UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA S 120 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. x THE GOVERNMENT'S OMNIBUS MEMORANDUM IN OPPOSITION TO THE DEFENDANT'S PRE-TRIAL MOTIONS AUDREY STRAUSS United States Attorney Southern District of New York Attorney for the United States of America Assistant United States Attorneys - Of Counsel - EFTA00039421

TABLE OF CONTENTS PRELIMINARY STATEMENT 1 BACKGROUND 2 ARGUMENT 3 I. Jeffrey Epstein's Non-Prosecution Agreement Is Irrelevant to This Case 3 A. The NPA Does Not Bind the Southern District of New York 4 1. The Text of the Agreement Does Not Contain a Promise to Bind Other Districts 5 2. The Defendant Has Offered No Evidence That the NPA Binds Other Districts 9 B. The NPA Does Not Immunize Maxwell from Prosecution 15 1. The NPA Is Limited to Particular Crimes Between 2001 and 2007 15 2. The NPA Does Not Confer Enforceable Rights on Maxwell 17 C. The Defendant Has Offered No Basis for Additional Discovery or a Hearing 21 II. The Indictment Is Timely 23 A. Statutory Background 24 B. The 2003 Amendment to Section 3283 Applies Retroactively 26 1. The 2003 Amendment Satisfies Step One of Landgraf 28 2. The 2003 Amendment Satisfies Step Two of Landgraf 32 C. The Defendant's Crimes Involved the Sexual Abuse of Minors 36 III. The Defendant's Motion to Dismiss the Indictment Based on Alleged Improper Pre- Trial Delay Should Be Denied 41 A. The Defendant Has Failed to Demonstrate Actual and Substantial Prejudice 42 1. Applicable Law 42 2. Discussion 44 B. The Defendant Has Failed to Establish That the Government Delayed the Indictment for An Improper Purpose 52 1. Applicable Law 52 2. Discussion 54 IV. The Court Should Deny the Defendant's Motions to Suppress 59 A. Factual Background 61 1. The Civil Lawsuit against Maxwell 61 2. February 2016 Meeting 62 3. The April and July 2016 Depositions of Maxwell 64 4. The USAO-SDNY Commences the Instant Investigation in 2018 65 5. The USAO-SDNY's Subpoenas and Ex Pane Applications for Materials 66 6. Proceedings before Chief Judge McMahon 68 a. March 26, 2019 Hearing 68 b. April 9, 2019 Hearing 70 EFTA00039422

c. Chief Judge McMahon's Memorandum and Order 71 7. Magistrate Judge Netbum's Order 74 8. Unsealing of Maxwell's Depositions 74 9. The New York Daily News Article 75 B. The Defendant's Suppression Motion Should Be Denied 76 1. Martindell Provides No Basis to Grant the Relief the Defendant Seeks 76 a. Applicable Law 76 b. Discussion 79 2. Maxwell's Fourth Amendment Claim Fails 82 a. Maxwell Has Not Established Standing 82 i. Applicable Law 82 ii. Discussion 84 b. The Government Acted in Good Faith 86 i. Applicable Law 86 ii. Discussion 88 c. Suppression of Certain Materials Would Be Improper Under the Inevitable Discovery Doctrine 93 i. Applicable Law 93 ii. Discussion 94 3. The Defendant's Motion to Suppress Evidence Obtained Pursuant to the Subpoena Under the Fifth Amendment Is Without Merit 96 a. Applicable Law 96 i. The Fifth Amendment — Generally 96 ii. The Fifth Amendment — Act of Production Privilege 97 iii. The Fifth Amendment — When Private Action Is Deemed Government Action 98 b. Discussion 99 4. The Government Did Not Violate Maxwell's Due Process Rights 103 a. Applicable Law 104 b. Discussion 107 5. The Court Should Not Exercise Its Inherent Authority to Order Suppression 109 a. Applicable Law 109 b. Discussion 110 6. The Defendant Is Not Entitled to a Hearing 111 a. Applicable Law 112 b. Discussion 115 V. The Jury Should Decide Whether the Defendant Committed Perjury 116 A. Factual Background 117 B. Applicable Law 119 C. Discussion 122 1. April 2016 Deposition 123 2. July 2016 Deposition 129 3. Materiality 135 EFTA00039423

VI. Counts Five and Six Are Properly Joined and Should Not Be Severed 138 A. Applicable Law 138 B. Discussion 141 VII. The Indictment Contains the Elements of Each Offense and Provides the Defendant More Than Adequate Notice of the Charges Against Her 150 A. Applicable Law 150 B. Discussion 152 VIII. There Is No Basis to Strike Any Portion of the Indictment 157 A. Relevant Facts 158 B. Applicable Law 159 C. Discussion 161 IX. The Defendant's Motion to Dismiss Count One or Count Three as Multiplicitous Is Premature 169 A. Relevant Facts 169 B. Applicable Law 170 C. Discussion 172 X. The Defendant's Various Disclosure Motions Should be Denied 174 A. Bill of Particulars Is Not Warranted 174 1. Applicable Law 174 2. Discussion 178 B. The Defendant's Requests for Early Production of a Witness List and Jencks Act Material Should Be Denied 182 1. Applicable Law 182 2. Discussion 184 C. The Defendant's Additional Requests for Disclosure Should Be Denied 185 XI. The Use of a Grand Jury Siting in White Plains Was Entirely Proper 193 A. Background 194 1. The SDNY and Local Rules for the Division of Business 194 2. The SDNY Jury Plan 195 B. Applicable Law 197 C. Discussion 198 1. The Defendant Was Properly Indicted by a Grand Jury Sitting in White Plains 198 2. The Defendant's Fair Cross-Section Claim Is Meritless 205 a. The Defendant Has Not Established that Blacks or Hispanics Are Unfairly Represented 205 b. Any Potential Underrepresentation Is Not Due to Systematic Exclusion 210 CONCLUSION 212 iii EFTA00039424

EXHIBIT LIST Exhibit 1: Notes from the U.S. Attorney's Office for the Southern District of New York Exhibit 2: June 14, 2007 Email Exhibit 3: November 2020 Report, U.S. Department of Justice, Office of Professional Responsibility Exhibit 4: Notes from February 11, 2021 Call Exhibit 5: Notes from February 29, 2016 Meeting Exhibit 6: November 30, 2018 Email Exhibit 7: December 6, 2018 Email Exhibit 8: February 28, 2019 Government Letter to Judge Sweet Exhibit 9: February 28, 2019 Government Letter to Judge Netburn Exhibit 10: Transcript of April 22, 2016 Deposition Exhibit 11: Transcript of July 22, 2016 Deposition Exhibit 12: Affidavit of Dr. Bernard R. Siskin iv EFTA00039425

TABLE OF AUTHORITIES Cases Albright v. Oliver, 510 U.S. 266 (1993) Andover Data Servs., a Div. of Players Computer, Inc. v. Statistical Tabulating Corp., Page(s) 152 876 F.2d 1080 (2d Cir. 1989) 106, 119, 149 Arizona v. Youngblood, 488 U.S. 51 (1988) 76 Aronson v. K. Arakelian, Inc., 154 F.2d 231 (7th Cir. 1946) 19 Berghuis v. Smith, 559 U.S. 314 (2010) 299, 302 Blaszczak, 17 Cr. 357 (LAK) 275 Blissett v. Lefevre, 924 F.2d 434 (2d Cir. 1991) 158 Blum v. Yaretsky, 457 U.S. 991 (1982) 143 Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) 24 Botha v. Don King Productions, Inc., No. 97 Civ. 7587 (JGK), 1998 WL 88745 (S.D.N.Y. Feb. 27, 1998) 148 Boyd v. United States, 116 U.S. 616 (1886) 145 Branzburg v. Hayes, 408 U.S. 665 (1972) 110 Bridges v. United States, 346 U.S. 209 (1953) 53 Bronston v. United States, 409 U.S. 352 (1973) 181 Bryson v. United States, 396 U.S. 64 (1969) 147 Burgess v. United States, 552 U.S. 124 (2008) 51 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) 159 Carpenter v. United States, 138 S. Ct. 2206 passim Chambers v. Mississippi, 410 U.S. 284 (1973) 159 Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994) passim EFTA00039426

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) Colorado v. Connelly, 51 479 U.S. 157 (1986) 139, 141, 142 Colorado v. Spring, 479 U.S. 564 (1987) 138 County of Sacramento v. Lewis, 523 U.S. 833 (1998) 152 Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) 43 Davis v. United States, 564 U.S. 229 (2011) 122 Doe 1 v. United States, 359 F. Supp. 3d 1201 (S.D. Fla. 2019) 14 Doe No. 1. v. United States, 749 F.3d 999 (11th Cir. 2014) 173, 174, 176 Dowling v. United States, 493 U.S. 342 (1990) 76 Duren v. Missouri, 439 U.S. 357 (1979) 289, 296 Edwards v. Mazzuca, No. 00 Civ. 2290 (US), 2007 WL 2994449 (S.D.N.Y. Oct. 15, 2007) 234 Falter v. United States, 23 F.2d 420 (2d Cir. 1928) 45 Fisher v. United States, 425 U.S. 391 (1976) 140, 146 Flagg v. Yonkers Say. & Loan Ass 'n, 396 F.3d 178 (2d Cir. 2005) 143 Franks v. Delaware, 438 U.S. 154 (1978) 166, 169, 170, 171 Gatto, 17 Cr. 686 (LAK) 275 Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991) 125 Graham v. Connor, 490 U.S. 386 (1989) 151 Grant v. United States, 282 F.2d 165 (2d Cir. 1960) 164 Greer v. Miller, 483 U.S. 756 (1987) 158 Grunewald v. United States, 353 U.S. 391 (1957) 248 Hamling v. United States, 418 U.S. 87 (1974) 225, 227 vi EFTA00039427

Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968) 268 Herring v. United States, 555 U.S. 135 (2009) 123 Howell v. Superintendent Rockview SCI, 939 F.3d 260 (2d Cir. 2019) 302 Huddleston v. United States, 485 U.S. 681 (1988) 254 In re Enter. Mort. Acceptance Co. Sec. Litig. ("Enterprise", ), 391 F.3d 401 (2d Cir. 2004) 36,43,44 In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d 1221 (2d Cir. 1991) 108, 113 In re Grand Jury Subpoena Duces Tecum Dated Oct 29, 1992, 1 F.3d 87 (2d Cir. 1993) 140, 145 In re Grand Jury Subpoena, 826 F.2d 1166 (1987) 136 In re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir. 1988) 149 In re Three Grand Jury Subpoenas Duces Tecum Dated Jan. 29, 1999, 191 F.3d 173 (2d Cir. 1999) 139 In Re Three Grand Jury Subpoenas Jan. 5, 1988, 847 F.2d 1024 (2d Cir. 1988) 136 In re U.S., 834 F.2d 283 (2d Cir. 1987) 284 In re Various Grand Jury Subpoenas, 924 F. Supp. 2d 549 (S.D.N.Y. 2013), aff'd, 579 F. App'x 37 (2d Cir. 2014) 140 Int'l Equity !nvs., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ. 2745 (JGK) (RLE), 2010 WL 779314 (S.D.N.Y. Mar. 2, 2010) 111 Johnson v. United States, 520 U.S. 461 (1997) 200 Kungys v. United States, 485 U.S. 759 (1988) 222 Landgraf v. USI Film Products, 511 U.S. 244 (1994) 35,36, 41, 42 Leocal v. Ashcroft, 543 U.S. 1 (2004) 56, 57 Madanes v. Madanes, 186 F.R.D. 279 (S.D.N.Y. 1999) 141 Martindell v. Intl Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979) passim Martinez v. McAleenan, 385 F. Supp. 3d 349 (S.D.N.Y. 2019) 150, 151 Michigan v. Tucker, 417 U.S. 433 (1974) 137 vii EFTA00039428

Miller v. Pate, 386 U.S. 1 (1967) 157, 174, 175 Mills v. Scully, 826 F.2d 1192 (2d Cir. 1987) 158 Minnesota v. Mwphy, 465 U.S. 420 (1984) 144 Murray v. Met. Life Ins. Co., 583 F.3d 173 (2d Cir. 2009) 223 Nyhawan v. Holder, 557 U.S. 29 (2009) 56 Nix v. Williams, 467 U.S. 431 (1984) 132, 133 North Carolina v. Pearce, 395 U.S. 711 (1969) 259 Oregon v. Elstad, 470 U.S. 298 (1985) 139, 141 Palmieri v. State of N.Y., 779 F.2d 861 (2d Cir. 1985) 108, 112, 114 Rakas v. Illinois, 439 U.S. 128 (1978) 115, 116, 118 Ratzlaf v. United States, 510 U.S. 135 (1994) 165 Rawlings v. Kentucky, 448 U.S. 98 (1980) 116 Richardson v. Marsh, 481 U.S. 200 (1987) 212 Rivera v. United States, 928 F.2d 592 (2d Cir. 1991) 168, 172 Rochin, 342 U.S., 72 S. Ct. 205 153 Rosencrans v. United States, 165 U.S. 257 (1897) 296 Russell v. United States, 369 U.S. 749 (1962) 229 Rutenberg v. United States, 245 U.S. 480 (1918) 292 Salinas v. United States, 522 U.S. 52 (1997) 245 Santobello v. United States, No. 94 Cr. (RPP), 1998 WL 113950 (S.D.N.Y. Mar. 13, 1998) 21 Sch. Dist. No. 7, 167 F.3d 784 (2d Cir. 1999) 61 SEC v. 71eStreetcom, 273 F.3d 222 (2d Cir. 2001) 109, 113 viii EFTA00039429

Silver, 15 Cr. 93 (VEC) 275 Skelos, 15 Cr. 317 (KMW) 275 Smith v. Maryland, 442 U.S. 735 (1979) 117, 118 Stogner v. California, 539 U.S. 607 (2003) 45 Swain v. Alabama, 380 U.S. 202 (1965) 300 Taylor v. Louisiana, 419 U.S. 522 (1975) 299, 300 Taylor v. United States, 495 U.S. 575 (1990) 56 Thom v. Ashcroft, 369 F.3d 158 (2d Cir. 2004) 47 Toussie v. United States, 397 U.S. 112 (1970) 48 United State v. Nader, 425 F. Supp. 3d 619 (E.D. Va. 2019) passim United States v. Ahmed, 992 F. Supp. 682 (S.D.N.Y. 1998) 166 United States v. Ahmed, No. 10 Cr. 131 (PKC), 2011 WL 5041456 (S.D.N.Y. Oct. 21, 2011) 243 United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) 154 United States v. Alameh, 341 F.3d 167 (2d Cir. 2003) 77, 78, 81 United States v. Alberti, 568 F.2d 617 (2d Cir. 1977) 187 United States v. Aleman, 286 F.3d 86 (2d Cir. 2002) 27 United States v. Alfonso, 143 F.3d 772 (2d. Cir. 1998) 226 United States v. Amato, 15 F.3d 230 (2d Cir. 1994) 209 United States v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999) 222 United States v. Anderson, 747 F.3d 51 (2d Cir. 2014) 212 United States v. Anderson, 772 F.3d 969 (2d Cir. 2014) 162 United States v. Annabi, 10 Cr. 07 (CM) 286 ix EFTA00039430

