EPSTEIN
page 3 / 135 . OCR, unverified
think prosecutors do, I'm saying is there -- is there at
least a possibility of that? And --
Q
Was that articulated to you by the people you were
listening to by
and --
A
So --
A
So, that certainly was part of the discussions when
I talk about the victim issues, would at least some jurors
view it that way, rightly or wrongly?
Q
And you recall having that -- those --
A
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Page
Q
-- conversations?
A
I recall having not only how would the witnesses
stand up in court, but how would jurors view them? And then
the second part of that is, as it goes up in the appellate
process with respect to the -- the federal nexus. And so, I
hear you, but you know, I -- it's -- it's sort of one of the
factors. And so --
BY
Q
And so --
A
Q
-- what I'm getting though is that there didn't
seem like there was a consideration or discussion about, is
this two years capturing the scope of his conduct, versus,
we're just going to tie it to this potential state crime that
could have been charged?
.6
A
Fair, and I would -- I would say that the two years
was not meant -- so, the petite policy has several prongs,
and to my recollection, the petite analysis was not based
on -- and let's not even call it petite analysis. That
overstates it.
But it was much more of a, is this a manifest
injustice, and -- and if the original -- and so, you sort of
see it in the Exhibit 3. This would not have been brought to
the office in the first place if -- you know, if he had plead
to jail time and registration, and rightly or wrongly, that
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was understood from the very beginning of the case, and was a
factor in how the case was viewed.
Q
And how do you know that it wouldn't have -- that
wouldn't have been upset with a minimal jail
time, even if there was sex registration?
A
So, I can't 12 years later say how we knew that. I
: They did.
THE WITNESS: I can't speak for certain, but you
probably have that from the record, and that when they
changed the ASA involved and took it to grand jury, the
charges that came back were substantially less.
BY
Q
Do you remember the circumstances? Did you know
the circumstances under which that ASA was changed?
A
I don't know.
Q
All right. The -- by the way, do you remember an
occasion in which
came to your office in Miami
to press you on what was going to be happening with the
can say that my -- my general impression was that this was
proceeding at the state, that there were certain charges, and
that those charges changed when it went to a grand jury, and
that it went from -- I think they even changed the ASA
involved.
federal case?
A
I don't recall.
•
EFTA00009026
Q
You don't recall. I --
: Just one more,
: Yeah.
THE WITNESS: Yeah.
BY
Q
So, before we --
A
Yeah.
Q
-- leave this --
Yeah.
Q
-- one little thing. So, if this case had come
into the federal system as apart from the --
Ficht.
Q
-- taken the digression through the --
A
Rlunt.
-- state system, do you think that the two years
was an appropriate punishment, given the scope of his
conduct?
A
I think if it had come into the federal system
apart from the whole state and the petite considerations and
all that, we may have ended up in a different place. I
viewed the two years, to my recollection, as a manifest
injustice standard, and not an appropriate punishment
standard.
Q
Meaning whether it was manifestly unjust that he
get two years?
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A
No, whether it was -- so, let me -- let me -- let
me rephrase. No jail time was a manifest injustice. If he
had gone to jail for two years in the state system and
registered, the question of whether it would have come to the
office at all, and to my recollection, the consensus was, and
based on Exhibit 3, agrees with that, that it would
never have come to the office in the first place, because we
would not view that under petite as a manifest injustice.
There are any number of cases that are prosecuted
around the country where an individual gets a jail time that
the federal government may not agree with, but that doesn't
mean that the federal government reprosecutes those cases.
The instances where the federal government reprosecutes a
state case are pretty rare, to my knowledge.
And so, under the petite standard, and the
petite -- the manifest injustice would -- it would have been
a manifest injustice to have zero jail time, and zero
registration, but if the original charges had remained, that
would be a different matter. That does not mean that that is
the best outcome in the state system.
and so, perhaps beating a -- you know, an issue,
but let me maybe give an example. One concern that I had was
that in the violent crime side, the state brings a case, and
you know, there is a deferment, no jail time. The state then
brings a second case, and there's minimal jail time. Well,
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now the person has done three violent crimes, they have a