355 ("It is well established that '[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion,' and 'a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution . . .'" (brackets and ellipses in original) (quoting United States v. Batchelder, 442 U.S. 114, 124 (1979)). Only after the Court has heard all of the evidence at trial and received the jury's verdict will the defense motion be ripe. Accordingly, the motion should be denied as premature. X. The Defendant's Various Disclosure Motions Should be Denied Maxwell's motions also include an assortment of requests for orders requiring the Government to make various disclosures, all of which are meritless or, at best, premature. A. Bill of Particulars Is Not Warranted First, the defendant moves for a bill of particulars, demanding the Government set out an array of details regarding the Government's theory of its case and anticipated witness testimony. The defendant, like all defendants, is entitled to sufficient information to understand the charges against her, to prepare a defense, and to protect against double jeopardy. However, the Government has provided such information, and much more, in the Indictment, extensive discovery, and various pretrial filings, including this memorandum. The defendant will also receive trial exhibits, a witness list, and Jencks Act material reasonably in advance of trial. As such, she has not established an entitlement to a bill of particulars under well-established governing law. 1. Applicable Law The proper purpose of a bill of particulars under Federal Rule of Criminal Procedure 7(f) is "to provide defendant with information about the details of the charge against him if this is 174 EFTA00100141

necessary to the preparation of his defense, and to avo id prejud icial surprise at trial." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990), abrogated on other grounds by United States v. Marcus, 628 F.3d 36, 41 (2d Cir.2010) (emphasis added) (internal quotation mark omitted). Accordingly, "[a] bill of particulars is required `only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused!" United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting Torres, 901 F.2d at 234); see United States v. Mahabub, No. 13 Cr. 908 (MN), 2014 WL 4243657, at *2 (S.D.N.Y. Aug. 26, 2014). In exercising its broad discretion to determine whether the charges are so general that they require supplementation through a bill of particulars, the Court should consider not just the text of the Indictment, but also discovery and other information supplied to the defendant to date. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); see also, e.g., Pierre-Louis, 2018 WL 4043140, at *7 (denying request for bill of particulars where indictment charged sex trafficking conspiracy spanning two decades because indictment and discovery "would suggest that defendant has enough information to apprise him of the charges with enough precision to enable him to prepare a defense, avoid unfair surprise at trial, and preclude a second prosecution for the same offense"); United States v. Block, No. 16 Cr. 595 (JPO), 2017 WL 1608905, at *6-7 (S.D.N.Y. Apr. 28, 2017) (denying request for bill of particulars as to alleged fraud and unindicted co-conspirators where indictment sufficiently advised defendant of nature of charges against him and described with specificity acts he allegedly committed, nature of conspiracy, and explained in language closely tracking statute crimes alleged); United States v. Monserrate, No. 10 Cr. 965 (CM), 2011 WL 3480957, at *4 (S.D.N.Y. Aug. 4, 2011) (denying request for bill of particulars where discovery and indictment was "sufficient to apprise the defendant of the charge" and to allow him to prepare for trial); United States v. Trippe, 171 F. Supp. 2d 230, 240 (S.D.N.Y. 2001) 175 EFTA00100142

(denying bill of particulars request in stock fraud case where indictment was fifteen pages long and substantial discovery had been provided). Although the Government cannot provide "mountains of documents to defense counsel" as a substitute for a bill of particulars where one would otherwise be required, see Bortnovsky, 820 F.2d at 575, the provision of voluminous discovery in combination with some guidanceabout what is most relevant can vitiate a need for further particulars, see, e.g., United States v. Mandell, 710 F. Supp. 2d 368, 385 (S.D.N.Y. 2010) (denying request for particularization of alleged misrepresentations where the indictment was thirty-four pages long and Government had provided voluminous, organized discovery). In no event should volume of discovery alone warrant a bill of particulars; "[w]hile [a] [clout may sympathize with counsel's task of reviewing a large quantity of materials that continue to be produced," that concern is addressed by granting the defense sufficient time in which to conduct the review in advance of trial. See United States v. Levy, No. 11 Cr. 62 (PAC), 2013 WL 664712, at *13 (S.D.N.Y. Feb. 25, 2013). A bill of particulars would undoubtedly be helpful to the defense in any case. But "the law does not impose upon the Government an obligation to preview its case or expose its legal theories," United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y. 1977), and therefore "[t]he ultimate test must be whether the information sought is necessary, not whether it is helpful" United States v. Mitlof, 165 F. Supp. 2d 558, 569 (S.D.N.Y. 2001) (emphasis added); Mahabub, 2014 WL 4243657, at *2 ("The purpose of a bill of particulars is to ensure that a defendant has the information necessary to prepare a defense, not to turn over all information that would aid the defendant."); United States v. Rithveger, 259 F. Supp. 2d 275, 292-93 (S.D.N.Y. 2003) (denying bill of particulars request as "'an impermissible attempt to compel the Government to provide the 176 EFTA00100143

evidentiary details of its case"' (quoting United States v. Biaggi, 675 F. Supp. 790, 810 (S.D.N.Y. 1987)). A bill of particulars should not be misused to compel the Government to disclose "the manner in which it will attempt to prove the charges, the precise manner in which the defendant committed the crime charged, or a preview of the Government's evidence or legal theories?' Mitlof, 165 F. Supp. 2d at 569; see also Torres, 901 F.2d at 234 ("Acquisition of evidentiary detail is not the function of the bill of particulars.' (quoting Hemphill v. United States, 392 F.2d 45, 49 (8th Cir. 1968))). The "wheres, whens and with whoms"' are "beyond the scope of a bill of particulars." Mitlof, 165 F. Supp. 2d at 569 (citing Torres, 901 F.2d at 233-34; Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993)); see also, e.g., United States v. D'Amico, 734 F. Supp. 2d 321, 335 (S.D.N.Y. 2010) ("A bill of particulars is not a general investigative tool, a discovery device or a means to compel the government to disclose evidence or witnesses to be offered prior to trial."' (quoting United States v. Gibson, 175 F. Supp. 2d 532, 537 (S.D.N.Y. 2001))); United States v. Bellomo, 263 F. Supp. 2d 561, 580 (E.D.N.Y. 2003) ("A bill of particulars is not designed to: obtain the government's evidence; restrict the government's evidence prior to trial; assist the defendant's investigation; obtain the precise way in which the government intends to prove its case; interpret its evidence for the defendant, or disclose its legal theory."); United States v. Hetuy, 861 F. Supp. 1190, 1197 (S.D.N.Y. 1994) ("This instrument should not function to disclose evidence, witnesses, and legal theories to be offered by the Government at trial or as a general investigative tool for the defense."). There are good reasons why bills of particulars are warranted only where the allegations in the indictment, as supplemented by discovery and other disclosures, are so general as to render it impossible to prepare a defense. Because "a bill of particulars confines the Government's proof 177 EFTA00100144

to particulars furnished," it can "restrict unduly the Government's ability to present its case." Henry, 861 F. Supp. at 1197; see also Midof, 2014 WL 4243657, at *2 (recognizing that "cam must be taken" because "[t)he government's presentation of evidence at trial is limited to the particulars contained in the bill"); United States v. Samsonov, No. 07 Cr. 1198 (CM), 2009 WL 176721, at *3 (S.D.N.Y. Jan. 23, 2009) ("The vehicle of a bill of particulars serves to inform a defendant of the nature of the charge, when he is otherwise insufficiently informed, and must not be misused to compel disclosure of how much the Government can prove, nor to foreclose the Government from using proof it may develop as the trial approaches."). Moreover, where the Government's provision of particWars is tantamount to an itemized preview of its proof, it creates the very real danger that a defendant will "tailor her testimony to explain away the Government's case." Henry, 861 F. Supp. at 1197. These concerns animate the rule that "if the defendant has been given adequate notice of the chargesagainst her and can prepare fully for trial with reasonably diligent efforts, the Government cannot be required to disclose additional details about its case." Id. 2. Discussion There is no basis fora bill of particulars in this case. The charges against the defendant are clear from the face of the Indictment, which provides significant detail regarding the charged crimes. As is apparent from the 18-page Indictment, the charges concern the defendant's participation in conspiracies to transport and entice minor girls to travel with the intent that they engage in illegal sex acts with Jeffrey Epstein from 1994 through 1997, and the defendant's attempt to cover up that conduct during her civ il deposition testimony in 2016. Specifically, the Indictment makes plain that the defendant is charged with engaging in a conspiracy to transport minor girls with intent that they engage in sexual activity with Epstein, engaging in a conspiracy to entice 178 EFTA00100145

