By Robert Willmann
A taboo in our culture that is also a crime is sexual contact with a child or young person -- usually less than 17 or 18 years old -- by an adult or older person. An exception is sexual experimentation during the struggle of adolescence, when the persons are no more than around two or three years apart in age, as long as there is consent. A greater age difference creates the crime often called "statutory rape", in which a statute (a law passed by a legislature) says that legal consent for sexual contact cannot be given by the underage person.
This taboo is a strong one, even more so than homicide, about which there are various levels and justifications, such as self-defense. All over the country on a regular basis, underage sex crime cases are tried to a jury, even without medical or forensic evidence. And with just one complainant and victim.
But then Jeffrey Epstein is named as a suspect in underage sex crimes in Palm Beach County, Florida, with not one complainant, but with at least 20.
What was the local State Attorney, Barry Krischer, going to do? Apparently, not very much. Attention shifted to the federal U.S. Attorney for the Southern District of Florida, Alexander Acosta, and the FBI. Was a federal prosecution pursued? No. Nothing.
A secret plea bargain and non-prosecution agreement with the federal government is what happened. It shifted the public face to the Florida state court system with Epstein pleading to two state prostitution crimes, which implied, of course, that the complainants were prostitutes. The public is now aware that the result was Epstein sleeping at the county jail and then going to his office during the day, for 13 months. Registering as a sex offender has not curtailed his travel or daily activity.
The whole nasty business disappeared from view and would have stayed hidden in its nicely wrapped package except that two civil lawsuits have pulled some of it into the light.
On 7 July 2008, a case under the federal Crime Victims' Rights Act (CVRA) was filed in the Southern District of Florida by lawyers Paul Cassell, Bradley Edwards, and two others against the federal government, with case number 08-cv-80736 [1]. Around ten and a half years later, on 21 February 2019, the trial court judge issued a 33-page opinion and order granting a request for partial summary judgment by two victims, ruling that there was no genuine issue of material fact about the assertion that the government violated the CVRA by failing properly to confer with the victims, and that therefore a contested trial on that issue is not necessary. The opinion is worth reading, and the first 22 pages are a detailed statement of facts about the non-prosecution agreement and the activity surrounding it by lawyers for the government and Epstein, giving an insight into what was going on. The beginning of the opinion references four startling factual assertions made by the complainants in their request for summary judgment and which the federal government admitted without qualification in its response [2]--
"1. Between about 1999 and 2007, Jeffrey Epstein sexually abused more than 30 minor girls, including Jane Doe 1 and Jane Doe 2, at his mansion in Palm Beach, Florida, located in the Southern District of Florida, and elsewhere in the United States and overseas.
"2. Because Epstein and his co-conspirators knowingly traveled in interstate and international commerce to sexually abuse Jane Doe 1, Jane Doe 2, and other similarly situated victims, they committed violations of not only Florida law (see, e,g., Fla. Stat. sections 794.05, 796.04, 796.045, 39.201 and 777.04), but also federal law, including repeated violations of 18 U.S.C. sections 1591, 2421, 2422, 2423, and 371).
"3. In addition to personally abusing his victims, Epstein also directed other persons to sexually abuse the girls. For example, Nadia Marcinkova sexually abused Jane Doe 1 and other victims at the direction of Epstein.
"8. More generally, the FBI established that Epstein used paid employees to repeatedly find and bring minor girls to him. Epstein worked in concert with others to obtain minor girls not only for his own sexual gratification, but also for the sexual gratification of others."
The opinion in the CVRA case is here--
https://turcopolier.typepad.com/files/jeffreyepstein_cvra__court_opinion_20190221.pdf
The present court activity is to figure out a procedure to determine a remedy for the government's violation of the CVRA and to establish a remedy.
On 17 May 2010, a lawsuit revealing more of Epstein's degenerate attitude and mentality was filed in federal court in the Southern District of Florida, with case number 10-cv-21586. It was based on parts 7 and 8 of the plea bargain / non-prosecution agreement, that--
"7. The United Sates shall provide Epstein's attorneys with a list of individuals whom it has identified as victims, as defined in 18 U.S.C. section 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the indentified individuals through that representative.
