EFTA00015303.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
UNITED STATES OF AMERICA,
:
v.
: 20 Cr. 330 (AJN)
:
GHISLAINE MAXWELL,
:
Defendant.
:
:
---------------------------------------------------------------------- X

MEMORANDUM OF GHISLAINE MAXWELL
IN SUPPORT OF HER MOTION UNDER THE FOURTH AMENDMENT,
MARTINDELL, AND THE FIFTH AMENDMENT TO SUPPRESS ALL EVIDENCE
OBTAINED FROM THE GOVERNMENT'S SUBPOENA TO [REDACTED] AND
TO DISMISS COUNTS FIVE AND SIX

Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED]
Denver, CO 80203
[REDACTED]

Mark S. Cohen
Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED]
New York, NY 10022
[REDACTED]

Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED]
New York, NY 10011
[REDACTED]

Attorneys for Ghislaine Maxwell

EFTA00015303

TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................................... ii
FACTUAL BACKGROUND ............................................................................................................... 1
ARGUMENT ........................................................................................................................................ 2
I. The government’s violation of the Fourth Amendment requires suppression. ............................ 2
A. The subpoena violated the Fourth Amendment because it was unconstitutionally
overbroad. ......................................................................................................................... 4
B. The government’s subpoena to [REDACTED] was an unconstitutional warrantless Fourth
Amendment search........................................................................................................... 6
1. The third-party doctrine does not compel a different result. .......................................... 8
C. The government’s subpoena to [REDACTED] was an unconstitutional Fourth
Amendment seizure. ...................................................................................................... 11
II. The government’s violation of Martindell requires suppression................................................ 11
III. The government’s violation of the Fifth Amendment requires suppression............................... 15
Conclusion .......................................................................................................................................... 17
Certificate of Service........................................................................................................................... 18

EFTA00015304

TABLE OF AUTHORITIES
Cases
Boyd v United States, 116 U.S. 616 (1886) .............................................................................. 3, 6, 15
Carpenter v. United States, 138 S. Ct. 2206 (2018) .............................................................. 3, 5, 6, 9
Colorado v. Bannister, 449 U.S. 1 (1980) ......................................................................................... 3
DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985).......................................................................... 10
Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000) ........................................................................ 10, 13
Fisher v. United States, 425 U.S. 391 (1976) .............................................................................. 3, 15
Hale v. Henkel, 201 U.S. 43 (1906) ................................................................................................. 2, 4
In re Grand Jury Subpoena Duces Tecum, 945 F.2d 1221 (2d Cir. 1991) ....................................... 14
In re Grand Jury Subpoena, JK-I5-029, 828 F.3d 1083 (9th Cir. 2016) ................................... 4, 5, 11
Katz v. United States, 389 U.S. 347 (1967) .................................................................................... 2, 6
Murphy v. Waterfront Comm 'n of New York Harbor, 378 U.S. 52 (1964) ........................................ 2
Palmieri v. State of New York, 779 F.2d 861 (2d Cir. 1985)............................................................ 14
People v. Gutierrez, 222 P.3d 925 (Colo. 2009).............................................................................. 10
People v. Mason, 989 P.2d 757 (Colo. 1999) ..................................................................................... 8
Smith v. Maryland, 442 U.S. 735, 740 (1979) ........................................................................... passim
United States v. Calandra, 414 U.S. 338 (1974) ................................................................................ 6
United States v. Di Re, 332 U.S. 581 (1948) ...................................................................................... 6
United States v. Dionisio, 410 U.S. 1 (1973)................................................................................ 2, 15
United States v. Miller, 425 U.S. 435 (1976)................................................................................ 9, 10
United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) ........................................................... 16
United States v. Place, 462 U.S. 696 (1983) ..................................................................................... 3
United States v. Thomas, 736 F.3d 54 (1st Cir. 2013) ........................................................................ 6
ii
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Constitutional Provisions
U.S. CONST. amend. IV ............................................................................................................ passim
U.S. CONST. amend. V.............................................................................................................. passim
iii
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Ghislaine Maxwell moves under the Fourth Amendment, Martindell v. Int’l Tel. & Tel.
Corp., 594 F.2d 291 (2d Cir. 1979), and the Fifth Amendment, to suppress all evidence the
government obtained from a grand jury subpoena it issued to [REDACTED] and to
dismiss Counts Five and Six, which are the fruits of that unlawful subpoena.

