1 day, you were calling for some edits that really reflected --

Page 200 1 day, you were calling for some edits that really reflected -- 2 seemed to reflect a real discomfort -- 3 A 4 Q -- as you identify. 5 A Again, I'm perhaps supporting -- I'm supporting the 6 point you're trying to make that we were focused on getting 7 this done, and real concern that he would not go to jail. 8 And a question that I think is a valid one in my mind is, did 9 the focus on, let's just get this done and get a jail term, 10 mean that we didn't take a step back and say, let's evaluate 11 how this train is moving? 12 Q You -- 13 A From my perspective. 14 Q Okay. I want to just sort of round out the little 15 bit of this -- the state -- the state only resolution. You 16 used the term a couple of times backstopping. What do you 17 mean by that? 18 A What I mean by that is, a sense that the state 19 wasn't doing enough, and perhaps backstopping is a polite way 20 of saying encouraging the state to do a little bit more. 21 Q MM-hmm. All right. Did you have any discussions 22 about whether this disposition comported with the Ashcroft 23 memo in that you were hunting to the state for a minor 24 charge, for a fairly minor charge, what you -- your office 25 had already understood from the evidence was a quite wide EFTA00009016 1 ranging scheme of predatory, my term, behavior regarding 2 minor victims? 3 A So, I don't recall a discussion around the Ashcroft 4 memo. I would characterize what we did differently, in that 5 there are any number of instances where the federal 6 government or the state government can proceed, and state 7 charges are substantially less and different, and on a fairly 8 regular basis, the federal government allows the state no: 9 allows, but stands aside and lets the state proceed. 10 Q But in this case, you actually had an active 11 investigation that had been proceeding for a year. 12 A So, let's take the drug context, where there might 13 be any number of active investigations where the federal 14 charges can be rather substantial, but ultimately, the 15 16 17 18 19 20 Q But the state goes forward with what? 21 A Forward with different charges that -- that have a 22 lesser term. And so, I don't think it's unusual. We can 23 talk about, you know, whether this was the best disposition 24 or not, but I don't think it's unusual to have fact patterns 25 that are under investigation that proceed in state court, federal government says just let the state proceed with this, or violent crime cases where the federal government could bring gun charges using felon in possession or another mandatory minimum, but the state goes forward with -- so, in that sense -- EFTA00009017 Page 202 1 where the disposition is different than -- and would have 2 been if it had proceeded in federal court. 3 Q All right. Do you have anything on that? 4 : On the two years, or something else? 5 : No. I'm going back to the two 6 years. 7 : Okay. 8 BY 9 Q Did you think -- did you believe at the time, if 10 this was part of your thinking, that because it was so 11 important to get sex offender registration, and even later 12 developed damages -- monetary damages for the victims, under 13 the state plea arrangement, that pretty much the only thing 14 that the government had -- the federal government had to give 15 up in this negotiation was jail time? If you wanted -- you 16 wanted -- 17 A Right. 18 Q -- three things -- 19 A Correct. 20 Q -- you've said, jail time, sex offender status, and 21 some kind of restitution or damages -- 22 A Right. 23 Q -- mechanisms. Sex offender registration, there's 24 no -- really no give there. You either register or you 25 don't. I'm being binary -- EFTA00009018 Page 203 1 2 6 7 8 A Right. Q -- again, I'm sorry. A But it is binary, so -- Q It is binary. A Yes. Q And likewise, the -- A Right. Q -- monetary recovery provisions. So, really, the 9 only thing to negotiate is time, right? 10 A And so, your question is why did we not start at 11 three so we ended up at two? 12 Q Well, that's -- that's -- that's a consequence of 13 what -- 14 A So -- 15 Q -- I was asking. 16 A So, again, my recollection is I understood this to 17 reflect what he would have received as opposed to some 18 arbitrary, let's start at three so we end up at two. I 19 also -- I'm sorry, you have a question? 20 Q No, go ahead. Go ahead. I'll get to my question. 21 A You know, I also -- from my perspective, was, you 22 know, early on when we set firm on the two years, I thought 23 two years would have been the right outcome. We ended up on 24 18 months. I can't say how. There's some documents that 25 might help, but I -- but I was at least initially firm on EFTA00009019 Page 204 1 those two years. 2 Q Right, so you -- when you say, I thought the two 3 years was the right amount, is that based on your 4 understanding that that's what he would have gotten in the 5 state? 6 A Correct. 7 Q All right. 8 A That -- and the point I'm trying to convey there is 9 that this wasn't, to my understanding, a random number, but 10 it was informed by, this is what he would have received, and 11 therefore it is a reasonable -- agree or disagree with the 12 analysis, but it was an informed number to begin with. 13 BY 14 Q But you don't recall how that analysis was done, or 15 who conducted -- 16 A 17 Q -- that analysis? 18 A -- don't recall that. 19 BY -: 20 Q Or even whether it was accurate, actually? 21 A I -- again, I don't recall that. 22 Q All right. 23 BY 24 Q And I understand the explanation. 25 A Right. EFTA00009020 Page 205 1 Q And -- 2 A Right. 3 Q -- what it's tied to, but was there any 4 consideration -- because this case -- 5 A Right. 6 Q -- was not about one or two victims. It was a very 7 large scheme by this older, wealthy man, to essentially turn 8 minors into prostitutes, have sex with them, oral sex, get 9 other people involved. 10 You've described it in prior statements as 11 grotesque and deserving of punishment. What I'm not hearing 12 through this process is anybody taking a look at this overall 13 conduct, and saying, what is the appropriate punishment for 14 this man's conduct? Was there such a consideration, and did 15 you feel that two years adequately punished him for the scope 16 of his conduct? 