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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 193 of 349 entitled to significant weight, and OPR credits them. OPR finds, therefore, that the emails in question do not themselves establish that Villafafia (or any other subject) acted to improperly benefit Epstein, was motivated by favoritism or other improper influences, or sought to silence victims. G. The Evidence Does Not Establish That Acosta, Lourie, or Villafaiia Agreed to the NPA’s Provision Promising Not to Prosecute “Potential Co-conspirators” in Order to Protect Any of Epstein’s Political, Celebrity, or Other Influential Associates OPR examined the decision by the subjects who negotiated the NPA—Villafafia, Lourie, and Acosta—to include in the agreement a provision in which the USAO agreed not to prosecute “any potential co-conspirators of Epstein,” in addition to four named individuals, to determine whether that provision resulted from the subjects’ improper favoritism towards Epstein or an improper effort to shield from prosecution any of Epstein’s known associates. Other than various drafts of the NPA and of a federal plea agreement, OPR found little in the contemporaneous records mentioning the provision and nothing indicating that the subjects discussed or debated it— or even gave it much consideration. Drafts of the NPA and of the federal plea agreement show that the final broad language promising not to prosecute “any potential co-conspirators of Epstein” evolved from a more narrow provision sought by the defense. The provision expanded as Villafafia and defense counsel exchanged drafts of, first, a proposed federal plea agreement and, then, of the NPA, with apparently little analysis and no substantive discussion within the USAO about the provision.”°7 As the NPA drafting process concluded, Villafafia circulated to Lourie and another supervisor a draft that contained the non-prosecution provision, telling Lourie it was “some of [defense counsel’s] requested language regarding promises not to prosecute other people,” and commenting only, “I don’t think it hurts us.” In a reply email, Lourie responded to another issue 237 As set forth in OPR’s factual discussion, early in the negotiations over a federal plea agreement, the defense sought a non-prosecution provision applicable to only four female named assistants of Epstein and to unnamed employees of one of his companies. Villafafia initially countered with “standard language” referring to unnamed “co-conspirators” so as to avoid “highlight[ing] for the judge all of the other crimes and all of the other persons that we could charge.” Nonetheless, drafts of the NPA sent by Lefkowitz after Villafafia’s email continued to include language referring to the four named assistants and unnamed employees. Villafafia, however, internally circulated drafts of a federal plea agreement that included language stating, “This agreement resolves the federal criminal liability of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by those persons known to the [USAO] as of the date of this plea agreement.” The federal plea agreement draft revised by Lourie and Acosta on September 20, 2007, included that language. When the defense team reverted to negotiation of state charges, Villafafia advised them, “In the context of a non-prosecution agreement, the [USAO] may be more willing to be specific about not pursuing charges against others.” The next day, Lefkowitz sent a revised draft NPA referring to the four named assistants, “any employee” of the named company, and “any unnamed co-conspirators for any criminal charge that arises out of the ongoing federal investigation.” The language was finally revised by Villafafia to prohibit prosecution of “any potential co-conspirators of Epstein, including but not limited to [the four named assistants].” In commenting on OPR’s draft report, Villafafia’s counsel and Lourie both noted that the non-prosecution provision could bind only the USAO, and Lourie further opined that it was limited to certain specified federal charges and a time-limited scope of conduct. Although the non-prosecution provision in the NPA did not explicitly contain such limitations, those limitations were included in other parts of the agreement. 166 DOJ-OGR-00004490