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

seemed to reflect a real discomfort --

A I --
Q == as you identify.
A Again, I'm perhaps supporting -- I'm supporting the

point you're trying to make that we were focused on getting
this done, and real concern that he would not go to jail.
And a question that I think is a valid one in my mind is, did |
the focus on, let's just get this done and get a jail term,
mean that we didn't take a step back and say, let's evaluate
how this train is moving?

Q You --

A From my perspective.

Q Okay. I want to just sort of round out the little
bit of this -- the state -- the state only resolution. You
used the term a couple of times backstopping. What do you
mean by that?

A What I mean by that is, a sense that the state
wasn't doing enough, and perhaps backstopping is a polite way
of saying encouraging the state to do a little bit more.

Q Mm-hmm. All right. Did you have any discussions
about whether this disposition comported with the Asheroft
memo in that you were hunting te the state for a minor

charge, for a fairly minor charge, what you -- your office

had already understood from the evidence was a quite wide

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ranging scheme of predatory, my term, behavior regarding

minor victims?

pal S50, I don't recall a discussion around the Ashcroft
memo. I would characterize what we did differently, in that
there are any number of instances where the federal
government or the state government can proceed, and state
charges are substantially less and different, and on a fairly
regular basis, the federal government allows the state —-- not
allows, but stands aside and lets the state proceed.

Q But in this case, you actually had an active
investigation that had been proceeding for a year.

A 50, let's take the drug context, where there might
be any number of active investigations where the federal
charges can be rather substantial, but ultimately, the
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 -- sa, in
that sense --

Q But the state goes forward with what?

A Forward with different charges that -- that have a
lesser term. And so, I don't think it's unusual. We can
talk about, you know, whether this was the best disposition
or not, but I don't think it's unusual to have fact patterns

that are under investigation that proceed in state court,

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 BEE: oo ch: two years, or something else?

5 BEE: oc. I'm going back to the two

6 years.

7 EE: ov.

: =v

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 te 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 --

= = EE — ee —

EFTA00009018


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1 n Right.
2 Q == again, I'm sorry.
3 Bn But it is binary, so -=-
4 Q It is binary.
3 A Yes.
3 Q And likewise, the =--
7 A Right.
B Q == monetary recovery provisions. So, really, the
8 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 B So --
15 Q -- I was asking.
16 h $0, 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 Ho, go ahead. Go ahead. I'll get to my question.
21 2) 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

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those two years.

Q Right, se you -- when you say, I thought the two

Years was the right amount, is that based on your

understanding that that's what he would have gotten in the

state?

n Correct.

Q All right.

A That -- and the point I'm trying to convey there is
that this wasn't, to my understanding, a random number, but
it was informed by, this is what he would have received, and

therefore it is a reasonable -- agree or disagree with the

analysis, but it was an informed number to begin with.

Q But you don't recall how that analysis was done, or

who conducted --

A I ——

Q == that analysis?

A -=- don't recall that,

Q Or even whether it was accurate, actually?

A I -- again, I don't recall that.

Q All right.

=¢ IE
Q And I understand the explanation.

A Right.

EFTA00009020



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1 Q And --
2 A Right.
3 Q == what it's tied to, but was there any

4 consideration -- because this case --

5 B Right.
6 Q —= was not about one or two victims. It was a very

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

lg of his conduct?

17 B 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


EE —
Page 206

1 therefore it would not have come inte the office under

2 petite, then if there is a state disposition to that, that is

3 one possible cutcome.
4 It would be a different cutcome if this was truly a
5 federal pro=section independent of the state, which goes back

6 te 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 p= 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

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Page 207

one single overt act in the government's conspiracy, and

doesn't that really show what is going on here, that what the
state had done was really just a small, minor part of this
scheme that the federal government had a --

A Right.

Q == had a real opportunity to punish him for this
entire course of conduct?

A So, possibly, but if I can cirele back to your
question previously, it's interesting that you characterize
this as, he's turning these girls into prostitutes, and then
I think that's really interesting, because in 2019, 13 years
afterwards, despite all the changes in the law, there is
still some element somewhere that says he's turning these
girls into prostitutes, whereas this was a typical
trafficking case of the kind that you'd see in the Lou De
Baca days where, you know, it was called modern day slavery.
That's a very different fact pattern.

S50, you know, a girl that's held captive, is forced
to service multiple men per day, where this is part of an
ongoing business arrangement. And so, I hear what you're
saying, but if here at this table at least some element of
that characterization is live, what would it mean in 2006
when these laws are still being developed? And that

consideration, rightly or wrongly, was part of this analysis.

= I

Ee eeeee————— |

EFTA00009023



Page 208
1 Q Was it explicitly =-- in other words, was -- was

that aspect of it, the -- I -- the perception that this was
3 perhaps activity that -- in which the victims cooperated?

4 Was that part of the --

5 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
g juror that might say, look, we've got conflicting victim

10 testimony.

11 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 -- I'm
14 not saying I agree with that, and I don't think -- IT 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 | IIIIIEEGEGEGE =rc --

19 A So --

20 e -- HEE

21 A 50, that certainly was part of the discussions when
22 I talk about the wictim issues, would at least some jurors

23 view it that way, rightly or wrongly?

24 Q And you recall having that -- those --

25 Bh I -—=

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Q -= conversations?

:) I recall having not only how would the witnesses
stand up in court, but how would jurors view them? And then
the second part of that is, as it goes up in the appellate
process with respect to the -- the federal nexus. And so, I

hear you, but you know, I == it's -- it's sort of one of the

factors. And so --

sy [H

Q And so --
A Yeah.
Q -=- what I'm getting though is that there didn't

seem like there was a consideration or discussion about, is
this two years capturing the scope of his conduct, versus,

we're just going to tie it to this potential state erime that

could have been charged?

2 Fair, and I would -- I would say that the two years
was not meant -- so, the petite policy has several prongs,
and to my recollection, the petite analysis was not based
on -- and let's not even call it petite analysis. That
overstates it.

But 1t was much more of a, is this a manifest
injustice, and -- and if the original -- and so, you sort of
see 1t in the Exhibit 3. This would not have been brought to
the office in the first place if -- you know, if he had plead

to jail time and registration, and rightly or wrongly, that

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Page 210

was understood from the very beginning of the case, and was a

factor in how the case was viewed.

Q And how do you know that it wouldn't have -- that
BEE culdn't have been upset with a minimal jail
time, even if there was sex registration?

23 So, I can't 12 years later say how we knew that. I
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.

HINIEEN They did.

THE WITNESS: 1I can't speak for certain, but you
probably have that from the record, and that when they
changed the ASA involved and took it to grand jury, the
charges that came back were substantially less.

sv |

Q Do you remember the circumstances? Did you know
the circumstances under which that ASA was changed?

A I don't know.

Q All right. The -- by the way, do you remember an

occasion in which [EE care to your office in Miami

to press you on what was going to be happening with the

federal case?

: I don't recall.

EFTA00009026


EE

Page 211

1 Q You don't recall. I --

2 BEE: usc one nore, I --

3 HR

4 THE WITNESS: Yeah.

5 ey

6 Q So, before we --

7 RB Yeah.

B Q == leave this --

9 B Yeah,
10 Q == one little thing. So, if this case had come
11 inte the federal system as apart from the --
12 B Right.
13 Q == taken the digression through the --
14 A Right.
15 Q == state system, do you think that the two years

le was an appropriate punishment, given the scope of his

17 conduct?

18 I 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?

—_—_—— ee

EFTA00009027


Page 212

1 A No, whether it was =-- so, let me =-- let me —-- lat

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

¢ [|B 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 4 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


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Page 213

now the person has done three violent crimes, they have a
gun, they go federal, and it's like, please don't do that.
Pretty please don't do that.

You know, we're going to punish you a little bit,
and then all of a sudden in comes the federal government with
the big, big punch to the face, because the federal sentences
are so different than the state sentences. And that happens
all the time in any number of contexts in Florida. That
doesn't mean that all of those cases get reprosecuted as gun
cases in Florida.

That means that we understand that the Florida
system is different than the federal system. And so, the way
we looked at, at least based on my recollection, those two
years was not, what would he have received if this was a
purely federal case, but would this case have been prosecuted
by the federal system additionally if he had received Jail

time and registration in the state system?

Q And would -- is it fair to say that this particular
concern about, for lack of a better word, federalism or the
petite policy, was that a primary concern of yours versus any
of your employees in terms of HiIEEI or HEE

A I think it's fair to say that I focused more on the
legal side of things, and my team focused more on the trial
and how this would play out at trial, and both of them --

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 A Yes. Yeah. I think those are all tied together.
: = I

5 Q So, you mentioned victim ==

6 A But == but could I -- could I --

7 Q Yas.

8 B 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 wietim -- 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 den't know whether that person was a minor
23 or not?

24 A I do not.

25 Q All right.

EFTA00009030



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2)

Q

the victims were who formed the basis for the 796.03 charge

to which Epstein ultimately pled in June of 20087

A

of that, but that's based on matters that I've read and not

an independent recollection.

Page 215

I would assume they were, but I do not.

Likewise, do you know who was the victim, or who

I did not at the time. I've read various accounts

Q And what's your understanding?
A My understanding is that there's some -- that there
is at least some issue in the media over whether the -- the

right or the best victims were chosen from the prosecution's

perspective,

Q

the victims were? Do you know who the victims were who were

the subject of the state charges?

A

Q

A

Q

And do you know -- was there any indication of who

Which particular names? No, I don't.

Right, I'm not asking you --

Yeah.

-= other than names --

Yeah.

== I Just want to know if you know who they are or

how many they were,

A

Q

solicitation. It could be cone conceivably. Both the charges

I -— I do not.

Right, it could be one, right? For this -- for the

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 Hi and to some extent Andy were

4 involved in. I did not --

5 Q What makes you think that -- that -- the -- your

€ people were negotiating which victims would form the basis?

7 A Fair. Fair point.

8 0 Okay.

9 A Fair point. I withdraw. They may not have. I

10 don't know -- I don't knew 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.

lg 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 FY 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

23 has been now -- a two year state deal has been announced to

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ee —

Page 217

the team by [INE

A Yeah.

Q With your knowledge and approval, right? Because
he wouldn't do it otherwise. Is that right?

A Fair.

Q Though at least one was surprised. Do you know
what drove the timing of the plea offer? In other words, why
did it have to be made at that point?

A I do not.

Q Okay. You know that [NII subnitted his

resignation on the 23rd of July.

A I saw that in the --
Q Right.
A == in the -- in the documents.

