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Case 22-1426, Document ENOL 3536039, Page37 of 217 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 291 of 348 IV. ACOSTA’S DECISION TO DEFER TO THE STATE ATTORNEY’S DISCRETION WHETHER TO NOTIFY VICTIMS ABOUT EPSTEIN’S STATE COURT PLEA HEARING DID NOT VIOLATE A CLEAR OR UNAMBIGUOUS STANDARD; HOWEVER, ACOSTA EXERCISED POOR JUDGMENT BY FAILING TO ENSURE THAT VICTIMS IDENTIFIED IN THE FEDERAL INVESTIGATION WERE ADVISED OF THE STATE PLEA HEARING As set forth in the factual discussion, within a few weeks of the NPA’s signing, it became clear that the defense team disagreed with, and strongly objected to, the government’s plan to inform victims of their ability to recover monetary damages from Epstein, under the 18 U.S.C. § 2255 provision of the NPA, and about Epstein’s state court plea hearing. The USAO initially took the position that it was obligated to, and intended to, inform victims of both the NPA, including the § 2255 provision, and Epstein’s change of plea hearing and sentencing, so that victims who wanted to attend could do so. In November and December 2007, Epstein’s attorneys challenged the USAO’s position regarding victim notification. Ultimately, Acosta made two distinct decisions concerning victim notifications. Consistent with Acosta’s concerns about intruding into state actions, Acosta elected to defer to state authorities the decision whether to notify victims about the state’s plea hearing pursuant to the state’s own victim’s rights requirements. Acosta also determined that the USAO would notify victims about their eligibility to obtain monetary damages from Epstein under § 2255, a decision that was implemented by letters sent to victims after Epstein entered his state pleas. This decision, which postponed notification of the NPA until after Epstein entered his guilty pleas, was based, at least in part, on Villafafia’s and the case agents’ strategic concerns relating to preserving the victims’ credibility and is discussed further in Section V, below. In this section, OPR analyzes Acosta’s decision to defer to the state the responsibility for notifying victims of Epstein’s plea hearing and sentencing. OPR concludes that neither the CVRA nor the VRRA required the government to notify victims of the state proceeding and therefore Acosta did not violate any statutes or Department policy by deferring to the discretion of the State Attorney whether to notify victims of Epstein’s state guilty pleas and sentencing. However, OPR also concludes that Acosta exercised poor judgment because by failing to ensure that the state intended to and would notify victims of the federal investigation, he failed to treat victims forthrightly and with the sensitivity expected by the Department. Through counsel, Acosta “strongly disagree[d]” with OPR’s conclusion and argued that OPR unfairly applied a standard “never before expected of any U.S. Attorney.” OPR addresses Acosta’s criticisms in the discussion below. A, Acosta’s Decision to Defer to the State Attorney’s Discretion Whether to Notify Victims about Epstein’s State Court Plea Hearing Did Not Violate Any Clear or Unambiguous Standard In November 2007, Villafafia sought to avoid defense accusations of misconduct concerning her interactions with the victims by preparing a written notice to victims informing them of the resolution of the federal case and of their eligibility for monetary damages, and inviting them to appear at the state plea hearing. Villafafia and Sloman exchanged edits of the draft letter and, at Sloman’s instruction, she provided the draft to defense attorney Lefkowitz, who, in turn, 265 DOJ-OGR-00021467