --
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1 Q All right.
BY MS.
Q And just one --
A Yeah.
5 Q -- just one point. This one -- this one was a
6 little bit of an --
7 A Yeah.
8 Q -- odd posture, however, because you had a signed
9 agreement. And so, you know, basically a contract between
10 parties --
11 A Right.
12 Q -- and particularly on Mr. Epstein's side, a party
13 who was -- who was extremely well represented. So, was there
14 any consideration on your part, instead of saying, hey,
15 everybody's got a right to review, knock yourself out, go up
16 to Washington, as opposed to saying something like, that ship
17 has sailed, guys. You signed this agreement. We're going
18 forward. You don't go forward. You're in breach. End of
19 story?
20 A So, his counsel are raising serious issues that go
21 to ethics and go to fundamental relationships between
22 sovereigns. Is this 22.55 appropriate as a matter of federal
23 policy? Is what we're doing an overreach, you know, is what
24 we're doing contrary to law? Are we extracting -- I'm
25 characterizing. This may or may not
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1 Q MM-hmm.
2 A -- be accurate. Are we extracting unduly? Are we
3 using criminal law to extract civil concessions in an
4 ethically suspect way? Those are serious issues. That isn't
5 just, is this a good case?
6 Those are -- those are genuine issues. I happen to
7 think that, as I recall, that we were in the right or we
8 wouldn't have agreed to it, but by the same token, let's
9 assume that main justice ultimately disagreed. Is that from
10 a main justice perspective? And maybe I'm coming at this
11 from a -- you know, being informed by having been at main
12 justice.
13 Q mm-hmm.
14 A Where there was talk about, can you believe what
15 this AUSA -- this AUSA may have done or may not have done
16 without consulting, that these are serious issues. They
17 establish precedent.
18 They -- you know, maybe the DAG would have said,
19 this is not the kind of thing we'd support, and this is
20 wrong. And so, at the end of the day, let's move forward,
21 but if -- once these issues are raised, I don't think a U.S.
22 Attorney should say main justice should not review this.
23 I think we're part of one department, and these are
24 valid issues. Main justice doesn't need to take months to
25 review this. Main justice can expedite their review, but
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1 those are valid issues for the deputy and the AAG to review.
2 Q But one could look at it and say, well, those are
3 all issues that the defense certainly knew about before they
4 signed that agreement, and having signed the agreement, they
5 are waiving all of that. That's what contracts are for.
6 You've got all these issues, don't sign the contract.
7 A And if I could, I think there's a December letter.
8 I don't know if it's -- if it's in the exhibits, but there's
9 a December letter that I wrote that, for me, is --
10 Q This is the 19th?
11 A Maybe it's the 19th. Let me --
12 Q Or the --
13 M . The 19th is the -- your sort of
14 ill-fated NPA addendum effort.
15 THE WITNESS No. No, a letter to -- to Ken Starr
16 that I -- that I wrote. But --
17 MR. : The 4th letter is to Ken Starr.
18 THE WITNESS I'm sorry?
19 MR. : Is it the December 4th letter?
20 THE WITNESS Yeah, it's probably --
21 MR. : December 4?
22 THE WITNESS It's the December 4th.
23 MS. : Yeah, it didn't have a date.
24 MS. : All right. That's the one you
25 wrote --
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1 THE WITNESS So --
2 MS. : -- to him --
3 THE WITNESS -- so --
4 MS. : -- in response to the --
5 THE WITNESS So --
6 MS. -- 22.55 issue.
7 THE WITNESS I think, you know, I -- you know, I'm
8 starting on page four. I have responded personally in some
9 detail to your concerns because I care deeply about both the
10 law and the integrity of this office. I have responded
11 personally and in detail as well, because your letter
12 troubled me on a number of levels. Upon your understanding
13 of the negotiations are. The 22.55 was first discussed July
14 31st.
15 You know, and one of these four points in -- in the
16 middle of 2007, your defense team decides -- asked to meet
17 with me. On September 7th, I met. After considering of the
18 arguments, and after conferring with FBI and
19 our office decided to proceed with the indictment. At that
20 time, I offered to delay -- our prosecutors to delay
21 presentation to allow you to appeal our decision if you
22 choose. You chose not to.
23 Instead, you elected to enter into the NPA. Since
24 the signing of this agreement, the feds in our office have
25 addressed several issues that have arisen, although the
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1 exchanges at the time were a bit litigious.
2 BY MS.
3 Q This -- could I -- could I thought point out --
4 i•. Yeah.
5 Q -- that this letter is in response to not the at
6 the request for a review by the criminal division, that comes
7 later. This is in response to Ken Starr's letter to
8 about -- raising 22.55 -- 22.55 issues that had not
9 been raised with you before.
