Caliesk:20-000TMAOlsint1)60.4dett 11262 Eilated220/Itlig Pa& a632122 was the result of the Defendant's misestimation rather than misdirection. And while the Defendant's concerns regarding her spouse's privacy are not insignificant, she fails to furnish any explanation as to why those concerns led her to misrepresent key facts to Pretrial Services and, by extension, the Court. In sum, the evidence of a lack of candor is, if anything, stronger now than in July 2020, as it is clear to the Court that the Defendant's representations to Pretrial Services were woefully incomplete. That lack of candor raises significant concerns as to whether the Court has now been provided a full and accurate picture of her finances and as to the Defendant's willingness to abide by any set of conditions of release. For the reasons stated above, the Court concludes that the third factor continues to weigh in favor of detention. C. Pretrial detention continues to be warranted In light of the reasons stated above, the Government has again met its burden of persuasion by "a preponderance of the evidence that the defendant presents a risk of flight." English, 629 F.3d at 319 (quoting Mercedes, 254 F.3d at 436). Taking the § 3142(g) factors into account, the Court concludes that the presumption in favor of detention, the nature and characteristics of the charged offenses, the weight of the evidence, and the history and characteristics of the Defendant all weigh in favor of detention. Along similar lines, the Government has also shown, and the Court concludes for the reasons outlined below, that the Defendant's proposed bail package cannot reasonably assure her appearance. Thus, the Court's original conclusion that the Defendant poses a flight risk and that no set of conditions can reasonably assure her future appearance remains unaltered. As already noted, the Defendant now proposes a $28.5 million bail package, which includes a $22.5 million personal recognizance bond co-signed by the Defendant and her spouse 16 EFTA00093344

Caesk: 20 -000aterAAOrsin t riadan9tint 11262 i 1'4)061290/2th g PAO 01732122 and secured by approximately $8 million in property and $500,000 in cash, along with six additional bonds—five co-signed by the Defendant's friends and family members and the sixth posted by the security company that would provide security services to the Defendant if she were granted bail and transferred to home confinement. See Def. Mot. at 2. At the initial hearing, the Court noted that the opaqueness of the Defendant's finances rendered it difficult to set financial bail conditions that could reasonably assure her appearance in court. The financial information that the Defendant presented to the Court at the initial bail hearing was undisputedly incomplete, and as the Court noted, the Court lacked "a clear picture of Ms. Maxwell's finances and the resources available to her." Tr. at 86 87. The Defendant has now presented to the Court what is perhaps a more thorough report on her finances prepared by Macalvins, an accounting firm in the United Kingdom. Macalvins analyzed the Defendant's assets and finances for the past five years, basing its analysis on, among other things, bank statements, tax returns, and FBAR filings, providing a summary of the assets held by the Defendant and her spouse as well as the assets held in trust for the benefit of the Defendant for the period stemming from 2015 to 2020. See De£ Mot., Ex. O. In addition, the Defendant retained a Certified Fraud Examiner and a former IRS Special Agent, who reviewed the Macalvins report and the underlying documents and determined that report accurately represents the assets held by the Defendant and her spouse. See Del Mot, Ex. P. The Defendant's new bail proposal is based on the numbers derived from the Macalvins report. But even assuming that the financial report provides an accurate analysis of the Defendant's finances, the Court is unpersuaded by her argument that the bail package reasonably assures her appearance. As the Government argues, the bail package would leave unrestrained 17 EFTA00093345

C t2o-drz001:030AMIsmtD dutiehlt 1128 2 El lit082230/10ag 17,4 31832122 millions of dollars and other assets that she could sell in order to support herself. See Gov't Opp'n at 23. Furthermore, the proposed bond is only partially secured. Taking into account the vast amounts of wealth left relatively unrestrained by the bail package. that amount, standing alone, cannot reasonably assure that she would appear before the Court. Nor is the Court's conclusion altered by the fact that a number of third parties have pledged to support her bond: the amount of wealth that she would retain were she to flee, in addition to contingent assets and future income streams that are not accounted for in the bail package, would plausibly enable her to compensate them, in part or in full, for their losses. And while the Defendant argues that she has procured "significant loans on the basis of a negative pledge" over a property and that S4 million is invested in an "illiquid hedge fund that could only be liquidated with considerable difficulty,"see Def. Reply at 6, these arguments do not alter the Court's ultimate conclusion that the financial package does not meaningfully mitigate the possibility of flight. The proposed conditions also provide that the Defendant would be released to the custody of a family member, who would serve as the Defendant's third-party custodian under 18 U.S.C. § 3142(c)(1)(B)(i); that the Defendant would be placed in home confinement with GPS monitoring and that her travel would be restricted to the Southern and Eastern Districts of New York and would be limited to appearances in Court, meetings with counsel, medical visits, and upon approval by the Court or Pretrial Services; that she would be under the strict supervision of Pretrial Services; and that she would surrender all travel documents. Id. at 2-3. Furthermore, the Defendant would have on-premises security guards who would prevent her from leaving the residence at any time without prior approval by the Court or Pretrial Services and who would escort her when she is authorized to leave. Id. at 3. 18 EFTA00093346

Caesk:20-000MAirsint 0dairkirtt 11,062EilakE2030/ItagFQ41 0)932122 None of these conditions would reasonably assure the Defendant's appearance. Here, too, the Court's original determination applies with equal force. As the Court noted at the original hearing, the Defendant has demonstrated an extraordinary capacity to evade detection, "[elven in the face of what the Defense has acknowledged to be extreme and unusual efforts to locate her." Tr. at 87:4 87:19. Indeed, regardless of whether the Defendant sought to evade the press, rather than law enforcement, in the months leading up to her arrest, her sophistication in evading detection reveals the futility of relying on any conditions, including GPS monitoring, restrictive home confinement, and private security guards, to secure her appearance. See Tr. at 87:4 88:2. As other courts have observed, "home detention with electronic monitoring does not prevent flight; at best, it limits a fleeing defendant's head start." United States v. Zarger, No. 00- CR-773-S-1 (JG), 2000 WL 1134364, at •1 (E.D.N.Y. Aug. 4, 2000). Furthermore, while the Defendant now represents that she would be released to the custody of a family member, who would serve as the Defendant's third-party custodian under 18 U.S.C. § 3142(c)(1XBXi), and that she secured a residence in the Eastern District of New York, see Def. Mot. at 3, that does not outweigh the other significant factors weighing in favor of detention. And finally, the Defendant's argument that private security guards could ensure her appearance at future proceedings runs afoul of the Bail Reform Act, which the Second Circuit has held "does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails." United States v. Boustani, 932 F.3d 79, 82 (2d Cir. 2019). As in Boustani, the Defendant in the present case would be detained regardless of her wealth, and "if a similarly situated defendant of lesser means would be detained, a wealthy defendant cannot avoid detention by relying on his personal funds to pay for private detention." Id 19 EFTA00093347

Ceilest:20-00003Craonint 0darastati062EilikraffineatagPayeaf0351122 In light of the above, the Court again concludes that the Government has shown by a preponderance of the evidence that the defendant presents a risk of flight and that the Defendant's proposed conditions are insufficient to reasonably assure her appearance. The presumption in favor of detention, the weight of the evidence, and the history and characteristics of the Defendant all support that conclusion, and none of Defendant's new arguments change the Court's original determination. D. The Defendant's conditions of confinement do not Justify release Lastly, the Court is unpersuaded by the Defendant's argument that the conditions of her confinement are uniquely onerous, interfere with her ability to participate in her defense, and thus justify release. See Def. Mot. at 35-38. Indeed, the Defendant does not meaningfully dispute that she has received "more time than any other inmate at the MDC to review her discovery and as much, if not more, time to communicate with her attorneys." Gov't Opp'n at 29. To the extent that the Defendant has concerns regarding some of the measures taken by BOP, including a recent lockdown due to COVID-19 that curtailed in-person legal visitations, the Defendant provides no authority to conclude that this, standing alone, violates her constitutional right to participate in her defense. And while the Court acknowledges the Defendant's concerns regarding the conditions of her confinement, the Defendant has failed to provide any basis to conclude that release is warranted on those grounds—even after the Court has determined that she continues to pose a flight risk.3 3 The Court will continue to ensure that the Defendant has the ability to speak and meet regularly with her attorneys and to review all necessary discovery materials to prepare for her defense. Defense counsel shall confer with the Government on any specific requests. To the extent they are not reasonably accommodated, an application may be made to the Court. 20 EFTA00093348

C &bask 204t7-001:0301440Istit addintilgee W02 EilatelliSO/Raq I7,41) Qt1.32122 Finally, as the Court expressed at the initial bail hearing, it has deep concerns about the spread of COVID-19 at BOP facilities, including at the MDC. Indeed, in recent weeks, the incidence of COVID-19 among the inmate population where the Defendant is housed is truly alarming. See COVID-19: Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/ coronavirus/ (last visited Dec. 28, 2020) (noting that the MDC currently has 99 inmates and 11 staff members who have tested positive for COVID-19). It could be argued that in the face of this, only those defendants who pose a danger to the community ought to be detained pending trial. If that were the law and in light of the increasing positivity rate, the Court would not hesitate to reopen the detention hearing and release the Defendant on bail since the Government rests none of its arguments on dangerousness. But that is not the law. Moreover, as the Court found at the initial bail hearing, the Defendant has no underlying health conditions that put her at heightened risk of health impacts were she to contract COVID. The pandemic, including increasing positivity numbers in the MDC, is not a basis for release in this case where the Court finds that the Defendant poses a substantial and actual risk of flight and that no combination of conditions could reasonably assure her appearance. E. A hearing Is unnecessary Having carefully reviewed the parties' arguments, the Court determines that a hearing is unnecessary and that it can resolve the motion on the papers. The briefmg from both sides comprehensively lays out the parties' respective arguments For the reasons stated above, none of the new information has a material bearing on the Court's determination that the Defendant poses a flight risk. Indeed, many of the reasons that the Court provided at the July 14, 2020 hearing continue to apply with equal, if not greater, force. The Court need not hold another 21 EFTA00093349

Caesk:20-000/313arnitsint addiumni Eilaik22%/fbagWitbit 24232122 hearing to evaluate Maxwell's motion, and it declines to do so. See United States v. &mitre, No. 18-CR-2041 (NGG) (VMS), 2018 WL 6344202, at *2 n.7 (E.D.N.Y. Dec. 5, 2018). IV. Conclusion Defendant Ghislaine Maxwell's renewed motion for release on bail, Dkt. No. 97. is DENIED. SO ORDERED. Dated: December 28, 2020 New York, New York 22 ALISON J. NATHAN United States District Judge EFTA00093350

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page277 of 351 Exhibit I Doc. 160 Memorandum in Support of Ghislaine Maxwell's Third Motion for Release on Bail EFTA00093351

asse12207a0063390eNt Thaatiallat 1 [email protected] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. x 20 Cr. 330 (AJN) MEMORANDUM IN SUPPORT OF GHISLAINE MAXWELL'S THIRD MOTION FOR RELEASE ON BAIL Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, Colorado 80203 Phone: Attorneys for Ghislaine Maxwell EFTA00093352

a2k3w22eAD0olTaaciAers 113ctiMith1/202 1 ,Faiii%223ft 4 ,740123219 INTRODUCTION Ghislaine Maxwell respectfully submits this Memorandum in Support of her Third Motion for Release on Bail. As Ms. Maxwell has stated on numerous occasions and reaffirms here: she has no intention or desire to leave this country. She is an American citizen, has lived in United States for 30 years, has strong family ties and the support of friends and family residing in this country. She wants nothing more than to remain in the United States under whatever conditions the Court deems necessary so that she can effectively prepare for trial and vigorously defend against the 25-year-old charges in the Indictment. Ms. Maxwell has already proposed an expansive and, to our knowledge, unprecedented set of bail conditions that would reasonably assure her appearance. (See Dkt. 97.) In light of the Court's denial of that application (see Dkt. 106), Ms. Maxwell now proposes two additional bail conditions to supplement the extraordinarily restrictive bail package she has already offered. • First, Ms. Maxwell will renounce her French and British citizenship to eliminate any opportunity for her to seek refuge in those countries, if the Court so requires. • Second, Ms. Maxwell will have her and her spouse's assets—excluding funds earmarked for living expenses, for legal fees and other expenses necessary to defend her against the criminal charges in this case and related civil lawsuits and for taxes—placed in a new account that will be monitored by a retired federal District Court judge and former United States Attorney who will function as asset monitor and will have co-signing authority over the account. The former condition goes well beyond the extradition waivers that the Court deemed insufficient and should satisfy any concerns the Court may have that Ms. Maxwell may try to seek a safe haven in France or the United Kingdom. (See id. at 11-13). As a non-citizen, Ms. Maxwell will not be able to avail herself of any protections against extradition that may apply to 2 EFTA00093353

asee12207a000339001* mammy= 1 Fata6822V3Paitieftjet335119 citizens of those countries. The latter condition will restrain Ms. Maxwell's assets so they cannot be used for flight or harboring her outside of the jurisdiction of this Court. This should satisfy the Court's concern that the proposed bond was not fully secured and left assets unrestrained that could be used for such purposes. (See id. at 17-18). In addition, since the last bail application, Ms. Maxwell has submitted twelve pretrial motions that raise substantial legal and factual issues that may result in the dismissal of some or all of the charges against her. Ms. Maxwell referenced some of these motions in her initial bail application (see Dkt. 18 at 19) but was not in a position to fully articulate them until she had the chance to review the discovery and research the legal issues in advance of the motion deadline of January 25. These motions significantly call into question the strength of the government's case against Ms. Maxwell and the underlying justification for continued detention. Ms. Maxwell has already been denied a fair chance in the court of public opinion. She has been maligned by the media, which has perpetuated a false narrative about her that has poisoned any open-mindedness and impartiality of a potential jury. She has been relentlessly attacked with vicious slurs, persistent lies, and blatant inaccuracies by spokespeople who have neither met nor spoken to her. She has been depicted as a cartoon-character villain in an attempt to turn her into a substitute replacement for Jeffrey Epstein. Yet, Ms. Maxwell is determined — and welcomes the opportunity — to face her accusers at trial and clear her name. The additional proposed bail conditions should quell any concerns that she would try to flee. The Court should therefore grant bail under the proposed conditions so that Ms. Maxwell can adequately prepare for trial. 3 EFTA00093354

Glasza2207a000113000It loaLfitekseit fat 1 ,Rifellfa2,23ftePabef43219 The Proposed Additional Bail Conditions Will Reasonably Assure Ms. Maxwell's Appearance in Court As set forth above, Ms. Maxwell now proposes two additional restrictions that eliminate any means or opportunity that she may have to leave the country. The Court should therefore reconsider its earlier ruling and grant bail under the proposed conditions. See United States v. Rowe, No. 02 CR. 756 LMM, 2003 WL 21196846, at *1 (S.D.N.Y. May 21, 2003) (IA] release order may be reconsidered even where the evidence proffered on reconsideration was known to the movant at the time of the original hearing."); see also United States v. Petrov, No. I 5-CR-66- LTS, 2015 WL 11022886, at *3 (S.D.N.Y. Mar. 26, 2015) (noting "Court's inherent authority for reconsideration of the Court's previous bail decision"). A. Renunciation of Foreign Citizenship To demonstrate her commitment to abide by her conditions of release and to provide further assurance to the Court that she will not attempt to leave the country, Ms. Maxwell is willing to formally renounce her foreign citizenships in France and the United Kingdom. Should the Court feel this drastic condition is necessary, the required documents will be submitted to the appropriate authorities. Moreover, as a standard condition of bail, all of Ms. Maxwell's passports will be surrendered to the government and no further application will be made. If the Court deems it a necessary condition of release, Ms. Maxwell will formally commence the procedure to renounce her foreign citizenship. The requisite paperwork is in the process of being completed. Renunciation of UK citizenship can be accomplished immediately upon granting of bail. The process of renouncing her French citizenship, while not immediate, may be expedited. Citizenship is a precious and priceless asset. Ms. Maxwell's decision to give up citizenship from the county of her birth and the country of her upbringing demonstrates her 4 EFTA00093355

asee12207a00038MONt iroctimattosal,FaiwameicrageNA0535f19 earnestness to abide by the conditions of her release and underscores that she has no intention to flee and reflects her deep need to communicate freely with counsel to prepare for her defense. Her renunciation of foreign citizenship obviates the Court's concerns about the validity of waivers of extradition. (See Dkt. 106 at 13). Ms. Maxwell will have no ability to contest extradition from France or the United Kingdom on the basis of citizenship, which removes any incentive the Court and government believe she may have to seek refuge in those countries. B. Restraint and Monitoring of Assets In denying bail, the Court noted that the bond was not fully secured, and that Ms. Maxwell and her spouse would still have several million dollars in unrestrained assets that could be used to facilitate her flight from the country. (See id. at 17-18). To assuage any concerns that those assets would be available to finance flight to and shelter in a foreign country, Ms. Maxwell has taken steps to create a monitorship that will place meaningful restraints on the assets that are not used to secure the bond, while still allowing Ms. Maxwell to pay for her legal defense, for her spouse to pay for daily living expenditures and for payment of taxes. 1. New Account All assets of Ms. Maxwell and her spouse, with the exception of money currently held in escrow for legal fees and related defense expenses and the funds contained in the bank account in the name of Ms. Maxwell's spouse ("the Personal Account")', will be deposited in a newly created account ("the New Account") to be overseen by an asset monitor appointed pursuant to order of the Court. The New Account will contain all of Ms. Maxwell's and her spouse's remaining cash and other liquid assets, including any proceeds that result from the pending sale 1 The Personal Account is identified as Account Ion page 9 of the Financial Report annexed to Ms. Maxwell's Renewed Bail Application. (See Dkt. 97, Exhibit 0.) 5 EFTA00093356