17 A Fair question, and perhaps going back to where we 18 started, which is petite. To my mind at the time, there was 19 a distinction between what would be the adequate punishment 20 if this was a purely federal case, versus what is necessary 21 so that it is not a -- to put it in petite language a 22 manifest injustice, so that it wouldn't have come to the 23 office in the first place. 24 And that I think is the important distinction, 25 because if the two years is what he would have received, and EFTA00009021 Page 206 1 therefore it would not have come into the office under 2 petite, then if there is a state disposition to that, that is 3 one possible outcome. 4 It would be a different outcome if this was truly a 5 federal pro=section independent of the state, which goes back 6 to the point I was making about concern about a federal 7 precedent with this kind of sentence, because then when the 8 next person comes along, they say, well, here is this 9 precedent under 371, or whatnot. 10 And so, this was, rightly or wrongly, and I 11 understand the -- the pushback -- an analysis that 12 distinguished between what is necessary to prevent manifest 13 injustice, versus what is the appropriate federal outcome to 14 that. Agree or disagree with the logic is one thing, but did 15 I explain the logic? 16 Q You've -- yes, you've explained the logic. 17 A Okay. 18 Q And I'm going to push back a little bit -- 19 A Right. 20 Q -- on that, because the petite policy specifically 21 says it does not apply where the state conduct is only a 22 minor part -- an insignificant part of the entire course of 23 conduct, and they give examples about where you have some 24 type of a RICO scheme, and the state has indicted or 25 convicted the perpetrator based on something that could be EFTA00009022 one single overt act in the government's conspiracy, and 2 doesn't that really show what is going on here, that what the 3 state had done was really just a small, minor part of this 4 scheme that the federal government had a -- A Right. 6 Q -- had a real opportunity to punish him for this 7 entire course of conduct? 8 A So, possibly, but if I can circle back to your 9 question previously, it's interesting that you characterize 10 this as, he's turning these girls into prostitutes, and then 11 I think that's really interesting, because in 2019, 13 years 12 afterwards, despite all the changes in the law, there is 13 still some element somewhere that says he's turning these 14 girls into prostitutes, whereas this was a typical 15 trafficking case of the kind that you'd see in the Lou De 16 Baca days where, you know, it was called modern day slavery. 17 That's a very different fact pattern. 18 So, you know, a girl that's held captive, is forced 9 to service multiple men per day, where this is part of an 20 ongoing business arrangement. And so, I hear what you're 21 saying, but if here at this table at least some element of 22 that characterization is live, what would it mean in 2006 23 when these laws are still being developed? And that 24 consideration, rightly or wrongly, was part of this analysis. 25 BY EFTA00009023 1 Q Was it explicitly -- in other words, was -- was that aspect of it, the -- I -- the perception that this was perhaps activity that -- in which the victims cooperated? 4 Was that part of the -- S A No, no. Let me -- let me distinguish. I didn't 6 say the perception that this was activities in which the 7 victims cooperated. What I was going to -- what I -- and 8 I've gone to before is, would jurors -- is there at least one 9 juror that might say, look, we've got conflicting victim 10 testimony. 1.1 Some of them said he did nothing wrong. They all 12 knew each other. They kept going back and taking payment. 13 Is this trafficking, or is this prostitution? I'm not -- 14 not saying I agree with that, and I don't think -- I don't 15 think prosecutors do, I'm saying is there -- is there at 16 least a possibility of that? And -- 17 Q Was that articulated to you by the people you were 18 listening to by and -- 19 A So -- 20 21 A So, that certainly was part of the discussions when 22 I talk about the victim issues, would at least some jurors 23 view it that way, rightly or wrongly? 24 Q And you recall having that -- those -- 25 A EFTA00009024 Page Q -- conversations? 2 A I recall having not only how would the witnesses 3 stand up in court, but how would jurors view them? And then 4 the second part of that is, as it goes up in the appellate 5 process with respect to the -- the federal nexus. And so, I 6 hear you, but you know, I -- it's -- it's sort of one of the 7 factors. And so -- 8 BY 9 Q And so -- 10 A 11 Q -- what I'm getting though is that there didn't 12 seem like there was a consideration or discussion about, is 13 this two years capturing the scope of his conduct, versus, 14 we're just going to tie it to this potential state crime that 15 could have been charged? .6 A Fair, and I would -- I would say that the two years 17 was not meant -- so, the petite policy has several prongs, 18 and to my recollection, the petite analysis was not based 19 on -- and let's not even call it petite analysis. That 20 overstates it. 21 But it was much more of a, is this a manifest 22 injustice, and -- and if the original -- and so, you sort of 23 see it in the Exhibit 3. This would not have been brought to 24 the office in the first place if -- you know, if he had plead 25 to jail time and registration, and rightly or wrongly, that EFTA00009025 Page 210 1 was understood from the very beginning of the case, and was a 2 factor in how the case was viewed. 3 Q And how do you know that it wouldn't have -- that 4 wouldn't have been upset with a minimal jail 5 time, even if there was sex registration? 