EFTA00020261.pdf

Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 1 of 34
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
United States of America,
—v—
Ghislaine Maxwell,
Defendant.
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC N:
DATE FILED: 4/16/21
20-cr-330 (AJN)
OPINION & ORDER
ALISON J. NATHAN, District Judge:
In June 2020, a grand jury returned a six-count indictment charging Ghislaine Maxwell
with facilitating the late financier Jeffrey Epstein's sexual abuse of minor victims from around
1994 to 1997. The Government filed a first (S1) superseding indictment shortly thereafter,
which contained only small, ministerial corrections. The SI superseding indictment included
two counts of enticement or transportation of minors to engage in illegal sex acts in violation of
the Mann Act and two counts of conspiracy to commit those offenses. It also included two
counts of perjury in connection with Maxwell's testimony in a civil deposition. Trial is set to
begin on July 12, 2021.
Maxwell filed twelve pretrial motions seeking to dismiss portions of the Si superseding
indictment, suppress evidence, and compel discovery. After the parties fully briefed those
motions, a grand jury returned a second (S2) superseding indictment adding a sex trafficking
count and another related conspiracy count.
This Opinion resolves all of Maxwell's currently pending pretrial motions other than
those seeking to suppress evidence, which the Court will resolve in due course. The motions, and
this Opinion, deal exclusively with the S 1 superseding indictment and do not resolve any issues
EFTA00020261
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 2 of 34
related to the newly added sex trafficking charges. For the reasons that follow, the Court denies
Maxwell's motions to dismiss the SI superseding indictment in whole or in part. It grants her
motion to sever the perjury charges for a separate trial. It denies her motion to further expedite
discovery.
The Court provides a brief summary of its conclusions here and its reasoning on the
pages that follow:
• Maxwell moves to dismiss all counts based on a non-prosecution agreement between
Jeffrey Epstein and the U.S. Attorney for the Southern District of Florida. The Court
concludes that the agreement does not apply in this District or to the charged offenses.
• Maxwell moves to dismiss all counts as untimely. The Court concludes that the
Government brought the charges within the statute of limitations and did not unfairly
delay in bringing them.
• Maxwell moves to dismiss the Mann Act counts because they are too vague, or in the
alternative to require the Government to describe the charges in greater detail. The
Court concludes that the charges are specific enough.
• Maxwell moves to dismiss the perjury counts because, in her view, her testimony
responded to ambiguous questioning and was not material. The Court concludes that
these issues are best left for the jury.
• Maxwell moves to sever the perjury counts from the Mann Act counts so that they can
proceed in a separate trial. The Court concludes that severance is appropriate and will
try the perjury counts separately.
• Maxwell moves to strike language from the indictment that she believes is superfluous
and to dismiss conspiracy counts she believes are redundant. The Court concludes that
these motions are premature before trial.
• Maxwell moves to compel the Government to immediately disclose certain categories
of evidence. The Court concludes that she is not entitled to do so, but the Court will
order Maxwell and the Government to confer on a discovery schedule.
• Maxwell moves to dismiss all counts because a grand jury in White Plains, rather than
Manhattan, returned the Si superseding indictment. Because a jury in Manhattan
returned the S2 superseding indictment, the motion appears moot.
2
EFTA00020262
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 3 of 34
I. Jeffrey Epstein's non-prosecution agreement does not bar this prosecution
In September 2007, under investigation by both federal and state authorities, Jeffrey
Epstein entered into a non-prosecution agreement ("NPA") with the Office of the United States
Attorney for the Southern District of Florida. Dkt. No. 142 at 1-2. Epstein agreed in the NPA to
plead guilty in Florida state court to soliciting minors for prostitution and to serve eighteen
months in a county jail. Id. In exchange, the U.S. Attorney's Office agreed not to charge him
with federal crimes in the Southern District of Florida stemming from its investigation of his
conduct between 2001 and 2007. Id. It also agreed not to bring criminal charges against any of
his "potential co-conspirators." Id.
As a recent report from the Department of Justice's Office of Professional Responsibility
observed, the NPA was unusual in many respects, including its breadth, leniency, and secrecy.
OPR Report, Gov. Ex. 3, Dkt. No. 204-3, at x, 80, 175, 179, 260-61. The U.S. Attorney's
promise not to prosecute unidentified co-conspirators marks a stark departure from normal
practice for federal plea agreements. This provision appears to have been added "with little
discussion or consideration by the prosecutors." Id. at 169, 185. The report concluded that the
U.S. Attorney's negotiation and approval of the NPA did not amount to professional misconduct,
but nonetheless reflected "poor judgment." Id. at 169.
Only the NPA's effect, and not its wisdom, is presently before the Court. Maxwell
contends that the NPA bars this prosecution, because she is charged as a co-conspirator of
Jeffrey Epstein and the NPA's co-conspirator provision lacks any geographical or temporal
limitations. The Court disagrees for two independent reasons. First, under controlling Second
Circuit precedent, the NPA does not bind the U.S. Attorney for the Southern District of New
York. Second, it does not cover the offenses charged in the S1 superseding indictment.
3
EFTA00020263
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 4 of 34
A. The non-prosecution agreement does not bind the U.S. Attorney for the
Southern District of New York
United States Attorneys speak for the United States. When a U.S. Attorney makes a
promise as part of a plea bargain, both contract principles and due process require the federal
government to fulfill it. See Santobello v. New York, 404 U.S. 257, 262 (1971); United States v.
Ready, 82 F.3d 551, 558 (2d Cir. 1996). The question here is not whether the U.S. Attorney for
the Southern District of Florida had the power to bind the U.S. Attorney for the Southern District
of New York. The question is whether the terms of the NPA did so. Applying Second Circuit
precedent and principles of contract interpretation, the Court concludes that they did not.
In United States v. Annabi, the Second Circuit held: "A plea agreement binds only the
office of the United States Attorney for the district in which the plea is entered unless it
affirmatively appears that the agreement contemplates a broader restriction." 771 F.2d 670, 672
(2d Cir. 1985) (per curiam). This is something akin to a clear statement rule. Single-district plea
agreements are the norm. Nationwide, unlimited agreements are the rare exception. Applying
Annabi, panels of the Second Circuit have stated that courts cannot infer intent to depart from
this ordinary practice from an agreement's use of phrases like "the government" or "the United
States." United States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998) (per curiam); United States v.
Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004). Those are common shorthand. A plea
agreement need not painstakingly spell out "the Office of the United States Attorney for Such and-Such District" in every instance to make clear that it applies only in the district where
signed.
Maxwell asks this Court to draw the opposite conclusion. The provision of the NPA
dealing with co-conspirators does not expressly state that it binds U.S. Attorneys in other
districts. It does not expressly state that it applies in other districts. The relevant language, in
4
EFTA00020264
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 5 of 34
its entirety, reads as follows: "the United States also agrees that it will not institute any criminal
charges against any potential co-conspirators of Epstein." Dkt. No. 142-1 at 5. Under Annabi,
Salatneh, and Gonzalez, a statement that "the United States" agrees not to prosecute implies no
restriction on prosecutions in other districts.