GIate122(37006220,9A611 latfitigi2021,Riteilaritnifraeftjeiatif19 of Ms. Maxwell's London house and any other assets, excluding salary, hereinafter acquired. The asset manager will approve the financial institution at which the New Account is created and must approve and co-sign any expenditure from the New Account, with the exception of disbursements for Ms. Maxwell's legal fees in connection with the ongoing criminal and civil litigation and for payment of taxes, which will not require authorization. No illiquid assets may be sold, conveyed or transferred without approval of the asset monitor. 2. Other Assets The only funds that will not be included in the New Account are (I) the money currently held in escrow by Ms. Maxwell's attorneys, which will be used exclusively for her defense; and (2) the roughly $450,000 in the Personal Account which her spouse will use only for living expenses. The asset monitor shall regularly receive information regarding activity of the Personal Account, including the account balance, on a weekly basis. The asset monitor must also receive five-day advance notice of any check, on-line payment, or transfer of funds in any amount exceeding $5,000, and the reason for such payment. Ms. Maxwell's spouse agrees to be bound by these restrictions and reporting requirements. The asset monitor shall report to Pretrial Services any possible non-compliance or disbursement in violation of the terms and conditions specified above. 3. Selected Asset Monitor The Honorable William S. Duffey, Jr., a retired federal District Court judge and the former United States Attorney for the Northern District of Georgia, has agreed to undertake the position of asset monitor. (Judge Duffey's bio is attached as Exhibit A.) Judge Duffey has extensive experience evaluating and monitoring funds held in and disbursed from financial 6 EFTA00093357

CWste1220700(MORACIN loczamatincit,Faled32212,121geMitet735119 accounts and will be entrusted with the authority to oversee the assets of Ms. Maxwell and her spouse, as described above. Restraining Ms. Maxwell's assets that are not used to secure the bond and placing them under the supervision of a former federal District Court judge eliminates any concern that such funds could be used to violate the terms of release. H. Ms. Maxwell's Pretrial Motions Raise Substantial Legal and Factual Issues That Could Result in Dismissal of Some or All of the Charges Against Her In addition to the new conditions proposed above, the numerous substantive pretrial motions now before the Court amply challenge the purported strength of the government's case. Ms. Maxwell's pretrial motions raise serious legal issues that could result in dismissal of charges, if not the entire indictment. Among the dozen submissions are motions to dismiss the superseding indictment for breach of the non-prosecution agreement, for pre-indictment delay, and for being based on improperly obtained evidence in violation of Ms. Maxwell's constitutional rights under the Fifth and Sixth the Amendments. Other motions seek dismissal of the Mann Act charges as being time-barred and the perjury charges as based on non-perjurious statements. These motions are substantial with a likelihood of success on the merits. These motions cast substantial doubt on the alleged strength of the government's case and warrant granting bail on the conditions proposed. III. The Court Should Grant Bail Under the Bail Reform Act of 1984, a defendant must be released on personal recognizance or unsecured personal bond unless the judicial officer determines "that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). The enhanced bail package proposed by Ms. Maxwell contains financial burdens and a combination of restrictions that reasonably 7 EFTA00093358

020629122070011313111(40 Ft 1Do%Welat fat 1 ,Falfied8:12123Pa e 12:35119 assure her appearance as required. Before preventive detention may be ordered under § 3142(e), the Court is obliged to determine both whether the defendant is likely to flee the jurisdiction if released, and whether any conditions of release will be reasonably certain to guard against this propensity to flee. The Court expressed concerns and denied bail without indicating what conditions would be reasonably certain to assure Ms. Maxwell's appearance. Ms. Maxwell is no danger to the community and not alleged to have been involved in ongoing criminal activity. To say that there are absolutely no conditions flies in the face of cases where non-United States citizens with no ties to the district, let alone the country, were released on lesser conditions for alleged criminality ongoing up to or within hours of the time of arrest, in contrast to 26-year-old claims alleged against Ms. Maxwell.' The additional conditions set forth above, which supplement the exceptional bail package previously proposed, are sufficient to address the hypothetical risk of flight and secure Ms. Maxwell's presence at trial. The financial magnitude of the proposed bonds, the collateral pledged to secure the bonds, the stringent requirements of home detention, the renunciation of foreign citizenship and monitoring of assets contained in a special account from which no funds can be withdrawn without the approval and signature of a retired federal District Court judge and former United States Attorney are conditions that amply satisfy the concerns expressed by the government and the Court. These cnditions are unique and unprecedented. They profoundly 2 See Dkt. 97 at 34 (case-comparison chart in the Renewed Motion for Bail); cf. People v. Dominique Strauss-Kahn, 02526/201 I(S.Ct. N.Y. County). Strauss-Kahn, a French citizen with no ties to the United States, was arrested on a Paris-bound flight at JFK minutes before takeoff and later charged with several counts of sexual assault, including felony charges punishable up to 25 years imprisonment, for sexual assault and attempted rape of a Manhattan hotel housekeeper on the day of his arrest. The accusations were corroborated by semen containing Strauss-Kahn's DNA on the accuser's uniform. The New York State Supreme Court granted bail in the amount of $1 million cash, 24- hour home detention electronic monitoring ankle bracelet, and private 24/7 security guards. After surrendering his French passport and posting an additional $5 million bail bond, Strauss-Kahn was placed under house arrest in a residence in Manhattan. See https://www.thcguardian.comAyorld/20 II/ may/20/dominiquc-strauss-kahn-ncw-york- apartmcnt. 8 EFTA00093359

inasze2207800033008Nt lOcittlih3/41M/2021,Faa82923ftePii§ef93219 affirm Ms. Maxwell's earnestness in seeking bail to properly prepare her defense, not to flee. The Court should grant bail to Ghislaine Maxwell. CONCLUSION The proposed additional conditions of release—renunciation of foreign citizenship and restraint and monitoring of assets by a retired District Court judge—enhance the already extraordinarily restrictive bail conditions proposed in Ms. Maxwell's Renewed Motion for Bail. In combination, these conditions satisfy the Bail Reform Act and reasonably assure Ms. Maxwell's appearance at trial. To deny Ms. Maxwell bail when such extraordinary and restrictive conditions are available would be a miscarriage of justice. Dated: February 23, 2021 Respectfully submitted, goat C. Sitagn. Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, Colorado 80203 Phone: 9 EFTA00093360

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page287 of 351 Exhibit J Doc. 165 The Government's Response in Opposition to Defendant's Third Motion for Release on Bail EFTA00093361

G2ase12207MOGUIvA614 1136tA4M126€ 1 ,Falitiasneaft ePa§et13219 U.S. Department of Justice United States Attorney Southern District of New York The Silvio 1 Mollo Building One Saint Andrew's Plaza New York. New York 10007 March 9, 2021 BY ECF & ELECTRONIC MAIL The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter in opposition to the defendant's third motion for release on bail, dated February 23, 2021 (the "Third Bail Motion" or the "Motion"). (Dkt. No. 160). On July 14, 2020, after extensive briefing and a lengthy hearing, this Court concluded that the defendant posed a serious flight risk and that no condition or combination of conditions could ensure her appearance in court. On December 28, 2020, after the defendant renewed her motion for release on bail (the "Second Bail Motion") by essentially restating her prior arguments and presenting a more significant and specific bail package, this Court issued a thorough opinion and again concluded that the defendant "plainly poses a risk of flight" and denied the motion for "substantially the same reasons that the Court denied" her first motion for release. (Dkt. No. 106 at 1-2 ("Dec. Op.")). The defendant appealed this Court's December 2020 decision to the Second Circuit, and that appeal remains pending. Now, the defendant asks the Court yet again to reconsider its decision, and proposes two additional bail conditions to supplement the bail package the Court previously considered and rejected. For the reasons set forth below, the Motion should be denied. First, the Court does not have jurisdiction to grant the Third Bail Motion—in which she asks this Court to reconsider its December opinion—because the defendant has appealed that December opinion to the Second Circuit. Second, even assuming the Court had jurisdiction to grant this latest bail application, the Court should adhere to its prior rulings because the defendant continues to pose an extreme risk of flight, and the additional bail conditions proposed by the defendant do not justify reversal of the Court's prior findings that no combination of conditions could ensure her appearance. The defendant's Third Bail Motion should be denied. I. Background The Government's December 16, 2020 opposition to the defendant's Second Bail Motion details the background of the initial bail proceedings in this case and is incorporated by reference herein. (See Dkt. No. 100 at 2-6). After this Court denied the defendant's initial application for EFTA00093362

02M*912207a000330XIAGNI 10eiblittlat 2661 .1,31kfaS4O9 Page 2 eMijef23219 bail in July 2020, the defendant filed a renewed motion for release in December 2020 in which the defendant proposed a "substantially larger bail package" and presented arguments that "either were made at the initial bail hearing or could have been made then." (Dec. Op. at 1). In denying that second application, the Court found that the information provided in the Second Bail Motion "only solidifies the Court's view that the Defendant plainly poses a risk of flight and that no combination of conditions can ensure her appearance." (Id. at 1-2). On January 11, 2021, the defendant filed a notice of appeal to the Second Circuit appealing the Court's December 2020 opinion denying the Second Bail Motion. (Dkt. No. 113). That appeal is pending; the defendant has not yet filed her brief in support of the appeal. On February 23, 2021, the defendant submitted the Third Bail Motion, in which she proposed two additional bail conditions to "supplement the . . . bail package she has already offered" in the Second Bail Motion (Mot. at 2): (1) renunciation of the defendant's French and British citizenship; and (2) placement of a portion of her and her spouse's assets in a new account to be overseen by an asset monitor. IL The Court Does Not Have Jurisdiction to Grant the Third Bail Motion Because of the Defendant's Pending Bail Appeal The defendant asks this Court to "reconsider its earlier ruling and grant bail under the proposed conditions." (Mot. at 4). More specifically, the defendant asks the Court to consider the exact same package previously considered and rejected in the December opinion, as now "supplement[ed]" by two additional conditions. (Id. at 2, 8). However, the Court lacks jurisdiction to grant the Motion by virtue of the defendant's appeal of the Court's prior ruling to the Second Circuit. "As a general matter, `the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.' United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). "The divestiture of jurisdiction rule ... is a judicially crafted rule rooted in the interest of judicial economy, designed `to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.' Rodgers, 101 F.3d at 251 (quoting United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989)); see also United States v. Ransom, 866 F.2d 574, 576 (2d Cir. 1989) (describing the Griggs rule as "promot[ing] the orderly conduct of business in both the trial and appellate courts"). In January 2021, the defendant filed an appeal from the Court's December 28, 2020 Opinion and Order denying her Second Bail Motion. The defendant's Third Bail Motion not only seeks reconsideration of the very issue presently on appeal but does so by proposing two additional bail conditions to "supplement" the bail package proposed in the defendant's Second Bail Motion, (Mot. at 2, 8), a package which this Court considered and concluded could not "reasonably assure her appearance." (Dec. Op. at 16). Accordingly, the defendant's Third Bail Motion also concerns bail and is thus an "aspect[] of the case involved in the appeal." Rodgers, 101 F.3d at 251. The EFTA00093363

Gaesea122070002204A611 1 Oct LOMA /26e 1 ,R*168211091°A ePiliqet33219 Page 3 defendant cannot simultaneously pursue bail in both the Second Circuit and the district court. To allow her to seek relief in both venues runs counter to the principles of judicial economy underpinning the divestiture of jurisdiction upon the filing of a notice of appeal. See Rodgers, 101 F.3d at 251.' The Court's lack of jurisdiction to grant the Third Bail Motion does not leave the defendant without a remedy. The defendant can withdraw her pending bail appeal to restore jurisdiction to this Court. Alternatively, the Court can follow the procedure set forth in Rule 37(a) of the Federal Rules of Criminal Procedure, which provides that if the defendant makes a timely motion for relief "that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." However, the defendant should not be permitted to simultaneously pursue bail in both this Court and the Second Circuit. III. The Court Should Not Reverse Its Prior Well-Reasoned and Thorough Bail Decisions Even if this Court had jurisdiction to grant the Third Bail Motion, the motion should be denied. This Court has already twice made the determination that the defendant poses a risk of flight. In particular, the Court has found, "the charges, which carry a presumption of detention, ' While the Government has not identified a case addressing the precise issue with which the Court is confronted, several considerations support the Government's position that the Court does not presently have jurisdiction to grant the Third Bail Motion. In addition to the rule articulated by the Supreme Court in Griggs, in Ching v. United States, the Second Circuit found that while an appeal from the denial of a Section 2255 motion was pending, the district court could not rule on a motion to amend the Section 2255 motion. 298 F.3d 174, 180 n.5 (2d Cir. 2002) ("The district court could not rule on any motion affecting an aspect of the case that was before [the Second Circuit], including a motion to amend the motion, while that appeal was pending."). Here, too, while the defendant's appeal of the denial of the Second Bail Motion is pending, the Court should not grant the defendant's motion to reconsider that very same bail ruling. Rule 9 of the Federal Rules of Appellate Procedure, which governs release in a criminal case, also supports such a reading. Rule 9(b), which governs release after a judgment of conviction, provides that a "party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction." In United States v. Hochevar, 214 F.3d 342 (2d Cir. 2000), the Second Circuit found that Rule 9(b) contemplates going to the district court first for a bail ruling after a notice of appeal from the judgment of conviction is filed. Rule 9(a), which governs release before a judgment of conviction, does not say anything about going back to the district court for a new bail ruling after a notice of appeal from a prior bail ruling is filed. In addition, Rule 9(a)(2) provides that the court of appeals "must promptly determine" the pre-judgment bail appeal. Such promptness would not be necessary if defendants could go back to the district court with another bail motion while the bail appeal is pending. EFTA00093364