minor girls to travel with the intent that they engage in sexual activity with Epstein, aiding and abetting the transportation and enticement of a particular minor girl interstate for the purpose of engaging in sex acts with Epstein, and lying about those same crimes during her 2016 civil deposition testimony. The charged time periods are made plain in each count, as is the statute she is accused of violating. The speaking Indictment in this case goes above and beyond a mere recitation of the elements of each offense by detailing the defendant's specific role in the crimes charged. Among other things, it specifies three minor victims in particular and describes the steps the defendant took with respect to each as part of the charged crimes. See, e.g., Indictment¶ 7. Additionally, the Indictment details the types of sex acts that Epstein committed with the minor victims as part of the charged crimes and the locations where those ads occurred. See, e.g., id.15-6. In this way, the Indictment makes clear the Government's theory that the defendant groomed three minor girls to engage in sex acts in Florida, New Mexico, New York, and London with Epstein between 1994 and 1997. The Indictment further specifies during which portion of that period each of those three victims interacted with the defendant and Epstein as minors. See id. ¶7. Additionally, the Indictment identifies the precise answers that the Government alleges constituted perjury, and alleges facts, in the earlier portions of the Indictment, that indicate how and why the Government will seek to prove the answers were false. Compare id. 9¶ 21, 23 with id. 91-11. Simply put, this is not a case in which the allegations in the Indictment "are so general that they do not advise the defendant of the specific acts of which he is accused." Walsh, 194 F.3 d at 47 (internal quotation mark omitted) (quoting Torres, 901 F.2d at 234). Thus, the Indictment itself provides a sufficient basis to deny the defendant's motion in its entirety. See, e.g., United States v. Bonventre, 646 F App'x 73, 79 (2d Cir. 2016) ("`[E]videntiary detail is not the function of the bill of particulars.' 179 EFTA00100146

Particulars are necessary only where indictment charges are `so general that they do not advise the defendant of the specific acts of which he is accused.'" (internal citation omitted) (quoting Toms, 901 F.2d at 234; United States v. Chen, 378 F.3d 151, 163 (2d Cir. 2004))); United States v. Wedd, No. 15 Cr. 616 (KBF), 2016 WI., 1055737, at *3 (S.D.N.Y. Mar. 10, 2016) (denying motion for bill of particulars where "the Indictment is a `speaking' Indictment that provides a significant amount of detail as to the Government's theory of the case and the nature of the proof that will underlie the charges at trial"). Additional particularity relating to the details of the counts in the Indictment might be helpful for the defendant, but that is both true in every case and not the appropriate standard. Instead, the inquiry is properly focused on whether the information already available to her is so general that a bill of particulars is necessary to the preparation of her defense. Plainly it is not. In addition to the speaking Indictment, the defendant has receivedover 2.7 million pages of discover), in this case. Although that is a high volume of discovery, it is clear from the defense's own motion that the defense has apparently already reviewed that material (at least in significant part), identified relevant materials therein, and is aware of their relevance to the allegations in the Indictment. (See, e.g., Def. Mot. 10 at 6). Indeed, much of the discovery is text searchable, and the time period that each document relates to is readily ascertainable. In this vein, the defendant has received ria in tent, whichn d` ing that perforincludingagefendant Indietmet.61 61 Records of commercial flights were unavailable by the time the Government opened its investigation in this case. Accordingly, the Government has no records of commercial flights that the defendant, Epstein, or any victims may have taken during the relevant period. 180 EFTA00100147

Indictmean n tat duringelleatmess va rec urn btialtitution e lat wearlaillawal confirming thadetendgal in 19 nrr r Ind def :„['otogra dictmennelM and the Government has provided the defense with the birth month and year of each minor victim.62 In other words, as the Government has previously indicated, the discovery provides the defendant with more than sufficient information about the three minor victims to permit her to prepare for trial. The discovery also provides the defense the ability to identify specific private plane flights that are relevant to the Indictment. Any remaining detail regarding the specifics of abuse, particular interactions, and additional trips will come from witness testimony. As is to be expected when describing events more than two decades in the past, that testimony will provide approximate time periods when events occurred, rather than specific dates. Given the information the defendant already has from the discovery, the Indictment, and the Government's court filings (including this memorandum), any additional detail would essentially serve as early Jencks Act production, allowing the defendant to tailor any testimony to the Government's case. The discovery gives the defense ample information to assist in its investigation, and given the defense's 62 In this memorandum, the Government has also clarified that Minor Victim-3 was 17 years old at the time of the events described in the Indictment involving her. See Section VIII, supra. 181 EFTA00100148

apparent ability to understand who the three victims are from the productions, there is no real concern that the defense will waste efforts conducting any such investigation before receiving Jencks Act materia1.63 Moreover, with respect to the perjury counts, to the extent there could plausibly be any remaining ambiguity about the nature of the charges, the Government has addressed and resolved such ambiguity in responding to the instant motions. In this memorandum, the Government has summarized how the defendant's false statements during her deposition were material to the pending civil litigation. See Section V ,supra. Perhaps more importantly, the defendant personally participated in that civil litigation, and she is undoubtedly quite familiar with it. Together, the discovery productions, briefing in which the Government has described aspects of its evidence and theory (see, e.g., Government Memorandum in Opposition to Renewed Bail Motion, Dec. 18, 2020, Dkt. No. 100, at 8-12), the contents of this memorandum, and the details contained in the Indictment more than adequately inform the defendant of the charges against her. This is simply not a case where the "relevance of key events [are] shrouded in mystery." See Bortnovsky, 820 F.2d at 574. Accordingly, the Court should deny the motion for a bill of particulars. B. The Defendant's Requests for Early Production of a Witness List and Jencks Act Material Should Be Denied 1. Applicable Law Federal Rule of Criminal Procedure 16 "does not require the Government to furnish the names and addresses of its witnesses in general." United States v. Bejasa, 904 F.2d 137, 139 (2d 63 Although the victims' identities are clear from the discovery, and the defendant's motion makes clear that she strongly suspects their identities, there is no basis to require the Government to turn over the names of its witnesses, including its victim-witnesses in advance of its Jencks Act production, which is customary in this District. See Section X.B., infra. 182 EFTA00100149

Cir. 1990). Thus, "'[i]n the absence of a specific showing that disclosure [of a witness list] [is] both material to the preparation of [the] defense and reasonable in light of the circumstances surrounding [the] case,' the request for a witness list should be denied." United States v. Russo, 483 F. Supp. 2d 301, 309 (S.D.N.Y. 2007) (quoting Bejasa, 904 F.2d at 139-40). "Courts in the Second Circuit typically deny motions for the early disclosure of witness lists where, as here, Defendants have not made a specific showing of need." United States v. Rivera, No. 16 Cr. 175 (LGS), 2017 WL 1843302, at *2 (S.D.N.Y. May 8, 2017). The claim that "given the complexity of the case, disclosure of the government witness list will level the playing field" amounts to an "abstract statement of need" that does not justify provision of a witness list. Russo, 483 F. Supp. 2d at 309. The Jencks Act, 18 U.S.C. § 3500, covers disclosure of statements or reports made by Government witnesses, and the rule mandates that such materials not be the subject of discovery or inspection "until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a); see also United States v. Coppa,267 F.3d 132,145(2d Cir. 2001) ("[T]he Jencks Act prohibits a District Court from ordering the pretrial disclosure of witness statements."); United States v. Thompson, No. 13 Cr. 378 (AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013) (denying request for early production of Jencks Act material in light of Coppa). Typically in this District, and as is the case here, the Government confirms that it will produce 3500 material and Giglio (or impeachment) material reasonably in advance of trial, and will engage in good faith discussions with the defense regardinga schedule for pretrial disclosures. See United States v. Sergentakis, No. 05 Cr. 230 (JFK), 2005 WL 1994014, at *1-2 (S.D.N.Y. Aug. 17, 2005) ("18 U.S.C. § 3500(b) calls for production of Government witness statements after the witness 'has testified on direct examination.' The Government response .. . that `[c]onsistent 183 EFTA00100150