6 A So, I can't 12 years later say how we knew that. I 7 8 9 10 11 12 : They did. 13 THE WITNESS: I can't speak for certain, but you 14 probably have that from the record, and that when they 15 changed the ASA involved and took it to grand jury, the 16 charges that came back were substantially less. 17 BY 18 Q Do you remember the circumstances? Did you know 19 the circumstances under which that ASA was changed? 20 A I don't know. 21 Q All right. The -- by the way, do you remember an 22 occasion in which came to your office in Miami 23 to press you on what was going to be happening with the can say that my -- my general impression was that this was proceeding at the state, that there were certain charges, and that those charges changed when it went to a grand jury, and that it went from -- I think they even changed the ASA involved. 24 federal case? 25 A I don't recall. • EFTA00009026 1 Q You don't recall. I -- 2 : Just one more, : Yeah. 4 THE WITNESS: Yeah. 5 BY 6 Q So, before we -- 7 A Yeah. 8 Q -- leave this -- 9 Yeah. 10 Q -- one little thing. So, if this case had come 11 into the federal system as apart from the -- 2 Ficht. Q -- taken the digression through the -- A Rlunt. -- state system, do you think that the two years was an appropriate punishment, given the scope of his conduct? A I think if it had come into the federal system 19 apart from the whole state and the petite considerations and 20 all that, we may have ended up in a different place. I 21 viewed the two years, to my recollection, as a manifest 22 injustice standard, and not an appropriate punishment 23 standard. 24 Q Meaning whether it was manifestly unjust that he 25 get two years? EFTA00009027 Page 212 1 A No, whether it was -- so, let me -- let me -- let 2 me rephrase. No jail time was a manifest injustice. If he 3 had gone to jail for two years in the state system and 4 registered, the question of whether it would have come to the 5 office at all, and to my recollection, the consensus was, and 6 based on Exhibit 3, agrees with that, that it would 7 never have come to the office in the first place, because we 8 would not view that under petite as a manifest injustice. 9 There are any number of cases that are prosecuted 10 around the country where an individual gets a jail time that 11 the federal government may not agree with, but that doesn't 12 mean that the federal government reprosecutes those cases. 13 The instances where the federal government reprosecutes a 14 state case are pretty rare, to my knowledge. 15 And so, under the petite standard, and the 16 petite -- the manifest injustice would -- it would have been 17 a manifest injustice to have zero jail time, and zero 18 registration, but if the original charges had remained, that 19 would be a different matter. That does not mean that that is 20 the best outcome in the state system. 21 and so, perhaps beating a -- you know, an issue, 22 but let me maybe give an example. One concern that I had was 23 that in the violent crime side, the state brings a case, and 24 you know, there is a deferment, no jail time. The state then 25 brings a second case, and there's minimal jail time. Well, EFTA00009028 Page 213 1 now the person has done three violent crimes, they have a 2 gun, they go federal, and it's like, please don't do that. 3 Pretty please don't do that. 4 You know, we're going to punish you a little bit, 5 and then all of a sudden in comes the federal government with 6 the big, big punch to the face, because the federal sentences 7 are so different than the state sentences. And that happens 8 all the time in any number of contexts in Florida. That 9 doesn't mean that all of those cases get reprosecuted as gun 10 cases in Florida. 11 That means that we understand that the Florida 12 system is different than the federal system. And so, the way 13 we looked at, at least based on my recollection, those two 14 years was not, what would he have received if this was a 15 purely federal case, but would this case have been prosecuted 16 by the federal system additionally if he had received jail 17 time and registration in the state system? 8 Q And would -- is it fair to say that this particular 9 concern about, for lack of a better word, federalism or the 20 petite policy, was that a primary concern of yours versus any 21 of your employees in terms of or 22 A I think it's fair to say that I focused more on the 23 legal side of things, and my team focused more on the trial 24 and how this would play out at trial, and both of them 25 both of them sort of informed the outcome. EFTA00009029 Page 214 1 Q And are you including this petite policy in your 2 consideration of the legal issues? 3 4 5 6 7 8 A Yes. Yeah. I think those are all tied together. BY Q So, you mentioned victim -- A But -- but could I -- could I -- Q Yes. A But to clarify, I thought we had sufficient to go 9 forward so it wasn't an ethical violation to proceed. 10 Q Mm-hmm. Okay. The victim -- you mentioned the 11 victims coming into state court, and you talked about all the 12 victims coming into state court. Do you have any idea what 13 victims formed the basis for the original charge that -- 14 A I do not. 15 Q -- he was indicted on? Do you know whether it was 16 one -- was it a felony assault pros of a non-minor. 17 A Mm-hmm. 18 Q It could have been -- it was three instances to 19 felonize it. You don't know whether it was one person three 20 times, three people? 21 A I do not. 22 Q And you don't know whether that person was a minor 23 or not? 24 A I do not. 25 Q All right. EFTA00009030 Page 215 1 A I would assume they were, but I do not. 2 Q Likewise, do you know who was the victim, or who 3 the victims were who formed the basis for the 796.03 charge 4 to which Epstein ultimately pled in June of 2008? 5 A I did not at the time. I've read various accounts 6 of that, but that's based on matters that I've read and not 7 an independent recollection. 8 Q And what's your understanding? 9 A My understanding is that there's some that there 10 is at least some issue in the media over whether the -- the 11 right or the best victims were chosen from the prosecution's 12 perspective. 13 Q And do you know -- was there any indication of who 14 the victims were? Do you know who the victims were who were 15 the subject of the state charges? 