How Jeffrey Epstein’s Defense Could Argue for Dismissal of His Case


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Can Jeffrey Epstein’s lawyers keep his case out of court?

On Thursday, Judge Richard M. Berman of Federal District Court in Manhattan denied bail for Mr. Epstein. Now the defense’s focus will shift to keeping Mr. Epstein’s case from going to trial.

In a bail filing last week and a subsequent hearing, Mr. Epstein’s attorney Reid Weingarten outlined the potential arguments the defense could make to get the case dismissed. And they might have enough merit for the defense to succeed.

Federal prosecutors in Manhattan charged Mr. Epstein with sex trafficking last week. The indictment was a rebuke of the 2008 deal brokered by Alexander Acosta, a former United States attorney in Miami who resigned last week as President Trump’s labor secretary. Under the terms of that deal, Mr. Epstein pleaded guilty to two state charges in Florida and the federal government agreed not to prosecute him on similar charges. He ended up serving a 13-month sentence in a local jail and registering as a sex offender.

The defense’s arguments for dismissal are likely to revolve around the 2008 non-prosecution agreement and the government’s delay in bringing the second indictment.

The first argument will rest on how Mr. Berman interprets two phrases in the non-prosecution agreement.

A key line provided that “Epstein seeks to resolve globally his state and federal criminal liability.” Mr. Weingarten argued that the word “globally” “immunized Mr. Epstein from prosecution” for the offenses set forth in the agreement, which includes a specific reference to the sex trafficking crimes he is accused of violating in Manhattan. Because it is a “global” settlement, Mr. Weingarten argued, the Justice Department, which includes the United State attorney’s office in Manhattan, is precluded from pursuing further criminal charges against Mr. Epstein for the same conduct, even if additional victims have been identified.

But the agreement also said that a “prosecution in this district for these offenses shall be deferred.” The government is likely to assert that the phrase means the non-prosecution agreement covers only the Southern District of Florida.

A second argument that Mr. Weingarten alluded to in his filing is the length of time the government took to bring the second indictment: 12 years. Under the Supreme Court’s 1971 decision in United States v. Marion, the defense must show that “pre-indictment delay, in this case, caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain a tactical advantage over the accused.”

In other words, Mr. Epstein must show that the delay actually prejudiced his ability to mount a defense, not just that it might have a negative effect. Given the indictment’s focus on conduct from 2002 to 2005, the defense may be able to show that the passage of time has impaired the memory of witnesses. The loss of any eyewitnesses or a lack of memory about the events over 15 years ago could be enough to establish actual prejudice.

A third argument that the defense hinted at was a claim of double jeopardy based on the close coordination between the federal and state prosecutors in the original case.

The Supreme Court recently upheld the power of the states and the federal government to prosecute someone for a violation involving the same conduct, known as the “dual sovereignty” doctrine.

But Mr. Epstein’s case could provide an exception to that doctrine. The non-prosecution agreement specifically provided that federal prosecution would be “deferred in favor of prosecution by the State of Florida.” In Bartkus v. Illinois, from 1959, the Supreme Court provided protection against double jeopardy when a defendant can claim that the state prosecution “was merely a tool of the federal authorities” to avoid having to pursue their own case. Mr. Epstein’s lawyers may argue that the coordination between federal and state authorities in resolving the previous case means that there cannot be a second prosecution for the same conduct.

To make that case, the defense may need to call Mr. Acosta as a witness. His statements especially about the meaning of “globally” and the close coordination with state authorities could provide enough for the second indictment to be dismissed.

But the presence of new victims in New York who have provided information about Mr. Epstein’s conduct may be enough for a court to find that the case involves different violations.

In addition, in a filing opposing bail, prosecutors argued there were “credible allegations” that Mr. Epstein had engaged in “witness tampering, harassment or other obstructive behaviors” with victims.

Under the federal obstruction of justice statute, anyone who uses “intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay or prevent the testimony of any person in an official proceeding” can be prosecuted.

If prosecutors add an obstruction charge, that may be enough to send the case to court.