10 A Right, which is -- which is in essence a review.
11 mean, he -- they're coming to main justice, and you know,
12 it's against these many previous foregone opportunities to
13 object that I receive with surprise your letter requesting an
14 11th hour after the fact review of our agreement. Although
15 it happens rarely, I don't mind this office's decision being
16 appealed to Washington, and have previously directed our
17 prosecutors to delay.
18 Indeed, I'm confident in our prosecutor's evidence
19 and legal analysis. I nonetheless
20 directed them to consult with subject matter experts in the
21 criminal CEOS division to confer to our interpretation of the
22 law before proceeding with this indictment. So, I guess, you
23 know, we consulted CEOS.
24 I'm thus surprised to read a letter addressed to
25 the department headquarters that raises issues that either
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Page 331
1 have not been raised with this office previously, or have
2 been raised and in fact resolved in your client's favor.
3 I'm troubled likewise by the apparent lack of
4 finality in this agreement. The AUSAs have been negotiating
5 with defense counsel and have for sometimes complained to me
6 regarding the tactics used by the defense team. It appears
7 to them that as soon as resolution is reached on one issue,
8 defense counsel finds ways to challenge the resolution
9 collaterally.
10 Q So, this is your protest of, it sounds like Starr's
11 effort to bypass you and go to with new issues?
12 A It is, and I'm pushing back in that, was I inviting
13 this, or was I sort of saying -- you know, that said, there
14 must be some closure on this matter.
15 Some in our office are deeply concerned that
16 defense counsel will continue to mount collateral challenges
17 to provisions of this agreement, even after Mr. Epstein has
18 entered his guilty plea and thus rendered the agreement
19 difficult, if not impossible to unwind. In closing, I ask
20 that you consult with co-counsel.
21 If after consultation with your defense team you
22 believe that our agreement is unethical, unlawful, or
23 unconstitutional, I'd ask us that you notify us immediately
24 so we can discuss the matter by phone or in person. I've
25 consulted the chief prosecutor in this case who has advised
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1 me that she's ready to unwind the agreement and proceed to
2 trial if necessary, or appropriate.
3 Q So, are you suggesting that this represents your
4 protest of their appeal to
5 A So
o' Q -- on this point?
7 A So, protest is a is a loaded word. What I'm
8 suggesting is, this is not an invitation to appeal to main
9 justice. This is sort of saying, enough is enough is enough.
10 Q But Mr. Acosta, in fairness, this, to clarify --
11 A Right.
12 Q -- this is in response to a letter directed to
13 dated November 28th --
14 A Right.
Q -- 2007 raising issues that he had not raised with
16 you. The appeal subsequently that I was asking about was --
17 A Right.
18 Q -- an appeal for a de novo review -- a de novo
19 review of the whole case.
20 A Understood, and my -- the reason that I -- that I
21 read this, you know, is this is not -- on the one hand, I'm
22 saying we do not fear review, but I don't -- this is not an
23 invitation to defense counsel to do a de novo -- I am not
24 inviting them. I'm not saying, let's have more review. I'm
25 saying, enough's enough. If they appeal, that's fine, but
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Page 333
1 this is not an invitation to appeal.
2 Q But there was nothing you could do to stop their
3 appeal, right? Except indict?
4 A And so the department shouldn't stop an appeal to
main justice by -- you know, by threatening.
6 Q Fair enough.
7 A Because main justice has a right to review.
8 Q I should have said that -- that this -- that this
9 appeal process was stymying progress in resolving the Epstein
10 case.
11 A It was.
12 Q And you had no way -- you had no recourse, other
13 than, at least theoretically, you could have just said, you
14 know, we're --
15 A Right.
16 Q -- going to tear it up and indict, because you're
17 in breach, in effect.
18 A Which would have raised civil litigation --
19 Q Litigation.
20 A -- overlays, which is the point that I thought
21 merited --
22 Q All right.
23 A -- at least flushing out.
24 BY MS. :
25 Q So, short of the department itself getting a move
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1 on, and getting this thing through expeditiously, did you
2 feel like you just had to sit there and wait for everything
3 to get done?
4 A I'm not sure sit there and wait, but -- but
5 ultimately, the case did not get better with time, and there.
6 was frustration on our apart about, you know, the witnesses
7 are not getting better. You know, time
8 Q They're getting older.
9 A They're getting -- which goes back to how a juror
10 may see them.
11 MS. : Right.
12 THE WITNESS And I do recall conversations of their
13 getting older, you know, this case is not getting better. We
14 now have the civil overlay that we need to deal with. And
15 so, yes, that -- there was process, but while there was,
16 should we just call it a day, all of that factored into,
17 well, if the department is reviewing the department is
18 reviewing.