FACTUAL BACKGROUND
Ms. Maxwell’s Motion under the Due Process Clause to Suppress and Dismiss Counts 5
and 6 sets forth the facts relevant to this motion. Ms. Maxwell incorporates those facts by
reference here.
In summary, the government obtained [REDACTED] file, including the [REDACTED]
[REDACTED] by way of a grand jury subpoena enforced through an ex parte
proceeding [REDACTED]. Although the government claimed not to know what was in
[REDACTED] file and that [REDACTED] had no role in instigating the investigation of
Maxwell, both of these representations to [REDACTED] were false.
In turn, the government issued [REDACTED] in the [REDACTED]
[REDACTED]. See Motion under the Due Process Clause to Suppress and
Dismiss Counts 5 and 6, Ex. C, at 3. The government could have been, but was not, more
targeted in its approach. The government has not provided Maxwell with a copy of the subpoena,
but the record shows that the subpoena was incredibly broad and, as explained below, ultimately
unlawful.
The subpoena violated the Fourth Amendment because it was overbroad and because it
effected a warrantless search and seizure of material in which Maxwell had a reasonable
expectation of privacy. Moreover, by securing a modification of the Protective Order through a
secret, ex parte proceeding, the government violated Martindell v. Int’l Tel. & Tel. Corp., 594
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F.2d 291 (2d Cir. 1979), which required the government to give Maxwell notice and an
opportunity to be heard on its request. And in bypassing Martindell and eviscerating the
guarantee of confidentiality provided by the Protective Order, the government trampled on
Maxwell’s Fifth Amendment privilege against self-incrimination, which she declined to invoke
in reliance on the protections afforded her by Martindell and the Protective Order.
This Court should (1) suppress all evidence the government obtained from [REDACTED]
and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions
and all evidence derived therefrom; and (3) dismiss Counts Five and Six.

ARGUMENT
I. The government’s violation of the Fourth Amendment requires suppression.
The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV. The “Fourth Amendment provides protection against a grand jury subpoena
duces tecum too sweeping in its terms ‘to be regarded as reasonable.’” United States v. Dionisio,
410 U.S. 1, 11–12 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906), abrogated in part on
other grounds by Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 68 (1964)).
The government engages in a “search” for Fourth Amendment purposes when its conduct
encroaches on an individual’s legitimate expectation of privacy. See Katz v. United States, 389
U.S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places.”). Absent an
exception to the warrant requirement, a governmental search is unconstitutional unless the
government conducts it under a warrant issued based on probable cause to believe a crime has
been committed and that evidence of the crime is likely to be found in the place searched.
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Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (holding that an “official intrusion into
[the] private sphere generally qualifies as a search and requires a warrant supported by probable
cause”). “[A] compulsory production of . . . private books and papers . . . is the equivalent of a
search and seizure—and an unreasonable search and seizure—within the meaning of the fourth
amendment.” Boyd v United States, 116 U.S. 616, 634–35 (1886), overruling in part on other
grounds as recognized in Fisher v. United States, 425 U.S. 391, 407–08 (1976).
Finally, “The Fourth Amendment protects ‘effects’ as well as people from unreasonable
searches and seizures.” United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J.
concurring). It thus “protects two different interests of the citizen—the interest in retaining
possession of property and the interest in maintaining personal privacy.” Id. (cleaned up). “A
seizure threatens the former, a search the latter.” Id. Like a search, a seizure is “per se
unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to
a judicial warrant issued upon probable cause and particularly describing the items to be seized.”
Id. at 701; see Colorado v. Bannister, 449 U.S. 1, 3 (1980).
Here, the grand jury subpoena was unconstitutionally overbroad because it sought
production of [REDACTED] entire file and was therefore akin to a general warrant. Moreover,
there is no dispute the government did not establish probable cause to believe that [REDACTED]
[REDACTED] file contained evidence of a crime. [REDACTED]
[REDACTED]
[REDACTED]) Nor is there a dispute that the government lacked a warrant. [REDACTED]
[REDACTED]
[REDACTED]) Since the government had neither
probable cause nor a warrant, the [REDACTED] must be suppressed because the subpoena to [REDACTED]
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[REDACTED] was in fact a Fourth Amendment search. And even if the government’s conduct did not
amount to a search, it constituted a seizure, which likewise should have been supported by
probable cause and warrant.