Q In the documents, and he submitted that to you
among other -- as well as the --

A Yeah.

Q == HR people. Why not -- well, then there was a
July 31st meeting at which the term sheet was presented.
This document 15 is the term sheet that was presented, as
[1] indicates in her September 6th cover note -- cover e-

mail. And you said you approved it. You happen to be copied

A Right.

Q == though =--

EFTA00009033


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A So ==

o INNES --

A Let me --

Q == forwards this, but --

A Let me -- let me be -- let me be accurate. I

approved these terms, whether it was this specific term sheet
or another -- another document that might have been earlier
that looked highly similar to this.

My recollection is approving a, a —- you know,
approving a resolution that had him pleading to certain state
counts that had a binding two-year plus recommendation that -
= and that provided for 22.55 restitution.

Q Right, but you don't know if it was this sheet of
paper?

A I can't say 12 years after the fact whether it was
this specific sheet --

Q Right.

A == OF ==

Q All right.

2 -- or others. I -- based on the fact that this was
in the e-mail, I think it's safe to -- to assume, but --

Q To assume what?

A To assume that it was this.
Q Oh.
RE But it's possible that there was as slight

EFTA00009034



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Page 219

difference in --

Q All right. In fact, this -- this same document
with a couple of --

A Right.

Q == additional bullets that had to do with the date
of entry of the plea, sort of ministerial, is what was
prepared by [lll HII -~ or about the 31st -- on or
before the 31st of July, and this document, as indicated --

A Mm ~hmm.

Q -- here, along with the attached guidelines

calculation is what was provided to the folks who met on the

lst =--

p: Fair.

Q == of July. Okay. So, on that 31st, it was |
BB Jerry refcourt, MEM sanchez, and the purpose of
the meeting with Sloman, Menchel, Lourie, and [1] 1] T] as
well as the case agents was to present the plea offer. And
did you get briefed on how that plea coffer went?

A I don't recall being briefed, but in the regular
course, I would have been.

Q All right, and at that meeting, there was an
expression of concern by the defense team that Epstein wanted
to avoid being incarcerated in the state system because of

concerns for his physical safety, and that concern was

accommodated te the extent that the U.S. Attorney's Office

EFTA00009035

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Page 220

team agreed to explore federal resolution. How does that

square with your decision that a state plea is how this case

was going to be --

A Right.

Q == decided?

B S50, I think I indicated later that it's a little
bit more fluid than a decision here or a decision =-=- you

know, than binary situations. My recollection is we were

very focused on, this man should go to jail, and this man

should register.

The two year plea to the state charges seemed
reasonable and seemed a way to go. We can agree or disagree.
Reasonable in terms of -- not in terms of, was it the -- the
most just outcome, but seemed like a disposition that we
would agree to.

But ultimately, the focus was on getting him to
jail, and if that meant exploring a 371, it's at least worth
exploring. And so, I don't think it was inconsistent,
because the focus really was on, he needs to go to jail.

Q Okay. In this case, that -- that push back of

the -- that resulted --

Fy Right.

Q == in the agreement to explore a federal plea --
A Right.

Q == was because Epstein was afraid to be in prison.

EFTA00009036



e————m——— a

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
= 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 A Yeah,
10 Q == challenges, right?
11 B 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 ockay, you don't like prison, but that doesn't

le mean you get to be incarcerated in your house.

17 Q Mm—hmm

18 B Which is interesting, because subsequently --
19 Q Yeah.

20 Fa) And so --

21 Q Because subsequently, what? You might as well

22 finish --

23 B Well, because --
24 lo -- that.
25 B -= subsequently, the way that the state executed

EFTA00009037


Page 222

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 te make the record

6 clear.
7 Q Mm-hmm. Thank you.

8 B 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
1% two weeks to take it or leave it, and if not, you would

20 indict, and there were several cccasions --

21 A Correct.
22 Q == when that kind of ultimately was made. Did that
2d 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?

— eee ———

EFTA00009038



Page 223

1 RB No.

2 Q It was not.

3 2) It was not.

4 Q You were at some level at least prepared to approve

2 the presentation of the -- or, the presentment of --

6 2) We --
i! 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 ig --

17 2) Had it been reviewed, and revised, and --

18 Q It had -- there -- there had been some efforts to

1% begin revising, so --

20 A 50 ——

21 Q Yeah.

22 A Some --

23 Q It wasn't finalized.

24 2) Yeah. Some efforts to begin --
25 Q Exactly.

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Page 224

2) Right.

Q Okay. Looking at lla, this is a letter that [HR
BEE crafted to sort of actually respond to a
counteroffer by the defense. The counteroffer is represented
in Exhibit 10b, which is a letter from [J] sanche:
which we don't need to go into in detail, because as you've
already pointed out, essentially it was a home confinement,
and you know, very, very soft --

BA Yeah,

Q == landing counteroffer. In lla, HEIEEIN
tweaks | TD] letter, you're copied on this, and the date is
August 2, Thursday, and he notes that he hadn't discussed it
in detail with you, but he wanted to -- he hoped that

tomorrow, Friday the 3rd --

A Right.
Q -=- he'd have a chance to, and what's notable here
is that -- is that the -- there's strong language that the

"Office believes that the federal interest would not be
vindicated in the absence of a two year term of state
imprisonment for Mr. Epstein. That offer was not meant as a
starting point for negotiation. It is the minimum term of

imprisonment that will obviate the need for federal

prosecution."
A You're on paragraph two?
Q One.

EFTA00009040



3 B Yeah.

4 Q It's the first --
5 B Right.
6 Q == long paragraph. And then he also states that --

7 that you in the last paragraph -- the U.S. Attorney, "U.S,

Attorney Acosta has asked me to communicate that the two year

9 term of incarceration is non-negotiable."

10 2) Yes,
11 Q That's pretty firm. That's a -- that's a line --
12 B It is.
13 Q == in the concrete that is setting, right?
14 A Right.
15 Q And 1lb 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. De 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

BE EEE =SHRRREESSS————————————

EFTA00009041



cc

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

1 giveaway; we should stick with a five year federal plea?
I B il Yeah. I can't =-- so, I can't speculate this far

E 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 Hil was -- as the

14 criminal chief, was essentially the driver of this -- of the

15 resolution =--

16 2) Right.

17 Q == presented in this letter?

18 A I can't. Again, you're asking me to speak to

18 something from 12 years age. I can't speak to it. I was
20 aware of the multiple prongs. I approved it. If we had had, I
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



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happened.

Q All right.

A That's just a lot of hypotheticals.
Q Understood. The question though is whether Matt
Menchel, who was the author =--

A Right.

Q -- of this, who first raised it ~--

2) Right.

Q -- with [Jl sanchez --

A Yeah,

Q == in an informal discussion, and who presented it

to the U.S. Attorney's Office team, was this really his baby?

A I can't --

Q Approved by you.

A I can't -- I don't remember who I talked to about
what, and so it wouldn't be fair for me to —-—- you know, I
can't single out any one person as having a greater or lesser
role.

Q Well, you were not the architect of this, right?
You approved it as you've described it.

:) No, I haven't said I wasn't the architect. What I
said is I don't recall --

Q Right.

A I recall approving it. You know, I -- I think what

I'm trying to convey is these discussions are much more fluid

EFTA00009043


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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.

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
B knows? But it's -- I think it's difficult tea 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 :\ 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 [JJ
18 at scmetimes may have felt uncomfortable, but whether there

18 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, [Ji] 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

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Page 229

a time out, let's reconsider.

Q All right.

A And let me -- let me just clarify, I think at
various points in this case -- and it's hard -- it's hard to
sort of single out the timeline. Ms. [JN vz:
supportive, or maybe I wish we would go in a different
direction, and that sort of went in and out a little bit.

Q On her part?

A Tes,

Q Let me ask you this. Having reached the decision
that you appro ——

3 Right.

Q == that this was the offer, and the term sheet, or
the terms, having that decision made, would you have expected
your line AUSA to frustrate that, or to not abide by that,
since it was your decision?

A No, with a caveat that if at any point someone felt
truly uncomfortable, I would expect them to come and talk to
me about it.

Q And can you recall any instance in which an AUSA --
a line AUSA came and talked to you about a disposition that
he or she was uncomfortable with?

A Yes. So, I'll give you an example. I don't recall

who, before you ask me, but there was this AUSA who was new

to the office who impressed the hell out of me. I'm SOLry,

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 Lo some minor count, no jail time, and he felt uncomfortable
9 with it, and went te his supervisor, and then ultimately came
10 up to me, and I had a discussion with this person about it,
11 and it ended up with my telling him to go back and call the
12 defense counsel and tell them we were dropping the case.
13 Q Mim = hmm |
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

1% for it.

20 Q Mm~hmm .

21 A If anything --

22 Q Mm ~hmm.

23 A == you know, I recounted that story to others.
24 Q Okay. A question, shifting gears --

25 pa) Yeah.

EFTA00009046


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1 Q == a little bit, about 18 USC 22.55.
2 2) Yes, okay.

| 3 Q Not to be confused with 22 -- 28 USC 22.55, which

4 every prosecutor is familiar with. So, whose idea was that?

= It's, it's a civil provision, a civil =- it's not

Ga restitution, it's damages. It's a damages recovery provision

1 in the criminal code.

g RB Right.

9 Q Who came up with that?
10 FY I can't speak to whe 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.

lé Q And the importance was to provide a mechanism for

17 recovery of damages?

18 pi To =-- yeah.

19 Q Okay.

20 B Yeah. I mean, the victims bad situation, and we
21 just -- and here is -- well, go on.

22 Q All right.

23 R I might circle back on something.

24 Q So, is it fair to say that's a fairly -- had you

25 ever heard of it before? Had you come across it before?

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Page 232

2) I don't know, but I don't think so.

Q Okay. So, is it fair to say it was novel to the
office? To you, and to this team?

A I don't want -- I don't think it's fair to say that
it's novel to the office.

Q Well, to the -- do you -- do you recall whether
anybedy in the team had had experience with 18 USC 22.55 in a
criminal =--

A I don't have a recollection of any discussion as to

whether people had experience with this or not.

Q Did you believe that any legal research was needed,
or should be undertaken to ensure that the procedure was in
fact legally sound when embedded, as it was in this case, in
a criminal plea?

A So, I would have expected to the extent that there
were concerns. Again, we had incredibly experienced --
between the various individuals on my management team, we
probably had 50 years plus of criminal experience. I would
have expected to the extent their concerns, for those
concerns to be raised.

Q Did you raise any -- any such concerns about it, or

did it seem to make sense to you?

