EFTA00010105.pdf

U.S. Department of Justice
United States Attorney
Southern District of New York
The SilWoJ. Mollo Building
One Saint Andrew's Plaza
New York. New York 10007
November 18, 2021
BY E-MAIL
The Honorable Alison J. Nathan
United States District Judge
Southern District of New York
40 Foley Square
New York, New York 10007
Re: United States v. Ghislaine Maxwell, S2 20 Cr. 330 (MN)
Dear Judge Nathan:
The Government respectfully submits this letter regarding birth certificates that are marked
as Government Exhibits for trial.' By way of background, the Government has obtained and
produced to the defense certified copies of the birth certificates for each of the Minor Victims.
(See GX-11-16). Although the Government has asked the defense to stipulate to the authenticity
of these records, and although the defense has identified no reason to doubt the authenticity of
these records, the defense has not agreed to a stipulation. Accordingly, the Government seeks the
relief in the instant motion, to which it is entitled under the law, and to avoid calling records
custodians from five state agencies with custody over the birth certificates.2
' The Government moves to file a redacted version this letter motion. The proposed redactions
are consistent with the three-part test articulated by the Second Circuit in Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110 (2d Cir. 2006). Although this letter motion is a judicial document
subject to the common law presumption of access, the proposed redactions are narrowly tailored
to protect the privacy interests of victims, including victims who have not been publicly identified,
and who are a subject of the Court's order granting the motion to let certain victims and witnesses
testify under pseudonyms, and third parties.
2 The Government is coordinating with Department of Justice Office of International Affairs to
further establish the predicates for self-authentication of Witness-3's birth certificate and will
make the appropriate motion when it is ripe. See Fed. It Evid. 902(3).
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For the reasons set forth below, the birth certificates are self-authenticating under Rule 902
of the Federal Rules of Evidence, and no records custodian should be required to testify. The
exhibits should be determined to be self-authenticating.
I. Applicable Law
Rule 902 contains a list of items that are "self-authenticating," that is "they require no
extrinsic evidence of authenticity in order to be admitted." Fed. R. Evid. 902. Under Rule 902(4),
that list includes:
Certified Copies of Public Records. A copy of an official record
— or a copy of a document that was recorded or filed in a public
office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the
certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a
federal statute, or a rule prescribed by the Supreme Court.
Rule 902(1), in turn, provides for self-authentication of the following:
Domestic Public Documents That Are Sealed and Signed. A
document that bears:
(A) a seal purporting to be that of the United States; any state,
district, commonwealth, territory, or insular possession of
the United States; the former Panama Canal Zone; the Trust
Territory of the Pacific Islands; a political subdivision of
any of these entities; or a department, agency, or officer of
any entity named above; and
(B) a signature purporting to be an execution or attestation.
Finally, Federal Rule of Criminal Procedure 27 permits a party to "prove an official record
. . . in the same manner as in a civil action." Federal Rule of Civil Procedure 44(a)(1), in turn,
permits proof of a domestic "official record" that is "otherwise admissible and is kept within the
United States, any state, district, or commonwealth, or any territory" through
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a copy attested by the officer with legal custody of the record—or
by the officer's deputy—and accompanied by a certificate that the
officer has custody. The certificate must be made under seal:
. . (ii) by any public officer with a seal of office and with official
duties in the district or political subdivision where the record is kept.
Fed. R Civ. P. 44(a)(1); see Fed. R. Evid. 902 Advisory Committee Notes ("Rule 44(a) of the
Rules of Civil Procedure and Rule 27 of the Rules of Criminal Procedure have provided
authentication procedures of this nature for both domestic and foreign public records.").
II. Discussion
The Minor Victims' birth certificates are certified and sealed by the appropriate officials,
and are therefore self-authenticating under Fed. R. Evid. 902(4). See Ball v. A.O. Smith Corp.,
451 F.3d 66, 71 (2d Cir. 2006) ("The original transcript, which includes a certification by the court
reporter, is self-authenticating. See Fed. R. Evid. 902(4).1; United States v. McGee, 439 F. App'x
837, 839 (11th Cir. 2011) ("We have held that to satisfy the requirements of Rule 902(4), a
certification need only identify the legal custodian's position of authority, and that the copy is true
and correct.").
