Epstein non-prosecution agreement

The Epstein non-prosecution agreement was a contract executed on September 24, 2007 between Jeffrey Epstein and the United States Attorney's Office for the Southern District of Florida, then headed by Alexander Acosta. In it the office agreed to end its federal investigation of Epstein and not to charge him, four named assistants, or "any potential co-conspirators" in exchange for his guilty plea to two Florida state prostitution offenses, a recommended 18-month county jail term, sex offender registration, and a mechanism for paying civil damages to identified victims. The office had by then drafted a 53-page federal indictment. The agreement was concealed from the victims for roughly ten months, and in February 2019 Judge Kenneth Marra held that its concealment violated the Crime Victims' Rights Act.¹²

The Case Before the Agreement

The Palm Beach Police Department opened its investigation in March 2005 after the parents of a 14-year-old girl complained that Epstein had paid her for a massage at 358 El Brillo Way. Detective Joseph Recarey swore a probable cause affidavit on May 1, 2006 recommending four counts of unlawful sexual activity with a minor and one count of lewd and lascivious molestation, all second-degree felonies. State Attorney Barry Krischer instead took the case to a Palm Beach County grand jury, which on July 19, 2006 returned a single count of felony solicitation of prostitution. Police Chief Michael Reiter and Recarey, dissatisfied with the state handling, referred the matter to the Federal Bureau of Investigation in West Palm Beach.²³

The FBI brought the case to Assistant U.S. Attorney A. Marie Villafaña. By May 2007 she had written an 82-page prosecution memorandum and a draft indictment that the court record describes as 53 pages and the Justice Department describes as containing 60 counts. Beginning in January 2007 Epstein's lawyers met and corresponded with the office; on February 1, 2007 they delivered a 24-page letter and on July 6, 2007 a 23-page letter arguing that no federal crime had been committed. At a July 31, 2007 meeting the office offered to end its investigation if Epstein pleaded guilty to state charges, served a minimum of two years, registered as a sex offender, and agreed to a damages mechanism for victims.¹²

Negotiating the Terms

The final terms were worked out in September 2007 in email between Villafaña and Epstein's counsel, principally Jay Lefkowitz of Kirkland & Ellis. On September 12 the office noted that it had "no evidence of any assaults occurring either on Mr. Epstein's plane or offshore from his residence" while it looked for a federal charge to which Epstein could plead. On September 13 Villafaña wrote that she had been "spending some quality time with Title 18 looking for misdemeanors," and defense counsel answered that he was "[a]lready thinking about the same statutes." Drafts under discussion would have had Epstein plead to assaulting one of his own assistants, a proposal that drew "negative reaction" inside the office because that assistant was "considered one of the main perpetrators."¹

On September 16 the prosecutor proposed filing a charge in Miami rather than West Palm Beach "[o]n an 'avoid the press' note," and relayed advice from the office's West Palm Beach manager, Andrew Lourie: "Andy recommended that some of the timing issues be addressed only in the state agreement, so that it isn't obvious to the judge that we are trying to create federal jurisdiction for prison purposes." She added that she "would prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge," and offered to meet defense counsel "off campus." The same day the defense sent a draft extending federal immunity to co-conspirators. On September 17 she asked Lefkowitz to send material to her home email address and call her cell phone.¹

On September 18 the office assured the defense that "[a] non-prosecution agreement would not be made public or filed with the Court." On September 21 Krischer wrote to Villafaña about the proposed agreement: "Glad we could get this worked out for reasons I won't put in writing. After this is resolved I would love to buy you a cup at Starbucks and have a conversation." On September 24, as the agreement was being executed, Lefkowitz wrote: "Please do whatever you can to keep this from becoming public."¹

The office's own 51-page "Epstein Investigation Timeline," marked privileged and as containing grand jury material and stamped Exhibit A-1, logs the same weeks from the prosecution side. In September 2007 Acosta, Drew Oosterbaan, Sloman, Villafaña and John McMillan met Kenneth Starr, Lefkowitz and Lilly Ann Sanchez. A September 11 revision had Epstein plead to three specified charges with a 30-month sentence, split between 20 months in jail and 10 in community control, and agree that the girls were victims for purposes of damages. On September 13 Lefkowitz answered Villafaña's statement that the office was satisfied in principle but uncomfortable with the recommended federal charge on jurisdictional grounds, and the same day he proposed misdemeanor statutes. Krischer, Lanna Belohlavek and the federal prosecutors exchanged emails on a joint meeting with Epstein's counsel from September 19 to 25. On September 20 an internal email reported that Lefkowitz wanted to remove the registration requirement, and on September 21 Villafaña summarized the State Attorney's negotiations with Jack Goldberger, including Goldberger's request that Epstein not have to register as a sex offender. On September 23 Lefkowitz wrote that the defense had based its agreement to plead to Florida Statute 796.03 on a "mistaken assumption" and asked again that Epstein not have to register; Acosta told him to deal directly with Andrew Lourie and Villafaña, and the agreement was signed the next day.⁴⁵