A From my perspective, I recall -- I don't know if it
was at the time or subsequent to it, reading it, and -- and
it seemed -- it seemed to -- to make sense.

EFTA00009048


Page 233
1 Q Okay. After EN 1=tte:r went out on the

2 3rd of August, you almost immediately -- it appears you

3 received a telephone call from Kirkland & Ellis, is that

q correct?

5 A That -- I don't recall it independently, but that's

& what the record shows.

IL Q All right, and that's reflected in Exhibit 12. Do

: you remember who called you?

uo

RB 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 Rn 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 Een Starr of Kirkland & Ellis ==

19 :\ Right.
20 Q == up to this point?
21 :Y So, I had been an associate at Kirkland, I think I

22 indicated, what was it ==

23 Q Mm-hmm .
24 :) == from '94 to "90 -- what was it? Was it "96 or
25 *977

EFTA00009049


Page 234

1 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 Mm-hmm
B =) -- and partner.
9 Q Mm-hmm. All right, and what about [INNER

10 A So, NEE 2: : cartner at the time, I

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 i) Off and on, I was in Washington. They -- you know,
1&8 Ken Starr was in Washington. I think [Jl 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 ma‘y

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 AB Correct.

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 B We were professional acquaintances that had worked
4 together several years age that continued to interact.

= Q Is that true as to the two of them?

8 A I mean, it's hard to characterize these things. I
7 think -- I think that's fair to say.

B Q Did Ken Starr know who you were?

9 A Yes,
10 Q And obviously HENIEINE as well?
11 EB 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 = S50 =--
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 Mm—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 doen't have a clear recollection, but I'm going to

25 speculate/infer that I heard they were being brought onto the

ee

EFTA00009051



Page 236 ||

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 Lo 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,

J maybe -- Kirkland made a call to -- you're right,

7 unbelievable.

B 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. lock 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 = humm .

14 .\ And I really do think he should go to jail. And
so, I want to strategize a bit,
Q So, did you have concern about the fact that you

were -- that the defense team was sort of appealing you to

the big house?

hn I think based on this, I almost predicted this

would happen.
Q Yeah.

bi) And Jeff is saying, you were right, unbelievable,

where I in scme way, shape, or form predicted that something

would -- someone would be hired, or something would happen to

take this all up to D.C.

EFTA00009052



eee

Page 237
1 Q And had you experienced other cases -- other

2 instances in which defense team went te D.C. while you were

3 at U.S. Attorney's Office -- while you were the U.S.

4 Attorney?

2 2) Tes,

6 Q Was that a concern to you?

7 A It wasn't a concern. It was a, how do we address
g this so that we can back our position and our office.

8 Q Did you have concerns about the disposition that
10 was underway? About -- main justice scrutiny of the NPA

11 scheme?

12 pl S50, 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 Bn -- and he was part of the meeting where we

le 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, 1s 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 Q Mm-hmm. In your e-mail to HENNE 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

ee ————— a]

EFTA00009053



Page 238

1 D.C. on the case on the grounds of a process foul, i.e., that

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?

3 B 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 te be?

12 12% 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
19 Kirkland & Ellis, and Lilly Ann Sanchez, I believe who met
16 with you.

17 IL 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, [J 1TH and John MacMillan. Deo you --

21 do you know John MacMillan?

22 pil Vaguely.

23 Q All right. He was an AUSA as well.
24 A Right.

25 Q Correct? In West Palm?

ee)

EFTA00009054



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Page 239

1 A Right, and if I can just add, again, I -- I invited

2 Drew --

3 Q Mm —hmm

4 2 -= 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

gone through the evidence and met with the case agent and the

10 line AUSA

11 R 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 :) 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 RB Yes,

£3 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

1 Starr spoke most of the time. I think -- my recollection, as
2 best as I can -- you know, with the caveat I thought I
3 | v2: 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?
B A Asked the --
9 Q The defense?
10 Ah —— defense. I then went around the table, and I
11 said, does anyone have any concerns, or something to that
12 effect. And then hearing none, I asked them to come back in,
13 and I reaffirmed the position of the office.
14 Q In other words, you sort of decided -- you ruled
15 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.
I 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
25 than a debate or discussion?
= - ER

EFTA00009056



Page 241

1 A I think that that's fair to say. 1I may have asked

2 4 question or two, but my -- my recollection was not a -- was
3 not a negotiation, but a, let's hear you out.

4 Q And so, we understand it was mainly a federalism

2 presentation, as opposed to evidence, is that accurate?

6 R 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 B Okay.

11 Q == of 2007, and it's in this package. You noted
12 that --

13 A Which exhibit?

14 MR. GONZALEZ: 34.

15 sv [I

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

EE ——

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—————— —_— ——

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1f we need to -- if we don't come to a resolution based on
the sheet, then we indict.

Q And there is a letter of --
=
Q I'm sorry, when you say some concern, some concern
about the federalism argument?
A Yeah. Going -- going back to what we talked about

with respect to the earlier conversation about solicitation
versus trafficking, and the federal nexus. But back in July,
we had decided that we were going forward, that either there
1s this pre-indictment resclution, or we go forward with an

indictment. The September meeting did not alter or shift our I

position.

=
Q Even though you had some federalism concerns of

your own, they didn't rise to a sufficiently high level.

A So, their request -- their request was to drop the
matter.

Q Right.

A And -- and --

Q Okay.

2) -= going back again, understood. There is -- there

is legal risk. There is witness risk. All of these. If we
can get pre-indictment resolution, good. If not, the

indictment was not a bluff. It was -- it was real.

E—

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Page 243

Q So, was -=- I mean, Ken Starr is of course well
known.

B Right.

Q He was solicitor general, he's -- you know,

etcetera. Did you find his arguments well set forth?
Impressive?

A So, you're asking for something that's 12 years —-
if I had to characterize, by the time this meeting took
place, there had been a fair amount of thought around these.
There had been a fair amount of -- and I at least felt
comfortable that while there was some legal risk, he
needed -- we needed -- you've got to balance the legal risk
and the precedent risk with -- with outcomes, and Mr. Epstein
should go to jail, and should register, and I felt
comfortable =- I felt comfortable enough to basically
reiterate our position that --

Q But my -- but my question with respect to --

A Right.

Q == was, did you enjoy the give and take with --

with a man of Mr. Starr's --

yi In all candor, no.
Q == standing?
pil Mo.

Q No? Not at all.

AB Not at all, because --

EFTA00009059

|


Page 244

1 Q All right.

2 R == 1t would have been easier to not have the

3 meeting in the first place.

4 Q All right. Do you recall an exchange -- was he —--

= was -- were you the person to whom he was directing most of

6 his comments?

7 A Most == most likely.

B Q And do you recall any exchange with him about the
9 fact that -- sort of an observation that the twe of you, you
10

and he, were the only two people in the room who had been
11 presidentially nominated and senate confirmed to any position

12 so that the two of you had kind of that commonality. Does

13 that ring --

14 A Do you mean --

15 Q -=- a bell?

16 A —= was he trying to butter me up?

17 Q Was he? I mean, was he?

18 A I don't -- I -- look, this was 12 years ago. I

19 don't recall. You know, I think as we talk about this, it's
20 important te note that the position did not change. Whatever
21 exchange there may have had, our position did not change.

22 Q Right. After this meeting, within a few days, in
23 furtherance of the resclution that had been offered, Hl

2¢ HEN --: lll 1ourie met with the state attorney's

25 office to sit down and try to work out how this thing would

ee ————

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Page 245
1 work, and mind you, this was before -- well before the NEA

2 is ——
3 I Right.
4 Q == actually formulated. Did you learn what

5 happened at that meeting? Do you know how it devolved?
6 B I may have. I don't -- I don't recall, you know,
7 sitting here today.

8 Q All right. It's at this meeting that somehow, the
9 three charges that you specified -- your office specified in
10 the term sheet became cone. So, suddenly Epstein was to plead

11 only to one charge, and this was agreed to by the U.S.

12 Attorney's Office folks who were there. Do you know how or
13 why that happened?

14 A I haven't the slightest idea.

15 Q If you had known == if they had called you on the
16 phone, sort of the mid-trial --

17 A Right.

18 Q == call to the boss, asking what you wanted them to
19 do, what would you have said?

20 A So from my perspective, when I said -- you know,

21 when I indicated I approved this term sheet, this is the

22 minimum, I meant what I said. I also recognize that AUSAs in

23 the usual course need some degree of discretion to negotiate.

24 and so, my assumption after that September meeting, I think I

25 indicated that there was a deadline --

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Page 246
Q Mm~hmm .
A -= that was fairly short, was that [| and [| |]
and some -- working together would go back and work out an

agreement based on those terms, and you know, in the give and
take, if they think that this is an important concession,
that's within their discretion, but I would have been

comfortable sticking to that --

Q With --
Fa) == charge sheet. With -- something that drove me
is when I -- when I said something, I -- as a general matter,

I didn't bluff. I really meant what I said.

Q So, in that terms sheet, I mean, to be fair, what
Menchel's letter says is two years --

fay Right.

Q == is the minimum. If the decision to agree to let
him plead to one as opposed to all three had no impact on
that two years, would -- would you have cared?

A Falr enough, and so going -- going back to where
I == you know, to an earlier discussion -- can I get another
Red Bull? Going -- going back to earlier discussion, I think
I indicated that the charges -- the state charges I wasn't
familiar with. And so if in the give and take, those charges
changed, my focus was on two years registration and

restitution, as long as those charges were -- captured the

conduct in some appropriate way.

EFTA00009062



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1 Q Se, later -- rather much later, the defense counsel
2 admitted that at this meeting, they thought --
3 Fa) Yes.
4 Q == that under misinformation from the state

2 attorney's office that that charge that they got the U.S.
© Attorney's Office, or somehow the -- the U.S. Attorney's
7 Office approved, the 793 -- 796.03 charge was not sex

8 offender registerable, and that's a -- that's pretty --

9 that's a pretty major mistake, right?

10 2) It is, and --

11 Q I mean, that's -- that goes to the heart of you =--
12 A And --

13 Q == one of your major concerns.

14 A And they tried -- they tried to get us to change

15 that, and I said no.

16 Q The defense tried to get you off sex offender

17 registration.

18 p= Pretty vigorously.
19 Q Right? But at this point, the focus is on the
20 charge, and the defense is -- one might characterize it as

21 trying to pull a fast one by agreeing wholeheartedly to plead
22 to one charge, knowing or at least believing incorrectly that
23 it was not registerable, and the U.S. Attorney's Office not
24 having that belief, but thinking it was registerable.

