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A. 
Declining To Prosecute 
The United States Attorney's Manual [hereinafter "USAM" sets faith when to 
initiate or decline prosecution. Section 9-27.220 provides, in pertinent part: 
The attorney for the government should commence or 
reconanend Federal prosecution if he/she believes that the 
person's conduct constitutes a Federal offense and that the 
admissible evidence will probably be sufficient to obtain 
and sustain a conviction, unless, in his/her judgment, 
prosecution should be declined because: 
1. 
No substantial Federal interest would be served by 
prosecution; 
2. The person is subject to effective prosecution in another 
jurisdiction; or 
3. 
Them exists an adequate non-criminal alternative to 
prosecution. 
Mr. Epstein has been prosecuted in Florida, which considered all of the issues and 
determined the appropriate crime to charge him with. As shown above, them is no federal 
interest here. Moreover, were we to assume that Mr. Epstein's conduct constitutes a 
federal crime that can be proved, nevertheless, no "substantial Federal interest" would be 
served by prosecuting him. On this question, the USAM Section 9-27.230 gives specific 
guidance: 
In determining whether prosecution should be declined because no 
substantial Federal interest would be served by prosecution, the 
attorney 
for 
the 
government 
should 
weigh 
all 
relevant 
considerations, including: 
1. Federal law enforcement priorities; 
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2. The nature and seriousness of the offense; 
3. The deterrent effect of prosecution; 
4. The person's culpability in connection with the 
offense; 
5. The person's history with respect to criminal 
activity; 
6. The person's willingness to cooperate in the 
investigation or prosecution of others; and 
7. The probable sentence or other consequences if 
the person is convicted. 6
Each of these factors militates against prosecution. As indicated, federal law 
enforcement priorities focus on the use of the intemet to target minors, or trafficking in 
minors. The conduct in which Mr. Epstein arguably engaged was different in nature. 
Given its essentially sui generic character, its prosecution would have little or no 
deterrent effect. 
Mr. Epstein has no criminal history. If prosecuted under statutes designed to 
address far more serious conduct and far more dangerous offenders, he would be subject 
to punishment that is grossly disproportionate to his behavior. 
Clearly, whatever phone calls may have been made by Mr. Epstein's staff were 
merely incidental; they were not a means to lure underage women into illicit sexual acts 
while taking advantage of anonymity and distance. Likewise, Mr. Epstein's interstate 
travel was of no federal interest. He spent a great deal of his time in Florida because he has 
6 Each of these factors is discussed in greater detail in lISAM 9-27.230(8). 
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a home and family there, and for a variety of other reasons that had nothing to do with 
sexual behavior with underage woman. Given the attenuated relationship between sexual 
behavior with any person under 18 and the use of the phone (or interstate travel), the 
federal interest in this matter is slight, if existent at all. 
The conduct at issue is not an example of a widespread phenomenon that crosses 
state lines or that is difficult for local authorities to prosecute. It does not involve targeting 
of children. It does not involve organized prostitution, sex trafficking, or organized crime. 
It does not involve violence or threat of harm. It does not involve child pornography. 
Indeed, the circumstances of this case arc idiosyncratic. 
What is alleged here is entirely local sexual encounters - whether with an adult or a 
minor — which are, and always have been, the concern of local prosecutors. They are not 
what the federal statutes target, nor arc they the kind of cases that the U.S. Attorney's 
Office usually pursues. 
B. 
Petite Policy 
In addition to the factors discussed above, the Petite Policy (regarding dual and 
successive prosecutions), should also be a bar to any federal prosecution or involvement 
in the State proceedings. 
The USAM at 9-2.031 establishes guidelines for the exercise of discretion by 
appropriate officers of the Department of Justice in determining whether to bring a 
federal prosecution based on substantially the same acts involved in a prior state or 
federal proceeding. Though the Policy does not create any substantive or procedural 
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rights enforceable by law, it nevertheless provides a valid basis for arguing against the 
institution of charges in this matter: 
This policy precludes the initiation or continuation of a 
federal prosecution, following a prior state or federal 
prosecution based on substantially the same act(s) or 
transaction(s) unless three substantive prerequisites are 
satisfied: first, the matter must involve a substantial federal 
interest; second, the prior prosecution must have left that 
interest demonstrably unvindicatcd; and third, applying the 
same test that is applicable to all federal prosecutions, the 
government must believe that the defendant's conduct 
constitutes a federal offense, and that the admissible 
evidence probably will be sufficient to obtain and sustain a 
conviction by an unbiased trier of fact. . . . 