Two provisions of the NPA refer specifically to prosecution in the Southern District of
Florida. The first states that the U.S. Attorney for the Southern District of Florida will defer
"prosecution in this District" if Epstein complies with the agreement. Dkt. No. 142-1 at 2. The
second states that no prosecution "will be instituted in this District, and the charges against
Epstein if any, will be dismissed" after he fulfills the agreement's conditions. Maxwell contends
that the lack of similar language in the co-conspirator provision must mean that it lacks any
geographical limitation. If anything, that language reflects that the NPA's scope was expressly
limited to the Southern District of Florida. It is not plausible—let alone "affirmatively
apparent", Annabi, 771 F.2d at 672,—that the parties intended to drastically expand the
agreement's geographic scope in the single sentence on the prosecution of co-conspirators
without clearly so saying.
Without an affirmative statement in the NPA's text, Maxwell turns to its negotiation
history. Under Second Circuit precedent she may offer evidence that negotiations of the NPA
between the defendant and the prosecutors included a promise to bind other districts. See United
States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986). She alleges that officials in the U.S.
Attorney's Office for the Southern District of Florida sought and obtained approval for the NPA
from the Office of the Deputy Attorney General and communicated with attorneys in other
districts. Any involvement of attorneys outside the Southern District of Florida appears to have
been minimal. Maxwell has already received access to an unusually large amount of information
5
EFTA00020265
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 6 of 34
about the NPA's negotiation history in the form of the OPR report and yet identifies no evidence
that the Department of Justice made any promises not contained in the NPA. The OPR report
reflects that the Office of the Deputy Attorney General reviewed the NPA, but only after it was
signed when Epstein tried to get out of it. OPR Report at 103. Other documents show that
attorneys in the Southern District of Florida reached out to other districts for investigatory
assistance but not for help negotiating the NPA. Dkt. No. 204-2. Nor would direct approval of
the NPA by the Office of the Deputy Attorney General change the meaning of its terms. No
evidence suggests anyone promised Epstein that the NPA would bar the prosecution of his co conspirators in other districts. Absent such a promise, it does not matter who did or did not
approve it.
Second Circuit precedent creates a strong presumption that a plea agreement binds only
the U.S. Attorney's office for the district where it was signed. Maxwell identifies nothing in the
NPA's text or negotiation history to disturb this presumption. The Court thus concludes that the
NPA does not bind the U.S. Attorney for the Southern District of New York.
B. The non-prosecution agreement does not cover the charged offenses
The NPA would provide Maxwell no defense to the charges in the S1 superseding
indictment even against an office bound to follow it. The NPA bars prosecution, following
Epstein's fulfillment of its conditions, only for three specific categories of offenses:
(1) "the offenses set out on pages 1 and 2" of the NPA; namely, "any offenses that
may have been committed by Epstein against the United States from in or around
2001 through in or around September 2007" including five enumerated offenses;
(2) "any other offenses that have been the subject of the joint investigation by the
Federal Bureau of Investigation and the United States Attorney's Office"; and
(3) "any offenses that arose from the Federal Grand Jury investigation."
6
EFTA00020266
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 7 of 34
Dkt. No. 142-1 at 2. The NPA makes clear that the covered charges are those relating to
and deriving from a specific investigation of conduct that occurred between 2001 and 2007.
Maxwell contends that the NPA's co-conspirator provision lacks any limitation on the
offenses covered. The Court disagrees with this improbable interpretation. The phrase
"potential co-conspirator" means nothing without answering the question "co-conspirator in
what?" The most natural reading of the co-conspirator provision is that it covers those who
conspired with Epstein in the offenses covered by the NPA for their involvement in those
offenses. Thus, it would cover any involvement of Maxwell in offenses committed by Epstein
from 2001 to 2007, other offenses that were the subject of the FBI and U.S. Attorney's Office
investigation, and any offenses that arose from the related grand jury investigation.
The Court has no trouble concluding that the perjury counts are not covered by the NPA.
Those charges do not relate to conduct in which Maxwell conspired with Epstein and stem from
depositions in 2016, more than eight years after Epstein signed the NPA. Maxwell now
concedes as much, though her motion sought to dismiss the Si superseding indictment in its
entirety, perjury counts and all.
The Mann Act counts, too, fall comfortably outside the NPA's scope. The Si
superseding indictment charges conduct occurring exclusively between 1994 and 1997, some
four years before the period covered by the Southern District of Florida investigation and the
NPA. The NPA does not purport to immunize Epstein from liability for crimes committed
before the period that was the subject of the FBI and U.S. Attorney's Office investigation.
Maxwell's protection is no broader. The Court thus concludes that the NPA does not cover the
offenses charged in the S1 superseding indictment.
7
EFTA00020267
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 8 of 34
C. Maxwell is not entitled to an evidentiary hearing
In the alternative to dismissing the indictment, Maxwell requests that the Court conduct
an evidentiary hearing as to the parties' intent in the NPA. The Court finds no basis to do so.
The cases Maxwell cites where courts held hearings on the scope of a plea agreement
mostly involved oral agreements where there was no written record of the full set of terms
reached by the parties. All of them involved defendants with first-hand knowledge of
negotiations who claimed prosecutors breached an oral promise. "An oral agreement greatly
increases the potential for disputes such as . .. a failure to agree on the existence, let alone the
terms, of the deal." United States v. Aleman, 286 F.3d 86, 90 (2d Cir. 2002). Thus, an
evidentiary hearing may be necessary to determine the terms of an agreement never committed to
writing. This is no such case. The NPA's terms are clear. Beyond the NPA itself, an extensive
OPR report details its negotiation history. No record evidence suggests that prosecutors
promised Epstein anything beyond what was spelled out in writing. The Court agrees with the
Government that Maxwell's request for a hearing rests on mere conjecture.
For the same reason, the Court will not order the discovery on the NPA. In any case, it
appears that the Government has already produced two of the documents Maxwell seeks in her
motion—the OPR report and notes mentioned in a privilege log. Of course, the Government's
disclosure obligations would require it to disclose to Maxwell any exculpatory evidence or
evidence material to preparing the defense, including any evidence supporting a defense under
the NPA. The Government shall confirm in writing within one week whether it views any
evidence supporting Maxwell's interpretation of the NPA as material it is required to disclose,
and, if so, whether it has disclosed any and all such evidence in its possession.
8
EFTA00020268
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 9 of 34
II. The indictment is timely
A. The indictment complies with the statute of limitations
Federal law imposes a five-year limitations period for most non-capital offenses. 18
U.S.C. § 3282(a). Recognizing the difficulty of promptly prosecuting crimes against children,
Congress has provided a longer limitations period for "offense[s] involving the sexual or
physical abuse, or kidnaping" of a minor. 18 U.S.C. § 3283. Until 2003, the operative version
of § 3283 allowed prosecution of these offenses until the victim reached the age of twenty-five.
Congress further extended the limitations period in the PROTECT Act of 2003, Pub. L. No. 108-
21, 117 Stat. 650, to allow prosecution any time during the life of the victim.
