EFTA00028968.pdf
260 KB
Extraction Summary
5
People
6
Organizations
1
Locations
1
Events
3
Relationships
4
Quotes
Document Information
Type:
Legal pleading (reply memorandum)
File Size:
260 KB
Summary
This document is a Reply Memorandum filed on March 15, 2021, by Ghislaine Maxwell's defense team in the Southern District of New York. The defense argues that Counts 1 and 3 of the Superseding Indictment are multiplicitous (charging the same crime twice based on identical facts) and requests the Court order the government to elect one count to prosecute and dismiss the other prior to trial to avoid jury prejudice. The filing contends that the government has failed to prove the existence of two distinct conspiracies.
People (5)
| Name | Role | Context |
|---|---|---|
| Ghislaine Maxwell | Defendant |
Subject of the criminal case and the motion to dismiss multiplicitous counts.
|
| Jeffrey S. Pagliuca | Attorney |
Defense counsel for Ghislaine Maxwell, Haddon, Morgan & Foreman P.C.
|
| Laura A. Menninger | Attorney |
Defense counsel for Ghislaine Maxwell, Haddon, Morgan & Foreman P.C.
|
| Christian R. Everdell | Attorney |
Defense counsel for Ghislaine Maxwell, Cohen & Gresser LLP; signed the Certificate of Service.
|
| Bobbi C. Sternheim | Attorney |
Defense counsel for Ghislaine Maxwell, Law Offices of Bobbi C. Sternheim.
|
Timeline (1 events)
2021-03-15
Locations (1)
| Location | Context |
|---|---|
Relationships (3)
Listed as Attorney for Ghislaine Maxwell
Listed as Attorney for Ghislaine Maxwell
Listed as Attorney for Ghislaine Maxwell
Key Quotes (4)
"The government does not dispute that Counts 1 and 3 charge Ms. Maxwell with the same crime, conspiracy in violation of 18 U.S.C. § 371, nor that the charges are based on identical facts."Source
EFTA00028968.pdf
Quote #1
"Effectively conceding that the counts are multiplicitious, the government argues that the motion is 'premature,' focusing only on the jeopardy problem that would occur if Ms. Maxwell were convicted on both counts at trial and ignoring the prejudice to Ms. Maxwell attendant to the overcharging."Source
EFTA00028968.pdf
Quote #2
"Ms. Maxwell has been charged with the identical conduct in Counts 1-4. These multiple counts falsely suggest to the jury that Ms. Maxwell is alleged to have committed more than one crime."Source
EFTA00028968.pdf
Quote #3
"The defect in the Indictment is patent and prejudicial, and the Court should remove the defect by requiring the government to elect which of the conspiracy charges it will move forward with and dismiss the remaining conspiracy charge."Source
EFTA00028968.pdf
Quote #4
Full Extracted Text
Complete text extracted from the document (7,444 characters)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ x
UNITED STATES OF AMERICA,
:
:
v.
: 20 Cr. 330 (AJN)
:
GHISLAINE MAXWELL,
:
:
Defendant.
:
:
:
------------------------------------------------------------ x
UNITED STATES OF AMERICA,
:
:
v.
: 20 Cr. 330 (AJN)
:
GHISLAINE MAXWELL,
:
:
Defendant.
:
:
:
------------------------------------------------------------ x
REPLY MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT
OF HER MOTION TO DISMISS EITHER COUNT ONE OR COUNT THREE OF THE
SUPERSEDING INDICTMENT AS MULTIPLICITOUS
OF HER MOTION TO DISMISS EITHER COUNT ONE OR COUNT THREE OF THE
SUPERSEDING INDICTMENT AS MULTIPLICITOUS
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED BLOCK]
[REDACTED BLOCK]
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED BLOCK]
[REDACTED BLOCK]
Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED BLOCK]
[REDACTED BLOCK]
COHEN & GRESSER LLP
[REDACTED BLOCK]
[REDACTED BLOCK]
Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED BLOCK]
[REDACTED BLOCK]
Law Offices of Bobbi C. Sternheim
[REDACTED BLOCK]
[REDACTED BLOCK]
Attorneys for Ghislaine Maxwell
EFTA00028968
The government does not dispute that Counts 1 and 3 charge Ms. Maxwell with the same
crime, conspiracy in violation of 18 U.S.C. § 371, nor that the charges are based on identical
facts. Effectively conceding that the counts are multiplicitious, the government argues that the
motion is “premature,” focusing only on the jeopardy problem that would occur if Ms. Maxwell
were convicted on both counts at trial and ignoring the prejudice to Ms. Maxwell attendant to the
overcharging. The government argues that the Court should defer ruling on this motion until
“after the completion of trial” which will “ensure” a full factual record. Resp. at 172. The
government is wrong.
crime, conspiracy in violation of 18 U.S.C. § 371, nor that the charges are based on identical
facts. Effectively conceding that the counts are multiplicitious, the government argues that the
motion is “premature,” focusing only on the jeopardy problem that would occur if Ms. Maxwell
were convicted on both counts at trial and ignoring the prejudice to Ms. Maxwell attendant to the
overcharging. The government argues that the Court should defer ruling on this motion until
“after the completion of trial” which will “ensure” a full factual record. Resp. at 172. The
government is wrong.
