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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 78 of 349 understood that the PBPD would not have asked the FBI to investigate Epstein if the state had pursued the appropriate charges. In other words, in Acosta’s view, “[T]his was, rightly or wrongly, an analysis that distinguished between what is necessary to prevent manifest injustice, versus what is the appropriate federal outcome to that.” Acosta told OPR that he believed he had discussed his concerns about the case with Lourie, Sloman, or Menchel, although he could not recall any specific conversation with them. E. Villafaiia Drafts a “Term Sheet” Listing the Requirements of a Potential Agreement with the Defense A meeting with defense counsel was scheduled for Tuesday, July 31, 2007. Villafafia told OPR that between July 26 and July 30, 2007, she had “some sort of discussion” with her supervisors that resulted in her creation of a “term sheet” identifying the proposed terms for resolving the federal investigation through state charges. Sometime during that period, Villafafia left a voicemail message for Menchel. During their OPR interviews, neither Villafafia nor Menchel could recall what Villafafia said in that message. On July 30, 2007, Menchel emailed Villafafia: I received your voicemail this morning. I don’t see any reason to change our approach. I think telling them that unless the state resolves this in a way that appropriately vindicates our interests and the interests of the victims, we will seek [federal charges] conveys that we are serious. While Lilly [Sanchez] has represented in the past that this would likely not happen, I never conveyed it in quite these terms before. In any event, this is the course of action that the US Attorney feels comfortable taking at this juncture. The following day, July 31, 2007, Villafafia emailed a one-page “Terms of Epstein Non-Prosecution Agreement” to Sloman, Menchel, and Lourie. Villafafia told OPR she had never before seen or heard of a non-prosecution agreement and that it was a concept “completely foreign” to her.®° Villafafia told OPR that the idea of styling the two-year state plea agreement with Epstein the state indictment. OPR considered various potential state charges involving various numbers of victims and found no obvious reasonable state sentencing guidelines calculation that would have resulted in a two-year sentence. 85 Deferred prosecution and non-prosecution agreements were standard, though infrequently used, vehicles for resolving certain federal criminal cases against corporate entities. A 2008 Departmental memorandum explained: The terms “deferred prosecution agreement” and “non-prosecution agreement” have often been used loosely by prosecutors, defense counsel, courts and commentators. As the terms are used in these Principles [of Federal Prosecution of Business Organizations], a deferred prosecution agreement is typically predicated upon the filing of a formal charging document by the government, and the agreement is filed with the appropriate court. In the non-prosecution agreement context, formal charges are not filed and the agreement is maintained by the parties rather than being filed with a court. Clear and consistent use of these terms will enable the Department to more effectively identify and share best practices and to track the use of such agreements. These Principles do not apply 51 DOJ-OGR-00004375