A. The subpoena violated the Fourth Amendment because it was
unconstitutionally overbroad.
The subpoena to [REDACTED] was unconstitutionally overbroad, and this Court should
suppress all evidence produced in response.
“[A]n order for the production of books and papers may constitute an unreasonable
search and seizure within the 4th Amendment.” Hale, 201 U.S. at 76. Because the Fourth
Amendment was drafted with a particular eye to the abuse of general warrants, id. at 71, a
subpoena that is “unreasonably overbroad” effects an unreasonable search under the Fourth
Amendment, In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083, 1088 (9th Cir. 2016). An
overbroad subpoena is “equally indefensible as a search warrant would be if couched in similar
terms.” Id. (quoting Hale, 201 U.S. at 77). A subpoena is overbroad when the government fails
to make a “reasonable effort to request only those documents that are relevant and non-
privileged, consistent with the extent of its knowledge about the matter under investigation.” Id.
Here, the government by its own admission made no effort—must less a reasonable
effort—to tailor and target the subpoena to [REDACTED]. As the prosecutor said to [REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
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See Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. D, at 17
(emphasis added). The government’s representations to [REDACTED] were, of course, false.
The government met with [REDACTED] before it issued the subpoena, it knew what was in
[REDACTED] file and who was [REDACTED], and it
nevertheless disclaimed any ability to narrowly tailor any subpoena. Given “its knowledge about
the matter under investigation,” the government’s failure to make any effort, much less a
“reasonable effort,” to request “only those documents that are relevant and non-privileged,”
renders the subpoena overbroad and unconstitutional. See In re Grand Jury Subpoena, JK-15-
029, 828 F.3d at 1088.
So overbroad was the subpoena that [REDACTED] actually produced to the government
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
It is obvious why the Fourth Amendment requires suppression Id. at 1089. This type of
overbroad subpoena is exactly what the Fourth Amendment is designed to prohibit: searches that
invade “the privacies of life” from “arbitrary” power and “police surveillance” that is “too
permeating.” See Carpenter, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442 U.S. 735, 740
(1979)). Otherwise, “when the government seeks all material of a broad generic type that a party
possesses—every piece of paper in a corporation’s files, for example, or, as in this case,” every
piece of paper in a [REDACTED] file, “a reasonable possibility that some of that material would be
relevant would suffice to validate the subpoena, no matter how vast its sweep, and no matter the
5
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degree to which the subpoena would reach private material of no pertinence to the grand jury’s
inquiry.” See In re Grand Jury Subpoena, JK-15-029, 828 F.3d at 1089. The Fourth Amendment
does not allow such a sweeping search, which would be nothing but a modern-day general
warrant. Id. at 1088.1 This Court should suppress all evidence the government obtained from the
subpoena to [REDACTED].

B. The government’s subpoena to [REDACTED] was an unconstitutional
warrantless Fourth Amendment search.
Apart from its overbreadth, the subpoena violated the Fourth Amendment because it
amounted to a warrantless search without probable cause.
The Fourth Amendment protects people, not places. Katz, 389 U.S. at 351. Thus, “when
an individual ‘seeks to preserve something as private,’ and [her] expectation of privacy is ‘one
that society is prepared to recognize as reasonable,’ . . . that official intrusion into that private
sphere generally qualifies as a search and requires a warrant supported by probable cause.”
Carpenter, 138 S. Ct. at 2213 (quoting Smith, 442 U.S. at 740). This definition of a what
constitutes a “search” “seeks to secure ‘the privacies of life’ against ‘arbitrary power’ and “to
place obstacles in the way of a too permeating police surveillance.” Id. at 2214 (quoting Boyd,
116 U.S. at 630; United States v. Di Re, 332 U.S. 581, 595 (1948)). A “grand jury is . . . ‘without
power to invade a legitimate privacy interest protected by the Fourth Amendment.’” United
States v. Thomas, 736 F.3d 54, 61 (1st Cir. 2013) (quoting United States v. Calandra, 414 U.S.
338, 346 (1974)).