Gaes2a122(3700Cett3DA6111136t44€011/2621,M69210,9P2ilgentef435f19 Page 4 are serious and carry lengthy terms of imprisonment if convicted; the evidence proffered by the Government, including multiple corroborating and corroborated witnesses, is strong; the Defendant has substantial resources and foreign ties (including citizenship in a country that does not extradite its citizens); and the Defendant, who lived in hiding and apart from the family to whom she now asserts important ties, has not been fully candid about her financial situation." (Dec. Op. at 2). In seeking bail for a third time, the defendant's Motion rests principally on two additional bail conditions. Neither of these conditions will reasonably assure the defendant's appearance in court, and neither outweighs all of the other factors that make this defendant an extreme flight risk. Moreover, the Court should reject as premature the defendant's assertion that her pretrial motions have somehow weakened the Government's case; those motions have not been adjudicated, and, for the reasons set forth in the Government's opposition memorandum, the defendant's motions have no merit. In short, all three of the relevant Bail Reform Act factors—the nature and circumstances of the offense, the strength of the evidence, and the history and characteristics of the defendant— continue to weigh heavily in favor of detention, and the defendant's Motion does not present any information that warrants revisiting this Court's well-reasoned and detailed prior decisions. A. Applicable Law "After a court has made an initial determination that no conditions of release can reasonably assure the appearance of the Defendant as required, the Court may reopen the bail hearing if `information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue' of whether pretrial detention is warranted." (Dec. Op. at 4 (quoting 18 U.S.C. § 3142(0). "A court may also revisit its own decision pursuant to its inherent authority, even where the circumstances do not match § 3142(0's statutory text." (Id. at 5). Although courts in this Circuit have recognized that "a release order may be reconsidered even where the evidence proffered on reconsideration was known to the movant at the time of the original hearing," United States v. Rowe, No. 02 Cr. 756 (LMM), 2003 WL 21196846, at *1 (S.D.N.Y. May 21, 2003), generally the moving party must establish that its arguments "warrant reconsideration" by, for example, demonstrating "that the court overlooked information or incorrectly applied the law," or that failure to reconsider "would constitute manifest injustice." United States v. Petrov, No. 15 Cr. 66 (LTS), 2015 WL 11022886, at *3 (S.D.N.Y. Mar. 26, 2015). B. Discussion The defendant's Motion rests on three arguments, none of which is availing. First, the defendant offers to renounce her foreign citizenship, claiming that this eliminates the risk that she will flee from prosecution. Second, the defendant offers to place some of her assets in a monitorship with unspecified terms, and which would still leave her with substantial unrestrained assets. Third, the defendant claims that her voluminous pretrial motions have diminished the strength of the Government's case. None of these arguments is persuasive, and the Motion should be denied. EFTA00093365

122e7&004REMOONt lattiNight/26e1,Rite618290,9fteMeE3219 Page 5 1. The Defendant's Alleged Willingness to Renounce Her Foreign Citizenship Should Not Alter the Court's Prior Bail Determinations The defendant contends that she has materially strengthened her proposed bail package by offering to renounce her foreign citizenship "if the Court so requires." (Mot. at 2). She claims that such a renunciation will "eliminate any opportunity for her to seek refuge" in France and the United Kingdom or "remove[] any incentive the Court and government believe she may have to seek refuge in those countries." (Id. at 2, 5). The defendant is wrong. That she is "willing" to renounce her foreign citizenship would do nothing to prevent the defendant from fleeing and then fighting extradition once abroad, and it does nothing to diminish the risk that the defendant could choose to flee to another jurisdiction altogether, including one with which the United States does not have an extradition treaty and from which extradition is impossible. The Court previously found that the likelihood that the defendant "would be able to frustrate any extradition requests .. . weighs strongly in favor of detention" (Dec. Op. at 13); the defendant's Motion provides no basis to disturb this finding. Indeed, just as the defendant's offer to execute anticipatory extradition waivers failed to provide the Court with any assurance that she would not frustrate any potential extradition, so too should her offer to renounce her foreign citizenship. First, the defendant's willingness to renounce her citizenship is an offer of unclear validity. As an initial matter, the defendant's offer is itself of little value, as she would at bare minimum have to follow the legal requirements attendant to each country in order to formally renounce her citizenship. Moreover, she provides no assurances—nor could she—that she will not contest the validity and/or voluntariness of such a renunciation once she is actually in France or the United Kingdom. For example, the Government understands that in order to give up one's British citizenship or status, one must be, among other things, "of sound mind (unless it's decided that it's in your best interest)." See www.gov.uk/renounce-british-nationality. The defendant could choose to frustrate any future extradition proceedings by claiming that her decision to give up her citizenship was compelled by some person or circumstance, or that she was not of sound mind. Simply put, while the defendant may believe that it is in her interest to give up her citizenship now, there is no way for the defendant to assure the Court that she will not take the contrary position in the future if she believes it to be in her interest at the time. And even if the defendant could not challenge her renunciation, it is unclear whether, as a separate matter, she could seek to have her citizenship rights restored. Second, and related, the defendant has offered no authority for the proposition that her offer to renounce foreign citizenship would have any impact on an extradition proceeding, nor has she reckoned with the Court's findings regarding her offer to sign a so-called irrevocable waiver of her extradition rights. See United States v. Cohen, No. 10 Cr. 547 (SI), 2010 WL 5387757, at *9 n.I I (N.D. Cal. Dec. 20, 2010) ("Defendant's offers to turn in his passports, to 'renounce' his Israeli citizenship, and have someone `instruct' the Israeli embassy to deny new documents or travel authorizations to defendant, as well as his offer to waive extradition—assuming he flees overseas at some point—do not sufficiently assure the Court that defendant is not still a flight risk. Defendant offers no authority about the real impact of these offers or whether they are enforceable in Israel if defendant were to flee there."). The Court placed "little weight" on the defendant's argument in the Second Bail Motion that waiver of the right to appeal an extradition order indicates EFTA00093366

02ate220780063MKRONt 113thiirdat 2661 larci9:13109Pai eP€140133219 Page 6 her intent not to flee. (Dec. Op. at 13 n.2). The Court recognized that "a defendant could strategically offer to waive the right to extradition while intending to resist any subsequent extradition that might result." (Id.). So too here. An offer to renounce her foreign citizenship "[s]hould the Court feel this drastic condition is necessary," (Mot. at 4) is another strategic, but hollow offer given that the defendant would be free to fight extradition once in the United Kingdom or France, or any other jurisdiction of her choosing (i.e., the one to which she chooses to flee). As such, the defendant's claimed "willing[ness]" to renounce her citizenship in both the United Kingdom and France is little more than window dressing. After receiving the defendant's Third Bail Motion, the Government, through the Department of Justice's Office of International Affairs ("OIA"), contacted the French Ministry of Justice ("MOJ") to understand the impact of the defendant's offer to renounce her French citizenship on France's categorical unwillingness to deport its own citizens for crimes they have committed. In response, the MOJ provided the Government with a letter setting forth the relevant law and conclusively indicating that the defendant's offer to waive her French citizenship will not make her eligible to be extradited from France because, for purposes of extradition, nationality is assessed as of the time the charged offense was committed. That letter in its original French, as well as an English translation of the letter, are attached hereto as Exhibit A. See Ex. A ("[A]ny loss of nationality subsequent to said offense has no bearing upon the removal proceedings and shall not supersede said assessment of nationality."); see also Dkt. No. 100, Ex. B at 3 (MOJ letter stating that the French Code of Criminal Procedure "absolutely prohibits the extradition of a person who had French nationality at the time of the commission of the acts for which extradition is requested"). The defendant's renunciation of her French citizenship in 2021 would not change the fact that she was a French citizen at the time she is alleged to have committed the charged crimes in the 1990s and 2016. As such, the defendant's citizenship at the time of the alleged crimes would bar her extradition from France, making her offer to renounce her French citizenship meaningless. Meanwhile, the defendant's offer to give up her British citizenship does not mean that she will not fight extradition once in the United Kingdom or that an extradition request to the United Kingdom would be successful. The Government understands from OIA that a defendant's nationality has historically played little to no role in extradition from the United Kingdom. Indeed, Article 3 of the 2003 Extradition Treaty between the United States and the United Kingdom expressly prohibits using nationality as a basis to deny extradition. See https://www.congress.gov/108/cdoc/tdoc23/CDOC-108tdoc23.pdf at 5 ("Extradition shall not be refused based on the nationality of the person sought."); see also Crown Prosecution Service, Extradition, Legal Guidance, International and organised crime (May 12, 2020), https://www.cps.gov.uk/legal-guidance/extradition (setting forth the statutory bars to extradition, which do not include nationality). In any event, assuming the Government could locate and apprehend the defendant if she were to flee, as set forth in the Government's opposition to the Second Bail Motion, a judge in the United Kingdom must make an independent decision on extradition based on the circumstances at the time the defendant is before the court, including the passage of time, forum, and considerations of the individual's mental or physical condition. The Government understands from OIA that extradition from the United Kingdom is frequently extensively litigated, uncertain, and subject to multiple levels of appeal. This process is lengthy, complicated, and time-consuming, and would provide no measure of justice to the victims who EFTA00093367

insw122070003e4001110dWOMIVT6e1E3M682909ftenteP4f19 Page 7 would be forced to wait years for the defendant's return. As the Government has repeatedly emphasized, the strong possibility that the defendant could successfully resist extradition only heightens the defendant's incentive to flee. (Dkt. No. 100 at 19-20). Indeed, in rejecting the defendant's offer in the Second Bail Motion to execute anticipatory extradition waivers, the Court noted, among other things, "the likelihood that any extradition would be a difficult and lengthy process." (Dec. Op. at 13). The Court further noted that the "likelihood that the Defendant would be able to frustrate any extradition requests—even if she were correct that she would be unable to stop extradition entirely—weighs strongly in favor of detention." (Id.). That statement remains true even if the face of the defendant's newest offer to renounce her foreign citizenship. As this Court previously found, the defendant has substantial international ties, familial and personal connections abroad, and owns at least one foreign property of significant value. (Dec. Op. at 10-11). The defendant's alleged willingness to renounce her foreign citizenship should not fundamentally alter the Court's conclusions. 2. The Court Should Reject the Defendant's Proposed Monitorship Condition Next, the defendant has offered to place a portion of her and her spouse's assets into a new account that "will be monitored by a retired federal District Court judge and former United States Attorney who will function as asset monitor and will have co-signing authority over the account." (Mot. at 2). This proposed condition—the details of which are vague—is insufficient to ensure that the defendant appears in Court. It first bears noting that the defendant's finances—and her candor with the Court about those finances— is not an issue of first impression. Significantly absent from the defendant's Motion is any attempt to address the Court's determination that the defendant's "lack of candor raises significant concerns as to whether the Court has now been provided a full and accurate picture of her finances and as to the Defendant's willingness to abide by any set of conditions of release." (Dec. Op. at 16). That is critical because the value of any proposed monitorship would depend entirely on the monitor having a completely accurate picture of the defendant's finances and access to all of her accounts and sources of wealth. Given the Court's concerns about the defendant's candor, the Court should hesitate before trusting the defendant to be transparent with a monitor under her employ. In any event, even if the Court were to accept the defendant's representations about her assets at face value, the defendant's proposal would leave the defendant with significant assets unrestrained. In particular, the defendant's proposal does not in any way restrain her $2 million townhouse in London, which she could live in or sell to support herself. Although the defendant asserts that the monitor would oversee any account into which the proceeds of the sale of the defendant's properties were deposited, the defendant does not explain how the monitor—or this Court—would have the authority to force the defendant to deposit foreign assets in a domestic account. As the Government has previously explained, the Government cannot realistically recover assets abroad. Accordingly, the defendant's proposal would leave her with access to at EFTA00093368

asee2207a0041330MINS iroczamatme 1 Falee48310971kgePi4.133219 Page 8 least $2 million. In addition, the defendant proposes that she retain an additional half a million dollars in liquid assets in an unrestrained account, as well as any future income.' That figure appears to be in addition to the approximately $1 million in "chattels" the defendant has disclosed among her various assets. See Dkt. 97, Ex. O at 9. In short, the defendant's proposal would leave her with ample resources to fund her flight from prosecution. Further still, the defendant's Motion provides only cursory details of the monitorship program she proposes, and it offers no legal precedent to explain what, if any, authority this Court has to establish and oversee such a monitorship. Aside from defense counsel's assertions, the Motion offers nothing that would enable the Court to meaningfully consider the details of such a monitorship. Among other things, it is unclear from the defendant's Motion whether such a program would require the defendant's voluntary compliance with the monitorship, or whether the funds would be placed in a bank account that the defendant could not access. Given that the defendant's Motion suggests that attorney's fees could be disbursed without approval, it appears that the defendant's proposal would provide her latitude to engage in financial transactions, subject only to a review that would require her voluntary compliance. Finally, although the defendant does not provide any detail about the amount of money she would pay the monitor, presumably the monitor would not undertake this responsibility for free. As a result, the tension between the monitor's obligation to review the defendant's finances and the monitor's employment relationship with the defendant creates a conflict of interest. But at bottom, if the Court determines that the only way to keep the defendant from using her assets to flee is to take away control of her assets, then she is too great a flight risk to release. In sum, in light of this Court's determination that the defendant "has not been fully candid about her financial situation," the Court should reject the defendant's vague proposal. (Dec. Op. at 2). Nothing in the defendant's Motion should alter the Court's determination that the defendant poses a significant risk of flight, and that she has the resources and skills to flee prosecution. The Court should reject the proposed bail conditions. 3. The Defendant's Pending Pretrial Motions Have Not Diminished the Strength of the Government's Case Finally, the defendant also argues that the "numerous substantive pretrial motions now before the Court amply challenge the purported strength of the government's case." (Mot. at 7). But the defendant cannot merely point to the sheer volume of briefing she has filed to suggest that the strength of the Government's case has diminished. To the contrary, as the Government has set forth in detail in its memorandum in opposition, the defendant's pretrial motions are entirely without merit. In any event, it is premature for the defendant to claim that her pretrial motions— which have not been adjudicated, much less granted—have altered the Court's original The defendant's proposal also leaves unrestrained several million dollars in escrow for the defendant's legal fees. See Dkt. 97, Ex. O at 9 (listing approximately $7.6 million in retainer fees); see also Mot. at 6. If the defendant fled the country, her counsel would presumably be required to return those funds to the defendant, who would no longer need defense counsel in this case. EFTA00093369

12207x00 BM 1Daddelat 2661 1:446B2909PaitePii§ef935f19 Page 9 determination that the Government's case is strong. IV. Conclusion The defendant continues to represent a "plain[]" risk of flight. (Dec. Op. at I). Even assuming the Court has jurisdiction to grant this third bail motion, the two new bail conditions offer insufficient protection against the "substantial and actual risk of flight" this Court has already found that the defendant poses. (Id. at 21). The defendant's Third Bail Motion should be denied. Respectfully submitted, United States Attorney By: s/ Assistant United States Attorneys Southern District of New York Cc: All Counsel of Record (By email) EFTA00093370

C£ast2O-U0092,00a1Nit bberfiétett68211, red68 0Rtele2faâgei 1512 MINISTÈRE DE LA JUSTICE Liberté Égalité Fraternité Direction des affaires criminelles et des grâces Sous-direction de la justice pénale spécialisée Bureau de l'entraide pénale internationale Paris, le 9 mars 2021 Monsieur le garde des Sceaux, ministre de la Justice a 1)eparunent of Justice (D.O.J) Par l'intermédiaire d'Andrew IINKELMAN, magistrat de liaison Ambassade des Etats-Unis d'Amérique à Paris J'ai l'honneur de porter à votre connaissance que la procédure et les conditions d'extradition sont régies en France par les articles 696 et suivants du code de procédure pénale. L'article 696-2 de ce code prévoit ainsi que « k gouvernement fiançais peut remettre, sur kir demande, aux gouvernements étrangers, toute personne n'epant pas k nationalité française qui, étant folyet dune poursuite intentée au nom de fat requérant ou d'une condamnation prononnie par ses tribunaux, est trouvée sur k territoire de la République.» L'article 694-4 précise expressément que : « L'extradition n'est pas accordée : 1° Lorsque k personne réclamée a la nationalité française, cette dernière étant appréciée à l'époque de l'infraction pour laquelle l'extradition est requise». Ainsi, le fait que la personne recherchée ait la nationalité française constitue un obstacle insurmontable à son extradition. Dès lors que cette nationalité s'apprécie au moment de la commission de l'infraction, la perte de la nationalité, postérieurement à la commission de cette dernière, est sans incidence sur la procédure d'extradition, et ne permet pas de lever cet obstacle. Le Chef du Bureau de r ale Internationale Philip 13. place Vendôme - 75042 Paris Cedex 01 Téléphone : 01 44 77 60 60 WbW/ j u stic e . g ou v f r EFTA00093371

i tgast:20-e00D300004,11t 0bilitleathittf86211, WiletiZEB300,031e2latipi 2512 MINISTRY OF JUSTICE Liberty Equality Fraternity Directorate of Criminal Affairs & Pardons Specialized Criminal Justice Sub-Directorate International Criminal Assistance Bureau Paris, March 9, 2021 His Honor the Keeper of Seals, Minister of Justice To the Department of Justice (D.O.J) Through Andrew FINKELMAN, Liaison Magistrate on behalf of the Embassy of the United States of America located in Paris, France I hereby inform you that in France, all removal proceedings and conditions are governed by Articles 696 et sq. of the Code of Criminal Procedure. Article 696-2 of said Code provides that: "The French government is able to remit to foreign governments upon their request any individual who is not a French citizen and who is subject to a lawsuit brought on behalf of the requesting State, or who is subject to a sentence passed by the Court of said requesting State, and who is located on the territory of the French Republic." Article 694-4 expressly specifies as follows: "Removal is not granted: 1- When the individual claimed to have French citizenship, said citizenship having been assessed at the lime of the offense on the basis of which removal is being requested." WHEREBY, the fact that the wanted individual is a French national constitutes an insuperable obstacle to his/her removal. As long as said nationality is assessed at the time the offense was committed, any loss of nationality subsequent to said offense has no bearing upon the removal proceedings and shall not supersede said assessment of nationality. Head of the International Criminal Assistance Bureau Philippi 4E 13, place Vendome - 75042 Paris Cedex 01 - France Telephone: (011) 33.1.44.77.60.60 www.justice.gouv.fr EFTA00093372