16 A Which particular names? No, I don't. 17 Q Right, I'm not asking you -- 18 A Yeah. 19 Q -- other than names -- 20 A Yeah. 21 I just want to know if you know who they are or 22 how many they were. 23 A I -- I do not. 24 Q Right, it could be one, right? For this -- for the 25 solicitation. It could be one conceivably. Both the charges EFTA00009031 Page 216 1 could relate to one victim. 2 A Right. So -- so, those matters were very much part 3 of the negotiation that and to some extent Andy were 4 involved in. I did not -- 5 Q What makes you think that -- that -- the -- your 6 people were negotiating which victims would form the basis? 7 8 9 A Fair. Fair point. Q Okay. A Fair point. I withdraw. They may not have. I 10 don't know -- I don't know how in the weeds and how much our 11 folks, as a federal system, sort of interacted with the state 12 in terms of what punishment. I -- there's at least some 13 discussion in the media regarding whether the punishment was 14 a function of the victims and registration, and I can't speak 15 to that. 16 Q All right. Are you aware, just as a point of 17 interest, that the public record of the proceedings in the 18 state court related to Epstein are utterly silent as to who 19 or how many victims form the basis of the charges to which he 20 pled? 21 A I -- no. I was not aware. 22 Q Okay. So, this idea of many victims coming forth 23 in state court and so on are not -- is not -- it's not really 24 in play. All right. So, you have a two year -- two years 25 has been now -- a two year state deal has been announced to EFTA00009032 Page 217 1 the team by 2 A Yeah. 3 Q With your knowledge and approval, right? Because 4 he wouldn't do it otherwise. Is that right? A Fair. 6 Q Though at least one was surprised. Do you know 7 what drove the timing of the plea offer? In other words, why 8 did it have to be made at that point? 9 A I do not. 10 Q Okay. You know that submitted his 11 resignation on the 23rd of July. 12 A I saw that in the -- 13 Q Right. 14 A -- in the -- in the documents. 15 Q In the documents, and he submitted that to you 16 among other -- as well as the -- 17 A Yeah. 18 Q HR people. Why not -- well, then there was a 19 July 31st meeting at which the term sheet was presented. 20 This document 15 is the term sheet that was presented, as 21 indicates in her September 6th cover note -- cover e- 22 mail. And you said you approved it. You happen to be copied 23 24 A Right. 25 Q -- though -- EFTA00009033 1 2 3 4 5 A So -- Q A Let me -- Q -- forwards this, but -- A Let me -- let me be -- let me be accurate. I 6 approved these terms, whether it was this specific term sheet 7 or another -- another document that might have been earlier 8 that looked highly similar to this. 9 My recollection is approving a, you know, 10 approving a resolution that had him pleading to certain state 11 counts that had a binding two-year plus recommendation that - 12 - and that provided for 22.55 restitution. 13 Q Right, but you don't know if it was this sheet of 14 paper? 15 A I can't say 12 years after the fact whether it was 16 this specific sheet -- 17 Q Right. 19 Q All right. 20 A -- or others. I -- based on the fact that this was 21 in the e-mail, I think it's safe to -- to assume, but -- 22 Q To assume what? 23 A To assume that it was this. 24 Q oh. 2S A But it's possible that there was as slight EFTA00009034 Page 219 1 difference in -- 2 Q All right. In fact, this -- this same document 3 with a couple of -- 4 5 A Right. Q -- additional bullets that had to do with the date 6 of entry of the plea, sort of ministerial, is what was 7 prepared by on or about the 31st -- on or 8 before the 31st of July, and this document, as indicated -- 9 A Mm-hmm. 10 Q -- here, along with the attached guidelines 11 calculation is what was provided to the folks who met on the 12 31st -- 13 A Fair. 14 Q -- of July. Okay. So, on that 31st, it was 15 , Jerry Lefcourt, Sanchez, and the purpose of 16 the meeting with Sloman, Menchel, Lourie, and as 17 well as the case agents was to present the plea offer. And 18 did you get briefed on how that plea offer went? 19 A I don't recall being briefed, but in the regular 20 course, I would have been. 21 Q All right, and at that meeting, there was an 22 expression of concern by the defense team that Epstein wanted 23 to avoid being incarcerated in the state system because of 24 concerns for his physical safety, and that concern was 25 accommodated to the extent that the U.S. Attorney's Office EFTA00009035 Page team agreed to explore federal resolution. How does that 2 square with your decision that a state plea is how this case 3 was going to be -- 4 5 6 A Right. Q -- decided? A So, I think I indicated later that it's a little 7 bit more fluid than a decision here or a decision you 8 know, than binary situations. My recollection is we were 9 very focused on, this man should go to jail, and this man 10 should register. 11 The two year plea to the state charges seemed 12 reasonable and seemed a way to go. We can agree or disagree. 13 Reasonable in terms of -- not in terms of, was it the -- the 14 most just outcome, but seemed like a disposition that we Is would agree to. :6 But ultimately, the focus was on getting him to :7 jail, and if that meant exploring a 371, it's at least worth 18 exploring. And so, I don't think it was inconsistent, 19 because the focus really was on, he needs to go to jail. 20 Q Okay. In this case, that -- that push back of 21 the -- that resulted -- 22 A Right. 23 Q -- in the agreement to explore a federal plea -- 24 A Right. 25 Q -- was because Epstein was afraid to be in prison. EFTA00009036 Page 221 1 Why would the U.S. Attorney's Office accommodate that? And 2 here, we're getting to -- we're beginning to talk about a 3 major point of criticism of this whole process and the 4 outcome and that is that it appeared that the U.S. Attorney's 5 Office was bending over backward to accommodate the concerns 6 of Jeffrey Epstein, and in this case, he was uncomfortable 7 going to a federal or state prison, but all child sex 8 predators who go to prison are going to face some -- 9 Yeah. 10 Q -- challenges, right? 