United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) 5, 7, 8 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985), aff'd, 867 F.2d 1425 (2d Cir. 1988) 5 United States v. Arid, 12 Cr. 24 (LAP) 286 United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008) 151 United States v. Ash, 464 F. Supp. 3d 621 (S.D.N.Y. 2020) 145 United States v. Ashburn, 76 F. Supp. 3d 401 (E.D.N.Y. 2014) 126 United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003) 166, 168 United States v. Bahna, 68 F.3d 19 (2d Cir. 1995) passim United States v. Balde, 20 Cr. 281 (KPF) 298 United States v. Barlow, 732 F. Supp. 2d 1 (E.D.N.Y. 2010) 300 United States v. Barlow, 732 F. Supp. 2d 1 (E.D.N.Y. 2010), aff'd, 479 F. App'x 372 (2d Cir. 2012) 300, 302 United States v. Barnes, 520 F. Supp. 2d 510 (S.D.N.Y. 2007) 300 United States v. Batchelder, 442 U.S. 114 (1979) 265 United States v. Bejasa, 904 F.2d 137 (2d Cir. 1990) 274 United States v. Bellomo, 263 F. Supp. 2d 561 (E.D.N.Y. 2003) 268 United States v. Ben Zvi, 242 F.3d 89 (2d Cir. 2001) 41 United States v. Benussi, 216 F. Supp. 2d 299 (S.D.N.Y. 2002) 248, 250 United States v. Biaggi, 675 F. Supp. 790 (S.D.N.Y. 1987) 268 United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990) 298, 300 United States v. Bin Laden, 91 F. Supp. 2d 600 (S.D.N.Y. 2000) 240 United States v. Bfrney, 686 F.2d 102 (2d Cir. 1982) 61, 65 United States v. Buren, 470 F.2d 113 (2d Cir. 1972) 183 EFTA00039431

United States v. Blakney, 941 F.2d 114 (2d Cir. 1991) 205, 219 United States v. Blaszczak, 308 F. Supp. 3d 736 (S.D.N.Y. 2018) 279 United States v. Block, No. 16 Cr. 595 (JPO), 2017 WL 1608905 (S.D.N.Y. Apr. 28, 2017) 267 United States v. Bonacorsa, 528 F.2d 1218 (2d Cir. 1976) 180, 190, 197, 199 United States v. Bonventre, 646 F App'x 73 (2d Cir. 2016) 271 United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987) 266, 267, 274 United States v. Botti, No. 08 Cr. 230 (CSH), 2009 WL 3157582 (D. Conn. Sept. 25, 2009) 218 United States v. Brand, 467 F.3d 179 (2d Cir. 2006) 236 United States v. Brand, 556 F.2d 1312 (5th Cir. 1977) 75 United States v. Brand, No. 04 Cr. 194 (PKL), 2005 WL 77055 (S.D.N.Y. Jan. 12, 2005) 257 United States v. Broccolo, 797 F. Supp. 1185 (S.D.N.Y. 1992) 207, 214, 217 United States v. Brown, 744 F. Supp. 558 (S.D.N.Y. 1990) 170 United States v. Brown, 800 F. App'x 455 (9th Cir. 2020), cert denied, No. 20-5064, S.Ct. , 2021 WL 78235 (Jan. 11, 2021) United States v. Brown, 34, 39 No. 07-0296, 2008 WL 161146 (E.D. Pa. Jan. 16, 2008) 216 United States v. Brown, No. 99-1230, 2002 WL 34244994, at (2d Cir. Apr. 26, 2002) 6 United States v. Bruno, 159 F. Supp. 3d 311 (E.D.N.Y. 2016) 7 United States v. Bunn, 154 F. App'x 227 (2d Cir. 2005) 237 United States v. Burke, No. 09 Cr. 135 (SJ), 2011 WL 2609837 (E.D.N.Y. July I, 2011) 82 United States v. Butler, 351 F. Supp. 121 (S.D.N.Y. 2004) 243 United States v. Butler, No. 04 Cr. 340, 2004 WL 2274751 (S.D.N.Y. Oct. 7, 2004) 208, 211 United States v. Calandra, 414 U.S. 338 (1974) 110 United States v. Caming, 968 F.2d 232 (2d Cir. 1992) 165 xi EFTA00039432

United States v. Campo Flores, No. 15 Cr. 765 (PAC), 2016 WL 5946472 (S.D.N.Y. Oct. 12, 2016) 281, 282 United States v. Canfield, 212 F.3d 713 (2d Cir. 2000) 167 United States v. Canter, 338 F. Supp. 2d 460 (S.D.N.Y. 2004) 283 United States v. Carbonaro, No. 02 Cr. 743 (RCC), 2004 WL 2222145 (S.D.N.Y. Sept. 30, 2004) 83 United States v. Carpenter, 680 F.3d 1101 (9th Cir. 2012) 50 United States v. Carson, 464 F.2d 424 (2d Cir. 1972) 217, 219 United States v. CFW Const. Co., 583 F. Supp. 197 (D. S.C. 1984) 23 United States v. Chacko, 169 F.3d 140 (2d Cir. 1999) 259 United States v. Chalmers, 474 F. Supp. 2d 555 (S.D.N.Y. 2007) 225, 226 United States v. Chambers, 800 F. App'x 43 (2d Cir. 2020) 69 United States v. Chan Lo, No. 14 Cr. 491 (VSB), 2016 WL 9076234 (S.D.N.Y. Feb. 4, 2016), aff'd. 679 F. App'x 79 (2d Cir. 2017) United States v. Chen, 378 F.3d 151 (2d Cir. 2004) United States v. Cheung Kin Ping, 555 F.2d 1069 (2d Cir. 1977) United States v. Chuang, 183 271 68, 81 897 F.2d 646 (2d Cir. 1990) 115, 116 United States v. Coffey, 361 F. Supp. 2d 102 (E.D.N.Y. 2005) 228 United States v. Coke, No. 07 Cr. 971 (RPP), 2011 WL 3738969 (S.D.N.Y. Aug. 22, 2011) 153, 160, 163 United States v. Collins, 409 F. Supp. 3d 228 (S.D.N.Y. 2019) 278 United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992) 252 United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) 274 United States v. Corbett, 750 F.3d 245 (2d Cir. 2014) 137 United States v. Cornielle, 171 F.3d 748 (2d Cir. 1999) 60, 77, 78, 85 United States v. Corr, 543 F.2d 1042 (2d Cir. 1976) 181 xii EFTA00039433

United States v. Countentos, 651 F.3d 809 (8th Cir. 2011) 57, 58 United States v. Cromitie, 727 F.3d 194 (2d Cir. 2019) 154 United States v. Cromitie, et al., 09 Cr. 558 (CM) 286 United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) 75 United States v. D'Amico, 734 F. Supp. 2d 321 (S.D.N.Y. 2010) 268 United States v. Davis, 702 F.2d 418 (2d Cir. 1983) passim United States v. DeFilippo, No. 17 Cr. 585 (WHP), 2018 WL 740727 (S.D.N.Y. Jan. 31, 2018) 169 United States v. Delacruz, 970 F. Supp. 2d 199 (S.D.N.Y. 2013) 77 United States v. DePalma, 461 F. Supp. 778 (S.D.N.Y. 1978) 241, 250 United States v. Dewar, 489 F. Supp. 2d 351 (S.D.N.Y. 2007) 165 United States v. Diaz, 176 F.3d 52 (2d Cir. 1999) 251, 253 United States v. DiGregorio, 795 F. Supp. 630 (S.D.N.Y. 1992) 155 United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc) 54 United States v. Dornau, 356 F. Supp. 1091 (S.D.N.Y. 1973) 73 United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) 236 United States v. Drago, No. 18 Cr. 0394 (SW) (AYS), 2019 WL 3072288 (E.D.N.Y. July 15, 2019) 86 United States v. Dumitru, No. 18 Cr. 243 (LAK), 2018 WL 3407703 (S.D.N.Y. June 26, 2018) 261 United States v. Eldred, 933 F.3d 110 (2d Cir. 2019) 123 United States v. E!-Sadig, 133 F. Supp. 2d 600 (N.D. Ohio 2001) 23 United States v. Elsbery, 602 F.2d 1054 (2d Cir. 1979) 62, 72 United States v. Estrada, 320 F.3d 173 (2d Cir. 2003) 259 United States v. Ewell, 383 U.S. 116 (1966) 80 EFTA00039434

United States v. Falso, 544 F.3d 110 (2d Cir. 2008) United States v. Fanner, 137 F.3d 1265 (10th Cir. 1998) United States v. Feldman, 939 F.3d 182 (2d Cir. 2019) United States v. Fennell, 166, 169 179, 180 8, 20, 27 496 F. Supp. 2d 279 (S.D.N.Y. 2007) 284, 286 United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980) 255 United States v. Fiumano, No. 14 Cr. 518 (JFK), 2016 WL 1629356 (S.D.N.Y. Apr. 25, 2016) 70 United States v. Florence, 456 F.2d 46 (4th Cir. 1972) 293 United States v. Florida West Int'l Airways, Inc., 853 F. Supp. 2d 1209 (S.D. Fla. 2012) 23, 24 United States v. Forde, 740 F. Supp. 2d 406 (S.D.N.Y. 2010) passim United States v. Gallo, No. 98 Cr. (JGK), 1999 WL 9848 (S.D.N.Y. Jan. II, 1999) 275, 281 United States v. Gambino, 838 F. Supp. 744 (S.D.N.Y. 1993) 70 United States v. Gaudin, 515 U.S. 506 (1995) 182, 184, 200, 222 United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) 284 United States v. Gentile, 235 F. Supp. 3d 649 (D.N.J. 2017) 48 United States v. Ghailani, 751 F. Supp. 2d 502 (S.D.N.Y. 2010) 155 United States v. Ghavami, No. 10 Cr. 1217 (KMW), 2012 WL 2878126 (S.D.N.Y. July 13, 2012) 262 United States v. Gibson, 175 F. Supp. 2d 532 (S.D.N.Y. 2001) 268 United States v. Gilbert, 266 F.3d 1180 (9th Cir. 2001) 62 United States v. Gillette, 383 F.2d 843 (2d Cir. 1967) 165 United States v. Gonzalez, No. 00 Cr. 447, 2000 WL 1721171 85 United States v. Gottfried, 165 F.2d 360 (2d Cir. 1948) 292 United States v. Gracesqui, No. 10 Cr. 74 (PKC), 2015 WL 5231168 n.2 (S.D.N.Y. Sept. 8, 2015), aff'd, 730 F. App'x 25 (2d Cir. 2018) 209 xiv EFTA00039435

United States v. Green, 981 F.3d 945 (11th Cir. 2020) 124 United States v. Greer, 956 F. Supp. 525 (D. Vt. 1997) 72 United States v. GrWith, No. 99 Cr. (HB), 2000 WL 1253265 (S.D.N.Y. Sept. 5, 2000) 264 United States v. Guerrier, 18 Cr. 284 (JSR) 286 United States v. Guzman, 337 F. Supp. 140 (S.D.N.Y. 1972) 300 United States v. Halkbank, No. 15 Cr. 867 (RMB), 2020 WL 5849512 (S.D.N.Y. Oct. I, 2020) 261 United States v. Hallahan, 756 F.3d 962 (7th Cir. 2014) 19 United States v. Halper, 590 F.2d 422 (2d Cir. 1978) 216 United States v. Haqq, 278 F.3d 44 (2d Cir. 2002) 115 United States v. Harrison, 764 F. Supp. 29 (S.D.N.Y. 1991) 72 United States v. Hastings, 461 U.S. 499 (1983) 160 United States v. Heath, 455 F.3d 52 (2d Cir. 2006) 132, 133 United States v. Henderson, 337 F.3d 914 (7th Cir. 2003) 61, 62 United States v. Henry, 861 F. Supp. 1190 (S.D.N.Y. 1994) 269 United States v. Herbert, 698 F.2d 981 (9th Cir. 1983) 293 United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996) 242 United States v. Hester, No. 19 Cr. 324 (NSR), 2020 WL 3483702 (S.D.N.Y. June 26, 2020) 211 United States v. Heyward, No. 10 Cr. 84 (LTS), 2010 WL 4484642 (S.D.N.Y. Nov. 9, 2010) 154 United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978) 79 United States v. Hoo, 825 F.2d 667 (2d Cir. 1987) 78 United States v. Hsia, 24 F. Supp. 2d 14 (D.D.C. 1998) 249 United States v. lannelli, 461 F.2d 483 (2d Cir. 1972) 64 xv EFTA00039436

United States v. Israel, 05 Cr. 1039 (CM) 286 United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995) 300, 301 United States v. Jeffries, 405 F.3d 682 (8th Cir. 2005) 33, 37, 38, 46 United States v. Jenkins, 727 F. App'x 732 (2d Cir. 2018) 194 United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992) 162 United States v. Jimenez, 824 F. Supp. 351 (S.D.N.Y. 1993) 240, 268 United States v. Johns, 15 F.3d 740 (8th Cir. 1994) 37 United States v. Johnson, 21 F. Supp. 2d 329 (S.D.N.Y. 1998) 294 United States v. Jones, 482 F.3d 60 (2d Cir. 2006) 259 United States v. Josephberg, 459 F.3d 350 (2d Cir. 2006) passim United States v. Kaplan, 758 F. App'x 34 (2d Cir. 2018) 182 United States v. Kenny, 883 F. Supp. 869 (E.D.N.Y. 1995) 294 United States v. Kidd, 386 F. Supp.3d 364 (S.D.N.Y. 2019) 231, 232 United States v. King, 560 F.2d 122 (2d Cir. 1977) 64 United States v. Kozel, No. 19 Cr. 460 (KMW), 2020 WL 4751498 (S.D.N.Y. Aug. 17, 2020) 236 United States v. Kross, 14 F.3d 751 (2d Cir. 1994) 183, 221, 222 United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004) 254 United States v. Lahey, 967 F. Supp. 2d 698 (S.D.N.Y. 2013) 168 United States v. Lambus, 897 F.3d 368 (2d Cir. 2018) passim United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y. 1988) 8 United States v. Laskow, 688 F. Supp. 851 (E.D.N.Y. 1988) (tbl.) 5 United States v. Laurenti, 581 F.2d 37 (2d Cir. 1978) 79 xvi EFTA00039437

