EFTA00009229

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2 A So, I can't -- well, I can't tell you from
3 recollection what the basis is. I can -- I can speculate
4 that the materials being transmitted Friday morning -- oh, I
5 guess it was -- yeah, so --
6 Q The 11th.
A Yeah.
Q Friday.
9 A So, Friday morning, it hasn't been reviewed by
10 anyone in the management chain, much less approved and
11 edited, and that Monday is saying why don't I have a
12 decision?
13 And -- and so, absent truly extenuating
14 circumstances, typically, you'd have -- give -- you know,
15 it'd go through the management chain up to the U.S. Attorney.
16 And so, he's pushing back, saying, hey, it's been a day, or
17 it's been a weekend. I'm --
18 Q Right.
19 A -- I'm just reading between the lines here.
20 Q Who had authority to sign off on the Epstein
21 prosecution? To, say, indict?
22 A So, as a delegated matter, had
23 signature authority.
24 Q Me- hmm.
25 A As did -- as did , as did
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1 obviously I did. As a practice matter, this is something
2 that would have gone through the chain, and that we would
3 have then discussed.
4 Q But why up at your level? Is it because it is, as
5 says, "Obviously a very significant case?"
6 A So, at my level, not only because of the facts,
7 because it's not about the facts, but I do think that there
8 are legal issues that -- that implicated policy, that -- that
9 we were thinking through.
0 Q And what were -- what were the legal issues, and
11 what were the policy issues?
12 A So -- so, the legal issues, and also factual issues
13 in terms of the witnesses. So, the legal issues so, and
14 there's an e-mail from based on the -- you know, the
5 contemporaneous record that alludes to some of this. In my
16 experience at the civil rights division, trafficking cases
17 involved -- you know, I can -- I can describe some -- some
18 horrific cases of girls being held against their will, you
19 know.
20 You had child pornography matters with young women,
21 sometimes incredibly young, that the office prosecuted. As
22 the trafficking laws were being developed, there was a lot o
23 discussion about, what's the difference between trafficking
24 and solicitation, and that discussion took place as the
25 trafficking laws were being developed. And so, this
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1 implicated that, and it implicated the -- what is local and
2 what is federal.
3 Q All right. So, in the first, you're talking -- in
4 the first category, you're talking about the individual
5 charges that had been -- that were being proposed, which
6 included both trafficking and coercion and enticement -- or,
7 enticement.
8 A Correct.
9 Q All right. And in the latter, you felt that -- did
10 you to what extent did the witness -- victim witness kind
11 of credibility issues implicate policy?
12 A So -- so, I think I said policy and victim in that.
13 Q All right.
14 A In that there was certainly discussion between me
15 and my management about concerns as to how these victims
16 would sort of stand up in court.
17 Q So, what would have -- what would make you
18 comfortable before -- before proceeding? What would make
19 you -- what at that point would have made you comfortable
20 about proceeding?
21 A So, I think that at this point, I don't think it's
22 what would or would not have made me comfortable, and I'm
23 speculating here. I think it's, it came in on Friday, let's
24 talk this through.
25 Q But there -- but you've just identified for us
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1 issues that --
2 A Issues that --
3 -- in your mind
4 A -- we would have --
5 Q -- had to be resolved.
6 A -- wanted to talk through.
7 Q All right. Okay. At that point, did you -- to
8 your recollection, have any doubt that some form of
9 indictment or charging instrument against Epstein was likely
10 to be -- become viable?
11 A So, I don't -- it was a case that I thought it very
12 important that we do something. How that something played
13 out, I think had all along been a matter of discussion.
14 Q As something other than what the U.S. Attorney's
15 Office does, which is prosecute?
16 A Well -- well, no, I mean, what the U.S. Attorney's
17 Office does is ensure that justice is served.
18 Q Right.
19 A And whether -- and in partnership with state
20 attorneys, and sometimes that means state attorneys take the
21 lead. Sometimes that means the U.S. Attorney's Office takes
22 the lead, and it -- and a lot of times, we actually had, you
23 know, we -- we would share staff, because sometimes it made
24 sense for -- you know, for one part of the other to take the
25 lead.