23 So, there's a disconnect. There is error, and the

—eeeee———

EFTA00009063


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error stems, as they later learned, from the ASA herself.

2 So, we look at that, and wonder whether that shouldn't have

3 raised some concern that this plan to put things back in the

4 hands of the state, which had kind of mishandled the case to

5 being with, as at this point even not a good idea, because

6 they were continually -- continuing to be -- well, I won't

7 characterize it, but less than reliable. Was that a =-- is

8 that a fair comment of concern?

9 A So, one question I would have is, at what point did
10 we become aware that there had been, first, the error was in
11 our favor, not the defense's favor, because [JJ got it
12 right as opposed to the ASA.

13 Q Correct.
14 h And secondly, at what peint did our team become
15 aware of them trying to pull a fast one? Was it before or

16 after the signing of the NPA?

17 Q It was well after.
18 A Right.
1% Q But the =-- the point here is that the U.S.

20 Attorney's Office folks were not as familiar with the state

21 procedure -- the state criminal procedure, and the ins and

22 outs of the sentencing and incarceration, as you learned

23 later.

24 So, didn't this put the U.S. Attorney's Office side

25 at a substantial disadvantage in trying to play in the

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Page 249
sandbox in which both the defense -- local defense counsel

and the ASAs were very comfortable?

A Possibly, although I would peint out that it was

the AUSA who got it right.

Q Eventually.

Bn Not eventually. The AUSA --

Q Oh.

Ek -- was correct in her analysis.

Q Right.

:} So, in this case, she was more familiar than the
state attorney.

Q Not by practice, but by research, or --

B By research, and so --
Q Right.
B -=- my point is we had good people that were able

te, if they weren't familiar with something, the research

clearly worked.

Q But it took, as you saw in the -- in the -- in the

process of dealing with the work release and all of that, it

tock a lot of ==
A It --
Q == work to keep up with those --
A It did.
Q == @rIrors.

A Which is why I say in hindsight, if, given all the

EFTA00009065


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1 effort that took place after this defer to the state was

2 reached, if all that had been known, I really think the

3 analysis would have proceeded differently, because that

4 was -- what was a lot of work. That was probably as much
5 work, if not more than a trial.

& Q Right. Right. Right. Meanwhile, the -- we'll

7 talk about the actual text of the NPA in a moment, but

: following that -- actually, no, before it was being

® finalized -- before it was finalized, [NEN HEEEEERE v--

10 working to identify a federal charge, as we discussed before.
11 In that process, she came up with a plan that would have

12 resulted -- cobbling things together in an 18 month sentence

13 instead of --

14 A Mm-hmm.

15 Q == 24 months. Somehow, that became the new floor.
16 The -- the new standard. Do you know how that came about,
17 and who actually agreed to that?

18 Rn I -- I don't. I -- I referenced the one e-mail

19 where I think [Ji] says, he argued 12.

20 Q Right.

21 A I said 24. We agreed to 18. I assume in the give
22 and take, this was an agreement that was reached, and --

23 Q But that was 18, as -- as to the potential federal

24 charges. It somehow became imported --

25 A I ——

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Page 251
Q == into the state disposition.

A I can't == I can't speak to that. This was —- this
was something that the "trial team" was negotiating, and from
my perspective, this is -- these were the terms that we
wanted. These were the terms that I expected if they came

back and said, no deal. Disappointed, but go forward, but

they tried to get a deal, and -- and --

Q The defense tried?

A No, but our prosecutors.
Q Ch.
pa) And to some extent, you know, they -- and the give

and take of any negotiation, I don't think it's unfair for an
AUSA to -- to give up some things.

Q But did =-- you had -- had stated clearly to not
only the defense team through the Menchel letter, but also I
believe at the end of the September 7 meeting, that two Years
was the deal. So, did somebody come to you and say, locks
like it's going to be 18 months, and allow you to then
approve that?

A I don't recall if someone came to me separately or

independently of the final language. I clearly approved it

at some point.

Q Mm~-hmm .
A And so to the extent it was approved, that's --
that's on me, but I would -- I would argue that, you know,

EFTA00009067



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1 somecne's negotiating, one said says 24, another side says

2 12. They say, let's agree to 18. To some extent as U.S.

3 Attorney, I think I have to back the -- the negotiating

4 discretion of my AUSAs.

3 Q But vy == you explained quite eloquently the

6 reasoning for the two year plea as being what Epstein would

7 have faced if he'd been prosecuted --

8 A Right.

9 Q == you know, absentia, by the state appropriately,
10 and then suddenly, without any apparent relationship to that
11 analysis, the 18 months pops up from an effort to try to get
12 federal charges. And so how do you -- how -- does that not
13 undercut the basis for the two years?

14 A So, I can provide the reasoning for the two years.

15 I also though think as a -- as a supervisor, as U.S.

16 Attorney, it's important te understand that when individuals

17 go out inte the field, negotiations take place. And if every

18 time there is some give, they need to come back to the U.S.

19 Attorney, or there is a fear that the U.5. Attorney will not

20 back us.

21 You know, there is -- there's a certain -- I think

22 there's a management issue there in that if an AUSA speaking
23 on behalf of the U.S. makes an agreement, as long as that

24 agreement is within a certain range, the U.S. Attorney should

25 back that, because they're the ones that are in the -- on the
= ————- SE

EFTA00009068


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Page 253

line. They're the ones that are managing the case, and it's

sort of unfair to consistently second guess those late

night == I don't -- I don't want to characterize it =—-
Q Okay.
B == as a late night negotiation, but those -- that

give and take that happens sometimes in a conference room or

on the phone.

Q Do you know exactly what give and take cccurred in
this case regarding the 18 months?

A I do not. I read that one document.

Q Okay.

A But I do not.

Q All right. Any other questions on this cone?
BY [HEE

Q Really quick. I agree with what you're saying in
Principle, but in this case, you had had a -- almost like a
mandatory, two years is the minimum that the --

A Right.

Q == U.S. Attorney will accept. Under those
circumstances, where you have come out and said, this is the
minimum we'll accept, would you have expected them to have to

come back to you to get approval for any kind of reduction in

that amount?

A Would I have expected them? I think Ms. HERE

was in a tough position, because Opposing counsel was coming

EEE ae RRR ——————

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Page 254

at her. It was a tough negotiation. Would I have wanted two

years? Yes. Would I fault her for agreeing to 18 months? I

don't think that's fair to her.

=

Q You could have said no, right?

A I could have, but it was an -- but she had agreed
to it. The process had gone further down, and to some
extent, I -- I think there is a need to respect that process.
That happens -- I guess I was getting -- you know, this is |
not the only case where a supervisor sort of says, this is
our =-- this is our standard, and -- and at seme point, things

move, and you've got to provide some discretion.
g FE

Q All right.
ov |
Q Do you think she misunderstood the priorities?

That she thought you wanted to get to a resolution, and so

the two years could -- could be undercut, versus taking your
words literally and saying this is the line in the sand
beyond which you should not go, even if it means kill this --

kill the resolution?

2) So, if I had to speculate, I don't think it was a

misunderstanding of priorities as opposed to opposing counsel
was exhausting, and if you go through the full record, it
really was an exhausting -- opposing counsel in this case was

very good at taking any slight millimeter, and turning it

SE — S—

EFTA00009070


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Page 255

into, oh, so you said we could do this, and in that back and

forth, sometimes there is a, can't we just agree in the
middle?

Q And I understand what you're saying, but weren't
they exhausting because the U.S. Attorney's Office would not
say no to them? And so they always believed from the get-go,
because they have a two year minimum that the --

A Right.

Q == that the office is willing to then say, oh, we
can go down from there, and that that set the tone from then
on that they could continually chip away at you on virtually
every single term that came about? So, yes, they were
exhausting, but isn't that because the U.S. Attorney's Office
would not tell them no?

A So I would push back, because after the agreement
was signed, I would argue they did not chip away. They --
they certainly kept appealing collaterally, and we can talk
about that, because there were other concerns raised there,
but once we had that September meeting, between that
September meeting and the signing of the deferment in favor
of the state, that was all negotiated by the trial team.

That wasn't a, come back to the U.S. Attorney, or come to the
first assistant. That really, to my recollection, was, go

negotiate with the state -- with the line.

Q Well, but there were a number of things that came

EFTA00009071


ee

Page 256
1 about later on. I mean, they -- they continually griped

. about the 22.55, and that got == you know, that got modified.

3 p= Later on -- and I think later on's are different
4 for some reasons we can talk about now or later, but there

5 was an attempt to work this out later on that was clearly

B& there.
7 EE
8 THE WITNESS But I think that's very different

9 than, how was the agreement negotiated? And I think that's a

10 very different -- a different sort of timeline.
11 oY
12 Q So in your mind, was she prepared to walk away from

13 the deal if need be?

14 A After it was signed?
15 Q Before it was signed.
16 A Before it was signed, it honestly was, get a deal

17 or ultimately if we have to indict, we indict, and that's
18 what I said, and -- and look at it this way. After having

15 said that, if that really was a bluff, what would I look

20 like, right? I would look awful.

21 And sc, for that reason, that was not a bluff,

22 That was a thought through, this is what we will do, and if
23 you don't agree to this, then we indict, and we indict. You

24 can't make those kinds of statements and not follow through.

25 The office loses credibility if you do.

EE EEE |

EFTA00009072



Page 257

1 Q Right, but you can keep giving on certain terms.
2 2Y But we -- and my point is we did not give, with the
3 exception of that 24 to 18, we did not give.
5 Q Well, you also gave up two charges.
6 iy Again, I'm thinking of a two years, registration,
7 restitution, and so with the exception of that 24 to 1B, we
8 did not give.
9 Q I want to go back. This morning, we were talking
10 about our tracks, and we talked about the legal track, and a
11 little bit about the evidence track. There's another aspect
12 of the evidence track that is in play here, because there was
| 13 a substantial type of evidence, and the question is, to what
14 axtent were you aware of this.
15 In October of 2005, the local police executed a
le search warrant on Epstein's residence, and among things they
17 found there were cables and cords where there had been
18 computers -- computer equipment, video surveillance, cameras,
19 and CPUs, all of that, that computer based stuff. It had
20 been removed, forgetting why necessarily. If you lock at
21 Exhibit 29%, were you aware of that, by the way? That that
22 had occurred?
23 pal I was aware that the state had gathered evidence,
| 24 but not much more --
25 Q Beyond that.
= —— == SE

EFTA00009073


EE ——

Page 258
1 A == beyond that.
2 Q Okay. So, 29 is --
3 A I'm sorry, I'm on 21.
4 Q Wait a minute, this is not the one I'm looking for.

