EFTA00019291.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA,
v.
GHISLAINE MAXWELL,
Defendant.
x
20 Cr. 330 (AJN)
REPLY MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER RENEWED MOTION FOR BAIL
Mark S. Cohen
Christian R. Everdell
COHEN & GRESSER LLP
800 Third Avenue
New York, NY 10022
Phone: 212-957-7600
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
150 East 10th Avenue
Denver, CO 80203
Phone: 303-831-7364
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
33 West 19th Street - 4th Floor
New York, NY 10011
Phone: 212-243-1100
Attorneys for Ghislaine Maxwell
EFTA00019291

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT 1
ARGUMENT 2
1. The Government Concedes that Its Case Relies Almost Exclusively on the
Testimony of Three Witnesses 2
II. The Government Has Not Carried Its Burden 4
A. The Government Asks the Court to Ignore Ms. Maxwell's Substantial
Ties to the United States, Including Her Spouse-4
B. Ms. Maxwell Has Thoroughly Disclosed Her Finances and Pledged All
of Her and Her Spouse's Assets in Support of Her Bond 5
C. The Government's Assertion that Ms. Maxwell Is "Adept" at Hiding and
Therefore a Flight Risk Is Specious 7
D. Extradition from France or the United Kingdom Is Highly Unlikely 8
E. The Recent COVID Surge at MDC Further Justifies Bail 10
CONCLUSION 10
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TABLE OF AUTHORITIES
Page(s)
Cases
United States v. Chen,
820 F. Supp. 1205 (N.D. Cal. 1992) 10
United States v. Orta,
760 F.2d 887 (8th Cir. 1985) 1
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TABLE OF EXHIBITS
Exhibit A. Julie Addendum Opinion (France)
Exhibit B. Perry Addendum Opinion (U.K.)
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PRELIMINARY STATEMENT
The only issue before the Court is whether conditions exist that can reasonably assure
Ms. Maxwell's appearance during this case. On this renewed application, Ms. Maxwell has put
before the Court a significant bail package, supported by detailed submissions, which warrant
her release on strict conditions. She and her spouse have committed to signing a bond in the full
amount of their net worth, regardless of the ownership of the underlying assets. She has
proffered seven additional sureties, consisting of her family and close friends, many of whom are
U.S. citizens and long-time residents, who have come forward at great personal risk and have
pledged meaningful assets. The government does not challenge the good faith and bona fides of
these proposed sureties. She has provided a detailed report from a respected accounting firm,
which was further reviewed by a former IRS special agent, setting forth a statement of her
financial condition, supported by voluminous documentation. The government does not
challenge the report's findings, nor its underlying documentation. She has agreed, in writing, to
give up any right she has or could have to contest extradition and submit to all other standard
travel restrictions. And she has noted that a key representation made by the government at the
initial bail hearing as to the strength of its evidence is simply not accurate
--
and there is no "significant contemporaneous documentary
evidence" that corroborates its case.
With regard to any other defendant, this record would readily support release on strict
bail conditions, perhaps even on consent. But this is Ghislaine Maxwell, the apparent substitute
for Jeffrey Epstein. So, instead, in its response the government urges the Court to disregard the
significant additional evidence proffered to the Court and further argues that a defendant cannot
be eligible for bail (apparently on any conditions), unless she can provide an absolute guarantee
against all risks. But this is not the legal standard. United States v. Orta, 760 F.2d 887, 888 n.4,
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892-93 (8th Cir. 1985) ("The legal standard required by the [Bail Reform] Act is one of reasonable
assurances, not absolute guarantees."). Under, the Bail Reform Act, a defendant must be released
unless there are "no conditions" that would reasonably assure her presence. Here, the proposed
package satisfies the actual governing standard, and the Court should grant bail.
