By Noreen Marcus, FloridaBulldog.org
The sickly-sweet deal that lawyers for serial sex offender Jeffrey Epstein worked out with South Florida federal prosecutors veered so far off the beaten path, it blazed a path of its own.
Over the last 29 years, three non-prosecution agreements (NPAs), the kind of deal Epstein got, went to big companies in the Southern District of Florida, according to a list compiled by the University of Virginia and Duke law schools.
But since no company executive was accused of anything close to Epstein’s level of depravity, his deal appears to be one of a kind. His informal criminal enterprise that preyed upon teenage girls had no name to include in the law schools’ “corporate prosecution registry.”
Out of 190 Southern District federal cases that were resolved before trial from 1992 to this year, the list shows 86 percent resulted in pleas. Not including the Epstein affair, only three of the cases, or 1.6 percent, ended with NPAs.
“They are rarer than hen’s teeth and hens have no teeth,”said criminal defense lawyer Joel Hirschhorn. During a 53-year career, he has yet to negotiate a single one.
A special deal for Jeffrey Epstein alone
The three companies on the Southern District’s NPA list are: Wachovia (now Wells Fargo), accused of antitrust; Republic Metals Corp., accused of money-laundering, and Baton Holdings, accused of securities fraud. The deals all followed some combination of hefty fines, long prison sentences for company executives, or cooperation with other probes.
But a cushy deal like the late Epstein’s is virtually unheard of.
“The use of a NPA against an individual is very rare,” said Miami trial lawyer Marcos Jimenez, who was the U.S. Attorney in South Florida from 2002 through 2005.
Jimenez told Florida Bulldog he doesn’t remember authorizing any kind of NPA; the law schools’ list and media reports confirm his recollection.
“I can’t think of a bar to doing it, it’s just that I’ve never seen it done in any other instance than for Epstein,” said former Miami prosecutor Richard Gregorie, who retired in 2018 after 42 years with the Justice Department. He also worked in Massachusetts, Rhode Island, New Jersey and Connecticut.
Protecting mystery ‘co-conspirators’
Jeffrey Epstein’s off-the-charts pact let him avoid federal charges that carry serious prison time. Prosecutors prepared, but never filed, a 53-page indictment describing his criminal activities with underage girls that could have put Epstein away for life.
Unlike standard NPAs, his carefully crafted version even protected “any potential co-conspirators,” prompting speculation about former presidents Bill Clinton and Donald Trump, Britain’s Prince Andrew and other powerful men in Epstein’s social circle.
None of them has been charged in connection with Epstein. Only his ex-girlfriend Ghislaine Maxwell is being prosecuted in New York for allegedly procuring young girls for him to abuse.
Gregorie had nothing to do with the Epstein case and wouldn’t speculate about possible accomplices. But he said he’s “amazed” and “astounded” by the NPA clause granting immunity to hypothetical co-conspirators.
Jeffrey Epstein: from mansion to jail suicide
“I have never heard of a case where an NPA extended to people who haven’t been investigated or charged yet,” Gregorie said. “It just doesn’t make sense.
“If you were getting cooperation from someone who would provide you with leads to take a case to a much higher or more significant person, or was opening up the case to a much broader range of criminal activity–that might lead to this kind of agreement,” he said.
But how could an unknown co-conspirator barter for immunity from prosecution?
Yet in exchange for extraordinary largesse from the feds, Epstein pleaded guilty to two low-level state prostitution offenses and funded a victims’ compensation pool. The government shut down a grand jury that might have outed others in his sex ring.
Jeffrey Epstein got an 18-month sentence but served a little over a year, mostly on work release near his Palm Beach estate. Ten years later the wealthy financier died in a Manhattan jail cell, an apparent suicide, while awaiting trial for sex-trafficking in New York.
Acosta’s ‘poor judgment’ cost him
Signing off on the notorious 2007 Epstein deal came to haunt Alex Acosta, the U.S. Attorney after Jimenez. Following publication of a Miami Herald series about the Epstein case that threw renewed light on his NPA, then-Labor Secretary Acosta resigned in 2019.
Jimenez said he agrees “completely” with a finding by DOJ regulators that “the NPA was a flawed mechanism for satisfying the federal interest that caused the government to open up the [Epstein] investigation in the first place.”
That finding appeared in a November 2020 report by the department’s Office of Professional Responsibility. It concluded Acosta showed “poor judgment” when he approved the Epstein NPA, but didn’t violate professional norms — largely because none apply.
Jimenez expressed reluctance to criticize his successor. Still, he said he agrees that Acosta exercised faulty judgment.
NPA robs victims of rights
Earlier this month the discredited deal resurfaced when a federal appeals court ruled against Courtney Wild, who says Jeffrey Epstein began molesting her when she was 15.
The U.S. Crime Victims’ Rights Act says victims must be notified about and participate in negotiations between prosecutors and defendants. But prosecutors hid the Epstein NPA document for several months until he pleaded guilty, avoiding any objections to its lenient terms.
Consequently, Wild’s lawyers argued, the NPA should be rescinded. Then his accomplices—whoever they are—can be prosecuted.
But the 11th Circuit said the law supports victims only after charges are filed. Since Acosta agreed to the NPA and no charges were ever filed in that case against Epstein, unfortunately, that was that.
Allowing judges to protect victims’ rights earlier in the process would intrude on the prosecutor’s discretion, the majority ruled in an opinion published April 15.
“Courts would be empowered to issue injunctions requiring consultation with victims (to name just a few examples) before law-enforcement raids, warrant applications, arrests, witness interviews, lineups and interrogations,” Judge Kevin Newsom wrote for the majority.
Dissenters call deal ‘travesty’
The 7-4 decision from the full U.S. Court of Appeals for the 11th Circuit may end Wild’s 13-year pursuit of justice, though her lawyers plan an appeal to the U.S. Supreme Court.
Four 11th Circuit judges dissented. Those judges, all women, skewered the Epstein NPA and assailed the “dramatic increase” in all kinds of pre-indictment agreements over the last 15 years.
The majority’s ruling “leaves federal prosecutors free to engage in the secret plea deals and deception … that resulted in the travesty here,” Judge Frank Mays Hull wrote.
It also “exacerbates disparities between wealthy defendants and those who cannot afford to hire well-connected and experienced attorneys” to negotiate favorable deals for them, she wrote.
So will there be another Epstein-like “travesty”?
“I would hope that it never happens again and I don’t think it will,” Jimenez said.