5 73? Let's do -- do you know what? Okay. That's not -- this
6 is not the exhibit I'm looking for, and the numbers are a

7 little bit messed up.

There is a -- an e-mail, which I may or may not be

9 able to put my hands on -- in which [JJ HEINE informs

10 you that she really wants to get her hands on important

11 potential -- on computer evidence, that it's important

12 potential evidence, and she had a plan to get it.
13 So, the question is whether you knew at the time
14 that there was -- that the investigators had identified this
15 computer evidence as being out there, and that they believed
16 it contained a potentially very significant evidence against
17 Epstein, computers, surveillance cameras, given his

18 activity --

19 a Right.

20 Q -=- in his home --

21 BEE: =: not on it.

22 2v |

23 Q Rll right. She did not inform you. She informed

24 somecne else that we -- she informed Sloman and Menchel on

25 July 3rd, and Lourie. My apologies. You're not on this.

ee ——— |

EFTA00009074


Page 259

1 Where she advises them that she wants -- we want to -- "we

2 want to get the computer equipment that was removed from
3 Epstein’'s home prior to the state search warrant as soon as

4 possible." So, there was the stuff out there, and --

5 I Right.
6 Q == as of July, there was an abiding keen interest
-

in getting it, and the defense team was resisting the
8 prosecutors efforts to get it. Were you aware of that at

9 all?

10 A So, you -- I think you asked about that in your

11 questions to me.

12 Q Right, I did.
13 A I have no recollection of == of this computer

14 evidence that --
15 Q All right.
16 B Did the question say that -- without getting into

17 specifics, that there was a grand jury issue around this?

18 Q It does. It --
19 A I don't have that --
20 Q It is addressed in the non-prosecution agreement if

21 you lock at the final non-pros --

22 Rn Yeah. I don't have --

23 Q It's referred to ==

24 A The question that you asked, what question was
25 that?

|

EFTA00009075


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Page 260

Q The question was whether you were aware that that
was something that the prosecutors wanted to get?

A I doen't == I don't have a recollection of some
computer evidence.

Q All right, and -- and --

hn But I think =-- is there?

Q Are you --

A What was the question?

Q -- aware that ll was instructed by her managers

to delay her efforts to get this computer evidence, because
the defense were resisting those efforts, and it became an

issue of -- an issue that was in play in the negotiations?

I I have -- I have no recollection of that.

Q Okay.

Ab If you can give me one second?

Q Sure.

h Pending federal -- and so, your question said that

there was litigation pending in federal court relating to the

U.S. Attorney's efforts to obtain --
Q Yeah.
A == computer evidence?
Q Without going into further detail.
A I -- I have no recollection of any litigation

pending in federal court regarding that.

Q All right, and were you -- did anyone suggest to

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Page 26l
you and your team that the -- or, getting to a Plea deal was

premature, because it -- you needed to get this evidence
first, so that you knew whether you had potentially some very

important evidence again Epstein?

A I have no recollection, and if anything --
Q Ckay.
2) == I think there was a desire to move quickly as

opposed to slowly.
Q On the plea?
A Yes.

Q And do you -- do you know where that energy came

from? Who was --

A I ==

Q --wanting to --

A --— I don't, but --

Q -- move quickly?

A == as I recall -- so, for example, when we were
setting up the meeting in September, there was a -- a request

to set it up in August as opposed to September, and we had to
push it back to September because of vacations or something.
Q All right. So, in addition to not getting the
computer evidence, the government curtailed the investigation
to a large extent, despite finding more victims. There were

witnesses who were not interviewed, things that were not

searched, property that wasn't searched, target letters not

EFTA00009077



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Page 262

served. Do you -- so, these all would have been steps taken

by the FBI to enhance the federal investigation, right? As

opposed to back to the state --

B Right.

Q == case that this was sort of --
A Yeah.

Q == being returned to.

I Eight.

Q Was this --

MR. TODD: Are you asking Alex if he's aware of all

the things you just said?

Q Were you aware of all -- of

being foregone, or foreclosed?

those steps that were

Fy No. My =-- my assumption would have been, we may

have to go to trial, and so we should
basis for trial. So, if I could, for
after Drew came down, I said if we go
the trial team? I cite that, because
have to go to trial.

Q Right.

A Why not get Drew who's from

team?

continue to develop the

example, I think I --

to trial, can you be an

I'm thinking, we may

Miami on the trial

Q So, is it -- ig it Your understanding that the

federal investigation, notwithstanding the drafting of this

EFTA00009078



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Page 263
1 NPA, was still continuing?
2 B fes. We -- you know, my understanding is you run
3 these on parallel tracks, and again, I'm -- I'm sitting here
4 inviting the head of CEOS to be part of the trial team, and

3 talking about how to formulate the trial team.
6 Q Okay .
7 A That -- that implies that I was clearly thinking we

8 might be going to trial.

9 Q All right. When you first received the draft of
10 the non-pros agreement, and this is 16a, it's a draft by

1 Te IEE Cc you know who came up with the -- the --
12 it sounds like you didn't, but who came up with the name or

13 the moniker non-prosecution agreement?

14 .) I do not.

15 Q Do you know what this was modelled on, if anything?

le Where it =--

17 A l ==
18 Q What the genesis was?
19 B I do not. I noticed from the contemporaneous e-

20 mails that initially it was done differently, and I think it

21 was |] Lourie who said write it as a contract, or I think

22 there is -- there is an e-mail to that effect. Someone may

23 recall it better than I, but --

24 Q This version of September 10, which is the first

25 business day after that --

Ee —

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Q

goes to her management up through you, and you do a rewrite
almost right away, adding original state charges which at
that point were all still in play, and you also added -- this
is Exhibit 16b -- a statement that it would be Epstein's job

to move the state to add additional charges, and that -- that

— —

Page 264
Yeah.

-- September 7th meeting, from [NEE HENEEENEE

latter piece is on page three, just below paragraph eight, |

So, you were --

A

Q

A

indication of what I did a rewrite of?

Q

A

Q

in yellow in Exhibit 16b, which represent --

A Right.
Q == the changes from 1l6a.
A Right.
Q Ckay. So, those are the two things that are
different, and they're referenced in your -- your message --
2) Yeah.
Q -- at the beginning. We bracketed them just to
make it easier for you to -- to recognize --

Can I == can I back up a second?
Sure.

When you say I did a rewrite, is there some

Yes. If you compare the two -- |

Right.

-= there's -- there are things that are bracketed

|

EFTA00009080


Page 265
1 2) Right.

2 Q -- that. So, my point is that right from the

3 beginning, you were participating in the process -- in the

4 drafting process.

5 A Ch. So -- so, I would -- I would characterize that

& as not participating in the drafting process, but approving a

7 draft. There is -- there is a --
: Q I --
8 RB -= slight -=-
10 Q -- I did a small --
11 I -- difference.
12 Q == rewrite.
13 n Yeah. And so, something comes =-- here's how I

14 would distinguish. Someone that's participating in the

15 drafting process is sitting at the table with two or three

16 people, drafting it as they go, versus something goes through

17 the management chain, and someone in the supervisory chain
18 says, can you change A, B, or C?

19 Q All right.

20 A 1 == I clearly -- you know, here and in other

21 places, it locks like I'm inserting the same themes, which is

22 deferring to the state -- let's mention the state charges --
23 Q Mm~hmm .

24 . -- and we can't force the state to do anything.

25 And so, I -- I'm adding to this. I'm clearly aware of it and

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1 approving it, but I wouldn't say that I was drafting.
2 Q Fair enough. Did you read it?

3 A I would assume that I read it, or else I wouldn't

i have edited it.
| 5 Q All right. So, we have a draft from ||] -- a
6 working draft on September 10 with a small rewrite from you.
7 There is in the Exhibit 17 series indication that -- of the
8 kind of activity that [JJ vas going through to come up
9 with a federal plea, but eventually she and the defense

attorney who is most actively working on this ; Jay Lefkowitz,

11 turn back to the NPA, and if you leock at 17d, just to make
12 the sort of staffing clear, you know, of course [JENN |
13 has left, [11] [TTT] is going on vacation as of September
14 15, and so [1] Lourie has helped finalize. So, the

15 finalizing of the NPA, the final version of which is in

16 Exhibit 22, falls to [Jl] with ll. zight>

17 A 1es,

18 Q Okay, and Jl] puts you on notice in 18b in that
12 process. This e-mail in 18b is sort of a fellew on to 18a.
20 Do you see it comes one minute after your e-mail in 18a?

21 It's a response from her to you, only in which she makes note

[ 22 that the defense, "tried to reopen all the loopholes that I
23 had sewn shut.”

24 A Yes.

25 Q So, it's fair to say that you're kind of -- you're

ee

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Page 267
on notice that they're being difficult?

B I -- I -- that's fair.

Q Okay. In the course of that being difficult, 19a
is an e-mail to you from [JJ on September 18 in which she
represents that -- or, explains that the defense is -- is --
that things are kind of falling apart with the negotiations,
and she fears the deal is going to fall apart completely.

ME. TODD: Should we take a quick break here?
You're losing your voice.

: fine.

MR. TODD: You could probably use a minute,

FF All right. We'll take a break.

THE WITNESS All right.

BEE: - four minute break.

MR. TODD: Four minutes, that's =--

BE: Okay.

(Off the record.)

zy [I

Q Back on the record. Locking at Exhibit 19c, you

say -- you write to ne regarding whether you're
available to -- at a time when she's going to be hashing out
language. You advise her that -- but I -- "I don't think I

should be part of negotiations. I'd rather leave that to you

if that's ckay."

B Yes.

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Page 268

1 Q Why did you say that to her?
2 A Because she was the line lawyer involved, and I
3 thought -- I think it's important for a U.S. Attorney to, |

4 absent truly exceptional Circumstances, to not get involved

5 in sort of the negotiations. You can meet, like I did in

| 6 September, reaffirm the position of the cffice, back your

7 AUSA, but ultimately, I think your trial lawyer needs

B discretion to do their job. |

wor

Q At this point, of course we know is

10 vacation.

11 A Right.

12 ®) And you were aware, were you not, that Jj Lourie
13 was about to decamp for Washington? In other words, he left
14 at the end of September --

15 A Yes,

16 Q == to become the chief of staff and principle

17 deputy, assistant attorney general --

18 A Correct.

19 ¢  -- for INN --

20 A les.

21 Q == who headed the criminal division. Okay, so it

22 was really just the two of them at this point, and with
23 nobedy apparently involved between them and you.