1 It is for this reason that this Court should grant Maxwell’s Motion for Discovery of every grand
jury subpoena. Without being able to examine the grand jury subpoenas, Maxwell cannot evaluate
whether other subpoenas issued by the grand jury in connection with this case are unconstitutionally
overbroad, as the subpoena to [REDACTED] is.
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Maxwell had a legitimate expectation of privacy in her [REDACTED]2 because
she reasonably sought to preserve them as private. Both of her [REDACTED] were
confidential under the Protective Order, which prohibited [REDACTED] from sharing
them with third parties, including law enforcement. The Protective Order deliberately excluded a
law enforcement exception. While the Protective Order did not apply to evidence produced at
trial, the parties settled the defamation action before trial, conclusively establishing the privacy
of Maxwell’s deposition testimony. Indeed, under the plain terms of the Protective Order,
[REDACTED] were required to return or destroy all confidential information at the
conclusion of the case, including Maxwell’s deposition transcripts. [REDACTED] refused to do
so although ordered to do so by Judge Sweet.3
In its application to [REDACTED], the government [REDACTED]
[REDACTED]
[REDACTED]
[REDACTED] Not only did the government misunderstand how the Protective Order worked,
but its argument also supports rather than undermines Maxwell’s legitimate expectation of
privacy in her deposition transcripts.
To be sure, the Protective Order did not apply to evidence produced at trial. That is
entirely unremarkable, however, because trials are open to the public and the press. What matters
is that the civil case did not go to trial; it settled before trial, and under the Protective Order’s
terms, [REDACTED]

2 Not to mention all the other material she designated as “Confidential” under the Protective
Order.
3 Ascribing a legitimate expectation of privacy to [REDACTED] also fits
Martindell’s admonition that the government may not “insinuate itself into a private civil lawsuit between
others.” 594 F.2d at 294.
7
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including Maxwell’s [REDACTED] and not to share Confidential information with law
enforcement. [REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. F, at 11
(emphases in original).
Maxwell thus had a reasonable expectation of privacy in her [REDACTED] and
everything else she designated as “Confidential” under the Protective Order.4 Obtaining that
confidential material by subpoena therefore amounted to a search under the Fourth Amendment.
Because the government had neither probable cause nor a warrant, this Court should suppress the
[REDACTED] and all material Maxwell designated as Confidential.

1. The third-party doctrine does not compel a different result.
It is irrelevant that Maxwell’s [REDACTED] were in the possession of [REDACTED]
[REDACTED] and not her own attorneys. The third-party doctrine does not apply here because