United States v. Lawson, 683 F.2d 688 (2d Cir. 1982) United States v. Leo Sure Chief 438 F.3d 920 (9th Cir. 2006) United States v. Leon, 468 U.S. 897 (1984) 60, 78 33, 38, 46 124, 125 United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977) 268 United States v. Levy, No. II Cr. 62 (PAC), 2013 WL 664712 (S.D.N.Y. Feb. 25, 2013) 267 United States v. Lighte, 782 F.2d 367 (2d Cir. 1986) passim United States v. Loera, 333 F. Supp. 3d 172 (E.D.N.Y. 2018) 152 United States v. Long, 697 F. Supp. 651 (S.D.N.Y. 1988) 65 United States v. Lopez, 944 F.2d 33 (1st Cir. 1991) 21, 26 United States v. Lovasco, 431 U.S. 783 (1977) 76, 79, 80, 82 United States v. Mahabub, No. 13 Cr. 908 (MN), 2014 WL 4243657 (S.D.N.Y. Aug. 26, 2014) 266, 268, 269 United States v. Mandell, 710 F. Supp. 2d 368 (S.D.N.Y. 2010) 267 United States v. Marcus, 628 F.3d 36 (2d Cir. 2010) 248 United States v. Mariamma Vijua, No. 15 Cr. 240, 2016 WL 107841 (N.D. Tex. Jan. 11, 2016) 22 United States v. Marion, 404 U.S. 307 (1971) 59, 63, 72 United States v. Markiewicz, 978 F.2d 786 (2d Cir. 1992) 178, 180, 187, 198 United States v. Martin, 426 F.3d 68 (2d Cir. 2005) 167 United States v. Martinez, No. 92 Cr. (SWK), 1993 WL 322768 (S.D.N.Y. Aug. 19, 1993) 216 United States v. Martinez, No. 94 Cr. (RPP), 1995 WL 10849 (S.D.N.Y. Jan. 12, 1995) 77 United States v. Mason, 479 F. App'x 397 (2d Cir. 2012) 248 United States v. Mast, 735 F.2d 745 (2d Cir. 1984) 144 United States v. McCourty, 562 F.3d 458 (2d Cir. 2009) 260 xvii EFTA00039438

United States v. McDarrah, 351 F. App'x 558 (2d Cir. 2009) 257 United States v. Medina, No. 13 Cr. 272 (PGG), 2014 WL 3057917 (S.D.N.Y. July 7, 2014) 261 United States v. Miller, 116 F.3d 641 (2d Cir. 1997) 252, 292 United States v. Miller, 425 U.S. 435 (1976) 116, 117, 119 United States v. Miller, 911 F.3d 638 (1st Cir. 2018) 44 United States v. Ming He, 94 F.3d 782 (2d Cir. 1996) 161 United States v. Mitan, No. 08-760, 2009 WL 2328870 (E.D. Pa. July 28, 2009) 218 United States v. Mitchell, 966 F.2d 92 (2d Cir. 1992) 144 United States v. Mitlof, 165 F. Supp. 2d 558 (S.D.N.Y. 2001) 268 United States v. Monserrate, No. 10 Cr. 965 (CM), 2011 WL 3480957 (S.D.N.Y. Aug. 4, 2011) 267 United States v. Montoya-Eschevarria, 892 F. Supp. 104 (S.D.N.Y. 1995) 118 United States v. Moore, 968 F.2d 216 (2d Cir. 1992) 125 United States v. Morgan, 113 F.3d 1230, 1997 WL 268712 (2d Cir. 1997) (unpublished opinion) 45 United States v. Mostafa, 965 F. Supp. 2d 451 (S.D.N.Y. 2013) 242, 243, 247, 262 United States v. Mulder, 273 F.3d 91 (2d Cir. 2001) 241, 242 United States v. Mullens, 536 F.2d 997 (2d Cir. 1976) 139 United States v. Murgio, 209 F. Supp. 3d 698 (S.D.N.Y. 2016) 231, 241, 247 United States v. Muric, No. 10 Cr. 112 (LTS), 2010 WL 2891178 (S.D.N.Y. July 13, 2010) 86 United States v. Myers, 692 F.2d 823 (2d Cir. 1982) 153, 161 United States v. Napolitano, 552 F. Supp. 465 (S.D.N.Y. 1982) 241 United States v. Nejad, No. 18 Cr. 224 (MN), 2019 WL 6702361 (S.D.N.Y. Dec. 9, 2019) 225 United States v. Nemesian, 824 F.2d 1294 (2d Cir. 1987) 233 xviii EFTA00039439

United States v. Nitsche, 843 F. Supp. 2d 4 (D.D.C. 2011) 201, 202 United States v. Nixon, 418 U.S. 683 (1974) 282 United States v. Noble, No. 07 Cr. 284 (RJS), 2008 WL 140966 (S.D.N.Y. Jan. 11, 2008) 164 United States v. Okwumabua, 828 F.2d 950 (2d Cir. 1987) 138 United States v. Olivieri, 740 F. Supp. 2d 423 (S.D.N.Y. 2010) 146 United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988) 147, 148 United States v. Page, 657 F.3d 126 (2d Cir. 2011) 205, 209, 210, 220 United States v. Pascarella, 84 F.3d 61 (2d Cir. 1996) 252 United States v. Paulin, 445 F.3d 211 (2d Cir. 2006) 253 United States v. Payner, 447 U.S. 727 (1980) 115, 161, 162 United States v. Pena, 932 F. Supp. 2d 464 (S.D.N.Y. 2013) 221 United States v. Perez, 940 F. Supp. 540 (S.D.N.Y.I996) 281 United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140 (S.D.N.Y. Aug. 9, 2018) passim United States v. Pipola, 83 F.3d 556 (2d Cir. 1996) 253 United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) 229 United States v. Pizarro, No. 17 Cr. 151 (MN), 2018 WL 1737236 (S.D.N.Y. Apr. 10, 2018) passim United States v. Plaza-Andrades, 507 F. App'x 22 (2d Cir. 2013) 291 United States v. Polos, 723 F. App'x 64 (2d Cir. 2018) 195 United States v. Post, 950 F. Supp. 2d 519 (S.D.N.Y. 2013) 226 United States v. Potamitis, 739 F.2d 784 (2d Cir. 1984) passim United States v. Prisco, 391 F. App'x 920 (2d Cir. 2010) 4 United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) 251 xix EFTA00039440

United States v. Rahimi, No. 16 Cr. 760 (RMB), 2017 WL 2984169 (S.D.N.Y. June 22, 2017) 225 United States v. Rahman, 189 F.3d 88 (2d Cir. 1999) 154 United States v. Rajaratnam, No. 09 Cr. 1184 (RJH), 2010 WL 4867402 (S.D.N.Y. Nov. 24, 2010) 172 United States v. Ramnath, 131 F.3d 132 (2d Cir. 1997) 300 United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015) 124 United States v. Reeves, et al., 16 Cr. 372 (VEC) 286 United States v. Remington, 208 F.2d 567 (2d Cir. 1953) 146 United States v. Resendiz-Ponce, 549 U.S. 102 (2007) 227, 235 United States v. Ricco, 549 F.2d 264 (2d Cir. 1977) 61 United States v. Richardson, 512 F.2d 105 (3d Cir. 1975) 49 United States v. Richardson, 537 F.3d 951 (8th Cir. 2008) 293 United States v. Rioux, 930 F. Supp. 1558 (D. Conn. 1995) 297, 298 United States v. Rioux, 97 F.3d 648 (2d Cir. 1996) passim United States v. Rittweger, 259 F. Supp. 2d 275 (S.D.N.Y. 2003) 268 United States v. Rivera, 546 F.3d 245 (2d Cir. 2008) 204, 220, 224 United States v. Rivera, No. 09 Cr. 619 (SJF), 2011 WL 1429125, at (E.D.N.Y. Apr. 13, 2011) 262 United States v. Rivera, No. 16 Cr. 175 (LGS), 2017 WL 1843302 (S.D.N.Y. May 8, 2017) 274 United States v. Roberts, 660 F.3d 149 (2d Cir. 2011) 138 United States v. Roberts, 852 F.2d 671 (2d Cir. 1988) 132 United States v. Rolan-Zapata, 916 F.2d 795 (2d Cir. 1990) 256 United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) 253 United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) 123 xx EFTA00039441

United States v. Rubin, 609 F.2d 51 (2d Cir. 1979) 61 United States v. Rubinson, 543 F.2d 951 (2d Cir. 1976) 81 United States v. Ruiz, 702 F. Supp. 1066 (S.D.N.Y. 1989) 214 United States v. Ruiz, 894 F.2d 501 (2d Cir. 1990) 207, 213, 214, 217 United States v. Russo, 483 F. Supp. 2d 301 (S.D.N.Y. 2007) 274, 282 United States v. Russo, 801 F.2d 624 (2d Cir. 1986) 5, 11 United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007) 248 United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) 5, 6, 245 United States v. Salerno, 481 U.S. 739 (1987) 151 United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) 247, 249 United States v. Sampson, 385 F.3d 183 (2d Cir. 2004) 208 United States v. Sampson, 898 F.3d 270 (2d Cir. 2018) 200, 201 United States v. Sampson, 898 F.3d 287 (2d Cir. 2018) 177, 178, 188 United States v. Samsonov, No. 07 Cr. 1198 (CM), 2009 WL 176721 (S.D.N.Y. Jan. 23, 2009) 269 United States v. Santiago, 987 F. Supp. 2d 465 (S.D.N.Y. 2013) 75 United States v. Sarwari, 669 F.3d 401 (4th Cir. 2012) 179, 180 United States v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003) 27 United States v. Savage, 970 F.3d 217 (3d Cir. 2020) 302 United States v. Scala, 388 F. Supp. 2d 396 (S.D.N.Y. 2005) 67, 68, 71 United States v. Scaipa, 897 F.2d 63 (2d Cir. 1990) 69 United States v. Scaipa, 913 F.2d 993 (2d Cir. 1990) passim United States v. Schaefer, No. 17 Cr. 400 (HZ), 2019 WL 267711 (D. Or. Jan. 17. 2019) 121 xxi EFTA00039442

United States v. Schafrick, 871 F.2d 300 (2d Cir. 1989) 182 United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) 153, 154 United States v. Schneider, 801 F.3d 186 (3d Cir. 2015) 51,52,54,57 United States v. Seabrook, No. 10 Cr. 87 (DAB), 2010 WL 5174353 (S.D.N.Y. Dec. 14, 2010) 282 United States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484 (D. Conn. June 7, 2010) 34, 52 United States v. Sergentakis, No. 05 Cr. 230 (JFK), 2005 WL 1994014 (S.D.N.Y. Aug. 17, 2005) 275 United States v. Serrano, No. 13 Cr. 58 (KBF), 2014 WL 2696569 (S.D.N.Y. June 10, 2014) 126 United States v. Shaw, 260 F. Supp. 2d 567 (E.D.N.Y. 2003) 165, 171 United States v. Sliker, 751 F.2d 477 (2d Cir. 1984) 255 United States v. Smith, 985 F. Supp. 2d 547 (S.D.N.Y. 2014) 241, 243, 247 United States v. Smith, No. 05 Cr. 922 (DLC), 2007 WL 980431 (S.D.N.Y. Apr. 3, 2007), affd, F. App'x 636 (2d Cir. 2009) United States v. Snyder, 668 F.2d 686 (2d Cir. 1982) United States v. Soares, 66 F. Supp. 2d 391 (E.D.N.Y. 1999) United States v. Spears, 206 63, 78 295 159 F.3d 1081 (7th Cir. 1999) 62, 66, 67 United States v. Sprouts, 282 F.3d 1037 (8th Cir. 2002) 63 United States v. Stavroulakis, 952 F.2d 686 (2d Cir. 1992) 225, 233 United States v. Stein, 456 F.2d 844 (2d Cir. 1972) 68 United States v. Stein, 541 F.3d 130 (2d Cir. 2008) 142, 143 United States v. Stokes, 733 F.3d 438 (2d Cir. 2013) 124, 132 United States v. Stringer, 730 E 3d 120 (2d Cir. 2013) 228, 229, 231 United States v. Strohm, 671 F.3d 1173 (10th Cir. 2011) 180, 190 United States v. Swanson, 210 F.3d 788 (7th Cir. 2000) 170 EFTA00039443

United States v. Sweig, 441 F.2d 114 (2d Cir. 1971) 207, 211, 217 United States v. Tanu, 589 F.2d 82 (2d Cir. 1978) 79 United States v. Thai, 29 F.3d 785 (2d Cir. 1994) 252 United States v. Thompson, 13 Cr. 378 (AJN), 2013 WL 6246489 (S.D.N.Y. Dec. 3, 2013) 281, 284 United States v. Thompson, 896 F.3d 155 (2d Cir. 2018) 236 United States v. Thompson, No. 13 Cr. 378 (MN), 2013 WL 6246489 (S.D.N.Y. Dec. 3, 2013) 274 United States v. Torres, 901 F.2d 205 (2d Cir. 1990) 266, 268, 271 United States v. Towne, 870 F.2d 880 (2d Cir. 1989) 251 United States v. Tracy, 12 F.3d 1186 (2d Cir. 1993) 283 United States v. Tram :::: ti, 513 F.2d 1087 (2d Cir. 1975) 225, 233 United States v. Tranquillo, 606 F. Supp. 2d 370 (S.D.N.Y. 2009) 284 United States v. Trippe, 171 F. Supp. 2d 230 (S.D.N.Y. 2001) 267 United States v. Triumph Capital Group, Inc., 237 F. App'x 625 (2d Cir. 2007) 184, 187 United States v. Turoff, 853 F.2d 1037 (2d Cir. 1988) 204 United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2014 WL 5090039 (S.D.N.Y. Oct. 10, 2014) 118, 275 United States v. Urena, 989 F. Supp. 2d 253 (S.D.N.Y. 2013) 28, 171 United States v. Valentine, 820 F.2d 565 (2d Cir. 1987) 156, 157, 158 United States v. Valona, 834 F.2d 1334 (7th Cir. 1987) 66 United States v. Vickers, 708 F. App'x 732 (2d Cir. 2017) 256 United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL 1838255 (W.D.N.Y. May 8, 2014) passim United States v. Vilar, No. 05 Cr. 621 (KMK), 2007 WL 1075041 (S.D.N.Y. Apr. 4, 2007) 169 United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990) 115 EFTA00039444