The parties agree that the Mann Act charges are timely if subject to the PROTECT Act,
but untimely under the general statute of limitations for non-capital offenses or the pre-2003
version of § 3283. Maxwell contends that the charged offenses do not qualify as offenses
involving the sexual or physical abuse or kidnapping of a minor and are thus governed by the
general statute of limitations. Alternatively, she contends that the pre-2003 version of § 3283
applies because the charged conduct occurred prior to 2003. The Court concludes that statute of
limitations in the PROTECT Act applies and that the charges are timely.
1. The Mann Act charges are offenses involving the sexual abuse of minors
Maxwell does not dispute that the facts alleged in the S1 superseding indictment involve
the sexual abuse of minors. The indictment charges that Epstein sexually abused each of the
alleged minor victims and that Maxwell allegedly enticed them to travel or transported them for
that purpose. Instead, Maxwell contends that charged offenses do not qualify as offenses
involving the sexual abuse of minors because sexual abuse is not an essential ingredient of each
statutory offense. See Bridges v. United States, 346 U.S. 209, 221 (1953). In Maxwell's view,
9
EFTA00020269
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 10 of 34
for example, it is possible to transport a minor with intent to engage in criminal sexual activity
and not follow through with the planned sexual abuse, and so sexual abuse is not an essential
ingredient of the offense. Maxwell makes the same argument for the enticement and related
conspiracy charges.
This approach is analogous to the "categorical approach" employed by courts to evaluate
prior convictions for immigration and sentencing purposes. See Taylor v. United States, 495
U.S. 575, 602 (1990). Generally speaking, the "categorical approach" requires that courts "look
only to the statutory definitions—i.e., the elements" of the relevant offense to determine if the
provision applies "and not to the particular facts underlying those convictions." Descamps v.
United States, 570 U.S. 254, 261 (2013) (internal quotation marks omitted). Whether a statute
requires a categorical or case-specific approach is a question of statutory interpretation. To
determine whether Congress used the word "offense" in a statute to refer to an offense in the
abstract or to the facts of each individual case, the Court must examine the statute's "text,
context, and history." United States v. Davis, 139 S. Ct. 2319, 2327 (2019).
Though it has not authoritatively settled the question, the Second Circuit has strongly
suggested that Maxwell's approach is the wrong one. In Weingarten v. United States, 865 F.3d
48, 58-60 (2d Cir. 2017), the Second Circuit discussed at length how the text, context, and
history of § 3283 show that Congress intended courts to apply the statute using a case-specific
approach. The Third Circuit reached the same conclusion in United States v. Schneider, 801
F.3d 186, 196 (3d Cir. 2015).
The Court sees no reason to depart from the reasoning in Weingarten. First, "[t]he
Supreme Court's modern categorical approach jurisprudence is confined to the post-conviction
contexts of criminal sentencing and immigration deportation cases." Weingarten, 865 F.3d at 58.
10
EFTA00020270
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 11 of 34
To the extent that the categorical approach is ever appropriate in other contexts, it is
inappropriate here.
The Court begins with the statute's text. Statutes that call for application of the
categorical approach typically deal with the elements of an offense in a prior criminal conviction.
Id. at 59. "The language of § 3283, by contrast, reaches beyond the offense and its legal
elements to the conduct 'involv[ed]' in the offense. That linguistic expansion indicates Congress
intended courts to look beyond the bare legal charges in deciding whether § 3283 applied." Id. at
59-60 (alteration in original) (quoting § 3283). Maxwell cites one case holding otherwise, but
that case involved a venue statute presenting significantly different concerns. See United States
v. Morgan, 393 F.3d 192, 200 (D.C. Cir. 2004). The Supreme Court has likewise held that a
statute which uses the language "an offense that . . . involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000" is "consistent with a circumstance-specific approach."
Nijhawan v. Holder, 557 U.S. 29, 32, 38 (2009) (emphasis added). Thus, the word "involves"
generally means that courts should look to the circumstances of an offense as committed in each
case. This reading accords with a robust legislative history indicating that Congress intended to
apply § 3283 to a wide range of crimes against children. See Weingarten, 865 F.3d at 60;
Schneider, 801 F.3d at 196.
The purposes underlying the categorical approach do not apply here either. For statutes
dealing with prior convictions, "[t]he categorical approach serves `practical' purposes: It
promotes judicial and administrative efficiency by precluding the relitigation of past convictions
in minitrials conducted long after the fact." Moncrieffe v. Holder, 569 U.S. 184, 200-01 (2013).
In the context of § 3283, there is no prior conviction to assess, and the jury will determine in the
first instance whether "the defendant engaged in the applicable abusive conduct." Weingarten,
11
EFTA00020271
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 12 of 34
865 F.3d at 60. Maxwell nonetheless contends that using a case-specific approach for § 3283
would be impractical because the Government would need to prove conduct beyond the elements
of the offense. It may be true that this approach requires the Government to prove some
additional facts, but any statute-of-limitations defense presents factual issues (including, at least,
when the alleged conduct took place). This is not a serious practical problem and does not
justify setting aside the statute's language and apparent purpose.
Maxwell relies primarily on Bridges v. United States, 346 U.S. 209 (1953), to urge this
Court to cast Weingarten aside. The Supreme Court in Bridges addressed a statute that extended
the limitations period for defrauding the United States during the Second World War. In that
case, the Supreme Court first concluded that making false statements at an immigration hearing
was not subject to the extended limitations period because it lacked any pecuniary element as
required by the statute. Id. at 221. Then, as an alternative basis for its holding, it explained that
the offense did not require fraud as an "essential ingredient." Id. at 222. It reached that
conclusion in large part because the statute's legislative history made clear that Congress
intended it to apply only to a narrow class of war frauds causing pecuniary loss. Id. at 216.
As the Second Circuit explained in Weingarten, Congress had the opposite intent in the
enacting in the PROTECT Act. Weingarten, 865 F.3d at 59 & n. 10. "In passing recent statutes
related to child sex abuse, including extensions of the § 3283 limitations period, Congress
`evinced a general intention to "'cast a wide net to ensnare as many offenses against children as
possible."' Id. at 60 (quoting Schneider, 801 F.3d at 196 (quoting United States v. Dodge, 597
F.3d 1347, 1355 (11th Cir. 2010) (en banc))). The primary basis for Bridges' holding—
legislative history supporting a narrow interpretation—does not exist here. Instead, both the
statute's plan meaning and its legislative history suggest it should apply more broadly.
12
EFTA00020272
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 13 of 34
Based on the statute's text, context, and history, the Court follows Weingarten and
concludes that the appropriate inquiry is whether the charged offenses involved the sexual abuse
of a minor on the facts alleged in this case. There is no question that they did. The Court thus
concludes that § 3283 governs the limitations period for the charges here.
2. The 2003 amendment to the statute of l"tations applies to these offenses
Maxwell next contends that because the charged conduct took place before the
PROTECT Act's enactment, that statute did not lengthen the statute of limitations applicable to
her alleged offenses. Here too, the Second Circuit has provided guidance in its decision in
Weingarten. Although the court did not provide a definitive answer there, it explained that the
view Maxwell now takes conflicts with established principles of retroactivity and the decisions
of at least two other circuit courts. Weingarten, 865 F.3d at 58 & n.8; see Cruz v. Maypa, 773
F.3d 138, 145 (4th Cir. 2014); United States v. Leo Sure Chief, 438 F.3d 920, 924 (9th Cir.