24 B So, fair, but when you say just the two of them,

25 HM is an incredibly experienced lawyer. So, to say just

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the twe of them is not te take -- not -- should not imply

that there was an experience in that --

Q I--

2 == table.

Q I certainly in no way intended to --
BR Right.

Q == to =--

A Fair.

Q -- suggest that.

B Fair enough.

Q Locking at 19d, in which I ] is on page
two, locking at the latest draft from Bl. meaning |]
PF and this is in the =-- in the == in the throes of
negotiating the NPA. |] |] 1s essentially telling you
he agrees with [ observations that the defense are just
up te all kinds of nonsense in this deal, and constantly
changing their terms, and just not apparently negotiating or
dealing with these warring drafts with the drafting process
in good faith.

Again, that's my characterization, but I
says to you in this e-mail, "I suggest we simply tell him,
] that his counteroffer is rejected, and that we
intend to move forward with our case." Right? And then your
response is interesting. You say to him, why don't we

just == why don't we just call him? Tell him, one, you
J J

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agree, and then change things. Two =--

A You being [ll agrees and changes things?

Q Correct. Tell him you agree, meaning, [1] agrees?

A No. No.
Q I see.
A Yeah.

Q Tell him =--

A Tell him, you, [J], agree, and you change things.

Q I sea.

Fa That is not acceptable to us, and is in bad faith.
Stop it, or we'll just indict, and then try to work it out.

Q So, is the try to work it out -- if the -- if
numbers one and two are what you should tell -- what Be

should tell ] is number three something |]
should tell [} or what you're telling |B Try to work it
out?

2) It's what I'm -- what I'm -- what I'm telling BB

Q Okay. So, just to be clear, you say, tell him,
meaning you, [J tell Jay, number one --

2) 50 ==

Q == and number two, but number three is then what

you're instructing [Jj te de? 1 --

A Yes.
Q -= I'm just trying to understand.
Bb Yes. Sg ==

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Page 271
1 Q Okay.

2 A So, my understanding of this is, they're being

3 difficult. Hey, this isn't the first time that an attorney
4 agrees to something and then goes back and tries to pull a
5 fast one. So, tell him you're onto this, that they need to
6 stop it, or we'll indict, but then that we'll try to -- you

7 know, [JJ should try to work it out.

8 Q Okay.
9 A But they need to stop this tactic.
10 Q Did you really think that was going to be effective

11 with this defense --

12 pil I don't know,
13 0 -- team?
14 I You know, I think one of the hard things with this

15 is, if it was right on September 6th, it remained right,

16 irrespective of really -- I think I say, sorry, I know it's a
17 pain.

18 Q You do.

19 = This negotiation was a pain, but if it was the

20 right position, the fact that you've got annoying counsel on
21 the other side doesn't it make it less of a right pesition.
22 You tell them stop being annoying, you Cry to work it out,
23 and if not, then you indict.

24 Q All right, and is that sort of --

25 FY You had a question?

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5 [HEE

Page 272 |

Q Is that -- is that consistent with your sort of way

of doing business, being even, and working it out?

A Yeah. This is our position. It's not a bluff.

It's what we want. You work it out.

People yell and scream

on the other side. You work it out. If not, then we indict.

Q What would have been the tipping point for you?

What would have caused you to say, okay, I agree with you,

BE. 1 agree with you, ll. Let's indict?

the tipping point would have been a failure to reach =-- it

was pretty clear. Jail time,

registration, restitution.

Okay, we moved from 24 to 18 months. That was a give and

take. But ultimately, if they came back and said, we can't

agree to these terms, then we indict.

@ All right.

ev

Q It seemed like your troops were telling you, we've

reached the end of our rope.
forward and indict.

A Right.

Q And you were coming back with, tell them again that

We really want to just go

B So, it's really difficult to speculate, but I think
|
1

the defense is being difficult, but I want you to work it

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Page 273
out. Does that tell your troops basically that where your

priority is, you want them to get to this resolution, and if
they have to give up stuff, it's okay -- it's really ockay,
but you want this resolution?

A So, it's not if you have to give up stuff. I'm not
telling them to give up stuff. I'm not telling them to
negotiate things away, but I think -- the dynamic from my
perspective 1s incredibly -- so, there's a tactic that
counsel sometimes take where they negotiate, and then they
try to come back and renegotiate, and that is, to my
thinking, one of the most annoying tactics that vou can have,
and it == and it creates a lot of -- of frustration, and what
I'm trying to say is, look, they might be frustrating folks,
but if this had been worked cut -- so -- so, looking at this,

we thought we had an agreement, and then they changed things,

and I'm saying, look, if you thought you had an agreement,

tell them you had an agreement.

Don't let them change things. I understand it's

frustrating to you, but if it was right two weeks ago, the
fact that they are frustrating attorneys doesn't change the
underlying legal analysis. The attorney's behavior doesn't

inform the rightness or wrongness of a certain disposition,

to a point.

=v |

Q What's that point?

— BE

EFTA00009089


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Page 274

1 A 30, I think after the -- now I'm calling it an NPA.

2 I was personally very frustrated with the failure to report

3 on October 20, and had I envisioned that entire collateral

4 attack, I think I would have looked at this very differently.
5 Q In what respect?
6 A To the extent that this was -- going back to, for

7 example, the public corruption prosecutions that we had, one

B of the values of it was to have a public figure stand up and

9 say, I did this, and plead.

10 One of the values was the, you know, avoiding a

11 long and messy legal process. Bnd so when you put all of

12 that together, those -- you know, this is why I say it's not

13 quite -- this was the factor that we'd consider, that it's

14 all of this put together, and in something that could have
15 been very positive for the victims and for sending a signal,

16 as it dragged on, became exhausting and negative for the

17 victims.
18 It put us in a position of what do we do with
19 notifications. It put us in the position of a lot of appeals

20 to Washington. It put us in the position of having to deal

21 with complicated legal issues that actually got more messy in
22 terms of how does a federal 22.55 relate to a -- to a state

23 charge, and had all of that been known, I do think this would

24 have proceeded differently,

25 Q Differently in what way?

EFTA00009090


A

can't predict it's --

Q Right.

4 | -- what I would have dene, but I think if I had

5 known all that, this could have proceeded very differently.

6 I was very frustrated with the October to June time period.

7 Q So, if you had been back in that timeframe in early

8 September, locking at this with, I don't know, what, Harry

9 Potter character it is --

10 A Right.

11 Q -- but whoever can see inte the future, and -- and
12 anticipated or foresaw --

13 B Right.

14 Q -- what would have happened, would you have simply

15 said, look, we're not going to go the state route, we'll go

16 the federal route?

17 2) Quite possibly.
18 Q All right.
19 bY And let me sort of -- we'll probably get into it,

20 but at some point, I do think the post versus the pre-
21 signature time period was different for any number of
22 reasons, and we'll probably want to talk about that.

23 o) All right. We will, but now, I'd like to turn to ;

24 some of the terms of the --

25 A Fair.

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Page 276
1 Q == the NPA, because you did make -- let me -- let
2 me make sure that this is correct --
3 BEE: skipped this one.
4 =Y [HE
5 Q Ch yeah, before that =-- thank you, my colleague
& reminds me 19 is an exhibit that has a -- an exchange

7 between you and [lll Lourie about the -- at a time when the

8 plea agreement -- the federal plea agreement --
A Right.
10 Q == was still in play, and the issue is whether you

11 should sign it, and --
12 A Right.
13 Q == You didn't want to, because you never do, but

14 you say at the bottom, we should only go forward if the trial

15 team supports and signs this agreement. What did you mean by

16 that? The -- the first part of it?

17 RB So -- so, what I meant by that was I got something
18 that the -- that is -- the document was unusual. So, my
19 signature appearing on this document is not in and of itself

20 unusual.

21 Q And this would have been the plea agreement -- not

22 the federal plea agreement, not the -- or was this about the

23 NPA?

24 A This was about the NPA.

25 Q Okay.
_—eee

EFTA00009092


mee —

Page 277
1 RB Right, and so the NPA had my signature. Now, the
2 NPA's almost too generous.
3 Q Mm~hmm .
4 A So, that in and of itself is not indicative of

5 something, but it does raise my concern. Is this something
8 that ultimately the trial team does not feel comfortable
7 with? And if it's something they don't feel comfortable

8 with, then they should speak up and let me know, because we

9 shouldn't go forward with it.

10 Q And did you ever have a conversation or a

11 discussion about that issue, other than mentioning it?

12 A Not =- not to my recollection. I would --

13 Q Okay.

14 A -- assume based on this that I vculd read it and
15 would take me at my word and say, look, if -- I think you're

16 geing in the wrong direction, Alex. You know, I think you're

17 going in the wrong direction, or I'm uncomfortable with it.

18 Q Okay. All right.
19 =v
20 Q Did you ever have a direct conversation with | |]

21 J :bcut wanting her to sign the agreement as opposed

22 to yourself?
23 a) I -- I did not. This was my =-- my communications

24 with Ji}: and -- and I really meant that if at the end of

25 the day, my team isn't comfortable, then you shouldn't go

EFTA00009093


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Page 278

1 forward.

2 Q You never recall hearing from HE that she was

3 not comfortable moving forward with the plea agreement?

: =v I

5 Q The NPA?

6 A I did not hear -- I don't recall hearing from [| 1] |
1 that she was not comfortable. I know that at various points
8 she became frustrated. At various points, [111] became

9 frustrated, but they were negotiating this. If at some point
10 they did not -- they thought this was a mistake, or wrong, or
11 unjust, I would think that they would tell me.

12 Q What would you have done?

13 A Sit down and really have a serious conversation

14 about where this is going, and sit down and hear them out,

15 again, even if -- at this late phase.
16 Q Right.
17 RB Would be -- I would -- I would think that that's

18 what I would have done.

19 Q All right. Let's turn to the NPA. What is it?

20 Exhibit 22? Did you read it? We know that you made some

21 final tweaks to it. 22.

22 A Sa --

23 Q Is the final -- as signed --

24 A £2. And so, I would -- again, I don't have an
25 independent recollection of reading it. I would not have

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Page 279

made tweaks to it without reading it.

Q Okay.
B And so, I think you can infer that I read it.
Q All right, and let me say, you -- you were clerk to

an appellate -- a very eminent appellate judge, and you
did == did you do appellate work --

A I did.

