Jeffrey Epstein (center) appears in court in West Palm Beach, Fla., July 30, 2008. (Uma Sanghvi/Palm Beach Post via Reuters)

Should he have been in federal custody in the first place?

‘It should also be borne in mind that the Court has not (yet) been presented with a motion to dismiss the Indictment.” Manhattan federal judge Richard M. Berman thought that fact was important enough to warrant mention in the very first paragraph of his 33-page opinion explaining his denial of bail to Jeffrey Epstein three weeks ago.


No such motion will ever be addressed.

Epstein appears to have committed suicide overnight. The 66-year-old, a millionaire many times over and a registered sex offender with influential political connections, was pronounced dead at a downtown hospital early Saturday morning. He had been rushed there in cardiac arrest from the Metropolitan Correctional Center, where he had been remanded pending trial on sex trafficking charges.

Two weeks ago, there were reports that Epstein may have attempted to take his own life. At the time, he was found in his cell, unconscious and with neck injuries, though there was also some suspicion that he had been assaulted by another inmate. He was placed on suicide watch, but this was reportedly lifted a few days ago. An autopsy will be performed to determine the cause of death. Obviously, there are many pressing questions about the conditions of Epstein’s incarceration.

But why was he in custody rather than on bail?



The government sought his detention. Epstein countered with the offer of a very substantial bail package, including numerous monitoring conditions and co-signing sureties, meant to assure the court that he would neither abscond nor obstruct the proceedings. Judge Berman sided with prosecutors, finding Epstein was a danger to the community and a flight risk.

Despite the Constitution’s presumption of innocence and prohibition on excessive bail, the federal bail act (Section 3142 of the criminal code) creates a presumption in favor of remand when a defendant has been indicted for a sex-trafficking offense involving a minor victim. That presumption, coupled with the moving testimony of two victims at the detention hearing, convinced Judge Berman to keep Epstein in custody. The court was also persuaded by reports that Epstein (a) had abused release conditions when he was prosecuted in Florida a dozen years ago, (b) had continued preying on young girls, (c) had a history (including recently) of intimidating and bribing potential witnesses, (d) had failed to report to New York authorities as designated sex offenders are required to do, and (e) had patent means to flee the United States that were supplemented by what appeared to be a flight kit stashed in a safe at his home — complete with a phony passport, cash, and gems.

All the same, the judge’s mention of the lack of a defense motion to dismiss the indictment is notable.



As we’ve previously recounted, Epstein was prosecuted in Florida in 2007. He pled guilty to two state-law prostitution charges in exchange for a non-prosecution agreement (“non-pros”) with federal authorities in Palm Beach (the Southern District of Florida — “SD-Florida”). The non-pros purported to give Epstein immunity from prosecution for federal sex-trafficking offenses from 2001 through 2007.

For all the press coverage depicting Epstein as a non-stop sex offender, the new 2019 indictment filed by federal prosecutors in Manhattan (the Southern District of New York — “SDNY”) did not charge him with any recent sex-trafficking crimes. To the contrary, it alleges that, between 2002 and 2005, he committed two felony violations of a law (Section 1591 of the penal code) that forbids enticing minors to engage in commercial sex acts.

Epstein’s lawyers publicly claimed that the new SDNY indictment was an attempt to prosecute conduct that had been covered by the SD-Florida non-pros. These claims were not posited in a formal motion, so SDNY prosecutors have not formally responded. But they have reportedly taken the positions that they were not bound by the SD-Florida non-pros and that, in any event, the two Section 1591 offenses charged in the SDNY indictment were separate criminal transactions that were not covered by the non-pros, notwithstanding its explicit mention of Section 1591 offenses.

It appeared, to me at least, that this was going to be a hotly disputed issue in the SDNY case. Judge Berman’s observation that he had not “(yet)” been presented with a motion to dismiss the indictment certainly suggests that he expected Epstein’s counsel would file such a motion — i.e., a claim that the charges in the new indictment were precluded by the 2007 non-pros.


This issue has added significance now. If the new SDNY charges were improper, that would mean Epstein should not have been indicted, much less arrested and detained — and if he hadn’t been, he would not have died in the federal government’s custody.

I have been puzzled about why Epstein did not immediately seek dismissal of the charges. Such a motion would have staked out the position that the indictment, the arrest, the setting of bail, and his detention were all illegitimate. It seemed to me that, even if the court did not agree to fast-track consideration of such a dismissal motion, it could only help Epstein in his desperate bail application. That is, if Epstein’s counsel could make a colorable argument that the indictment might be improper, that would strongly suggest that Epstein did not have an incentive to flee or obstruct the proceedings. When a court has real doubt about the likelihood that a defendant will be convicted at the end of the case, it is more disposed against pretrial detention, even if there is a statutory presumption favoring remand over release.

To be clear, Epstein always had top-flight legal representation. His attorneys knew the ins and outs of his case better than I ever will. They undoubtedly knew not only what the government was in a position to prove today, but what it would likely be able to prove in the future. It may be that, while Epstein’s lawyers attacked the legitimacy of the prosecution for public consumption, they privately believed a dismissal motion would be meritless. Perhaps they were convinced that the government was in a position to add new charges that were clearly outside the scope of the non-pros. Or perhaps they believed the prosecutors were right about the non-pros — i.e., it did not bind the SDNY and the crimes newly charged really were different from those covered in the non-pros.

That is to say: There is probably a good explanation for the lack of a motion to dismiss. Nevertheless, given Epstein’s death in federal custody after the court turned a deaf ear to his plea to be released on stringent conditions, his lawyers should expect to be asked why they did not seek dismissal right away. The Justice Department will also be asked to outline why its charges were not barred by the non-pros and whether prosecutors were in a position to bring new charges against Epstein that were clearly outside the scope of the non-pros.

Epstein should not have died in federal custody — the Justice Department’s Bureau of Prisons will have to explain how someone under their care, and recently on suicide watch, was able to commit suicide. But the other lingering question is: Should he have been in federal custody in the first place?