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page299 of 351 Exhibit K Doc. 171 Reply Memorandum of Ghislaine Maxwell in Support of Her Third Motion for Bail EFTA00093373

c6eset 20-ZMDcgiscumnit Db@utht111121l21F fiegeteag 4810j/e01 3518 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. x 20 Cr. 330 (AJN) REPLY MEMORANDUM OF GHISLAINE MAXWELL JN SUPPORT OF HER THIRD MOTION FOR RAIH, Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.0 150 East 10th Avenue Denver, CO 80203 Phone: Attorneys for Ghislaine Maxwell 1 EFTA00093374

Cagecat-Z741O24O4ASnit t%eutilatl 12121F Ili&g9£tgecg 3518 Preliminary Statement The issue before the Court, as it has been since Ms. Maxwell's first bail application, is whether conditions exist that can reasonably assure Ms. Maxwell's appearance at trial. On her third application (the "Third Bail Motion") (Dkt.160), Ms. Maxwell has put before the Court significant enhancements to the already extraordinary bail package previously presented to the Court in her renewed application for bail (the "Second Bail Motion") (Dkt. 97).' Together, these two motions present a unique and comprehensive bail package with the strictest of conditions known in any bail application: • $28.5 million in bonds (including a $1M bond co-signed by a security company); • $9.5 million in real property; • $550,000 in cash; • Asset Monitoring by a retired federal district court judge; • Renunciation of British and French citizenship; • Irrevocable written waivers of the right to contest extradition; • Surrender of all travel documents; • Home confinement in New York City; • Electronic GPS monitoring; • In-residence third-party custodian;2 I Ms. Maxwell's present motion (the "Third Bail Motion") (Dkt.160) incorporates her Memorandum in Support of Her Renewed Motion for Bail and accompanying exhibits (Dkt. 97, including Attachments 1-24) and her Reply Memorandum in Support of Her Renewed Motion for Bail (Dkt. 103, including Attachments 1-2) (collectively, the "Second Bail Motion"). 2 To assist Ms. Maxwell in making up for lost time preparing for her upcoming trial, one of her lawyers (not trial counsel) has agreed to reside with her and serve as an additional residential custodian. EFTA00093375

cfiget2D-Z7418013O4Astint Metiiikfit112021FRO111923/2agallitcl 3518 • On-premises 24/7 private security to prevent Ms. Maxwell from leaving the residence without pre-approval by the Court or Pretrial Services and to escort her when authorized to leave the residence; • Visitors to be pre-approved by Pretrial Services; • Strict supervision by Pretrial Services; • Such other terms as the Court deems appropriate. The government goes to great lengths to oppose bail arguing technicalities and offering unfounded innuendo ripped from the tabloid headlines to avoid addressing the merits of Ms. Maxwell's exceptional bail package, which puts at risk everything she has, including the assets of her spouse and the financial security of her family and closest friends. The Court Retains Jurisdiction to Decide Matters Related to Bail The government asserts that the Court should not consider the present bail motion because appeal of denial of the Second Bail Motion, not yet briefed, is pending before the Second Circuit. (Dkt. 165 at 2-3). It is ironic that the government takes this position given that it created this problem by opposing Ms. Maxwell's request for an enlargement of time to file a notice of appeal to the Court's denial of her Second Bail Motion. Indeed, Ms. Maxwell sought the extension to avoid this very issue. (Dkt. 109). The government should not now be allowed to turn that procedural sword into a jurisdictional shield to prevent the Court from considering the instant motion. Divestiture of jurisdiction in the district court while an appeal is pending is not a per se rule. Rather, it is a judicially crafted rule rooted in the interest of judicial economy that is designed to avoid confusion or waste of time resulting from having the same issues before two courts at the same time. Divestiture of jurisdiction, therefore, should not be automatic, but 2 EFTA00093376

Cage t1211-Z740304A011 t Dbeti MOO 1212 i f mateagaigeott 35 18 instead guided by concerns of efficiency. Here, it is unclear whether interlocutory appeal of a district court's decision regarding bail "divests the court of its control over aspects of the case involved in the appeal." United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). Were it so, a district court would have no authority to remand or modify bail conditions of a defendant released while the government appeals the grant of bail. Such a rule would detract from, rather than promote, judicial economy and would be unworkable in practice. Should the Court believe it does not have jurisdiction to decide the present bail motion, Ms. Maxwell will move the Circuit to withdraw her notice of appeal without prejudice and thereby remove any theoretical bar to this Court's jurisdiction over the present bail motion. Should the Court summarily deny the present motion on the merits, Ms. Maxwell will file a notice of appeal and request consolidation of both appeals. Renunciation of Foreign Citizenship is a Valid and Significant Condition of Release Relying on a letter from the French Ministry of Justice, the government urges the Court to give no weight to Ms. Maxwell's agreement to renounce her foreign citizenship. But the letter is wrong on the law and should be disregarded. The letter asserts that the loss of French nationality subsequent to the criminal act which the person is alleged to have committed does not affect the rule against the extradition of nationals, as nationality must be assessed at the time of commission of the offense and not at the time of the extradition request. As discussed in the opinion from William Julie, French legal counsel (attached as Exhibit A), the government's assertion is entirely incorrect for the following reasons: • The government's argument goes against the letter of the law. • The government's argument goes against the spirit of the law. • The government's argument is contradicted by precedent and case law. (Julie Opinion ¶¶ 6-26). 3 EFTA00093377

C€a?1b-Z74102@oadit t itk$911 12021F 035513/21g ElaljectS 5518 The language of the extradition treaty between the United States and France and the applicable French statues are clear that anyone seeking to contest extradition on the basis of French citizenship must be a French national at the time of the extradition request. (Id. ¶ II). The provisions on which the government relies were not intended to apply in cases where the person whose extradition is sought had lost French citizenship. To the contrary, it was designed to apply to individuals who had acquired French citizenship subsequent to the commission of the alleged crime "in order to avoid fraudulent nationality applications of offenders seeking to escape extradition." (Id. ¶¶ 15-16). If the person is no longer a French national at the time of the request, the provision does not apply. The government cites no case where the relevant statute was applied to protect a formerly French national from extradition, and we have found none ourselves. (Id. ¶¶ 19-21). By contrast, there are numerous examples of French courts deporting individuals who have lost French nationality following the commission of an offense. (Id. ¶ 21). Accordingly, Mr. Julie concludes: "[I]t cannot have been the intention of French lawmakers that Article 696-4 be construed as meaning that a person who has lost French nationality would still be entitled to be protected from extradition." (Id. ¶ 26). Ms. Maxwell's agreement to give up both British and French citizenship and waive any and all right to contest extradition is a formidable challenge to the assertion that Ms. Maxwell would likely flee if released from custody and goes above and beyond the "reasonable assurances" that the Bail Reform Act requires to grant bail. While we maintain that Ms. Maxwell's written waivers of the right to challenge extradition should suffice, her willingness to forfeit citizenship birthrights exceeds what is necessary and profoundly demonstrates her commitment to abide by conditions of release and appear at trial. 4 EFTA00093378

Cgss ZD-Z74)(1240O1it Obelin*9012121F 0382%/Eig Eatafjec6 at 18 Monitoring of Assets is a Valid and Significant Condition of Release To address the Court's concern about Ms. Maxwell's access to assets, the bail motion proposed another extremely significant and restrictive bail condition — the imposition of a monitor to supervise the assets of Ms. Maxwell and her spouse and approve expenditures. Rather than suggest conditions to satisfy its concerns, the government urges the Court to summarily reject the proposed monitorship. William S. Duffey, Jr., a retired federal district court judge and the former United States Attorney for the Northern District of Georgia, has agreed to undertake appointment by the Court as asset monitor. Judge Duffey has extensive experience evaluating and monitoring funds held in and disbursed from financial accounts. He has agreed to serve by appointment of the Court in a capacity similar to other trustees and receivers who serve as officers of the Court and are entrusted, pursuant to court order, with oversight authority to restrain, monitor, and approve disbursement of assets requiring his signature. Similar to others who have been appointed by courts to oversee financial matters, Judge Duffey will be compensated at the same hourly rate billed for his services as an ADR panelist for Federal Arbitration (FedArb). The proceeds from the sale of Ms. Maxwell's London home will be restrained and monitored by Judge Duffey. As required by court order, documentation concerning the proceeds of the sale will be provided to Judge Duffey and the funds will be deposited in the financial account approved by Judge Duffey. The government tries to steer the Court's attention to allegations of Ms. Maxwell's lack of candor to dissuade the Court from considering the proposed monitorship as a meaningful restraint on the assets of Ms. Maxwell and her spouse. As previously stated, despite being questioned by Pretrial Services following a period of solitary confinement, suicide watch, sleep 5 EFTA00093379

CCtss EL 20-S7ODanocuutint 1%0012021F mateaggaifte07 3518 deprivation, and other conditions adverse to her physical health and mental well-being, Ms. Maxwell responded appropriately and accurately to questions posed by Pretrial Services which were restricted to her personal assets. Since then, financial documents - collected and professionally vetted by a highly respected accounting firm — have been submitted to the government and the Court and provide full details and supporting documentation concerning Ms. Maxwell's personal assets and those jointly held with the spouse. Further, no valid challenge has been made to those submissions. The government challenges the Court by inanely stating that if "the only way to keep the defendant from using her assets to flee is to take away control of her assets, then she is too great a risk to release." (Dkt.165 at 8.) This statement is fundamentally illogical as it undermines most conditions of release. For example, the same could be said of electronic monitoring — i.e., if the only way to keep a defendant from fleeing the jurisdiction is to place him on home confinement with electronic monitoring, then he is too great a flight risk to release.' The Court should readily dismiss this frivolous argument. Under the Bail Reform Act, if there are appropriate conditions for release, bail should be granted. The conditions collectively proposed in the previous and present bail applications provide ample assurance that Ms. Maxwell will be present at trial. 3 Moreover, in an effort to further obfuscate the merits of Ms. Maxwell's bail application, the government desperately argues that funds for legal services, presently held in attorney escrow accounts, would be released and made available to support Ms. Maxwell as a fugitive. To suggest that defense counsel would become accomplices to a violation of a court order shows utter disrespect for Ms. Maxwell's defense team. In particular, New York counsel, who have spent the entirety of their legal careers practicing in this district and establishing well-respected reputations among the bench and bar, take umbrage at the government's callous assertion. 6 EFTA00093380

CGSB EL 20-Z74162404A11411 Okietl 21Fti ad 637Z3R2Ig fEratgec8 0518 Conceded Problems Undermine the Strength of the Government's Case As Ms. Maxwell's period of detention passes the nine-month mark, the government has continuously upgraded Ms. Maxwell from a "plain [ ] risk of flight" to a "substantial and actual risk of flight" to a "serious flight of risk" and now to an "extreme risk of flight." (Dkt. 165 at 1.) Ironically, her level of flight risk increases as the strength of government's case against her diminishes. Ms. Maxwell has challenged the strength of the government's case in pretrial motions pending before the Court. Among other things, Ms. Maxwell has persuasively argued that the Non-Prosecution Agreement entered into by Jeffrey Epstein in 2007, which immunizes "any potential co-conspirators of Epstein," bars Ms. Maxwell's prosecution in this case, and that the counts charging her with alleged sexual abuse are time-barred. The government's response to Ms. Maxwell's pretrial motions shines further light of the weaknesses of its case. For example, the government concedes it cannot establish that either Ms. Maxwell or Epstein ever caused, or sought to cause, Accuser-34 to travel while she was a minor or that she was underage when she allegedly engaged in sex acts with Epstein. (See Opp.162-65 & fn. 57-58)5 Hence, her allegations cannot support the conspiracies charged in the Indictment, leaving the government with only two witnesses to prove the charges against Ms. Maxwell. More importantly, in connection with the government's response, it produced documents indicating that government prosecutors misled a federal judge to obtain evidence against Ms. Maxwell (see, e.g.,. Opp. Ex. 4-7) - a shocking revelation that undermines the viability of the perjury counts, not to mention the integrity of the entire Accuser-3 is identified in the Indictment as "Minor Victim-3." 5 "Opp." references are to page numbers of the Government's Omnibus Memorandum in Opposition to Defendant's Pre-Trial Motions, dated February 26, 2021 and not yet publicly filed. 7 EFTA00093381

Cfiesel.20-MIKES1804,AMM nbeakistuatriF mateagageot a518 prosecution. The ongoing review of discovery confirms the lack of evidence in support of the stale allegations in the indictment. Further, the government's concessions reveal that it failed to properly investigate the allegations of at least one of its three core witnesses. The passage of time continues to reveal information and lack of evidence that undermine the purported strength of the government's case. Bail Must Be Granted The detention of Ms. Maxwell on 25-year-old allegations — based on the lowest grade misdemeanor under New York Penal Law 130.556 — presented in a sensationalized indictment containing pictures to inflame the public and entice and feed the media frenzy? — is unwarranted in the face of the unique bail package before the Court. Relentless media coverage of Ms. Maxwell, which preceded and impacted the bringing of this prosecution, has increased significantly since her arrest and detention. Ms. Maxwell's continued detention — providing daily fodder for media for the past nine months—continues to severely undermine her presumption of innocence. In the face of this enhanced bail package, the government's claim that Ms. Maxwell poses "an extreme risk of flight" rings hollow. The government urges the Court to apply a standard that defies the law - an absolute guarantee against all risks. See United States v. Orta, 760, F.2d 887, 888 n.4 (8th Cir. 1985) ("The legal standard required by the [Bail Reform] Act is one of reasonable assurances, not absolute guarantees."). Under the Bail 6 Counts Two and Four allege violations of New York Penal Law § 130.55 - sexual abuse in the third degree - a class B misdemeanor punishable by maximum penalties of three months in jail or one year probation. 7 What other purpose could be served by the inclusion of a picture of Ms. Maxwell and Jeffrey Epstein taken over a dozen years after the period of the conspiracy alleged and pictures of three high-value residences? 8 EFTA00093382

Caask.20-0002a2M-Olsint Oartkifil Ira) 2 HINEQ11028/21agneft 0.1332118 Reform Act, Ms. Maxwell must be released unless there are "no conditions" that would reasonably assure her presence. Here, the proposed bail package - uniquely strengthened by Ms. Maxwell's agreement to renunciate her foreign citizenship and have assets monitored by a retired federal district court judge - satisfies the actual governing standard. To find there are absolutely no conditions to satisfy flight risk of a 59-year-old woman with no criminal history, who poses no danger to the community, who has made America her home for the past 30 years, and who has established strong roots and forged important connections with family and friends who reside here, is incredulous. The concerns regarding foreign citizenship and restraint of assets have been addressed. To say that renunciation of foreign citizenship and strict monitoring of assets by a retired federal district court judge does not suffice when combined with an eight-figure bond secured by real property and cash and the strictest terms of home confinement and electronic monitoring strains credulity. The government gains a strategic advantage each day Ms. Maxwell remains in custody — her case is tried daily in the court of public opinion based on allegations that are inadmissible in a court of law; the likelihood of seating jurors who are not implicitly biased against her is being severely jeopardized; her physical strength and concentration are becoming increasingly impaired by the conditions of her confinement; and she is being denied a full and fair opportunity to prepare her case for trial s s Ms. Maxwell continues to experience difficulty reviewing electronic discovery, including discs that can only be reviewed on the MDC computer but are not readable on that computer, and thousands of pages still not readable on either the MDC computer or the laptop. Her receipt of legal mail — including pretrial motions, responses and replies — arc constantly delayed even after tracking information confirms delivery to the MDC. The visiting rooms in the East Building, where Ms. Maxwell is detained, have been reviewed by an HVAC expert retained by the Federal Defenders of New York and have been characterized as a "death trap." The MDC claims it is in the process of installing HEPA filters, a request long overdue in light of concerns regarding ventilation in legal visiting rooms raised early in the pandemic. The alternative — to meet in the open-area where social visiting had been conducted- affords no privacy for confidential attorney-client communication, especially under constant oversight by Ms. 9 EFTA00093383

