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Case 22-1426, Document 77, A307 3536038, Page209 of 258 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 207 of 348 indictment. Given Epstein’s continued insistence that federal charges were not appropriate and defense counsel’s efforts to minimize the amount of time Epstein would spend in jail, it is questionable whether Epstein would have accepted such a plea offer, but the USAO did not even extend the offer to determine what his response to it would be. Weighed against possible loss at trial were some clear advantages to a negotiated resolution that ensured a conviction, including sexual offender registration and the opportunity to establish a mechanism for the victims to recover damages. These advantages, added to Acosta’s concern about intruding on the state’s authority, led him to the conclusion that a two-year state plea would be sufficient to prevent manifest injustice. Menchel told OPR, “I don’t believe anybody at the time that this resolution was entered into was looking at the two years as a fair result in terms of the conduct. I think that was not the issue. The issue was whether or not if we took this case to trial, would we risk losing everything?” During the course of negotiations over a potential federal plea, the USAO agreed to accept a plea for an 18-month sentence, a reduction of six months from the original “non-negotiable” two- year term. The subjects did not have a clear memory of why this reduction was made. Villafafia attributed it to a conversation between Acosta and Lefkowitz, but Acosta attributed it to a decision made during the negotiating process by Villafafia and Lourie, telling OPR that he understood his attorneys needed flexibility to reach a final deal with Epstein. OPR found no contemporaneous documents showing the basis for the two-year term. Despite extensive subject interviews and review of thousands of contemporaneous records, OPR was unable to determine who initially proposed the two-year term of incarceration or why that term, as opposed to other possible and lengthier terms, was settled on for the initial offer. The term was not tied to statutory or guidelines sentences for potential federal charges or, as far as OPR could determine, possible state charges. Furthermore, while the USAO initially informed the defense that the two-year term was “non-negotiable,” Acosta failed to enforce that position and rather than a “floor” for negotiations, it became a “ceiling” that was further reduced during the negotiations. OPR was unable to find any evidence indicating that the term of incarceration was tied either to the federal interest in seeking a just sentence for a serial sexual offender, or to other traditional sentencing factors such as deterrence, either of Epstein or other offenders of similar crimes. Instead, as previously noted, it appears that Acosta primarily considered only a punishment that was somewhat more than that to which the state had agreed. As a result, the USAO had little room to maneuver during the negotiations and because Acosta was unwilling to enforce the “non-negotiable” initial offer, the government ended up with a term of incarceration that was not much more than what the state had initially sought and which was significantly disproportionate to the seriousness of Epstein’s conduct. In sum, it is evident that Acosta’s desire to resolve the federal case against Epstein led him to arrive at a target term of incarceration that met his own goal of serving as a “backstop” to the state, but that otherwise was untethered to any articulable, reasonable basis. In assessing the case only through the lens of providing a “backstop” to the state, Acosta failed to consider the need for a punishment commensurate with the seriousness of Epstein’s conduct and the federal interest in addressing it. 181 DOJ-OGR-00021381