with the regular practice in this District, the Government intends to make Section 3500 material available to the defense at the same time as impeachment material, [and that] in order to avoid any delay in the trial, the Government will produce such material sufficiently in advance of each Government witness's testimony' ... is more than adequate."); United States v. Gallo, No. 98 Cr. 338 (JGK), 1999 WL 9848, at *8 (S.D.N.Y. Jan. 11, 1999) ("[T]he Government has indicated that it is aware of its obligations under Giglio ... and the Jencks Act and that it will provide the required information to the defendants in accordance with its responsibilities under Giglio and the Jencks Act sufficiently in advance of each witness's testimony to allow adequate time to prepare forcross- examination. These representations are sufficient."). 2. Discussion Trial is still more than four months away. The degree of complexity to this case, and the volume of discovery, is on par with other recent high-profile trials in this District, and in those cases witnesses have typically been disclosed approximately three to four weeks before trial. E.g., Gatto, 17 Cr. 686 (LAK); Blaszczak, 17 Cr. 357 (LAK); Skelos, 15 Cr. 317 (KMW); Silver, 15 Cr. 93 (VEC); Ulbricht, 14 Cr. 68 (KBF). As the Government has noted for some time now, the Government intends to match or even go above and beyond that practice in this case. Specifically, the Government has offered repeatedly to provide non-testifying witness statements to the defense as much as eight weeks before trial, thereby allowing extra time for the defense to determine whether it wishes to call any of the witnesses the Government does not intend to present at trial, and to provide testifying witness statements and Giglio material as much as four weeks in advance of trial. Given that the defense has already been able to initiate its investigation of the charges, and given that the discovery makes clear who the three minor victims are, eight weeks should be ample time to review non-testifying witness statements, and four weeks is more than enough time 184 EFTA00100151

to review the statements of testifying witnesses. The Government remains open to engaging in good faith discussions with the defense to mutually agree on a schedule for reciprocal pretrial disclosures.64 Accordingly, the motion for a witness list and early production of Jencks Act material should be denied. C. The Defendant's Additional Requests for Disclosure Should Be Denied The defendant also makes a variety of motions seeking disclosures to which she is not entitled, all of which should be denied. First, the defendant requests , which the defense attached to their motion as Exhibit B. (Def. Mot 10 at 7-8). The defense assumes that because defea t, th were thereby, according to the defense, rendering any record of those interviews exculpatory. But that defense theory rests on a faulty premise. The Government has reviewed the document memorializing and confirmed that it inculpates the defendant and contains nothing exculpatory. The Government has also reviewed and confirmed that it also inculpates the defendant. The Government has, however, identified a single line in that could arguably be considered helpful to the defense.65 With the possible exception of that one line, there is nothing exculpatory contained 64 The Government has requested reciprocal discovery from the defendant and, to date, she has produced nothing. 65 In articular, bei r e' eroluren-otesTrorrithis 20O5-mTervrevonntitri mor is that JE is gay," an apparent reference to Jeffrey Epstein's rumored sexual 185 EFTA00100152

in . Accordingly, the records of these interviews constitute witness statements covered by the Jencks Act and are not subject to disclosure by statute until after each witness has completed direct examination at trial. See 18 U.S.C. § 3500. As noted above, however, the Government fully intends to provide all Jencks Act material of both testifying and non-testifying witnesses, which will of course include the records relating to these interviews, to the defense multiple weeks in advance of trial. The Government respectfully submits that is sufficient to meet its obligations with respect to these documents. and the defendant's motion for their immediate disclosure should be denied. Second, the defendant's request for an unredacted copy of the FBI report attached to the Defense Motion as Exhibit C should be denied as moot because the Government has already produced an unredacted copy of that report to the defense. (Def. Mot. 10 at 8-9). Specifically, the document was produced without redactions under bates numbers SDNY_GM_00380550 through SDNY_GM_00380554 as part of the Government's discovery production dated November 9, 2020.66 This motion should accordingly be denied as moot. Third, the defendant's request for unredacted copies of the FBI report regarding is based purely on her speculation that the redacted portions of those materials contain exculpatory information. (Def. Mot. 10 at 8-9). Once again, the MEM Out of an abundance of caution, today the Government has informed defense counsel of this single line 66 Notably. the unredacted report does not contain demonstrating that defense counsel's speculation about supposed Brady material lurking beneath redactions is inaccurate. The redacted copy defense counsel attached as Exhibit C was recovered during the execution of a search warrant for one of Epstein's devices and was produced to defense counsel in the form in which it was recovered from the device. In other words, defense counsel has received two copies of this same document: the redacted version that Epstein had on one of his devices, and the unredacted version from the FBI's files. 186 EFTA00100153

Govemment has reviewed the full report and confirmed that there is nothing exculpatory contained therein. To the contrary, the report inculpates the defendant. Accordingly, the defendant is not entitled to its immediate disclosure. The Government will produce an unredacted version of this document together with all other witness statements in advance of trial. 67 Fourth, the defense requests production of pages from a personal diary that is in the custody of a civilian third party and is not in the custody or control of the Government. (Def. Mot. 10 at 10). Leaving aside the fact that the defense cites no authority for the proposition that the Government has an obligation to obtain the personal papers of a third party, see United States v. Collins, 409 F. Supp. 3d 228,239 (S.D.N.Y. 2019) ("The Government's `Brady obligations extend only to materials within prosecutors' possession, custody or control or, in appropriate cases, that of the Department of Justice, perhaps another part of the Executive Branch, or a comparable state authority involved in the federal prosecution.' (quoting United States v. Blaszczak, 308 F. Supp. 3d 736, 742 (S.D.N.Y. 2018))), the Government has already represented that it has asked the third party at issue about the materials the defendant purports to seek and that no such materials exist In particular, to the extent the defense is concerned with whether there are diary entries the Government has already indicated in response to the defendant's second bail motion that it is aware of none. (See Dkt. No. 100 at 11 n. 2 (" 67 As is the case with the other redacted document referenced in this motion, the redacted copy defense counsel attached as Exhibit D was recovered during the execution of a search warrant for one of Epstein's devices and was produced to defense counsel in the form in which it was recovered from the device. 187 EFTA00100154

)). In other words, the defendant again seeks supposedly exculpatory evidence that does not exist. The defendant offers no basis on which to conclude that this representation is false or that any such evidence does in fact exist. As such, this motion shouki be denied. Fifth, the defendant asks this Court, again without citing any legal authority, to order the Government to produce copies o fall subpoenas it has issued for the defendant's records as part of its investigation in this case. (Def. Mot. 10 at 1 I ). This incredibly broad request is nothing more than a fishingexpedition inappropriately seekingthe details of investigative requests made through the grand jury process. The defense has cited no legal basis for the Court to direct the Government to provide the defense with copies of the subpoenas themselves (as opposed to records or other materials received in response to such subpoenas), let alone every subpoena issued for the defendant's records during a multi-year and ongoing grand jury investigation. The types of requests issued by the grand jury have no conceivable bearing on the defense or on any motion the defense may seek to bring. The Government has already produced to the defense all discoverable material that it has received in response to subpoenas issued to date during this investigation. In the absence of any legal authority justifying this request, it should be denied. Additionally, for the reasons discussed above in Sections I and IV, the defendant is not entitled to discovery or a hearing relating to her motion to dismiss the Indictment based on the NPA or her motion to suppress subpoena returns. Sixth, the defendant asks the Court to direct the Government to immediately disclose any Brady and Giglio material. (Def. Mot. 10 at 11-13). The motion for disclosure of Brady material should be denied as moot because the Government has conducted a search for any such material and has already disclosed any potentially exculpatory information in its possession of which it is 188 EFTA00100155