Ceaest:20-dr700SEAlNint Dadtrathii)1111)2 Filidanflatgla0 01132118 Conclusion The Court should grant bail for Ms. Maxwell on the extraordinary conditions proposed. Should the Court determine that additional conditions are necessary, Ms. Maxwell is willing to satisfy and abide by those terms as well. Dated: March 16, 2021 Respectfully submitted: Eta- C. gib14-ge:m. Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.0 150 East 10th Avenue Denver, CO 80203 Phone: Attorneys for Ghislaine Maxwell Maxwell's guards and a hand-held camera focused on both Ms. Maxwell and counsel. Further, confidential attorney-client communications conducted during video teleconferencing (VTC) are now further compromised by the repositioning of a camera with sensitive audio recording, putting a chill on privileged communication. During VTC conferences, counsel can hear conversation among the guards, so it is likely that the guards, who seem to be writing during those sessions, am able to hear discussions between Ms. Maxwell and counsel. Last night, prior to the filing of defense replies to Ms. Maxwell's pretrial motions, the MDC refused her request to speak with her lawyers to provide information bearing on those filings,. Such denial violates the BOP's Program Statement pertaining to providing legal calls upon request of pretrial inmates. See https://www.bop.gov/policy/progstat/733 I 004.pdf at par. 24(c). The chronic difficulties related to Ms. Maxwell's review of the millions of documents of electronic discovery are continuing to negatively impact her ability to prepare for a trial that is only a few months away. 10 EFTA00093384

Caask.20-0001MAMIsit EbadtraddlaD2 -FilaWiltint/Ilagra§b 0.235f118 EXHIBIT A EFTA00093385

Chiast:20-dr700ffagrMiNnt Ebban$4,11171)2FitiiO3:02e/Tiagn& at335f118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW March 14'h 2021 Re: Additional opinion on the extradition of nationals by the French government 1. This memorandum was written pursuant to a request from Olivier Laude, a partner at the French firm Laude Esquier Champey acting on behalf of Cohen & Gresser LLP as counsel for Ms Ghislaine Maxwell. The request was made in the context of ongoing bail proceedings involving Ms Maxwell in the United States of America (hereafter "USA"), where Ms Maxwell is being detained pre-trial on charges relating to her alleged role in sexual activities involving Jeffrey Epstein from 1994 to 1997. 2. In a previous opinion, I have outlined why French authorities could decide to execute an extradition request against a French citizen under the Extradition Treaty between the USA and France, without violating any superior norm of French and international law. 3. As I understand the defendant's French nationality continues to be regarded by the Court as a bar to her release pending trial, I am informed that the defendant is prepared to renounce French nationality under Article 23-4 of the French Civil Code, if the Court so requires. 4. In a letter to the Department of Justice dated 9 March 2021, the Head of the International Criminal Assistance Bureau of the French Ministry of Justice, Mr Philippe Jaegle, asserts that the loss of French nationality after the criminal act which the person is alleged to have committed does not affect the rule against the extradition of nationals, as nationality must be assessed at the time of commission of the offence and not at the time of the extradition request. 5. This report was written to provide a counter opinion on this issue, in support of the proposition that the French government would be legally entitled to execute an extradition request against an individual who is no longer a French national. 6. The Ministry of Justice's assertion must be regarded as incorrect for three reasons: (i) It is not supported by the letter of the law; 1 51, RUE AMPERE - 75017 PARIS - TEL. 01 88 33 51 80 - rAx. 01 88 33 51 81 wjtovjavocats.com - www.wjavocats.com - PALAiS CI 652 EFTA00093386

Caesk: 20-dr7COMAPONn Maras141 171)2 Fired57.028/Pagn0 0.1435f118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW (ii) Nor is it supported by the spirit of the law; (iii) Case law and precedents in fact suggest the opposite. 7. First, the Ministry's interpretation goes against the letter of the law. 8. American extradition requests are principally governed by the Extradition Treaty between the USA and France of 23 April 1996 ("the Treaty") and the French Code of Criminal Procedure for matters not dealt with under the Treaty. 9. Article 3(1) of the Treaty provides: "There is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State, but the executive authority of the United States shall have the power to surrender a national of the United States if, in its discretion, it deems it proper to do so. The nationality of the person sought shall be the nationality of that person at the time the offense was committed". 10. Article 696-4 of the French Code of Criminal Procedure provides for the same rule, under similar wording: "Extradition shall not be granted: 1° When the person claimed has French nationality, the latter being assessed at the time of the offense for which extradition is requested" 11. Under a literal reading of these provisions, the nationality protection only applies where French authorities are faced with an extradition request against a person who is a French national at the time of the extradition request. Both the Treaty and the French Code of 1 Other relevant international treaties include: the Agreement on Extradition between the United States of America and the European Union signed in Washington on 25 June 2003, and the Instrument Amending the Treaty of 23 April 19% between the United States of America and France signed in the Hague on 30 September 2004. 2 51, RUE AMPERE - 75017 PARIS - TEL. 01 88 33 51 80 — FAX. 01 88 33 51 81 [email protected] - www.wjavocats.com - PALMS C1652 EFTA00093387

Caits}:204r70011311tAINInt fi6e2inidt111.742FiliieelaneMag no C1532118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW Criminal Procedure use the present tense ("a person who is a national of the Requested State"/"the person claimed has French nationality"), which can only mean that the extradition of a person is denied when that person is in fact a French national. If the person is no longer a French national at the time of the request, the provision does not apply. 12. Had these provisions been intended to apply in cases where the person has lost French nationality subsequent to the commission of the alleged crime, the texts would have expressly stated so or would at least have used both the present and the past tense to qualify the national affiliation of the requested person. 13. Furthermore, it is a well-known principle of legal interpretation across all jurisdictions that exceptions to rules must be construed strictly. The nationality ban being an exception to extradition, it must be interpreted in a restrictive manner and its application to a person who is no longer a French national must be rejected. 14. Second, the Ministry's interpretation goes against the spirit of the law 15. The literal reading of Article 3 of the Treaty and Article 696-4 of the French Code of Criminal Procedure is further supported by the fact that these provisions were in fact not intended to apply in cases where the person sought has lost French citizenship, but only in cases where that person has acquired French citizenship subsequent to the commission of the alleged crime. 16. In other words, the rule that "nationality shall be assessed at the time of the offence for which extradition is requested" seeks to deny the extension of the benefit of French nationality to persons who have acquired French nationality after committing an offence, in order to avoid fraudulent nationality applications of offenders seeking to escape extradition. 3 51. RUE AMPERE - 75017 PARIS - TEL. 01 88 33 51 80 - FAX. 01 88 33 51 81 [email protected] - www.wjavocats.com - PALMS C1652 EFTA00093388

Caesk:20-0002ZINA8NniDadirddill71)2 Filard5IIMS/PagPagt 032118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW 17. This concern over opportunistic nationality applications is precisely the justification of the rule mentioned in academic literature (see for example Repertoire de droit penal et de procedure penale Extradition Pen. — Conditions de fond de !'extradition - Delphine Brach-Thiel-October 2018, §59). 18. Third, the French Ministry of Justice's interpretation is contradicted by precedents and case law 19. The French Ministry of Justice's interpretation finds no support in case law, as no case can be found where Article 696-4 of the French Code of Criminal Procedure was applied to protect a formerly French national from extradition. 20. Instead, precedents exist in which Article 696-4,1° of the French Code of Criminal Procedure was relied on by French authorities to execute an extradition request against an individual who had acquired French nationality after committing an offence, which is the natural use of this provision (for example, a ruling issued by the Criminal Chamber of the French Cour de cassation on 4 January 2006, n°05-86.258). 21. Although we have found no precedent where French authorities were faced with the extradition of a person who had lost French nationality, we have found cases where French authorities were faced with the deportation of a person who had lost French nationality. Both extradition and deportation allow for the removal of a person from French territory by the police and its surrender to the authorities of a third State, with the consent and cooperation of the authorities of that State. 22. The European Court of Human Rights (the "ECtHR") treats extradition and deportation analogously. More specifically, the ECtHR considers that the same human rights bars apply to all types of removal of a person from the territory of a State party ("the Court considers that the question whether there is a real risk of treatment contrary to Article 3 in another State cannot depend on the legal basis for removal to that State. The Court's own case-law has shown that, in practice, there may be little difference between 4 51, RUE AMPERE - 75017 PARIS - TEL. 01 88 33 51 80 - FAX. 01 88 33 51 81 [email protected] - www.wjavocats.com - PALMS C1652 EFTA00093389

Caesk: 20-dr7001:CaNA8 Nn t eimidie 117132 i lakfan25/23a g 0%0? W735f118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW extradition and other removals", ECtHR 12 April 2012, Babar Ahmad and Others v. the United Kingdom, no. 24027/07, §168). 23. France has no difficulty with deporting individuals who have lost French nationality by application of Article 25 of the Civil Code, which enumerates the list of crimes that may give rise to a deprivation of citizenship. For example, a dual French-Algerian citizen named Djamel Beghal was recently deported to Algeria after he was convicted of terrorist offences and subsequently deprived of his French nationality'. 24. While in custody in France, Djamel Beghal was also convicted in absentia to a term of prison in Algeria, but his extradition initially seemed impossible, not because he used to be a French citizen, but because the case law of the ECtHR specifically prohibits State parties from deporting persons deprived of their nationality to the State of which they remain a national, when there is a risk of torture or degrading treatment'. Beghal was eventually deported to Algeria where he was arrested upon landing for the purpose of standing trial. In this case, the French government's decision to deprive Djamel Beghal of his French nationality was clearly intended to allow for his removal from France, whether through extradition or deportation, as both means of removal were conceivable at the time. Had there not been a risk of violation of the ECHR at the time of the Algerian extradition request, he may well have been extradited as opposed to deported a few years later, when that risk was eliminated. 25. In any case, the deportation of formerly French citizens shows that the loss of French nationality prevents any retroactive application of domestic provisions which are intended to protect French nationals, be it from deportation or extradition. 2 https://www.lemonde.fr/societe/article/2018/07/16/incertitude-sur-le-sort-de-l-islamiste-djamel-beghal-qui-sort- de-prison-lundi_5332053_3224.html 3 ECtHR 3 December 2009, Daoudi v. France, application no. 19576/08. or 4 sept. 2014, Trabelsi a Belgique, req. n° 140/10, 17 janv. 2012, Othman c. Royaume-Uni, req. n° 8139/09. For more details, http://www.revuedlfcom/cedb/eloignement-des-etrangers-terroristes-et-article-3-de-la-convention- europeenne-des-droits-de-lhomme/ 5 51, RUE AMPERE - 75017 PARIS TEL. 01 88 33 51 80 - FAX. 01 88 33 51 81 [email protected] - www.wjavocats.com - PALMS C1652 EFTA00093390

Calita:20-&700ffailtA0isint No/AM 11142 F iti1031073/21a g (1.835f118 WILLIAM JULIE AVOCAT A LA COUR - ATTORNEY AT LAW 26. In these circumstances, it cannot have been the intention of French lawmakers that Article 696-4 of the French Code of Criminal Procedure be construed as meaning that a person who has lost French nationality would still be entitled to be protected from extradition since the French government has on several occasions deported to third countries individuals who had been deprived of their French nationality following the commission of criminal offences. William JULIE Avocat a la Cour 6 51. Rue AMPERE - 75017 PARIS - TEL. 01 88 33 51 80 - FAX. 01 88 33 51 81 [email protected] - www.wjavocats.com - PALMS C1652 EFTA00093391

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page318 of 351 Exhibit L Doc 169 Order EFTA00093392

Ccasel.20-ThiliCOGOatlit Mai MOO WV f 0371:62/21g EF24§tel M12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, —v— Ghislaine Maxwell, Defendant. USDC SONY DOCUMENT ELECTRONICALLY FILED DOC 0: DATE FILED: 3/22/21 20-CR-330 (AJN) ORDER ALISON J. NATHAN, District Judge: Defendant Ghislaine Maxwell has been indicted by a grand jury on charges of conspiracy to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371; enticing a minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. §§ 2422 and 2; conspiracy to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371; transporting minors to participate in illegal sex acts, in violation of 18 U.S.C. §§ 2423 and 2; and two charges of perjury, in violation of 18 U.S.C. § 1623. On July 14, 2020, the Court held a lengthy bail hearing and concluded that the Defendant was a clear risk of flight and that no conditions or combination of conditions would ensure her appearance. It therefore denied bail. On December 8, 2020, the Defendant filed a renewed motion for release on bail pending trial, which was entered into the public docket on December 14, 2020. Dkt. No. 96. On December 28, 2020, the Court denied that motion, concluding that the Defendant posed a risk of flight and that no combination of conditions could ensure her appearance. Dkt. Nos. 104, 106. The Defendant then filed a third motion for release on bail on February 23, 2021. Dkt. No. 160. In this motion, the Defendant attempts to respond to the reasons that the Court 1 EFTA00093393

C6asf120-MOGIGaintilit me 1 f 830252/e Sig gap/ 3512 provided in denying bail, proposing two additional conditions to the ones she proposed in her second motion for bail. Specifically, she offers to renounce her French and British citizenship, and she also proposes to have her and her spouse's assets placed in a new account that will be monitored by a retired federal judge. See Dkt. No. 160 at 2. As set forth below, the Court concludes that none of the Defendant's new arguments and proposals disturb its conclusion that the Defendant poses a risk of flight and that there are no combination of conditions that can reasonably assure her appearance. Thus, for substantially the same reasons that the Court denied the Defendant's first and second motions for release, the Court DENIES the Defendant's third motion for release on bail. I. Background On July 14, 2020, this Court held a hearing regarding the Defendant's request for bail. After a thorough consideration of all of the Defendant's arguments and of the factors set forth in 18 U.S.C. § 3142(g), the Court concluded that no conditions or combination of conditions could reasonably assure the Defendant's appearance, determining as a result that the Defendant was a flight risk and that detention without bail was warranted under 18 U.S.C. § 3142(e)(1). The Defendant has been incarcerated at the Metropolitan Detention Center since that time. The Defendant renewed her motion for release on bail on December 8, 2020. The Court again denied the Defendant's motion. In doing so, the Court explained that none of the Defendant's new arguments materially impacted its conclusion that the Defendant posed a risk of flight. It noted that the charges, which carry a presumption of detention, are serious and carry lengthy terms of imprisonment if convicted; the evidence proffered by the Government, including multiple corroborating and corroborated witnesses, remained strong; the Defendant's substantial resources and foreign ties created considerable uncertainty and opportunities for 2 EFTA00093394