ARGUMENT
I. The Government Concedes that Its Case Relies Almost Exclusively on the
Testimony of Three Witnesses
In evaluating the strength of the government's case in its prior ruling, the Court relied on
the government's proffer that the testimony of the three accusers would be corroborated by
"significant contemporaneous documentary evidence." (Tr. 82 (emphasis added)). The
government now expressly retreats from this position. It is abundantly clear from the
government's response that it has no "significant contemporaneous documentary evidence"—in
fact, it has virtually no documentary corroboration at all—and that its case against Ms. Maxwell
is based almost exclusively on the recollections of the three accusers, who remain unidentified,
concerning events that took place over 25 years ago. Moreover, the government offers no
specificity about when within the four-year period of the charged conspiracy the alleged
incidents of abuse took place. This, alone, is grounds for the Court to reconsider its prior ruling.
The few examples of documentary corroboration referenced by the government—which
are the same examples that the government touted at the initial bail hearing—pertain to Epstein,
not Ms. Maxwell. The government concedes that
(Gov. Mem. at 11 (emphasis added)). The
government further states that
(Id.
(emphasis added)). The strength of the government's case against Jeffrey Epstein is not at issue
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here. Whether or not the accusers' recollections as to Epstein are corroborated is irrelevant to
the strength of the evidence against Ms. Maxwell.
The only purported corroboration that pertains in any way to Ms. Maxwell is of marginal
value. The government references
■ (Id. at 11). But even the government concedes that, at best,
It is clear that the only evidence that Ms. Maxwell allegedly "groomed" the accusers or
knowingly facilitated or participated in Epstein's sexual abuse of minors will come solely from
the testimony of the three accusers. The government's case against Ms. Maxwell therefore rests
entirely on the credibility and reliability of these three witnesses.2 Moreover, the substantive
counts (Counts Two and Four) are based on the testimony of only one witness, Minor Victim-1.
It is also telling that the government does not even attempt to rebut the defense's assertion that it
did not begin issuing subpoenas for documents related to Ms. Maxwell until just after the death
of Jeffrey Epstein. This confirms that the case against Ms. Maxwell was assembled after the fact
I The government also proffers that they will have "additional witnesses." (Gov. Mem. at 11). But these are not
"outcry" witnesses who will corroborate a contemporaneous account of abuse from one or more of the accusers.
Instead, they will testify only that "both [Ms. Maxwell] and Epstein knew and interacted with certain minor victims
when those victims were minors." (Id.). Again, the fact that Ms. Maxwell may have "met and interacted with"
someone when they were a minor proves absolutely nothing.
2 One of the witnesses has submitted a letter to the Court. While the CV RA permits the right to be heard, the letter
should be given no legal weight in the Court's bail analysis. See United States v. Turner, 367 F. Supp. 2d 319, 33 I 32 (E.D.N.Y. 2005)
3
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as a substitute for its prosecution of Epstein.; The government's case is not what it represented
to the Court at the initial bail hearing, which should weigh heavily in favor of granting bail.4
II. The Government Has Not Carried Its Burden
A. The Government Asks the Court to Ignore Ms. Maxwell's Substantial
Ties to the United States, Including Her Spouse The government incorrectly argues that the renewed bail application offers no new
information and that the Court was "already aware of the defendant's friends and family in
the United States. (Gov. Mem. at 13). The government ignores that, since the initial bail
hearing, Ms. Maxwell's spouse has come forward as a co-signor and has submitted a
detailed letter describing his committed relationship with Ms. Maxwell for over four years
and the important role she has played, and continues to play,
It also ignores that several of Ms. Maxwell's closest friends and family, many of
whom are U.S. citizens and residents, have also come forward, at considerable personal risk,
to support her bond with pledges of assets or letters of support. This information, which
was not available to the Court at the time of the initial hearing, demonstrates Ms. Maxwell's
strong ties to this country and weighs heavily in favor of bail.