11 A Right, and I remember along the way a heavy push 12 that he be incarcerated at this home under some kind of home 13 confinement, and my reaction to that was no way. 14 Q Right. 15 A And okay, you don't like prison, but that doesn't 16 mean you get to be incarcerated in your house. 17 Q Mm-hr. 18 A Which is interesting, because subsequently 19 Q Yeah. 20 A And so -- 21 Q Because subsequently, what? You might as well 22 finish -- 23 A Well, because -- 24 Q -- that. 25 A -- subsequently, the way that the state executed EFTA00009037 Page 22 1 the terms of incarceration were not what I would have 2 expected. And so, again, the focus from my perspective is, 3 he needs to go to jail. If the team agreed to explore it, 4 you know, the 371 was on the table to the extent we had 5 been -- I'm speculating now. This is not to make the record 6 clear. 7 Q Mm-hmm. Thank you. 8 A I'm speculating, not recalling. I can speculate a 9 371 with a two year rule 11 had been discussed based on the 10 contemporaneous record, and so, to the extent it had already 11 been discussed, even if it was not the direction we were 12 taking, would it have been unusual for folks in the room to 13 say, well, look, we've discussed that, let's go back. You 14 know, let's see where it goes. I can't fault -- to the 15 extent it had been discussed -- I can't fault anyone for 16 saying, let's go back and look at it. I think that's 17 distinguishable at least from subsequent -- 18 Q All right. At that point, the defense was given 19 two weeks to take it or leave it, and if not, you would 20 indict, and there were several occasions -- 21 A Correct. 22 Q -- when that kind of ultimately was made. Did that 23 mean -- I mean, given all of your concerns about barriers to 24 what you would consider a successful federal prosecution, was 25 that a bluff? EFTA00009038 1 2 4 A Q A Q Page 223 No. It was not. It was not. You were at some level at least prepared to approve 5 the presentation of the -- or, the presentment of -- 6 A We -- 7 Q -- an indictment? 8 A We should not have gone forward with these 9 negotiations if we weren't ready to -- 10 Q All right. 11 A -- to approve. Whether in this form or a different 12 form and indictment, and I say that because it was very much 13 a draft indictment that hadn't been reviewed fully by the 14 chain, but it wasn't a bluff. 15 Q Well, by this time it -- it had been reviewed, and 16 it -- 19 A Had it been reviewed, and revised, and -- Q It had -- there -- there had been some efforts to begin revising, so -- 20 A So -- 24 4 A 4 A Yeah. Some -- It wasn't finalized. Yeah. Some efforts to begin -- 25 Q Exactly. EFTA00009039 Page 224 1 A Right. 2 Q Okay. Looking at 11a, this is a letter that 3 drafted to sort of actually respond to a 4 counteroffer by the defense. The counteroffer is represented 5 in Exhibit 10b, which is a letter from Sanchez 6 which we don't need to go into in detail, because as you've 7 already pointed out, essentially it was a home confinement, 8 and you know, very, very soft -- 9 Yeah. 10 Q -- landing counteroffer. In 11a, 11 tweaks letter, you're copied on this, and the date is 12 August 2, Thursday, and he notes that he hadn't discussed it 13 in detail with you, but he wanted to -- he hoped that 14 tomorrow, Friday the 3rd -- 15 A Right. 16 Q -- he'd have a chance to, and what's notable here 17 is that -- is that the -- there's strong language that the 18 "Office believes that the federal interest would not be 19 vindicated in the absence of a two year term of state 20 imprisonment for Mr. Epstein. That offer was not meant as a 21 starting point for negotiation. It is the minimum term of 22 imprisonment that will obviate the need for federal 23 prosecution." 24 A You're on paragraph two? 25 Q One. EFTA00009040 Page 225 1 2 3 4 5 6 A One, yes. Q Oh, two. A Yeah. Q It's the first -- A Right. Q -- long paragraph. And then he also states that -- 7 that you in the last paragraph -- the U.S. Attorney, "U.S. 8 Attorney Acosta has asked me to communicate that the two year 9 term of incarceration is non-negotiable." 10 A Yes. 11 Q That's pretty firm. That's a -- that's a line -- 12 A It is. 13 Q -- in the concrete that is setting, right? 14 A Right. 15 Q And lib is the letter as it actually went out the 16 next day. 17 A And it's got the same language. 18 Q It's identical. It has the same language. It has 19 one typo corrected. This is last day in the 20 office. 21 A Yes. 22 Q And he's gone after that. Do you think that this 23 was an -- the appropriate timing to extend this offer, or to 24 set this as the minimum offer, or was it something that you 25 would've liked to have seen more fully developed in EFTA00009041 Page 226 1 negotiations with defense counsel? 2 A I'm sorry, I don't understand your question when 3 you say more fully developed. 4 Q Well, you -- you have two years. Would -- would 5 further consideration have led the U.S. Attorney's Office to 6 decide that, well, maybe the two years is too much of a 7 giveaway; we should stick with a five year federal plea? 8 A Yeah. I can't -- so, I can't speculate this far 9 after the fact whether waiting an additional time period and 10 further discussion would have changed things. I can tell you 11 how we came up with it, but that -- that's a lot of 12 speculation. 13 Q Would you say that was -- as the 14 criminal chief, was essentially the driver of this -- of the 15 resolution -- 16 A Right. 17 (2 -- presented in this letter? 18 A I can't. Again, you're asking me to speak to 19 something from 12 years ago. I can't speak to it. I was 20 aware of the multiple prongs. I approved it. If we had had, 21 you know, if -- if a -- at some point -- is your question is 22 if at some point there had been a, let's sit down and 23 reconsider meeting, would we have gone in a different 24 direction? Perhaps, but I can't, 12 years after the fact, 25 speculate as to what may have happened if something had EFTA00009042 Page 227 1 happened. 2 Q All right. 3 A That's just a lot of hypotheticals. 