The Court can, and should, grant this Motion, direct the government to elect which of the
conspiracy charges it will prosecute, and dismiss the other. The identical facts are plainly alleged
in the superseding indictment (“Indictment”), and the government has presented no factual
distinction in its response. Accordingly, no additional record is necessary and very clear
authority exists supporting the relief requested by Ms. Maxwell, dismissal of one of the
multiplicitous counts. “District courts presented with what are recognized before or during trial
to be multiplicitous indictments will avoid any problem by requiring the prosecution to elect
between counts charged rather than by merging the counts at sentencing.” United States v.
Polizzi, 257 F.R.D. 33, 36–37 (E.D.N.Y. 2009). The Court should order such an election and
dismissal here.
conspiracy charges it will prosecute, and dismiss the other. The identical facts are plainly alleged
in the superseding indictment (“Indictment”), and the government has presented no factual
distinction in its response. Accordingly, no additional record is necessary and very clear
authority exists supporting the relief requested by Ms. Maxwell, dismissal of one of the
multiplicitous counts. “District courts presented with what are recognized before or during trial
to be multiplicitous indictments will avoid any problem by requiring the prosecution to elect
between counts charged rather than by merging the counts at sentencing.” United States v.
Polizzi, 257 F.R.D. 33, 36–37 (E.D.N.Y. 2009). The Court should order such an election and
dismissal here.
I. The Motion is Not Premature, and the Court has Discretion to Direct Election
and Dismissal Pretrial
and Dismissal Pretrial
The government’s “prematurity” argument is misplaced. Pursuant to Federal Rule of
Criminal Procedure 12(b)(3)(B)(ii), a defendant is required to raise arguments based
on defects in the indictment, including “charging the same offense in more than one count
(multiplicity),” by pretrial motion “if the basis for the motion is then reasonably available and the
Criminal Procedure 12(b)(3)(B)(ii), a defendant is required to raise arguments based
on defects in the indictment, including “charging the same offense in more than one count
(multiplicity),” by pretrial motion “if the basis for the motion is then reasonably available and the
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motion can be determined without a trial on the merits.” See United States v. Dervishaj, 787 F.
App’x 12, 15 (2d Cir. 2019), cert. denied, 140 S. Ct. 2548 (2020) (multiplicity argument waived
because the defendant failed to raise the issue by pretrial motion).
App’x 12, 15 (2d Cir. 2019), cert. denied, 140 S. Ct. 2548 (2020) (multiplicity argument waived
because the defendant failed to raise the issue by pretrial motion).
The government also ignores ample Second Circuit authority that authorizes the relief
requested by Ms. Maxwell:
requested by Ms. Maxwell:
The defendant may move to have the prosecution elect among the multiplicitous
counts, with all but the one elected dismissed. This is a matter for trial court
discretion, and is most appropriate when the mere making of the charges would
prejudice the defendant with the jury.
counts, with all but the one elected dismissed. This is a matter for trial court
discretion, and is most appropriate when the mere making of the charges would
prejudice the defendant with the jury.
United States v. Reed, 639 F.2d 896, 905 (2d Cir. 1981).1
The reason for this discretion is clear:
The law protects an individual against multiplicitous indictments to avoid multiple
sentences for a single offense and to eliminate the prejudice which such indictments
may generate in the eyes of a jury. For when an indictment charges numerous
offenses arising from the same conduct it may falsely suggest to a jury that a
defendant has committed not one but several crimes.
sentences for a single offense and to eliminate the prejudice which such indictments
may generate in the eyes of a jury. For when an indictment charges numerous
offenses arising from the same conduct it may falsely suggest to a jury that a
defendant has committed not one but several crimes.
Once such a message is conveyed to the jury, the risk increases that the jury will be
diverted from a careful analysis of the conduct at issue. Compromise verdicts or
assumptions that, with so many charges pending the defendant must be guilty on at
least some of them, pose significant threats to the proper functioning of the jury
system.
diverted from a careful analysis of the conduct at issue. Compromise verdicts or
assumptions that, with so many charges pending the defendant must be guilty on at
least some of them, pose significant threats to the proper functioning of the jury
system.