Satisfaction of the three substantive prerequisites does not 
mean that a proposed prosecution must be approved or 
brought. The traditional elements of federal prosecutorial 
discretion continue to apply. 
USAM 9-2.031(A) 
The Policy does not apply unless there has been a prior prosecution resulting in an 
acquittal or a conviction, including one resulting from a plea agreement. USAM 9-
2.031(C). While here there technically has not been a conviction in the state courts, there 
would have been one but for the interference of federal authorities. Thus under the spirit, 
if not the language itself, the policy should apply here. 
This matter dots not involve a substantial federal interest, nor would the state 
prosecution leave a substantial federal interest "demonstrably unvindicated." "In general, 
the Deparunent will presume that a prior prosecution, regardless of result, has vindicated 
the relevant federal interest." USAM 9-2.031(D). 
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The presumption may be overcome when the prior prosecution resulted in a 
sentence which was manifestly inadequate in light of the federal interest involved or if the 
choice of charges in the prior prosecution was affected by certain inappropriate or 
irrelevant factors such as "incompetence, corruption, intimidation, or undue influence." 
No such factors exist here. The negotiations between Mr. Epstein and the State's 
Attorney's office were conducted at arms length, and sometimes in an atmosphere of 
mutual hostility. At no point was Mr. Epstein granted any sort of "break" in his case due to 
his wealth, his political affiliations, or the prominence of his lawyers. If anything, those 
factors worked against him. The state prosecutors devoted enormous resources in a 13 
month investigation. 
Ultimately, the State's Attorney's office charged Mr. Epstein with a more severe 
crime than originally contemplated. In determining the charges, that Office obviously 
took into account the fact that some of the alleged victims have serious credibility 
problems, including damaging histories of lies, illegal drug use, and crime and therefore 
was concerned with the substantial possibility that with these witnesses it might not be 
able to make any case against Mr. Epstein. 
The charging decision was not an act of favoritism, but rather an appropriate 
exercise of the State's Attorney's office's discretion. The conduct of the United States 
Attorney here is not merely intrusive of these arms length negotiations, it is coercive of a 
defendant and requires him to ask the State to impose a harsher punishment upon himself 
than the State itself has determined appropriate. 
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C. 
Prosecution In Another Jurisdiction 
Furthermore, another section of the USAM 9-27.240, Initiating and Declining 
Charges Because of a Prosecution in Another Jurisdiction, would also prohibit any 
federal charges here. 
In determining whether prosecution should be declined because the person is 
subject to prosecution in another jurisdiction, the attorney for the government should 
weigh all relevant considerations, including: 
1. 
The strength of the other jurisdiction's interest in prosecution; 
2. 
The other jurisdictions ability and willingness to prosecute effectively; and 
3. 
The probable sentence or other consequences if the person is convicted in 
the other jurisdiction. 
There can be no dispute that the State of Florida bad a strong interest in this 
prosecution and the ability and the willingness to prosecute it. Furthermore, the behavior 
alleged here is certainly one of local interest and of particular interest to the State 
authorities who conducted a 13 month investigation. This is not a civil rights case from 
the 1960's brought halfheartedly and resulting in an acquittal. The sentence agreed to by 
the State, while it may not be to the federal authorities liking, is certainly within the 
parameters of sentences for these types of crimes and does not warrant federal 
intervention. 
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D. 
Payments of Money 
The federal authorities have also insisted that any plea with the State of Florida 
must require Mr. Epstein to agree to be sued by as many as 40 of the women, that he not 
contest jurisdiction or the facts of those suits and that each woman be entitled to 
$150,000 in damages (or an amount agreed to by the parties). It is apparent that the 
federal authorities have inappropriately tried to impose upon Mr. Epstein penalties 
provided for in IS U.S.C. § 2255(a). 
