On July 6, wealthy financier Jeffrey Epstein was arrested and charged with sex trafficking. He’s being held without bond on the charges, which were brought by the United States Attorney’s Office for the Southern District of New York. In 2008, Epstein pled guilty to related conduct in state court in Florida, pursuant to a non-prosecution agreement with the United States Attorney’s Office for the Southern District of Florida. Is the government trying to take a second bite at the apple? Can they do that? Could something like that happen in North Carolina?
The Florida charges. Epstein pled guilty to solicitation of prostitution in state court in Florida in 2008. The plea resulted from a state and federal investigation into Epstein’s sexual contact with minors. As part of the deal, the United States Attorney’s Office for the Southern District of Florida entered into this nonprosecution agreement with Epstein, agreeing that it would not prosecute him for “any offenses that have been the subject of the joint investigation,” including various prostitution and sex trafficking crimes involving minor females allegedly committed by Epstein between 2001 and 2007.
The New York charges. The current charges against Epstein are contained in this two-count indictment. It alleges that between 2002 and 2005, Epstein “sexually exploited and abused dozens of minor girls at his homes in Manhattan . . . and Palm Beach.” He allegedly enticed girls as young as 14 to engage in sexual activity in exchange for cash payments, and used his employees to recruit new victims and to schedule his sexual encounters. According to the indictment, this constituted sex trafficking and conspiracy to commit sex trafficking.
Are there child pornography charges? No, or at least not yet. The question arises because of a search warrant law enforcement officers executed at Epstein’s New York home. Prosecutors have stated that the officers found a “vast trove” of photographs of nude or partially nude young women and girls. CNN reports that some of the images “were discovered in a locked safe along with compact discs with hand-written labels that read, ‘Young [Name] + [Name],’ ‘Misc nudes 1,’ and ‘Girl pics nude.’” These reports raise the specter of child pornography charges, but none have been filed yet, and of course not every nude or partially nude photograph of a child qualifies as pornography under federal law.
Are the New York charges barred by the Florida non-prosecution agreement? The legal question at the heart of this case is whether it is permissible for the government to prosecute Epstein for conduct that took place during the window of time covered by the non-prosecution agreement. Note that there’s no double jeopardy issue because Epstein’s guilty plea was in state court. He was never in jeopardy in federal court and under the “separate sovereigns” rule just reaffirmed in Gamble v. United States, __ U.S. __, 139 S.Ct. 1960 (2019), a state court conviction doesn’t bar a federal prosecution and vice versa.
Still, for Epstein’s lawyers, the government is unfairly seeking a second bite at the same apple. They contend that the non-prosecution agreement precludes the new charges, essentially as a matter of contract. But the government has a couple of potential arguments for why the nonprosecution agreement isn’t a barrier.
- Because only the Florida federal prosecutor’s office is bound by the agreement. It’s clear that Epstein couldn’t be prosecuted by the Florida federal prosecutor’s office in light of the agreement. But does that bind the New York federal prosecutor? On the one hand, the document states that “no prosecution . . . will be instituted in this District,” i.e., in the Southern District of Florida. It doesn’t say anything about other districts. But on the other hand, the document states that it is pursuant to Epstein’s desire “to resolve globally his state and federal criminal liability,” which perhaps suggests an intent that the agreement be far-reaching. This Politico article digs into the drafting of the document and how a court might view it. All in all, I don’t think it looks very promising for Epstein. However, if the agreement is viewed as ambiguous, there is a split of authority about how a court should interpret it. The Second Circuit, which includes New York, has stated that a “plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction,” United States v. Annabi, 771 F.2d 670 (2d Cir. 1985), while other circuits, including the Fourth, construe ambiguity against the government, see United States v. Harvey, 791 F.2d 294 (4th 1986) (stating that, unless a particular agreement provides otherwise, “though the Government negotiates its plea agreements through the agency of specific United States Attorneys . . . the agreements reached are those of the Government” and “the Government at large . . . is bound” by them).
- Because the New York charges are based on conduct that was not part of the Florida investigation. Obviously, there is a connection between the current charges and the Florida investigation. But given what has been alleged about the scope and extent of Epstein’s criminal activity, my guess is that the New York prosecutor has found or will be able to find substantial conduct that wasn’t considered as part of the Florida investigation. Stanford Law Professor Robert Weisberg explains that “so long as new victims have come forward, each victimization counts as a separate case of sex with a minor.” And it seems that new victims have been identified, with the Miami Herald reporting that a number of new victims have come forward that have not been part of any previous law enforcement investigation. If the non-prosecution agreement had been broader – for example, if it prohibited prosecution for “any and all conduct, known or unknown to the government, between 2001 and 2007” – Epstein’s position would of course be much stronger.
Is there any application to North Carolina? Absolutely. Similar issues may arise in North Carolina when offenses, or groups of offenses, span multiple prosecutorial districts. I’m not aware of a North Carolina case addressing whether one district attorney’s agreement not to prosecute a particular offense – for example, as part of an agreement that the defendant will plead guilty to a different offense – binds a different district attorney. The cases I could find in other states, like the federal cases, are split. Compare State v. Baker, 322 P.3 291 (Idaho 2014) (“The plea agreement entered into by the City Attorney in Ada County is binding on the Coeur d’Alene City Attorney. Both the City Attorney in Ada County and the Coeur d’Alene City Attorney are in this instance members of the prosecutorial branch of the State of Idaho and are agents of the State of Idaho.”), with Zebe v. State, 929 P.2d 927 (Nev. 1996) (“We conclude that one county may not bind another county of Nevada to the terms of a plea agreement without the second county’s express consent.”). The argument that one district attorney’s agreement not to prosecute an offense binds another district attorney is weaker where it is clear that venue is proper only in the second district attorney’s district. See State v. Billingsley, 978 N.E.2d 135 (Ohio 2012) (holding that a county attorney in one county lacks the actual or apparent authority to bind a county attorney in another county “with respect to crimes committed wholly outside of the prosecuting attorney’s county”). In light of the split of authority, if a defendant wants the state to agree not to prosecute crime X in exchange for a guilty plea to crime Y, and if crime X could potentially be prosecuted in a different district than crime Y, it may be advisable to get the district attorney for both districts to sign off on the agreement.