EPSTEIN
page 3 / 3766 . OCR, unverified
parte Rich, 194 S.W.3d 508, 514-15 (Tex. Crim. App. 2006) (holding that court could not
impose a sentence prohibited by law despite plea agreement which called for a sentence that
"exceed[ed] the statutory range of punishment"); State v. Mazzone, 212 W.Va. 368, 371, 374,
572 S.E.2d 891, 894, 897 (2002) (holding that court could not enforce plea agreement that called
for court to unlawfully sentence the defendant by treating two misdemeanor offenses as felony
offenses); see also United States v. Walker, 98 F.3d 944, 946-47 (7th Cir. 1996) (concluding that
judge was not compelled to impose a concurrent sentence where judge had erroneously
represented at defendant's arraignment that any sentence in the case would be concurrent with a
sentence that the defendant was already serving — a legally erroneous construction of 18 U.S.C.
§ 3858(b) — and where rescission "would [have] restore[d] the defendant to the approximate
status quo ante"); Craig v. People, 986 P.2d 951, 959-60, 961-93 (Colo. 1999) (holding that plea
agreement made no unlawful promises, but concluding that court would not have been required
to impose an unlawful sentence without a statutorily-required parole term if the plea agreement
had promised such an unlawful sentence).
Apparently recognizing that the Non-Prosecution Agreement and its terms are not
unlawful, Petitioners instead claim that the agreement is illegal because it "was arrived at
illegally" when the USAO-SDFL allegedly acted in violation of 18 U.S.C. § 3771 by failing to
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confer with Petitioners about the Non-Prosecution Agreement before entering into that
agreement with Epstein.
DE 127 at 8; see also id. at 9 (contending that agreement was
"negotiated . . . in violation of the victims' rights"). Even assuming arguendo that § 3771 was
violated when the USAO-SDFL and Epstein entered into the Non-Prosecution Agreement, any
such failing in the manner in which the USAO-SDFL and Epstein "arrived at" the Non-
Prosecution Agreement would not make the otherwise lawful agreement — which the government
had the prosecutorial discretion to negotiate and enter, see 18 U.S.C. § 3771(d)(6) ("Nothing in
this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or
any officer under his direction.") — illegal or void ab initio. Indeed, if § 3771 had made the
agreement illegal and void ab initio, then Epstein would never have been legally required to
abide by the otherwise lawful terms of the Non-Prosecution Agreement. Yet, § 3771 clearly
would not have provided Epstein any relief from his obligations under the Non-Prosecution
Agreement. On the contrary, the CVRA makes clear that "[a] person accused of the crime may
not obtain any form of relief' pursuant to the Act. 18 U.S.C. § 3771(d)(1). Thus, at most, a
government failure to comply with § 3771 when entering into an otherwise legal agreement
might arguably make that agreement voidable, like when there is fraud or duress in the making
of a contract, but it would not make the agreement void.;
"A void contract is no contract at all; it binds no one and is a mere nullity.... A voidable
contract, on the other hand, is one to which one or more of the parties have the power, by a
manifestation of election to do so, to avoid the legal relations created by the contract or to
extinguish the power of avoidance by ratifying the contract." 17A Am. Jur. 2d Contracts § 10;
see also Restatement (Second) of Contracts § 7 & cmts. a, e. Because the Petitioners' claims and
noncompliance with the CVRA would at most make the Non-Prosecution Agreement voidable,
not void, the cases cited by Petitioners concerning void agreements, see DE 127 at 12, are
inapposite.
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A voidable agreement, however, is not automatically subject to rescission. On the
contrary, contract law — which governs the Non-Prosecution Agreement° — has long established
that the actions of a party seeking the rescission or cancellation of a contract may bar such
relief:5
Where a party, with knowledge of facts entitling him to rescission of a contract or
conveyance, afterward, without fraud or duress, ratifies the same, he has no claim
to the relief of cancellation. An express ratification is not required in order thus to
defeat his remedy; any acts of recognition of the contract as subsisting or any
conduct inconsistent with an intention of avoiding it, have the effect of an election
to affirm.
Hendricks v. Stark, 99 Fla. 277, 285, 126 So. 293, 296-97 (Fla. 1930) (internal quotation
omitted); see, e.g., United States v. Baird, 218 F.3d 221, 230-31 (3d Cir. 2000) (recognizing that
"quIntil the party who has the power of avoidance elects to exercise it, the contract remains