"8. [In part] If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. section 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. section 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law."
Title 18, U.S. Code, section 2255, creates the right for an underage person (a minor) to bring a civil lawsuit in federal court for money for personal injury suffered as a victim of certain federal crimes. The victim can seek money for the actual harm suffered, or the fixed amount of $150,000, plus attorney fees and litigation costs. [3].
The attorney representative selected to help the females who wanted to seek compensation by that route under the non-prosecution agreement (NPA) was Robert Josefsberg, of the Podhurst & Orseck law firm in Miami, Florida, known to have experience in litigation. Some number over 12 of the 34 females named by the U.S. Attorney's Office as complainants against Epstein sought compensation through the representative.
However, although Epstein agreed in the NPA to pay the attorney representative and to not contest liability in the claims the females made under 18 U.S.C. 2255, he not only breached the agreement by contesting liability in the cases, but also he paid only a small part of what was owed to Josefsberg, and tried to stiff the representative by not paying over $2 million dollars due for attorney fees and costs! For over 20 months, Josefsberg tried unsuccessfully to get Epstein to pay him under the NPA, and finally sued Epstein for breach of contract and breach of the implied doctrine of good faith and fair dealing. Attached to the lawsuit document was a copy of the NPA. Here are the scandalous plea bargain / non-prosecution agreement and addendum, and the informative original petition brought by the representative for some of the victimized females--
https://turcopolier.typepad.com/files/jeffreyepstein_non_prosecution_agreement-1.pdf
https://turcopolier.typepad.com/files/jeffreyepstein_sued_for_npa_attorney_fees.pdf
This produced an amusing turn of events, shown by the court clerk's docket sheet. Epstein quickly settled with the attorney representative by 8 June 2010, only 22 days after the lawsuit was filed [4]. After all, he had breached the NPA and it could have been cancelled (and should have been) and a prosecution started in Florida.
Picking apart the NPA is in itself an interesting exercise, but looking at the agreement as a whole, you can see that it is designed to keep his sexually abusive conduct from being disclosed, both as to criminal charges -- he pled only to state prostitution offenses -- and as to civil cases involving females who decided to seek compensation through the NPA's representative and 18 U.S.C. section 2255. In those civil cases, Epstein agreed to not challenge his liability, so no stories would be told in court; the only issue would be the amount of money to be paid.
With that background, we come to the recent fascinating events, in which Epstein was arrested, and the role of Labor Secretary Alexander Acosta in this whole rotten mess was revealed to some extent. He had been the U.S. Attorney for that part of Florida at that time. The NPA on page 2 asserted that: "On the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below".
Well, not exactly. When publicity heated up, fingers were pointed at Acosta with the usual hollering by some that he should resign. This produced a pathetic press conference on Wednesday, 10 July, in which Acosta tried to justify what the materials presented above reveal [5]. On Friday, 12 July, when president Trump went outside the White House to talk to the press before leaving on a trip, Acosta went with him. At around 1 minute, 40 seconds into this short video excerpt, Acosta says--
"I have seen coverage of this case, that is over 12 years old, that had input and vetting at multiple levels of the Department of Justice. And as I look forward, I do not think it is right and fair for this administration's labor department to have Epstein as the focus, rather than the incredible economy that we have today. And so I called the president this morning. I told him that I thought the right thing was to step aside...."
There you have it: "... this case ... had input and vetting at multiple levels of the Department of Justice." The cat was out of the bag. It was a sad sight: Alex Acosta, after achieving two significant positions in the federal government, took a dive to be the fall guy.
"Multiple levels" of "input" and "vetting" at the DOJ, you say? Who might that be?
