EPSTEIN, ACOSTA AND R. KELLY: SO WHAT’S THE BIG DEAL?*
Accountability To The Victims And Vindication Of The Interests Of The States And The United States
Emergence, Watercolor, 21.5” x 29.5”, Richard J Van Wagoner, 1995, Courtesy of Van Wagoner Family Trust**
Disclosure: I have represented people charged with sex crimes in state and federal court. I have also represented victim/witnesses in sex crime cases. I have never prosecuted.
On its face, news of the non-prosecution agreement brokered by counsel for Jeffrey Epstein and the United States Attorney for the Southern District of Florida Alex Acosta seems so disproportionate to the egregiousness of the alleged conduct that one wonders what else might have been going on. Was it really based on Acosta’s fear that Epstein, who was in electronic communication with some 36 females, some as young as 14 whom he allegedly raped, would be acquitted of electronic enticement and would serve no time in jail or prison? Did Acosta think he needed more evidence, more witness/victims before he could make his case? Why would Acosta agree not to prosecute associates or acquaintances of Epstein? Were they too important, too rich, too famous, too well connected? As with most things eventually tied to Individual-1, who was enthusiastic about Epstein and his taste in . . . the young ones, at least from the outside, it appears the fix was in. Acosta’s explanation, on its face, was also inadequate.
This post attempts to unpack some of the law and policy behind two high-profile cases — Jeffrey Epstein and R. Kelly — and an internal Department of Justice directive known as the Petite Policy (pronounced like “pet it” not “puh-teet”). I hope this will allow readers to make a little more sense of recent news about Jeffrey Epstein, former Secretary of Labor Alex Acosta and R. Kelly.
The United States is a sovereign, separate from each of the 50 states. By the same token, each state is a sovereign, separate from (although not independent of) the United States and the other 49 states. All 51 sovereigns have their own sets of criminal laws. (I’m not including the five major U.S. Territories in this discussion.) Not every state crime is a federal crime and not every federal crime is a state crime. Significant overlap exists, however. Phrased another way, not every act (including the required mental state) that violates a state law violates a federal law, and not every act that violates a federal law violates the law of the state where the act occurred. Again, there is significant overlap.
Possessing child pornography in Florida, for example, is a crime under Florida law but not a separate crime in states where the conduct did not occur, say New York, even though New York has its own laws against possessing child pornography. It’s not a crime in New York to possess child pornography in Florida, in other words. Possessing child pornography in Florida, however, constitutes a violation of federal law because Florida falls inside and is included within a separate sovereign, the United States of America, that has its own laws against possessing child pornography.
(I won’t get into the complexities of federal jurisdiction or the sometimes subtle differences in elements of state versus federal crimes, but federal crimes have a jurisdictional component, tying them to Congress’ right under Article I to regulate commerce. The jurisdictional components generally relate to instrumentalities of interstate or international commerce, including means of communication, travel, mail, wire services, banking, financial instruments and the like. I’ll leave that for a later post.)
So what about conduct that constitutes a violation of both state and federal law, say possession of child pornography in Florida? Can a person be prosecuted for the same act in separate sovereigns without infringing the Fifth Amendment right against double jeopardy? As recently as June 17, 2019, the United States Supreme Court said yes. In Gamble v United States, Mr. Gamble was convicted in Alabama state court of violating Alabama’s law prohibiting convicted felons from possessing firearms. Thereafter, federal prosecutors charged him with violating the federal law that prohibits convicted felons from possessing firearms. The federal charge relied on the exact same conduct that formed the basis for the state law conviction. Mr. Gamble moved to dismiss the federal charge against him, claiming he was being prosecuted twice for the same conduct — a convicted felon in possession of a firearm — in violation of the Fifth Amendment’s double jeopardy clause. The trial court denied his motion, Gamble entered a plea of guilty but appealed the federal conviction on double jeopardy grounds.
In a 7–2 decision, the Supreme Court upheld the longstanding precedent that prosecutions by separate, independent sovereigns (a state and the United States) for the same conduct does not violate the Fifth Amendment right against being “twice put in jeopardy of life or limb.” The Court’s Syllabus explained:
“The dual-sovereignty doctrine is not an exception to the double jeopardy right but follows from the Fifth Amendment’s text. The Double Jeopardy Clause protects individuals from being ‘twice put in jeopardy’ ‘for the same offence.’ As originally understood, an ‘offence’ is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two ‘offences.’. . . [A] crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.”
C’mon, man. One prosecution and one set of penalties ought to be enough. That’s piling on. Doesn’t the government have better use of time and resources than to beat up on the same person for something for which he’s already been charged, convicted and sentenced? The answer can be and often is yes — under the right circumstances.
Under what is known as the Petite Policy, found in the U.S. Attorney’s Manual 9–2.031, United States Attorneys have discretion “whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.” The Petite Policy does not create any rights in an accused according to the Manual. It simply provides guidance to federal prosecutors, as explained below, and falls within their discretion. The Policy says:
“The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.”
“This policy does not apply . . . where the prior prosecution involved only a minor part of the contemplated federal offense.”
Under the Policy a federal prosecutor cannot initiate or continue a federal prosecution “unless . . . substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; [and] second, the prior prosecution must have left the [substantial federal] interest unvindictated . . . .”
• The first exception to application of the Petite Policy is the matter must involve a substantial federal interest.