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1 So, writ large, I thought throughout it was very
2 important that something happen. There were these concerns
3 all along. I can speculate that this is just a reflection of
4 those continuing concerns.
5 Q As expressed by you to in the ordinary
course?
7 A As developed as a group throughout this -- I can
so, if we go back to -- what was the Exhibit?
Q June of -- June of 2006.
A So, Exhibit 3, says, "In that meeting, I
summarized the case and the state attorney's office handling
12 it. I acknowledged that we needed to do work to collect
13 evidence establishing a federal nexus, and I noted the time
14 and money that would be required for an investigation." And
15 so, as far back as that initial meeting, there is the
16 discussion about the federal nexus, and is this a state or a
17 federal --
18 Q Right.
19 A -- case?
20 Q All right. Exhibit 7 is an early e-mail from=
21 to you. Early, meaning it proceeds the one --
22 A Correct-.
23 Q -- we just looked at, and early in that it's right
24 as you're
25 A 5
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1 Q -- receiving the pros memo, and you ask him, have
2 you read the memo? And curious why you ask MI
3 rather than
4 A I don't recall. I can -- I can speculate, and I
5 have two thoughts that I'll speculate. One is, ME her
6 direct supervisor.
7 Q Mm-hmm.
8 A And I might be thinking --
9 Q Second line supervisor.
10 A Her second line supervisor, so why is sending
11 me this? , have you read this? I.e., did you jump the
12 chain? Secondly, I think it I may have wanted to have
13 multiple opinions on this.
14 Q Ms-hmm.
15 A It's most likely that I had talked to
16 already, because and I talked more often, and I'm asking
17 another person in the management chain, hey, what do you
18 think? Let's have multiple opinions on the table here.
19 Q Well, this is the first time other than that
20 we see you getting a recommendation.
21 A Right.
22 Q When says, he thinks that you should
23 charge him -- you, the office, should charge Epstein. He has
24 issues with the charging strategy proposed by but
25 one, he says, "We all need to get on the same page as to
EFTA00009313

Page 86
1 whether the statute's covered the conduct, and whether the
2 conduct is the type we should charge. I think the answer to
3 both is yes, although there is some risk on some of the
4 statutes." He proposes that the office start with a
5 complaint, which is not unusual, is it?
6 A It -- it happens, yes.
7 Q All right, which allows the defendant to be
8 arrested, and ideally detained, and then the defendant is
9 then highly motivated or incentivized --
10 A Okay.
11 Q -- to work a pre-indictment resolution. That's
12 what is proposing. He also notes that it's
13 important to -- in his view, to "cap him with conspiracy
14 counts to make a plea attractive," and the court could give
15 us a hard time with that if we had to dismiss indicted
16 counts.
17 A Right.
18 Q Okay. The proposed indictment included one
19 conspiracy -- a conspiracy that has a five year
20 A Five year cap.
21 Q -- statutory maximum, and this notion is that
22 Epstein be charged with a five-year conspiracy count, and
23 take it from there. Do you know what he was referring to
24 when he noted that a court could give you a hard time in
25 dismissing indicted counts in this case?
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1 A So -- so, as a typical matter, once there's an
2 indictment, the -- a pre-indictment -- well, by definition, a
3 pre-indictment resolution comes off the table, but in cases
4 of this nature, the resolutions tend to happen before
5 indictment, because once the indictment is done, at least in
6 South Florida, dismissal of charges -- for example, if -- you
7 know, if is saying, let's think about a 371 with a five
8 year cap a rule 11 --
9 Q Mm-hem.
10 A -- that's something that South Florida judges, they
11 tend not to -- you know, dismissing a number of counts, and
12 then doing a rule 11 is not something that judges tend to do.
13 Q All right. Two -- two pieces to that. One is --
14 A Okay.
15 Q -- the issue of dismissing substantive --
16 A Right.
17 Q -- counts -- substantive counts. Is that -- was
18 that a particular concern in this case because of the nature
19 of the conduct represented in the --
20 A So --
21 Q -- substantive counts?
22 A -- so, so, your question -- you asked a general
23 question, and then now you're moving to a
24 Q Right.
25 A -- specific. As a general matter, not just in this
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1 case, but in other cases, it is -- it was rare that the
2 office after an -- in cases like this, after a full charge
3 was done, that that substantive counts were dismissed. So,
4 for example, in the public corruption cases that I referenced
5 earlier out of Palm Beach, those were all negotiated pre-
6 indictment, and agreed to, and then by the time the -- the
7 case was indicted, it was all -- it was all sort of set on
8 auto-pilot.
9 Q So, typically, in my experience, the -- a
10 disposition like that is -- results in a criminal
11 information, not an indictment.
12 A Correct, and --
13 Q Are you saying that you would go ahead and indict
14 then?
15 A No, no, no, what I'm saying is that they were -- it
16 was all negotiated in advance, and then there was an
17 information --
18 Q Oh, okay.
19 A -- and the information would go forward, not an
20 indictment.
21 Q All right.
22 A And so, that is how a number of high profile cases
23 typically proceeded, as opposed to indict and dismiss.
24 Q And that is the experience of the Southern District
25 of Florida in general?
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1 A It -- it was in particularly the Palm Beach office
2 with other high profile cases that were there at the time.
3 Q Do you recall any case in which a judge in an
4 indicted case refused to dismiss counts when the
5 government --
6 A Yeah.
7 Q -- in an indictment under those circumstances?
8 A I don't recall specific cases, but I can -- I can
9 say that typically in the higher profile cases you'd
10 negotiated with opposing counsel, presenting information.
11 The information would have agreed to an agreed to guideline,
12 and it would proceed in that way.
13 Q Understood, but in this case, I'm focusing on the
14 assertion by that the court could give us a hard
15 time, and that's a little different from, you know,
16 exercising discretion to negotiate and proceed by
17 information. So, is there any judge that -- that was
18 particularly concerning with regard to an unwillingness to --
19 A
20 Q -- dismiss?
21 A I don't -- so, first, this is 12 years ago, and I
22 don't recall any specific judge, but I can -- I can sort of
23 that say that was not the practice of the office. The
24 practice of the office was to proceed by information rather
25 than indictment with dismissal, because there is more --
EFTA00009317

Page 9C
1 there is -- there -- you can -- you can -- you can lay out
2 more what you've negotiated. I think later there's a letter
3 from.. that sort of presents the same perspective.
4 Q All right. In --
5 MS. One moment?
6 MS. : Go ahead.
THE WITNESS: Yeah.
8 BY MS. a:
Q You said in cases of this nature, the resolution
10 happens before indicting. What is the -- this cases of this
nature?
A Higher profile. Higher profile cases.
13 Q So, not necessarily sex offense cases?
14 A Not necessarily sex offense, no, no, no, higher --
15 higher profile cases where --
16 Q And this made -- this was a higher profile case
17 because --
18 A This was a -- just, a -- so, I would say it's a
19 combination of all of the above, and to my mind, one of
20 the -- one of the parts of this case is the legal theories
21 were, if not novel, they were novel within the Southern
22 District of Florida. At least, some of the legal theories,
23 and I -- we'll probably get into that.
24 Q Did his wealth make it a high profile case?
25 A Well, it was clearly in the paper. And so, that
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1 made it a high profile case. I don't think it -- I don't
2 think it was his wealth. I think it was all of the above.
3 This was a matter that the state attorney had been ready to
4 charge that the federal government is now jumping into and
S saying, by its presence, that the state did not do enough.
6 That in and of itself makes it a very high profile
7 case. I can't remember any other instance, certainly during
8 my time, when we jumped in and said, you know, the state
9 dropped charges, and so we are going to do more.
10 BY MS.
11 Q As opposed to, or as distinguished from what you'd
12 described a few moments ago, a situation in which the federal
13 authorities and the state authorities kind of worked together
14 to sort out what would be charged, where, and do it
15 cooperatively?
16 A And that was more cooperative, and I --
17 Q Right.
18 A i would -- you know, I do recollect that -- and
19 I think the record bears this out, that this was not a
20 particularly cooperative relationship between us and the
21 state attorney.
22 Q Mm-hmm. Yes, we will get to that. Were you --
23 A If I could -- if I could return, I think your
24 question -- the way you posed your question, you said a
25 recommendation from , and let me -- let me push back a
EFTA00009319

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1 little bit on that.
