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Case 1:20-cr-00330-AJN Document 351 Filed 10/15/21 Page 1 of 4
U.S. Department of Justice
United States Attorney
Southern District of New York
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 10/15/21
BY ECF
The Honorable Alison J. Nathan
United States District Court
Southern District of New York
United States Courthouse
40 Foley Square
New York, New York 10007
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
October 15, 2021
For the reasons stated in this letter, the Court finds that
there is good cause for any motion under Federal Rule of
Evidence 412 to be filed no later than October 27, 2021.
Any response will be due November 1, 2021. Any hearing
will tentatively be scheduled for November 5, 2021.
Additional details will be provided if and when any motions
are filed. SO ORDERED.
Ali J. Nathan 10/15/21
Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN)
Dear Judge Nathan:
The Government respectfully submits this letter in response to the Court's Order dated
October 14, 2021 (Dkt. No. 347) ordering the Government to respond to the defendant's October
14, 2021 letter regarding the deadline for filing a motion under Federal Rule of Evidence 412 (Dkt.
No. 345). In particular, the defendant wrote the Court to "confirm that November 15, 2021 is the
deadline for [her] to file a motion under Federal Rule of Evidence 412." (Dkt. No. 345).
Federal Rule of Evidence 412(a)(1) provides that in a case involving allegations of sexual
misconduct, "evidence offered to prove that a victim engaged in other sexual behavior" is
inadmissible. The Rule "'aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated with public disclosure of
intimate sexual details."' United States v. Rivera, 799 F.3d 180, 184 (2d Cir. 2015) (quoting Fed.
R. Evid. 412 advisory committee's note). "The exclusion, however, is not absolute" as Rule 412(b)
provides certain exceptions to this general prohibition in criminal cases. Id. Rule 412 provides
that "[i]f a party intends to offer evidence under Rule 412(b)," the party must file a motion
specifically describing the evidence and the purpose of the evidence, Fed. R. Evid. 412(c)(1)(A),
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and must "do so at least 14 days before trial unless the court, for good cause, sets a different time."
Fed. R. Evid. 412(c)(1)(B) (emphasis added). This language plainly gives the Court authority to
set a "different" time, not necessarily a "later" time, to require the defense to file a Rule 412
motion. See, e.g., Order, United States v. Andrews, No. 19 Cr. 131 (PAE) (S.D.N.Y. Jan. 29, 2020)
(Dkt. No. 287) (setting a Rule 412 deadline of February 13, 2020, for a March 9, 2020 trial); Order,
United States v. Rivera, No. 19 Cr. 131 (PAE) (S.D.N.Y. Apr. 29, 2020) (Dkt. No. 384) (setting a
Rule 412 deadline of October 15, 2020, for a November 9, 2020 trial); United States v. Dupigny,
18 Cr. 528 (JMF) (S.D.N.Y. Oct. 23, 2019) (Dkt. No. 202) (requiring a "finalized proffer of
evidence" the defense sought to admit under Rule 412 by December 6, 2019, in advance of a
January 13, 2020 trial); United States v. Backman, 817 F.3d 662, 669-70 (9th Cir. 2016)
(concluding that district court did not abuse its discretion when setting Rule 412 deadline more
than 14 days before trial and denying request to amend the motion less than 14 days before trial);
United States v. Valenzuela, No. Cr. 07-11, 2008 WL 2824958, at *4 n.12 (CD. Cal. July 21,
2008) ("Good cause exists to advance the deadline for filing a Rule 412(c) motion by eleven days
given the complex nature of the action and the volume of evidence that will likely be presented at
trial."); see also Charles Alan Wright & Arthur R. Miller, 23 Fed. Prac. & Proc. Evid. § 5377 (2d
ed. 2020) (explaining that the text of Rule 412(c)(1)(B) "suggests that the court might require that
the motion be filed earlier than 14 days before trial or might permit the motion to be brought later,
including during trial."). Accordingly, the Government respectfully submits that the express terms
of Rule 412 contemplate that the Court can set an earlier briefing schedule.
A deadline more than two weeks in advance of trial is consistent with the Rule's procedural
requirements. Before admitting evidence under Rule 412, the Court "must conduct an in camera
hearing and give the victim and parties a right to attend and be heard." Fed. R. Evid. 412(c)(2).
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"Given that the hearing provides an opportunity for the Rule 412 movant to detail the evidence he
seeks to admit and for the parties to discuss the propriety of its admission, the notice requirement
should be seen as serving two purposes: 1) aiding the Court in determining the threshold matter of
whether a hearing is necessary; and 2) providing sufficient notice to the nonmovant and victim
alike to prepare for and argue against the necessity of any in camera hearing." United States v.
Smith, 19 Cr. 324 (BAH), 2020 WL 5995100, at *19 (D.D.C. Oct. 9, 2020).
Here, the Government produced to the defense a witness list, Giglio material, Jencks Act
material, and notice pursuant to Federal Rule of Evidence 404(b) by October 11, 2021, or 7 weeks
in advance of trial. The Government understands that the Court's schedule for early disclosure of
Jencks Act material and early motions in limine was designed, in part, to ensure that any significant
issues are resolved substantially in advance of trial. The Government respectfully submits that the
Court has "good cause" to set an earlier deadline in order to ensure that any issues stemming from
Rule 412 litigation are resolved in a timely fashion in advance of trial, including the need for the
Government to investigate and meaningfully respond to such sensitive and important issues. See
Smith, 2020 WL 5995100, at *19.
Additionally, a deadline of 14 days before trial for the defense's Rule 412 motion is not
practical in light of the trial schedule. Under the defense schedule, the defense will file their Rule
412 motion on November 15, 2021, and give notice to both the Government and victims. See Fed.
R. Evid. 412(c)(1)(D). At some point over the following two weeks—during jury selection and
the Thanksgiving holiday—the Government will respond to the motion, and the Court "must
conduct an in camera hearing" that gives the parties and the victims the right to be heard. See Fed.
R. Evid. 412(c)(2). Given that there are multiple victim witnesses and the defense has not yet
notified the Government whether it intends to make a Rule 412 motion as to one or more than one
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of them, there may be a need for multiple such hearings. The Court must then adjudicate the
motion before trial starts or during trial. There is no reason to impose the defense's cramped
schedule on the Court or the parties, particularly where the motion concerns such sensitive issues.
For these reasons, the Government respectfully submits that the Court should maintain the
October 18, 2021 in limine deadline as the deadline for the defense to file a motion under Rule
412, or order that any Rule 412 motion be made, at the latest, by October 25, 2021.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
By: s/ [REDACTED SIGNATURE BLOCK]
Assistant United States Attorneys
Southern District of New York
Cc: Defense counsel (By ECF)
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