The federal prosecutors have attempted to circumvent the requirements of that 
statute by essentially making anyone who claims to be a victim automatically entitled to a 
$150,000 payment without any requirement of proof of injury, which the statute requires. 
Prosecutors shouldn't be in the business of helping alleged victims of state crimes secure 
financial settlements especially here where some of the victims may be suspect. 
In addition, a threat by a prosecutor to prosecute unless payments arc made to 
potential prosecution witnesses is highly inappropriate and not something that I have ever 
encountered before.' In United States  Singleton 165 F.3d 1297, 1302 (10th Cir. 1999) 
the Court frowned upon such behavior: 
Our conclusion in no way permits an agent of the 
government to step beyond the limits of his or her office to 
make an offer to a witness other than one traditionally 
exercised by the sovereign. 
A prosecutor who offers 
something other then a concession normally granted by the 
While federal law provides for restitution to victims and prosecutors have required restitution as part of 
plea agreements, it is done in situations where the victims arc readily identifiable and their losses arc 
reasonably ascertainable. Here, without nny proof, the prosecutors demanded payments to unknown 
individuals who may not have been harmed at all. What is more, the government has stated that it takes no 
position as to validity of these alleged victim's claims. 
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government in exchange for testimony is no longer the alter 
ego of the sovereign and is divested of the protective 
mantle of the government. 
The demand for such payments for unproven "victims" in amounts unrelated to 
any rational standard is beyond the bounds of any legitimate or even rational 
governmental conduct. 
In sum, coercing Mr. Epstein to pay $150,000 to 40 or so "victims" when no 
detcrrnination has been made that they arc entitled to any compensation, in any amount, 
is unknown to me in my experience and is beyond mere heavy handedness: it is 
oppressive. 
Conclusion 
There was no reason for federal authorities to interfere in this case. The State of 
Florida devoted substantial resources investigating the case and considered all the 
evidence, including its strengths and weaknesses, in determining the appropriate sentence 
to resolve this matter. That sentence would have ensured that the defendant would never 
engage in such conduct again. 
In my experience, as a line prosecutor, as a prosecutor in charge of a United 
States Attorney's office, and as a defense attorney involved in criminal cases throughout 
the country, I have never encountered a situation like this one where a federal prosecutor 
injects himself into a state proceeding and used threats of federal prosecution to force 
changes in the outcome of a state proceeding not merely to one more to his liking, but 
one which has no rational relationship to the situation. As unusual as this would be if 
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there were a clear federal interest here, it is all the more shocking in this instance: a 
matter that is solely of state concern - - local sex crimes having no interstate or national 
importance - - with no attendant federal crime. 
Furthermore, even if these federal statutes somehow applied to the situation here, 
it would still not be appropriate to bring these charges. The federal statutes were meant 
to address exploitation of minors, trafficking in illegal sex across state and national 
borders, and child pornography. What we have here is one individual seeking sexual 
gratification in the privacy of his own home and if he did something inappropriate, it is 
not for the federal government to intrude by ignoring the Petite Policy and other similar 
restrictions, as well as our traditional concepts of federalism. The situation here is not 
what Congress had in mind when it enacted these statutes. If the federal authorities 
believe that the states are not properly policing the sex trade, the remedy should be to 
lobby Congress for stronger statutes, not to interfere in a state proceeding in order to 
make some kind of statement. It is not the federal government's role to police the states' 
exercise of prosecutional discretion, barring a serious impropriety. Surely, this is not that 
situation. If the true motivation of federal prosecutors here is simply their personal dislike 
of Mr. Epstein, or mere personal dislike for the crime or of their sympathy for the 
women, those are clearly impermissible considerations and are improper. Sec USAM 9-
27. 260(A)(2). 
In my judgment and experience, it would be most appropriate for the prosecutors 
in the United States Attorney's office to advise the State authorities that they have no 
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further interest in these proceedings and that State and the defendant arc free to negotiate 
whatever resolution they deem appropriate. 
Sincerely, 
HJS:It 
Herbert J. Stern 
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