United States v. Walker, 191 F.3d 326 (2d Cir. 1999) 70 United States v. Walsh, 194 F.3d. 37 (2d Cir. 1999) 228, 266, 271 United States v. Walters, 910 F.3d 11 (2d Cir. 2018) 152 United States v. Washington, 431 U.S. 181 (1977) 136, 137, 138 United States v. Watson, 599 F.2d 1149 (2d Cir. 1979) 78 United States v. Wedd, No. 15 Cr. 616 (KBF), 2016 WL 1055737 (S.D.N.Y. Mar. 10, 2016) 271 United States v. Weiner, 479 F.2d 923 (2d Cir. 1973) 187 United States v. Werner, 620 F.2d 922 (2d Cir. 1980) 205, 206, 208, 223 United States v. Wey, No. 15 Cr. 611 (MN), 2017 WL 237651 n.8 (S.D.N.Y. Jan. 18, 2017) 85, 227, 229 United States v. Williams, 205 F.3d 23 (2d Cir. 2000) 70 United States v. Williams, No. 10 Cr. 622 (ADS), 2018 WL 4623017 (E.D.N.Y. Sept. 26, 2018) 123 United States v. Winter, 348 F.2d 204 (2d Cir. 1965) 146 United States v. Wong, 431 U.S. 174 (1977) 146 United States v. Wright, 343 F.3d 849 (6th Cir. 2003) 62 United States v. Ying Lin, No. 15 Cr. 601 (DLI), 2018 WL 5113139 (E.D.N.Y. Oct. 19, 2018) 206 United States v. Yonkers Contracting Co., Inc., 682 F. Supp. 757 (S.D.N.Y. 1988) 291 United States v. Young, 08 Cr. 285 (KMK), 2008 WL 4178190 (S.D.N.Y. Sept. 4, 2008) 235 United States v. Young, No. 08 Cr. 285 (KMK), 2008 WL 4178190 (S.D.N.Y. Sept. 4, 2008) 234 United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993) 253 United States v. Zodhiates, 901 F.3d 137 (2d Cir. 2018) 122, 126, 131 Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) 235 Vernon v. Cassadaga Valley Cent. School Dist., 49 F.3d 886 (2d Cir. 1995) 42, 43 xxiv EFTA00039445

Washington v. Glucksberg, 521 U.S. 702 (1997) Weingarten v. United States, 865 F.3d 48 (2d Cir. 2017) Zafiro v. United States, 506 U.S. 534 (1993) 209, 151 passim 210, 220 Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980) 293 Zietzke v. United States, 426 F. Supp. 3d 758 (W.D. Wash. 2019) 121 Statutes 18 U.S.C. §I623(a) 118 18 U.S.C. § 1591 152 18 U.S.C. § 1623 3, 115 18 U.S.C. § 2 2, 3 18 U.S.C. § 2243 155 18 U.S.C. § 2422 passim 18 U.S.C. § 2422(a) 17 18 U.S.C. § 2422(b) 17 18 U.S.C. § 2423 3, 151 18 U.S.C. § 2423(a) passim 18 U.S.C. § 2423(b) 17, 37 18 U.S.C. § 2423(e) 17 18 U.S.C. § 2703(c)(2) 87 18 U.S.C. § 2703(d) 88 18 U.S.C. § 3282 24, 35 18 U.S.C. § 3283 passim 18 U.S.C. § 3299 25 18 U.S.C. § 3500 181, 184 18 U.S.C. § 3500(a) 181 18 U.S.C. § 3500(b) 182 18 U.S.C. § 3509(a) 37 18 U.S.C. § 3509(a)(8) 36 18 U.S.C. § 3509(d) 152 18 U.S.C. § 3509(k) 24, 36 18 U.S.C. § 371 2, 151, 155, 168 18 U.S.C. § 3771 116 28 U.S.C.§ 112 192 28 U.S.C. § 112(b) 192, 200 28 U.S.C. § 1861 et seq. 193, 194 28 U.S.C. § 1863(a) 194 28 U.S.C. § I863(bX6) 195 28 U.S.C. § 1865(b) 194 xxv EFTA00039446

28 U.S.C. § 1869(e) 198, 200 28 U.S.C. § 81 192 New York Penal Law § 130.55 155 Pub. L. No. 101-647 24 Pub. L. No. 103-322 24 Pub. L. No. 108-21 25 Pub. L. No. 109-162 25 Pub. L. No. 109-248 25 Rules Fed. R. App. P. 4(a)(6) 99 Fed. R. Civ. P 56 153 Fed. R. Crim. P. 14(a) 157 Fed. R. Crim. P. 16 200 Fed. R. Crim. P. 21 221 Fed. R. Crim. P. 5(f) 206 Fed. R. Crim. P. 6(e) 88 Fed. R. Crim. P. 7 168 Fed. R. Crim. P. 7(c)(1) 168 Fed. R. Crim. P. 7(d) 177 Fed. R. Crim. P. 7(f) 192 Fed. R. Crim. P. 8(a) 156 Fed. R. Crim. P. 8(a) 156 Fed. R. Evid. 402 183 Fed. R. Evid. 403 183, 185 Fed. R. Evid. 404(b)(2) 184 Fed. R. Evid. 801 210 N.Y. R.P.C. 3.7(b) 166 Rule 14 157 Rule 404(b) 186 Other Authorities 149 Cong. Rec. S 5137 30 149 Cong. Rec. S 5147 30 H.R. Conf. Rep. No. 108-66 29 Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958) 130 Sexual Abuse Prosecutions, 77 J. Crim. L. & Criminology 1 (1986) 24 xxvi EFTA00039447

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA S 1 20 Cr. 330 (AJN) GHISLAINE MAXWELL, Defendant. x PRELIMINARY STATEMENT The Government respectfully submits this memorandum in opposition to the defendant's twelve pre-trial motions, dated January 25,2021 (the "Defense Motions"). In her pretrial motions, the defendant seeks to throw everything but the proverbial kitchen sink at the Indictment, raising myriad arguments that find little support in fact or law. For the reasons that follow, the motions should be denied in their entirety. First, the non-prosecution agreement between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of Florida is entirely irrelevant to this case, and the defendant's motion fails as a matter of law. Second, the indictment is timely under 18 U.S.C. § 3283, which provides an extended statute of limitations for crimes involving the sexual abuse of minors. The defendant's statute of limitations arguments run contrary to the text of the statute, the intent of Congress, and the weight of authority. Third, the defendant's claim that the Government delayed in bringing the indictment fails as a matter of law and fact. Fourth, both of the defendant's motions to suppress evidence obtained through a judicially approved subpoena are meritless, and her allegations of Government misconduct are baseless. Fifth, Counts Five and Six—which charge the defendant with committing perjury—are properly pleaded, and the defendant's motion to 1 EFTA00039448

dismiss those charges improperly asks the Court to adjudicate her guilt. It is for the jury to decide whether the defendant committed perjury, and the motion should be denied. Sixth, the crimes in the indictment should be tried together, as all six counts of the indictment are logically connected and provable through overlapping evidence. The Court should not sever this case, and thereby require victims of child sexual abuse to testify at multiple trials. Seventh, the Indictment indisputably alleges each element of every offense charged and provides the defendant with ample notice of the charges against her. Eighth, the Indictment is properly pled and there is no basis to strike any portion of it as surplusage. Ninth, the defense motion to dismiss one of the conspiracy charges as multiplicitous is premature. Tenth, the defendant is not entitled to a bill of particulars or any of the other early disclosures she seeks. Finally, the use of a grand jury sitting in White Plains to return the Indictment in this case was entirely proper. BACKGROUND On June 29, 2020, a grand jury sitting in this District returned an indictment charging the defendant in six counts. On July 2, 2020, the Federal Bureau of Investigation ("FBP") arrested the defendant. On July 8, 2020, a grand jury sitting in this District returned a superseding indictment (the "Indictment") containing the same charges, with ministerial corrections. (Dkt. No. 17). Count One of the Indictment charges the defendant with conspiring with Jeffrey Epstein and others to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371. Count Two charges the defendant with enticing a minor to travel to engage in illegal sex acts, and aiding and abetting the same, in violation 18 U.S.C. §§ 2422 and 2. Count Three charges the defendant with conspiring with Epstein and others to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371. Count Four charges the defendant with transporting minors to participate in 2 EFTA00039449

illegal sex acts, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2423 and 2. Counts Five and Six charge the defendant with perjury, in violation of 18 U.S.C. § 1623.1 ARGUMENT I. Jeffrey Epstein's Non-Prosecution Agreement Is Irrelevant to This Case The defendant seeks to dismiss the Indictment based on a 2007 non-prosecution agreement ("NPA") between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of Florida (the "USAO-SDFL"). (Def. Mot. I). She does so despite the fact that: (1) she did not negotiate the NPA, was not a party to the NPA, and her name is not contained anywhere in the document; and (2) her crimes are not identified or named in any way in the NPA. Essentially, the defendant claims she is immune from prosecution for any federal crime, during any time period, anywhere, in the United States, based on the language of a document that does not name her and which she did not sign. Moreover, she seeks to enforce the NPA against a U.S. Attorney's Office that did not negotiate the NPA and is not bound by it. The defendant's arguments are meritless, and the Court should reject them. As a threshold matter, under the well-settled law of this Circuit, the NPA is not enforceable in this District, because the USAO-SDFL's agreement with Jeffrey Epstein is not binding on the U.S. Attorney's Office for the Southern District of New York (the "USAO-SDNY"). Moreover, even if the NPA applied to this District—which it does not—the NPA does not immunize the defendant from prosecution for the crimes charged in the Indictment. Finally, because the defendant has failed to 1 As the Government has repeatedly indicated, the investigation into Jeffrey Epstein's co- conspirators remains ongoing. (See, e.g., Gov't Letter dated Aug. 21, 2020, Dkt. No. 46; Gov't Letter dated Oct. 6, 2020, Dkt. No. 60; Gov't Letter dated Oct. 20, 2020, Dkt. No. 65). To the extent that investigation results in additional charges against the defendant, the Government intends to seek any superseding indictment at least three months in advance of trial. The Government does not anticipate that any new charges would require the production of any additional discovery. 3 EFTA00039450

offer any evidence to support her claim that the NPA applies to this District, to the defendant, or to the crimes in the Indictment, the Court should deny the defendant's request for discovery and an evidentiary hearing. A. The NPA Does Not Bind the Southern District of New York As an initial matter, the NPA is not enforceable in this District. To the contrary, it is black- letter law in this Circuit that a plea agreement in one district does not apply elsewhere, in the absence of express indications not present here. Indeed, the Second Circuit has considered and rejected the exact arguments the defendant advances in her motion. The defendant's motion is without any basis in the law and should be denied. It is well settled in the Second Circuit that "a plea agreement in one U.S. Attorney's office does not, unless otherwise stated, bind another." United States v. Prisco, 391 F. App'x 920, 921 (2d Cir. 2010) (citing United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (per curiam) ("A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.")); United States v. Salamelz, 152 F.3d 88, 120 (2d Cir. 1998). This Circuit "presumes a narrow reading of the boundaries of a plea agreement unless a defendant can affirmatively establish that a more expansive interpretation was contemplated." United States v. Laskow, 688 F. Supp. 851, 854 (E.D.N.Y. 1988) (citing Annabi, 771 F.2d at 672), aff'd, 867 F.2d 1425 (2d Cir. 1988)(tbl.). To meet this burden, a defendant must establish that either the text of the agreement or the "negotiations between defendant and prosecutor" indicate a promise to bind other districts. United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986). For the reasons set forth below, the defendant has failed to establish that the USAO-SDFL promised Epstein that the NPA would bind other districts. 4 EFTA00039451

1. The Text of the Agreement Does Not Contain a Promise to Bind Other Districts Turning first to the text of the NPA, the terms of the agreement do not contain an "affirmative appearance" that the parties who signed the NPA intended to bind any other U.S. Attorney's Office. To begin with, there can be no dispute that only representatives of the USAO- SDFL signed the agreement. There is no signature block for, nor specific mention of, any other district or component of the Department of Justice. In her motion, the defendant argues that the words "United States" in the NPA evince an intent to bind the entire United States Government. (Def. Mot. 1 at 18). But the Second Circuit has rejected this very argument: "[t]he mere use of the term `government' in the plea agreement does not create an affirmative appearance that the agreement contemplated barring districts other than the particular district entering into the agreement." Salameh, 152 F.3d at 120 (citations and internal quotation marks omitted). This rule also extends to plea agreements that use the term "United States." See United States v. Brown, No. 99-1230, 2002 WL 34244994, at *2 (2d Cir. Apr. 26, 2002) (summary order) (plea agreement does not bind other districts "even if the plea agreement purports to bind `the Government' or the "United States"); United States v. Bruno, 159 F. Supp. 3d 311, 321 (E.D.N.Y. 2016) ("The Court disagrees with Defendant's argument that the phrase `United States' shows an intent to bind all United States Attorney's Offices. Rather, the plea agreement covers only Defendant's liability in the SDFL."). As the Second Circuit first explained in Annabi, plea agreements apply only in the district in which they are executed, absent evidence that the parties agreed to broader restrictions: As an original proposition, a plea agreement whereby a federal prosecutor agrees that `the Government' will dismiss counts of an indictment . . . might be thought to bar the United States from reprosecuting the dismissed charges in any judicial district unless the agreement expressly limits the scope of the agreement to the 5 EFTA00039452

district in which the dismissed charges are initially brought. However, the law has evolved to the contrary. A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction. Annabi, 771 F.2d at 672 (citations omitted). Thus, under Annabi and its progeny, a plea agreement only binds the U.S. Attorney's Office that executes the agreement, even if, as here, the agreement references "the Government" or "the United States" and even if the agreement lacks a provision that "expressly limits the scope of the agreement to the district" in which the agreement was entered.2 Confronted with this clear and controlling authority, the defendant's motion attempts to limit the rule of Annabi by noting that some decisions applying Annabi concerned plea agreements that also included express provisions limiting the enforceability of the agreements to the districts in which they were entered. (Def. Mot. 1 at 22). Essentially, the defendant argues that without an express provision limiting the scope of the agreement, every plea agreement should be interpreted to bind the entire federal government. But the law in this Circuit holds the opposite: the presumption is that a plea agreement in one district does not bind another, absent an affirmative appearance that the agreement extends more broadly. See Laskow, 688 F. Supp. at 854 ("Defendant's argument, in effect, is that unless there is an explicit statement to the contrary, it is presumed that a non-prosecution agreement binds offices of the United States Attorney that are 2 The defendant's motion emphasizes that the Second Circuit has held, as a general matter, that plea agreements are construed against the Government. (Def. Mot. 1. at 13). That does not carry the day here, as Annabi provides a specific mode of analysis for determining whether a plea agreement applies to other districts, and the defendant's motion fails under Annabi. More broadly, the authorities the defendant cites for this general principle arise from circumstances in which a defendant has sought to enforce his own a plea agreement against the Government. (See, e.g., Del Mot. 1 at 13 (citing United States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019) (analyzing claim by defendant seeking to enforce promises he claimed prosecutors had made to him)). Notably, the defendant has cited no authority for the proposition that plea agreements are to be construed in favor of a third party who was not involved in plea negotiations. 6 EFTA00039453