Rather than address the merits, the government attempts to dismiss the significance
of Ms. Maxwell's relationship with her spouse, noting that Ms. Maxwell told Pretrial
Services that she was in the process of getting a divorce and that her spouse did not step
forward as a co-signer at the initial bail hearing. (Id. at 13-14). The government is entirely
3 Moreover, the government failure to requesill.MMI regardless of whether it was legally obligated to
do so. shows that the government has accept e accusers accounts without serious scrutiny. Given the
ovenunent's ongoing Brach• obligations, it is unsettling that the government would simply acc
4 Contrary to the government's assertion. the defense has not abandoned our legal challenges to the indictment.
(Gov. Mem. at 10 n.1). We believe we have strong arguments that have only gotten stronger with the production of
discovery. We will be making those arguments to the Court in our pretrial motions to be filed next month.
4
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mistaken. Prior to her arrest, Ms. Maxwell and her spouse had discussed the idea of getting
a divorce as an additional way to create distance between Ms. Maxwell and her spouse to
protect him-from the terrible consequences of being associated with her.
Nevertheless, in the weeks following the initial bail hearing,
She and her spouse therefore had no reason to continue
discussing divorce, which neither of them wanted in the first place. Nor was there any
reason for her spouse to refrain from stepping forward as a co-signer. In sum, the
government has offered nothing but unsupported innuendo to suggest that Ms. Maxwell's
relationship with her spouse is not a powerful tie to this country.
The government's assertion that Ms. Maxwell must not have a close relationship
with is particularly callous
and belied by the facts. (Gov. Mem. at 14). As her spouse explains,
(Ex. A ¶ 12).
B. Ms. Maxwell Has Thoroughly Disclosed Her Finances and Pledged All of
Her and Her Spouse's Assets in Support of Her Bond
The government's attempts to rebut the financial condition report are unavailing.
Significantly, the government does not contest the accuracy of the report, nor the
voluminous supporting documentation. In fact, the government has proffered nothing that
calls into question the report's detailed account of Ms. Maxwell and her spouse's assets for
the last five years, which addresses one of the Court's principal reasons for denying bail.
Rather than question the report itself, the government attempts to argue that Ms.
Maxwell deceived the Court and Pretrial Services about her assets. (Gov. Mem. at 22-23).
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The report shows nothing of the sort. Ms. Maxwell, who was sitting in a jail cell at the time,
was asked by Pretrial Services to estimate her assets. Accordingly, she gave her best
estimate of the assets she held in her own name, which the government concedes she did
with remarkable accuracy considering that she had not reviewed her financial statements.5
The government's arguments further confirm that it has lost all objectivity and will
view at any fact involving Ms. Maxwell in the worst possible light. For example, the
government asserts that Ms. Maxwell has demonstrated "sophistication in hiding her assets"
and characterizes her transfers to a trust as "funneling" assets to her spouse to "hide her true
wealth." (Id. at 24). There is nothing unusual, let alone nefarious or even particularly
sophisticated about transferring assets into a trust or a spouse. Indeed, Ms. Maxwell fully
disclosed these transactions on her joint tax returns. More importantly, all of the assets
disclosed in the financial report, whether they are owned by Ms. Maxwell or her spouse, are
included in the bond amount and are subject to forfeiture if she flees.
The government further argues that the financial condition report shows that Ms.
Maxwell has access to millions of dollars of "unrestrained funds" that she could use to flee
the country and reimburse any of her sureties for the loss of their security. (Id. at 23). That
characterization is simply untrue. First, as disclosed in the financial report, Ms. Maxwell
has procured significant loans on the basis of a negative pledge over her London property.
Second, the $4 million controlled by her spouse
could only be liquidated with considerable difficulty.
The government also faults Ms. Maxwell for not including a valuation of future
contingent assets and income that may never materialize. (Id. at 23-24). For example,.
5 Moreover, for the reasons discussed in our initial memorandum, Ms. Maxwell was reluctant to discuss anything
about her spouse and clearly expressed her reluctance to Pretrial Services early on in the interview.