United States v. Clarridge, 811 F. Supp. 697, 702 (D.D.C. 1992) (cleaned up).2
Ms. Maxwell has been charged with the identical conduct in Counts 1-4. These multiple
counts falsely suggest to the jury that Ms. Maxwell is alleged to have committed more than one
crime. The defect in the Indictment is patent and prejudicial, and the Court should remove the
counts falsely suggest to the jury that Ms. Maxwell is alleged to have committed more than one
crime. The defect in the Indictment is patent and prejudicial, and the Court should remove the
__________________________________________________________________
1 See also United States v. Ketchum, 320 F.2d 3, 7 (2d Cir.1963); United States v. Carter, 576
F.2d 1061, 1064 (3d Cir.1978); and United States v. Langford, 946 F.2d 798, 802 (11th Cir.1991).
2 See also United States v. Chacko, 169 F.3d 140, 145 (2d Cir.1999) (A multiplicitous indictment
creates an exaggerated impression of a defendant's criminal activity by charging “an offense multiple
times, in separate counts, when, in law and fact, only one crime has been committed.”).
1 See also United States v. Ketchum, 320 F.2d 3, 7 (2d Cir.1963); United States v. Carter, 576
F.2d 1061, 1064 (3d Cir.1978); and United States v. Langford, 946 F.2d 798, 802 (11th Cir.1991).
2 See also United States v. Chacko, 169 F.3d 140, 145 (2d Cir.1999) (A multiplicitous indictment
creates an exaggerated impression of a defendant's criminal activity by charging “an offense multiple
times, in separate counts, when, in law and fact, only one crime has been committed.”).
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defect by requiring the government to elect which of the conspiracy charges it will move forward
with and dismiss the remaining conspiracy charge.
with and dismiss the remaining conspiracy charge.
II. The Government Failed to Meet its Burden of Establishing the Two Alleged
Conspiracies Are Distinct.
Conspiracies Are Distinct.
To guard against the “well recognized danger” that prosecutors can easily “draft
indictments that allege what appear to be separate conspiracies but may actually be parts of an
overall conspiracy,” where a defendant “makes a non-frivolous showing that two indictments in
fact charge only one conspiracy, the burden shifts to the prosecution to show, by a
preponderance of the evidence, that there are in fact two distinct conspiracies.” United States v.
Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (citing United States v. DelVecchio, 800 F.2d 21, 22 (2d
Cir. 1986)). As demonstrated in Ms. Maxwell’s moving papers, application of the Korfant
multifactor test results in an identical overlap of alleged: participants, time, similarity of
operation, overt acts, geography, objectives, and interdependence. Mot. at 2. The government has
failed to proffer any evidence to the contrary, and Ms. Maxwell’s Motion should be deemed
confessed.
indictments that allege what appear to be separate conspiracies but may actually be parts of an
overall conspiracy,” where a defendant “makes a non-frivolous showing that two indictments in
fact charge only one conspiracy, the burden shifts to the prosecution to show, by a
preponderance of the evidence, that there are in fact two distinct conspiracies.” United States v.
Lopez, 356 F.3d 463, 467 (2d Cir. 2004) (citing United States v. DelVecchio, 800 F.2d 21, 22 (2d
Cir. 1986)). As demonstrated in Ms. Maxwell’s moving papers, application of the Korfant
multifactor test results in an identical overlap of alleged: participants, time, similarity of
operation, overt acts, geography, objectives, and interdependence. Mot. at 2. The government has
failed to proffer any evidence to the contrary, and Ms. Maxwell’s Motion should be deemed
confessed.
CONCLUSION
For the reasons stated in Ms. Maxwell’s original Motion and this Reply, she requests that
the Court enter an order requiring the government to elect the conspiracy charge it intends to
prosecute and dismiss the remaining count.
the Court enter an order requiring the government to elect the conspiracy charge it intends to
prosecute and dismiss the remaining count.
Dated: March 15, 2021
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Respectfully submitted,
s/ Jeffrey S. Pagliuca
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED BLOCK]
[REDACTED BLOCK]
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED BLOCK]
[REDACTED BLOCK]
Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED BLOCK]
COHEN & GRESSER LLP
[REDACTED BLOCK]
Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED BLOCK]
[REDACTED BLOCK]
Law Offices of Bobbi C. Sternheim
[REDACTED BLOCK]
[REDACTED BLOCK]
Attorneys for Ghislaine Maxwell
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Certificate of Service
I hereby certify that on March 15, 2021, I served by email, pursuant Rule 2(B) of the
Court’s individual practices in criminal cases, the Reply Memorandum of Ghislaine Maxwell in
Support of Her Motion to Dismiss Either Count One Or Count Three of the Superseding
Indictment as Multiplicitous upon the following:
Court’s individual practices in criminal cases, the Reply Memorandum of Ghislaine Maxwell in
Support of Her Motion to Dismiss Either Count One Or Count Three of the Superseding
Indictment as Multiplicitous upon the following:
U.S. Attorney’s Office, SDNY
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
[REDACTED BLOCK]
s/ Christian R. Everdell
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