Epstein Prosecution

How Federal Prosecutors Are Able to Charge Jeffrey Epstein Years after a Non-Prosecution Agreement

Ten years ago the United States Attorney for the Southern District of Florida signed a non-prosecution agreement with financier Jeffrey Epstein.  The agreement required Epstein to plead to two state charges of solicitation, register as a sex offender, and serve a term of 13 months in county jail.  The sentence was less than appeared as Epstein left on work release for 12 hours six days a week and apparently served his sentence in a private area of the jail.  The agreement effectively ended the investigation in south Florida of Epstein’s trafficking in children for sexual purposes.

Now, the United States Attorney for the Southern District of New York has indicted Epstein for essentially the same conduct covered by the Southern District of Florida non-prosecution agreement.  How is that possible?  Was the agreement defective?  Was Epstein’s legal team duped?

Criminal prosecution in the United States is divided among sovereigns.  Each state is a sovereign and may prosecute crimes over which its courts have jurisdiction.  Likewise, the federal government is a sovereign and may prosecute cases over which federal courts exercise jurisdiction.  The federal courts are divided into 93 separate districts.  The Southern Districts of Florida and New York comprise two of these districts.  The United States Attorney in each district is the chief federal law enforcement official for the district, having been appointed by the President and confirmed by the Senate.  

As the chief law enforcement officer of a district the United States Attorney may enter into agreements binding his or her district.  Any such agreement does not bind the United States Attorneys in other districts.  In fact, the typical agreement into which a United States Attorney’s Office enters specifies that the agreement is with that office.  Thus, the agreement that Epstein signed with the Southern District of Florida bound that office and no other district.  (When the United States Attorney for the Northern District of Georgia reviewed the agreement, that office determined that it bound the Southern District of Florida.)  Thus, when the investigation in New York uncovered evidence that the Southern District of New York also had jurisdiction over a potential case, there was not impediment to the United States Attorney for the Southern District of New York charging Epstein.

Finally, one should note how rare it is for a United States Attorney’s Office to bring a criminal case after another United States Attorney has investigated and signed a non-prosecution agreement.  In my experience of more than 30 years of federal criminal practice I have never seen it happen.

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