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DRAFT 
In September of 2007, the United States Attorney's Office for the 
Southern District of Florida, the largest and one of the most 
respected of the nation's prosecutorial arms of the Department of 
Justice, entered into a written Non-Prosecution Agreement which 
exchanged a commitment to not bring federal charges that related 
to a wide-ranging FBI investigation against Jeffrey Epstein for his 
agreement to a set of conditions which until the recent Miami 
Herald articles had never been publicly construed as being overly 
lenient other than by several victims who understandably wished 
for more Draconian punishment. The benefits that accrued to the 
Government from entering this Agreement were not set forth 
despite the pages of press condemning the negotiations which 
resulted in the Agreement. Amongst them were that Mr. Epstein 
went to a state jail to serve an 18 month sentence under the same 
conditions as any other county prisoner, that the jail sentence 
would be followed by a 12 month period of probation under the 
strictest of supervisory conditions, that Mr. Epstein would be 
required to plead guilty to a felony that the State had otherwise 
elected to forego that would mandate that he register as a Sex 
Offender for life, that Mr. Epstein agree to waive his principal 
defenses to any federal civil lawsuit brought under the provisions 
of a specific federal victim restitution statute and, further, to pay 
for a very respected attorney Robert Josefsberg to represent the 
victims under procedures that would be monitored by a Special 
Master, retired federal judge Edward Davis. As a result of this 
agreement — one that was the product of months of negotiations —
Mr. Epstein paid millions of dollars of both restitution and civil 
monetary damages, each without a trial, each because of the 
concessions negotiated by the United States Attorney's Office to 
bring overall justice to a uniquely complex case at the crossroads 
of federal and state law enforcement powers. Rather than, as 
depicted by the media in its recent attacks, an isolated or 
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aberrational decision of a single US Attorney, the Agreement was 
carefully negotiated and then reviewed by most of the hierarchy of 
the United States Attorney's Office and then again reviewed by 
three levels of senior officials at the Department of Justice in 
Washington: first by the heads of CEOS (the Child Exploitation 
and Obscenity Section), then by the Criminal Division, and finally 
by the Deputy Attorney General, Mark Filip, who was the principal 
decision-maker other than the Attorney General himself.. 
A core of the architecture of the criminal justice system's 
division of power between state and federal criminal laws is the 
principle that absent a clear indication by Congress that a federal 
statute is intended to effect a "significant change in the sensitive 
relationship between federal and state criminal jurisdiction" 
prosecutors and Courts are required to narrowly construe the scope 
of federal criminal statutes. Although the United States Attorney 
was investigating violations of 18 USC 2423 (prohibiting interstate 
travel for the purpose of engaging in a sex offense), 18 USC 
2422(b) (prohibiting the use of interstate wires to induce a sex 
offense), and 18 USC 1591 (prohibiting commercial sex trafficking 
and the use of force and fraud for commercial sex), the factual 
allegations against Mr. Epstein had the common characteristics of 
a paradigm state prostitution offense where he, Epstein, paid young 
women for sex at his own home, where he did not induce them via 
the internet, where he did not commercially traffic the women for 
his own economic benefit, where his offenses were ordinarily state 
misdemeanors where Epstein had the role of a "john". Whether a 
federal prosecution could prove wrongful intent or inducement 
when his travel to Palm Beach was to go to his own home where 
he visited with family and friends or where the communications 
were limited to scheduling a massage were very close questions 
that could have resulted in Mr. Epstein's complete acquittal rather 
than conviction. The Agreement was a classic negotiation between 
two independent Parties where the Government achieved, without 
risking acquittal, much of what it sought — imprisonment, 
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probation, restitution, sex offender registration, and the facilitating 
of their witness-victims negotiating financial settlements — and 
where defense counsel, including the undersigned, discharged their 
professional responsibilities, gaining for their client (as occurs in 
every negotiation) a moderation of the maximum potential penalty 
in exchange for an agreement not to seek an acquittal. 
In 2007 the United States Attorney negotiated an Agreement that 
was consistent with the Department of Justice's then existing 
Crime-Victim policy which required neither consultation nor 
notification in the event that there would not be a federal 
prosecution. In 2008 Mr. Epstein went to jail, was given the same 
work release treatment that was conferred by prison officials on 
others, was released under strict probationary conditions which he 
met, registered as a sex offender, paid the court-appointed victim 
legal representative significant fees to represent victims who were 
suing him in cases where he was required to agree to not contest 
liability (a unique benefit to the witnesses), and has thereafter — for 
now over 10 years — lived without further incident, working hard, 
obeying the law, giving generously to charity, and avoiding any 
conduct that does not carefully conform to the requirements of 
both federal and state law. 
11 year old independently negotiated agreements that are fully 
satisfied do not get ignored or circumvented because of criticism 
leveled years later by witness-victims who themselves sued and 
settled civil cases aided by the very Agreement they now condemn. 
It's time the media stops vilifying ethical prosecutors and stops 
distorting and even ignoring the many benefits achieved by the 
Government in its exercise of discretionary prosecutorial decision-
making that was reviewed, again, at the highest levels of the 
nation's prosecutorial authorities. And it's also time for finality —
for Mr. Epstein who has fully performed his obligations under the 
Agreement and for the Government which has been so unfairly 
criticized in the recent media. 
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