not parties to the agreement. This position is at odds with the law in this Circuit, which presumes a narrow reading of the boundaries of a plea agreement unless a defendant can affirmatively establish that a more expansive interpretation was contemplated.") (citing Annabi, 771 F.2d at 672). To hold otherwise would turn Annabi on its head. The defendant next argues that the following provision of the NPA evinces an intent to bind the entire federal government: In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova. NPA at 5; Def. Mot. 1 at 20-21. Aside from the reference to "United States" which, as noted above, is insufficient, the defendant does not point to any language in this provision that purportedly binds other districts. Instead, she argues that the absence of language specifically limiting this provision to the USAO-SDFL demonstrates an intent to bind the entire federal government. This argument fails, for at least three reasons. First, the defendant's argument inverts the holding of Annabi: in this Circuit, the presumption is that plea agreements bind only the district in which they are entered, absent affirmative indications otherwise. Put differently, the absence of express limiting language in this provision is not an affirmative indication of a broader application. Accordingly, under Second Circuit law, the absence of limiting language in this specific provision provides no support for the defendant's motion. Second, the defendant's argument acknowledges that the plain terms of the NPA immunized Epstein from prosecution in "this District," that is, the Southern District of Florida. See NPA at 2 ("After timely fulfilling all the terms and conditions of the Agreement, no 7 EFTA00039454

prosecution . . . will be instituted in this District"). In other words, the NPA was expressly limited to the USAO-SDFL.3 Given this provision, it would be unnatural to read a broader application to other districts—based on no textual indicia—into the provision relating to co-conspirators. Moreover, the defendant's reading of the NPA would require the Court to adopt the view that, where a plea agreement contains limiting terms, they must be repeated in every paragraph in order to have their natural and common-sense effects. Third, and perhaps most importantly, the defendant's interpretation strains common sense. In order to accept the defendant's arguments, the Court would have to reach the counterintuitive conclusion that Epstein expressly bargained for broader immunity for his co-conspirators than he did for himself. That is, under the defendant's reading of the agreement, Epstein bargained to protect co-conspirators nationally for crimes they committed with Epstein, but Epstein only sought protection for himself in the Southern District of Florida. The text of the agreement does not support such a puzzling interpretation. Instead, the more natural reading of the NPA is that its repeated references to the U.S. Attorney's Office and "this District" reflect a universal limitation on the NPA: it applies only to the USAO-SDFL. Finally, at several points in her motion, the defendant emphasizes that the NPA contains the word "global," but she does not appear to argue that this creates an affirmative appearance that the NPA binds other districts. (Def. Mot. 1 at 9, 12). Nor could she. The phrase "Epstein seeks to resolve globally his state and federal liability," by its terms, refers to Epstein's liability alone. See NPA at 2. Moreover, this language appears directly after several paragraphs describing investigations conducted by the Florida State Attorney's Office and the USAO-SDFL. See id. at 1-2. Thus, in this context, the terms "global" and "state and federal liability" plainly refer to 3 In fact, the NPA states that it was executed "on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida." NPA at 2. 8 EFTA00039455

prosecutions by those two offices, and only those two offices.4 The defendant therefore cannot argue that the word "global" in this provision means that the NPA binds the entire federal government. In sum, the defendant points to nothing in the text of the NPA that could possibly be construed to bind other districts. To the contrary, there are affirmative indications in the text that the NPA applies only to the USAO-SDFL. Accordingly, under Annahi, the NPA is only binding on the USAO-SDFL, and the defendant's motion fails as a matter of law. 2. The Defendant Has Offered No Evidence That the NPA Binds Other Districts Although a defendant may offer evidence that the negotiations between the prosecutor and defendant contained a promise to bind other districts, Russo, 801 F.2d at 626, the defendant has failed to do so here. The defendant's motion is replete with bare assertions and conclusory allegations, but it fails to point to any evidence that the NPA binds the USAO-SDNY. The lone document the defendant offers in support of her motion is a privilege log filed by the USAO-SDFL in connection with a lawsuit filed by Epstein's victims. (Def. Mot. 1 at 22). The log reflects that the FBI agents working with the USAO-SDFL interviewed witnesses in other states—including New York—during their investigation. That is entirely unremarkable, since federal investigations frequently involve gathering evidence in other states. This does not in any way establish the substantive involvement of any other districts in the prior investigation, let alone that the USAO-SDFL promised Epstein that the U.S. Attorney's offices in those states would be bound by the NPA. 4 Interpreting the term "federal liability" in this provision could not be read to encompass all U.S. Attorney's offices without also interpreting its neighboring term, "state . . liability," to refer to every state prosecutor's office in all fifty states. The USAO-SDFL clearly did not—and could not—make such a broad promise. 9 EFTA00039456

The privilege log also does not establish that the USAO-SDFL involved other U.S. Attorney's Offices in plea negotiations with Epstein. Grasping at straws, the defendant points to a notation in the privilege log, which contains an entry for handwritten notes, reflecting that the prosecutor in the USAO-SDFL spoke with an Assistant U.S. Attorney in New York. (Def. Mot. 1 at 22). The notes referenced in the privilege log are attached hereto as Exhibit 1. As the notes reflect, the prosecutor at the USAO-SDFL reached out to an Assistant U.S. Attorney at the USAO- SDNY to ask about a civil lawsuit relating to Epstein that was handled by the Civil Division of this Office in the 1990s. The Government is producing to defense counsel today emails that confirm that this was the nature of the contact.5 One of those emails is attached hereto as Exhibit 2 for the Court's reference. Put simply, those communications provide no indication that the USAO-SDNY was involved in plea negotiations with Epstein. Rather, the USAO-SDFL asked about an old civil case involving Epstein that an AUSA at the USAO-SDNY happened to handle years earlier. In sum, the privilege log in no way establishes that other districts were involved in negotiating the NPA, much less that Epstein was promised that the NPA would bind other districts. The defendant proffers no other documentary evidence beyond the privilege log. Instead, without any citation, she broadly alleges that "senior levels of Main Justice were directly involved in the negotiation and approval of the NPA." (Def. Mot. 1. at 22). This vague and unsworn allegation is not evidence. Moreover, any contacts between the USAO-SDFL and Main Justice 5 In response to the allegations raised by the defense's motion, the Government identified the underlying notes referenced in the privilege log. The Government is producing those underlying notes, as well as the relevant emails, to defense counsel today. The Government has also been informed by a human resources representative that payroll records reflect that the Assistant U.S. Attorney referenced in the privilege log left the USAO-SDNY on or about April 29, 2007, months before the NPA was executed. Although the Government has been informed that Human Resources records do not contain information regarding a division transfer, the Government understands from colleagues that the Assistant U.S. Attorney worked in the Civil Division in the 1990s and worked in the Criminal Division in the 2000s. 10 EFTA00039457

would not, without more, establish that the USAO-SDFL intended to bind other districts, much less that the USAO-SDFL communicated a promise to Epstein that the NPA would extend beyond the USAO-SDFL. The defendant's failure to offer any evidence is fatal to her claim. Although it is not the Government's burden to address and rebut every innuendo or conclusory statement in the defendant's motion, it is significant here that the circumstances of the NPA have been extensively litigated in a civil lawsuit, and have also been investigated by the Department of Justice's Office of Professional Responsibility ("OPR"), resulting in a report of OPR's findings (the "OPR Report).6 The records of both matters provide no support for the defendant's claims. The OPR Report notes that the USAO-SDFL periodically consulted with the Chief of the Department of Justice Child Exploitation and Obscenity Section ("CEOS"), Andrew Oosterbaan, during the investigation and plea discussions, and that the CEOS Chief attended a meeting with defense counsel, during which defense counsel made a pitch that Epstein should not be prosecuted. November 2020 Report, United States Department of Justice, Office of Professional Responsibility, at 61-62. However, although the line prosecutor, Maria Villafaiia, subsequently sent the CEOS Chief a draft of the NPA, the OPR Report reflects that the CEOS Chief reported to 6 The defendant's motion cites to the executive summary of the OPR Report. However, the entire report is publicly available, is attached as Exhibit 3 hereto, and has been widely reported on and published by the media. See, e.g., "Read the report: Investigation into the U.S. Attorney's Office for the Southern District of Florida's Resolution of Its 2006-2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation," Wash. Post (Nov. 12, 2020), hups://www.washingtonpost.corn/context/read-the-report-investigation-into-the-u-s- attomey-s-office-for-the-southem-district-of-florida-s-resolution-of-its-2006-2008-federal- criminal-investigation-of-jeffrey-epstein-and-its-interactions-with-victims-during-the- investigation/db9373e8-22f8-4712-b4a7-be844d162de0/. 11 EFTA00039458

OPR that "he did not recall having read the NPA at this juncture and `had no involvement with it.' OPR Report at 64 n. 105.7 Beyond this, the OPR Report and the record in the civil case note contacts with Main Justice about the NPA, but only after the NPA was negotiated, drafted, and signed. In the civil case, the district court detailed the history of the plea negotiations—and noted that, after the NPA was signed, Epstein's counsel appealed to officials in Washington, D.C., hoping to avoid enforcement of the NPA's requirement that Epstein plead guilty to state offenses, as the agreement required. Doe I v. United States, 359 F. Supp. 3d 1201, 1212-13 (S.D. Fla. 2019). As the district court noted, that appeal was rejected. Id. at 1213. In particular, and following the execution of the NPA, the report reflects that the USAO- SDFL contacted the CEOS Chief in connection with a letter from Epstein's counsel, Kenneth Starr, protesting about complying with certain parts of the NPA. OPR Report at 95. According to the report: At the same time, at [USAO-SDFL supervisor] Lourie's request, Villafafta sent the NPA and its addendum to Lourie and Oosterbaan. Oosterbaan responded to Lourie that he was "not thrilled" about the NPA; described Epstein's conduct as unusually "egregious," particularly because of its serial nature; and observed that the NPA was "pretty advantageous for the defendant and not all that helpful to the victims." He opined, however, that the Assistant Attorney General would not and should not consider or address the NPA "other than to say that she agrees with it." During her OPR interview, [Assistant Attorney General] Fisher did not recall reading Starr's letter or discussing it with Oosterbaan, but believed the comment about her "agree[ing] with it" referred to a federal prosecution of Epstein, which she believed was appropriate. She told OPR, however, that she "played no role in" the NPA and did not review or approve the agreement either before or after it was signed. The OPR Report further reflects that, at the time, a supervisor at the USAO-SDFL noted the CEOS had "no approval authority." OPR Report at 60. 12 EFTA00039459

OPR Report at 95. The OPR Report further notes that, thereafter, Epstein sought to avoid complying with the NPA entirely, and his attorneys appealed to Main Justice in the hopes of voiding the agreement. OPR Report at 94-108. That appeal was not successful. Id. In any event, the involvement of Main Justice alone would not begin to establish the very different proposition that Main Justice viewed the NPA as binding any district other than USAO-SDFL, let alone specifically considered and approved such an outcome, or communicated such a promise to Epstein. Further still, the record in the civil case makes clear that the USAO-SDFL's position was that the NPA did not bind other districts. In a July 5, 2013 brief, the USAO-SDFL stated: [T]he Non-Prosecution agreement simply obligated the government not to prosecute Epstein in the Southern District of Florida for the offenses set forth in the Non-Prosecution Agreement. The Non- Prosecution Agreement does not bar the United States from bringing federal criminal charges against Epstein for the offenses set forth in the Non-Prosecution Agreement in any other district in the nation. Neither does the Non-Prosecution Agreement bar prosecution in any district for offenses not identified in the agreement. Government Brief, 08 Civ. 80736 (KAM), Dkt. No. 205-2, at 10-11 (S.D. Fla.) (emphasis in original); see also OPR Report at 81, n.125 (observing that a supervisor at the USAO-SDFL "pointed out that the NPA was not a `global resolution' and other co-conspirators could have been prosecuted `by any other [U.S. Attorney's] office in the country."). As the USAO-SDFL has explained, the NPA did not bind other districts, and could not. That is because the USAO-SDFL lacked the authority to do so under applicable Department of Justice guidelines: Significantly, under the governing provision of the United States Attorney's Manual, the USAO-SDFL did not have the authority to unilaterally bar Epstein's prosecution in any other district in the country: `No district or division shall make any agreement, 13 EFTA00039460

including any agreement not to prosecute, which purports to bind any other district(s) or division without the express written approval of the United States Attomey(s) in each affected district and/or the Assistant Attorney General of the Criminal Division.' Government Brief, 08 Civ. 80736 (KAM), Dkt. No. 205-2, at 11 n. I I (S.D. Fla.) (quoting United States Attorney's Manual, 9-27.641 (Multi-District (Global) Agreement Requests)). Significantly, this brief was signed by the same prosecutor who negotiated and signed the NPA. Id. Although the defendant makes the sweeping, self-serving, and unsupported allegation that "the government had every reason to foresee a potential prosecution of Epstein's co-conspirators in this District and, after multiple layers of review within the Department of Justice, intended to agree to preclude it," the USAO-SDFL's brief says otherwise. (Def. Mot. 1 at 22). Further still, the record developed in both civil litigation and OPR's investigation does not support this claim. at As the foregoing makes clear, the defendant has failed to produce any evidence that the USAO- SDFL promised Epstein that other districts would be bound by the NPA. There is no "affirmative appearance" that the NPA binds other districts, and the motion should be denied. Under Annabi and its progeny, the defendant has failed to establish that the NPA binds other districts. For this reason alone, the defendant's motion should be dismissed, in keeping with the well-established law in this Circuit.8 8 In her motion, the defendant asks this Court to apply a bizarre and unprecedented choice-of- federal-law doctrine, under which the defendant asks the Court to apply non-existent rulings from the Eleventh Circuit on an issue that Court does not appear to have reached. (Def. Mot. 1 at 23- 25). This argument has no legal foundation, and the defendant offers no authority for the proposition that federal plea agreements are governed by the choice of law principles that apply to conflicting state laws. Annabi is the binding law of this Circuit, and this Court must apply it. 14 EFTA00039461