aware, consistent with the Rule 5(f) Brady order previously issued by the Court in this case. See Fed. R. Crim. P. 5(f); Dkt. No. 68. The Government recognizes its continuing obligation to disclose any Brady material, and to make a diligent search for any relevant material that may be in the possession of the prosecution team, including investigating agents and officers. As the Government has already emphasized in this case, the Government takes its disclosure obligations very seriously and has committed to being transparent with the Court and the defense regarding its approach to obtaining and reviewing files, including other agency files, that may be relevant to this case. (See, e.g., Gov't Letter dated October 7, 2020, Dkt. No. 63). Consistent with that commitment, the Government has completed an initial review of its files for Brady material and Rule 16 material and has produced more than 2.7 million pages of discovery as a result of that review. These productions have included specific disclosures of certain witness statements that may arguably be exculpatory. The Government also intends to produce all statements and potential impeachment material in its possession regarding any potential witness identified during its investigation, including those individuals whom the Government does not intend to call at trial. As discussed below, the Government is in the process of reviewing all files in its possession for potential impeachment material. The Government remains cognizant of its Brady obligations and will promptly produce any potentially exculpatory material if any is identified during that review. The Government is not currently aware o f any undisclosed Bradymaterial in its possession, but it will certainly provide timely disclosure of any additional Brady material if any such material comes to light. Courts in this Circuit routinely deny specific requests for Brady material where, as here, the Government has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady. See, e.g., Thompson, 2013 WL 6246489 at *9 ("In light of the Government's 'good-faith representation to 189 EFTA00100156

the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady,' defendants' request for immediate or otherwise early production of Brady materials is denied." (internal citation omitted) (quoting United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y.1996))); Gallo,I999 WL 9848, at *8 (denying defendant's motion to compel production of purported Brady material based on Government's representations that "it is aware of its obligations under Brady . . . and will produce any Brady material to the defense well before trial"); United States v. Campo Flores, No. 15 Cr. 765 (PAC), 2016 WL 5946472, at *11 (S.D.N.Y. Oct. 12, 2016) ("The Government represents that it is aware of its obligation under Brady; that it has complied; and will continue to comply. That is sufficient to deny Defendants' motion for Brady relief." (internal citations omitted)). Given the Government's extensive efforts to review its files for any material warranting disclosure, and its commitment to continue meeting its disclosure obligations, the motion should be denied. For similar reasons, the motion for disclosure of Giglio material should be denied as premature. The Government is fully aware of its obligation to disclose impeachment material, is in the process of reviewing all files in its possession for any such material, and will produce any such material several weeks in advance of trial. As noted above, that is consistent with governing law in this Circuit, and the defendant cites no authority for the proposition that she is entitled to such material as much as four months in advance of trial. Courts in this Circuit have repeatedly refused to compel disclosure of impeachment or Giglio material well in advance of trial, and the defense has provided no particularized basis for even earlier disclosure here. See United States v. Nixon, 418 U.S. 683, 701 (1974) ("Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial."); Campo Flores, 2016 WL 5946472, at *11 ("The Government has represented that it will make impeachment material relating to its 190 EFTA00100157

anticipated witnesses available . . . ten days before trial. There is no need to depart from the customary rule in this district of disclosure shortly before trial."); United States v. Seabrook, No. 10 Cr. 87 (DAB), 2010 WL 5174353, at *4 (S.D.N.Y. Dec.14, 2010) ("The Government represents to the Court that it is aware of its Brady, Giglio, Jencks Act, and 404(b) obligations and will comply with them in a timely fashion, as appropriate. Based on the Government's representations, and on the current posture of this case, the Court expects that the Government will comply timely with all of its obligations under Brady, Giglio, the Jencks Act, and Rule 404(b), and does not fmd a need to order compliance at this time." (intemal citation omitted)); Russo, 483 F. Supp. 2d at 308 ("Here the government has represented that it intends to produce Giglio material no later than the Friday of the week before a witness is scheduled to testify at trial, in accordance with its usual practice. To the extent that the government's disclosure in this case proves unusually voluminous or complex, the government has in good-faith represented that it intends to produce Giglio material sufficiently in advance of their witnesses' testimony so as to avoid any delay in trial. At the time of those disclosures, to the extent that Defendants feel that additional time is necessary given the volume or complexity of the materials provided, the Court will consider applications to continue or recall witnesses. It is unnecessary, however, to order early disclosure at this time."); United States v. Canter, 338 F. Supp. 2d 460, 461-62 (S.D.N.Y. 2004) (denying analogous motion and noting that "[i]t has been the practice of this Court and of other courts in this district to require that the Government produce these materials a few days before the start of trial"). Because the Government has committed to providing the defense with Giglio material multiple weeks in advance of trial, which is ample time for the defense to prepare its cross-examination of the Government's witnesses, this motion should be denied. 191 EFTA00100158

Seventh, the defendant seeks a proffer of all co-conspirator statements that the Government intends to offer at trial pursuant to Federal Rule of Evidence 801(d)(2)(E). (Def. Mot. 10 at 13- 14). In making this motion, the defense cites authority confirming that co-conspirator statements may be admitted at trial on a conditional basis without the need for any pretrial consideration of their admissibility. See United States v. Tracy, 12 F.3d 1186,1199 (2d Cir. 1993) ("The decision as to whether the four prerequisites have been met, like all other preliminary questions of admissibility, is to be made by the court. If the government succeeds in persuading the court that the conditionally admitted coconspirator statements were made during and in furtherance of a conspiracy of which both the declarant and the defendant were members, the statements are allowed to go to the jury. If the court is not so persuaded, it either should instruct the jury to disregard the statements, or, if those statements were `so large a proportion of the proof as to render a cautionary instruction of doubtful utility,' should declare a mistrial." (internal citations omitted) (quoting United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969))). Indeed, the Second Circuit has rejected the suggestion that non-exculpatory co-conspirator statements are discoverable under Rule 16 or by any means other than the Jencks Act. See In re U.S., 834 F.2d 283, 284-87 (2d Cir. 1987) (issuing a writ of mandamus reversing District Court's order directing the Government "to produce all oral statement made by the defendants and coconspirators that the Government planned to offer at trial as admissions of a defendant" under Fed. R. Evid. 801). Consistent with the Government's intention to produce Jencks Act material several weeks in advance of trial, the defense will receive notice of any co-conspirator statements that the Government may seek to introduce through witness statements with sufficient time to raise any objections with the Court. Accordingly, this motion should be denied 192 EFTA00100159

Finally, the defendant requests early disclosure of Rule 404(b) material that the Government may seek to introduce at trial. (Def. Mot. 10 at 17). As is customary in this district, the Government will provide notice to the defense of its intent to use any such evidence at least 45 days in advance of trial, which will leave sufficient time for the defense may file any motions in limine to be considered at the final pretrial conference. See Thompson, 2013 WL 6246489 at *9 ("The Government has represented that it will disclose the substance of [the 404(b) evidence it intends to introduce at trial] . .. in a timely fashion in order to permit the defendants the opportunity to challenge admission and to permit the Court to make an appropriate finding. This is all that Rule 404(b) requires." (alterations in original) (internal citation omitted)); United States v. Tranquillo, 606 F. Supp. 2d 370, 383 (S.D.N.Y. 2009) ("The Government has indicated that it will make the required disclosure two weeks prior to trial, a practice that typically comports with Rule 404(b)); United States v. Fennell, 496 F. Supp. 2d 279, 284 (S.D.N.Y. 2007) ("The government has in good faith noted its obligations under Rule 404(b), and indicated that it intends to provide notice of the 404(b) evidence it intends to introduce two weeks before the beginning of trial. There is therefore no need to issue the order Defendant seeks."). Accordingly, this motion should be denied. XL The Use of a Grand Jury Siting in White Plains Was Entirely Proper On June 29,2020, amidst a global pandemic that suspendedgrand juries across the country, the Government sought and obtained an indictment from a grand jury of the Southern District of New York (the "Southern District" or "SDNY") sitting in White Plains. The defendant now challenges the pool from which that grand jury was drawn, alleging that it does not reflect a "fair- cross section of the community," and moves to dismiss the Indictment under the Sixth Amendment. (Def. Mot. 9 at 1). As set forth below, the defendant's arguments rely on faulty 193 EFTA00100160

premises, and at any rate fail to meet the elements of a claim under the Sixth Amendment Therefore, the defendant's motion must be denied. A. Background 1. The SDNY and Local Rules for the Division of Business The defendant's brief repeatedly uses the term "Division" to describe a "White Plains Division" and a "Manhattan Division." (See, e.g., Def. Mot. 9 at 2 ("On June 29, 2020, the government filed a sealed indictment of Ms. Maxwell in the Manhattan Division of this Court. The government has conceded that Ms. Maxwell's indictment was obtained using a grand jury seated in White Plains, apparently with jurors drawn exclusively from the White Plains Division.")). Her use of the term "division" is imprecise and attributes legal significance where there is none. Understanding how that is so requires some background. District courts in each state in the United States are prescribed by statute. United States district courts in New York State are divided between four districts: Northern, Southern, Eastern and Western. 28 U.S.C. § 112. While certain districts in other states are further divided into "divisions" by statute, see, e.g., id. § 81 (dividing Alabama into three "districts" and multiple "divisions" within each district), the federal districts in New York State are not so divided. That is, in the Southern District, no "divisions" have been created by statute. Id. § 112(b). The statute provides only that "Court for the Southern District shall be held at New York, White Plains, and in the Middletown-Wallkill area of Orange County or such nearby location as may be deemed appropriate." Id. In the Southern District, the only authority determining whether particular cases are head in the Manhattan or White Plains courthouse is the SDNY Business Division Rules. These rules begin with an important preface: they "shall not be deemed to vest any rights in litigants . . . ." 194 EFTA00100161