C6834.20-Z7416380gAStilit tR:ieu fitkiit12691F I i t VS Rag eai U12 escape; and that the Defendant's lack of candor regarding her family ties and financial situations raised serious doubts as to her willingness to comply with any conditions imposed by the Court. See Dkt. No. 106. On February 23, 2021, the Defendant filed a third motion for release on bail. Dkt. No. 160 ("Def. Mot."). The Government opposed the Defendant's motion on March 9, 2021. Dkt. No. 165 ("Gov't Opp'n"). The Defendant filed her reply under temporary seal on March 16, 2021. IL Legal Standard The parties dispute whether the divestiture of jurisdiction rule precludes this Court from granting the Defendant's third bail motion while Defendant's bail appeal is pending. See Gov't Opp'n at 2-3; Reply at 2-3; see also United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) ("As a general matter, 'the filing of a notice of appeal is an event of jurisdictional significance— it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.") (citation omitted). Under Rule 37(a) of the Federal Rules of Criminal Procedure, however, the Court unquestionably has authority to defer considering the motion, deny the motion, or state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed. R. Crim. P. 37(a). Because the Court denies the Defendant's motion, it does not resolve the question of whether it would have jurisdiction to grant it. Pretrial detainees have a right to bail under the Eighth Amendment to the United States Constitution and under the Bail Reform Act, 18 U.S.C. § 3141, et seq. The Bail Reform Act requires that a court release a defendant "subject to the least restrictive further condition, or combination of conditions, that [it] determines will reasonably assure the appearance of the 3 EFTA00093395

C6sseL20-ZMEIGIGNAlltilit meu win asszelf 835912/21g0821jtoi a512 person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). The Court may order that the defendant be held without bail only if, after considering the factors set forth in 18 U.S.C. § 3142(g), the Court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1). After a court has made an initial determination that no conditions of release can reasonably assure the appearance of the Defendant as required, the Bail Reform Act allows the Court to reopen the bail hearing if "information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue" of whether pretrial detention is warranted. 18 U.S.C. § 3142(0. The Court is not required to do so if it determines that any new information would not have a material bearing on the issue. See United States v. Raniere, No. 18-CR-2041 (NGG) (VMS), 2018 WL 6344202, at *2 n.7 (E.D.N.Y. Dec. 5, 2018) (noting that "[als the court has already held one detention hearing, it need not hold another"); United States v. Havens, 487 F. Supp. 2d 335, 339 (W.D.N.Y. 2007) (electing not to reopen a detention hearing because the new information would not have changed the court's decision to detain the defendant until trial). In addition, the Court may also revisit its own decision pursuant to its inherent authority, even when the circumstances do not match § 3142(0's statutory text. See, e.g., United States v. Rowe, No. 02-CR-756 (LMM), 2003 WL 21196846, at *1 (S.D.N.Y. May 21, 2003) (noting that "a release order may be reconsidered even where the evidence proffered on reconsideration was known to the movant at the time of the original hearing."); United States v. Petrov, No. 15-CR-66 (LTS), 2015 WL 11022886, at *3 (S.D.N.Y. Mar. 26, 2015) (noting the "Court's inherent authority for reconsideration of the Court's previous bail decision"). 4 EFTA00093396

CcunSel.20-ThiliCI3GOatilt DbeUthati =elf 1113812/elflEgacit 3512 If, as here, there is probable cause to find that the defendant committed an offense specifically enumerated in § 3142(e)(3), a rebuttable presumption arises "that no condition or combination of conditions will reasonably assure" the defendant's appearance or the safety of the community or others. 18 U.S.C. § 3142(e)(3). In such circumstances, "the defendant `bears a limited burden of production ... to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.' United States v. English, 629 F.3d 311, 319 (2d Cir. 2011) (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); see also United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) ("[A] defendant must introduce some evidence contrary to the presumed fact in order to rebut the presumption."). Nonetheless, "'the government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community,' and `by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight.' English, 629 F.3d at 319 (quoting Mercedes, 254 F.3d at 436); see also United States v. Mardi., 782 F.2d 1141, 1144 (2d Cir. 1986) ("The government retains the burden of persuasion [in a presumption case]."). Even when "a defendant has met his burden of production," however, "the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court." United States v. Mattis, 963 F.3d 285, 290-91 (2d Cir. 2020). III. Discussion The Defendant bases her third motion for bail on the Court's inherent powers to review its own bail decisions, arguing that the new conditions she proposes warrant reconsideration of the Court's earlier rulings. See Def. Mot. at 4. She also argues that the strength of the Government's case is diminished in light of the arguments she advances in her pre-trial motions, which are currently pending before the Court. Id. at 7. Having considered those arguments, the 5 EFTA00093397

Cfigetl20-Z74101030404d Db@umum3 1 f 84735912/21g€1833jec6 35 12 Court's view has not changed. The Court again concludes that the Government has shown by a preponderance of the evidence that the Defendant presents a risk of flight and that there are no set of conditions, including the Defendant's third set of proposed conditions, that are sufficient to reasonably assure her appearance. The presumption in favor of detention, the weight of the evidence, and the history and characteristics of the Defendant all continue to support that conclusion. The Defendant's proposed conditions do not alter the Court's determination. A. The Court's assessment of the 18 U.S.C. § 3142(g) factors has not changed To begin with, the presumption in favor of detention continues to apply with equal force. See Dkt. No. 106 ("Dec. Op.") at 7—8. And though the Court again concludes that the Defendant has met her burden of production, the presumption "remains a factor to be considered among those weighed by the district court." Mercedes, 254 F.3d at 436 (quoting Martir, 782 F.2d at 1144). The Court is mindful "that Congress has found that these offenders pose special risks of flight, and that `a strong probability arises' that no form of conditional release will be adequate to secure their appearance." Martir, 782 F.2d at 1144 (citation omitted). The Court's analysis of the 18 U.S.C. § 3142(g) factors also remains unchanged. Because the nature and circumstances of the offenses charged include crimes involving a minor victim, the first 18 U.S.C. § 3142(g) factor continues to weigh strongly in favor of detention. And the Court remains of the opinion that the Defendant does not pose a danger to any person or to the community. The fourth § 3142(g) factor thus weighs against detention. With respect to the second § 3142(g) factor, none of the Defendant's new arguments alter the Court's conclusion as to the weight of the evidence. The Defendant argues that the pre-trial motions "raise serious legal issues that could result in dismissal of charges, if not the entire indictment," and she contends that "[t]hese motions cast substantial doubt on the alleged strength 6 EFTA00093398

Cfigetillt-MIEICEMIAMM 1:Mtifribtitl2delf 837052/e1gElailffel 3512 of the government's case and warrant granting bail on the conditions proposed." Def. Mot. at 7. Those motions became fully briefed one week ago and are now pending before this Court. The Government strenuously contests each of the motions and the Court has not yet adjudicated them. Without prejudging the merits of any of those pending motions and mindful of the presumption of innocence, the Court remains of the view that in light of the proffered strength and nature of the Government's case, the weight of the evidence supports detention. See Dec. Op. at 9-10. The Court's assessment of the Defendant's history and characteristics has not changed. See Dec. Op. at 10-16. The Defendant continues to have substantial international ties, familial and personal connections abroad, substantial financial resources, and experience evading detection. Id. at 10-11. And the Court's concerns regarding the Defendant's lack of candor regarding her assets when she was first arrested have also stayed the same. As the Court emphasized in its denial of the second motion for release on bail, the discrepancies between the information presented to the Court and to Pretrial Services in July 2020 and the information presented to the Court in December 2020 raised significant concerns about candor. See Dec. Op. at 16. There remains considerable doubt as to the Defendant's willingness to abide by any set of conditions of release. Id. While there continue to be certain mitigating circumstances cutting in the opposite direction, including the Defendant's family ties in the United States, these do not overcome the weight of the considerations that lean in favor of continued detention. As a result, none of the evidence or arguments presented in this third motion for bail alter the Court's assessment of the 18 U.S.C. § 3142(g) factors. While the fourth factor continues to favor release, the first three factors and the presumption of detention all support the conclusion 7 EFTA00093399

C6get120-ZNEIGIGNAUtillt tibeti mum nae if 83$152/eIgElaaffeces a512 that the Defendant poses a significant risk of flight. Thus, the Court again concludes that there are no conditions of release that will reasonably assure her appearance in future proceedings. B. Pretrial detention continues to be warranted The thrust of the Defendant's argument in her third motion for bail is that the two new proposed conditions vitiate the Court's concerns regarding the risk of flight. The Defendant first offers to renounce her French and British citizenship. Def. Mot. at 2. And she also proposes to have most of her and her spouse's assets placed in a new account that will be monitored by a retired federal judge, who would function as an asset monitor and will have co-signing authority over the account. Id. Those conditions are offered in addition to the bail package she proposed in December. See Dec. Op. at 16-17; see also Def. Mot. at 2. The new bail package does not disturb the Court's conclusion that the Government has carried its burden of showing that these conditions are insufficient to mitigate the flight risks, and the Court again determines that no set of conditions—including the two new ones—can reasonably assure her future appearance. The Court begins with the Defendant's offer to renounce her French and United Kingdom citizenship. She notes that she can renounce her UK citizenship "immediately upon granting of bail," and she informs the Court that "[t]he process of renouncing her French citizenship, while not immediate, may be expedited." Def. Mot. at 4. As the Government notes, the offer is of unclear validity, and the relevance and practical impact of the renunciations is, at best, unclear. See Gov't Opp'n at 5. With respect to her offer to renounce her French citizenship, the Court is again confronted with dueling opinions on the correct interpretation of French law. The Government relies on the position of the head of the International Criminal Assistance Bureau of the French Ministry of Justice, who argues that "the fact that the wanted individual is a French national constitutes an insuperable obstacle to his/her removal," and that lais long as said 8 EFTA00093400

Cctss 2O-Z74:00:33Oatailit Obeli ultietllnelF 8355252/eIgEgafeot 3512 nationality is assessed at the time the offense was committed, any loss of nationality subsequent to said offense has no bearing upon the removal proceedings and shall not supersede said assessment of nationality."' Gov't Opp'n, Ex. A at 2. The Defendant, meanwhile, relies on the opinion of a French legal expert who argues that nationality is assessed at the time of the extradition request. See Reply, Ex. A ¶ 11. The Defendant's expert concedes that there is no case law addressing this precise issue. Id. ¶ 21. Exacerbating the uncertainty is the fact that the relevant legal materials also lend themselves to multiple interpretations. For instance, Article 3(1) the Extradition Treaty between the United States and France of April 23, 1996 provides that "[t]here is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State, but the executive authority of the United States shall have the power to surrender a national of the United States if, in its discretion, it deems it proper to do so. The nationality of the person sought shall be the nationality of that person at the time the offense was committed." See Reply, Ex. A ¶ 9 (emphasis added)). Article 694-4 of the French Code of Criminal Procedure similarly provides that "Extradition shall not be granted ... [w]hen the person claimed has French nationality, the latter being assessed at the time of the offense for which extradition is requested."2 Id. ¶ 10; see also Gov't Opp'n, Ex. A at 2. Thus, there is considerable uncertainty as to the relevance of the Defendant's offer of renunciation of her French citizenship to her ability to frustrate, if not entirely bar, extradition. The Court's assessment of the risks largely ' The Court cites the translated version of the letter, though the original letter is in French. 2 Here, there are minor discrepancies between the two sides' respective translations. The translated letter from the Ministry of Justice cites Article 694-4 as reading, "When the individual claimed to have French citizenship, said citizenship having been assessed at the time of the offense on the basis of which removal is being requested." Gov't Opp'n, Ex. A at 2. 9 EFTA00093401

Caiask.20-000ffarsAAllsint 2tnitigate92HINE0222/21agineje 0.035f112 parallel those that the Court articulated when the Defendant proposed signing an extradition waiver. See Dec. Op. at 12-13. Similar doubts exist as to the Defendant's offer to renounce her UK citizenship. The Court is persuaded by the Government's arguments that even if the Defendant were to renounce her UK citizenship, she would still likely be able to delay or resist extradition from the UK. See Gov't Opp'n at 6-7. And for largely similar reasons, the Court again concludes that the proposed conditions do not meaningfully diminish the Court's concerns regarding the Defendant's ability to flee and to frustrate or impair any subsequent extradition attempts. The possibility that the Defendant could successfully resist or forestall extradition heightens the Defendant's incentive to flee. To summarize, the Defendant's willingness to renounce her French and UK citizenship does not sufficiently assuage the Court's concerns regarding the risk of flight that the Defendant poses. Considerable uncertainty regarding the enforceability and practical impact of the renunciations cloud whatever relevance they might otherwise have to the Court's assessment of whether the Defendant poses a risk of flight. See United States v. Cohen, No. C 10-00547 (SI), 2010 WL 5387757, at *9 n.11 (N.D. Cal. Dec. 20,2010). And that same uncertainty—and the possibility that she will be able to successfully resist, or at least delay, extradition—incentivizes flight, particularly because of the Defendant's substantial international ties. Nor does the second proposed condition materially alter the Court's determination that no condition or combination of conditions can reasonably assure the Defendant's appearance. The Defendant proposes to have a retired federal judge provide oversight authority over her financial affairs, and, if granted, he would have the authority to restrain, monitor, and approve disbursement of assets requiring his signature. See Reply at 5. The Court continues to have 10 EFTA00093402

Cfite.20470023BA.ADIstit D6c2irfiEWO Vfi92 Filibeen20./21ag P'. $11.32112 concerns about whether the full extent of the Defendant's assets have been disclosed in light of the lack of transparency when she was first arrested. But the Court assumes, for purposes of resolving this motion, that the financial report that it reviewed in December is accurate and that it accounts for all of the Defendant's and her spouse's assets. See Dec. Op. at 16-17. The monitorship condition does not reasonably assure the Defendant's future appearance, even when viewed in combination with the rest of the Defendant's bail package. The Defendant would continue to have access to substantial assets—certainly enough to enable her flight and to evade prosecution. These include the $450,000 that the Defendant would retain for living expenses and any future salaries for her or her spouse, along with other assets, including jewelry and other chattels, that are potentially worth hundreds of thousands of dollars. See Def. Mot. at 5-6; see also Dkt. 97, Ex. Oat 9. While those amounts may be a small percentage of the Defendant's total assets, they represent a still-substantial amount that could easily facilitate flight. When combined with the Court's weighing of the § 3142(g) factors and the presumption of detention, the Court concludes that the proposed restraints are insufficient to alter its conclusion that no combination of conditions can reasonably assure her appearance. If the Court could conclude that any set of conditions could reasonably assure the Defendant's future appearance, it would order her release. Yet while her proposed bail package is substantial, it cannot provide such reasonable assurances. As a result, the Court again determines that "no condition or combination of conditions will reasonably assure the appearance of the Defendant, and it denies her motion for bail on this basis. 18 U.S.C. § 3142(e)(1). 11 EFTA00093403

Caest:20-er700S3CrAAONnt ED66.1644)11.692.FiiiikeeM/21agRat, 01232112 IV. Conclusion Defendant Ghislaine Maxwell's third motion for release on bail, Dkt. No. 160, is DENIED. The parties are ORDERED to meet and confer and propose and justify any redactions to the Defendant's reply brief by March 24, 2021. If they conclude that redactions are unnecessary, the Defendant is ORDERED to docket the unredacted version of the brief by March 24, 2021. SO ORDERED. Dated: March 22, 2021 New York, New York ALISON J. NATHAN United States District Judge 12 EFTA00093404

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page331 of 351 Exhibit M Doc. 159 Ghislaine Maxwell's Letter Regarding MDC Conditions EFTA00093405

e2esse1220WOMO*Elt4 Mt/WM/2921 F3R6822t16P23geratt3213 LAW OFFICES OF BOBBI C. STERNHEIM 212-243-1100 • Main 917-306-6666 • Cell 888-587-4737 • Fax Honorable Alison J. Nathan United States District Court United States Courthouse 40 Foley Square New York, NY 10007 Dear Judge Nathan: 33 West 19th Street - 4th Floor New York, New York 10011 [email protected] February 16, 2021 Re: United States v. Ghislaine Maxwell 20 Cr. 330 (AJN) The government's recent letter regarding MDC conditions (Dkt.158) essentially repeats the same points it made in defense of the MDC's request that the Court vacate its order directing the MDC to permit Ms. Maxwell to use a laptop on weekends and holidays. We appreciate the Court's concern regarding Ms. Maxwell's opportunity to review discovery and the extent to which she is required to undergo searches. The government's letter, however, does not include the concerns defense counsel has reported to MDC Legal during the past couple of months. In addition, the letter incorrectly states that legal calls are available on Saturdays. Such requests by counsel have been denied. By ignoring the myriad other issues reported by counsel, the government's letter misrepresents Ms. Maxwell's conditions of confinement. Ms. Maxwell does not have access to daily discovery review for the entirety of the 13 hours. The vagaries and delays of moving her the 50 feet or so from the isolation cell to the day room are a large part of the challenge. The number of searches is also not correct. Ms. Maxwell is searched on every move, including to the empty concrete space, adjacent to the day room, used for recreation. Currently, she is subject to a minimum of four pat down searches a day if she goes to rec, and five pat down searches on the day of her weekly body scan. Since July 6th, Ms. Maxwell has been physically searched approximately 1400 times, including pat down searches, metal wand searches, mouth, hair and ear searches (posing additional health risks during COVID), and upwards of 60 body scans. In addition, there have been hundreds of physical searches of her isolation cell, locker, legal papers, and personal effects. No contraband has ever been found. We take issue with MDC's assessment that "the searches are all necessary for the safety of the institution and the defendant." Ms. Maxwell is under 24-hour surveillance by two to six guards and approximately 18 cameras, not including the hand-held camera, focused on her throughout the areas in which she is moved and confined. Ms. Maxwell poses no danger to anyone. Her restrictive conditions, searches, and constant surveillance correlate directly to BOP negligence resulting in the death of Jeffrey Epstein. EFTA00093406

