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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 197 of 349 successful federal prosecution, Acosta prematurely decided to resolve the case without adequately addressing ways in which a federal case potentially could have been strengthened, such as by obtaining Epstein’s missing computer equipment. Finally, a lack of coordination within the USAO compounded Acosta’s flawed reasoning and resulted in insufficient oversight over the process of drafting the NPA, a unique document that required more detailed attention and review than it received. These problems were, moreover, entirely avoidable because federal prosecution, and potentially a federal plea agreement, existed as viable alternatives to the NPA resolution. In evaluating Acosta’s conduct, OPR has considered and taken into account the fact that some of Epstein’s conduct known today was not known in 2007 and that other circumstances have changed in the interim, including some victims’ willingness to testify. OPR has also evaluated Acosta’s decisions in a framework that recognizes and allows for decisions that are made in good faith, even if the decision in question may not have led to the “best” result that potentially could have been obtained. Nonetheless, after considering all of the available evidence and the totality of the then-existing circumstances, OPR concludes that Acosta exercised poor judgment in that he chose an action or course of action that was in marked contrast to that which the Department would reasonably expect of an attorney exercising good judgment. A. Acosta’s Decision to Resolve the Federal Investigation through a State Plea under Terms Incorporated into the NPA Was Based on a Flawed Application of the Petite Policy and Federalism Concerns, and Failed to Consider the Significant Disadvantages of a State-Based Resolution The Department formulated the Petite policy in response to a series of Supreme Court opinions holding that the Constitution does not deny state and federal governments the power to prosecute for the same act. Responding to the Court’s concerns about the “potential for abuse in a rule permitting duplicate prosecutions,” the Department voluntarily adopted a policy of declining to bring a federal prosecution following a completed state prosecution for the same conduct, except when necessary to advance a compelling federal interest. See Rinaldi v. United States, 434 US. at 28. On its face, the Petite policy applies to federal prosecutions that follow completed state prosecutions. USAM § 9-2.031 (“This policy applies whenever there has been a prior state... prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of the case on the merits after jeopardy has attached.”). When a state investigation or prosecution is still pending, the policy does not apply. Indeed, even when a state prosecution has resulted in a decision on the merits, the policy permits a subsequent federal prosecution when three substantive prerequisites are satisfied: a “substantial federal interest” exists, “the result in the prior state prosecution was manifestly inadequate in light of the federal interest involved,” and there is sufficient admissible evidence to obtain and sustain a conviction on federal charges. The policy also does not apply when “the prior prosecution involved only a minor part of the contemplated federal charges.” No one with whom OPR spoke disputed that the federal government had a substantial interest in prosecuting Epstein. In her prosecution memorandum, Villafafia identified five federal statutes that Epstein had potentially violated. The CEOS Chief described Villafafia’s assessment of these statutes as “exhaustive,” and he concurred with her analysis of their applicability to the facts of the case. Epstein’s crimes involved the sexual exploitation of children, interstate travel, and the use of a facility of interstate commerce, all of which were areas of federal concern. 170 DOJ-OGR-00004494