On November 29, 2007 Sloman forwarded an exchange with Lourie recording that the defense "originally agreed to plead to the state felony that they thought was unregisterable (but did not tell us knowing we thought it was), but then discovered they were wrong and tried to get out of it. They tried several times to knock down the jail time after agreeing to the time." On December 17 Starr and Lefkowitz sent Acosta a 110-page letter arguing, among other points, the State Attorney's Office's belief that Epstein should not have to register. According to the chronology, in early January 2008 Lefkowitz admitted to Acosta in a telephone call that he had never intended Epstein to plead guilty to an offense requiring sex offender registration.⁴

The Terms

The agreement required Epstein to plead guilty in state court to the pending solicitation indictment and to a new information charging procurement of minors for prostitution under Florida Statute 796.03, an offense requiring sex offender registration, and to make a binding joint recommendation of 18 months in county jail followed by 12 months of community control. In exchange the office agreed not to prosecute him in the Southern District of Florida.²

The immunity clause read: "the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova." A confidentiality clause provided that "[t]he parties anticipate that this agreement will not be made part of any public record," and that if the government received a Freedom of Information Act request or compulsory process for the agreement, "it will provide notice to Epstein before making that disclosure."¹

The victim provisions let the government, "in consultation with and subject to the good faith approval of Epstein's counsel," select an attorney representative for the victims, "paid for by Epstein." Epstein would not contest liability in suits brought under 18 U.S.C. 2255 by victims who agreed to proceed exclusively under that statute and to "waive any other claim for damages." The Eleventh Circuit later described the arrangement as "[a]n odd set-up, and one that, it seems to us, was likely calculated to quickly and quietly resolve as many victim suits as possible." The victims' attorney Jeffrey Herman objected in September 2008 that the waiver language did not tell victims it could extinguish punitive damages claims "against an alleged billionaire."¹⁶

Keeping the Victims Out

The office never told the victims before signing that an agreement was under consideration. After signing, Villafaña reported to Lefkowitz that she had forwarded his message "only to [United States Attorney] Alex, Andy, and Roland," and that a colleague named Rolando, who was calling Chief Reiter, "knows not to tell Chief Reiter about the money issue, just about what crimes Mr. Epstein is pleading guilty to and the amount of time that has been agreed to," and was "telling Chief Reiter not to disclose the outcome to anyone." Stipulated facts in the later litigation state that it was "a deviation from the Government's standard practice to negotiate with defense counsel about the extent of crime victim notifications."¹

On October 10, 2007 Lefkowitz wrote to Acosta that "[n]either federal agents nor anyone from your Office should contact the identified individuals." Acosta then met Lefkowitz for breakfast; Lefkowitz's follow-up letter thanked him "for the commitment you made to me during our October 12 meeting in which you . . . assured me that your Office would not . . . contact any of the identified individuals, potential witnesses, or potential civil claimants." The breakfast took place eighteen days after the signing; the Office of Professional Responsibility found no evidence that it "led to the NPA, which had been signed weeks earlier, or to any other significant decision that benefited Epstein."¹²

When First Assistant U.S. Attorney Jeffrey Sloman moved in late November 2007 to notify victims under the Justice for All Act of 2004, Lefkowitz objected that victims should not be invited to the state sentencing or "encouraged to contact law enforcement officials." On November 30 Acosta wrote to defense counsel Kenneth Starr: "I am directing our prosecutors not to issue victim notification letters until this Friday at 5 p.m., to provide you with time to review these options with your client." Starr answered on December 5 that it was "wholly inappropriate for your Office to send this letter under any circumstances." On December 7 defense attorney Lilly Ann Sanchez asked the office to "hold off on sending any victim notification letters," and none were sent that month. On December 19 Acosta wrote that the office would "defer to the discretion of the State Attorney" on notice of the state proceedings.¹

On January 10, 2008 the FBI sent victims letters stating that "[t]his case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Another victim received the same language on May 30, 2008. In mid-June 2008 the victims' attorney Bradley Edwards asked to meet with Villafaña and was, in the stipulated wording, "led to believe federal charges could still be filed, with no mention whatsoever of the existence of the NPA."¹