19 BY MS.
20 Q Okay. Are you -- what is your view of whether the
21 criminal division's review encompassed the NPA itself?
22 A So, the criminal division, by its terms, did not
23 did not encompass the -- the NPA. I would say that's
24 different than the deputy's review that encompassed the
25 totality of the -- of the circumstances.
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1 Q Okay. Did you discuss the -- did you have
2 conversations with the DAG -- with Mark Filip about this
3 case?
4 A Not to my recollection.
5 Q Okay, and we've already talked about the submission
6 that made on behalf of your office?
7 A Which -- which -- yes, which I thought was a
8 fulsome submission, and included the draft indictment, the
9 NPA. I believe it included the term sheet and other
10 documents.
11 Q Did you or anyone else to your knowledge ask ODAG
12 to review or assess the NPA, or approve it?
13 A Not to -- before signature, not to my recollection,
14 but it was part of the ultimate review when submitted
15 the matter to the deputy, he included the --
16 Q It was --
17 A -- the agreement.
18 Q It was included. Their very brief letter, you
19 remember --
20 A Mm-hmm.
21 Q -- the letter that
22 A Yes.
23 Q -- authored, that he authored. Addressed really
24 only the issue of the appropriateness of the case for
25 prosecution in your office. It did not in any way reference
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1 the disposition, the plea agreement, or the NPA.
2 A So -- so, it was a brief letter. Based on
3 submission, I would have read that letter as, they had all
4 the material in front of them, and they were saying that
5 there was no misconduct or abuse of discretion.
6 Q That's correct, but they did not say that they
7 contacted -- that they addressed or assessed, reviewed even.
8 They didn't say they reviewed or approved the NPA.
9 A They -- I again, you know, I -- if the letter is
10 here, I don't know, but --
11 Q Yeah. I have it right here. It's not marked as an
12 exhibit, but this is an letter to Jay Lefkowitz and
13 Ken Starr dated --
14 A Right.
15 Q -- June 23, 2008 It states that this office,
16 meaning the Office of the Deputy Attorney General, has
17 completed a thorough review of the U.S. Attorney's handling
18 of the matter involving your client.
19 A And --
20 Q And addresses the -- or, states that they've
21 received and reviewed submissions from both parties, and then
22 states that the deputy attorney general, "Will intervene only
23 in the most unusual of circumstances," in a U.S. Attorney's
24 matter, and, "we do not believe such intervention is
25 warranted here. Even if we were to substitute our judgement
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1 for that of the U.S. Attorney, we believe that federal
2 prosecution of this case is appropriate. Moreover, having
3 reviewed your allegations of prosecutorial misconduct, and
4 the facts underlying them, we see nothing in the conduct of
5 the U.S. Attorney's Office that gives us any reason to
6 alter," --
7 A Right.
8 Q -- "our opinion."
9 A And so, so, if I could point out, this office has
10 completed a thorough review of the U.S. Attorney's handling
11 of the matter. And so, handling is a broad -- is a broad
12 term, and in reference to, we believe that federal
13 prosecution of this case is appropriate, the way I recalled
14 reading that is, the federal prosecution of this case, the
15 argument was that the agreement was inappropriate because
16 this case should not have even been prosecuted, and therefore
17 that the disposition -- the federal prosecution of this case,
18 was appropriate.
19 And so, the handling of the matter, we reviewed the
20 handling of the matter, not -- not the agreement, but the
21 handling of the matter, and that the ultimate disposition,
22 if -- you know, is at least not an abuse of discretion, or is
23 appropriate.
24 Q That's how you read it?
25 A That -- that is how I read it.
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1 Q And did you ever discuss that -- did you ever
2 discuss with anyone in ODAG what the scope of their review
3 was?
4 A Not to -- not to my recollection. It was a fulsome
5 submission.
6 Q Correct, but if -- if -- but the issues presented
7 by the defense were essentially federalism issues, right?
8 A So, the -- the -- again, this is -- this is based
9 on, you know, as much recollection as contemporaneous record.
10 The issues presented by the defense were, it -- in essence,
11 it was the heart of the non-prosecution agreement, which is,
12 was it -- was it an abuse of discretion to -- to proceed in
13 this case in the way that we did on the grounds that there
14 may not -- there should not have been a federal prosecution
15 in the first place, or that we were using federal criminal
16 law to -- to elicit a civil outcome.
17 And so, I don't think it's fair to sort of
18 narrow -- you can't -- you can't say that our handling was --
19 you know, that their handling was reviewed without reviewing
20 the non-prosecution agreement.
21 Q Do you have any reason to believe that the -- that
22 either ODAG or the criminal division did -- well, that the
23 ODAG, let's stick with that --
24 A Right.
25 Q -- did in fact review the NPA, other than to be
EFTA00009154