2 Saying what are your thoughts? Have you read it,
3 what are your thoughts? And he says, yes, we can talk next
4 week, my current thoughts are is very different than,
5 we've sat down, we've discussed this, this is my now informed
6 position.
7 Q Understood, and I -- I should have been clearer. I
8 was referring to his recommendation that if you were going to
9 proceed, you should start with a --
10 A Right.
11 Q -- complaint.
12 A Right.
13 Q Just to be clear.
I 4 A And I'm just saying --
15 Q Okay.
16 A -- initial thoughts are -- yeah.
17 Q All right. So, were you aware that
18 bootlegged a copy of the pros memo to at
CEOS?
20
Q He did at that time.
22 A 0k:Fcf.
23 Q And did you -- did you know
A A little bit. I certainly knew of him.
Q Had you encountered him when -- he was the chief of
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1 the child exploitation and obscenities section
2 A Right.
3 Q in the criminal division here, correct? Had you
4 encountered him while you were in this building also?
5 A Most likely. I knew of him enough that the
6 correspondence shows -- and I recall asking to involve him
7 pretty early on.
8 Q So, it does read as if you were acquainted with
9 him.
10 A Yeah.
Q All right. And did you have any -- did his
12 opinion, his views as chief of CEOS and as
3 who had been an AUSA --
14 A Right.
15 Q
A In Miami.
Q -- Miami, did his views have influence on your
8 thinking about this case?
19 A I don't think at this time I was aware that
20 had been consulted.
21 Q All right, and in July, just so you know, and I --
22 and this is not something you saw -- he provided a fairly
23 strong statement to -- by e-mail to and
24 in which he advises that he reviewed the pros memo
25 closely.
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1 It's terrific. He says did a terrific job,
2 and he says, "we agree with her legal analysis. Her charging
3 decisions are legally sound," and then goes
4 through the different statutes, and concludes that they are
5 all properly charged, and that although there are some
6 issues, legally, that in his view we should, "We should
7 prevail." "Our position should prevail."
8 And that he also reviewed the arguments contained
9 in the letters from defense counsel, and he found none of
10 their arguments persuasive. So, at least as of July 18,
11 your --
12 A Right.
13 Q -- three levels of supervisors down were on notice
14 that CEOS was on board and wanted to --
15 A Right.
16 Q see the case move forward, but is it -- am I
17 correct in understanding that at that time, you were unaware
18 of that?
19 A I do not recall being aware of that.
20 Q All right. Okay. If you had been aware of it, if
21 they had sent this --
22 A Yeah.
23 Q -- pretty -- I don't want to overstate it, but it
24 is a pretty strong endorsement of the proposed prosecution,
25 would you have been influenced by that?
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1 A Sure, I would have. I mean, I -- I respected MI,
2 and clearly wanted him to be part of the team, and later
3 invited him down, and so, yes.
4 Q Okay. All right. Do you know why they wouldn't
have shared -- your people wouldn't have shared this with
6 you?
A I can't -- I don't know.
8 Q All right. So, when -- as far -- based on the
9 briefings that you got at -- in this time period when there
10 was an effort to try to figure out --
11 A Right.
12 Q -- what you were going to do, were there any issues
13 of concern of fact or evidence or the charges that were left
14 unaddressed? In other words, if there were issues about
15 victim credibility, were steps being taken to address those?
16 A Unaddressed is a -- again, it -- it's a very
17 binary, and it's not about addressed versus unaddressed. And
18 so, let me -- let me sort of come at it, if I can try to
19 get -- there were concerns around some legal issues. There
20 were concerns about how the victims would do when put on the
21 stand.
22 Q Right.
23 A As a general matter, we thought there was enough if
24 we had to go forward, we could, as an ethical matter, go
25 forward. That doesn't mean that there was not value in a
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1 pre-indictment resolution.
2 And so, here, you havellIII, based on this Exhibit
3 7, saying, we need to get on the same page as to what to
4 charge, pre-indictment resolution, cap him with conspiracy
5 count to make up the attractive.
