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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 65 of 349 [The prosecution] was going forward on the part of the state, and so here is the big bad federal government stepping on a sovereign .. . state, saying you’re not doing enough, [when] to my mind. . . the whole idea of the [P]etite policy is to recognize that the [|state .. . is an independent entity, and that we should presume that what they’re doing is correct, even if we don’t like the outcome, except in the most unusual of circumstances. Acosta told OPR that “absent USAO intervention,” the state’s prosecution of Epstein would have become final, and accordingly, it was “prudent” to employ Petite policy analysis. As Acosta explained in a public statement he issued in 2011, “the federal responsibility” in this unique situation was merely to serve as a “backstop [to] state authorities to ensure that there [was] no miscarriage of justice.” Furthermore, Acosta saw a distinction between a case that originated as a federal investigation and one that had already been indicted by the state but was brought to the federal government because of a perception that the state charge was inadequate. In the latter circumstance, Acosta viewed the USAO’s role only as preventing a “manifest injustice.”°! Acosta explained that “‘no jail time” would have been a manifest injustice. But it was his understanding that if Epstein had pled guilty to state charges and received a two-year sentence to a registrable offense, “it would never have come to the office in the first place,” and therefore would not be viewed as a manifest injustice. Acosta also told OPR he was concerned that a federal prosecution in this case would result in unfavorable precedent, because the Epstein case straddled the line between “solicitation” or “prostitution,” which Acosta described as a traditional state concern, and “trafficking,” which was an emerging matter of federal interest. Acosta contended that in 2006, “it would have been extremely unusual for any United States Attorney’s Office to become involved in a state solicitation case, even one involving underage teens,” because solicitation was “the province of state prosecutors.” Acosta told OPR, “I’m not saying it was the right view -- but there are at least some individuals who would have looked at this and said, this is a solicitation case, not a trafficking case.” Acosta was concerned that if the USAO convicted Epstein of a federal charge, an appeal might result in an adverse opinion about the distinction between prostitution and sex trafficking. Acosta also told OPR that he was concerned that a trial would be difficult for Epstein’s victims. In Acosta’s estimation, a trial court in 2007 might have permitted “victim shaming,” which would have been traumatic for them. In addition, the fact that the state grand jury returned a one-count indictment with a charge that would not require jail time suggested to Acosta that the state grand jury found little merit to the case.® Acosta told OPR: bo Letter from R. Alexander Acosta “To whom it may concern” at 1 (Mar. 20, 2011), published online in The Daily Beast. 61 Acosta was referring to the Petite policy provision allowing the presumption that a prior state prosecution has vindicated the relevant federal interest to be “overcome . . . if the prior [state] sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence . . . is available through the contemplated federal prosecution.” USAM § 9-2.031.D. & Acosta told OPR he was unaware that USAO prosecutors believed the State Attorney’s Office had deliberately undermined the case before the state grand jury. Menchel told OPR that he understood that the State 38 DOJ-OGR- 00004362