SDNY Business Division Rules, available at ht0s://www.nysd.uscourts.govisitesidefaultdfiles/ local rules/ rules-2018-10-29.pdf Moreover, the Rules do not describe—much less limit—what matters may be heard by what grand jury. Cl SDNY Business Division Rule 6 (describing proceedings after an indictment has been returned). Rather, the Rules provide only that once an indictment is returned, "[t]he U.S. attorney designates on the criminal cover sheet that the case is to be assigned to White Plains if the crime was allegedly committed in whole or in predominant part in the Northern Counties." SDNY Business Division Rule 18(b)). Furthermore, the Rules specifically contemplate that cases may be reassigned from one courthouse to another. SDNY Business Division Rule 19. Consistent with these Rules, it is common for cases to be indicted by grand juries sitting in the White Plains courthouse and tried in the Manhattan courthouse. See, e.g., United States v. Israel, 05 Cr. 1039 (CM), Dkt. No. 25; United States v. &ornate, et aL, 09 Cr. 558 (CM), Dkt. No. 183, 200; United States v. Annabi, 10 Cr. 07 (CM), Dkt. No. 45; United States v. Arid, 12 Cr. 24 (LAP), Dkt. No. 115, 117; United States v. Reeves, et aL, 16 Cr. 372 (VEC), Dkt. No. 51; United States v. Guerrier, 18 Cr. 284 (JSR), Dkt. No. 98. 2. The SDNY Jury Plan The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. (the "JSSA"), provides the structure for the selection of juries in federal district courts. The JSSA requires each district to "devise and place into operation a written plan for random selection of grand and petit jurors...." 28 U.S.C. § 1863(a). Each district in New York selects grand and petit juries pursuant to a plan adopted by the judges of the district and approved by the Judicial Conference of the Second Circuit. Id.; see also United States v. Bahna, 68 F.3d 19, 23 (2d Cir. 1995). The plan for the Southern District has been in place since February 2009. See Amended Plan for the Random Selection of Grand and Petit Jurors in the Southern District of New York, available at 195 EFTA00100162

hitpsillwww.nysd.uscowts.govisiteddefazdtffiles/pdfljwyplan_feb_2009.pdf (the "SDNY Jury Plan," or the "Plan"). Under the terms of the SDNY Jury Plan, the initial selection of persons to be considered for service as grand and petit jurors are made at random from voter registration lists. SDNY Jury Plan at Art. III.A. Two Master Jury Wheels are constructed from these lists: one forthe Manhattan courthouse and one for the White Plains courthouse. Id. at Art. III.B. The Manhattan Master Jury Wheel draws from voter lists from the following counties: New York, Bronx, Westchester, Putnam, and Rockland. See id. at Art. III.C. The White Plains Master Jury Wheel draws from voter lists from the following counties: Westchester, Putnam, Rockland, Orange, Sullivan, and Dutchess. See id. Both Master Jury Wheels are emptied and refilled no later than September 1 following the date of each Presidential Election. Id. at Art. III.B. To meet anticipated demand for jurors, names are drawn randomly from the Master Jury Wheels. Id. at Art. III.D. These individuals are sent a questionnaire to examine their qualifications and availability for jury service. Id. Pursuant to 28 U.S.C. § 1865(b), all persons are qualified for jury service unless he or she: (1) Is not a citizen of the United States at least eighteen years old who has resided for a period of one year within the judicial district; (2) Is unable to read, write, and understand English with a degree of proficiency sufficient to fill out the juror qualification questionnaire; (3) Is unable to speak English; (4) Is incapable, by mental or physical infirmity, to render satisfactory jury service; or (5) Has a charge pending for the commission of, or h as been convicted in a State or Federal court, of a felony and his or her civil rights have not been restored. Id. at Art. VII. Additionally, certain persons are declared exempt from jury service, including active service members in the Armed Forces of the United States, members of fire or police 196 EFTA00100163

departments, and public officers in the executive, legislative, or judicial branches of the State or Federal Government who are actively engaged in the performance of official duties. Id. at Art V; 28 U.S.C. § 1863(b)(6). Finally, because jury service for certain groups of individuals would "entail undue hardship or extreme inconvenience," those individuals are excused or deferred upon individual request. SDNY Jury Plan at Art. VI. These groups include: (1) Persons over 70 years of age; (2) Persons having legal custody and active daily care of a child under the age of 12, or who are essential to the daily care of aged or infirm persons; (3) Persons who have satisfactorily served as grand or petit jurors in a State or Federal court within the last four years; (4) Volunteer safety personnel; and (5) Persons as to whom a judge finds, for any other reason, that jury service would constitute an undue hardship and extreme inconvenience. Id. The names of individuals who are determined to be qualified to serve as jurors, and am not "exempt, excused, or deferred," comprise the Qualified Jury Wheels—one for service at the Manhattan courthouse and one forservice at the White Plains courthouse. Id., Art. IV.A-B. When jurors are needed, names are drawn randomly from the Qualified Jury Wheels, and summonses are sent to those whose names are drawn. Id., Art. IV.C. After being summoned, these individuals are randomly assigned to jury panels as needed, for individual trials and grand juries at the courthouse corresponding to the Qualified Wheel from which they were drawn. Id. B. Applicable Law "The Sixth Amendment guarantees a criminal defendant a jury selected from a fair cross section of the community." United States v. Rioux, 97 F.3d 648, 654 (2d Cir. 1996). In Dunn v. Missouri, the Supreme Court articulated a three part test that defendants must meet in order to 197 EFTA00100164

establish a prima facie violation of the fair cross-section requirement: (1 ) the excluded group is "distinctive"; (2) "representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community;" and (3) the "underrepresentation is due to systematic exclusion of the group in the jury-selection process?' 439 U.S. 357, 364 (1979). C. Discussion The Government's decisionto seek an indictment o f the defendant from a grand jury sitting in White Plains was entirely appropriate and consistent with the Constitution, the JSSA, and the SDNY local rules. The defendant's claims to the contrary rest on a faulty premise: That a defendant who is likely to be tried in the Manhattan courthouse must be indicted by a grand jury sitting in that same courthouse. That is not the law. See Section XI.C.1, infra. That foundational error is fatal to the defendant's fair cross-section claim. When the proper comparators are considered—the White Plains Master (or Qualified) Wheels to the voting age population of the counties from which juries in White Plains are drawn, rather than the defendant's apples-to-oranges comparison of the White Plains Qualified Jury Wheel to the population of the Manhattan "Division"—the defendant fails to establish unfair underrepresentation under the second prong of the Duren test. Moreover, the defendant has not established that any disparity resulted from systemic exclusion of a particular group. Accordingly, the motion should be denied. 1. The Defendant Was Properly Indicted by a Grand Jury Sitting in White Plains At the heart of the defendant's fair cross-section claim is her contention that the Government seeking an indictment from a grand jury sitting in White Plains—which was the only 198 EFTA00100165

