EFTA00028974.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
:
:
v.
:
20 Cr. 330 (AJN)
:
GHISLAINE MAXWELL,
:
:
Defendant.
:
:
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REPLY MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER MOTION TO DISMISS COUNTS ONE THROUGH FOUR OF
THE SUPERSEDING INDICTMENT FOR LACK OF SPECIFICITY

Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED]
[REDACTED]

Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED]
[REDACTED]

Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED]
[REDACTED]

Attorneys for Ghislaine Maxwell

EFTA00028974

The government continues to stonewall Ms. Maxwell’s requests for clarity about what it
claims she did to justify her continued incarceration and prosecution. Although the government
has dumped thousands of pages of irrelevant discovery from inapplicable time periods on Ms.
Maxwell and her counsel, it refuses to provide the most basic information about the allegations
in Counts One through Four: who, what, when, and how. Because Counts One through Four of
the superseding indictment (“Indictment”) lack the basic factual information necessary for Ms.
Maxwell to prepare her defense, and the government refuses to provide any meaningful
discovery, the Court should either dismiss these counts or direct the government to answer Ms.
Maxwell’s requests for particularity.

I. The Indictment Lacks the Necessary Specificity

The government attempts to justify some of the Indictment’s deficiencies, e.g., lack of
names and dates, through citation to obviously inapplicable cases.

“First,” the government offers United States v. Stringer, 730 F.3d 120, 124 (2d Cir.
2013), for the proposition that “the use of pseudonyms to refer to minor victims of the charged
conduct does not warrant dismissal of the indictment.” Resp. at 153. The government fails to
point out, however, that Stringer was a fraud case in which the conduct was alleged to have
occurred over a 7-month period. The indictment was brought within a few years, not decades, of
the alleged crime, and the identity of the two people whose names were used in connection with
the fraud “had been revealed in the documents disclosed by the government a year” before trial.
Id. at 123.

United States v. Kidd, 386 F. Supp. 3d 364, 367 (S.D.N.Y. 2019), is equally
unpersuasive. Kidd was indicted in 2018 for crimes alleged to have occurred as late as 2018.
The case involved two alleged victims and the government produced sufficient discovery to
obviate the need for a bill of particulars. Id. at 368, 370.

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The Indictment against Ms. Maxwell registers a 98 on the opacity chart. Instead of two
alleged “victims,” the indictment here has different categories with three people being identified
as “Minor Victims,” even though they are not minors. Additionally, an unknown number of
unexplained categories of unidentified human beings appear in the Indictment: “multiple minor
girls,” “victims,” “minor victims,” “minor victims described herein,” “some of Epstein’s minor
victims,” and “multiple minor victims.” It is a mystery if the government claims that these
alleged people are the same, part of the alleged crime, or surplusage. Multiple “among other
thing” and “means and methods” alleged acts are bandied about in the indictment such as:
assisted, facilitated, contributed, recruit, groom, befriend, spending time, being present, help, etc.
This Indictment is subject to considerable interpretation and manipulation. Ms. Maxwell cannot
prepare a defense without knowing who her accusers are and whether they are limited to the
alleged “Minor Victims” or the rest of the universe.

“Second,” the government relies on the general proposition that “Courts in the Second
Circuit have consistently upheld indictments containing a range of time rather than a specific
date.” Resp. at 154. Again, the cited cases are easily distinguishable. Kidd involved a date range
ending in the year of indictment. Moreover, the quoted general language from Kidd, 386 F. Supp.
3d 364, 369, is incomplete. The court in Kidd explains the range it is referring to by the
following reference: “See United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987)
(holding that ‘on or about June 1984’ put a defendant on notice for potential crimes in July or
early August of 1984 ‘because the [G]overnment is not required to prove the exact date, if a date
reasonably near is established’).” Id. The government fails to include this language because it is
inapposite to the suggestion that there is anything “routine” about a date range beginning 27

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years ago that may be applicable to dozens of people in multiple places including a foreign
country.

United States v. Vickers, No. 13-CR-128-A, 2014 WL 1838255, at *1 (W.D.N.Y. May 8,
2014), also does not help the government. This case concerned a one count indictment in 2013. It
is patently clear from the opinion by the district court that the statements from the alleged victim
detailing the allegation had been provided to the defendant and the court which noted that the
lengthy recitation of facts in the opinion “are taken from the allegations set forth in the Affidavit
of Federal Bureau of Investigation Special Agent [REDACTED] submitted in support of the
May 16, 2013 Criminal Complaint (Dkt.# 1), the Indictment (Dkt.# 8), and the government’s
response to the instant motions (Dkt.# 20).” 2014 WL 1838255, at *3 n.1. The dates and times
of the alleged conduct would have been fairly easy to identify given the detail provided in
discovery. Here, Ms. Maxwell has not been provided with any relevant statements by the
government or its witnesses.

