DOJ-OGR-00021481.jpg

Case 22-1426, Document 78, A305 3536039, Paged1 of 217 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 305 of 348 and they often cannot fully reveal either the facts or the status of an investigation, even with victims. The 2005 Guidelines advise that in consulting with a victim, prosecutors may be limited in their disclosures: “Because victims are not clients, may become adverse to the Government, and may disclose whatever they have learned from consulting with prosecutors, such consultations may be limited to gathering information from victims and conveying only nonsensitive data and public information.”*? Villafafia’s concern about generating potential impeachment evidence by informing victims of their potential to recover monetary damages from Epstein was not unreasonable. Indeed, the case agents initially raised the impeachment issue, and after considering the problem, Villafafia agreed with the agents’ concerns. Villafafia raised those concerns with the USAO’s Professional Responsibility Officer in October 2007 after the agents brought the issue to her attention, and she ultimately raised the issue with Sloman and Acosta as well, neither of whom advised her that those concerns were improper or unsound. OPR also considered that although Villafafia had sought to notify the victims in writing of the NPA soon after it was signed, her supervisor, the U.S. Attorney, had decided otherwise. When authorized to inform Edwards of the scheduled change of plea hearing, she did so. Although she did not inform Edwards that the plea was part of a global resolution that would end the federal investigation, the evidence does not show that Villafafia acted for the purpose of deceiving Edwards or preventing him from attending the hearing. Had she sought to exclude him from the state proceedings, she could have elected not to inform Edwards at all, or she could have discouraged him from attending the state proceedings. Rather, as Edwards confirmed, Villafafia told him the hearing was “important.” Villafafia sought to strike a difficult balance of securing Edwards’s (and his clients’) attendance at the state court plea, while obeying her management’s directive that informing victims of the resolution of the federal investigation should not be done until completion of the state plea. Therefore, after carefully considering all of the circumstances, OPR concludes that the evidence does not establish that Villafafia violated her obligations under FRPC 4-4.1 or 4-8.4(c) or (d).4* Nonetheless, as discussed below, Villafafia’s interactions with victims and victims’ attorneys without informing them of the NPA and the potential conclusion of the federal investigation contributed to the likelihood that the victims would feel that the government was 443 2005 Guidelines, Art. 1V, | B.2.c(1). As noted, some victims continued to express favorable views of Epstein during interviews with the government and they, or their attorneys, could have provided information to Epstein about the government’s communications. For example, within a day of Villafafia contacting a victim’s attorney about a potential victim notification letter, Starr complained to Acosta that the government had recently inappropriately provided “oral notification of the victim notification letter” to one girl’s attorney, even though it was clear from the girl’s recorded FBI interview that she “did not in any manner view herself as a victim.” al The case most directly on point is Smith, 109 A.3d 1184, in which the Maryland Court of Appeals affirmed a violation of Maryland Rule of Professional Conduct 8.4(d) based on a prosecutor’s failure to notify the victim of the resolution of a sex abuse case. However, as noted previously, in Smith, the criminal defendant had been arrested and charged before entering a plea, and various specific statutes afforded victims the right to receive notices and an opportunity to be heard concerning “a case originating by indictment or information in a circuit court.” In this case, for the reasons previously discussed, Villafafia did not have a clear and unambiguous obligation to inform the victims or Edwards of the NPA. 279 DOJ-OGR-00021481