4 Q Understood. The question though is whether Matt 5 Menchel, who was the author -- 6 A Right. 7 Q -- of this, who first raised it -- 8 A Right. -- with 9 Q Sanchez -- 10 A Yeah. 11 Q -- in an informal discussion, and who presented it 12 to the U.S. Attorney's Office team, was this really his baby? 13 A I can't -- 14 Q Approved by you. 15 A I can't -- I don't remember who I talked to about 16 what, and so it wouldn't be fair for me to -- you know, I 17 can't single out any one person as having a greater or lesser 18 role. 19 Q Well, you were not the architect of this, right? 20 You approved it as you've described it. 21 A No, I haven't said I wasn't the architect. What I 22 said is I don't recall -- 23 Q Right. 24 A I recall approving it. You know, I -- I think what 25 I'm trying to convey is these discussions are much more fluid EFTA00009043 Page 228 1 than I think any one single architect. You've got multiple 2 lawyers. They interact on a daily basis. They talk back and 3 forth. 4 To -- to sort of put it in an OPR context, there's 5 probably not going to be a single author to the report. 6 You're all going to go back and forth, and there might be 7 someone that has maybe there is a single author. Who 8 knows? But it's -- I think it's difficult to say there's a 9 single person, and ultimately I was U.S. Attorney, and so I 10 approved it and 11 Q To your knowledge, did anyone in that chain of 12 A Right. 13 Q -- that five person chain or anyone else disagree 14 with this offer? 15 A To -- 16 Q I'm not talking about -- 17 A To my knowledge -- to my knowledge, I think 18 at sometimes may have felt uncomfortable, but whether there 19 was explicit disagreement or not, I don't recall. In terms 20 of my management chain, I don't recall any disagreement. 21 Q That you were aware of? 22 A That I was aware of. I -- I recalled discussions. 23 So, for example, might say I might proceed with a 371 24 with a two year cap under rule 11, but then we move in this 25 other direction, and I don't recall anyone saying, let's take EFTA00009044 Page 229 1 a time out, let's reconsider. 2 Q All right. 3 A And let me -- let me just clarify, I think at 4 various points in this case -- and it's hard -- it's hard to 5 sort of single out the timeline. Ms. was 6 supportive, or maybe I wish we would go in a different 7 direction, and that sort of went in and out a little bit. 8 Q On her part? 9 A Yes. 10 Q Let me ask you this. Having reached the decision 11 that you approved -- 12 A Right. 13 Q -- that this was the offer, and the term sheet, or 14 the terms, having that decision made, would you have expected 15 your line AUSA to frustrate that, or to not abide by that, 16 since it was your decision? 17 A No, with a caveat that if at any point someone felt 18 truly uncomfortable, I would expect them to come and talk to 19 me about it. 20 Q And can you recall any instance in which an AUSA -- 21 a line AUSA came and talked to you about a disposition that 22 he or she was uncomfortable with? 23 A Yes. So, I'll give you an example. I don't recall 24 who, before you ask me, but there was this AUSA who was new 25 to the office who impressed the hell out of me. I'm sorry, EFTA00009045 Page 230 1 that's not appropriate language -- who impressed me 2 significantly. 3 He had inherited a case, and it was a fraud case, 4 and the -- the bigger players had been charged, and he was 5 basically given a lesser player to -- to basically just 6 finish up on, right? 7 It was a done deal. The person was ready to plead 8 9 10 11 12 13 Q Me-hom. 14 A Which, for a new AUSA in the office is pretty gusty 15 and unusual, but if this person really felt that this lesser 16 player wasn't deserving, then that was the right thing to do. 17 Q Right. 18 A And so, I don't -- and the person was not punished 19 for it. 20 Q Mm-hem. 21 A If anything -- 22 Q Mm-hmo. 23 A -- you know, I recounted that story to others. 24 Q Okay. A question, shifting gears -- 25 to some minor count, no jail time, and he felt uncomfortable with it, and went to his supervisor, and then ultimately came up to me, and I had a discussion with this person about it, and it ended up with my telling him to go back and call the defense counsel and tell them we were dropping the case. EFTA00009046 Page 231 1 Q -- a little bit, about 18 USC 22.55. Yes, okay. Q Not to be confused with 22 -- 28 USC 22.55, which every prosecutor is familiar with. So, whose idea was that? It's, it's a civil provision, a civil -- it's not restitution, it's damages. It's a damages recovery provision 7 in the criminal code. 8 A Right. 9 Q Who came up with that? A I can't speak to who came up with it. 11 Q Okay. 12 A I can speak to -- to the reasoning behind it. 13 Q Your reasoning, or the proponent's reasoning? 14 A My recollection of the reasoning as to why we 15 thought it was important. 16 Q And the importance was to provide a mechanism for 17 recovery of damages? 18 A To -- yeah. 19 Q Okay. 20 A Yeah. I mean, the victims bad situation, and we 21 just and here is -- well, go on. 22 Q All right. 23 A I might circle back on something. 24 Q So, is it fair to say that's a fairly -- had you 2'. ever heard of it before? Had you come across it before? EFTA00009047 Page 232 1 A I don't know, but I don't think so. 2 Q Okay. So, is it fair to say it was novel to the 3 office? To you, and to this team? 4 A I don't want -- I don't think it's fair to say that 5 it's novel to the office. 6 Q Well, to the -- do you -- do you recall whether 7 anybody in the team had had experience with 18 USC 22.55 in a 8 criminal -- 9 A I don't have a recollection of any discussion as to 10 whether people had experience with this or not. 11 Q Did you believe that any legal research was needed, 12 or should be undertaken to ensure that the procedure was in 13 fact legally sound when embedded, as it was in this case, in 14 a criminal plea? 15 A So, I would have expected to the extent that there 16 were concerns. Again, we had incredibly experienced -- 17 between the various individuals on my management team, we 18 probably had 50 years plus of criminal experience. I would 19 have expected to the extent their concerns, for those 20 concerns to be raised. 