Q == yourself? So, you were somebody who's an
appellate lawyer, who has that experience at a high level, is

often more sensitive to words, and phrasings, and to

documents, contents, than might be, again, to be -- to
caricaturize a little bit, but a more of a shoot from the hip
trial attorney whe spends his days, you know, in a =-- in a
rough and tumble courtroom, and is it fair to say that you
ware more of the former, and more --

2) So, I would push back. I think that's not
respecting the talent of the trial lawyer, and particularly
on these types of agreements or documents, these are folks
that sort of have expertise, because even if this was sui

generis, they have seen a lot of this,

@ I am not suggesting that [NEN NENENENEN =~: NEN

Lourie --
=) Right.
Q == were not up to this.
A Right.

EFTA00009095


Page 280

Q Because certainly she also had a lot of appellate

2 experience. I'm simply noting that -- that this seems to be
3 sort of in your wheelhouse.

4 A What -- look, I apologize. Whether -- I'm not sure
5 what in my wheelhouse means. I -- you know, I appear to have
6 read this. TI suggested some edits. As I would have

7 approached this document, my assumption would have been I'm

8 looking at it from my earlier concerns, that -- the policy

i) level concerns.

10 Does it capture that we're deferring to the state?
11 Going back to the put in the petite policy versus not. Does
12 it capture the policy concerns of -- of appropriately

13 understanding that we can't force the state to do something?

14 And does it capture the essential elements of the terms that

15 we had looked for, the --

16 Q All right.

17 BA == you know, the imprisonment, registration, and
18 restitution.

1% Q All right. So, one of the things that is a little
20 striking that's different from the original draft NPA, even

21 as amended by you. So, let's pull cut the 16b. Is that --

22 is what I would call the non-admission of guilty, so, in

23 the -- in the first page of 16b, the first paragraph that's

24 the first clause after the one through five statutes listing,

in 16b, reads, "It appearing that Epstein has accepted

EFTA00009096


Page 281

1 responsibility for his behavior by his signature on this

2 agreement."

3 :Y
4 0
5 A
6 0

7 this seems to be fairly typical sort of plea agreement

-

9 A
10 Q
11
12 A
13 Q
14 A
15 0
16 A
17 0
18 A
19 Q
20 A
21 Q
22 A
23 Q
24 A
25 Q

language, right?

the third, it appearing clause --

I'm sorry, you're on léb?

16b |
Okay. It appearing, yes.

Okay. So, his is -- and this is not -- I mean,

Yeah.

And if you lock at the top of the final NPA, 22,

I'm sorry. Where --
Fine.

-=- where are you?
16b.
Right.
Has --

The third, it appearing?

It appearing he has -- the -- down at the bottom.
Yeah.
It says -- refers to at the --

It has accepted responsibility.

-= second up.

Yes.

Exactly. He's accepted responsibility.

EFTA00009097


— EEE
Page 282
1 A Right.
2 Q And then above in the fourth, it appearing --
3 RB Yeah. |
4 Q == it references the fact that, it appearing,
3 "Epstein has committed offenses against the United States."
6 A Yes,
7 Q Okay? So, he -- there's a sense of acceptance of
I : responsibility. In the final NPA, which is 22 in your right
9 hand, the --
10 A Right.
11 Q == third it appearing clause says nothing about I
12 Epstein committing offenses. It simply references the U.S.
13 Attorney's Office and the FBI having conducted their own
14 investigation inte Epstein's background and any offenses that
15 may have been committed by Epstein, including --
16 A Right.
17 Q == the enumerated statutes. And then following the
18 enumerated federal statutes, there's no reference at all to
19 Epstein accepting responsibility. Deo you -- do you -- do you
20 view that -- the removal of that acceptance of responsibility
21 to be something that was appropriate?
22 A So, trying to reconstruct, the focus was on -- and
23 I know I'm repeating myself, but jail time, registration,
24 restitution. Whether he accepted responsibility for a
25 federal or for a state, I think my focus would have been on,
a — I —

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EE EEE T_T —— |

Page 283

these were the terms. Does this encompass those terms?

Q So, as that concession is not something material as

far as -- I don't want to use the legal term material, but

wasn't important --

A S50 == 850 ==
Q == to your cbjectives?
iy So —-=-

Q I= that right?

A First, I'm not sure -- so, it wasn't a concession
from that -- that -- those four bullets, right? It was a
concession from an earlier draft.

Q Right.

pil And so to say it's not important is, again, there
was an early draft. It changed. The focus was in any give
and take, drafts change. The focus was, did he go to jail?
Did he have to register? Did we have restitution?

Q All right.

BY

Q Do you remember noticing that change, and thinking

it --

Lh I] ==

Q -= just doesn't matter?

A I don't. In all -- in all candor, until right now,
1 was not aware of that -- of that change. I doubt I would

have taken two documents and sort of put them side by side,

it

EFTA00009099


———————
Page 284

1 as opposed to, does this capture what we're trying te get to.
3 Q So, does that --

4 kB I was aware of the 24 to 18.

5 Q Mm-hmm .

6 R But up until this question, I wasn't aware of that
7 change, to my recollection.

H Q So --

10 Q And you're aware of the 24 to 18 because you

11] noticed it in the NPA, or because somebody told you

12 separately? Or do you know?

13 A I can't =- I can't say other than I was aware.
14 2 I
15 Q In the final NPA on page five, there's a series of

16 things that are included at the bottom of that page, in that
17 long paragraph, and the one that I want to focus on is the
18 immunity portion.

That was certainly not in the original draft

20 proposed by the U.S. Attorney's Office. In this paragraph,
21 the United States agrees, "That it will not institute any

criminal charges against any potential coconspirators of

23 Epstein, including but not limited t

Did you notice

£3 that provision?

ee ——

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Page 285

1 A I -- I don't recall focusing on the coconspirator

2 provision. To the extent I reviewed this coconspirator

3 provision, I can speculate that my thinking would have been

4 the focus is on Epstein's -- Epstein's going to jail.
3 Whether some of his employees go to jail, or other, lesser
& involved, is not the focus of this.

7 Q Rll right. This particular provision, as you know,

8 has been --

9 Rn It has --

10 Q -- enormously --

11 2) -- generated --

12 Q == criticized.

13 FA Enormous, yes.

14 Q For a number of reasons. One of which is that it

15 is blanket transactional immunity. It gives blanket immunity
16 toe unnamed, unidentified --

17 A Tes.

18 Q == potential coconspirators. People who, even in
19 the future, if evidence is developed against them, as long as

20 they could be considered coconspirators of Epstein in this

21 conduct, they have a get out of jail free card. Do you have
22 any idea where that came from?
23 B I don't, and I don't want to characterize it as

24 giving -- I understand how it could be read that way in the

25 record. I don't want to characterize it, but I don't know

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23

24

EE — ee —
Page 286
where this could have come from.
I was -- I would have reviewed this for the policy
concerns. Did it do the =-- the sort of the bullet points,

and my assumption, rightly or wrongly, would have been that

] and [iB would have locked at this, and that this

was == was appropriate. I understand your point.
Q All right, and I believe the point You were
referring to is that when I use the term Jail -- get out of

jail free card, that you recognize this is limited to your

district?
23 And that's an important point --
Q Of course.
A == LO recognize,
Q Of course, but nonetheless, this does give blanket

immunity to people -- you have no idea who they might be,
correct? If you had focused on it, would that have raised
some question in your mind?

A [f == if there was a discussion like what we're

having here, then it very possibly could have raised. It's

difficult to say it would have, but I understand Your

COncern.

Q All right, and the named individuals, a

individuals who were described in the pros meme and so on,

and the pros memo does identify that at least one of these

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Page ZB87

women herself engaged in sexual activity with minor -- with

minor girls.

bh Yeah.

Q So that she has liability in and of her own =--

A So, I don't have an independent recollection of
that, but when I reviewed the pros memo, I did notice that.

Q All right. Now, you told us this morning that you
have no recollection of that actually having read the pros
memo back at that time.

A I think what I said was I don't have a recollection
of whether I did or did not read the pros memo. I have
since, when you've provided it, read it, and I note that it
does reference her.

Q Having read it now, does that change your view of
anything that we've talked about so far today?

AB So, reading it 12 years later, knowing all of this,
possibly, and part of it is I do think we approach these
cases differently, and I think these cases would play out
very differently in court today. I think it's very difficult
Lo sort of go back and recreate a thought process from 12
years ago.

Q And if you were relying back then on the

characterization and summary and recounting of this case to

you by your people -- your senior people, [JENN --

A Mm — hmm .

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Page 288

1 '») == and in particular, HHNEER --

2 A Right.

3 Q == would you =-- do you =-- do you have a -- did --
4 did anyone in that ground, including Bl Lcurie, in any way
5 to your recollection characterize this case as not serious,
6 or as trivial, or as involving non-important -- unimportant

7 victims? In any way try to diminish either the conduct or

Ls a]

the victims?

[Us]

A Not to my recollection. I -- I do think there was
10 4 concern as to how the victims would present in court, given
11 impeachment, and given contradictery statements, but that’s
12 different than trivializing the case.

13 Q All right. Okay. Back te the immunity provision.
14 Were you aware that none of the four named coconspirators had
15 cooperated?

16 Fa I was not. To my recollection. |
17 Q And do you recall any other case in which blanket
18 immunity in the U.S. Attorney's Office --

19 2% Right.

| 20 Q == was =-- in which blanket immunity, really

21 without -- virtually without limitation --

22 A I —— 50, I --
23 Q -- was granted?
24 A I don't recall discussion around this provision,

25 and a general matter, I did not discuss the == in typical

EFTA00009104



Page 289
1 cases that came =-- that bubbled up to my level, it was -- the

2 focus was on who the prime, you know, target is, and not on

3 what we would do with the coconspirators. And so, I don't
4 recall, but that doesn't mean it didn't happen. That's just

3 not typlcally something that I got involved with.

6 Q And likewise, non -- immunity being given to non-
7 cooperating coconspirators, or codefendants? Is that

8 something that was done in your office?

9 Ah Again, I -- as a typical matter, we -=- I did not

10 get involved with these, but let me -- let me also say that

11 this wasn't a federal prosecution in the first place. And
12 $0, this whole thing is sui generis to some extent,

13 Q It is, but the -- but the grant of immunity is

14 real, right?

15 A I understand where you're coming from.

lé Q All right. If you had focused on that provision,
17 would you have insisted it come cut?