032612212207a0003MAONt iroceamati2921,1:361682b16Pagefra1235(13 LAW OFFICES OF BOBBI C. STERNHEIM As the government states, a flashlight is pointed at the ceiling of her isolation cell every 15 minutes, from approximately 9:30 pm to 6:30 am. It is hard to verbally convey the power of a light that bounces off a concrete ceiling in a six-by-nine-foot concrete box into Ms. Maxwell's eyes, disrupting her sleep and ability to have any restful night. The attenuating effects of sleep deprivation are well documented. Ms. Maxwell continues to be at the mercy of a revolving group of security officers who are used to guarding hundreds of inmates but now focus their undivided attention exclusively on one respectful, middle-aged female pretrial detainee. Recently, out of view of the security camera, Ms. Maxwell was placed in her isolation cell and physically abused during a pat down search. When she asked that the camera be used to capture the occurrence, a guard replied "no." When Ms. Maxwell recoiled in pain and when she said she would report the mistreatment, she was threatened with disciplinary action. Within a week and while the same team was in charge, Ms. Maxwell was the subject of further retaliation for reporting the abuse: a guard ordered Ms. Maxwell into a shower to clean, sanitize, and scrub the walls with a broom. Ms. Maxwell's request to have the camera record the guard alone with her in the confined space was again denied. Ms. Maxwell spends an increasing amount of time in her isolation cell because her daily removal is delayed. Her movement within that cell is restricted. Despite claims by MDC Legal to the contrary, guards forbid Ms. Maxwell from standing in certain areas of her six-by-nine-foot cell: she is not allowed to stand to the left or right of the toilet, in either corner of the isolation cell, and within two feet from the door. This directive encroaches on an already restricted and confined area and limits her movement and use to the little space that remains. Ms. Maxwell continues to have serious problems with the food provided to her. She has repeatedly not been provided some or all parts of a meal. For the duration of her detention, she has never received a properly heated meal. Her food, contained in plastic specifically contra- indicated for use in a microwave, is designed to be heated in a thermal oven. The old microwave oven used for Ms. Maxwell's food either does not defrost the food or disintegrates it and melts the plastic container, rendering the food inedible. While guards finally acknowledged serious problems with the food, they continued to microwave Ms. Maxwell's food, rendering the food inedible and dangerous for consumption and leaving Ms. Maxwell with no meal and no replacement. Late last week, guards informed Ms. Maxwell that going forward her food will be heated in a thermal oven, like that of all other inmates. While this may be an improvement, it does little to correct seven months of deprivation impacting her nutrition and detrimental to her health. Recently there have been problems with odorous and non-palatable tap water. The water in the isolation cell was clouded with heavy particulates; the water in the day room was brown. Requests by Ms. Maxwell and counsel to provide her bottled water or permit her to purchase water were denied. In addition, her legal mail does not arrive in a timely manner, daily newspapers arrive up to six weeks late, her emails have been prematurely deleted from the BOP system, and she has arrived late for VTC calls. 2 EFTA00093407

02ase122870069304A6I1 1136tA4i011/2921 F34e6822/1.6 enttet33513 LAW OFFICES OF DOH' C. STERNHEIM It is impossible to overstate the deleterious effect of the conditions under which Ms. Maxwell is detained. Upon arrival at the MDC seven months ago, she was placed on suicide watch though no competent medical professional deemed her in any manner suicidal, nor has any psychologist or medical staffer ever found her to be suicidal at any time during her detention. For weeks she was deprived of legal material, the ability to use a telephone to make personal calls, and the opportunity to exercise and shower. Clearly, this was an effort to avoid a recurrence of the BOP's negligence regarding Jeffrey Epstein's death. Contrary to the way she is hyper-monitored, Ms. Maxwell is classified with the standard CC I-Mh designation: inmate with no significant mental health care. The overall conditions of detention have had a detrimental impact on Ms. Maxwell's health and overall well-being; and she is withering to a shell of her former self — losing weight, losing hair, and losing her ability to concentrate. In addition to the many difficulties impacting her review of electronic discovery materials, the over-management and stress are impacting her stamina and effectiveness in preparing her defense and conferring with counsel. Having been incarcerated in de facto solitary confinement for 225 days and monitored by two to six guards 24 hours a day with a handheld camera dedicated to capturing her every move, except when it would record improper conduct on the part of the guards, it is not surprising that Ms. Maxwell feels she is detained under the control of the Bureau of "Pretrial Punishment" cc: All counsel Very truly yours, C. 512444;ts. BOBB1 C. STERNHEIM 3 EFTA00093408

Case 21-770, Document 17-2, 04/01/2021, 3068296, Page335 of 351 Exhibit N Doc. 306 United States v. Dashawn Robertson, Case Number 17-cr-02949-MV1, District of New Mexico Memorandum Opinion and Order EFTA00093409

Cases12177S0MINWit IDbartithat062Fifiefebtedclagalfre cif 8616 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, Plaintiff, No. 17-CR-02949-MV-1 v. DASHAWN ROBERTSON. Defendant. MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on the Defendant Dashawn Robertson's Motion to Reconsider Motion for Review of Detention Order and Immediate Release. Doc. 274. The government filed a response in opposition [Doc. 282] and Mr. Robertson filed a reply [Doc. 284]. The United States Probation Office (USPO) also filed two memorandums addressing Mr. Robertson's release. Docs. 277 and 287. The Court then discussed the motion at length with the parties and the USPO at the February 4, 2021 pretrial conference in this case. Doc. 297 at 4-6. After carefully considering the nature and circumstances of the offenses charged, the weight of the evidence against Mr. Robertson, his history and characteristics, and the potential danger to the community posed by his release, the Court found that a combination of extremely strict conditions could reasonably assure Mr. Robertson's appearance in court and the safety of the community, as required by 18 U.S.C. § 3142(0. Id. The Court also found that Mr. Robertson's release was necessary to allow him to effectively prepare for his upcoming trial under 18 U.S.C. § 3142(i) because the ongoing COVID-19 pandemic has significantly hampered his ability to meet or communicate with his attorneys. Id. The Court accordingly ordered Mr. Robertson to be released under strict conditions to La Pasada Halfway House on February 5, 2021. See Docs. 300 and 301. EFTA00093410

04seel.21776WatesSOWit Mbarfiditt 11062 'E &QM/Ming WatIA (2 8516 In this Memorandum Opinion and Order, the Court explains its release analysis under the Bail Reform Act, 18 U.S.C. § 3142. It also explains its decision to deny the government's Amended Emergency Motion for Reconsideration and Stay of Release Order. Doc. 298. BACKGROUND Mr. Robertson is charged in a three-count superseding indictment with Obstruction of Justice by Retaliating Against a Witness, Victim, or Informant, in violation of 18 U.S.C. § 1513(a)(1)(B); Possessing and Discharging a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c); and Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Doc. 86. The charges arise from his alleged act of shooting an individual named D.S. eight times in the early morning hours of September 12, 2017 in retaliation for D.S.'s cooperation with the federal government in a criminal case two years earlier. See Doc. 38 at 2. Mr. Robertson pled not guilty to the charges at an arraignment held on December 11, 2017 [Doc. 9] and a trial in the case will be set for April 5, 2021, about two months from today. Although presumed innocent of all charges, Mr. Robertson has been in pretrial detention in this case for over three years. He was arrested on December I I, 2017 and was ordered detained the same day by Magistrate Judge B. Paul Briones after the Magistrate Judge found that no condition or combination of conditions of release would reasonably assure the safety of the community or his appearance in court. Doc. 12. Extensive pretrial litigation followed until the case was eventually ready and set for trial on March 23, 2020. Doc. 63. The Court held a pretrial conference on March 10, 2020 and testimonial writs were issued. Docs. 127 and 143. Just days later, however, the devastating extent of the global COVID-19 pandemic became clear and the Chief Judge of the United States District Court for the District of New Mexico suspended all civil and criminal jury trials set for the following month. See In the Matter of Court Operations in 2 EFTA00093411

O4se61217761C0MISAMAI t NadiaKt BOO 2 ir WIE621116121Ignci% Cif 8616 Light of the Coronavirus Outbreak, 20-MC-00004-9 (D.N.M. Mar. 13, 2020) (Johnson, C.J.). Almost a full year later, jury trials remain suspended in the District of New Mexico. See In the Matter of: Superseding Administrative Order 20-MC-00004-49, 21-MC-00004-04 (D.N.M. Jan. 15, 2021) (Johnson, C.J.) (continuing the suspension of all civil and criminal jury trials through at least February 28, 2021). In the intervening 11 months, Mr. Robertson has remained in custody. During that time period, the Court set and then continued several trial dates due to the pandemic, including dates in December 2020 and February 2021. See, e.g., Doc. 271. Mr. Robertson's trial will now be reset for April 5, 2021, and the Court is hopeful that he will finally get his day in court after the extreme and unprecedented delay he has endured. Complicating matters, however, is the fact that the pandemic and the resulting passage of time has led to a recent and significant change in Mr. Robertson's defense team: both of his original attorneys withdrew from the case in January of this year. Doc. 295. As a result, the attorneys with which he will be going to trial in two months were appointed in September 2020 and January 2021. Docs. 197 and 293. Although the Court would not have granted the appointments if it were not sure that Mr. Robertson's new attorneys would be ready for trial this April, they nevertheless face the daunting task of earning their client's trust, preparing for trial, and reviewing three years' worth of litigation in a matter of months. Mr. Robertson first asked the Court to consider his release in July of last year. Doc. 181. He argued that his continued pretrial detention posed a risk to his health because his compromised immune system makes him especially vulnerable to serious illness or death from COVID-19. Id. at 5. He also argued that there were conditions of release that would satisfy the requirements of the Bail Reform Act, including the designation of his father as a third-party custodian. Id. at 9- 10. The Court took up the motion at a status conference held on September 11, 2020. It explained 3 EFTA00093412

Caseelandtg0aDISMIt Earoinfithattle2'En2662Malgeatifrai 8616 that it was "very concerned" about the amount of time Mr. Robertson had been in custody up to that point, especially given that the already-minimal rehabilitative and mental health services in jail had been further reduced by the pandemic. Transcript of September 11, 2020 Status Conference at 43-44.1 The Court nevertheless found that it did not have any conditions available that could reasonably assure Mr. Robertson's appearance or the safety of the community given his failure to comply with conditions of release in the past. Id. at 44-45. The Court also noted that while it was concerned about Mr. Robertson's ability to meet with his attorneys to prepare for trial during the pandemic, it had been informed that the defense team would be able to meet in conference moms in the federal courthouse in Albuquerque. Id. at 45. Mr. Robertson now asks the Court to reconsider its earlier decision denying him pretrial release. Doc. 274. As grounds for reconsideration, he points to the additional unforeseen trial continuances following the September status conference as well as new placement options, including the grandmother of his children and La Pasada Halfway House. Id.; see also Doc. 284 at 2-3. The government opposes the requested reconsideration. Doc. 282. DISCUSSION I. Reconsideration is Proper on the Basis of New Evidence Previously Unavailable. As an initial matter, Mr. Robertson has raised legitimate reasons for the Court to reconsider its earlier release decision. As the Court has previously explained, it is well-established in this Circuit that although the Federal Rules of Criminal Procedure do not expressly authorize a motion for reconsideration, such motions are proper in criminal cases. See United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). A district court thus may amend its interlocutory orders prior to entry of final judgment. See, e.g., Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. ' All references to the transcript are to the draft copy. 4 EFTA00093413

Casee121177(2902:13ASMW Dbdinfith(it3.062Firge$32fintiktgOltie I 8516 1991) ("The Federal Rules of Civil Procedure do not recognize a `motion to reconsider.' Instead, the rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment . . . or a motion seeking relief from the judgment."); Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch., 212 F. App'x 760, 765 (10th Cir. 2007) (unpublished) ("A district court has discretion to revise interlocutory orders prior to entry of final judgment."). Hence, "[w]hen a party seeks to obtain reconsideration of a non-final order, the motion is considered `an interlocutory motion invoking the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.' Wagner Equip. Co. v. Wood, 289 F.R.D. 347, 349 (D.N.M. 2013) (quoting Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991)). The Court's authority, then, is sustained by the pragmatic reality that a "district court should have the opportunity to correct alleged errors in its dispositions." Christy, 739 F.3d at 539. Consequently, the district court enjoys "considerable discretion in ruling on a motion to reconsider." Federated Towing & Recovery, LLC v. Praetorian Ins. Co., 283 F.R.D. 644, 651 (D.N.M. 2012) (citing Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)). The scope of reconsideration, however, is narrowly cabined and far more limited than in an ordinary appeal. That is, a motion to reconsider is an "inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). Rather, "(g}rounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Id. Here, several pieces of previously unavailable evidence justify the request for reconsideration. Servants of Paraclete, 204 F.3d at 1012. First, when the Court denied Mr. 5 EFTA00093414

case02177(2902:942atit ERAitafklffil5002 EiR2662fiDEMIlg Cabe eV 8b16 Robertson release in September of last year, it believed that he would only remain in pretrial detention for three additional months until a December 7, 2020 trial date. Doc. 194. As bad as the pandemic had been to that point, the Court did not expect the federal judiciary to remain in a state of near total suspension for another six months, requiring the trial to be continued twice more to the current April 5, 2021 trial date. Second, when the Court denied Mr. Robertson release last September, it was under the impression that he would be able to meet with his attorneys in person in conference rooms at the Albuquerque courthouse, mitigating the Court's concerns about the defense team's ability to effectively prepare for trial. See supra at 4. The Court's impression on that point turned out to be incorrect: due to concerns about inmates meeting with attorneys and then bringing COVID-19 back into the jails, the idea of unrestricted attorney-client meetings at the Albuquerque courthouse was ultimately rejected. Third, the Court is now able to impose significantly stricter conditions of release because of its ability to release Mr. Robertson to La Pasada Halfway House, an option with which it was not presented last September. II. Mr. Robertson's Release to La Pasada Halfway House Under Extremely Strict and Carefully Tailored Conditions Will Reasonably Assure His Appearance and the Safety of the Community Under 18 U.S.C. § 3142(e). On the merits, the Court has thoroughly considered the parties' arguments, the UPSO's recommendations, Mr. Robertson's Form 13 Presentence Investigation Report (PSR) and the information contained therein about his criminal history and prior performance on release, and the applicable law. Although the government's concerns are understandable, the Court ultimately believes that it can reasonably assure Mr. Robertson's appearance and the safety of the community by releasing him to La Pasada Halfway House under a number of extremely strict and carefully tailored conditions. Under 18 U.S.C. § 3142(e), a defendant must be released pending trial unless, after a 6 EFTA00093415

aseet12177X029;434Wit EIRraiitthiett13062F62662fiDEMaggettie Cif 8616 hearing, a judicial officer finds that no condition or combination of conditions will reasonably assure the defendant's appearance as required and the safety of any other person and the community. 18 U.S.C. § 3142(e)(1). The government bears the burden of proving flight risk by a preponderance of the evidence and dangerousness to any other person or the community by clear and convincing evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). A district court's review of a Magistrate Judge's order of detention is de novo. See Cisneros, 328 F.3d at 616. Section 3142(e)(2) creates a rebuttable presumption that no condition or combinations of conditions exist to reasonably assure a defendant's appearance or the safety of the community where there is probable cause to believe the defendant violated 18 U.S.C. § 924(c). See 18 U.S.C. § 3142(e)(3)(B). As the Tenth Circuit has held: Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain. United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). Here, although Mr. Robertson is subject to a presumption of detention due to his § 924(c) charge, see Doc. 86 at 1-2, the Court finds that he has successfully rebutted the presumption. He has produced evidence, for example, that he is not a danger to the community nor a flight risk because he voluntarily turned himself in on the instant offense, despite consistently maintaining his innocence and knowing the extremely long prison sentence he faced if convicted. Doc. 274 at 5. He has also produced evidence that he will not flee the jurisdiction due to his family's presence here. Id. And he has produced evidence that his placement at La Pasada Halfway House is a condition of release that could reasonably assure his appearance and the safety of the community. 7 EFTA00093416