available grand jury that day, due to the global pandemic68—"was a deviation from the established practice of indicting defendants in the division where the offense is alleged to have occurred and where the case will be tried." (Def. Mot. 9 at 2). Because the offense is alleged to have occuned in the "Manhattan Division" and the defendant assumes that her jury trial will occur there too, she argues that the "appropriate comparison," for the purpose of her fair cross-section claim, "is therefore between the Manhattan Division and the qualified wheel for White Plains." (Def. Mot 9 at 6). This premise is faulty. "It is well-settled that neither the jury selection statute nor the Constitution requires that jurors be drawn from an entire district." Bahna, 68 F.3d at 24 (collecting cases); see also United States v. Plaza-Andrades, 507 F. App'x 22, 26 (2d Cir. 2013) ("[O]ur precedent makes clear that the Sixth Amendment does not entitle a defendant to be tried in a geographic location any more 68 This case was indicted on June 29, 2020, on which date the grand jury sitting in White Plains was the only available grand jury in the District. Beginning on or about June 25, 2020, grand jury quorums returned in Manhattan, but with substantially less availability than before the pandemic. As a result, the Government has sought indictments from grand juries sitting in White Plains and Manhattan, as availability permits. In this instance, the Government was prepared to indict on June 29, 2020, and the only grand jury available in this District on that day sat in White Plains. The global pandemic's effect on grand jury availability continues to evolve, but at no point have grand juries in White Plains or Manhattan resumed normal activity. The defendant speculates that the Government sought an indictment on June 29, 2020 because of some arbitrary desire to arrest the defendant on July 2, 2020, one year to the day after a grand jury returned a sealed indictment charging Jeffrey Epstein with federal crimes on July 2, 2019. (See, e.g., Def. Mot. 9 at I, 8). Setting aside the silliness of marking the anniversary of an indictment's return, as opposed to the anniversary of the arrest itself, which took place on July 6, 2019, there is no reality in the defense's conspiracy theories. As the defense knows full well, the Government attempted to locate and arrest the defendant on July 1, 2020 but was unable to confirm her location until obtaining cellphone location data identifying her location and enabling her arrest on July 2, 2020. The defense knows this because they have the warrant application that the Government submitted on July 1, 2020 for the defendant's cellphone location information, in which the Government stated that it had been unable to confirm the defendant's location. In other words, the Government indicted the defendant as soon as it was prepared to present the evidence it had gathered to a grand jury, and the Government arrested the defendant as soon as it was able to locate her after obtaining that indictment. 199 EFTA00100166

specific than the District where the offense was allegedly committed."). Rather, "[c]ourts have broad latitude in defining the geographic area from which juries will be selected." United States v. Yonkers Contracting Co., Inc., 682 F. Supp. 757, 768 (S.D.N.Y. 1988). Consistent with the foregoing, the SDNY Jury Plan creates two separate Master Wheels—one for the White Plains courthouse and one for the Manhattan courthouse, each of wh ich draws from certain counties, with some overlapping counties. SDNY Jury Plan Art. III.B, III.C. This is perfectly consistent with the JSSA, see 28 U.S.C. § 1869(e), and with longstanding precedent, as Judge Hand has explained: [T]he district and circuit courts have had power since the first Judiciary Act of 1789 to divide a district territorially in the interest of an impartial trial, of economy, and of lessening the burden of attendance. There cannot be the faintest question of the constitutionality of this statute; the courts have again and again recognized its validity. Furthermore, it would be impossible in practice to administer it, if it were a condition that that the divisions made must be so homogeneous that they showed an equal percentage of all possible groups. There are probably no districts in the Union, which can be divided without disclosing in the sections different racial, religious, political, social or economic percentages. To demand that they shall not, would be a fantastic pedantry which would serve no purpose and would put an end to the statute. United States v. GotOied, 165 F.2d 360,364 (2d Cir. 1948); accord Bahna, 68 F.3d at 24-25. There is accordingly no constitutional or statutory basis for the defendant's claimed entitlement to a grand jury drawn from the population of the same "division" in which the offense occurred and she assumes she will ultimately be tried. To the contrary, the Second Circuit has rejected a similar claim. In Bahna, a defendant in the Eastern District of New York was initially convicted at a trial held at the Brooklyn courthouse; after that conviction was vacated, he was again convicted, this time at a trial held at the Uniondale courthouse. 68 F.3d at 20. Under the relevant jury plan, jurors for trials held in Brooklyn were drawn from the entire Eastern District, while jurors for trials held in the "Long Island Division," which included the Uniondale 200 EFTA00100167

courthouse, were drawn from Nassau and Suffolk Counties. Id. at 24. The defendant argued that the district court erred by selecting the jury from the "Long Island Division" wheel because there was under-representation of Blacks and Hispanics in that "division" as compared to the Eastern District as a whole. Id. at 23-24. The Second Circuit rejected the argument, finding that it "[wa]s based upon an improper premise." Id. at 24. Contrary to the defendant's claims, "[w]here a jury venire is drawn from a properly designated division, we look to that division to see whether there has been any unlawful or unconstitutional treatment of minorities." Id. (emphasis added). Consistent with Bahna, courts have repeatedly found that defendants in criminal cases have no constitutional or statutory right to a jury drawn from the entire district or from a particular geographic area within a district, such as the county or "division" where the offense was committed. See, e.g., Rutenberg v. United States, 245 U.S. 480, 482 (1918) (rejecting claim that defendant had Sixth Amendment right to jury drawn from entire district); United States v. Miller, 116 F.3d 641, 659 (2d Cir. 1997) ("Th[e] [Sixth] Amendment's guarantees of an impartial jury `of the State and district' in which the crime was committed does not require a narrower geographical focus than the district itself."); United States v. Richardson, 537 F.3d 951, 959 (8th Cir. 2008) (a criminal defendant "does not have a right to have his trial in or jurors summoned from a particular division of the state and district where the crime was committed"); United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983) (finding that "[a] petit jury may be drawn constitutionally from only one division and not the whole district"); Zicarelli v. Dietz, 633 F.2d 312, 318 (3d Cir. 1980) ("[T]there is no constitutional right to a jury chosen from the division where the offense was committed or from the entire district which includes that division."); United States v. Florence, 456 F.2d 46,49-50 (4th Cir. 1972) (holding that a defendant has no constitutional or statutory right to a jury selected from the entire district or from a particular division). 201 EFTA00100168

Because the defendant has no right to insist that either the grand or petit jury be drawn from any particular geographic area within the Southern District, she is wrong to assert that her fair cross-section claim must be analyzed against the geographic location in which the offense was committed or the trial is expected to occur. Rather, "[w]here a jury venire is drawn from a properly designated division, we look to that division to see whether there has been any unlawful or unconstitutional treatment of minorities." Bahna, 68 F.3d at 24 (emphasis added). Hem, consistent with the SDNY Grand Jury Plan, the venire for the grand jury that indicted the defendant was drawn from the voter lists of the following counties: Westchester, Putnam, Rockland, Orange, Sullivan, and Dutchess. That is undoubtedly a "properly designated division" pursuant to the JSSA. As noted, the Southern District is not divided into "divisions" by statute. See 28 U.S.C. § 112(b). For purposes of the JSSA, district courts in such undivided districts have the authority to determine "divisions" comprised of "counties, parishes, or similar political subdivisions surrounding the places where court is held." 28 U.S.C. § 1869(e). Accordingly, while the SDNY Jury Plan neither creates nor ever uses the term "White Plains Division" or "Manhattan Division," it contemplates Master Jury Wheels drawn from two geographic areas that satisfy the definition of "division" under the JSSA. Thus, in evaluating the defendant's fair cross-section claim, this Court must "look to that division"—the counties from which the White Plains Master Wheel is drawn— "to see whether there has been any unlawful or unconstitutional treatment of minorities." Bahna, 68 F.3d at 24 (emphasis added). In the face of this authority, the defendant cites only two district court cases for the proposition that "community" for purposes of a fair cross-section claim is "widely understood to mean the district or division where the trial will be held." (Def. Mot. 9 at 5 (emphasis added) (internal quotation marks and citation omitted)). Not only is the authority cited non-binding, but 202 EFTA00100169