21 Q Did you raise any -- any such concerns about it, or 22 did it seem to make sense to you? 23 A From my perspective, I recall -- I don't know if it 24 was at the time or subsequent to it, reading it, and and 25 it seemed -- it seemed to -- to make sense. EFTA00009048 Page 233 1 Q Okay. After letter went out on the 2 3rd of August, you almost immediately -- it appears you 3 received a telephone call from Kirkland S Ellis, is that 4 correct? 5 A That -- I don't recall it independently, but that's 6 what the record shows. 7 Q All right, and that's reflected in Exhibit 12. Do 8 you remember who called you? 9 A I do not. 10 Q Do you recall -- it apparently was from the context 11 of this Exhibit 12, it -- and the caption, Epstein. 12 A Right. Right. 13 Q It appears that the call related to Epstein, 14 correct? 15 A Correct. Again, I don't remember the phone call, 16 but from the e-mail, I accept that it happened. 17 Q So, what had been your knowledge and relationship 18 of -- with Ken Starr of Kirkland S Ellis -- 19 A Right. 20 Q -- up to this point? 21 A So, I had been an associate at Kirkland, I think I 22 indicated, what was it -- 23 Q Mm-hmm. 24 A -- from '94 to '90 -- what was it? Was it '96 or 25 '97? EFTA00009049 Page 234 Q A couple of years. 2 A For a couple of years. I worked on at least one 3 case that I recall with him. I was the junior associate on a 4 merits brief that he argued. He, at the time, was also 5 special counsel. And so he wasn't in the office nearly as 6 much because he was double hatting as special counsel -- 7 Q Me-ham. 8 A -- and partner. 9 Q mm-hmm. All right, and what about 10 A Sc, was a partner at the time. 11 don't recall working with him on any particular case, 12 although I think I worked with him on at least a matter. He 13 was on my hallway. He had an outside office. I had the 14 typical inside office. 15 Q Had you had any interaction -- any contact with 16 them in the intervening years, socially or professionally? 17 A Off and on, I was in Washington. They -- you know, 18 Ken Starr was in Washington. I think III had moved to New 19 York but then came back to Washington to be in the 20 administration, and he was in the policy office, and we may 21 have -- not may have. We likely interacted. 22 Q And while you were here at the criminal -- at the 23 civil rights division? 24 A Correc . . 25 Q All right, and did you -- were you friends? Were EFTA00009050 Page 235 1 you professional acquaintances? Were you what? How would 2 you characterize that? 3 A We were professional acquaintances that had worked 4 together several years ago that continued to interact. 5 Q Is that true as to the two of them? 6 A I mean, it's hard to characterize these things. I 7 think -- I think that's fair to say. 8 Q Did Ken Starr know who you were? 9 A Yes. 10 Q And obviously as well? 11 A Yes. 12 Q Okay. So, what was your reaction to being 13 contacted by them in -- by their firm, them, presumably one 14 of -- 15 A Right. 16 Q -- them perhaps? 17 A So -- 18 Q In -- 19 A So, I don't know who called based on the e-mail. I 20 can infer that it was one of them. 21 Q 14M-hmm. 22 A And you know -- and I think my reaction is captured 23 by not my e-mail, but -- but by Jeff's comment, and what -- I 24 don't have a clear recollection, but I'm going to 25 speculate/infer that I heard they were being brought onto the EFTA00009051 Page 23E 1 case, and I probably walked down to Jeff's office and said, 2 hey, Kirkland's coming onto the case, I bet you they're going 3 to come on to try to take this up to D.C. 4 And then I get a phone call, and -- you know, and 5 then I tell Matt, who tells Jeff, you know, I didn't know, 6 maybe -- Kirkland made a call to -- you're right, 7 unbelievable. 8 And then I say they're likely to go to D.C. We 9 should strategize a bit. My concerns behind that are, will 10 D.C. look at this as sort of legally troubled, going back to 11 the earlier points that I made about the policy issues around 12 the trafficking issues up here in D.C. 13 Q Mm-hmm. 14 A And I really do think he should go to jail. And 5 so, I want to strategize a bit. 16 Q So, did you have concern about the fact that you 17 were -- that the defense team was sort of appealing you to 18 the big house? 19 A I think based on this, I almost predicted this 20 would happen. 21 Q Yeah. 22 A And Jeff is saying, you were right, unbelievable, 23 where I in some way, shape, or form predicted that something 24 would -- someone would be hired, or something would happen to 25 take this all up to D.C. EFTA00009052 1 Page 237 Q And had you experienced other cases other 2 instances in which defense team went to D.C. while you were 3 at U.S. Attorney's Office -- while you were the U.S. 4 Attorney? 5 A Yes. 6 Q Was that a concern to you? 7 A It wasn't a concern. It was a, how do we address 8 this so that we can back our position and our office. 9 Q Did you have concerns about the disposition that 10 was underway? About -- main justice scrutiny of the NPA 11 scheme? 12 A So, I had no concerns about main justice scrutiny 13 of the NPA scheme. In fact, I invited Drew to come down -- 14 Q Right. 15 A -- and he was part of the meeting where we 16 discussed the NPA. And so, I say that because if I had 17 concerns, I wouldn't have invited him. If anything, my 18 concern was, is main justice on board, or are we going to 19 basically be told to drop this case when it goes up to main 20 justice? 21 MM-hmm. In your e-mail to , when 22 Sloman's on vacation -- 23 A Yeah. 24 Q -- you say that -- you make reference to a process 25 foul, that the attorneys in the defense team want to go to EFTA00009053 Page 238 1 D.C. on the case on the grounds of a process foul, i.e., that 2 I have not met with them, and you expressed concern that that 3 would delay matters. Is that what led you to agree to meet 4 with the defense team on the 7th of September? 5 A It is. My concern was it they came up to D.C., and 6 the first talking about was the U.S. Attorney didn't even 7 agree to meet with us, that's not the best -- that's not the 8 best foot to start with when you're having your case 9 reviewed. 