6
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Similarly, the financial report does not include
a future income stream for Ms. Maxwell or her spouse because it presents only historical
and current assets. Even so, Ms. Maxwell has no certain future income stream. Her spouse
El and has had to liquidate his existing investments to help Ms. Maxwell. Finally, the
reference to is gratuitous. Ms. Maxwell had no knowledge of
But the larger point is this: Ms. Maxwell has proposed a substantial bail package
with multiple co-signers and significant security. She and her spouse have pledged all of
their assets in support of the bond. Ms. Maxwell's wealth is not a reason to deny her bail. It
is a reason to set appropriately strict conditions that will result in significant financial
consequences to Ms. Maxwell and her friends and family if she leaves the country. The
proposed bail package does exactly that.°
C. The Government's Assertion that Ms. Maxwell Is "Adept" at Hiding and
Therefore a Flight Risk Is Specious
The government continues to assert the sinister narrative that Ms. Maxwell had "an
expertise at remaining hidden," and that it would therefore be easy for her to become a fugitive.
6 The government's argument that her spouse's moral suasion is diminished because Ms. Maxwell brought the
majority of assets to the relationship is nonsensical. (Id. at 24-25). Regardless of whose money it was to begin with,
all of the assets of Ms. Maxwell and her spouse will be forfeited if she flees and her spouse will be
left with nothing. Furthermore, the government's assertion that they could not verify the spouse's financial
information because Ms. Maxwell did not provide his current banking information is false. (Id. at 24 n.9). The
defense provided the spouse's current banking records and only redacted the name of the bank.
7
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(Gov. Mem. at 20). The government suggests that purchasing a home using a trust and providing
a pseudonym to a real estate broker are indicative of her willingness and ability to live in hiding
and somehow forecast Ms. Maxwell's intention to flee. (Id.). These arguments are just further
evidence that the government will frame every fact about Ms. Maxwell in the worst possible
light. As the defense has already argued extensively in its initial brief, these steps were borne
out of necessity to protect Ms. Maxwell and her family from harassment and physical threats.
Moreover, they are not predictive of flight. There is simply no basis to conclude, based on the
measures that Ms. Maxwell was forced to take to protect herself and her family, that she would
then willingly abandon that family to become a fugitive from justice. To the contrary, she
remained in the country precisely to remain close to them and to defend her case.
D. Extradition from France or the United Kingdom Is Highly Unlikely
The government dismisses Ms. Maxwell's willingness to waive her extradition rights as
to France and the United Kingdom as "meaningless" because Ms. Maxwell cannot guarantee
with absolute certainty that either country will enforce the waiver. (Gov. Mem. at 14). The
government misses the point: Ms. Maxwell's willingness to do everything she can to eliminate
her ability to refuse extradition to the fullest extent possible demonstrates her firm commitment
to remain in this country to face the charges against her and, as Ms. Maxwell's French and U.K.
experts confirm, there is every reason to believe that both authorities would consider the waiver
as part of any extradition request.
In an attempt to counter William Julie's expert report stating it is "highly unlikely" that
the French government would refuse to extradite Ms. Maxwell (Def. Mem., Ex. V at 2), the
government attaches a letter from the French Ministry of Justice ("MOJ") that references neither
Mr. Julie's report nor Ms. Maxwell, but states generally that the French Code of Criminal
Procedure "absolutely prohibits" the extradition of a French national. (Gov. Mem., Ex. B). But
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as Mr. Julie's accompanying rebuttal report explains (see Ex. A), the MOJ letter ignores that the
extradition provisions in French Code of Criminal Procedure apply only in the absence of an
international agreement providing otherwise. (Id. at 1). This rule is necessitated by the French
Constitution, which requires that international agreements prevail over national legislation. (Id.).
Thus, extradition of a French national to the United States is legally permissible if the extradition
treaty between the United States and France provides for it—which it does. (Id. at 3).