At the threshold, domestic birth certificates are "public records" within the meaning of
Federal Rule of Evidence 902(4). See Fed. R. Evid. 803(9) (providing a hearsay exception for
"Public Records of Vital Statistics," including "[a] record of a birth . . . if reported to a public
office in accordance with a legal duty.").
Pursuant to Rule 902(4)(A), a copy of such a record is self-authenticating if "certified as
correct by: ... the custodian or another person authorized to make the certification." Fed. R. Evid.
902(4)(A). That is the case for each of the birth certificates:
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• The Registrar of Rhode Island Department of Health has signed and certified that
Government Exhibit 12, Minor Victim-I's birth certificate, is a "true and exact copy of the
document officially registered and placed on file in the issuing office."
• The Registrar of the Missouri Department of Health and Senior Services has signed and
certified that Government Exhibit 13, Minor Victim-2's birth certificate, is an "exact
reproduction of the certificate for the person named therein as it now appears in the
permanent records of the Bureau of Vital Records of the Missouri Department of Health
and Senior Services."
• The Registrar of the Town of North Hempstead, Nassau County, New York, has signed
and certified that Government Exhibit 11, Minor Victim-4's birth certificate, is a "true and
correct copy of the original Certificate of Birth on file in the Office of the Registrar."
• The County Clerk/Recorder of Sacramento County, California, has signed and certified
that Government Exhibit 14, Minor Victim-5's birth certificate, is a "true and exact
reproduction of the document officially registered and placed on file in the office of the
Sacramento County Clerk/Recorder."
• The Registrar of Vital Records and Statistics for the Massachusetts Department of Public
Health Registry of Vital Records and Statistics has signed and certified that Government
Exhibit 15, Minor Victim-6's birth certificate, is a "true copy" from the Registrar's records
"of birth, marriage, and death required by law to be kept in my office."
Each of these certifications is a certification by a custodian sufficient to satisfy the Rule. See
Ratajack v. Brewster Fire Dept, 178 F. Supp. 3d 118, 128 n.3 (S.D.N.Y. 2016) (concluding that
a transcript was self-authenticating based on a court reporter's certification that it contained a "true
record").
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The birth certificates are also self-authenticating under Rule 902(4)(B). That rule permits
self-authentication based on "a certificate that complies with Rule 902(1), (2), or (3), a federal
statute, or a rule prescribed by the Supreme Court." This rule is satisfied in two ways.
First, the certifications comply with Rule 902(1). Each certification bears "a seal
purporting to be that of . .. any state . ; a political subdivision ... ; or a department, agency, or
officer of" a state. Fed. R. Evid. 902(1)(A). And each certification bears a "signature purporting
to be an execution or attestation." Fed. R. Evid. 902(1)(B). The certifications on the birth
certificates therefore meet the requirements of Rule 902(4)(B).
Second, as noted above, Federal Rule of Civil Procedure 44(a)(1) explains that the evidence
necessary to "evince[] an official record" that is "kept within the United States[ or] any state" is
"a copy attested by the officer with legal custody of the record and accompanied by a certificate
that the officer has custody." Fed. R. Civ. P. 44(a)( 1)(B); see Fed. R. Crim. P. 27 (incorporating
the Federal Rules of Civil Procedure on this subject). That certification must be "made under seal
. . . by any public officer with a seal of office and with official duties in the district or political
subdivision where the record is kept." Fed. R. Civ. P. 44(a)(1)(B)(ii). Each of the certifications
described above is by a public officer with official duties in the location where the birth certificate
is kept, as stated in the certification, and each is sealed. That is sufficient. See United States v.
Weiland, 420 F.3d 1062, 1073 (9th Cir. 2005) (concluding that records of prior convictions,
fingerprints, and other materials from prison were self-authenticating under Rules 902(2) and
902(4) and that "Federal Rule of Civil Procedure 44(a)(1), incorporated into Federal Rule of
Criminal Procedure 27, accords with our analysis.").
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III. Conclusion
For the foregoing reasons, the Court should determine that the Minor Victims' birth
certificates are self-authenticating.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
by: Is/
ssis an ni e a es Attorneys
cc: Counsel of Record (by email)
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