10 Q So, what was your understanding of what the purpose 11 of the meeting on September 7th was supposed to be? 12 A They wanted to argue -- they, being defense 13 counsel, wanted to argue why we should not pursue this case. 14 Q And in this case, it was Starr and Lefkowitz from 15 Kirkland & Ellis, and Lilly Ann Sanchez, I believe who met 16 with you. 17 A Fair. I remember it was Starr and Lefkowitz. I 18 don't know if it was Lilly Ann. 19 Q All right, and our information is it was you, Drew 20 Oosterbaan, Sloman, , and John MacMillan. Do you -- 21 do you know John MacMillan? 22 A Vaguely. 23 Q All right. He was an AUSA as well. 24 A Right. 25 Q Correct? In West Palm? EFTA00009054 Page 239 1 A Right, and if I can just add, again, I -- I invited 2 Drew -- 3 Q Mm-hmm. 4 A -- so, Drew became fully aware of that, and my 5 concern in getting Drew into the meeting was to not have them 6 appeal us, and then having Drew say, not a good case. 7 Q All right. So, were you aware that Drew Oosterbaan 8 had, in preparation for this, gone to West Palm and actually 9 gone through the evidence and met with the case agent and the 10 line AUSA 11 A I was not. Drew is an independent actor and could 12 do what -- yeah, what he thought appropriate. 13 Q Did that -- does that seem like an appropriate 14 thing for him to have done in your eyes? 15 A Sure. 16 Q Okay. Would you describe the meeting -- oh, and 17 two other people who were there were, again ASAC Val Parlave 18 and Junior Ortiz -- 19 A Right. 20 Q -- the SSA. So, and the meeting I think was in 21 West Palm Beach. 22 A Yes. 23 Q So, what do you recall about the meeting? The 24 dynamics? Who spoke? How did it go down? 25 A I recall there were a lot of people. I think Mr. EFTA00009055 Page 240 Starr spoke most of the time. I think -- my recollection, as best as I can -- you know, with the caveat I thought was there and clearly he wasn't. So, presented 4 several arguments. I then either left the room with my team, 5 or I think I most likely asked them to leave the room. I 6 then went around and -- 7 Q Asked who to leave the room? A Asked the -- Q The defense? 10 A -- defense. I then went around the table, and 11 said, does anyone have any concerns, or something to that 12 effect. And then hearing none, I asked them to come back in, and I reaffirmed the position of the office. '4 Q In other words, you sort of decided -- you ruled from the bench, as it were. Fair enough? 16 A Fair enough. 17 Q Okay. You didn't take -- take it under advisement. 18 You gave them what your position was right then and there. 19 A That -- that's my recollection. I don't know if 20 you have information contrary, but at least -- 21 Q Okay. 22 A -- that's my recollection. 23 Q Okay. So, is it fair to say it was more of a 24 presentation on the part of Ken Starr and his side rather 2; than a debate or discussion? EFTA00009056 Page 241 1 A I think that that's fair to say. I may have asked 2 a question or two, but my -- my recollection was not was 3 not a negotiation, but a, let's hear you out. 4 Q And so, we understand it was mainly a federalism 5 presentation, as opposed to evidence, is that accurate? 6 A I believe that's accurate, yes. 7 Q And in your letter to Ken Starr dated -- the letter 8 is actually not dated, but we know that it was sent on the 9 4th of December -- 10 A Okay. 11 Q -- of 2007, and it's in this package. You noted 12 that -- 13 A Which exhibit? 14 MR. GONZALEZ: 34. 15 BY 16 Q Thank you. Exhibit 34. You note on page four -- 17 I'm sorry, page five, you -- you referred to the federalism 18 arguments, and you say that after considering the arguments 19 and conferring with the FBI and Drew Oosterbaan, you decided 20 to proceed with the indictment, but that you would delay 21 presentation of the indictment to allow the defense to appeal 22 to D.C. Does that mean that you didn't find the federalism 23 arguments sufficiently persuasive to you to change your 24 position? 25 A Yes, with the position defined as some concern, but EFTA00009057 Page 242 1 if we need to -- if we don't come to a resolution based on 2 the sheet, then we indict. 3 Q And there is a letter of -- 4 BY Q I'm sorry, when you say some concern, some concern 6 about the federalism argument? 7 A Yeah. Going -- going back to what we talked about 8 with respect to the earlier conversation about solicitation 9 versus trafficking, and the federal nexus. But back in July, 10 we had decided that we were going forward, that either there 11 is this pre-indictment resolution, or we go forward with an 12 indictment. The September meeting did not alter or shift our 13 position. 14 BY 15 Q Even though you had some federalism concerns of 16 your own, they didn't rise to a sufficiently high level. 17 A So, their request -- their request was to drop the 18 matter. 19 Q Right. 20 A And -- and -- 21 Q Okay. 22 A -- going back again, understood. There is -- there 23 is legal risk. There is witness risk. All of these. If we 24 can get pre-indictment resolution, good. If not, the 25 indictment was not a bluff. It was -- it was real. EFTA00009058 Page 243 1 Q So, was -- I mean, Ken Starr is of course well 2 known. 3 A Right. 4 Q He was solicitor general, he's -- you know, 5 etcetera. Did you find his arguments well set forth? 6 Impressive? 7 A So, you're asking for something that's 12 years 8 if I had to characterize, by the time this meeting took 9 place, there had been a fair amount of thought around these. 10 There had been a fair amount of -- and I at least felt 11 comfortable that while there was some legal risk, he 12 needed -- we needed -- you've got to balance the legal risk 13 and the precedent risk with -- with outcomes, and Mr. Epstein 14 should go to jail, and should register, and I felt 15 comfortable -- I felt comfortable enough to basically 16 reiterate our position that -- 17 Q But my -- but my question with respect to -- 18 A Right. 19 Q -- was, did you enjoy the give and take with -- 20 with a man of Mr. Starr's -- 21 A In