2006).
The Supreme Court has set out a two-step framework to determine whether a federal
statute applies to past conduct. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Courts look first to the language of the statute. If the statute states that it applies to past conduct,
courts must so apply it. Weingarten, 865 F.3d at 54. Otherwise, the statute applies to past
conduct unless doing so would create impermissible retroactive effects. Id.
The Court begins with Landgraf s first step. To assess a statute's meaning here, courts
must consider the text of the statute along with other indicia of congressional intent, including
the statute's history and structure. See Enter. Mortg. Acceptance Co., LLC, Sec. Litig. v. Enter.
Mortg. Acceptance Co., 391 F.3d 401, 406 (2d Cir. 2004).
13
EFTA00020273
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 14 of 34
Section 3283, as amended by the PROTECT Act, broadly states that "[n]o statute of
limitations that would otherwise preclude prosecution for an offense involving the sexual or
physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution
during the life of the child." The statute lacks an express retroactivity clause, but courts have
held that no such clause is necessary, including for this particular statute. See Leo Sure Chief,
438 F.3d at 923. The statute's plain language unambiguously requires that it apply to
prosecutions for offenses committed before the date of enactment. Instead of simply providing a
new limitations period for future conduct, Congress stated that no statute of limitations that
would otherwise preclude prosecution of these offenses will apply. That is, it prevents the
application of any statute of limitations that would otherwise apply to past conduct.
Courts have reached the same conclusion for other statutes employing similar language.
The Eighth Circuit has held that the 1994 amendments to § 3283, which allowed prosecution of
sex crimes against children until the victim reached age twenty-five, applied to past conduct. See
United States v. Jeffries, 405 F.3d 682, 684-85 (8th Cir. 2005). The Second Circuit has observed
that the Higher Education Technical Amendments of 1991, Pub. L. No. 102-26, 105 Stat. 123,
illustrates language that requires a statute's application to past conduct. See Enter. Mortg.
Acceptance Co., LLC, Sec. Litig., 391 F.3d at 407. That statute eliminated the statute of
limitations for claims on defaulted student loans by stating that "no limitation shall terminate the
period within which suit may be filed." Id. The PROTECT Act's language is quite similar.
The history of § 3283 confirms Congress's intent to apply the extended limitations period
as broadly as the Constitution allows. With each successive amendment to the statute, Congress
further extended the limitations period, recognizing that sex crimes against children "may be
difficult to detect quickly" because children often delay or decline to report sexual abuse.
14
EFTA00020274
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 15 of 34
Weingarten, 865 F.3d at 54. Congress enacted the limitations provision of the PROTECT Act
because it found the prior statute of limitations was "inadequate in many cases." H.R. Conf.
Rep. No. 108-63, at 54 (2003). For example, a person who abducted and raped a child could not
be prosecuted beyond this extended limit—even if DNA matching conclusively identified him as
the perpetrator one day after the victim turned 25." Id.
Maxwell makes no argument based on the statute's text. Instead, she contends that
because the House version of the bill included an express retroactivity provision absent from its
final form, the Court should infer that Congress did not intend the statute to apply to past
conduct. However, the legislative history makes clear that Congress abandoned the retroactivity
provision in the House bill only because it would have produced unconstitutional results. The
Supreme Court has explained that a law that revives a time-barred prosecution violates the Ex
Post Facto Clause of the Constitution, but a law that extends an un-expired statute of limitations
does not. Stogner v. California, 539 U.S. 607, 632-33 (2003). Senator Leahy, who co sponsored the PROTECT Act, expressed concerns in a committee report that the proposed
retroactivity provision was "of doubtful constitutionality" because it "would have revived the
government's authority to prosecute crimes that were previously time-barred." 149 Cong. Rec.
S5137, S5147 (Apr. 10, 2003) (statement of Sen. Leahy). Congress removed the provision
shortly thereafter for this reason. The removal of the express retroactivity provision shows only
that Congress intended to limit the PROTECT Act to its constitutional applications, including
past conduct—like Maxwell's—on which the statute of limitations had not yet expired.
Both the text and history of the PROTECT Act's amendment to § 3283 reflect that it
applies Maxwell's conduct charged in the S1 superseding indictment. The Court could stop here.
15
EFTA00020275
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 16 of 34
However, it also concludes that even if the statute were ambiguous, it would properly apply to
these charges.
At Lanfgraf s second step, the Court asks whether application of the statute to past
conduct would have impermissible retroactive effects. "[A] statute has presumptively
impermissible retroactive effects when it 'takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.'" Weingarten, 865 F.3d at 56 (quoting
Landgraf, 511 U.S. at 290). Thus, applying a new statute of limitations to previously time barred claims has an impermissible retroactive effect. Enter. Mortg. Acceptance Co., LLC, Sec.
Litig., 391 F.3d at 407. Applying it to conduct for which the statute of limitations has not yet
expired does not. Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 890 (2d Cir. 1995).
Maxwell concedes that these offenses were within the statute of limitations when
Congress enacted the PROTECT Act. Thus, the Act did not deprive her of any vested rights.
Maxwell contends that it is unfair to allow the Government to prosecute her now for conduct that
occurred more than twenty years ago, but there is no dispute that Congress has the power to set a
lengthy limitations period or no limitations period at all. It has done so here, judging that the
difficulty of prosecuting these offenses and the harm they work on children outweighs a
defendant's interest in repose. Maxwell's fairness argument is a gripe with Congress's policy
judgment, not an impermissibly retroactive application of the statute. The Court concludes that
§ 3283 allows her prosecution now.
B. The Government's delay in bringing charges did not violate due process
"As the Supreme Court stated in United States v. Marion, the statute of limitations is 'the
primary guarantee against bringing overly stale criminal charges.'" United States v. Cornielle,
16
EFTA00020276
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 17 of 34
171 F.3d 748, 751 (2d Cir. 1999) (cleaned up) (quoting United States v. Marion, 404 U.S. 307,
322 (1971)). There is a strong presumption that an indictment filed within the statute of
limitations is valid. To prevail on a claim that pm-indictment delay violates due process, a
defendant must show both that the Government intentionally delayed bringing charges for an
improper purpose and that the delay seriously damaged the defendant's ability defend against the
charges. See id. This is a stringent standard. "Thus, while the [Supreme] Court may not have
shut the door firmly on a contention that at some point the Due Process Clause forecloses
prosecution of a claim because it is too old, at most the door is barely ajar." DeMichele v.
Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 790-91 (2d Cir. 1999).
The Court sees no evidence that the Government's delay in bringing these charges was
designed to thwart Maxwell's ability to prepare a defense. However, it is enough to say that
Maxwell does not make the strong showing of prejudice required to support this sort of claim.
Maxwell contends that the Government's delay in bringing charges has prejudiced her interests
because potential witnesses have died, others have forgotten, and records have been lost or
destroyed. It is highly speculative that any of these factors would make a substantial difference
in her case.
