EPSTEIN
page 5 / 1261 . OCR, unverified
inference that an NPA “affirmatively” binds other districts.’ Yet, the
actions of USAO-SDFL do not indicate that the NPA was intended to
bind other districts.
The United States Attorney’s Manual that was operable during
the negotiations of the NPA required that:
No district or division shall make any agreement, including any
agreement not to prosecute, which purports to bind any other
district(s) or division without the express written approval of
18 A-175 (emphasis added). The agreement's scope is also limited in an additional section:
THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for
the Southern District of Florida, prosecution in this District for these offenses shall be
deferred in favor of prosecution by the State of Florida, provided that Epstein
abides by the following conditions and the requirements of this Agreement set forth
below.
Id. (emphasis added).
14 See United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986).
11
DOJ-OGR-00000012
==================== END OF root__DOJ-OGR-00000012.jpg.txt ====================
==================== START OF root__DOJ-OGR-00000013.jpg.txt ====================
METADATA_SOURCE: .
METADATA_FILENAME: DOJ-OGR-00000013.jpg
----------------------------------------
Case 22-1426, Document 109-1, 09/17/2024, 3634097, Page12 of 26
the United States Attorney(s) in each affected district and/or the
Assistant Attorney General of the Criminal Division.
Nothing before us indicates that USAO-SDNY had been notified or
had approved of Epstein’s NPA with USAO-SDFL and intended to be
bound by it. And the Assistant Attorney General for the Criminal
Division stated in an interview with the Office of Professional
Responsibility that she “played no role” in the NPA, either by
reviewing or approving the agreement.
The history of the Office of the United States Attorney is instructive
as to the scope of their actions and duties. The Judiciary Act of 1789
created the Office of the United States Attorney, along with the office
of the Attorney General. More specifically, the Judiciary Act provided
for the appointment, in each district, of a “person learned in the law to
act as attorney for the United States in such district, who shall be sworn
or affirmed to the faithful execution of his office, whose duty it shall
be to prosecute in such district all delinquents for crimes and offences,
cognizable under the authority of the United States, and all civil
actions in which the United States shall be concerned.” The Judiciary
Act thus emphasized that U.S. Attorneys would enforce the law of the
United States but did not determine that the actions of one U.S.
Attorney could bind other districts, let alone the entire nation. In fact,
the phrase “in such district,” repeated twice, implies that the scope of
5 United States Attorney’s Manual § 9-27.641 (2007).
16 An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93
(1789) (emphasis added).
12
DOJ-OGR-00000013
==================== END OF root__DOJ-OGR-00000013.jpg.txt ====================
==================== START OF root__DOJ-OGR-00000014.jpg.txt ====================
METADATA_SOURCE: .
METADATA_FILENAME: DOJ-OGR-00000014.jpg
----------------------------------------
Case 22-1426, Document 109-1, 09/17/2024, 3634097, Page13 of 26
the actions and the duties of the U.S. Attorneys would be limited to
their own districts, absent any express exceptions.
Since 1789, while the number of federal districts has grown
significantly, the duties of a U.S. Attorney and their scope remain
largely unchanged. By statute, U.S. Attorneys, “within [their] district,
shall (1) prosecute for all offenses against the United States; (2)
prosecute or defend, for the Government, all civil actions, suits or
proceedings in which the United States is concerned.” Again, the
scope of the duties of a U.S. Attorney is cabined to their specific district
unless otherwise directed.18
In short, Annabi controls the result here. Nothing in the text of
the NPA or its negotiation history suggests that the NPA precluded
USAO-SDNY from prosecuting Maxwell for the charges in the
7 28 U.S.C. § 547.
'8 This does not suggest that there are no instances in which a U.S. Attorney’s powers do not
extend beyond their districts. For instance, under 28 U.S.C. §515 a U.S. Attorney can
represent the Government or participate in proceedings in other districts, but only when
specifically directed by the Attorney General:
The Attorney General or any other officer of the Department of Justice, or any
attorney specially appointed by the Attorney General under law, may, when
specifically directed by the Attorney General, conduct any kind of legal proceeding
... which United States attorneys are authorized by law to conduct, whether or not
he is a resident of the district in which the proceeding is brought.
13
DOJ-OGR-00000014
==================== END OF root__DOJ-OGR-00000014.jpg.txt ====================