B. The NPA Does Not Immunize Maxwell from Prosecution Even if the NPA bound this District—which it does not—the NPA provides no basis for dismissing the Indictment. The NPA does not protect the defendant for at least two reasons. First, the text of the NPA specifically limits the scope of the NPA to certain federal crimes committed between 2001 and 2007, and thus the NPA does not apply to the distinct offenses and time periods charged in the Indictment. Second, the NPA does not protect the defendant at all, because the mere use of the word "co-conspirator" does not establish that the defendant was among the class of persons contemplated by the agreement, much less that the defendant has standing to enforce it. 1. The NPA Is Limited to Particular Crimes Between 2001 and 2007 Contrary to the defendant's assertions, the NPA did not provide carte blanche immunity to Epstein or his "co-conspirators." In fact, the NPA contains detailed provisions that limit the scope of the crimes immunized in the agreement. The NPA begins by outlining the scope of the USAO-SDFL investigation. delineating the timeframe of the offense conduct under investigation ("from in or around 2001 through in or around September 2007"), and listing each and every statutory offense under investigation. NPA at 1. The NPA does this for a reason, because these terms are later used in the agreement to set the boundaries of immunity. In particular, the agreement provides: [N]o prosecution for the offenses set out on pages 1 and 2 of this agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. NPA at 2. Thus, the NPA barred the USAO-SDFL from prosecuting Epstein for the specific 15 EFTA00039462

offenses enumerated in the NPA.9 While these same limitations are not repeated in the provision that purports to immunize "co-conspirators," these limitations apply with equal force across the agreement, because that is the only common-sense way to read the NPA. Indeed, and as noted above in a related context, it would be exceedingly strange to interpret the "co-conspirator" provision to extend broader immunity than Epstein negotiated for himself. The defendant may assert that the "co-conspirator" provision has absolutely no limitations, but such an argument would lead to absurd results. In particular, in arguing that the "co- conspirator" provision lacks any temporal or statutory limitations whatsoever, the defendant seems to claim that the NPA immunized her for future crimes including, for example, perjury offenses that she is charged with committing almost a decade after the NPA was executed. (Def. Mot. 1 at 32 ("For the foregoing reasons, Ms. Maxwell respectfully requests that the Court dismiss the indictment.")). Although the defendant does not highlight this point in her motion—perhaps recognizing how absurd it would be—that is the natural consequence of her illogical interpretation of the NPA. Despite advancing an argument that strains common sense, the defendant cites no case in which a court has interpreted a plea agreement to bar prosecution for crimes that pre- or post-dated the period covered by the agreement. The Government is aware of no such authority. See United States v. Hallahan, 756 F.3d 962, 974 (7th Cir. 2014) (rejecting defense argument that plea agreement barred prosecution for subsequent bail jumping, and, in interpreting the 9 By its plain terms, the NPA did not immunize Epstein for his "background," as the defendant suggests. (Def. Mot. 1 at 27). This provision refers, instead, to a list of "offenses" under federal law. Indeed, it is unclear how any plea agreement could immunize a defendant's "background." Similarly, the fact that the USAO-SDFL interviewed Minor Victim-2 does not mean that this case "arose out of" the USAO-SDFL investigation, an assertion the defendant's motion does not explain or support with evidence. As the Indictment makes clear, the events underpinning the Indictment involve multiple victims and specific legal charges that were not within the scope of the USAO- SDFL investigation. As discussed in greater detail below, Minor Victim- I and Minor Victim-3 were never interviewed by the USAO-SDFL, and they did not agree to speak with law enforcement until 2019. 16 EFTA00039463

Government's promises in the plea agreement to only cover past crimes, observing that "not limiting the prohibition to past crimes would make it absurd and probably illegal") (citing Aronson v. K. Arakelian, Inc., 154 F.2d 231, 233 (7th Cir. 1946) ("[A] contract will not be presumed to have imposed an absurd or impossible condition on one of the parties, but will be interpreted as the parties must be supposed to have understood the conditions at the time.")). Finally, the defendant claims that the NPA covers all violations of the Mann Act. (Def. Mot. 1 at 26 n.4). Not so. The NPA lists specific statutory provisions within the Mann Act, but none of the provisions contained in the Indictment. In particular, the NPA expressly covers violations of 18 U.S.C. §§ 2422(b), 2423(b), and 2423(e), but it does not include the particular provisions charged in the Indictment against Maxwell, which alleges violations of §§ 2422(a) and 2423(a). These are plainly not the same crimes, and a plea agreement cannot be read to immunize unnamed crimes in the general ballpark of the specific crimes enumerated in the agreement. The defendant cites no authority that supports her overbroad reading of this provision. Accordingly, the NPA immunizes only certain, specific offenses, none of which are contained in the Indictment. As a result, the defendant cannot invoke the NPA to seek the dismissal of the Indictment. 2. The NPA Does Not Confer Enforceable Rights on Maxwell Even if this Court were to construe the NPA beyond its plain terms to preclude prosecutions for the crimes contained in the Indictment, the defendant has established neither that those protections extend to Maxwell specifically, nor that she has standing to pursue those protections. The defendant asks this Court to interpret the NPA according to contract principles, and accord the defendant standing to enforce the NPA as a third party beneficiary. As a general matter, plea agreements are interpreted using principles from contract law, but that maxim is not without 17 EFTA00039464

limitations. As the defendant's motion recognizes, the Second Circuit has emphasized that plea agreements differ from commercial contracts in meaningful respects. (Def. Mot. 1 at 30 (citing United States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019) ("[W]hile the district court's analysis might have been compelling with respect to a contract arising out of commercial negotiations among private parties, we believe the court did not correctly apply the standards that govern the interpretation of plea agreements with the government. We have long recognized that plea agreements are significantly different from commercial contracts."))). Accordingly, although the third party beneficiary doctrine is a tenet of contract law, its application to plea agreements under federal law is a separate question. The defendant correctly notes that plea agreements may address leniency for third parties. (Def. Mot. 1 at 15). However, it does not necessarily follow that a third party may enforce such a promise. Indeed, it is far from clear that, under federal law, a third party may enforce a plea agreement. At least one court in this Circuit has noted the absence of authority that a third party has standing to enforce another individual's plea agreement. See Santobello v. United States, No. 94 Cr. 119 (RPP), 1998 WL 113950, at *3 (S.D.N.Y. Mar. 13, 1998) ("Even if Santobello could establish the existence of plea agreements between the Government and his co-defendants, there is little known authority that would allow him to enforce the agreements as a third party beneficiary.") (citing United States v. Lopez, 944 F.2d 33, 36-37 (1st Cir. 1991)). Following this logic, at least one court has concluded that third parties lack standing to enforce plea agreements. In United States v. Mariamma Viju, the defendant claimed that the Government had entered into a plea agreement with her husband, under which the Government had promised not to prosecute her. No. 15 Cr. 240, 2016 WL 107841, at *1 (N.D. Tex. Jan. 11, 2016). Observing that the principles governing interpretation of plea agreements diverge in many 18 EFTA00039465

respects from those underlying contract law, the district court concluded that "third-party beneficiaries have no contractual right to enforce plea agreements." Id. at '3-4. The court reasoned, "[t]he right to enforce a plea deal does not exist for its own sake; rather, it is a means to achieve fairness in plea bargaining." Id. at '4. That is because a defendant has the right to enforce his plea agreement, and "enforcement by third parties adds nothing to protecting the defendant's right." Id. The same holds true here. In support of her claim that she has standing to enforce the NPA, the defendant relies upon three district court decisions, none of which analyzed the threshold question of whether third party standing concepts from contract law apply to plea agreements. In United States v. Florida West Int 'I Airways, Inc., 853 F. Supp. 2d 1209, 1228 (S.D. Fla. 2012), the district court applied the third party beneficiary doctrine to a former airline employee based on a prior plea agreement with the airline that immunized, among others, current and former employees of the airline and its subsidiaries. In its analysis, however, the court applied the doctrine without analyzing the question of whether third party beneficiary standing principles apply to plea agreements. Id. For similar reasons, the defendant's reliance on United States v. El-Sadig, 133 F. Supp. 2d 600, 608-09 (N.D. Ohio 2001) is misplaced. In that case, the court permitted a third party to invoke a plea agreement, but it did not analyze or address whether third party standing rules apply to plea agreements. Id. Likewise, in United States v. CFW Const. Co., 583 F. Supp. 197, 203 (D.S.C. 1984), the court applied the third party beneficiary doctrine, but relied solely on contracts treatises for support, and did not analyze whether that doctrine should be applied to plea agreements. In any event, even if third party beneficiaries had standing to enforce federal plea agreements, the defendant has failed to establish that she is a third party beneficiary of the NPA. In order to establish that she has enforceable rights under the NPA, the defendant must show that 19 EFTA00039466

"a direct and primary object of the contracting parties was to confer a benefit on the third party." Fla. W. Intl Ainvays, Inc., 853 F. Supp. 2d at 1228 (quoting Boclzese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005)). In other words, "the intent of the parties is the key" to evaluating whether an individual is a third party beneficiary. Id. Here, the defendant has offered no evidence that the parties intended to confer a benefit on her in particular, or that her crimes in the 1990s make her a member of the class of "co- conspirators" the parties had in mind when they negotiated the NPA. To the contrary, the OPR's investigation of the circumstances surrounding the inclusion of this provision in the NPA strongly undercuts any such argument, and OPR's findings demonstrate that the parties did not intend to confer a benefit on the defendant. With respect to the "co-conspirator" provision, the OPR Report concluded, in relevant part: Other than various drafts of the NPA and of a federal plea agreement, OPR found little in the contemporaneous records mentioning the provision and nothing indicating that the subjects discussed or debated it—or even gave it much consideration. Drafts of the NPA and of the federal plea agreement show that the final broad language promising not to prosecute "any potential co- conspirators of Epstein" evolved from a more narrow provision sought by the defense. The provision expanded as [USAO-SDFL prosecutor Maria] Villafafia and defense counsel exchanged drafts of, first, a proposed federal plea agreement and, then, of the NPA, with apparently little analysis and no substantive discussion within the USAO about the Provision. OPR Report at 166. With respect to Maxwell in particular, OPR interviewed Maria Villafaiia, the lead prosecutor on the case, and noted: Villafafia acknowledged that investigators were aware of Epstein's longtime relationship with a close female friend who was a well- known socialite, but, according to Villafafia, in 2007, they "didn't have any specific evidence against her." Accordingly, Villafaiia believed that the only "co-conspirators" of Epstein who would benefit from the provision were the four female assistants identified by name. 20 EFTA00039467

OPR Report at 167.1° After reviewing the facts and circumstances of the negotiation, OPR concluded that "the evidence does not show that [Former USAO-SDFL U.S. Attorney Alex] Acosta, [Former USAO-SDFL supervisor Andrew] Lourie, or Villafafia agreed to the nonprosecution provision to protect any of Epstein's political, celebrity, or other influential associates." OPR Report at 168." In view of OPR's conclusions—and in the absence of any evidence to the contrary proffered by the defendant—the defendant has failed to establish that that she was an intended third party beneficiary of the NPA. Accordingly, the defendant lacks standing to enforce the NPA. C. The Defendant Has Offered No Basis for Additional Discovery or a Hearing The defendant's motion for discovery and a hearing fares no better. Lacking any evidence—much less any legal authority—that the NPA applies to this District or the crimes in the Indictment, the defendant asks the Court to order discovery and conduct a hearing. In short, 10 The OPR Report further reflects that in OPR's interview of Villafafia, she reported that she did not have anyone in mind aside from the four individuals named in the "co-conspirator" provision: "Villafafia told OPR that she was willing to include a non-prosecution provision for Epstein's co- conspirators, who at the time she understood to be the four women named in the proposed agreement, because the USAO was not interested in prosecuting those individuals if Epstein entered a plea. Villafafia told OPR, `[W]e considered Epstein to be the top of the food chain, and we wouldn't have been interested in prosecuting anyone else.' She did not consider the possibility that Epstein might be trying to protect other, unnamed individuals, and no one, including the FBI case agents, raised that concern." OPR Report at 70. Further, the OPR Report notes that: "Villafafia told OPR that, apart from the women named in the NPA, the investigation had not developed evidence of `any other potential co-conspirators.'" Id. at 81. Similarly, the report reflects that a supervisor at USAO-SDFL told OPR "that it never occurred to him that the reference to potential co-conspirators was directed toward any of the high-profile individuals who were at the time or subsequently linked with Epstein." OPR Report at 80-81. " Although the defendant correctly notes that the OPR Report reflects that the prosecutor remarked that Epstein "wanted to make sure that he's the only one who takes the blame for what happened," OPR Report at 167, that desire explains the existence of the "co-conspirator" provision, but it does not inform its meaning or scope. 21 EFTA00039468

the defendant asks this Court to authorize an extensive and burdensome fishing expedition, premised on the defendant's pure conjecture. The Court should deny the motion. Although the defendant asserts that the Court is obligated to conduct a hearing, she has failed to establish that any hearing is warranted. The defendant argues that courts conduct evidentiary hearings "where the existence or scope of a plea agreement or non-prosecution agreement is in genuine dispute." (Def. Mot. 1 at 29). But the defendant has not established any genuine factual dispute in this case that a hearing would be required to resolve. The defendant has offered bare conclusions in support of her motion, which are refuted by governing law, record evidence, and the four corners of the agreement itself. That is not a basis for a hearing. As the Second Circuit explained in United States v. Aleman, 286 F.3d 86 (2d Cir. 2002), "a district court need not conduct a hearing every time a defendant summarily accuses the government of failing to live up to an alleged bargain." Id. at 91. In that case, the court held that a hearing was required because the defendant had submitted affidavits from his attorney, as well as corroborating affidavits from other attorneys, and the Government had not submitted any evidence. Id.; see also United States v. Sattar, 272 F. Supp. 2d 348, 383 (S.D.N.Y. 2003) (applying Aleman, and ordering an evidentiary hearing based upon the defendant's submission of an affidavit from an attorney with knowledge of the alleged oral agreement). Similarly, in United States v. Feldman, 939 F.3d 182 (2d Cir. 2019), the Second Circuit held that a hearing was required based on the defendant's uncontested assertions about specific representations made to him by a prosecutor. Id. at 184, 190. Here, by contrast, the defendant has offered no evidence in support of her allegations. The defendant cannot seriously argue that she has made the type of showing that requires a hearing. For example, she has not offered any affidavits from Epstein's former defense attorneys claiming that the USAO-SDFL made promises that were not contained in the NPA. Nor has she 22 EFTA00039469

pointed to anything in the extensive record of either the OPR investigation or the civil litigation surrounding the NPA that would suggest that the NPA applies to this District, or to the crimes in the Indictment, or to Maxwell. In the absence of any such evidence—and in the face of substantial contrary evidence gathered in the civil litigation and OPR investigation—the Court has no obligation to conduct a hearing. For similar reasons, the defendant's motion for discovery should be denied. To the extent the defendant seeks discovery under Rule 16, she has failed to meet her burden. A defendant seeking discovery under Rule 16 "must make a prima fade showing of materiality and must offer more than the conclusory allegation that the requested evidence is material." United States v. Urena, 989 F. Supp. 2d 253, 261 (S.D.N.Y. 2013) (citations omitted). Here, the defendant has offered nothing more than her conjecture that some unspecified evidence might exist. The motion should be denied. II. The Indictment Is Timely Counts One through Four are timely charged because the applicable limitations period, 18 U.S.C. § 3283 (2003), permits prosecution for offenses "involving the sexual or physical abuse... of a child" at any time "during the life of the child," and each of the victims identified in the Indictment remains alive. Maxwell contends that Section 3283 should not be applied to conduct that predated its amendment in 2003 (Def. Mot. 2), but that argument is contrary to the text of the statute, Congress's clear intent when extending the statute of limitations, and the decisions of other circuits and district courts in this Circuit. In effect, the defendant's motion asks this Court to break new ground, and become the first court to hold that Section 3283 applies only prospectively. In the alternative, Maxwell argues that Section 3283 is inapplicable because the offenses charged in the Indictment do not "involv[e] the sexual or physical abuse . . . of a child." (Def. 23 EFTA00039470