Maxwell first points to several potential witnesses who have passed away. These include
Jeffrey Epstein and his mother, one individual Maxwell believes worked with one of the alleged
victims in this case, and a police detective who investigated Epstein in Florida. She contends
they all would have provided exculpatory testimony were they alive today. Courts have
generally found that vague assertions that a deceased witness might have provided favorable
testimony do not justify dismissing an indictment for delay. See, e.g., United States v. Scala, 388
F. Supp. 2d 396, 399-400 (S.D.N.Y. 2005). The Court agrees with this approach. Maxwell
17
EFTA00020277
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 18 of 34
provides no indication of what many of these potential witnesses might have testified to. The
testimony she suggests the detective might have offered—that witnesses in the Palm Beach
investigation did not identify Maxwell by name—is propensity evidence that does nothing to
establish her innocence of the charged offenses. There are also serious doubts under all of the
relevant circumstances that a jury would have found testimony from Epstein credible even if he
had waived his right against self-incrimination and testified on her behalf. See United States v.
Spears, 159 F.3d 1081, 1085 (7th Cir. 1999).
Maxwell's arguments that the indictment should be dismissed because of the possibility
of missing witnesses, failing memories, or lost records fail for similar reasons. These are
difficulties that arise in any case where there is extended delay in bringing a prosecution, and
they do not justify dismissing an indictment. United States v. Marion, 404 U.S. 307, 325-26
(1971); see United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979).
Finally, the Court finds no substantial prejudice from the pretrial publicity this case has
garnered. Maxwell contends that lengthy public interest in this case has transformed her
reputation from that of Epstein's friend to a co-conspirator. And she also alleges—without
evidence—that her accusers fabricated their stories based on media allegations. The Court will
not dismiss the indictment on Maxwell's bare assertion that numerous witnesses are engaged in a
perjurious conspiracy against her. And the Court will take all appropriate steps to ensure that the
pretrial publicity in this case does not compromise Maxwell's right to a fair and impartial jury.
The Court thus concludes that Maxwell has failed to establish actual prejudice from the
Government's delay in bringing charges. She may renew her motion if the factual record at trial
shows otherwise. On the present record, neither the applicable statute of limitations nor due
process bars the charges here.
18
EFTA00020278
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 19 of 34
III. The indictment describes the charged offenses with specificity
Maxwell seeks to dismiss the Mann Act counts for lack of specificity or in the alternative
to compel the Government to submit a bill of particulars providing greater detail of the charges.
The Court concludes that the charges in the S1 superseding indictment are clear enough.
Under Federal Rule of Criminal Procedure 7, an indictment must contain "a plain,
concise, and definite written statement of the essential facts constituting the offense charged."
The indictment must be specific enough to inform the defendant of the charges and allow the
defendant to plead double jeopardy in a later prosecution based on the same events. United
States v. Stavrouiakis, 952 F.2d 686, 693 (2d Cir. 1992). "Under this test, an indictment need do
little more than to track the language of the statute charged and state the time and place (in
approximate terms) of the alleged crime." United States. v. Tramunti, 513 F.2d 1087, 1113 (2d
Cir. 1975). In addition to dismissal, "Rule 7(f) of the Federal Rules of Criminal Procedure
permits a defendant to seek a bill of particulars in order to identify with sufficient particularity
the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to
prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second
time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).
The S1 superseding indictment sets out the elements of each charged crime and the facts
supporting each element. Nonetheless, Maxwell contends that the indictment is too vague
because it refers to open-ended time periods, describes conduct like "grooming" and
"befriending" that is not inherently criminal, and does not identify the alleged victims by name.
Maxwell's first argument fails because the Government need only describe the time and
place of charged conduct "in approximate terms." Tramunti, 513 F.2d at 1113. The details are
subject to proof at trial. "[T]he Second Circuit routinely upholds the 'on or about' language used
19
EFTA00020279
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 20 of 34
to describe the window of when a violation occurred." United States v. Kidd, 386 F. Supp. 3d
364, 369 (S.D.N.Y. 2019) (quoting United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.
1987)). "This is especially true in cases of sexual abuse of children: allegations of sexual abuse
of underage victims often proceed without specific dates of the offenses." United States v.
Young, No. 08-cr-285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008) (collecting
cases). As here, these cases frequently involve alleged abuse spanning a lengthy period of time,
and witnesses who were victimized as children may struggle to recall the precise dates when
abuse occurred. The indictment adequately describes the time and place of the charged conduct.
Maxwell next contends that allegations of noncriminal conduct render the charges
impermissibly vague. The Court disagrees. Rule 7 requires only that the language of the
indictment track the language of the statute and provide a rough account of the time and place of
the crime. Tram ;;;; ti, 513 F.2d at 1113. The language of the Si superseding indictment does so.
The Government's decision to provide more details than those strictly required does not hamper
Maxwell's ability to prepare a defense. Maxwell's argument that some of the conduct alleged is
not inherently criminal goes to the merits of the Government's case, not the specificity of the
charges.
Finally, Maxwell argues that the indictment is vague because the government does not
provide the names of the alleged victims. The Court sees no basis to require that the alleged
victims' names be included the indictment. The names of victims, even if important, generally
need not appear there unless their omission would seriously prejudice the defendant. See United
States v. Stringer, 730 F.3d 120, 127 (2d Cir. 2013); United States v. Kidd, 386 F. Supp. 3d 364,
369 (S.D.N.Y. 2019). Maxwell likely knows the identity of the alleged victims described in the
indictment at this point because the Government has provided extensive discovery on them.
20
EFTA00020280
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 21 of 34
Moreover, the Government has agreed to disclose their names in advance of trial. There is thus
no unfairness here. See Stringer, 730 F.3d at 126. As discussed below, the Court will require
the parties to negotiate and propose a full schedule for all remaining pretrial disclosures.
IV. The perjury charges are legally tenable
The Court turns next to Maxwell's motion to dismiss the perjury counts stemming from
her answers to questions in a deposition in a civil case. She contends that these charges are
legally deficient because the questions posed were fundamentally ambiguous and the questions
were not material to the subject of the deposition. The Court concludes that the charges are
legally tenable and Maxwell's defenses are appropriately left to the jury.
The applicable perjury statute imposes criminal penalties on anyone who "in any
proceeding before or ancillary to any court ... knowingly makes any false material declaration."
18 U.S.C. § 1623(a). Testimony is perjurious only if it is knowingly false and is material to the
proceeding in which the defendant offered it.
A. The questions posed were not too ambiguous to support a perjury charge
The requirement of knowing falsity requires that a witness believe that their testimony is
false. United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986). As a general matter, "[a] jury is
best equipped to determine the meaning that a defendant assigns to a specific question." Id.
Courts have acknowledged a narrow exception for questions that are so fundamentally
ambiguous or imprecise that the answer to them cannot legally be false. Id. at 372, 375; see also
United States v. Wolfson, 437 F.2d 862, 878 (2d Cir. 1970). A question is fundamentally
ambiguous only if reasonable people could not agree on its meaning in context. Lighte, 782 F.2d
at 375. The existence of some arguable ambiguity does not foreclose a perjury charge against a
witness who understood the question.