The non-prosecution agreement has signature dates from 24 September to 7 December 2007, and page 3 of Robert Josefsberg's lawsuit against Epstein confirms this. The Department of Justice is a bureaucracy, and even though a U.S. Attorney has significant authority and some independence, the Justice Department in Washington D.C. -- sometimes called "Main Justice" -- ultimately controls things. In the organizational chart, the U.S. Attorneys are under the Deputy Attorney General, the number two person [6]--
https://www.justice.gov/agencies/chart
The U.S. Attorney General from 3 February 2005 to 17 September 2007 was Alberto Gonzales. Michael Mukasey was nominated on 17 September and became Attorney General on 8 November 2007 until Eric Holder was sworn in on 3 February 2009.
The FBI Director from 4 September 2001 to 4 September 2013 was Robert Mueller.
More research is needed to identify persons in various positions in the Department of Justice from 2005 through at least 2010, when Epstein breached the NPA by contesting liability and failing to pay attorney fees and costs, and had to be sued by Robert Josefsberg and the Podhurst & Orseck law firm.
And from July 2008 into this year, the Justice Department has resisted the CVRA lawsuit in Florida.
The CVRA opinion on page 3 confirmed that by May 2007, the U.S. Attorney's Office had drafted a 53-page indictment and an 82-page prosecution memorandum about federal sex crimes committed by Epstein. The opinion on pages 5-6 quotes a letter to Epstein's counsel that the U.S. Attorney's office did not have the power to bind the Immigration service, but that they did not plan on bringing immigration charges against two of Epstein's female co-conspirators.
The CVRA opinion on page 7 tells us that--
"On September 21, 2007, Palm Beach County State Attorney Barry Krischer wrote the line prosecutor [Assistant U.S. Attorney] about the proposed agreement and added: 'Glad we could get this worked out for reasons I won’t put in writing. After this is resolved I would love to buy you a cup at Starbucks and have a conversation'."
This material is presented here for viewing or downloading so that you can think for yourself. Mass media has reported next to nothing about the 11-year course of the Crime Victims' Rights Act lawsuit and the detail in the first 22 pages of the trial court's opinion, other than that the court found the government violated the CVRA. I am not aware of one word reported about the 2010 lawsuit brought by Robert Josefsberg against Epstein for breaching the non-prosecution agreement.
From this information, you can see the brazen lack of a basis for the extra protection put in the plea bargain / NPA on page 5, that--
"In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova."
Jeffrey Epstein was being protected. The process and communications that accomplished it, and who did it, are not yet known.
[1] The Crime Victims' Rights Act, Title 18, United States Code, section 3771
http://uscode.house.gov/view.xhtml?path=/prelim@title18/part2/chapter237&edition=prelim
https://www.law.cornell.edu/uscode/text/18/3771
[2] The request (motion) for partial summary judgment by the victims (Jane Doe 1 and 2) contained a list of what they claimed were 157 undisputed material facts. The federal government filed a response which either admitted, or admitted with a qualification, or denied the asserted facts. The numbered facts 1, 2, 3, and 8 were admitted.
[3] Title 18, U.S. Code, section 2255
http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section2255&num=0&edition=prelim
https://www.law.cornell.edu/uscode/text/18/2255
[4] The court clerk's docket sheet for the Robert Josefsberg and Podhurst & Orseck lawsuit against Epstein
https://turcopolier.typepad.com/files/jeffreyepstein_docket_sheet_did_not_pay_lawsuit.pdf
[6] A text version of the Department of Justice organizational chart
https://www.justice.gov/agencies/organizational-chart-text-version
I saw this in a couple of places (https://talkingpointsmemo.com/edblog/i-was-told-epstein-belonged-to-intelligence-and-to-leave-it-alone; https://www.dailywire.com/news/49355/acosta-was-told-epstein-belonged-intelligence-ryan-saavedra; https://hotair.com/archives/allahpundit/2019/07/10/alex-acosta-mean-allegedly-said-epstein-belonged-intelligence/) and I'm not sure if it the report is accurate. (It's not showing up in the NY Times or The economist. But it doesn't seem impossible.
Many things are disposed of by plea Bargaining. With high profile crimes, it is always difficult to know if you did the right thing. Here, it is fairly obvious it wasn't. Acosta is a Harvard College/HLS, a very able and connected guy and his error here has damaged his life.
Posted by: John Minehan | 17 July 2019 at 10:33 AM