Mot. 2 at 12-14). Yet her argument runs contrary to the weight of authority that has adopted the common-sense view that crimes that necessarily entail the sexual or physical abuse of children "involv[e] the sexual or physical abuse of a child." This Court should do the same and deny the motion. A. Statutory Background Between 1990 and 2006, Congress passed a series of laws that expanded the statute of limitations for prosecutions of crimes against minors, ultimately extending the statute of limitations to the lifetime of the minor victim and, for certain offenses, eliminating the statute of limitations entirely. These laws reflect a virtually unbroken congressional policy that the default five-year statute of limitations for federal crimes, 18 U.S.C. § 3282, is inadequate for such offenses. An extended statute of limitations is necessary because "child sex abuse offenses . . . may be difficult to detect quickly," in part because children often first report their abuse long after it occurs. Weingarten v. United States, 865 F.3d 48, 54 (2d Cir. 2017) (citing, e.g., David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J. Crim. L. & Criminology I, 60-61 (1986)). In 1990, Congress enacted a new statute of limitation for certain crimes against children, which stated: "No statute of limitation that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such a prosecution before the child reaches the age of 25 years." Crime Control Act of 1990, Pub. L. No. 101-647, tit. II, § 225(a), 104 Stat. 4789, 4798 (codified at 18 U.S.C. § 3509(k) (1990)). In 1994, Congress re-codified this provision, moving it to 18 U.S.C. § 3283 with identical language. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. XXXIII, § 330018(a), 108 Stat. 1796, 2149 (codified at 18 U.S.C. § 3283 (1994)) ("No statute of limitations 24 EFTA00039471

that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25."). As the Second Circuit has recognized, "after nearly a decade, Congress began to view even the extended statute of limitations period in the 1994 version of § 3283 as `inadequate in many cases' because it released from criminal liability sex abusers whose crimes were not brought to the attention of federal authorities until after their victims turned twenty-five." Weingarten, 865 F.3d at 54 (citing H.R. Conf. Rep. No. 108-66, at 54 (2003)). Accordingly, in April 2003, Congress amended Section 3283 to permit the prosecution of sex offenses against minors at any time during the lifetime of the minor victim. Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act ("PROTECT Act") of 2003, Pub. L. No. 108-21, tit. II, § 202, 117 Stat. 650, 660 (codified at 18 U.S.C. § 3283 (2003)) ("No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child."). In January 2006, Congress further amended Section 3283 to its current form to permit the prosecution of such offenses during the lifetime of the victim or ten years after the offense, whichever is longer. Violence Against Women and Department of Justice Reauthorization Act of 2006, Pub. L. No. 109-162, tit. XI, § 1182(c), 119 Stat. 2960, 3126 (codified at 18 U.S.C. § 3283 (2006)) ("No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer."). 25 EFTA00039472

Finally, later that same year, Congress enacted a new statute as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. That statute eliminated the statute of limitations entirely for certain crimes involving the sexual exploitation of minors. Id. tit. II, § 211(1), 120 Stat. at 616 (codified at 18 U.S.C. § 3299). B. The 2003 Amendment to Section 3283 Applies Retroactively Counts One through Four of the Indictment charge crimes that occurred between 1994 and 1997. At the time of the offense conduct, the applicable statute of limitations, 18 U.S.C. § 3283 (1994), ran until "the child reaches the age of 25." However, in 2003, while the statute of limitations had not yet run for the crimes charged in the Indictment,12 Congress amended the statute, extending the limitations period to permit a prosecution at any time "during the life of the child." 18 U.S.C. § 3283 (2003). Because the victims are all alive, the Indictment is timely under the 2003 amendment. Put simply, the 2003 amendment applies to any conduct that could have been charged at the time of its enactment. The legislative purpose behind Section 3283 and a plain reading of the statute compel this conclusion, and courts have repeatedly held that the 2003 amendment applies retroactively, provided that the statute of limitations had not run for the offense at the time of the amendment. See, e.g., United States v. Leo Sure Chief, 438 F.3d 920, 922-25 (9th Cir. 2006) ("Because Congress evinced a clear intent to extend, rather than shorten, the statute of limitations applicable to sexual abuse crimes, and because there is no ex post facto problem here, the prosecution was timely.") (citing United States v. Jeffries, 405 F.3d 682, 685 (8th Cir. 2005), cert. denied, 546 U.S. 1007 (2005)); United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) ("Because Congress evinced a clear intent to extend the statute of limitations for these types of 12 The timeliness of the charges in the Indictment in 2003 is discussed in greater detail below. 26 EFTA00039473

crimes in its amendments, and because there is no ex post facto problem here, the prosecution was timely."), cert. denied, No. 20-5064, S.Ct. , 2021 WL 78235 (Jan. 11, 2021); United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140, at *1 (S.D.N.Y. Aug. 9, 2018) (denying motion to dismiss child exploitation charges as time-barred) ("Defendant's argument rests on the erroneous premise that the law requires the defendant to have committed the charged offense after the effective date of the extension of the statute of limitations for the charge to not be time-barred. As long as the original statute of limitations had not lapsed when the extension went into effect, the prosecution is not time-barred."); United States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484, at *2 (D. Conn. June 7, 2010) (holding that the 2003 amendment of Section 3283 applies to pre- enactment conduct, and rejecting the argument "that the lack of a savings clause in the 2003 version of section 3283 is fatal to extending the statute of limitations."); United State v. Nader, 425 F. Supp. 3d 619, 624-30 (E.D. Va. 2019) (holding that the 2003 amendment of Section 3283 applies to pre-enactment conduct). In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court set forth a two-part framework for determining whether a statute applies retroactively. At step one of the analysis, "if Congress `expressly prescribed' that a statute applies retroactively to antecedent conduct, `the inquiry ends[] and the court enforces the statute as it is written,' save for constitutional concerns." Weingarten, 865 F.3d at 54-55 (quoting In re Enter. Mon. Acceptance Co. Sec. Litig. ("Enterprise'), 391 F.3d 401, 405-06 (2d Cir. 2004)). However, "when a statute `is ambiguous or contains no express command' regarding retroactivity, a reviewing court must determine whether applying the statute to antecedent conduct would create presumptively impermissible retroactive effects." Id. For the reasons set forth below, the 2003 amendment of 18 U.S.C. § 3283 satisfies both steps of Landgraf, and should be applied to pre-enactment conduct. 27 EFTA00039474

1. The 2003 Amendment Satisfies Step One of Landgraf At step one of the Landgraf analysis, the question is whether Congress has "expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280. When evaluating Congress's intent at step one of the Landgraf inquiry, the Second Circuit has considered both the text of the statute and the legislative history. Enterprise, 391 F.3d at 406-08. In this case, the amended versions of Section 3283 evince Congress's express intent to extend the statute of limitations. The text and history of Section 3283 firmly establish that, with each amendment of the statute of limitations, Congress intended to repeal and replace the prior version of the statute and thereby extend the time to bring live charges of child sexual abuse. The 2003 amendment, like the 1994 version of the statute, specifically states that "[n]o statute of limitations that would otherwise preclude prosecution" of a child sexual offense "shall preclude" prosecution of such offense during the life of the victim. 18 U.S.C. § 3283 (2003). Claims that were live in 2003 were, at the time, subject to the then-existing statute of limitations, which ran until the victims reached the age of 25. Whenever that statute of limitations ran, it would "otherwise preclude prosecution." Instead, that statute of limitations was replaced by the 2003 amendment. The Eighth and Ninth Circuits have both held that Congress intended to extend the statute of limitations for live claims of sexual abuse. In United States v. Jef•ies, 405 F.3d 682 (8th Cir. 2005), the Eighth Circuit reasoned that "both the title and wording of § 3509(k) indicate that Congress intended by it to extend the general statute of limitations. . § 3509(k) was later recodified at § 3283 and continued to extend the statute of limitations in child abuse cases." Id. at 684 (citing United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (holding that an earlier version of § 3509(k) applied to conduct predating its enactment in 1990)). The Eighth Circuit's reasoning—which addressed earlier versions of the statute—applies with equal, if not greater, 28 EFTA00039475

force to the 2003 amendment, which established an even broader statute of limitations. Following Jqffries, the Ninth Circuit has similarly held that Section 3283 applies retroactively, because "Congress evinced a clear intent to extend" the statute of limitations. Leo Sure Chief, 438 F.3d at 924 (citing Jeffries, 405 F.3d at 685). Not only does the wording of the statute clearly express that Congress intended for the 2003 amendment to be the only governing statute of limitations for live claims of child sexual abuse, but the legislative history also supports this conclusion. The Joint Report accompanying the 2003 amendment explains that Congress wanted to expand the statute of limitations out of concern that the 1994 amendment did not go far enough to ensure that perpetrators of child sexual abuse were held to account: While [the statute of limitations allowing for prosecution until the victim reaches age 25] is better than a flat five-year rule [under Section 3282], it remains inadequate in many cases. For example, a person who abducted and raped a child could not be prosecuted beyond this extended limit — even if DNA matching conclusively identified him as the perpetrator one day after the victim turned 25. H.R. Conf. Rep. No. 108-66, at 54 (2003). Congress's express intention was to prevent perpetrators of crimes against children from escaping justice based on a timing technicality. Moreover, since the 2003 amendment extended the statute of limitations throughout the lifetime of the victim, it is clear that Congress expressly authorized prosecutions to occur decades after crimes had been committed.13 13 Although the defendant claims that prosecuting her crimes now presents unique fairness concerns, there is nothing unusual about prosecuting sex crimes long after they have occurred. See, e.g., United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) (2014 indictment charging, among other crimes, sex trafficking offenses dating to 2000 and 2001), cert. denied, No. 20-5064, -- S. Ct. -- , 2021 WL 78235 (Jan. 11, 2021); United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140, at *1 (S.D.N.Y. Aug. 9, 2018) (2016 indictment covering conduct going back to 1998); United State v. Nader, 425 F. Supp. 3d 619, 622 (E.D. Va. 2019) (2019 indictment for 29 EFTA00039476

The defendant argues that Congress did not intend for Section 3283 to apply to pre- enactment conduct, and asserts that the legislative history supports this interpretation. Specifically, the defendant points to an earlier version of the bill, which contained an express retroactivity provision that was not included in the final version of the statute. (Def. Mot. 2 at 6-7). The defendant's argument on this point is both misleading and unpersuasive. The defendant quotes Senator Patrick Leahy's comments on the 2003 conference committee report to the effect that "the conference agreed to drop language from the original House-passed bill that would have extended the limitations period retroactively." (Def. Mot. 2 at 7). This is a selective quotation; the full statement regarding retroactivity is as follows: A final point on section 202: I am pleased that the conference agreed to drop language from the original House-passed bill that would have extended the limitations period retroactively. That language, which would have revived the government's authority to prosecute crimes that were previously time-barred, is of doubtful constitutionality. We are already pushing the constitutional envelope with respect to several of the "virtual porn" provisions in this bill. I am pleased that we are not doing so in section 202 as well. 149 Cong. Rec. 55137, S5147 (Apr. 10, 2003) (statement of Sen. Leahy) (emphasis added). As the full quotation makes clear, the legislative history does not support the conclusion that when Congress amended Section 3283, it declined to adopt the language in the House-passed bill because it wanted the lengthened statute of limitations to apply only prospectively. Instead, Senator Leahy's comments indicate that Congress declined to add language that would allow for the resurrection of time-barred prosecutions, in violation of the Ex Post Facto Clause.14 But that conduct in 2000). Indeed, that is precisely what Congress authorized when it extended the statute of limitations for such crimes through the lifetime of the victim. 14 Moreover, the fact that Congress considered, but ultimately omitted, retroactivity language does not end the Landgraf inquiry, as the defendant suggests. Indeed, Landgraf itself makes this clear. In that case, the statute at issue had a predecessor, which contained a retroactivity provision. That 30 EFTA00039477

concern is entirely separate from extending the statute of limitations for live claims, which is what Congress did here. Critically—and as discussed in greater detail below—there is no Ex Post Facto Clause issue in this case, because the statute of limitations for Counts One through Four had not yet expired when the limitations period was extended in 2003.15 Accepting the defendant's argument would undermine Congress's plain purpose in extending the limitations period. In 1990, 2003, and 2006, Congress extended—and ultimately abolished—the statute of limitations to ensure that prosecutors could seek justice for child sex abuse victims who come forward or identify their abusers after a delay. Applying the 2003 statute only prospectively subverts that purpose by exempting all past offenders. According to the defendant, in 2003, Congress wanted to ensure that every perpetrator who abused a minor in the future was subject to prosecution for the lifetime of the minor, but Congress simultaneously was version was vetoed by the President, and the final version of the statute omitted the retroactivity provision. As the Supreme Court explained, "[t]he omission of the elaborate retroactivity provision of the 1990 bill—which was by no means the only source of political controversy over that legislation—is not dispositive because it does not tell us precisely where the compromise was struck in the 1991 Act." Landgraf, 511 U.S. at 256. Indeed, "[i]t [was] entirely possible—indeed, highly probable—that, because it was unable to resolve the retroactivity issue with the clarity of the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts." Id. at 261. 15 Minor Victim-1 and Minor Victim-2 were both younger than 25 in 2003, when Congress extended the limitations period. Minor Victim-3 was not, but this does not alter the inquiry, because the Indictment does not contain any counts that relate to Minor Victim-3 alone. Instead, she is one of multiple victims of the conspiracies charged in Counts One and Three. The inclusion of the overt acts relating to Minor Victim-3 in an otherwise timely conspiracy count does not render that count untimely. To the contrary, for conspiracy counts, the Government is only required to prove that one overt act in furtherance of the conspiracy occurred within the limitations period. United States v. Ben Zvi, 242 F.3d 89, 97 (2d Cir. 2001). Thus, the defendant is incorrect to assert that the government is "barred" from prosecuting the defendant for any offense against Minor Victim-3. (Def. Mot. 2 at 10, n.3). Instead, there is no statute of limitations issue here so long as the jury is properly instructed at trial that it must find at least one overt act within the limitations period—Le., one overt act that does not relate to Minor Victim-3. 31 EFTA00039478

content to let all previous perpetrators avoid prosecution whenever their victims turned twenty- five. No such intent is manifest in either the text or in Senator Leahy's statement. The reach of Section 3283 is clear. Because Congress has expressly extended the statute of limitations to pre-enactment conduct, the Court should resolve its analysis at Landgraf step one and apply the statute as Congress intended. In the alternative, however, the statute is—at worst— ambiguous. If the Court takes that view, it should proceed to Landgraf step two. 2. The 2003 Amendment Satisfies Step Two of Landgraf If the Court were to determine that the legislative intent behind Section 3283 is ambiguous, the inquiry then extends to the second step of the Landgraf analysis, which examines the retroactive effects of the statute. As the Supreme Court explained in Landgraf, "[a] statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." 511 U.S. at 269. Instead, the question is whether the statute "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Vernon v. Cassadaga Valley Cent. School Dist, 49 F.3d 886, 890 (2d Cir. 1995) (quoting Landgraf, 511 U.S. at 280). Applying Section 3283 here would have none of those effects. Maxwell's rights, liabilities, and duties were governed by the substantive criminal statutes governing her conduct. Until the statute of limitations expired, Maxwell had the same legal liability, the same rights, and the same incentives to retain evidence. A statute extending that period attaches no new legal consequences; rather, it preserves the status quo. Therefore, the statute does not operate "retrospectively" within the meaning of Landgraf. See Cruz v. Maypa, 773 F.3d 138, 145 (4th Cir. 2014) ("[A]pplying [an] extended limitations period to claims that 32 EFTA00039479