21
EFTA00020281
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 22 of 34
At a minimum, Maxwell's motion is premature. Courts typically evaluate whether a
question was fundamentally ambiguous only after the development of a full factual record at
trial. See, e.g., United States v. Markiewicz, 978 F.2d 786, 808 (2d Cir. 1992). The evidence at
trial may shed further light on whether the questions posed were objectively ambiguous in
context or whether Maxwell subjectively understood them. In any event, the Court has closely
considered each of the categories of questions that Maxwell argues are ambiguous. None of the
alleged ambiguities Maxwell identifies rise to the level supporting dismissal of the charges. The
context of the questions and answers, in conjunction with the Government's evidence, could lead
a reasonable juror to conclude that the statements were perjurious. Truth and falsity are
questions for the jury in all but the most extreme cases. The Court declines to usurp the jury's
role on the limited pretrial record.
B. A reasonable juror could conclude that Maxwell's statements were material
Maxwell also argues that the perjury counts should be dismissed because none of the
allegedly false statements were material to the defamation action. In a civil deposition, a
statement is material if it has a natural tendency to influence the court or if a truthful answer
might reasonably lead to the discovery of admissible evidence. United States v. Gaudin, 515
U.S. 506, 509 (1995); United States v. Kross, 14 F.3d 751, 753-54 (2d Cir. 1994). Like knowing
falsity, materiality is an element of the offense and thus ordinarily must be "decided by the jury,
not the court." Johnson v. United States, 520 U.S. 461, 465 (1997). Only the most extraordinary
circumstances justify departure from this general rule. United States v. Forde, 740 F. Supp. 2d
406, 412 (S.D.N.Y. 2010) (citing Gaudin, 515 U.S. at 522-23).
The charged statements do not fall within this narrow exception. Maxwell contends that
the questions did not relate to the sex trafficking and sexual abuse allegations at the center of the
22
EFTA00020282
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 23 of 34
civil case, but that is not the legal standard. The Government may prevail if it proves that
Maxwell's answers could have led to the discovery of other evidence or could influence the
factfinder in the civil case. See Gaudin, 515 U.S. at 509; Kross, 14 F.3d at 753-54. At trial, a
reasonable juror could conclude that truthful answers to the questions may have permitted the
plaintiff to locate other victims or witnesses who could have corroborated the plaintiff's
testimony. The factual disputes relating to materiality are at least enough to preclude pretrial
resolution. In criminal cases, courts must guard against "invading the 'inviolable function of the
jury' in our criminal justice system," and if the "defense raises a factual dispute that is
inextricably intertwined with a defendant's potential culpability, a judge cannot resolve that
dispute on a Rule 12(b) motion." United States v. Sampson, 898 F.3d 270, 281 (2d Cir. 2018).
The Court concludes that the perjury charges are legally tenable and appropriately
presented to the jury.
V. The perjury charges must be severed and tried separately
Although the perjury charges are legally tenable, the Court concludes that the interests of
justice require severing those counts and trying them separately. Trying the perjury counts
together with the Mann Act counts would require admitting evidence of other acts likely to be
unduly prejudicial. It would also risk disqualifying Maxwell's chosen counsel based on their
involvement in the earlier civil case.
Rule 14(a) of the Federal Rules of Criminal Procedure allows a court to order separate
trials if joining all offenses in a single trial would prejudice the defendant. A defendant seeking
severance must show significant unfairness to outweigh the burden on the court of conducting
multiple trials. United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998). The harm to the
defendant must be more than "solely the adverse effect of being tried for two crimes rather than
23
EFTA00020283
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 24 of 34
one." United States v. Werner, 620 F.2d 922, 929 (2d Cir. 1980). Though this standard is
demanding, the Court concludes that, due to unique features of the perjury counts, Maxwell
meets it here. Trying all counts together would compromise Maxwell's right to the counsel of
her choice and risk an unfair trial.
Trying the perjury counts together with the Mann Act counts would risk an unfair trial on
each set of counts. First, it would introduce unrelated allegations of sexual abuse, which would
potentially expose the jury to evidence that might otherwise not be admissible. In particular, a
joint trial would potentially expose the jury to a wider swath of information regarding civil
litigation against Epstein that is remote from Maxwell's charged conduct. This presents a
significant risk that the jury will cumulate the evidence of the various crimes charged and find
guilt when, if considered separately, it would not do so. See United States v. Halper, 590 F.2d
422, 430 (2d Cir. 1978). Second, the evidence presented on the Mann Act counts may prejudice
the jury's ability to fairly evaluate Maxwell's truthfulness in her deposition, a critical element of
the perjury counts. The Court has concerns that a limiting instruction may be inadequate to
mitigate these risks given the nature of the allegations involved.
Importantly, a joint trial is also likely to require disqualification of at least one of
Maxwell's attorneys from participating as an advocate on her behalf. The perjury counts likely
implicate the performance and credibility of her lawyers in the civil action—two of whom
represent her in this case. The New York Rules of Professional Conduct generally forbid a
lawyer from representing a client in a proceeding in which the lawyer is likely also to be a
witness. N.Y. R. Prof'l Conduct § 3.7(a). Maxwell's counsel in the civil action and the
deposition may be important fact witnesses on the perjury counts. Even if counsel were not
required to testify, trying all counts together could force Maxwell to choose between having her
24
EFTA00020284
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 25 of 34
counsel testify on her behalf on the perjury charges and having them assist her in defending the
Mann Act charges.
The Second Circuit has recognized that witness testimony offered by a party's attorney
presents serious risks to the fairness of a trial. See Murray v. Metro. Life Ins. Co., 583 F.3d 173,
178 (2d Cir. 2009). The lawyer might appear to vouch for their own credibility, jurors might
perceive the lawyer as distorting the truth to benefit their client, and blurred lines between
argument and evidence might confuse the jury. Id. Disqualification of counsel also implicates
Maxwell's Sixth Amendment right to be represented by the counsel of her choice. See, e.g.,
United States v. Kincade, No. 15-cr-00071 (JAD) (GWF), 2016 WL 6154901, at *6 (D. Nev.
Oct. 21, 2016). The prejudice to Maxwell is especially pronounced because the attorneys who
represented her in the civil case have worked with her for years and are particularly familiar with
the facts surrounding the criminal prosecution. See United States v. Cunningham, 672 F.2d
1064, 1070-71 (2d Cir. 1982).
The Court is of course cognizant of the burden separate trials may impose on all trial
participants. But much of the proof relevant to the perjury counts and the Mann Act counts does
not overlap. In particular, materiality for statements made in a civil deposition is broad, and
evidence on that question is unlikely to bear on the other charges here. See Kross, 14 F.3d at
753-54; Gaudin, 515 U.S. at 509. Although some allegations of sexual abuse are relevant to
both sets of charges, many are not. At a minimum, this will expand the scope of the trial far
beyond the narrower issues presented. And while the Court agrees with the Government that at
least some of Maxwell's concerns are overstated, there is little question that the jury's
consideration of the nature of the defamation action will require a significant investment of time
and resources to provide the requisite context.
25
EFTA00020285
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 26 of 34
The balance of these considerations favors severance. "Motions to sever are committed
to the sound discretion of the trial judge." United States v. Casarnento, 887 F.2d 1141, 1149 (2d
Cir. 1989). In its discretion, the Court concludes that trying the perjury counts separately will
best ensure a fair and expeditious resolution of all charges in this case.