it is inapposite as well: both cases appear to concern instances in which the grand jury and trial jury sat in the same courthouse, and thus there was no cause to consider whether the same "community" was relevant to separate challenges to the grand and petit juries. See United States v. Johnson, 21 F. Supp. 2d 329, 334-35 (S.D.N.Y. 1998); United States v. Kenny, 883 F. Supp. 869, 874-75 (E.D.N.Y. 1995). As such, neither case supports the proposition that where a defendant is challenging the selection of the grand jury, the relevant "community" is the population of the location in which her trial will be held. Such a comparison is unjustified, as Bahna makes clear: That case appears to involve conduct that occurred in Brooklyn, appears to have been indicted in Brooklyn, was originally tried in Brooklyn, and was later transferred to Uniondale, where it was tried with a jury drawn from the "Long Island Division." Yet the Second Circuit rejected the defendant's claimed entitlement to a jury drawn from Kings, Queens and Richmond counties, or the entire Eastern District, because that argument—like the defendant's here—was based on a flawed premise. The defendant's proposed rule—comparing the composition of the grandjwy venire to the population of the expected trial location—makes little legal or practical sense. Where, as here, the defendant's challenge is to the indictment, the proceeding for which the defendant is entitled to expect a jury drawn from a fair cross-section of the community is not the trial, but the grand jury proceeding itself. Indeed, that must be the case, as it is not yet determined where the trial in this matter will in fact occur. The defendant assumes that her trial will ultimately be held at the Manhattan courthouse. While that is likely to be the case, it is not necessarily so. Bahna again illustrates the point, as a case originally tried in Brooklyn was reassigned to Uniondale for the retrial "to accommodate trial congestion in the court's calendar during a period of judicial emergency .. ." United States v. Soares, 66 F. Supp. 2d 391, 397 n.2 (E.D.N.Y. 1999). In the 203 EFTA00100170

Southern District, cases are commonly transferred from one courthouse to another, including cases that are indicted in White Plains but tried in Manhattan. See Section XI.A. I , supra (collecting examples). That is entirely consistent not just with the foregoing authority, but also with the Southern District's Local Rules for the Division of Business. See SDNY Business Division Rules 18, 19. Criminal cases are also sometimes transferred to other Districts for trial. See Fed. R. Crim. P. 21. Under the defendant's approach, it would be impossible for prosecutors to determine a ante that that they were seeking an indictment from a grand jury drawn froma representative cross- section of the relevant community, because they would not yet know with certainty in which community the case will be tried. The defendant's argument therefore boils down to an unfounded complaint that it is "a deviation from the established practice" to seek an indictment in a courthouse other than the one in which the case will likely be tried. (Def. Mot. 9 at 2). This argument is inconsistent with the foregoing law that the defendant has no right to jurors drawn from any particular geographic area within the district. See also Rosencrans v. United States, 165 U.S. 257,260-63 (1897) (finding no error in grand jury returning indictment in a division different from the division in which the trial proceeded). It also finds no succor in the SDNY Business Division Rules, which vest no rights in any parties and, in any event, contemplate that judges may reassign cases from one courthouse to another. And it falls exceedingly flat on the facts of this case. The Government did not forum shop to achieve some perceived advantage. Rather, it sought a timely indictment from a grand jury in White Plains because it was the only grand jury with a quorum sitting in the Southern District on that date (a relatively rare situation created by an unprecedented public health crisis). 204 EFTA00100171

In sum, the decision to indict the defendant in White Plains was entirely proper, and the lack of any constitutional or statutory basis for the defendant's contrary argument is fatal to her fair cross-section claims, as described below. 2. The Defendant's Fair Cross-Section Claim Is Meritless The defendant's fair cross-section claim is based on the assertion that Black or African- American and Hispanic or Latino individuals are unfairly underrepresented in the relevant jug pool. (Def. Mot. 9 at 5). While these are "distinctive" groups, satisfyingarren's first prong, the defendant's claim fails on each of the other two prongs. a. The Defendant Has Not Established that Blacks or Hispanics Are Unfairly Represented The second prong of the Duren test requires the Court to determine whether representation of either or both of the "distinctive" groups in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community. Duren, 439 U.S. at 364. This requires determiningthe relevant comparators—i.e., what is the "relevant jury pool" and what is the community "population" against which it is compared—as well as the appropriate method of statistical comparison. See Rioux, 97 F.3d at 656. Here, the defendant contends that the relevant jury pool is the White Plains Qualified Wheel. (Def. Mot. 9 at 5-6). The Government believes that the relevant jury pool is the White Plains Master Wheel, but, as set forth below, the defendant's claim fails even using the White Plains Qualified Wheel. "Neither the Supreme Court nor the Second Circuit has defined the `relevant jury pool' with any specificity." United States v. Rioux 930 F. Supp. 1558, 1565 (D. Conn. 1995). In a detailed survey of the case law, the district court in Rioux found that cases have examined diffetent relevant pools, including the master wheel, the qualified wheel over a period of time, the venues 205 EFTA00100172

appearing around the time of the defendant's trial, or some combination thereof. Id. Ultimately, the district court in Rioux found that the teaching of Duren and the Second Circuit's subsequent cases is that "the court must assess representativeness in the context of the systematic defect identified by the defendant." Id. at 1568. In that case, the claimed defects were in the construction of the qualified wheel and, therefore, the "relevant jury pool" was the "qualified wheel over the life of the wheel." Id. at 1575. Affirming that decision, the Second Circuit did not hold that the qualified wheel is necessarily the "relevant jury pool." Rather, after stating that the relevant jury pool "may be defined by: (1) the master list; (2) the qualified wheel; (3) the venires; or (4) a combination of the three," the Circuit noted that the parties had agreed that the district court properly used the qualified wheel over the life of the wheel as the "relevant jury pool." Rioux, 97 F.3 d at 657. The court's acceptance of the qualified jury wheel as the "relevant jury pool" for that case—an issue which was not in dispute—does not mean it necessarily must be applied in all cases. Id. Indeed, in other cases where the claim of error was not focused on the construction of the qualified wheel, different "relevant jury pools" have been used by the Second Circuit. Most notably, in Biaggi, the main thrust of the defendant's fair cross-section claim was that reliance on voter registration lists systemically excluded African-Americans and Hispanics from jury service—a claim which is directed at the composition of the master wheel—and the Second Circuit identified the district's master wheel as the relevant jury pool. United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990). Here, the defendant claims that "the primary reason" for the alleged underrepresentation is the Government's "choice to pursue an indictment from a grand jury drawn from the White Plains Division, as opposed to the Manhattan Division .. . ." (Def. Mot. 9 at 7). Even if this argument described a function of the jury selection process — though it does not — it would be directed at the 206 EFTA00100173

how the particular Master Wheel is selected. It says nothing about the process by which a Master Wheel is reduced to the subset of qualified jurors contained in the Qualified Wheel. Because the "systematic defect" alleged by the defendant relates to the Master Jury Wheel, the White Plains Master Jury Wheel is the appropriate "relevant jury pool." Rioux, 930 F. Supp. at 1566-68. Although the Master Jury Wheel does not include reliable information regarding the race and ethnicity of the individuals selected from voter registration lists, the racial and ethnic makeup of the White Plains Master Jury Wheel can be estimated using geocoding and Bayesian Improved Surname Geocoding ("BISG").69 Taking into account those estimates, the White Plains Master Wheel is 11.20% Black or African-American and 12.97% Hispanic or Latino. (Siskin Aff. at ¶ 28). By contrast, the White Plains Qualified Wheel is 8.76% Black or African-American and 10.48% Hispanic or Latino. (Id. at ¶ 17). The community population for purposes of assessing representativeness is the population eligible for jury service in the community. See, e.g., Taylor v. Louisiana, 419 U.S. 522,524 (1975) (focusing on population eligible for jury service); Rioux, 97 F.3d at 657 ("We conclude that the appropriate measure in this case is the eighteen and older subset of the population .. .."). But how should the relevant "community" be defined? The defendant contends that it is the jury eligible population of the "Manhattan Division," because that is where the offense occurred and where she assumes she will be tried. (Def. Mot. 9 at 6). As set forth above, she is wrong. The relevant 69 The defense motion references the expert report of an expert witness named Jeffrey O'Neal Martin ("Martin Aff."), which was prepared for the defense in United States v. Balde, No. 20 Cr. 281 (KPF), where a similar motion is currently pending before Judge Failla. The Government is likewise attaching the expert report of Dr. Bernard R. Siskin, which was prepared for the Government in Balde. As detailed Dr. Skiskin's report, geocoding is based on estimating the proportion of persons who are of a given race or ethnicity based on the racial and ethnic area in which they live. (See Affidavit of Dr. Bernard R. Siskin ("Siskin Aff."), attached hereto as Exhibit 12, at ¶ 26). BISG enhances the accuracy of geocoding for Hispanic or Latino persons by using information about persons' last names. (Id.). 207 EFTA00100174

