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Wednesday, February 27, 2019

A question for crim pro types

A federal court ruled last week that federal prosecutors (namely, then S.D. Fla. US attorney, now-Secretary of Labor Alex Acosta) violated the Crime Victims Rights Act in entering a plea agreement and non-prosecution agreement with Jeffrey Epstein over sex-trafficking and related charges. The victims want the court to invalidate the plea agreement and NPA.

My question for learned crim pro type: How is such a remedy possible? The US Attorney agreed to the NPA in exchange for Epstein pleading to, and serving time on, the state charges.* Epstein now has served that sentence (although he remains under its collateral consequences, such as being a registered sex offender).

[*] At his confirmation hearing, Acosta defended the deal by arguing that it is a good result when the agreement to drop the difficult federal charges could produce some jail time.

Wouldn't invalidating the federal plea agreement implicate his state conviction and sentence? And would that create some Double Jeopardy or Due Process problems? Obviously there is no true Double Jeopardy problem if the federal government now prosecutes him regardless of what happened in state court. But does it change when the federal and state charges were enmeshed and agreements as to one implicated agreements as to the other?

Posted by Howard Wasserman on February 27, 2019 at 08:54 AM in Criminal Law, Howard Wasserman | Permalink


Howard, Thanks for the clarification. I agree with your basic point that the defense is going to have a lot to work with here. If I were defending this case, I might start my research with due process/estoppel, and statute of limitations. Last but not least, I would kick the tires on double jeopardy by looking for an exception to the separate sovereigns rule based on those separate sovereigns cooperating, much like the old "silver platter doctrine" in the Fourth Amendment context, where before Mapp v. Ohio the feds could not get around the exclusionary rule by having the states do their illegal searches and seizures.

If I were trying to open up the case, I would point to the findings in the opinion (which I have now read) that the defense was a party to the concealment of information on the progress of the case from the victims, and therefore has no reasonable ground for reliance.

This is going to be interesting. I wish Prawfs had a legal prediction market; if it did, I would bet that one way or another there will be no new federal charges. Jack

Posted by: Jack Chin | Feb 28, 2019 11:27:25 AM

It seems to me that Epstein has a compelling argument against rescission of an NPA under which he already performed and served a sentence. But what that argument would have to do with double jeopardy, I'm still not seeing.

Posted by: Asher | Feb 28, 2019 11:00:50 AM


Sorry, I was imprecise (comes from not doing this area normally). Here is the story:

The Feds entered a non-prosecution agreement in exchange for Epstein pleading to lesser (and arguably inaccurate) state charges. The plaintiffs in this civil action are asking the court to invalidate the non-pros agreement, allowing the US Attorney to begin a new investigation and at least consider charges.

So no D/J because no federal charges were pursued. Good point on the S/L, although I assume there is some provision in the NPA that addresses that, although perhaps not. Then the question is how we handle the fact that Epstein only pleaded to the state charges because of the NPA.

Posted by: Howard Wasserman | Feb 28, 2019 8:51:06 AM

It would be useful,to read here in jurist (and links therein, the pending case in the supreme court of Gamble V. US ) and better understand the double jeopardy issue :


Posted by: El roam | Feb 28, 2019 6:45:14 AM

Howard, as with most things, all I know is what I read in Prawfs. Based on your post, there was a "plea agreement" in federal court, so I assume there were federal charges, and that they were resolved with a plea. If so, there is a jeopardy bar of some sort, wholly apart from what happened in state court. I would also think there might be a statute of limitations issue. Jack

Posted by: Jack Chin | Feb 27, 2019 6:52:37 PM

Jack: Wouldn't this be separate sovereigns? The conviction and sentence was for state crimes. So if the plea deal is undone, that means new charges from the Fed, but not from Florida?

Posted by: Howard Wasserman | Feb 27, 2019 6:16:14 PM

Why is there no true double jeopardy problem? At first blush, I'd say that jeopardy attached, jeopardy terminated, and the defendant did nothing to waive the protection, like appealing.

Posted by: Jack Chin | Feb 27, 2019 3:35:23 PM

Interesting. The government, amazingly interprets the CVRA, I quote:

As only obligating the prosecutor to answer inquiries by a crime victim and does not impose a duty on the prosecutor to give notice about case developments, other than what is required in section 3771(a)(2).

End of quotation:

But the statute itself,dictates clearly,I quote:

" The right to be informed in a timely manner of any plea bargain or deferred prosecution agreement."

So, " timely manner " means, that, effectively, the victims, must be informed, before and during, of any intention even,to reach any plea bargain.Simple and pure.

And it should be noticed,that,I quote:

"....the CVRA authorizes the rescission or " reopening of a prosecutorial agreement, including an non - prosecution agreement reached in violation of a prosecutor's conferral obligation under the statute(Doe v. United states).


Posted by: El roam | Feb 27, 2019 1:33:25 PM

True. But the court found a violation of even those limited rights in this case and is at least being asked to invalidate the plea deal. That would, at least, force the US Attorney to do it over again, with victim involvement, even if to reach the same NPA result. And the political pressure against simply ratifying what was done previously is going to be overwhelming.

So my question stands: How does charging Epstein anew not raise due process or D/J concerns?

Posted by: Howard Wasserman | Feb 27, 2019 9:17:44 AM

The CVRA provides that victims have right to be notified and to participate in the plea process. It does not allow victims to determine the substantive outcome of the plea process, and it doesn't provide a victim's veto on prosecutorial decisionmaking. And victims can seek relief only if the defendant hasn't pleaded to the highest charge. These CVRAs--federal and state--in the end provide many fewer right to victims than people generally think.

Posted by: Steven R. Morrison | Feb 27, 2019 9:10:22 AM

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