18 A One question I would have had is, if we're

19 naming -- as I sit here and sort of focus as we are now, but
20 this is with the benefit of hindsight and criticism =--

21 Q Mm-hmm .

22 A -= if there are specific folks, why do we have any
23 potential language? Because that seems guite broad,

24 0)

It's == it's without limitation as te people as

25 long as they're coconspirators, right?

ee ——

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17

18

19

20

21

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23

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Page 290
.\ But -- and so what is =- what is the need for that?
Q Okay.
A And I would --
Q I see.
pi) And so, if we had this kind of discussion, I would

be sending [if an e-mail saying, what's the need for this?

What's up?

Q But to be clear, as we sit here today, you have no

recollection of having noticed that?

p< I == I don't have a recollection of -—— if T read

over it, my assumption would have been that |] and HEI

thought this through and sort of addressed it for a reason.

Q All right, and if --
sy [HE :
Q And did you have any -- anyone ever come to you
with the evidentiary issues and say, we need to track this

down before we give such a blanket immunity?

A I don't recall any conversation around
coconspirators.
sy [HE
Q This is where there is a mention of computer

equipment. There is a provision later in that -- in that
same paragraph that provides that, "The federal grand Jury
investigation will be suspended, and all pending federal

grand jury subpoenas will be held in abeyance unless and

ee

EE —e

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we]

aa

Lk

10

11

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1%

20

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until the

A

Q

defendant

intervene

ee

Page 2
defendant," --
Right.
== "violates any term of this agreement. The

likewise agrees to withdraw his pending motion to

and quash certain grand jury subpoenas. Both

parties agree to maintain their evidence, specifically

evidence requested by or directly related to the grand jury

subpoenas

that have been issued, and including certain

computer equipment in violate until all of the terms of the

agreement have been satisfied." Do you -- do you -- do you

view that this agreement to suspect the -- at least certain

aspects of the federal investigation to have been an

appropriate concession?

R

points.

You know, again, my =-- my focus was on certain

I would have assumed reading this that this was

thought through.

Q

A

Q

A

Q

Okay.
And that -- and that people had.
Had -- had --

Had thought it through, you.

All right. Okay. There is what's been criticized

as a confidentiality provision.

A

Q

paragraph =-- numbered paragraph 13, which provides that, "The

IIEE———.

Yes.

Right? And that's on that same page, page five,

91

EFTA00009107



Page 292
1 parties anticipate that this agreement will not be made part

2 of any public record."

3 And then there is an exception for FOIA or

4 compulsory process from a court, in which the government will

5 provide notice to Epstein. That seems te be limited to the

& placing of this document on the public record, right? As

7 opposed to sharing it, or disclosing it for whatever purpose

| B to individuals. Did -- is that -- is that a distinetion that
2 makes sense?

10 B That is -- that is a fair distinction upon reading

11 this. I'm not sure that that is a distinction that was =-- I

I 12 mean, I'm basing that on my reading currently, and not as a |

13 recollection.

14 Q And in fact the parties, both defense counsel and

1a even the U.S. Attorney's Office took the position that this |
18 should never have seen the light of day, even to be disclosed
17 to, you know, victims or other parties and interest, except
18 for filing it, or except for sharing it on a limited basis

| 15 with law enforcement. I think there were e-mails that talk |

20 about if we share it, we'll tell them not to disclose it.

21 A Mm~hmm.
22 Q Is that sort of overstating what this paragraph

[ 23 requires? |
24 2A Possibly. I can -- you know, we can get into that,

£25 and we can discuss it. I would need to understand a little

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1 bit mere. I know there was litigation around disclosure on

2 this, and I'd need to understand much more the positions that

3 we took and the why before commenting on them.
4 Q There's == in Exhibit 23, there is a discussion of

9 the -- the -- whether the NPA after it has been signed could
© be revealed -- the existence of it could be revealed to the

7 police chief, or even the FBI, or the girls, and JN

f HE i» the middle of page one, or two thirds of the way

9 down on page one of Exhibit 23, proposes that if we tell

10 anybody about the NPA, You just ask that -- that the

11 recipient of that information not disclose it,

12 And you then at the top of the page to Lourie and
EE 00 and who is going to take over 1
14 Lourie's position as the managing AUSA in West Palm Beach,

15 should talk with you about it on Wednesday, about the =-- you
16 should talk about who we tell, and how much. Do you remember
17 that conversation, and --

18 2) I == I don't. I know there were several concerns
15 about leaks and media, and I imagine that we had a

20 conversation quite literally about who to tell, and how much.
21 Q And did you -- did you feel that this -- at the

22 time, as best as you recall, did you feel that that clause

23 bound you to not tell anyone?

24 a S50, my recollection of the clause, whether it

25 was -- whether it was this clause or whether there was a

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1 discussion, I was -- I was aware of this provision, and my

| 2 recollection of this provision is at some point it was raised

3 as something that -- that was the subject of negotiation.

4 Q Okay.

5 A That the office policy was that we -- that these
6 types of deferred prosecution agreement is not made part of

7 the public record, and --

8 Q Mm~hmm ,
g A == therefore that this is not a substantial
10 concession --
11 Q Mm ~ humm |
12 A —-— because in the typical course of business, this

13 would not be part of the public record.

14 Q And that's because it's a non-prosecution as

15 opposed -- agreement as opposed to a deferred prosecution

le agreement?

17 A So, deferred prosecution is not =- to analogize
18 from a non-prosecution to a deferred prosecution, these
19 are -- you know, if the non-prosecution is not typically part

20 of the public record, the deferred prosecution, it makes

21 sense that it follows the same.

22 And so, it seemed that -- it seemed a concession --

23 I understand how it was perceived publicly after the fact.

24 At the time, it seemed that we weren't giving up much,

25 because the typical policy is this is not part of the public

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record, and individuals need to file a FOIA. And so by

saying it's not part of the public record, and individuals

need to follow FOIA, if that -- if that is viewed as a
4 concession, it really isn't.
5 Q So, how would -- I mean, did -- is it -- is it

(3 understandable that Epstein would not want this document to
7 see the light of day, because it describes the existence and

8 nature and scope of the federal investigation =--

9 FA Right.
10 Q -- and alse his concession to liability under
11 22.557
12 2) It's understandable. It was also my impression at

13 the time that it would see the light of day, because --

14 Q Mm~-hmm .

15 A == if victims have 22.55, the ability to get 22,55,
16 they cbviously have to hear about it from somewhere, and

17 given the press interest, eventually this would be FOIA"d.

18 And sc, from my thinking at the time, rightly or wrongly,

19 this is a concession that's basically saying we'll follow

20 office policy, and we're likely going to be FOIA'd on this

21 anyhow, and it can play out in the FOIA. And so, is this

22 really a --

23 Q Yeah.
24 RB == concession?
25 Q All right. Another piece of the -- the agreement

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is == is something that is absent, and that's the sort of

typical language that you find in a -- I think in pretty much
any federal plea agreement, which is, this agreement
only -- the defendant understands that this agreement only
binds the U.S. Attorney's Office for whatever district he or
she is in, or =--

1:4 Right.

Q == you know, and that -- and that truly what you

would call global dispositions are unusual --

A Right.
Q -- for the federal government.
A And I would note, you know, and this is after the

fact that it does say this district agrees.

Q Okay. Understood, and it's also has you as a
party, not the Department of Justice.

RB Right.

Q But it does omit that standard language, and do you
know whether that was done sort of by mistake, or
consciously?

B I == I have no -- I can't speak to that.

Q All right. another piece is phrasing that you

injected at the -- when you addressed the first -- where it

was -- it was toward the end. Where --
A Right.
Q == you talked about injecting the best efforts
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Page 297
language.

2 Yes.

Q Okay. Does it -- what -- what's -- I believe you
made clear why you did that. That is, to aveid the
appearance of having the federal government be dictating

anything, but why rely on best efforts, and to what extent is

that even enforceable?

B So, first, let me -- let me say it was not to avoid
the appearance. It was to avoid the actual legal discovery
dictating, but -- so, Epstein understands that he has ne
authority to reguire -- that -- to undertake discussions and

Lo use -= so, as I recall, if he did not plead, then there

Was no agreement.

Q Noe, no, noe. This -- I'm sorry.
A Yes.
Q I don't mean to -- it appears in paragraph --

numbered paragraph --

A Right.

Q -=- 11, Epstein shall use his best efforts to enter
his guilty plea and be sentenced no later than the --

A Right,

Q == set date, and then in the first paragraph after
numbered clause 11, he will use his best efforts to ensure
compliance with certain procedures, and best efforts to

convince the judge of the Florida court te accept his binding

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Page 298
recommendation. So, best efforts kind of became a sticking

point in enforcement, didn't it? Because what does it mean?
What does best efforts mean?

A So, I think it's fair to say that one of the issues
that came up after this was entered into was the U.S.
Attorney's Office, at least from my perspective, was in a
little bit of a bind because we had agreed to this, yet he
wasn't turning himself in. And so, how do we deal with that?
And so, that's not a phrase that I focused on at the time. I
understand your point.

Q All right. I'm going to move on from those. Is
there anything else on those NPA clauses?

n And finally, let me -- let me just say you didn't
ask, we had incredibly experienced attorneys in the office.
I assumed, rightly or wrongly, that this language had been
thought through and vetted, and you know, sitting here 12
years later, I understand the issues that have arisen from

it, but at the time, these were not issues that were focused

on.

Q to your knowledge, who was invelved in the
drafting, other than [JEN HII on your side --

3 Right,

Q -- and Ji] Lourie, and you, to some extent?

A So, I can't say 12 years after the fact, but again,

I Lourie, very experienced head of the Palm Beach Office

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Page 299
1 has prosecuted any number of cases.
2 Q In == again, just to keep --
3 A Right.
4 Q -=- perspective and context, the final week that

> this was being negotiated, [Jill Lourie was in Washington, and

6 bouncing back and forth on the weekends, because he was in

1 transition to the front office here in the criminal division
8 in this building. That's a factor in terms of being able to
9 give attention to some details. Would you agree with that?
10 It could be a factor?

11 p= So, it could be a factor. On the other hand, I'd
12 say that [lll wasn't leaving the department. He is

13 professional. He knows his stuff, and you would expect a

14 professional -- if they're reviewing a document, whether

15 they're on vacation, whether they're looking to move from one

16 part of the department to another, that you would expect them

17 to review it, you know, fulfilling their -- their
18 responsibility to sort of focus in and make sure that -- that
18 it's == that it encompasses what it should. And that's not a

20 criticism of lll. That -- that's saying that, well, that

21 might be a factor. That doesn't lessen from my perspective

22 reliance on his expertise.
Z3 Q Mm-hmm. Understood. After the NPA was signed --
24 A Right.

25 @  -- and NESE cave back --

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