VI. Maxwell's motion to strike surplusage is premature
Maxwell moves to strike allegations related to one of the alleged victims from the S1
superseding indictment as surplusage. The Court declines to do so at this juncture.
Federal Rule of Criminal Procedure 7(d) allows a court to strike surplusage from an
indictment on a defendant's motion. "Motions to strike surplusage from an indictment will be
granted only where the challenged allegations are not relevant to the crime charged and are
inflammatory and prejudicial." United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996)
(cleaned up). Courts in this District generally delay ruling on any motion to strike until after the
presentation of the Government's evidence at trial, because that evidence may affect how
specific allegations relate to the overall charges. See, e.g., United States v. Nejad, No. I 8-cr-224
(MN), 2019 WL 6702361, at *18 (S.D.N.Y. Dec. 6, 2019); United States v. Mostafa, 965 F.
Supp. 2d 451, 467 (S.D.N.Y. 2013).
Maxwell contends that the allegations related to "Minor Victim-3" are surplusage
because the indictment does not charge that Minor Victim-3 traveled in interstate commerce or
was below the age of consent in England where the alleged activities took place. Thus, she
argues, these allegations do not relate to the charged conspiracy and instead reflect an attempt to
introduce Minor Victim-3's testimony for impermissible purposes.
The Court will not strike any language from the S 1 superseding indictment at this
juncture. The standard under Rule 7(d) is "exacting" and requires the defendant to demonstrate
26
EFTA00020286
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 27 of 34
clearly that the allegations are irrelevant to the crimes charged. United States v. Napolitano, 552
F. Supp. 465, 480 (S.D.N.Y. 1982). The indictment does not allege that the alleged victim
traveled in interstate commerce or was underage during sexual encounters with Epstein. But the
Court cannot rule out that the allegations may reflect conduct undertaken in furtherance of the
charged conspiracy or be relevant to prove facts such as Maxwell's state of mind. See United
States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992). The Court will follow the well-worn
path of others in this District and reserve the issue for trial. Maxwell may renew her motion
then.
VII. Maxwell's motion to dismiss multiplicitous charges is premature
Maxwell's motion to dismiss either the first or third count of the S1 superseding
indictment as multiplicitous is also premature. Maxwell contends that the Government has
alleged the same conspiracy twice in the indictment. "An indictment is multiplicitous when it
charges a single offense as an offense multiple times, in separate counts, when, in law and fact,
only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999).
"The multiplicity doctrine is based upon the double jeopardy clause of the Fifth Amendment,
which assures that the court does not exceed its legislative authorization by imposing multiple
punishments for the same offense." United States v. Nakashian, 820 F.2d 549, 552 (2d Cir. 1987)
(cleaned up).
"Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does
not protect against simultaneous prosecutions for the same offense, so long as no more than one
punishment is eventually imposed." United States v. Josephberg, 459 F.3d 350, 355 (2d Cir.
2006). "Since Josephberg, courts in this Circuit have routinely denied pre-trial motions to
dismiss potentially multiplicitous counts as premature." United States v. Medina, No. 13-cr-272
27
EFTA00020287
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 28 of 34
(PGG), 2014 WL 3057917, at *3 (S.D.N.Y. July 7, 2014) (collecting cases). The Court therefore
denies Maxwell's motion to dismiss multiplicitous counts without prejudice.
VIII. The parties shall negotiate all remaining disclosures
Maxwell moves to compel the Government to produce certain documents she believes it
has in its possession and has failed to produce. She also seeks accelerated disclosure of the
Government's witness list, Jencks Act material, Brady and Giglio material, co-conspirator
statements, and Rule 404(b) material. Based on the Government's response in briefing and
letters the parties have since submitted to the Court, it appears that most of these requests have
been overtaken by events. Accordingly, although the Court concludes that Maxwell is not
entitled to expedite this discovery based on the arguments in her motion papers, the Court will
require the parties to confer on an overall schedule for all remaining pretrial disclosures.
A. The Court accepts the Government's representations that it has disclosed all
Brady and Giglio Material
The Supreme Court's decisions in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972) require the Government to disclose to defendants certain
evidence that will aid their defense. Brady requires disclosure of exculpatory evidence. Under
Giglio, the Government has a duty to produce "not only exculpatory material, but also
information that could be used to impeach a key government witness." United States v. Coppa,
267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio, 405 U.S. at 154). As a general rule, "Brady and
its progeny do not require immediate disclosure of all exculpatory and impeachment material
upon request by a defendant." Id. at 146. "[A]s long as a defendant possesses Brady evidence in
time for its effective use, the government has not deprived the defendant of due process of law
simply because it did not produce the evidence sooner." Id. at 144.
28
EFTA00020288
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 29 of 34
Maxwell requests an order directing immediate disclosure of all Brady and Giglio
material and also requests a few specific documents she contends the Government has failed to
disclose. The Court begins with the specific requests. The requested materials include (1)
records of witness interviews in connection with an ex pane declaration in support of a response
to a motion to quash subpoenas; (2) an unredacted copy of two FBI reports; (3) pages from a
personal diary that is in the custody of a civilian third party; and (4) copies of all subpoenas the
Government has issued for Maxwell's records as part of its investigation in this case.
The Government represents that it is cognizant of its Brady obligations, that is has
reviewed the witness interviews and one of the FBI reports, and that neither set of documents
includes exculpatory information not previously disclosed. The Court has no reason to doubt the
Government's representation in this case that it is aware of its Brady obligations and that it has
complied and will continue to comply with them. And because the witness statements are
covered by the Jencks Act, the Court cannot compel production of such statements under the
terms of the statute. See 18 U.S.C. § 3500; Coppa, 267 F.3d at 145. Next, the Government
represents that it has already produced an unredacted copy of the other requested FBI report, and
so that request is moot. The diary pages she requests are within the control of a civilian third
party, not the Government, and so the Government need not (and perhaps cannot) produce them.
See United States v. Collins, 409 F. Supp. 3d 228, 239 (S.D.N.Y. 2019). Finally, Maxwell's
request for copies of all subpoenas the Government has issued is overly broad and lacks a legal
basis. Maxwell is not entitled to compel production of these documents.
The Court also will not issue an order requiring the immediate disclosure of Brady and
Giglio material. The Government has represented that it recognizes its obligations under Brady
and that it has complied, and will continue to comply, with such obligations. The Court has no
29
EFTA00020289
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 30 of 34
reason to doubt these representations given its expansive approach to document production thus
far in this case. The Government has agreed in its recent letter to produce Giglio material six
weeks in advance of trial. The parties shall negotiate the specific timing, but assuming a
schedule along those lines is met, the Court concludes that Maxwell will be able to effectively
prepare for trial. See Coppa, 267 F.3d at 144.
B. Jencks Act material and co-conspirator statements
Maxwell also seeks to expedite discovery of Jencks Act material and non-exculpatory
statements of co-conspirators that the government may offer at trial. The Jencks Act, 18 U.S.C.