The government's reliance on a 2006 case—in which France refused to extradite a
French national who was also a U.S. citizen—provides no precedent as to how a French court
would rule on an extradition request regarding Ms. Maxwell because, as Mr. Julie notes, the
United States did not challenge the refusal in the French courts. (Id. at 2-3). Nor does it
undermine Mr. Julie's opinion that, in the unusual circumstance where a citizen of both countries
has executed an extradition waiver and then fled to France in violation of bail conditions set by a
U.S. court, it is "highly unlikely" that an extradition decree would not be issued. (Id. at 3).
The government offers no rebuttal to the opinion of Ms. Maxwell's U.K. extradition
expert, David Perry. Nor does it dispute Mr. Perry's opinion that Ms. Maxwell would be "highly
unlikely" to successfully resist extradition from the United Kingdom, that her waiver would be
admissible in any extradition proceeding, and that—contrary to the government's representation
at the initial bail hearing (Tr. 27)—bail would be "extremely unlikely." (See Def. Mem. Ex. U at
¶ 39). Mr. Perry's addendum opinion (attached as Ex. B) reiterates these points, opining that the
waiver would be "a highly relevant factor" in the U.K. proceeding, both to the likelihood of
extradition and to the likelihood of bail while the proceeding is pending. (Id. ¶ 3):
7Nor, as the government suggests, does the Secretary of State have general "discretion to deny extradition" after a
court has entered a final extradition order. (See Gov. Mem. at 19). That discretion is limited to a handful of
exceptional circumstances that would likely be inapplicable to Ms. Maxwell's case. (Id. 4.5).
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Finally, the government's argument that Ms. Maxwell could always flee to some country
other than the United Kingdom and France holds her—and any defendant—to an impossible
standard, which is not the standard under the Bail Reform Act. (See Gov. Mem. at 19). By the
government's reasoning, no defendant with financial means to travel could be granted bail,
because there would always be a possibility that they could flee to another country (even if they
had no ties there), and there could never be an assurance that any extradition waiver would be
enforced. However, "Section 3142 does not seek ironclad guarantees." United States v. Chen,
820 F. Supp. 1205, 1208 (N.D. Cal. 1992). To the extent that Ms. Maxwell's ties to France and
the United Kingdom—where she has not lived for nearly 30 years—create a flight risk, her
extradition waivers along with the substantial bail package proposed reasonably cure it.8
E. The Recent COVID Surge at MDC Further Justifies Bail
The government suggests that the Court ignore COVID concerns because Ms. Maxwell,
though quarantined because of contact with an officer who tested positive, did not become
infected. This ignores the daily (sometimes multiple) inspections of Ms. Maxwell's mouth,
which heightens her risk of contracting the deadly virus, which has now surged to 113 positive
cases in the MDC. Further, Deputy Captain B. Houtz recently issued a memo stating that "[i]t
has not been determined whether legal calls and legal visits will continue." As the Court is well
aware, legal visits with Ms. Maxwell already have been suspended. Should legal calls also be
discontinued, her constitutional right to effective assistance of counsel will be further eroded.
CONCLUSION
For the foregoing reasons, Ms. Maxwell respectfully requests that the Court order her
release on bail pursuant to the strict conditions she has proposed.
8Any incentive Ms. Maxwell might have to flee to France has been greatly diminished by the recent arrest in France
of Jean-Luc Brunel, who reportedly is under investigation for alleged sexual assaults by Jeffrey Epstein. See, e.g.,
France Details Modeling Agent in Jeffrey Epstein Inanity, https://www.theguardian.com/world/2020/dedIT/france detains-modellinu-auent-iean-luc-brunel-in-ieffrev-eustein-inquiry.
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Dated: December 18, 2020
Respectfully submitted,
/s/ Mark S. Cohen
Mark S. Cohen
Christian R. Everdell
COHEN & GRESSER LLP
800 Third Avenue
New York, NY 10022
Phone: 212-957-7600
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
150 East 10th Avenue
Denver, CO 80203
Phone: 303-831-7364
Bobbi C. Stemheim
Law Offices of Bobbi C. Stemheim
33 West 19th Street - 4th Floor
New York, NY 10011
Phone: 212-243-1100
Attorneys for Ghislaine Maxwell
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