CaSte121177X02921;WW1 t Dedb ritt300 2 ir i WW2/Jai/nag Fettle Gil 05516 Doc. 284 at 2-3. Mr. Robertson has met his burden of production and has rebutted the presumption in § 3142(e)(3)(B) that no condition or combination of conditions could meet the requirements for his release. Section 3142(g) then lays out the following factors for courts to consider: (I) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of § 1591, a Federal crime of terrorism. or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or community that would be posed by the defendant's release. 18 U.S.C. § 3I42(g). The Court finds that although some of these factors weigh against Mr. Robertson's release, they do not foreclose relief under the strict conditions the Court has imposed. With regard to the nature and circumstances of the offenses charged, they are extremely serious and involve Mr. Robertson allegedly shooting a victim, D.S., in retaliation for his cooperation with the government in an earlier criminal case. As the Court stated at the November 4, 2021 pretrial conference, it takes Mr. Robertson's charges extremely seriously because the ability of witnesses to come forward and safely provide information to the government, and to the Court, is at the core of our criminal justice system. With regard to the weight of the evidence against Mr. Robertson, it is mixed. On the one hand, D.S. positively identified Mr. Robertson as the person who shot him and at least one other witness, N.F., has testified that Mr. Robertson made incriminating statements in the weeks prior to the shooting. On the other hand, it appears that there were many people present at the time and place of the shooting and there is evidence that D.S.'s identification of Mr. Robertson could have 8 EFTA00093417

CaSee12117761CO2TD13~ t [Ma rdthit 13002 F W/6628£16/2)11g Qttjt II 6516 been influenced by the suggestion of others, including his girlfriend at the time and the police who came to question him in the hospital. With regard to Mr. Robertson's history and characteristics, his history of violating past conditions of release is a source of concern, as the Court noted when denying him release last September. See supra at 4. More specifically, Mr. Robertson's Form 13 PSR notes several instances in which his probation was revoked for failure to comply with conditions of release. Doc. 188 at 8-10. Mr. Robertson also has several prior convictions. Id. However, as the defense has pointed out, none of Mr. Robertson's probation revocations appear to have involved him absconding; although he has convictions for illegal firearm possession, he does not have any convictions for violent offenses; and he turned himself after being charged in the instant case. Id.; see also Doc. 274 at 4-5. Finally, with regard to the nature and seriousness of the danger that would be posed to any person or the community by Mr. Robertson's release, the Court understands the government's concerns given the frightening allegations in this case. Mr. Robertson is presumed innocent on all charges until proven guilty, however. See 18 U.S.C. § 3142(j) ("Nothing in this section shall be construed as modifying or limiting the presumption of innocence."). Presuming Mr. Robertson's innocence in this case, while he is someone who has been convicted of gun and drug offenses and has failed to comply with conditions of release in the past, he is not someone with a proven history of violent behavior.' Nor is the Court persuaded by the government's vague suggestions that Mr. Robertson might have tried to contact or intimidate witnesses in this case because it has provided no concrete or specific evidence to substantiate any such claims. For example, the government's cryptic report that witness N.F. was allegedly contacted by an unnamed individual about this case 2 While Mr. Robertson does have prior arrests for violent offenses, these charges were all dismissed and are therefore unproven allegations. See Doc. 188 at 11-15. 9 EFTA00093418

CEssEsa27-5112[9496AttntrideCinigiO3C9332FFil8001096Maga&je t4) n16 is not a valid reason to deny Mr. Robertson release because the government has not come forward with any details to corroborate N.F.'s account or to link Mr. Robertson to the alleged contact. More importantly, the Court has imposed a number of extremely strict and carefully tailored conditions of release that it believes will be more than sufficient to reasonably assure Mr. Robertson's appearance and the safety of the community. Mr. Robertson will be placed at La Pasada Halfway House, where he will be on home incarceration with active GPS tracking, the strictest form of location monitoring available to the Court. Doc. 301 at 2. He will not be allowed to leave La Pasada for any reason other than to meet with his attorneys, and he will not be allowed to transport himself to those meetings; his attorneys will have to transport him. Id. He will not be allowed any visitors at La Pasada except for his attorneys. Id. He will not be allowed to use or possess a cellphone, nor to borrow anyone else's cellphone. Id. He will not be allowed to use the landline at La Pasada, except to speak to his attorneys. Id. He will not be allowed to have contact with anyone other than his Pretrial Services officer and his attorneys. Id. That includes no contact with his family members until he shows the Court that he is fully compliant with all of his conditions of release. Id. He will not be allowed to use or possess drugs or alcohol. Id. He will be allowed to participate in counseling at La Pasada to help him cope with the stress of his looming trial. Id. He will be required to abide by all rules and regulations of the halfway house, however small. Id. The Court believes that with all of these conditions, and under the close supervision of the staff at La Pasada and his Pretrial Services officer, Mr. Robertson will not pose a danger to the community or a risk of flight. The Court also cautioned Mr. Robertson at the February 4, 2021 pretrial conference that if he violates any of these conditions of release, the Court will not hesitate to reincarcerate him immediately. The Court accordingly finds that there are conditions, or a 10 EFTA00093419

C EscEs a 2.7-Z7412[949alttnEldeant4i030332FFile00/296aiagaBeje141ff 16 combination of conditions, that will reasonably assure Mr. Robertson's appearance and the safety of any person and the community. His pretrial release is therefore required by 18 U.S.C. § 3142(e). III. Mr. Robertson's Release is Necessary for the Preparation of His Trial Defense Under 18 U.S.C. § 3142(i). The Court additionally finds that Mr. Robertson's release is necessary for the preparation of his trial defense under 18 U.S.C. § 3142(i). That section allows a judicial officer who issued an order of detention to, by subsequent order, "permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason." § 3142(i).3 The defendant bears the burden of establishing their entitlement to temporary release under § 3I42(i). United States v. Clark, 448 F. Supp. 3d 1152, 1155 (D. Kan. 2020) (citation omitted). Courts considering whether pretrial release is necessary for the preparation of the person's defense have considered: "(1) [the] time and opportunity the defendant has to prepare for the trial and to participate in his defense; (2) the complexity of the case and volume of information; and (3) expense and inconvenience associated with preparing while incarcerated." United States v. Boatwright, ---F. Supp. 3d---, No. 2:19-CR-00301-GMN- DJA, 2020 WL 1639855, at *4 (D. Nev. Apr. 2, 2020) (unreported) (citations omitted). Here, all of those factors weigh in favor of release. Because Mr. Robertson's trial will be reset for April 5, 2021, he and his defense team have only two months left to prepare. 3 While the Court recognizes that Magistrate Judge Briones is the judicial officer that issued Mr. Robertson's initial order of detention, this matter is before the Court on Mr. Robertson's request that the Court review that detention order under 18 U.S.C. § 3145(b). See Doc. 274 at 1. The Tenth Circuit has not yet ruled on whether a request for temporary release under 18 U.S.C. § 3142(i) can only be decided by the Magistrate Judge that issued the initial order of detention. See United States v. Alderete, 336 F.R.D. 240, 268 (D.N.M. 2020). But at least one other federal district court has recently considered and granted pretrial release under that section. See United States v. Stephens, 447 F. Supp. 3d 63,66-68 (S.D.N.Y. 2020) (Nathan, J.); but see Alderete, 336 F.R.D. at 268. 11 EFTA00093420

CaszEsc'. 27-U412[9496W ntCldeanik4103013D2FH1800120612aagaSeid b2 16 Complicating matters further is the fact that both of Mr. Robertson's initial defense attorneys have recently withdrawn from the case, and both of his current attorneys have been appointed within the past six months (one in the last three weeks). The defense team therefore has a considerable amount of catching up to do in a very short amount of time, and defense counsel need to immediately begin meeting with Mr. Robertson on a regular basis. The case is also complex and exceedingly serious. The government has named 24 witnesses on its most recent witness list [Doc. 104] and the Court has issued upwards of 30 written orders over the past three years of contentious pretrial litigation in this case. And if Mr. Robertson is convicted on all charges, he will be facing decades in prison: according to his Form 13 PSR, Mr. Robertson's effective guidelines range would be a staggering 412 to 485 months of imprisonment, or approximately 34 to 40 years. See Doc. 188 at 15. Finally, defense counsel explained at the recent pretrial conference that it will be impossible for them to effectively prepare the case for trial with Mr. Robertson in custody under the current lockdown conditions due to COVID-19. In normal times, defense counsel can meet with their clients face to face in meeting rooms at the jails, where they can review discovery and do other critical trial preparation. Now, however, if the jails are allowing in-person client meetings at all, it is with the defendants separated from their counsel by a screen, making it nearly impossible to effectively review documentary evidence. And while defense counsel represented that the Santa Fe County Detention Center is allowing video meetings by Zoom, it is hard to schedule Zoom time due to the limited number of computer facilities at the jail and the number of parties vying for them (including this Court). Defense counsel also represented that while the Zoom meetings have been helpful, the Detention Center has not allowed them to show Mr. Robertson documents by sharing their screen, requiring counsel to instead hold the documents up to their computer's camera in the 12 EFTA00093421

CAE} 7-'6 F-O2[9 496bAtt ntlideaniM101(02M 18011/206/aa gNio ID814116 hopes that Mr. Robertson can see them that way. This is no way to prepare for a trial. The defense team needs to be able to meet with Mr. Robertson in person, unobstructed by metal bars or a plexiglass barrier, to do the critical and time- consuming work of reviewing discovery, evidence, and exhibits; discussing trial strategy; and making the countless decisions which individually and collectively can make the difference between a verdict of guilty and not guilty. Mr. Robertson's attorneys also need unobstructed access to him to build the trust and confidence they need to effectively defend him at trial. They need to meet with him for as long as they need to, as frequently as they need to, every day if necessary. They cannot be at the mercy of the jail and its fluctuating visitation policies due to COVID-19. As the past twelve months have taught us, our prisons and jails are at constant risk of severe outbreaks, which at times have required multi-week lockdowns to ensure the safety of the staff and inmates. The defense also cannot be at the mercy of the Court or the United States Marshals Service because our policies have been in constant flux as well. None of this will provide Mr. Robertson the opportunity at a fair trial that he deserves and to which he is constitutionally entitled. Nor can he be made to sit in jail indefinitely, awaiting trial as a legally innocent man, until it is safe and practically possible for his attorneys to meet with him there. The status quo is no longer acceptable, and Mr. Robertson's release is necessary for the preparation of his defense. § 3I42(i). IV. The Government Has Not Demonstrated Its Entitlement to Reconsideration or a Stay. Finally, the Court is not persuaded by the government's request for reconsideration or a stay pending appeal. See Doc. 298. In asking the Court to reconsider its order granting Mr. Robertson pretrial release, the government represents that it has obtained two new pieces of information following the pretrial conference at which the Court informed the parties of its release 13 EFTA00093422

CEstsa27-5-02[94960/tOnClc7eanik4i030E02M1880/2196aiagM4e IA 14116 decision. First, the government represents that, per the United States Marshal's Service, "the interview room at the courthouse can be made available for [Mr. Robertson] to meet with his attorneys to prepare for trial, for unlimited meetings and unlimited durations of meetings during business hours, excepting only times when the Aspen courtroom is in use." Doc. 298 at 2. There is a catch, however: "There is a screen in the interview room, which will allow for appropriate social distancing between [Mr. Robertson] and his lawyers." Id. Second, the government represents that "the Santa Fe jail is willing to provide an exception to the policy barring in-person attorney visits, and will work to accommodate in-person visits between Robertson and his attorneys." Id. While the Court appreciates the government's effort in gathering information on these alternatives, they do not change its decision on release. First, the Court notes that the government could have, and should have, presented this information earlier if it wanted the Court to rely on these alternatives to deny release. Mr. Robertson filed his motion for reconsideration on December 21, 2020. Doc. 274. The government had a month and a half to investigate alternatives and make its argument against release. It cannot wait until an unfavorable ruling to present additional evidence that it was capable of presenting in the first instance. A motion for reconsideration is for presenting new evidence that was "previously unavailable." Servants of Paraclete, 204 F.3d at 1012. Second, the proposed alternatives are inadequate to address the trial preparation concerns the Court has articulated. The proposal to use the interview room at the Santa Fe courthouse is inadequate because the room, by the government's own description, will still contain a "screen" between Mr. Robertson and his attorneys. For all of the reasons set forth above, the defense team cannot effectively prepare for trial if they cannot sit next to Mr. Robertson and go over documents 14 EFTA00093423

CrtgES(12.7-Z14112[9496tOgntEldeatift4h0366)2Frilealia206alagThiela 15/4116 line by line in a way that is not possible through a screen. The fact that the interview room will be unavailable when the Aspen courtroom is in use is also unacceptable because the courtroom has been, and will be, in frequent use, just as it was when the parties in this case met all day for the Daubert hearing and pretrial conference on February 4. The Court's calendar is also constantly shifting, meaning that the defense team will have little to no ability to confidently predict when they will be able to meet with Mr. Robertson. The proposal involving the Santa Fe County Detention Center fares no better. The government's language is tellingly equivocal. First, it states that "the Santa Fe jail is potentially willing to amend their policy that currently bars in-person attorney visits in response to this Court's concerns." Doc. 298 at 1 (emphasis added). Later, the government writes that the jail is willing to allow in-person meetings, but that it will "work to accommodate in-person visits between Robertson and his attorneys." Id. at 2 (emphasis added). Rather than inspire confidence, the language of government's motion reflects the high level of uncertainty that our jails have operated with over the last year. The truth remains that the Santa Fe County Detention Center, like all jails, can still go into a full and indefinite lockdown at any time due to the continued spread of COVID-19 (and potentially the virus's recent and more infectious variants). The Court also does not want to put the jail or the defense team at risk of COVID-19 because the jail feels compelled to deviate from what it believes are its best safety practices. Neither of the government's proposals are adequate to provide Mr. Robertson the consistent and predictable in-person contact with his defense attorneys that he needs. Finally, the Court will not grant the requested stay pending appeal, as it noted in its earlier release order. Doc. 300. First, the government has failed to cite or apply the legal standard for such a stay. See D.N.M. Local R. Crim. P. 473 ("A motion, response or reply must cite authority in support of legal positions advanced."). Second, the Court does not agree that the government 15 EFTA00093424

CEssEsa27-U412[9496tattnEldeant41030E02$0680/21964Siageg4 t62611.6 is likely to succeed on the merits of its appeal because it believes that Mr. Robertson's release is required by § 3142(e) and permitted by § 3142(i) for all of the reasons stated above. Nor does the Court agree that "[t]here is no immediate need to release [Mr. Robertson] today." Doc. 298 at 4. As the Court has explained, with Mr. Robertson heading to trial in two months, the defense team needs every day it can get to prepare with him, especially if he will be required to quarantine for two weeks upon arriving at La Pasada, as was suggested at the pretrial conference. CONCLUSION For the reasons set forth above, Mr. Robertson's Motion to Reconsider Motion for Review of Detention Order and Immediate Release [Doc. 274] is hereby GRANTED. See also Doc. 300. All of the conditions of Mr. Robertson's release can be found in the Order Setting Conditions of Release, filed on February 5, 2021. Doc. 301. The government's Amended Emergency Motion for Reconsideration of and Stay of Release Order [Doc. 298] is DENIED. DATED this 6th day of February, 2021. MARTH UNITED ATES DISTRICT JUDGE 16 EFTA00093425