The government’s attempt to hide behind the general proposition that children cannot be
expected to remember dates also fails. Resp. at 155. The alleged victims here are not children,
they are adults. Moreover, a review of the case relied on by the government, United States v.
Young, No. 08-CR-285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008), demonstrates
the proper way to charge these types of allegations (which is not as the government did here):

Count One alleges that Defendant sexually abused Victim One, aged fourteen at
the time, during the daytime on a Saturday in or about the Fall of 2006; Count
Two alleges that Defendant sexually abused Victim One, aged fifteen at the time,
during the daytime on a Saturday in or about September 2007; and Count Three
alleges that Defendant sexually abused Victim Two, aged sixteen at the time, on
an evening in or about the Summer of 2006. Stated differently, the three counts
each specify a particular time of day (daytime or evening), and feature variances
in date ranges stretching from roughly four days in Count Two to thirteen days in
Count One to four months in Count Three.

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Thus, the court found: the indictment “contains dates ranges for each count, stretching from
approximately four days to four months. These date ranges are well within the boundaries
permitted by the Second Circuit and other federal courts, and have been supplemented with
additional details provided by the Government. Id., at *4 (emphasis added).

To date, the only time the government has “supplemented” any information about the
accusations is when it is attempting to excuse some failure.

Here, the accusers have given statements to the government. Accuser-1 gave a statement
to the government in 2006. All three accusers have made claims against the Epstein Estate.
Presumably, the Accusers had to tell the Estate when and where any alleged abuse by Epstein
occurred. Accordingly, this is not a situation where children do not remember things. This is a
situation where the government has refused to provide basic necessary information in an attempt
to prejudice Ms. Maxwell’s defense.

“Third,” the indictment is not “clear” (Resp. at 155); it was purposely drafted to
maximize charges and minimize clarity. For example, the photograph of Ms. Maxwell in the
indictment is not from the time-period alleged. The pictures of the various properties were not
included for specificity, they were included to maximize pretrial prejudice. The indictment is
full of “weasel words” which are words the meaning of which are “malleable to a point where
they mean what the user wants them to mean in any given situation; they have no meaning of
their own.” Abstrax, Inc. v. Hewlett-Packard Co., No. 2:14-CV-158-JRG, 2014 WL 5677834, at
*2 (E.D. Tex. Nov. 4, 2014). For example: “up to and including at least in or about,”
“contributed,” “among other things,” “for example in some instances,” “certain victims,” and
“groomed and/or abused at multiple locations including the following.” Ms. Maxwell is at a loss
to understand what she is charged with and when it is alleged to have happened. She can guess at

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names, but given the government’s recent harbinger of a superseding indictment, likely to
attempt to fix some of these problems, Ms. Maxwell is wasting time and money playing whack-
a-mole with this Indictment.

II. This Indictment Does Not Satisfy Minimal Notice Requirements

In Hamling v. United States, 418 U.S. 87, 117-18 (1974), the United States Supreme
Court explained the circumstances in which an indictment simply setting forth the offense in the
words of the statute may not suffice:

Our prior cases indicate that an indictment is sufficient if it, first, contains the
elements of the offense charged and fairly informs a defendant of the
charge against which [s]he must defend, and, second, enables [her] to plead an
acquittal or conviction in bar of future prosecutions for the same offense. It is
generally sufficient that an indictment set forth the offense in the words of the
statute itself, as long as those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements necessary to
constitute the offence intended to be punished. Undoubtedly the language of the
statute may be used in the general description of an offence, but it must be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offence, coming under the general description, with
which [she] is charged. (cleaned up).

The government has failed to provide an indictment that “directly,” “expressly,” and “without
uncertainty or ambiguity” sets forth the allegations against her. The alleged facts are vague and
illusory and no meaningful discovery has been provided. Accordingly, Ms. Maxwell cannot
adequately defend herself, in violation of the Fifth and Sixth Amendments to the United States
Constitution.

CONCLUSION

Because Counts One through Four of the Indictment lack the basic factual information
necessary for Ms. Maxwell to prepare her defense, and the government refuses to provide any
meaningful discovery, the Court should either dismiss these counts or direct the government to
answer Ms. Maxwell’s requests for particularity.

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Dated: March 15, 2021

Respectfully submitted,

s/ Jeffrey S. Pagliuca
Jeffrey S. Pagliuca (pro hac vice)
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED]
[REDACTED]

Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED]
[REDACTED]

Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED]
[REDACTED]

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 Counts One through Four of the Superseding Indictment for
Lack of Specificity upon the following:

[REDACTED]
[REDACTED]
[REDACTED]
U.S. Attorney’s Office, SDNY
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]

s/ Christian R. Everdell

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