Appeal to Main Justice and the Plea

For nine months after signing, Epstein's lawyers sought to renegotiate the agreement and to have it set aside by senior Department of Justice officials, arguing that the case was "a quintessentially state matter." Acosta later wrote that the team, which included Alan Dershowitz, Starr, and Roy Black, waged "a year-long assault on the prosecution and the prosecutors," that "[d]efense counsel investigated individual prosecutors and their families," that one lawyer warned him that "the office's excess zeal in forcing a good man to serve time in jail might be the subject of a book if we continued," and that the lawyers would "obtain concessions as part of a negotiation and agree to proceed, only to change their minds, and appeal the office's position to Washington." The Criminal Division and then the Office of the Deputy Attorney General reviewed the case; on June 23, 2008 the Deputy Attorney General's office declined to intervene and gave Epstein until June 30 to comply.¹²⁷

On June 30, 2008 Epstein pleaded guilty in Palm Beach County court and was sentenced to 12 months on the solicitation count and 6 months on the procurement count, consecutive, followed by 12 months of community control. The same day the office told defense counsel that "the FBI and our office are declining comment if asked" about the agreement, and a copy was filed under seal with the state court.¹²

Work Release and the Florida Science Foundation

Epstein served his sentence in the custody of the Palm Beach County Sheriff's Office under Sheriff Ric Bradshaw. The sheriff approved his application for work release, and from October 2008 he spent 12 hours a day "purportedly working at the 'Florida Science Foundation,' an entity Epstein had recently incorporated that was co-located at the West Palm Beach office of one of Epstein's attorneys." Records obtained by the West Palm Beach station WPTV show that the foundation paid the sheriff's office 128,136 dollars during his incarceration; the money was reported to have paid off-duty deputies assigned to him while he was at the foundation. He received gain time, served less than 13 months, and was released to home detention on July 22, 2009. A state judge ordered the sealed copy of the agreement made public in September 2009.²⁸

In August 2019, after a letter from Bradshaw, Governor Ron DeSantis ordered the Florida Department of Law Enforcement to investigate; its May 2021 reports found that Epstein "received differential treatment" in the sheriff's custody, that the off-duty deputies had been hired mainly for his protection rather than to monitor him, and that there was no evidence of bribery or influence or of any crime by sheriff's or prosecutors' staff.⁹

Performance and Breach

The prosecution team kept preparing a federal case after the signing. On February 14, 2008 Villafaña wrote to the FBI case agents that she had not yet sent the indictment and "was just asking for input on who to include and who to exclude." After the Justice Department's Criminal Division rejected Epstein's appeal in May 2008, she asked to indict, and Sloman and Acosta advised that Epstein would be given the chance to perform. On May 16, 2008 Sloman wrote to her, "We got approved," explaining: "Alex called to tell me. He said the ltr needs to be tweaked which we'll do on Monday. I wouldn't call the FBI yet." In June 2008 she summarized a meeting with Krischer about Epstein's attempt to negotiate a new state plea, and the office discussed a call from Roy Black about allowing Epstein to accept a state plea to 60 days' imprisonment. At the time of the plea Villafaña recorded Goldberger's statement that Epstein would serve his sentence in confinement "24-hours-a-day."⁴¹⁰¹¹

Federal prosecutors had researched the sheriff's work-release rules from November 2007, and in July 2008 Villafaña corresponded with "Col. M. Gauger" of the sheriff's office about Epstein's work release. On November 20, 2008, after learning that Epstein was on work release, she asked to indict him. On December 3, 2008 she wrote to her supervisors that "since Day 1, Goldberger and Krisher [sic] . . . have been scheming to get Epstein out on work release," and that Epstein had hired off-duty deputies for "protection," "paying between $3000 and $4100 per week for this service, despite the work release rules barring anyone from the Sheriff's Office (and the Sheriff's Office itself) from having 'any business transactions with inmates.'" On December 11 she wrote to the sheriff's Corrections Division that Epstein was ineligible and that his application listed, as the Florida Science Foundation's telephone number, the number of Goldberger's law firm; "the Sheriff's Office neither acknowledged nor responded." In March 2009 Sloman assured Alan Dershowitz that his office "will not interfere with how the Palm Beach Sheriff's Office administers the sentence imposed by the Court," while adding that it would object to alternative custody or home detention if asked. The sheriff's Extra Duty Permits System carried the deputies' detail as Permit No. 7804, "FL Science Foundation - Plain Clothed Position," and July 2009 overtime reports describe the work as "Provide security for Jeffrey Epstein," including midday escorts to 358 El Brillo Way.⁴¹²¹³