Congress takes very seriously the sexual exploitation of children, sex trafficking, manufacture or production, distribution, transportation and possession of child pornography, and other crimes against children including online or electronic enticement. Congress has also taken very seriously — wait for it — obstruction of justice, including interference with investigations and prosecutions, witness intimidation and threats and witness payoffs in exchange for silence.
• The second exception to application of the Petite Policy is the prior prosecution must have left the [substantial federal] interest unvindictated. The Petite Policy instructs federal prosecutors that the DOJ generally presumes a prior state prosecution, regardless of result, vindicates substantial federal interests. The US Attorney’s Manual explains, however:
“The presumption may be overcome when a conviction was not achieved because of the following sorts of factors: . . . incompetence, corruption, intimidation, or undue influence . . . .
“The presumption may be overcome even when a conviction was achieved in the prior prosecution . . . if the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence — including forfeiture and restitution as well as imprisonment and fines — is available through the contemplated federal prosecution [or] . . . . if the choice of charges, or the determination of guilt, or the severity of the sentence in the prior prosecution was affected by the sorts of factors listed in the previous paragraph. An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official.”
I don’t believe the 53 page draft indictment against Epstein prepared by the Southern District of Florida is in circulation. According to the Miami Herald, the draft indictment included lurid details of electronic communications Epstein had with some 36 young girls, some of whom he knew were 14 years old, and some of whom he allegedly raped. The indictment presumably included enticement over electronic communications devices. That indictment never issued. In a claim the district attorney in Florida disputes, Acosta saved the day by assuring Epstein would do some jail time, become a registered sex offender and pay for his crimes. Epstein pleaded guilty to two counts of prostitution under Florida law and (sort of) served 13 months in jail under a very liberal work release program. Acosta entered a non-prosecution agreement with Epstein which, strangely, encompassed and extended to certain of Epstein’s friends and associates. (Some important people’s names have been bandied about.) Acosta was found to have violated federal law by withholding the agreement and its terms from the victims of Epstein’s alleged federal crimes.
You be the judge whether substantial federal interests were left unvindicated.
• This Petite Policy does not apply where the prior prosecution involved only a minor part of the contemplated federal offense.
With reference to the second exception above and based on what we know, two counts of prostitution were only a minor — if any — part of the contemplated federal offenses. Indeed, the conduct relating to those discrete state crimes may not have even been in violation of federal law.
• The policy does not apply to separate crimes and those committed subsequent to the crimes under Petite Policy consideration.
Ok, I have seen postings suggesting that the Southern District of New York will be barred from prosecuting Epstein because of the non-prosecution agreement in Florida. I have no doubt his attorneys will give that a shot, but it will fail for several reasons, in my opinion.
First, in my experience, a United States Attorney in one district has no authority to and cannot bind another district to a non-prosecution agreement, particularly for crimes allegedly committed in that separate district. Indeed, in my experience, a United States Attorney has no right or authority even to address crimes committed in a separate district. There is no statute of limitations for the federal sex trafficking crimes allegedly committed in New York (or anywhere in the United States).
Second, some of the crimes Epstein is charged with — or will likely be charged with — post-date the non-prosecution agreement in Florida. For example, the Southern District of New York filed its papers in opposition to Epstein’s request for bail by arguing he presents a continuing threat and should therefore not be released under any conditions. The papers identify examples of alleged obstruction and witness tampering — payoffs and intimidation, including as recent as November of last year.
Third, after the FBI broke into his $77 million Manhattan mansion pursuant to a search warrant, they located a safe. Inside the safe, it’s reported, were stashes of images. If it wasn’t child pornography, why hide it in a safe? If they can tie Epstein, exclusively, to the safe and its contents, and the contents constitute contraband, any non-prosecution agreement in Florida from more than ten years ago won’t bar current charges relating to child pornography. Beyond simple possession (which is bad enough especially as the quantity and depravity of images or videos increases), if Epstein created, distributed or transported any pornography involving persons under the age of 18, he’s looking at considerably more prison than what will be imposed if he is convicted of the sex trafficking counts.
In light of the foregoing policies, consider how the State of Illinois and two separate United States District Attorneys are going after R. Kelly. In February of this year, the State of Illinois charged R. Kelly with ten counts of aggravated criminal sexual abuse, each of which carries a potential sentence of three to seven years in state prison. Upon conviction of multiple charges, a judge, presumably, could order those sentences to run concurrently or consecutively.
Apparently, United States Attorneys in the Northern District of Illinois and the Eastern District of New York believe those state charges are materially different from other crimes they think R. Kelly committed. Those United States Attorneys believe simply allowing the State of Illinois to address alleged misconduct would leave unvindicated substantial federal interests. A few days ago, federal authorities arrested that same R. Kelly “in Chicago about 7 p.m. while walking his dog near his residence at the Trump Tower.” The arrest was based on a 13 count indictment, issued by a grand jury in the Northern District of Illinois, charging him with child pornography, enticing a minor to engage in criminal sexual activity and obstruction of justice.
The next day, Friday July 12, 2019, federal prosecutors in Brooklyn, New York, unsealed a separate five-count indictment alleging that R. Kelly, yes the same one, and two of his former employees conspired to receive child pornography.
It appears federal prosecutors in Illinois and New York believe they have overcome the Petite Policy or it simply doesn’t apply to R. Kelly.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers