EFTA00028880.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
GHISLAINE MAXWELL,
Defendant.
20 Cr. 330 (AJN)
REPLY MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER MOTION TO DISMISS THE SUPERSEDING INDICTMENT
FOR BREACH OF THE NON-PROSECUTION AGREEMENT
Christian R. Everdell
COHEN & GRESSER LLP
Phone:
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
Phone:
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
Phone:
Attorneys for Ghislaine Maxwell
EFTA00028880

TABLE OF CONTENTS
Page
I. The NPA Applies to Ms. Maxwell, and She Has Standing to Enforce It. 2
II. The Co-Conspirator Immunity Provision is Not Limited to the SDFL. 7
III. The Co-Conspirator Immunity Provision Is Not Limited to the 2001-07 Time
Period or to Violations of Specific Statutes 13
IV. In the Alternative, the Court Should Conduct Discovery and an Evidentiary Hearing
Regarding the Parties' Intent. 16
CONCLUSION 18
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TABLE OF AUTHORITIES
Page(s)
Cases
Bank of New York Mellon Trust Co. v. Morgan Stanley Mortg. Capital, Inc.,
821 F.3d 297 (2d Cir. 2016) 8, 9
Collins v. Univ. of Notre Dame DU Lac,
929 F.3d 830 (7th Cir. 2019) 8, 9
Penncro Assocs., Inc. v. Sprint Spectrum, L.P.,
499 F.3d 1151 (10th Cir. 2007) 8, 9
United States v. Aleman,
286 F.3d 86 (2d Cir. 2002) 17
United States v. Annabi,
771 F.2d 670 (2d Cir. 1985) passim
United States v. CFW Const. Co.,
583 F. Supp. 197 (D.S.C. 1984), of d, 749 F.2d 33 (4'h Cir. 1984) 6
United States v. El-Sadig,
133 F. Supp. 2d 600 (N.D. Ohio 2001) 3, 6
United States v. Feldman,
939 F.3d 182 (2d Cir. 2019) 5, 6, 10, 17
United States v. Florida West Intl Airways, Inc.,
853 F. Supp. 2d 1209 (S.D. Fla. 2012) 3, 4, 6
United States v. Gebbie,
294 F.3d 540 (3d Cir. 2002) 12
United States v. Gonzalez,
93 F. App'x 268 (2d Cir. 2004) 8
United States v. Harvey,
791 F.2d 294 (4th Cir. 1986) 12
United States v. Mariamma Viju (01),
No. 3:15-CR-0240-B, 2016 WL 107841 (N.D. Tex. Jan. 11, 2016) 6
United States v. Padilla,
186 F.3d 136 (2d Cir. 1999) 10
EFTA00028882

United States v. Sattar,
272 F. Supp. 2d 348 (S.D.N.Y. 2003) 17
United States v. Van Thornout,
100 F.3d 590 (8th Cir. 1996) 12
Other Authorities
Dienst, J., Valiquette, J., Winter, T., and Fitzpatrick, S. "Jeffrey Epstein Confidante Ghislaine
Maxwell Arrested on Sex Abuse Charges." NBC New York. July 3, 2020 15
iii
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Ghislaine Maxwell respectfully submits this Memorandum in Support of her Motion to
Dismiss the Superseding Indictment for Breach of the Non-Prosecution Agreement ("Motion").
As though it were wielding an invisible ink pen, the government adds language to its
Non-Prosecution Agreement ("NPA") with Jeffrey Epstein that does not exist in the text, and
then pretends no one can see the clear, unambiguous language that does appear there. The plain
language of the NPA states, without limitation, that "the United States .. . will not institute any
criminal charges against any potential co-conspirators of Epstein." Because the Superseding
Indictment ("Indictment") contends that Ms. Maxwell was a co-conspirator of Epstein, the NPA,
on its face, applies here. Thus, the government's only argument, which it makes throughout its
opposition, is that the NPA means something other than what it says.
In suggesting that the parties to the NPA intended to immunize only the four individuals
specifically named in the co-conspirator immunity provision, the government flagrantly ignores
the express statement that immunity is "not limited to" those individuals. In arguing that the
provision binds only the United States Attorney's Office for the Southern District of Florida
("USAO-SDFL"), the government asks the Court to add the words "in this District" to that
provision, on the thin suggestion that the parties must have meant to include the same limitation
on location of prosecution that they included in Epstein's immunity provision, even though they
failed to do so. And for good measure, the government asks the Court to find that the parties
must have intended to limit co-conspirator immunity to specific statutory offenses committed
between 2001 and 2007, even though—again—no such limitation appears in the text of the co conspirator immunity provision.
Notwithstanding the bedrock principle that plea agreements are construed strictly against
the government, the government asks the Court to simply assume that the parties intended the
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NPA to be read more narrowly than the language provides, arguing that following the NPA's
plain language would contradict "common sense." (Opp.' 8, 16.) But a non-prosecution
agreement is not an ordinary contract. Federal prosecutors know how to draft clear limitations
on promises made to criminal defendants, and they have a unique obligation to do so. What
strains "common sense" is the notion that any reasonable prosecutor who intended the NPA to be
read as the government contends would have omitted the limitations and modifications the
government now seeks—particularly when dealing with a defendant who sought to "resolve
globally" his criminal liability. NPA at 2. The Court should therefore decline the government's
invitation to rewrite the NPA to its liking, should enforce the NPA as written, and should grant
Ms. Maxwell's Motion.
In the alternative, the Court should permit discovery and hold an evidentiary hearing to
determine the parties' intent with respect to the co-conspirator immunity provision. While Ms.
Maxwell contends that the NPA unambiguously bars her prosecution here, and that neither
discovery nor a hearing is necessary for the Court to grant this motion, the government's
arguments regarding the NPA parties' intent simply cannot be credited without the consideration
of evidence. Because Ms. Maxwell, as a nonparty, has no personal knowledge regarding the
parties' intent and no access to relevant documents, she should be permitted to take discovery in
advance of any hearing.
I. The NPA Applies to Ms. Maxwell, and She Has Standing to Enforce It.
The NPA's co-conspirator immunity provision forecloses "any criminal charges against
any potential co-conspirators of Epstein, including but not limited to" four named individuals.
NPA at 5 (emphasis added). The phrase "potential co-conspirators of Epstein" obviously
includes Ms. Maxwell. As the opening statement of the Indictment makes clear: "The charges
"Opp." refers herein to the Government's Omnibus Opposition to the Defendant's Pre-Trial Motions.
2
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set forth herein stem from the role of [Ms. Maxwell] in the sexual exploitation and abuse of
multiple minor girls by Jeffrey Epstein." Indictment ¶ I. The Indictment also contains two
conspiracy counts that charge Ms. Maxwell with conspiring with Epstein. Id. 119, 15.
According to the government, however, Ms. Maxwell's status as an alleged co conspirator of Epstein is somehow insufficient for an NPA that immunizes "potential co conspirators of Epstein" to apply to her. The government claims that there is "no evidence that
the parties intended to confer a benefit on her in particular." Opp. 20. In essence, the
government implausibly argues that even though the parties expressly agreed to immunize "any
potential co-conspirators of Epstein," only those individuals whom the parties were thinking
about "in particular" qualify for immunity. The government cites no support for the rule it has
concocted, and case law is to the contrary.
For example, in United States v. Florida West Intl Airways, Inc., 853 F. Supp. 2d 1209
(S.D. Fla. 2012), where a corporation had entered into a plea agreement that immunized its
employees, the court held that one of those employees had standing to enforce the agreement as a
third-party beneficiary by virtue of his employment; the court did not require a showing that the
parties thought about protecting that employee "in particular" when they agreed to immunize the
class. Id. at 1228. Similarly, in United States v. El-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio
2001), where a Saudi prince had entered into an agreement with the government that none of the
individuals involved in purchasing guns for two members of the Saudi royal family would be
prosecuted, the court did not require the defendant to show that the government and the prince
intended to immunize him "in particular"; to the contrary, as the court noted, the parties to the
agreement did not even discuss the defendant. Id. at 604.
3
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Ms. Maxwell thus need not show that the parties to the NPA were thinking of her "in
particular"; rather, it is sufficient that she falls within the class of individuals the parties to the
NPA intended to benefit. See, e.g., Florida West, 853 F. Supp. 2d at 1228 ("the signatory parties
unmistakably intended to confer immunity on a discrete class of corporations and individuals ...
that could include the Defendants"). And that class is clear from the face of the NPA: "any
potential co-conspirators of Epstein," i.e., anyone else who might be prosecuted in connection
with Epstein's conduct. NPA at 5.
Although the NPA expressly provides that that class is "including but not limited to" the
four individuals named in the co-conspirator immunity provision (NPA at 5), the government
asks the Court to disregard this plain language and instead credit a passage from the report of the
Department of Justice's Office of Professional Responsibility ("OPR Report"2) stating that the
line prosecutor who negotiated the NPA "believed" that only the four individuals expressly
named in the co-conspirator immunity provision "would benefit." Opp. 20-21 (quoting OPR
Report at 167). Regardless of the truth of this decade-after-the-fact and self-serving "belief," it
is immaterial. By agreeing to immunize "potential" co-conspirators "including but not limited
to" the four named individuals, the government explicitly agreed that the NPA would apply to
any others who might be charged as co-conspirators in the future—a class that includes Ms.
Maxwell.
The OPR Report itself re-affirms the intent to extend immunity beyond those already
identified as potential co-conspirators. In reviewing the negotiating history of the parties over
this provision, the OPR Report notes that the government had not specifically contemplated other
potential co-conspirators, yet it also demonstrates that the Epstein defense lawyers consistently
2 The OPR Report, of which only the executive summary had been released previously, has been submitted as
Exhibit 3 to the government's opposition.
4
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and successfully pushed back against the government's attempts to limit the scope of the
provision. Epstein's lawyers, in fact, insisted on a proposal that would have immunized the four
individuals, "any employee" of one of Epstein's companies, and "any unnamed co-conspirators
for any criminal charge that arises out of the ongoing federal investigation." OPR Report at 166
n.237. Defense counsel's efforts were in line with their representations to the government that
Epstein "wanted to make sure that he's the only one who takes the blame for what happened."
Id. at 167 (internal quotations omitted). When the government "finally revised" the language to
the provision that appears in the signed NPA, it obviously acceded to defense's counsel's desire
to leave open the possibility that other "potential co-conspirators" might someday have occasion
to invoke the immunity provision. Id. at 166.
In addition to being irrelevant, the government's argument that Ms. Maxwell had largely
escaped its attention at the time of the NPA is demonstrably incorrect. The government's own
file demonstrates that the FBI had interviewed Accuser-23 in 2006 (Opp. 16 n.9; Dkt. 148, Ex. B
(sealed)), and thus had obviously learned of Accuser-2's claims regarding Ms. Maxwell now
included in the Indictment. Indeed, an internal FBI document expressly names Ms. Maxwell as
one of the individuals that the FBI's Miami office "began investigating" in 2006 as part of the
investigation that led to the NPA. (See Ex. A). Thus, the government was clearly aware of Ms.
Maxwell at the time it executed the NPA and agreed to extend the immunity provision to "any
potential co-conspirators." She is covered by the NPA.
As a third party immunized by the NPA, Ms. Maxwell has third-party beneficiary status
to enforce it. While the government cites United States v. Feldman, 939 F.3d 182 (2d Cir. 2019),
for the proposition that "plea agreements differ from commercial contracts" (Opp. 18), the
"differ[ence]" to which the Second Circuit was referring was that in construing a plea agreement,
3 Accuser-2 is identified in the Indictment as Minor Victim-2.
5
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courts hold the government to an even higher standard than parties to a commercial contract.
Feldman, 939 F.3d at 189 (describing "meticulous standards of performance" to which
prosecutors are held in negotiating plea agreements). As the government acknowledges, at least
three courts have applied the third-party beneficiary doctrine to confer standing on third parties
to enforce immunity provisions in plea agreements. Florida West, 853 F. Supp. 2d at 1228; El Sadig, 133 F. Supp. 2d at 608-09; United States v. CFWConst Co., 583 F. Supp. 197, 203
(D.S.C. 1984), aff'd, 749 F.2d 33 (4th Cir. 1984). The government's attempt to distinguish these
cases on the ground that they did not "analyze" the applicability of the third-party beneficiary
doctrine to plea agreements (Opp. 19) is utterly nonsensical. As demonstrated in Ms. Maxwell's
opening memorandum ("Mem."), all three courts expressly held that the doctrine applies. Mem.
16-17.
The lone case cited by the government to the contrary does not suggest a different result
here. In United States v. Mariamma Viju (01), the court held that a third party may not enforce
rights under a plea agreement "[w]here the defendant himself can obtain relief" from a broken
plea deal." No. 3:15-CR-0240-B, 2016 WL 107841, *4 (N.D. Tex. Jan. II, 2016). Here,
Epstein cannot obtain relief for the government's breach of the NPA; not only is he deceased, but
he served the sentence stemming from his guilty plea long before his death, paid millions of
dollars to accusers under the NPA's claims provision, and thus would have had no occasion to
enforce the NPA by withdrawing his guilty plea. Nor is it clear that Epstein could have
withdrawn his plea had the NPA been breached while he was serving his sentence, given that the
NPA—unlike a plea agreement—was not submitted to the state court in which Epstein entered
his plea.
6
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In sum, the Indictment itself establishes Ms. Maxwell as a "potential co-conspirator of
Epstein," and the clear weight of authority vests her with standing to enforce the co-conspirator
immunity provision as a third-party beneficiary.
II. The Co-Conspirator Immunity Provision is Not Limited to the SDFL.
Ms. Maxwell demonstrated in her opening brief that the NPA, read as a whole, creates an
affirmative appearance that the parties intended the co-conspirator immunity provision—unlike
Epstein's immunity provision—to apply outside the Southern District of Florida ("SDFL"). In
arguing that the NPA's selective use of language limiting the scope of Epstein's immunity
applies to the entire NPA, the government inverts fundamental principles of contract law and
asks the Court to read nonexistent limitations into the NPA. The government then, incredibly,
proceeds to fault Ms. Maxwell—a nonparty to the NPA—for failing to possess and produce
evidence regarding the parties' intent in negotiating the agreement. While the text of the NPA,
read using basic principles of contractual interpretation, unambiguously prohibits the
government from prosecuting Epstein's potential co-conspirators in any district, to the extent that
the Court finds it necessary to consider extrinsic evidence, that evidence is in the hands of the
government and Epstein's attorneys—and thus Ms. Maxwell should be permitted to obtain it
through discovery.
The government argues that application of the co-conspirator immunity provision beyond
the SDFL is barred by United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) (per curiam), in
which the Second Circuit stated that "[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." Id. at 672.4 Ms. Maxwell's opening brief
4 Contrary to the government's suggestion, no court has held that an "affirmative[] appear[ance]" requires an explicit
"promise to bind other districts." See Opp. 4. Rather, in interpreting a plea agreement, "[t]he court looks to the
7
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demonstrated that the NPA, as a whole, gives rise to such an appearance—and the government
offers no reasonable alternative interpretation.
Unlike Annabi and its progeny, the NPA here contains significant evidence of the parties'
intent to apply the co-conspirator immunity provision outside the SDFL. While the provision
granting immunity to Epstein himself expressly limits his immunity to prosecutions "in this
District," NPA at 2, the co-conspirator immunity provision contains no such limitation.
"[W]here contract provisions use different language, courts must assume the parties intended
different meanings." Bank of New York Mellon Trust Co. v. Morgan Stanley Mortg. Capital,
Inc., 821 F.3d 297, 309 (2d Cir. 2016); see also Collins v. Univ. of Notre Dame Du Lac, 929 F.3d
830, 841 (7th Cir. 2019) (noting "common, if not automatic presumption" that "when parties to
the same contract use such different language to address parallel issues, it is reasonable to infer
that they intend this language to mean different things") (internal punctuation and citation
omitted); Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156-57 (10th Cir.
2007) (same). Thus, the appropriate inference here is that the parties intended to limit Epstein's
immunity, but not immunity for potential co-conspirators, to prosecutions in the Southern
District of Florida ("SDFL").
The government offers no reasonable alternative explanation for the contrasting language
in the two provisions. Instead, it argues that because the parties limited Epstein's immunity to
the SDFL, they must have meant to limit co-conspirators' immunity to the SDFL as well, but
must have forgotten to include the appropriate language. This argument—that the use of
different language in parallel provisions compels an inference that identical, rather than different
meanings, are intended—turns fundamental contract interpretation on its head. See, e.g., Bank of
reasonable understanding of the parties as to the terms of the agreement." United States v. Gonzalez, 93 F. App'x
268, 270 (2d Cir. 2004) (internal citations and emphasis omitted).
8
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New York Mellon Trust Co., 821 F.3d at 309; Collins, 929 F.3d at 841; Penncro Assocs., 499
F.3d at 1156-57. Here, the NPA contains only two immunity provisions: one for Epstein, which
is expressly limited to the SDFL, and one for co-conspirators, which is not. The government's
claim that this distinction reflects an intent to apply the limitation universally strains credulity.5
It is simply inconceivable that any reasonable prosecutor who intended to limit the co conspirator immunity provision to the SDFL—and who had thought to include precisely such
limiting language in Epstein's immunity provision—would have found it unnecessary to include
identical language in the co-conspirator immunity provision. Indeed, the omission reveals an
intent not to so limit that provision.
Ms. Maxwell's opening memorandum pointed out a second indication in the text of the
NPA that the parties intended to apply the co-conspirator immunity provision outside the SDFL:
where a provision in the NPA is intended to refer only to the USAO-SDFL, it does so explicitly.
See Mem. at 8-9 (citing examples of NPA's explicit references to USAO-SDFL). While the
government is correct that the use of the term "the United States" in a plea agreement, without
snore, is insufficient under Annabi and its progeny to demonstrate an intent to bind other
districts, the NPA's references to both the USAO-SDFL and "the United States" require an
inference that a distinction between the two is intended—and that where "the United States" is
used, the intent is to refer to the government as a whole. Again, "where contract provisions use
different language, courts must assume the parties intended different meanings." Bank of New
York Mellon Trust Co., 821 F.3d at 309. The government does not even attempt to offer an
s The government incorrectly cites to a brief filed by the USAO-SDFL in 2013 as taking the position that "the NPA
did not bind other districts." Opp. 13 (quoting Government Brief, 08 Civ. 80736 (KAM), Dkt. No. 205.2, at 10-11
(S.D. Fla.)). But the cited passage in that brief argued only that the NPA did not bar the prosecution of Epstein in
other districts, which is not in dispute; it made no such argument with respect to the prosecution of potential co conspirators. In any event, any self-serving attempts by the USAO-SDFL to limit the NPA's applicability years
after it was executed—after the NPA had been widely criticized and scrutinized—are no more probative of the
parties' intent in 2007 than the arguments made by the government here.
9
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alternative explanation for this difference in terminology, reasonable or otherwise—presumably
because it cannot.
Thus, a drafting prosecutor who intended to limit the co-conspirator immunity provision
to the SDFL clearly knew how to do so, using either of two methods employed elsewhere in the
document. The government could have used the same language in the co-conspirator immunity
provision that it used in the Epstein immunity provision, providing that "the United States ...
will not institute any criminal charges in this District against any potential co-conspirators of
Epstein." It did not. Alternatively, it could have referred expressly to the USAO-SDFL, as it did
elsewhere in the NPA, and provided that "the United States Attorney's Office . . . will not
institute any criminal charges against any potential co-conspirators of Epstein." Again, it did
not. It would be absurd to conclude that a reasonable prosecutor who had used both drafting
tools to limit other provisions of the NPA, yet failed to use either of them in the co-conspirator
immunity provision, intended to impose the same limitations on the co-conspirator immunity
provision—let alone that Epstein would reasonably have understood this intent.
The government's inability to provide a reasonable alternative explanation for its use of
different language in the different provisions of the NPA removes any potential ambiguity from
the co-conspirator immunity provision. But to the extent there remains any doubt, plea
agreements must be construed "strictly against the government," Feldman, 939 F.3d at 189
(internal citations omitted), and the government is held "responsible for imprecisions or
ambiguities in the agreement." United States v. Padilla, 186 F.3d 136, 142 (2d Cir. 1999).
While the government argues that Annabi relieves it of this responsibility where the
"imprecisions or ambiguities" relate to the geographic applicability of a plea agreement (Opp. 6
n.2), it cites no authority for this proposition. While Annabi requires an affirmative appearance
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that the NPA is binding outside the SDFL, any ambiguity as to whether such an appearance
exists must still be resolved against the govemment.6
Nor does the idea that the government agreed to broader immunity for Epstein's potential
co-conspirators than for Epstein himself "strain[] common sense," as the government argues.
See Opp. 8. According to the OPR Report, the line prosecutor stated that her office "considered
Epstein to be the top of the food chain, and we wouldn't have been interested in prosecuting
anyone else." OPR Report at 70. She also reportedly said that Epstein "wanted to make sure
that he's the only one who takes the blame for what happened." Id. at 167 (internal quotations
omitted). And Epstein and his counsel were clearly aware that the investigation had extended
beyond the SDFL and involved New York-based witnesses. Under such circumstances, any
competent defense lawyer would have sought the broadest immunity possible for Epstein's
potential co-conspirators, in order to limit the potential that he would become embroiled in the
prosecution of a third party—and in fact, Epstein did not agree to the NPA until the co conspirator immunity provision was included. And it is entirely logical that the government
agreed to a broader immunity for potential co-conspirators, whom it had no interest in
prosecuting, than for Epstein himself, who was the sole focus of the government's prosecution
efforts. This outcome is consistent with the language of the NPA.
The text of the NPA, read as a whole, thus creates an affirmative appearance that the co conspirator immunity provision is not limited to the SDFL, and it is unnecessary for the Court to
6 Notwithstanding the mountain of authority, in this Circuit and elsewhere, articulating the exacting standards to
which the government is to be held in negotiating a plea agreement, the government implies that such standards
somehow do not apply when the plea agreement is enforced by a third party. Opp. 6 n.2. This suggestion is
unsupported by any authority, and the government offers no explanation why its promises of third-party immunity
should be held to a lower standard than other provisions of a plea agreement.
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consider extrinsic evidence of the parties' intent.' To the extent that the Court finds that
extrinsic evidence is relevant, however, the government's argument demonstrates precisely why
the Court should permit discovery in this action. While the government ludicrously faults Ms.
Maxwell for failing to produce "documentary evidence" of the parties' intent and the scope of
the SDFL investigation (Opp. 10), Ms. Maxwell, as a nonparty to the NPA, has no access to such
evidence without discovery. Any evidence of the parties' intent would be in the possession of
the government and Epstein's counsel, and at this stage, Ms. Maxwell can only scour the few
clues available to the public—such as a privilege log filed in a related civil lawsuit-for crumbs
of information about the negotiation and investigation.
The government's response to those crumbs illustrates why any consideration of extrinsic
evidence—which, as noted above, is unnecessary given the unambiguous text of the NPA—
should be preceded by discovery. In her opening memorandum, Ms. Maxwell cited to three
pages from the above-referenced privilege log in a civil lawsuit filed by one of Epstein's victims,
all of which contain entries reflecting the USAO-SDFL's consultation with the United States
Attorney's Office for this District, travel by USAO-SDFL attorneys to New York, or interviews
and/or subpoenas of New York-based witnesses. Mem. at 11 (citing Privilege Log, Doe v.
United States, Case No. 9:08-CV-80736 (S.D. Fla.), Dkt. No. 212-1 (filed July 19, 2013)
("SDFL Privilege Log"), at 4, 5, 7). In response, the government has focused on only one of
those three entries and produced the documents referenced in the privilege log. See Opp. 10.
7 The government's argument that a United States Attorney lacks the "authority" to bind other districts (Opp. 13-
14)—and that the government can simply walk away from a plea agreement in which a United States Attorney has
not received the approvals prescribed by internal Justice Department guidelines—is unavailing. The government
cites no case in which a court has invalidated a plea agreement on this basis, and its argument is contradicted not
only by the Third, Fourth, and Eighth circuits—in which the default rule is that plea agreements bind other
districts—but also by the Second Circuit's statement that a United States Attorney may bind other districts in a plea
agreement if there is an affirmative appearance to that effect. United States v. Gebhie, 294 F.3d 540, 54749 (3d
Cir. 2002); United States v. Van Thornout, 100 F.3d 590, 594 (8th Cir. 1996); United States v. Harvey, 791 F.2d
294, 303 (4th Cir. 1986); Annaba, 771 F.2d at 672.
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The other two documents remain unavailable to Ms. Maxwell—as, presumably, do other
documents whose existence cannot be discovered in the public record. Nor has Ms. Maxwell
had the opportunity to question those involved in the investigation and negotiation. It is patently
unreasonable for the government to blame Ms. Maxwell for failing to produce evidence relating
to the investigation and negotiation leading up to the NPA, while simultaneously opposing her
request for discovery and cherry-picking its responses to the limited publicly available
information she has been able to identify. That limited information has already yielded
supportive documents and more will no doubt follow with further discovery.
III. The Co-Conspirator Immunity Provision Is Not Limited to the 2001-07 Time Period
or to Violations of Specific Statutes.
The government's argument that the co-conspirator immunity provision does not apply to
the time period or the offenses charged in the Indictment consists of (i) asserting that the NPA
says things it does not, in fact, say and (ii) attacking a strawman position, never asserted by Ms.
Maxwell, that the NPA gives Ms. Maxwell carte blanche immunity from federal prosecution for
all past and future criminal conduct of any kind, wherever and whenever committed. The co conspirator immunity provision simply does not contain the limitations the government now
seeks to attribute to it, and Ms. Maxwell's position that it prohibits the Mann Act charges against
her is entirely reasonable,
8
First, the government's assertion that "the NPA contains detailed provisions that limit the
scope of the crimes immunized in the agreement" is simply not true. See Opp. 15. The NPA
contains only vague limitations as to the scope of Epstein's immunity, and no limitations
whatsoever as to the scope of immunity for potential co-conspirators.
8 To be clear, Ms. Maxwell does not assert that the NPA forecloses the perjury counts of the Indictment, which arise
out of alleged post-NPA conduct.
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As to Epstein, the NPA prescribes immunity for three categories of offenses: (i) "the
offenses set out on pages 1 and 2 of this Agreement"; (ii) "any other offenses" that were the
subject of the "joint investigation" by the FBI and the USAO-SDFL; and (iii) "any offenses that
arose from the Federal Grand Jury investigation." NPA at 2. The government's assertion that
the NPA bars prosecution only for "the specific offenses enumerated in the NPA" (Opp. 15-16)
deliberately ignores the second and third categories listed above. The second category is
significant because, contrary to the government's argument, the NPA does not purport to "list[]
each and every statutory offense under investigation" (see Opp. 15); rather, it states only that the
investigation involved offenses "including" those enumerated. NPA at 1. Moreover, the NPA
expressly states that the joint investigation included not only offenses committed from
approximately 2001 to 2007, but also "Epstein's background.s9 Id. The scope of the third
category—offenses that arose "from the Federal Grand Jury investigation"—is completely
unknown, as the NPA neither defines the term "Federal Grand Jury investigation" nor describes
its scope. But the text of the NPA provides no basis for the government's assertion that Epstein
was immunized only as to the specific offenses enumerated on the first two pages.
As an example, the USAO-SDFL acknowledges that it interviewed Accuser-2 as part of
its investigation. Opp. 16 n.9. Thus, the USAO-SDFL obviously was aware of the allegations
by Accuser-2 against Epstein as set forth in the Indictment, allegations that entail the 1994-97
time period at issue in this case and the offenses with which Ms. Maxwell is charged. If the
NPA were strictly limited to the 2001-07 time period and to the specific offenses enumerated, as
9 Contrary to the government's argument, Ms. Maxwell does not contend that the NPA "immunize[d] Epstein for his
`background.'" See Opp. 16 n.9. On its face, however, it immunized Epstein for offenses that were the subject of
the joint investigation—an investigation that, according to the NPA, included Epstein's background. NPA at 1. To
the extent that the joint investigation of Epstein's background uncovered offenses prior to 2001 (such as the conduct
underlying the charges against Ms. Maxwell here), the plain language of the NPA immunized Epstein from
prosecution for those offenses.
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the government claims, it would not have precluded even the SDFL from bringing charges
arising out of Accuser-2's allegations of conduct in the 1990s. The government cannot seriously
make such an argument.
Even the vague contours of the limitations on Epstein's immunity, however, are absent
from the co-conspirator immunity provision. And while the government claims it would be
"exceedingly strange" to interpret the co-conspirator immunity provision more broadly than
Epstein's immunity provision (Opp. 16), as explained in Part H above, such an interpretation is
entirely consistent with the government's focus on Epstein vis-à-vis potential co-conspirators. It
would be "exceedingly strange," however, for a federal prosecutor who intended to limit co conspirator immunity to specific conduct or specific offenses to omit such limitations from the
text of an immunity provision in a non-prosecution agreement.
Unable to explain the absence of such limiting language, the government resorts to the
reductio ad absurdum argument that unless the Court writes into the NPA the language the
government now wishes had been included in 2007, Ms. Maxwell can claim that "she is immune
from prosecution for any federal crime, during any time period, anywhere, in the United States."
Opp. 3 (emphasis in original). Ms. Maxwell makes no such argument, and a faithful
interpretation of the NPA leads to no such conclusion. Ms. Maxwell contends only that a
provision that immunizes "potential co-conspirators of Epstein" precludes their prosecution for
conduct allegedly done in conspiracy with Epstein—conduct that even the United States
Attorney for this District has characterized as a "prequel" to offenses by Epstein that the NPA
undisputedly immunizes. See, e.g., Dienst, J., Valiquette, J., Winter, T., and Fitzpatrick, S.
"Jeffrey Epstein Confidante Ghislaine Maxwell Arrested on Sex Abuse Charges." NBC New
York. July 3, 2020 (https://www.nbcnewyork.com/news/local/crime-and-courts/ghislaine 15
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maxwell-arrested-jeffrey-epstein-aide/2495762/). Such an interpretation, rather than an insertion
into the co-conspirator immunity provision of arbitrary limitations designed to satisfy the
government's interests here, is the "common-sense way to read the NPA" that the Court should
adopt. See Opp. 16.
IV. In the Alternative, the Court Should Conduct Discovery and an Evidentiary
Hearing Regarding the Parties' Intent.
For the reasons explained above, Counts One through Four have been brought in breach
of the NPA and should be dismissed. The text of the NPA, read as a whole, unambiguously bars
Ms. Maxwell's prosecution here, and the government is reduced to arguing that the parties must
have meant to write various provisions of the NPA differently than they actually did. These
arguments are manifestly inadequate, and they should be rejected.
Should the Court have any doubt about the parties' intent, however, discovery and an
evidentiary hearing regarding the parties' intent are warranted. The government's arguments
regarding the parties' intent simply cannot be credited without the presentation of evidence. For
example, to the extent that the scope of offenses for which the NPA immunized Epstein is
deemed relevant to the co-conspirator immunity provision, that scope cannot be delineated
without determining precisely which offenses might have arisen out of the investigation by the
FBI and the USAO-SDFL (including the investigation into "Epstein's background"), as well as
which offenses arose out of the undefined "Federal Grand Jury investigation." Similarly, the
government's claims that the parties did not intend to confer the benefit of immunity on Ms.
Maxwell, and that the parties intended to limit the co-conspirator immunity provision to the
SDFL, raise issues regarding the scope of the SDFL investigation, the USAO-SDFL's awareness
of Ms. Maxwell, and the extent to which the investigation involved this District. These issues
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cannot be resolved in the government's favor on this record, and the plain language of the NPA
cannot be disregarded without discovery and an evidentiary hearing.
The government argues that Ms. Maxwell is not entitled to an evidentiary hearing
because she has not submitted affidavits, and that she is not entitled to discovery because she has
offered only "conjecture." Opp. 22. But unlike the cases the government cites, Ms. Maxwell has
submitted evidence far more powerful than an affidavit claiming an oral agreement: she has
submitted the NPA itself, which, on its face, bars her prosecution. See Feldman, 939 F.3d at
184, 190 (hearing based on oral representations made to defendant); United States v. Aleman,
286 F.3d 86, 91 (2d Cir. 2002) (granting hearing where defendant submitted attorney affidavits
alleging oral agreement); United States v. Sattar, 272 F. Supp. 2d 348, 383 (S.D.N.Y. 2003)
(same). Ms. Maxwell's contention that the plain language of the NPA reflects the parties' intent
is not "conjecture," and the Court cannot find to the contrary without hearing evidence—
evidence that we anticipate would confirm that the parties intended the NPA to mean exactly
what it says and that it bars the prosecution of Ms. Maxwell, but is unavailable to Ms. Maxwell
without discovery.1°
10 In addition, unlike the defendants in the cases the government cites, Ms. Maxwell was a nonparty to the NPA, and
her attorneys thus have neither firsthand knowledge of the parties' intent nor access to evidence regarding the
parties' intent While the government points out that Ms. Maxwell has not submitted an affidavit from Epstein's
counsel, defense counsel notes that it has made several unsuccessful attempts to obtain information from Jay
Lelkowitz, the attorney who was principally involved in negotiating the language of the NPA on Epstein's behalf.
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CONCLUSION
For the reasons set forth herein, Ms. Maxwell respectfully requests that her motion to
dismiss be granted. In the alternative, Ms. Maxwell respectfully requests discovery and
evidentiary hearing regarding the parties' intent in negotiating the NPA.
Dated: March 15, 2021
New York, New York
Respectfully submitted,
/s/ Christian R. Everdell
Christian R. Everdell
COHEN & GRESSER LLP
Phone:
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
Phone:
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
Phone:
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 within memorandum and any accompanying
exhibits upon the following:
U.S. Attorney's Office, SDNY
Is/ Christian Everdell
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