4 This argument adheres to Martindell’s holding that the government there should have either
moved to intervene or issued a subpoena to obtain the [REDACTED]. For one thing, the Fourth
Amendment was not at issue in Martindell, so the Court had no occasion to decide whether a warrant
might have been required. For another, Martindell does not speak to what showing would have been
required for the issuance of a subpoena, probable cause or something less. Even if a warrant weren’t
required here, a showing of probable cause was. See People v. Mason, 989 P.2d 757, 760 (Colo. 1999)
(noting jurisdictions that recognize an expectation of privacy in subpoenaed materials and that require a
subpoena duces tecum of such records to be supported by probable cause). Finally, of course, the
government didn’t comply with Martindell because it never gave Maxwell notice and an opportunity to
quash the subpoena and to challenge the government’s misrepresentations through the adversary process.
8
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Maxwell did not voluntarily share anything with [REDACTED] and because every other circumstance
supported Maxwell’s expectation that her [REDACTED] would be private.
The Supreme Court has held that “a person has no legitimate expectation of privacy in
information [she] voluntarily turns over to third parties.” Smith, 442 U.S. at 743–44. “That
remains true ‘even if the information is revealed on the assumption that it will be used only for a
limited purpose.’” Carpenter, 138 S. Ct. at 2216 (quoting United States v. Miller, 425 U.S. 435,
443 (1976)).
In Smith v. Maryland, the Court ruled that the government’s use of a pen register—a
device used by telephone companies to record the outgoing phone numbers dialed on a landline
telephone—was not a search. By placing calls from his landline, the Court reasoned, Smith
“voluntarily conveyed” the dialed numbers to the telephone company by “expos[ing] that
information to its equipment in the ordinary course of business.” 442 U.S. at 744. The Court held
that Smith has “assumed the risk” that the telephone company’s records “would be divulged to
police.” Id. at 745.
Similarly, in United States v. Miller, the Court ruled that the government could subpoena
an individual’s bank records, including several months of canceled checks, deposit slips, and
monthly statements. The Court explained that because the checks were “not confidential
communications but negotiable instruments to be used in commercial transactions,” and because
the bank statements contained information “exposed to [bank] employees in the ordinary course
of business,” Miller had only a limited expectation of privacy. 425 U.S. at 442. The Court
determined that Miller had “take[n] the risk, in revealing his affairs to another, that the
information [would] be conveyed by that person to the Government.” Id. at 443.
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Neither Miller nor Smith supports a conclusion that Maxwell had anything but a
legitimate and reasonable expectation of privacy in her [REDACTED]. First, Maxwell did
not “voluntarily convey” [REDACTED] sued her, not the other way around.
Moreover, Maxwell declined to answer [REDACTED]
[REDACTED]
[REDACTED] None of this was voluntary.
Second, Maxwell’s expectation of privacy in her [REDACTED] is not limited in
the way Miller’s expectation of privacy was limited in his bank records. To the contrary, both
Maxwell’s [REDACTED] were confidential under the Protective Order. And while the Protective
Order did not apply to evidence produced at trial, the case settled before trial, thereby confirming
Maxwell’s legitimate expectation that the [REDACTED] would not be shared outside the
attorneys working in the case and, if necessary, the district court.
Third, Maxwell reasonably understood that the [REDACTED] would not
be shared with the government. [REDACTED] proposed a law enforcement exception to the Protective
Order’s confidentiality requirement, but Maxwell rejected the exception and the district court
never adopted it. Unlike in Smith and Miller, Maxwell did not “assume the risk” that her
[REDACTED] would be divulged to the government.
Had the government obtained the [REDACTED] from Maxwell’s attorneys, there
would be no question that the government’s conduct would constitute a Fourth Amendment
search. “[C]lients of an attorney maintain a legitimate expectation of privacy in their client files.”
DeMassa v. Nunez, 770 F.2d 1505, 1506 (9th Cir. 1985); see Doe v. Broderick, 225 F.3d 440,
450–52 (4th Cir. 2000) (holding that detective’s examination of a patient file held by a
methadone clinic was a search and, without probable cause, violated the patient’s Fourth
10
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Amendment rights); see also People v. Gutierrez, 222 P.3d 925, 936 (Colo. 2009) (concluding
that a taxpayer has a reasonable expectation of privacy in information conveyed to his tax
preparer because “state and federal laws . . . shield a taxpayer’s return from unfettered access by
government officials”). Because she did not voluntarily offer [REDACTED], and
because she reasonably believed [REDACTED] was and would remain private under the
Protective Order, Maxwell had a legitimate and reasonable expectation of privacy in her
[REDACTED] even though the government obtained them from a third party other than
her attorneys. See In re Grand Jury Subpoena, JK-15-029, 828 F.3d at 1090 (“DAS’s current
possession of [Kitzhaber’s] emails does not vitiate that claim. The Fourth Amendment protects
people, not places. Kitzhaber’s interests therefore attach to the things seized, not merely to the
place where they are located.” (cleaned up)).

C. The government’s subpoena to [REDACTED] was an unconstitutional
Fourth Amendment seizure.
Although Fourth Amendment challenges typically involve “the subsequent search of the
container rather than to its initial seizure by the authorities, . . . a seizure of personal property is
per se unreasonable” under the “Fourth Amendment unless it is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly describing the items to be seized.”
Smith, 462 U.S. at 701–02. Here, the government [REDACTED]
[REDACTED] The government did not obtain a warrant, nor did it
establish probable cause for the seizure. For this additional reason, this Court should suppress the
[REDACTED] and all material Maxwell designated as confidential.

