The long-shot effort by Jeffrey Epstein, an accused sex trafficker, to win release from jail on bail by promising to personally pay for security to monitor him got even tougher Thursday with a new federal appeals court decision, which blasted such cushy arrangements in most cases.
The ruling in the 2nd Circuit Court of Appeals "expressly" bars a "two-tier bail system" in which "wealthy defendants are released to self-funded private jails" while "defendants of lesser means are detained pending trial."
"Such a two‐tiered system would 'foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy,' " the ruling by a three-judge appeals panel said.
The decision upholding a bail denial came in a criminal case in Brooklyn, New York, federal court that is unrelated to the case of Epstein, a former friend of Presidents Donald Trump and Bill Clinton.
But the ruling came a week after Epstein filed his own appeal to the 2nd Circuit after a Manhattan federal judge denied his request to be released on bail of upward of $100 million. Epstein's lawyers had told that judge he would be willing to pay for security guards to make sure he complied with a release into home confinement.
Epstein is currently being held in a federal jail in lower Manhattan, where he was found mysteriously injured last week and later placed on suicide watch.
The appeals panel in the other case said that "if a similarly situated defendant of lesser means would be detained, a wealthy defendant cannot avoid detention by relying on his personal funds to pay for private detention."
But the panel said there are some circumstances in which the Bail Reform Act allows a judge to release a defendant pending trial with a condition that includes the defendant paying for private armed security guards to monitor him.
Such a condition "may be appropriate where the defendant is deemed to be a flight risk primarily because of his wealth," the panel noted.
"In other words, a defendant may be released on such a condition only where, but for his wealth, he would not have been detained."
Epstein's lawyer Martin Weinberg had no imediate comment on the ruling.
Epstein's lawyers had suggested to the judge that Epstein could be released into effective house arrest at his massive Manhattan townhouse, where he and visitors could be closely monitored round the clock by private security guards that he paid for, along with an electronic tracking device.
The 66-year-old was arrested in early July after being indicted on charges of sex trafficking of underage girls, and conspiracy to commit such trafficking.
He has pleaded not guilty in the case, where prosecutors say he sexually abused dozens of teenage girls at his townhouse and mansion in Palm Beach, Florida, from 2002 through 2005.
In denying Epstein's bail request two weeks ago, Manhattan federal Judge Richard Berman had said Epstein represented a potential danger to "new victims" from his apparently "uncontrollable" sexual fixation on young girls.
Berman also said that there was a risk Epstein would flee to avoid being tried in the case, where he faces up to 45 years in prison if convicted.
The appeals court decision issued Thursday came in response to an appeal of a May 16 denial of bail in the case of Jean Boustani, a Lebanese national who worked for United Arab Emirates-based shipbuilding company Privinvest Group, who is charged with fraud and money laundering.
Prosecutors in that case said in March that the 40-year-old Boustani helped organize $200 million in bribe and kickback payments "relating to three loans totaling more than $2 billion that were marketed and sold to U.S. victim investors." Boustani has pleaded not guilty to the charges.
Like Epstein, Boustani had asked to be released on bail with conditions "that included home confinement under the supervision of private armed security guards, to be paid for by Boustani," the appeals panel noted.
Prosecutors had opposed granting bail for Boustani, saying he is a flight risk.
The appeals panel in its decision wrote that the 2nd Circuit had previously recognized that "in limited circumstances" a judge may release a defendant subject to home confinement with guards paid for by the defendant.
But the panel noted that in a prior case where that idea was recognized "we had 'no occasion to consider whether it would be contrary to principles of detention and release on bail to allow wealthy defendants to buy their way out by constructing a private jail.'"
The panel went on to say, "We now expressly hold that the Bail Reform Act does not permit a two‐tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self‐funded private jails."
"It is a fundamental principle of fairness that the law protects 'the interests of rich and poor criminals in equal scale, and its hand extends as far to each,'" the panel wrote.
"To interpret the Bail Reform Act as requiring district courts to permit wealthy defendants to employ privately funded armed guards where an otherwise similarly situated defendant without means would be detained would violate this core principle. Such a two‐tiered system would 'foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy.'"
The panel said that the judge did not err in evaluating whether Boustani posed a flight risk, and in determining whether there were any conditions that would reasonably assure his appearance in court.
"It is clear that the District Court did not rely primarily on Boustani's personal wealth in finding that he posed a flight risk," the panel wrote.
"Rather, his wealth was one of many factors the Court considered. A similarly situated defendant of lesser means surely would be detained pending trial, and Boustani is not permitted to avoid such a result by relying on his own financial resources to pay for a private jail."