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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 94 of 349 having directly with Alex Acosta, and Alex Acosta agreed to 18 months. Villafafia further explained to OPR: Regarding going from 24 months to 20 months, I recall a discussion that 24 months of federal time was really 20 months after gain time, so Epstein should be allowed to plead to 20 months’ in the state. Epstein’s counsel represented that he wouldn’t get gain time like that in the [s]tate, and someone above me agreed. Later, of course, as shown in the agreements, Epstein’s counsel (Jay Lefkowitz) got Alex to agree that Epstein should be allowed to earn gain time in the [s]tate, so the 20 months in the state became at least 17 months. Regarding going from 20 months’ to 18 months, . . . this came from a negotiation between Epstein’s counsel and Andy or Alex where the federal statutory max could only be 24 or 18, so 18 was agreed to. I also recall that, after Epstein’s counsel decided that they wanted to proceed with an NPA and only a state guilty plea, I asked Alex why we didn’t return to 20 months because the reason why we went to 18 months was because that was the only way to end up with a federal statutory maximum.!!° However, a subsequent account of the history of negotiations with Epstein’s attorneys, drafted by Villafafia for Acosta several weeks after the September 12, 2007 meeting with the State Attorney’s Office, stated that “a significant compromise” reached at the meeting “was a reduction in the amount of jail time — from [the originally proposed] twenty-four months down to eighteen months, which would be served at the Palm Beach County Jail rather than a state prison facility.” Acosta also noted to OPR that Villafafia was engaged in a “tough negotiation,” and he was willing to allow her the discretion to reduce the amount of incarceration time without him “second- guessing” her. Acosta acknowledged that he “clearly approved it at some point.” Based on this record, OPR could not definitively determine when, how, or by whom the decision was made to reduce the required term of imprisonment from 24 months to 18 months. It is possible that the reduction was connected to Epstein’s effort to achieve a result that would allow him to serve his time in a county facility, but it may also have resulted from the parties’ attempts to reach agreement on federal charges that would not result in a sentence of incarceration greater than what had been discussed with respect to state charges. In the end, the evidence shows that Acosta approved of a reduced term of incarceration from 24 months to 18 months, and the USAO understood at the time that the state gain time requirement would further reduce the actual amount of time Epstein would spend incarcerated. 10 By “federal statutory maximum,” Villafafia referred to 12-month and 6-month misdemeanors. 67 DOJ-OGR-00004391