Double Jeopardy in the Epstein Sex Crimes Case


The Fifth Amendment of the United States Constitution states that those acquitted or convicted of a particular offense cannot be tried a second time for the same offense.  This is known as the Double Jeopardy Clause.  The function of the clause is to prevent a person from twice being put in jeopardy for the same offense.  While the concept is simple, the application can be complicated.

Epstein’s Plea Deal

Florida state prosecutors charged Jeffrey Epstein with sex crimes over 10 years ago.  Epstein had great lawyers, and those lawyers worked out a deal in 2007 where he would plead guilty in state court with a non-prosecution agreement in federal court.  Epstein and his attorneys understood the deal to encompass all criminal liability and, in fact, the agreement stated that Epstein seeks to resolve “globally” his state and federal criminal liability.  Now federal prosecutors in New York are attempting to prosecute Epstein for the same charges that the plea agreement resolved in Florida a decade prior.

Can They Prosecute Epstein in Both State and Federal Court?

Yes.  In the June 17, 2019, decision of Gamble v. United States, the United States Supreme Court made it clear that the Double Jeopardy Clause does not prevent separate state and federal prosecutions for the same offense.  This is known as the Dual Sovereignty Doctrine.  The federal government may prosecute a defendant under federal law even if the state prosecutes him for the same criminal conduct under a state statute.  The reason why a person may be convicted of the same conduct in both state and federal courts is because the state and the feds are different prosecuting entities, or sovereigns.

The issue in Epstein’s case is whether the agreement with the federal prosecutors in Florida precludes federal prosecutors in New York for charging the same offense based on new evidence.

New Evidence Does Not Always Equate to New Crimes

It appears in prosecutors found additional evidence of Epstein’s sex crimes in New York.  However, new evidence does not necessarily equate to new crimes.  Epstein’s plea agreement not only indicated that it was a global resolution, but also that it pertained to victims known and unknown.  In other words, when Epstein worked out his deal, he expected he would never be prosecuted for the same crimes in New York or anywhere else.

Can the Federal Government Prosecute Someone for the Same Crime in Two Federal Districts?

The United States is one sovereign.  The most common reason the federal government has jurisdiction in sex crimes is because the crime occurs in multiple states or they affect interstate or foreign commerce.  This often means that federal crimes could be pursued in more than one federal jurisdiction.  Interstate commerce implies that the crime occurred in multiple states.  However, the United States Court of Appeals for the Second Circuit has found that a plea agreement in one federal district does not bind another federal district.  For example, if a person entered into a plea agreement in the Federal District of New York, that agreement may not be binding on the United States Attorney’s Office in the Federal District of Nebraska. In fact, most plea agreements for federal crimes in Nebraska specifically state that the agreement is not binding on any other Federal District.

The Importance of a Good Plea Agreement

Most federal cases result in guilty pleas rather than jury trials.  In Epstein’s case, his attorneys wisely sought an agreement that protected him in both state and federal courts.  While in most instances the same crime is not pursued in both state and federal court, it can happen. For example, if a man traveling from California to Chicago with 1,500 pounds of marijuana is charged by state prosecutors with possession with intent to distribute in Nebraska state court, the federal government may later indict on a separate federal drug conspiracy charge.  In most instances, when the federal government files the federal conspiracy case, the state case is dropped.  However, in 1971, in the Nebraska case of State v. Pope, the court made it clear that federal charges did not preclude the State from going forward with its own criminal charges for substantially similar offenses.

How can the Government bring Charges 10 Years Later?

This question goes beyond the double jeopardy issue.  While Epstein’s lawyers will argue that jeopardy has attached the moment he plead guilty in Florida and the judge accepted his plea, federal prosecutors will argue further prosecution is not barred.  However, some people ask how Epstein could be prosecuted for an offense over 10 years old?  Both state and federal criminal crimes have statutes of limitations on certain crimes to protect the accused’s right to a fair trial and a right to a speedy trial.  However, more serious crimes have much longer statutes of limitations or none at all.  For example, in Nebraska there is no statute of limitations for the crimes of rape (with penetration) and murder. This means a crime that occurred decades ago could still be charged by prosecutors.

Protecting Your Constitutional Rights

The United States Constitution affords great protection to its citizens.  Not only does the government bear the burden of proving the case beyond a reasonable doubt, but under the Double Jeopardy Clause they only get one shot at trying the case.  As demonstrated by this article, simple concepts like double jeopardy are not always simple when applied.  If you are facing a criminal charge, please contact Berry Law.

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