On June 9, 2009 Villafaña sent Sloman, Criminal Division chief Robert Senior, Rolando Garcia and Karen Atkinson a memorandum titled "Operation Leap Year: Request to Provide Notification of Breach," and an indictment package was signed that day for presentation on June 16; on June 12 she wrote to Goldberger about a violation of the agreement, and on June 15 she wrote to Lefkowitz, Black and Goldberger on the history of Epstein's performance under it. No indictment was returned. In August 2009 Epstein was stopped walking on the beach during home detention and said he was walking "to work"; in September 2009 Black asked to transfer his supervision to the U.S. Virgin Islands, and the office answered that it would treat the request as a violation of the agreement. Epstein completed his sentence on July 21, 2010, and an administrative order closed the federal case on September 8, 2010. In December 2010 a correspondent wrote to Epstein that "krischer spoke to the governor before he left for Korea" and that a New York defense lawyer Krischer had lunched with might help "with the registration stuff." The whole Southern District of Florida office was formally recused from the matter in July and August 2011.⁴¹²¹⁴

The Crime Victims' Rights Act Litigation

On July 7, 2008 a victim filed an emergency petition as "Jane Doe" under the Crime Victims' Rights Act, opening Doe v. United States, No. 9:08-cv-80736, before Judge Marra. Her attorney saw the first reference to the agreement on July 9, 2008, in the government's response. The court ordered the agreement produced to the petitioners under a protective order in August 2008, and the case went dormant from late 2008 to 2010 while the petitioners pursued civil claims against Epstein.¹²

On February 21, 2019 Marra granted partial summary judgment for the petitioners. He wrote that "[p]articularly problematic was the Government's decision to conceal the existence of the NPA and mislead the victims to believe that federal prosecution was still a possibility," and that it "was a material omission for the Government to suggest to the victims that they have patience relative to an investigation about which it had already bound itself not to prosecute." He also stated that "[t]he Court is not ruling that the decision not to prosecute was improper." After this ruling the Justice Department recused the Southern District of Florida from the litigation and assigned the U.S. Attorney's Office for the Northern District of Georgia to defend it.¹²

Epstein was arrested in New York on July 6, 2019 on federal sex trafficking charges and died in custody on August 10, 2019. On September 16, 2019 Marra denied the victims' requested remedies, including rescission of the agreement, and closed the case, writing that he had "no jurisdiction over Alexander Acosta, the former U.S. Attorney, who is now a private citizen," and that "despite Petitioners having demonstrated the Government violated their rights under the CVRA, in the end they are not receiving much, if any, of the relief they sought."¹⁵

On April 15, 2021 the en banc Eleventh Circuit denied Courtney Wild's mandamus petition, holding that the Act does not authorize a victim to seek judicial enforcement in a freestanding civil action before charges are filed, and expressly declining to decide whether the rights attach before charges. The Supreme Court of the United States denied certiorari on February 22, 2022.⁶¹⁶

The Office of Professional Responsibility Review

The Office of Professional Responsibility opened its review on February 6, 2019 after a December 3, 2018 letter from Senator Ben Sasse citing the Miami Herald series by Julie K. Brown. Its November 2020 report found no professional misconduct by Acosta or four subordinates but concluded that the agreement "was a flawed mechanism for satisfying the federal interest," that Acosta's decision "constitutes poor judgment," and that the government's "lack of transparency and its inconsistent messages" gave the public "the misimpression that the government had colluded with Epstein's counsel to keep the NPA secret from the victims." OPR found no evidence of corruption or of a decision "based on . . . Epstein's wealth, status, or associations." It noted that the three supervisory subjects other than Acosta had "left the USAO, were transitioning to other jobs, or were absent at critical junctures." It recorded that in December 2010 a victims' attorney had alleged improper influence over the investigation and that OPR had declined to open an inquiry at that time in deference to the pending litigation. It stated that it had no jurisdiction over state officials and reached no conclusions about their conduct.²

Before the report was final, the chief of the Public Corruption Unit of the U.S. Attorney's Office for the Southern District of New York reviewed the draft and on August 21, 2020 asked for two wording changes, which OPR accepted: "at least one victim known to be a minor" became "at least one victim believed to be a minor," described as "more accurately reflect[ing] our position in the bail arguments regarding Epstein," and a statement that investigators "were aware" Epstein used hidden cameras in his New York residence became that they "had learned" it.¹⁷

Later Use of the Immunity Clause

The co-conspirator clause became the central defense argument of Ghislaine Maxwell, who contended that it barred her 2020 prosecution in New York. The Second Circuit rejected the argument, holding that the agreement bound only the Southern District of Florida, and the Supreme Court denied her petition for certiorari in October 2025.¹⁸