II. The government’s violation of Martindell requires suppression.
By issuing a [REDACTED]
[REDACTED] the government circumvented the Second Circuit’s
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decision in Martindell v. International Telephone & Telegraph Corp. and violated Maxwell’s
rights.
In Martindell, the government tried to obtain deposition transcripts of twelve individuals
deposed in a private shareholders’ derivative lawsuit. 594 F.2d at 292–93. All twelve depositions
were taken “pursuant to a court-approved stipulation to the effect that the depositions should be
treated as confidential and used solely by the parties for prosecution or defense of the action.” Id.
at 292. Without seeking to intervene, and without serving a subpoena or warrant, the government
called and then wrote to the district court to request access to the deposition transcripts. Id. at
293. The government claimed that the deposition transcripts were relevant to its investigation of
perjury, subordination of perjury, and conspiracy related to the 1970 presidential election in
Chile. Id. The government, “moreover, feared that unless it could obtain the deposition
transcripts, it would be unable to secure statements from the witnesses because they would claim
their Fifth Amendment rights in any investigative interviews.” Id. The district court denied the
government’s request, “holding that the deposition testimony had been given in reliance upon the
protective order, thus rendering unnecessary invocation by the witnesses of their Fifth
Amendment rights, that the requested turnover would raise constitutional issues, and that
principles of fairness mandated enforcement of the protective order.” Id. The government
appealed, and the Second Circuit affirmed.
The Second Circuit was blunt in explaining the government’s missteps:
The government may not . . . simply by picking up the telephone or writing a letter
to the court (as was the case here), insinuate itself into a private civil lawsuit
between others. The proper procedure, as the government should know, was either
to subpoena the deposition transcripts for use in a pending proceeding such as a
grand jury investigation or trial, in which the issue could be raised by motion to
quash or modify the subpoena, see Rule 17(c), or to seek permissive intervention
in the private action pursuant to Rule 24(b), for the purpose of obtaining vacation
or modification of the protective order.
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Id. at 294. Either avenue, explained the Court, would provide the real party in interest notice of
the government’s request and an opportunity to be heard, either by moving to quash the
subpoena or opposing intervention and modification of the protective order. Id.
The Court also rejected the government’s argument that the district court was too
solicitous of the witnesses’ Fifth Amendment rights. Id. at 295. According to the Government,
the witnesses were under no compulsion to testify, and having given testimony, they voluntarily
waived any Fifth Amendment right they may have had. Id. But as the Second Circuit explained,
the government’s argument ignored the reality of civil litigation:
Unless a valid Rule 26(c) protective order is to be fully and fairly enforceable,
witnesses relying upon such orders will be inhibited from giving essential
testimony in civil litigation, thus undermining a procedural system that has been
successfully developed over the years for disposition of civil differences. In short,
witnesses might be expected frequently to refuse to testify pursuant to protective
orders if their testimony were to be made available to the government for criminal
investigatory purposes in disregard of those orders.
Id. at 295–96. The Court thus held:
[A]bsent a showing of improvidence in the grant of a Rule 26(c) protective order
or some extraordinary circumstance or compelling need, none of which appear here,
a witness should be entitled to rely upon the enforceability of a protective order
against any third parties, including the Government, and that such an order should
not be vacated or modified merely to accommodate the government’s desire to
inspect protected testimony for possible use in a criminal investigation, either as
evidence or as the subject of a possible perjury charge.
Id. at 296.
Maxwell did not even know the government had her [REDACTED] until after she was
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indicted, and she didn’t know for a month more just [REDACTED]
[REDACTED]
Martindell has been binding Second Circuit law for more than forty years, and the
government’s violation of its holding is no trivial matter. [REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
In Palmieri v. State of New York, the federal magistrate issued two sealing orders
protecting the confidentiality of settlement discussions of a private antitrust case. 779 F.2d 861,
863–64 (2d Cir. 1985). Because the subject matter of the antitrust case overlapped with an
ongoing state criminal antitrust case, the state Attorney General moved to intervene in the private
antitrust case, to modify the seal orders, to access the settlement material, and to present the
material and testimony to a state grand jury. Id. at 862. The district court granted the Attorney
General’s request, but the Second Circuit, applying Martindell, reversed. Id. The Second Circuit
recognized that the state Attorney General, like the federal government, “enjoys a similarly
privileged position with respect to its investigatory powers.” Id. at 866. Those powers, in turn,
“raise[d] a rebuttable presumption against modification of the orders.” Id. Indeed, given the
parties’ reliance on the sealing orders, the Attorney General’s “burden [was] heavier than it
might otherwise be.” Id. at 865.
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Here, the government did not even attempt the Martindell process the Attorney General
attempted in Palmieri. [REDACTED]
[REDACTED]