§ 3500, "provides that no prior statement made by a government witness shall be the subject of
discovery until that witness has testified on direct examination." Coppa, 267 F.3d at 145. The
statute therefore prohibits a district court in most cases from ordering the pretrial disclosure of
witness statements unless those statements are exculpatory. "A coconspirator who testifies on
behalf of the government is a witness under the Act." In re United States, 834 F.2d 283, 286 (2d
Cir. 1987). The Court therefore lacks the inherent power to expedite these disclosures. In any
case, the Government has agreed to produce all Jencks Act material at least six weeks in advance
of trial.
The Court also rejects Maxwell's alternative request for a hearing to determine the
admissibility of co-conspirator declarations. Co-conspirator statements may often be admitted at
trial on a conditional basis. If the Court determines that the Government has not met its burden
to show that the conditionally admitted statements were made in furtherance of the charged
conspiracy, the Court should provide a limiting instruction or, in extreme cases declare a
mistrial. United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). Although conditional
admissions can pose a problem, a pretrial hearing is unnecessary here because the Government
30
EFTA00020290
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 31 of 34
has committed to producing co-conspirator statements at least six weeks in advance of trial to
allow Maxwell to raise any objections. Maxwell will have adequate time to object to any
proffered co-conspirator testimony following the Government's Jencks Act disclosures.
C. Witness list
As a general matter, "district courts have authority to compel pretrial disclosure of the
identity of government witnesses." United States v. Cannon, 528 F.2d 296, 300 (2d Cir. 1975).
In deciding whether to order accelerated disclosure of a witness list, courts consider whether a
defendant has made a specific showing that disclosure is "both material to the preparation of the
defense and reasonable in light of the circumstances surrounding the case." United States v.
Bejasa, 904 F.2d 137, 139-140 (2d Cir. 1990) (cleaned up).
Maxwell has made a particularized showing that the Government must produce a witness
list reasonably in advance of trial. The nature of the allegations in this case—decades-old
allegations spanning multiple locations—present considerable challenges for the preparation of
the defense. However, the Government's proposed disclosure schedule—which will afford
Maxwell at least six weeks to investigate testifying witness statements—allows Maxwell
significantly more time to review disclosures than schedules adopted in most cases in this
District. See, e.g., United States v. Rueb, No. 00-CR-91 (RWS), 2001 WL 96177, at *9
(S.D.N.Y. Feb. 5, 2001) (thirty days before trial); United States v. Nachamie, 91 F. Supp. 2d 565,
580 (S.D.N.Y. 2000) (fourteen days before trial). In addition, on April 13, 2021, the
Government produced over 20,000 pages of interview notes, reports and other materials related
to non-testifying witnesses. After considering the circumstances, including the complexity of the
issues in this case and what the defense has already received and likely learned in the course of
discovery, the Court concludes that the Government's proposal is generally reasonable.
31
EFTA00020291
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 32 of 34
D. Rule 404(b) material
Maxwell's final discovery request is for early disclosure of evidence the Government
seeks to offer under Federal Rule of Evidence 404(6). Under Rule 4O4(b), if the prosecutor in a
criminal case intends to use "evidence of a crime, wrong, or other act" against a defendant, the
prosecutor must "provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial" and must "do so in writing before trial—or in any form
during trial if the court, for good cause, excuses lack of pretrial notice." The Government
represents that it will notify the defense of its intent to use 404(b) evidence at least 45 days in
advance of trial to allow Maxwell to file any motions in limine to be considered at the final
pretrial conference. The Government's proposal will give Maxwell an opportunity to challenge
admission of that evidence and to bring to the Court's attention any issues that require resolution
before trial. "This is all that Rule 404(b) requires." United States v. Thompson, No. 13-cr-378
(AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013). The Court concludes this schedule is
generally reasonable, although additional time to enable briefing and resolution in advance of
trial is strongly encouraged.
The Court's denial of Maxwell's requests to compel pretrial disclosures does not preclude
the parties from negotiating in good faith for an expedited discovery timeline that will account
for Maxwell's specific concerns. "[I]n most criminal cases, pretrial disclosure will redound to
the benefit of all parties, counsel, and the court." United States v. Percevault, 490 F.2d 126, 132
(2d Cir. 1974). In general, the Court will require the parties to negotiate a final, omnibus
schedule to propose to the Court. The Court concludes that the disclosure of all of the above
materials approximately six to eight weeks in advance of trial is appropriate and sufficient.
32
EFTA00020292
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 33 of 34
Given the complexities of the case and the addition of two counts via the S2 indictment, the
Court encourages the parties to agree to approximately eight weeks.
IX. The S2 superseding indictment moots Maxwell's grand jury challenge
The Court has not received supplemental briefing on the motions in light of the return of
the S2 superseding indictment and so does resolve any such issues here.' However, Maxwell's
motion seeking to dismiss the Si superseding indictment because it was returned by a grand jury
sitting at the White Plains courthouse appears moot. Maxwell argued that the use of a grand jury
drawn from the White Plains Division in this District did not represent a fair cross-section of the
community, because her trial would proceed in the Manhattan Division. A grand jury sitting in
Manhattan returned the S2 superseding indictment. By April 21, 2021, Maxwell shall show
cause why her grand jury motion should not be dismissed on that basis.
Conclusion
The Court DENIES Maxwell's motions to dismiss the indictment as barred by Epstein's
non-prosecution agreement (Dkt. No. 141), to dismiss the Mann Act counts as barred by the
statute of limitations (Dkt. No. 143), to dismiss the indictment for pre-indictment delay (Dkt. No.
137), to dismiss the Mann Act counts for lack of specificity (Dkt. No. 123), to dismiss the
perjury counts as legally untenable (Dkt. No. 135), to strike surplusage (Dkt. No. 145), to
dismiss count one or count three as multiplicitous (Dkt. No. 121), and to expedite pretrial
disclosures (Dkt. No. 147). The Court GRANTS Maxwell's motion to sever the perjury counts
for a separate trial (Dkt. No. 119).
' The parties shall negotiate and propose a schedule for any available additional or supplement rulings in
light of the filing of the S2 indictment.
33
EFTA00020293
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 34 of 34
The Court ORDERS the Government to confirm within one week whether it considers
any evidence related to negotiation of the non-prosecution agreement to constitute Brady or Rule
16 material and, if so, to confirm that it has or will disclose such evidence.
The Court further ORDERS the parties to negotiate a final schedule for all pretrial
disclosures that remain outstanding, including: Brady, Giglio, and Jenks Act materials, including
co-conspirator statements; non-testifying witness statements; testifying witness statements; the
identity of victims alleged in the indictment; 404(b) material; and the Government's witness list.
The Court also requires the parties to negotiate a schedule for any additional or supplemental
motions briefing in light of the S2 indictment. The Court ORDERS a joint proposal to be
submitted by April 21, 2021. If agreement is not reached, the parties shall submit their
respective proposals.
The Court further ORDERS Maxwell to show cause by April 21, 2021 why her motion to
dismiss the SI superseding indictment under the Sixth Amendment (Dkt. No. 125) should not be
denied as moot.
SO ORDERED.
Dated: April 16, 2021
New York, New York
ALISON J. NATHAN
United States District Judge
34
EFTA00020294