6 So, a five year cap, something less than five
7 years, you have in her affidavit that was submitted to
8 the court saying she favored a pre-indictment resolution.
9 And so, it's not a, have you addressed everything, yes or no,
10 as opposed to putting all of this, how do we --
11 Q All right.
12 A -- how do we move forward?
13 Q Right, but there is a binary point here, and that
14 is, you either indict or you don't indict. You either
15 present an indictment to the grand jury, or you don't, right?
16 That's a decision. Right?
17 A So, I would -- I would actually push back in that
18 in many cases, it's not quite that binary. In many cases,
19 you sit down with opposing counsel and say, look, we can go
20 to a grand jury, and we can present this indictment and
21 indict, or we can resolve this now. If we resolve this now,
22 this is the path that can go forward. Alternatively, we can
23 go here. And so, it's not an A versus B.
24 Q I understand that nuance, but the decision to
25 indict does -- I mean, you either indict or you don't. If
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1 you don't indict, it's for any number of reasons. If under
2 these circumstances, the choices that are available are you
3 have a case that's been brought in -- taken in from --
4 A Right.
5 Q -- the state. You can -- you can decline it. Send
6 it back to the state, make it go away, whatever.
7 A Right.
8 Q We're not interested. You can indict. You can
9 indict and go to trial. These are the subcategories. Or you
10 can indict and have the defendant plead to the indictment, or
11 you can indict and work a post-indictment plea deal, which
12 raises the issues you talked about, or you can negotiate
13 an -- or you can charge -- proceed by complaint, and do as
14 was suggesting --
15 A Right.
16 Q -- work a pre-indictment but post charge
17 disposition, or you can work a pre-charge disposition, right?
18 I mean, that's really --
19 A So, so --
20 Q That's the parade of possibles.
21 A Sure, but that's more than indictment or don't
22 indict. That's six or seven options.
23 Q I understand that. That's how it will play out,
24 but the decision as to whether to indict is binary. You're
25 either indicting or you're not indicting. The -- the act of
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1 indicting is a -- is something that either happens or doesn't
2 happen. That's all I'm saying.
3 A Sure.
4 Q Okay? So, what I'm getting at is, with respect to
5 the indictment -- so, as you're looking at this case,
6 you're -- it sounds as if you're doing sort of one analytical
7 track, which is, what do we do with this case? The other
8 piece of that, and a track that could have been followed
9 exclusively is, what do we need to do to get an indictment
10 that is legally sound and evidentiary -- evidentiarily solid?
11 I'd like to focus on that track --
12 A Okay.
13 Q -- because they're not unrelated.
14 A Sure.
15 Q If you never get down the, do we have a viable
16 indictment road, then you're not going to be able to do
17 anything in the other
18 A Sure.
19 Q -- road. So, at this point, you had identified,
20 and you collectively -- you and your people had identified
21 some witness -- victim witness issues, and some legal issues.
22 My question is, were steps being taken to -- i used -- I used
23 the term address --
24 A Right.
25 Q -- let me -- let me clarify, with respect to the
EFTA00009326

e ,
1 witnesses, was the FBI and the line attorney with the
2 assistance perhaps of the grand jury, taking steps to
3 corroborate --
4 A Right.
5 Q -- shore up victim witness testimony, find new
6 victims, find additional evidence, and so on?
7 A So -- so, taking that in part is helpful. So, with
8 respect to the witness issues, I recall, and goes into
9 much more detail in her affidavit, but I recall concerns that
10 were communicated to me about, in essence, to sort of
11 summarize my impression or recollection, these girls are
12 young.
13 They're impressionable. They are scared. Will
14 they stand up in court? There are any number of -- there's
15 any number of things that could be used against them. Some
16 of them are -- and this is uncomfortable, but some of them
17 thought he actually cared for them, and that's not atypical
18 in these cases where they -- they sort of develop thoughts
19 that are wrong, but -- but they are what they are, and were
20 actually saying he did nothing wrong, and because many of
21 them knew one another, how would that all play out?
22 Q Right.
23 A And so, it would be my assumption, particularly
24 given, you know, how much work was doing on this
25 case -- Ms. was doing on this case -- that she, in
EFTA00009327