III. The government’s violation of the Fifth Amendment requires suppression.
The Fifth Amendment provides: “No person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. CONST. amend. V. For three separate reasons, [REDACTED]
[REDACTED] violates the Fifth Amendment.
First, the Fifth Amendment “proscribe[s] the compelled production of . . . a Testimonial
Communication that is incriminating.” Fisher, 425 U.S. at 408; see Dionisio, 410 U.S. at 11
(“The grand jury cannot require a witness to testify against himself.”). The subpoena to [REDACTED]
[REDACTED] contravenes this proscription because it literally “compels production” of Maxwell’s
incriminating testimony [REDACTED].
Second, “a compulsory production of the private books and papers . . . [also] is
compelling . . . him to be a witness against himself, within the meaning of the fifth amendment.”
Boyd, 116 U.S. at 634–35. Even if the subpoena does not literally require Maxwell to “testify
against herself,” Dionisio, 410 U.S. at 11, Maxwell’s [REDACTED] were private and
confidential under the Protective Order. Supra Part I.B. Compelling production of these
“private” papers is itself a Fifth Amendment violation.
Third, the government’s circumvention of Martindell unconstitutionally burdens
Maxwell’s Fifth Amendment rights. [REDACTED]
[REDACTED]
[REDACTED] But Martindell protects Maxwell from
the government’s conduct, and it authorized her to give [REDACTED] under the shield of
the Protective Order without worrying whether the government could “insinuate itself” into the
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case and use her own words against her. 594 F.2d at 294. The Fifth Amendment would mean
nothing if an individual were told by a district court that she need not invoke its protections
because the government could not use her testimony against her—or at least could not do so
without notice and an opportunity to be heard—only to find out that the testimony she offered
with the district court’s blessing was the primary evidence against her in a criminal case and the
basis of perjury charges.
That is the lesson of United States v. Oshatz, in which this Court quashed a government
subpoena issued to a court reporter for a transcript of a deposition offered by the defendant in a
civil proceeding. 700 F. Supp. 696, 697 (S.D.N.Y. 1988). Oshatz (who had been indicted at the
time of his deposition) was deposed and did not invoke his Fifth Amendment privilege against
self-incrimination on “the understanding that a protective order would preserve his Fifth
Amendment rights.” Id. at 699. Applying Martindell, this Court quashed the government’s
subpoena and refused to release the deposition transcript because the “government [had] not
argued that the protective order was improvidently granted or that there [were] some
extraordinary circumstances or compelling need.” Id. at 701.
Here, as in Oshatz, Maxwell was deposed on “the understanding that a protective order
would preserve” the confidentiality of her testimony. And even though Maxwell had not been
indicted at the time of her depositions, the threat of an investigation was obvious, and that threat
was the very reason the Protective Order deliberately excluded a law-enforcement exception.
(Moreover, Maxwell moved the court to require [REDACTED] to disclose any law enforcement
investigation of which she was aware.) As in Oshatz, the Protective Order was designed to
preserve Maxwell’s Fifth Amendment rights. Where this Court in Oshatz granted a motion to
quash, here it should grant a motion to suppress.
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For these reasons, this Court should suppress the [REDACTED] under the Fifth
Amendment.

Conclusion
For these reasons, this Court should: (1) suppress all evidence the government obtained
from [REDACTED] and any other evidence derived therefrom; or (2) suppress the April and July
2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six.
Maxwell requests an evidentiary hearing on this Motion.

Dated: January 25, 2021

Respectfully submitted,

s/ Jeffrey S. Pagliuca
Jeffrey S. Pagliuca
Laura A. Menninger
HADDON, MORGAN & FOREMAN P.C.
[REDACTED]
Denver, CO 80203
[REDACTED]

Mark S. Cohen
Christian R. Everdell
COHEN & GRESSER LLP
[REDACTED]
[REDACTED]

Bobbi C. Sternheim
Law Offices of Bobbi C. Sternheim
[REDACTED]
New York, NY 10011
[REDACTED]

Attorneys for Ghislaine Maxwell

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Certificate of Service
I hereby certify that on January 25, 2021, I served by email, pursuant Rule 2(B) of the
Court’s individual practices in criminal cases, the Memorandum of Ghislaine Maxwell in Support
of Her Motion Under the Fourth Amendment, Martindell, and the Fifth Amendment to Suppress
All Evidence Obtained from the government’s Subpoena to [REDACTED] and to Dismiss Counts
Five and Six upon the following:

U.S. Attorney’s Office, SDNY
[REDACTED]
New York, NY 10007
[REDACTED]

s/ Christian R. Everdell
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