comparator is the jury eligible population of the five counties from which the White Plains Master Wheel is drawn. The American Community Survey ("ACS") 2018 data indicate that the jury eligible population for the White Plains counties in 2018 was 12.45% Black or African-American and 14.12% Hispanic or Latino.70 (See Siskin Aff. at 119; see also Martin Aff. at ¶ 21). Once the relevant comparators are defined, an additional threshold question is the statistical method by which to compare them. Courts have applied different approaches over time, such as the statistical decision theory, the comparative disparity theory, and the absolute disparity theory. See Rioux, 97 F.3d at 655. Although no method is perfect, see Berghuis v. Smith, 559 U.S. 314, 329 (2010), the Second Circuit has made clear that the comparative disparity theory is disfavored and strongly suggested that the absolute disparity theory is generally appropriate, see Rioux, 97 F.3d at 655-56; see also United States v. Barnes, 520 F. Supp. 2d 510,514 (S.D.N.Y.2007) ("Mlle absolute disparity approach is the primary approach used in this Circuit."). The "absolute disparity" approach measures the absolute numerical difference between the distinctive group's representation in the community population and the group's representation in the relevant jury pool. See Rioux, 97 F.3d at 655; United States v. Barlow, 732 F. Supp. 2d 1, 30- 31 (E.D.N.Y. 2010), aff'd 479 F. App'x 372, 373 (2d Cir. 2012). For example, if Blacks represented 10% of the community population but only 2% of the relevant jury pool, the "absolute disparity" would be 8%. There is no specific numerical threshold that constitutes unacceptable disparity under the "absolute disparity" method. "[P]erfectly proportional representation is not required, since no 70 The American Community Survey gathers demographic information in between the decennial census, and is published by the United States Census Bureau. (See Siskin Aff. at ¶ 18). The latest available data is the 2018 five-year survey combiningthe 2014,2015,2016, 2017,and 2018 survey data. (Id.). 208 EFTA00100175

source list will be an exact statistical mirror of the community." United States v. Guzman, 337 F. Supp. 140, 143 (S.D.N.Y. 1972); see also Taylor, 419 U.S. at 538. The mere fact that a jury selection system is imperfect does not make it invalid. Swain v. Alabama, 380 U.S. 202, 209 (1965) (overruled on other grounds). Accordingly, the Second Circuit has found that absolute disparities as high as nearly 5% fail to establish a prima facie case of underrepresentation. See, e.g., Biaggi, 909 F.2d at 677-78 (3.6% for Blacks and 4.7% for Hispanics); United States v. Ramnath, 131 F.3d 132, 132 (2d Cir. 1997) (3.45% for African-Americans and 4.87% for Hispanics); see also Barlow, 732 F. Supp. 2d at 34-35 (collecting out-of-circuit cases rejecting claims presenting similar and even higher disparities)." Properly calculated, the "absolute disparity" in this case falls comfortably within the range deemed acceptable by the Second Circuit and other courts. As noted, the "relevant jury pool" is the White Plains Master Wheel, which is comprised of 11.20%Black or African-Americanpersons and 12.97% Latino or Hispanic persons. (Siskin Aff. at 128). The "community population" is the jury eligible population for the five counties from which the White Plains Master Wheel is drawn, which was comprised of 12.45% Black or African-American persons and 14.12% Hispanic or Latino persons in 2018. (Id. at¶ 19). This yields an "absolute disparity" of 1.25% for Black or African-American persons and 1.15% for Latino or Hispanic persons. (Id. at ¶ 28). That disparity does not rise to the level of satisfying the second prong of the Duren test. 71 In United States v. Jackman, the Second Circuit held that an absolute disparity of 2.5% for Black or African-American persons and 3.4% for Hispanic or Latino persons was sufficient to satisfy the second prong of the Duren test. 46 F.3d 1240 (2d Cir. 1995). The unique facts of Jackman make it readily distinguishable. The jury clerk in Jackman relied on a qualified jury wheel that was mostly drawn from a master jury wheel that completely excluded potential jurors from two cities in the Division—cities that accounted for 62.93% of the voting-age Black population and 68.09% of the voting-age Hispanic population in the division. See id. at 1242-44. This resulted in a venire comprised of no Black or African-American persons and one Hispanic or Latino person. Id. at 1244. See also id. at 1252 (Walker, J., dissenting) (stating that the majority's decision was "at odds with every decision in every circuit applying the Duren test"). 209 EFTA00100176

The result is the same even if the defendant's preferred relevant jury pool is used. The White Plains Qualified Wheel is comprised of 8.76% Black or African-American persons and 10.48% Latino or Hispanic persons. (Id. at 1 17; see also Martin Aff. at 1 55). This results in absolute disparities of 3.69% and 3.64%, respectively. These figures are also comfortably within the range that the Second Circuit has determined does not satisfy the second prong of the Duren test. Moreover, as discussed below, the factors that cause the disparity between the White Plains Qualified Wheel and the White Plains Master Jury Wheel, as well as the voting age population, are not the result of systematic exclusion. It is only by employing an apples-and-oranges method of comparing the White Plains Qualified Wheel to the jury eligible populations of the "Manhattan Division"or the entire Southern District that the defendant is able to identify disparities that might arguably satisfy the second prong of Duren. Because that method has no basis in the law, the defendant's claim fails at the second prong. b. Any Potential Underrepresentation Is Not Due to Systematic Exclusion Even assuming the defendant had satisfied the second prong of the Duren test—which she has not—she most certainly has not demonstrated that any underrepresentation is "due to systematic exclusion of the group in the jwy-selection process." Rioux, 97 F.3d at 654 (emphases added). That is, she cannot establish that the exclusion is the product of "the system of jury selection itself, rather than external forces." Id. at 658 (emphasis added). She therefore cannot satisfy the third prong of Duren. As then-District Judge Bianco explained, "systematic exclusion does not occur simply because a facially neutral disqualification criterion disproportionately impacts a particular group." Barlow, 732 F. Supp. 2d at 40; see also United States v. Barlow, 479 F. App'x 372, 373 (2d Cir. 210 EFTA00100177

2012) (affirming Judge Bianco's "thorough and well-reasoned" opinion). Indeed, "[a] selection process that is facially neutral is unlikely to demonstrate systematic exclusion."' United States v. Savage, 970 F.3d 217, 259 (3d Cir. 2020) (brackets in original) (quoting Howell v. Superintendent Rockview SCI, 939 F.3d 260, 269 (2d Cir. 2019)). Moreover, a defendant cannot "make out a prima facie case merely by pointing to a host of factors that, individually or in combination, might contribute to a group's underrepresentation." Bergintis, 559 U.S. at 332 (emphasis in original). Insofar as the underrepresentation here is measured by a comparison of the White Plains Qualified Wheel to the jury eligible population of the "Manhattan Division" or entire Southern District, the defendant's argument rests entirely on the prosecution's decision to pursue an indictment in White Plains rather than Manhattan. (Def. Mot. 9 at 7). That decision was entirely proper, as set forth above. See Section XI.C.1,supra. And even if it were the case that this decision resulted in substantial underrepresentation, it nevertheless does not amount to "systematic exclusion . . . in the filly-selection process." The prosecution's decision as to where to seek an indictment was based entirely on the availability of grand juries during a pandemic, which has nothing to do with the process by which the grand jury is selected. The defendant points to no other source of any supposed systemic exclusion of any identified group. Accordingly, the defendant's claim also fails at the third prong of Duren. 211 EFTA00100178

CONCLUSION For the foregoing reasons, the Court should deny all twelve of the defendant's pre-trial motions. Dated: New York, New York February 26, 2021 Respectfully submitted, AUDREY STRAUSS United States Attorney By: /s Assistant United States Attorneys (212) 637-2225 212 EFTA00100179