This seems like a curious punt on the question of bail. Saying he needed more time to “absorb” the material provided by prosecutors and defense attorneys, Judge Richard Berman postponed a decision on whether to release Jeffrey Epstein before his trial for sex trafficking. Epstein will remain in jail until at least Thursday morning:
Accused child sex trafficker Jeffrey Epstein will remain locked up for a least a few days more, after a federal judge said Monday morning would not rule yet whether to release the wealthy investor on bail.
Judge Richard Berman, speaking at a detention hearing in Manhattan federal court, said he will issue a decision on Epstein’s bail on Thursday morning.
Until then, Epstein will be kept in a jail in downtown Manhattan.
It’s not a case where the defense asked for a continuance. Both sides showed up ready to argue over whether Epstein presents a flight risk, which is supposed to be the main issue in bail hearings. The defense was prepared to offer a $77 million guarantee of Epstein’s presence at trial, which sounds impressive until one learns that Epstein holds over $200 million in real estate alone. Prosecutors believe they have detailed his financial records well enough to establish that Epstein’s net worth is above $500 million, which makes $77 million a not-unreasonable price tag for an escape from a lifetime in prison, especially for a 66-year-old man.
Epstein’s attorneys offered up some sweeteners for that bail package today, perhaps keeping Berman’s track record on bail in mind:
Seeking their client’s release from pre-trial detention, Epstein’s lawyers have said he is willing to pay for armed guards to monitor him round-the-clock at his Upper East Side home, which has been valued at $77 million.
In a court filing last week, the lawyers said Epstein has had a “spotless 14-year record of walking the straight and narrow” since he pleaded guilty to similar offenses in Florida, and had shown “perfect compliance with onerous sex offender registration requirements.”
Federal prosecutors have argued that Epstein must remain in jail to prevent him from fleeing the country, citing his wealth and connections overseas, as well as the allegations he made large payments to potential witnesses.
Berman hasn’t been a big fan of such proposals in the past:
In 2016, Berman rejected a bail proposal from Turkish-Iranian gold trader Reza Zarrab that would have let him remain in a leased apartment under the watch of privately funded guards, saying wealthy defendants should not be allowed to “buy their way out of prison by constructing their own private jail.”
That seems to be the general idea here, too. So why didn’t Berman just reject Epstein’s application out of hand? Why wait three days to make a decision on what seems to be a straightforward bail question on yet another wealthy defendant proposing to construct his own jail?
One has to wonder whether Berman’s looking at the indictment itself. Epstein’s defense team is challenging it as a violation of the Department of Justice’s agreement in 2007 with Epstein. Former federal prosecutor Andrew McCarthy thinks that they have a good argument, and that their chances of getting this indictment tossed are better than people might suspect:
Acosta’s agreement did not restrict itself to Epstein’s activities in Florida. It acknowledged that the SD-Florida and the FBI — our premier federal law-enforcement agency, which has nationwide scope and routinely conducts multi-district investigations — had been investigating offenses Epstein committed against the United States.
Moreover, sex trafficking and related offenses are cognizable federally only if they affect interstate or foreign commerce. That is, Epstein’s conduct necessarily had to have an impact on (and thereby be prosecutable in) multiple states and multiple federal districts in order to be prosecutable by the Justice Department. As if that were not obvious enough, the agreement makes it explicit. In addition to spelling out that the Section 1591 sex-trafficking conduct affected interstate commerce, Acosta says that the federal investigation conducted by his office and the FBI included all potential “offenses that may have been committed by Epstein against the United States” and that involved:
• Conspiring with others to use, and actually using, facilities in interstate and foreign commerce to induce minor females to engage in prostitution; and
• Conspiring with others to travel, and actually traveling, in interstate and foreign commerce for the purpose of engaging in illicit sexual conduct.
The non-pros further elaborates that Epstein’s conduct occurred with persons “known and unknown” to investigators. Implicitly, this is a statement that, while the government was aware of the kind of offenses that Epstein had committed, its evidence was not so comprehensive that it was aware of every single person involved. That is, with respect to Epstein, the agreement was meant to encompass all instances of the offenses described, even if the investigation had not yet identified all potential conspirators and victims.
McCarthy also points out that the DoJ’s argument about separate districts might not fly with federal courts, either. The Supreme Court took a pass on broadening the double-jeopardy prohibition in Gamble, McCarthy notes, but only on the basis of separate sovereigns. Both the state and the federal courts can try the same person separately for the same offense, but two courts of the same sovereign cannot under Justice Samuel Alito’s reasoning in Gamble. This looks clearly like the latter, not the former, and the DoJ’s argument on jurisdiction might land with a thud.
Perhaps Berman’s already looking at this issue in regard to bail. If Berman thinks the indictment is likely to get tossed out, and perhaps all of the evidence turned up in the subsequent search with it, he’s a lot more likely to let Epstein build his private jail in the meantime. That seems to be the only question worth considering for three days on this bail request.
In the meantime, the Epstein victims who showed up today to demand his continued detention have to worry. However, federal prosecutors are no doubt hoping to find more victims from after the plea deal and the ability to amend or replace the first indictment. They’d better get enough together by Thursday morning, though, or those potential new complainants might get cold feet if Epstein walks.