were unexpired at the time of its enactment does not give rise to an impermissible retroactive effect under Landgraf."). The Second Circuit has considered in three cases whether retroactive statutes of limitation are permissible under Landgraf. In Vernon v. Cassadaga Valley Cent. School Dist, the Second Circuit held that a new statute shortening the filing period for a civil claim applied retroactively. In reaching that conclusion, the Court noted that "Landgraf and other cases countenance treating statutes of limitations differently from statutory provisions that affect substantive rights," because statutes of limitations regulate secondary, and not primary conduct. Vernon, 49 F.3d. at 890-91. In In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 2004), the Second Circuit held that applying an extended statute of limitations retroactively created impermissible retroactive effects. Yet in that case, it was critical to the Court's analysis that—unlike here—the statute revived claims that were previously time-barred. Id. at 410 ("In our view, the resurrection of previously time-barred claims has an impermissible retroactive effect."). In Weingarten, the Second Circuit considered, but did not ultimately reach, the issue of whether Section 3283 applies retroactively.16 In discussing the second step of Landgraf, the Court observed: "Courts have routinely recognized a difference between revoking a vested statute of limitations defense and extending a filing period for live claims." Id. at 57 (collecting cases). Moreover, in an opinion by Judge Learned Hand, the Second Circuit explained why extending an active criminal statute of limitations does not offend any concept of fairness: Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its 16 The First Circuit has similarly considered this issue in the context of an ineffective assistance of counsel claim and declined to reach the issue of whether Section 3283 applies retroactively. United States v. Miller, 911 F.3d 638, 644 (1st Cir. 2018). 33 EFTA00039480

pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it. Faker v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928). The distinction between statutes that revive expired prosecutions and those that extend existing limitations periods has deep roots in established jurisprudence. It is well-settled that the Ex Post Facto Clause prohibits laws that revive time-barred prosecutions, but permits laws that retroactively extend limitations periods. Stogner v. California, 539 U.S. 607, 632 (2003) (holding that the Ex Post Facto Clause does not "prevent the State from extending time limits for . . . prosecutions not yet time barred."); United States v. Morgan, 113 F.3d 1230, 1997 WL 268712, at *7 (2d Cir. 1997) (unpublished opinion) ("The long- standing rule in this circuit is that Congress has the power to extend the period of limitations without running afoul of the ex post facto clause, provided the original period has not already run.") (citing Faker, 23 F.3d at 425-26). And other circuits have emphasized this distinction in the context of Section 3283. Leo Sure Chief 438 F.3d, at 922-25; Jeffries, 405 F.3d 685. Read together, the Second Circuit's decisions in Weingarten, Vernon, Enterprise, and Faker establish that Congress may retroactively extend the limitations period for still-viable prosecutions. That is precisely what has occurred here, because the charges in the Indictment were still timely when the 2003 amendment extended the limitations period. As a result, applying Section 3283 in this case does not create impermissible retroactive effects. Therefore, step two of Landgraf is satisfied, and Section 3283 applies retroactively. Resisting this conclusion, the defendant asserts that, in the criminal context, Landgraf s second step provides protections beyond the Ex Post Facto Clause. But that is not the law. See Nader, 425 F. Supp. 3d at 630 (rejecting the argument that "there is `daylight' between the Ex Post Facto Clause and Landgraf s second step."). Maxwell cites no precedent for the proposition that, 34 EFTA00039481

in the criminal context, much less in the context of criminal statutes of limitations, Landgraf forecloses prosecutions permitted by the Constitution. Maxwell instead cites dictum by a single judge in a non-criminal case that, "pp' [he] were judging on a clean slate," he would read Landgraf to prohibit some retroactive application of statutes that, "while not the equivalent of criminal ex post facto, nevertheless would run afoul of Landgraf s considerations, and that he "expect[ed] that the Supreme Court's future decisions" would confirm such a reading. Thom v. Ashcroft, 369 F.3d 158, 163 n.6 (2d Cir. 2004) (Calabresi, J., "[s]peaking only for [him]self'). That footnote is too slender a reed to support Maxwell's entire motion to dismiss the Indictment as untimely. Moreover, Maxwell has identified no case in the intervening seventeen years in which the Supreme Court has embraced Judge Calabresi's view. See Nader, 425 F. Supp. 3d at 631 (finding arguments relating to Judge Calabresi's footnote unpersuasive, and concluding that Section 3283 applies retroactively under Landgraf). As Weingarten recognized, any court to hold that "retroactively extending a filing period for live charges is a presumptively impermissible retroactive effect under Landgraf' will be the first to do so. 865 F.3d at 58. The defendant also argues that "criminal limitations statutes are to be liberally interpreted in favor of repose," relying on the Supreme Court's decision in Toussie v. United States, 397 U.S. 112, 115 (1970). Toussie considered whether a person's failure to register for the draft was a continuing offense subjecting him to prosecution eight years later, notwithstanding the five-year limitations period in Section 3282. Id. at 114. In that context, the Court invoked a presumption in favor of repose when determining whether the underlying conduct was time-barred. But that presumption says nothing about whether Congress intended an extension of a statute of limitations to apply purely prospectively, a question governed by Landgraf Only one case has applied Toussie to the Landgraf analysis, see United States v. Gentile, 235 F. Supp. 3d 649, 655 (D.N.J. 35 EFTA00039482

2017), and that case, which did not concern Section 3283, relied extensively on a pre-Landgraf opinion requiring a clear statement of congressional intent in favor of retroactivity. See id. at 655 (citing United States v. Richardson, 512 F.2d 105 (3d Cir. 1975)). That clear-statement rule is inconsistent with the analysis required by Landgraf step two. See Nader, 425 F. Supp. 3d at 631 (rejecting an identical argument relying on Toussie and Gentile). *** The defendant asks this Court to break new ground and become the first court to hold that Section 3283 applies only prospectively. The Court should reject this invitation. For the reasons set forth above, the weight of authority holds that Section 3283 applies retroactively, in keeping with Congress's express intent to expand prosecutions of individuals who sexually exploit children. The Indictment is timely, and the motion should be denied. C. The Defendant's Crimes Involved the Sexual Abuse of Minors The defendant next argues that Section 3283 does not apply at all, and she asks the Court to conclude that the crimes of sexual abuse alleged in the Indictment did not involve sexual abuse. Her argument runs contrary to both the case law and common sense. Her motion is meritless and should be denied. By its terms, Section 3283 applies to any "offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years." 18 U.S.C. § 3283. As discussed above, when the statute was first enacted, it was located at 18 U.S.C. § 3509(k). The definition of the term "sexual abuse" is located in a neighboring provision within that same section: For purposes of this section ... the term `sexual abuse' includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. 36 EFTA00039483

18 U.S.C. § 3509(a)(8). The term "sexually explicit conduct" is in turn defined to mean, among other things, "sexual intercourse, including sexual contact"; and the term "sexual contact" means "the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person." Id. § 3509(a)(9)(A). Courts have looked to the definition of "sexual abuse" set forth in Section 3509(a) to determine whether the statute of limitations of Section 3283 applies to an offense. United States v. Carpenter, 680 F.3d 1101, 1103-04 (9th Cir. 2012) ("We join our sister circuits in looking to subsection 3509(a) for a definition of `sexual abuse' under federal law, and find it the appropriate definition to use in applying section 3283's extended statute of limitations."); United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL 1838255, at ■10 (W.D.N.Y. May 8, 2014) (applying the definition of "sexual abuse" set forth in Section 3509(a)). As is evident from its plain text, the definition of "sexual abuse" set forth in Section 3509(a) includes not only actual "sexual contact," but also the "the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in," sexual contact. 18 U.S.C. § 3509(a). The breadth of this definition is underscored by Congress's use of the word "includes." The Supreme Court has held that Congress's choice of the word "includes" is "significant because it "makes clear that the examples enumerated in the text are intended to be illustrative, not exhaustive." Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012) (citing Burgess v. United States, 552 U.S. 124, 131 n.3 (2008)). Thus, sexual abuse "as defined here encompasses a wider set of behavior than just rape or other unwanted sexual touching." United States v. Schneider, 801 F.3d 186, 197 (3d Cir. 2015). In keeping with that broad definition, courts have held that Section 3283 "does not require that an offense consist of a 37 EFTA00039484

sexual act between a defendant and a specific child," Vickers, 2014 WL 1838255, at *11, but instead reaches offenses involving the transportation of minors to engage in illegal sexual activity. See Sensi, 2010 WL 2351484, at *2-3 (collecting cases interpreting the term "sexual abuse" to encompass "all crimes that would logically relate to the common understanding of sexual abuse even when found in chapters 110 (`Sexual Exploitation and Other Abuse of Children') and 117 (`Transportation of Illegal Sexual Activity and Related Crimes') of title 18"); Schneider, 801 F.3d at 196-97 (holding that Section 3283 applied to defendant convicted of traveling with the purpose of engaging in sex with a minor victim, in violation of 18 U.S.C. § 2423(b)); Vickers, 2014 WL 1838255, at *11-12 (holding that violations of 18 U.S.C. § 2423(a) were crimes involving sexual abuse under Section 3283). The defendant's motion does not engage with these authorities at all. Instead, the defendant asks the Court to apply an "essential ingredients" test, relying heavily upon the Supreme Court's decision in Bridges v. United States, 346 U.S. 209 (1953), which concerned the Wartime Suspension of Limitations Act ("WSLA"). (Def. Mot. 2 at 12-14). But Bridges is inapposite, since it concerned a statute "[t]he legislative history of [which] emphasize[d] the propriety of its conservative interpretation" and "indicate[d] a purpose to suspend the general statute of limitations only as to" certain narrowly defined offenses. Bridges, 346 U.S. at 216. There is no corresponding indication that Congress intended the "essential ingredients" test to apply to Section 3283. As the Third Circuit has explained in rejecting an identical argument: While Bridges did adopt an "essential ingredient" test, the limitations-extending statute at issue was a narrowly drafted exception specifically intended to target frauds related to war procurement. Unlike the WSLA, § 3283 has no such restrictive language or legislative history suggesting congressional intent to limit its application to a specific subset of circumstances. Congress, rather, has evinced a general intention to "cast a wide net to ensnare as many offenses against children as possible." 38 EFTA00039485

Schneider, 801 F.3d at 197 (quoting United States v. Dodge, 597 F.3d 1347, 1355 (11th Cir. 2010) (en bane)); see Weingarten, 865 F.3d at 59 n.I0 (distinguishing Bridges because the "essential ingredient" test there "effectuated Congress's specific intent to limit the WSLA's extended limitations period to only a few offenses," while "Congress had the opposite intention for Section 3283"); see also Vickers, 2014 WL 1838255, at *11-12 ("[T]he defendant argues that the charged offense does not "involve" the sexual abuse of a child, as reflected in the elements of the offense. Defendant's argument is illogical and clearly misinterprets the use of the term `involving' in section 3283."). Although the Second Circuit has not yet reached this issue, it examined this question in Weingarten v. United States, in the context of a claim for ineffective assistance of counsel. Weingarten, 865 F.3d at 58-60. Rejecting the claim, the Second Circuit observed that none of the criteria for applying the categorical approach are met in the context of Section 3283. Id. The categorical approach—which focuses on the elements of the offense-is generally only used in settings like sentencing and immigration, where a court is asked to evaluate the conduct from a prior conviction. Id. at 59. In such a context, a court attempting to examine the facts of the prior conviction to determine the present punishment or immigration consequences would encounter logistical and constitutional obstacles. Id. (noting an Apprendi problem and "daunting practical difficulties and potential unfairness"). None of those concerns is present here, where the relevant facts will be proved at trial. The Weingarten court also specifically rejected the argument Maxwell now asserts: that the words "offense involving" require a categorical approach. "[T]hat Congress used the word `involving' in § 3283 does not necessarily mean it intended to trigger the categorical approach. 'Involving' . is equally consistent with applying a fact-based approach." 865 F.3d at 60 n.11 39 EFTA00039486

(citing Nijhawan v. Holder, 557 U.S. 29, 38 (2009) (applying the circumstances-specific approach to a statute containing the word "involves")). Moreover, as the Weingarten court observed, the Supreme Court has applied the categorical approach to statutes containing the word "involving" where the statutes at issue also referenced "elements" of offenses, or specific prior "convictions," in a manner that referred to specific convictions, as opposed to particular offense conduct. 865 F.3d at 59 (citing Taylor v. United States, 495 U.S. 575 (1990); Leocal v. Ashcroft, 543 U.S. 1 (2004)). By contrast, the phrase "sexual abuse" in Section 3283 refers to specific conduct, and not the statutory offenses charged in the Indictment. In Weingarten, the Second Circuit further noted that applying the categorical approach to Section 3283 would run contrary to Congress's intention to "cast a wide net to ensnare as many offenses against children as possible." 865 F.3d at 60 (quoting Schneider, 801 F.3d at 196). On this point, it bears emphasizing that the interpretation the defendant advances would lead to absurd outcomes, as many federal crimes involving the sexual abuse of minors do not contain, as an element, a requirement that the defendant commit a sex act with a minor. It would run contrary to Congress's intent to interpret Section 3283 in a manner that would exclude many—if not most- sexual offenses against children. The lone Section 3283 case the defendant cites, United States v. Countentos, 651 F.3d 809 (8th Cir. 2011), is easily distinguishable on its facts. In that case, the Eighth Circuit considered, among other issues, whether the crime of possessing child pornography involved sexual abuse within the meaning of Section 3283. Id. at 816-18. In analyzing that question, the court discussed, among a variety of factors, the elements of the crime. But it did not consider the categorical approach, or purport to apply an "essential ingredients" test, as the defendant implies. Instead, the court resolved the issue by answering a common sense question: "Does someone who merely 40 EFTA00039487

possesses child pornography sexually abuse the child portrayed in the images?" Id. at 817. This inquiry has no relevance here, as this case does not involve the possession of child pornography. The crimes charged in the Indictment plainly involved the sexual abuse of minors. First, the Indictment clearly alleges that the minor victims were subjected to actual, physical sexual contact as part of the defendant's crimes. See Indictment at ¶¶ 4 (alleging that conduct toward minor victims involved sexual abuse), 5 (alleging that "Epstein's resulting abuse of minor victims included, among other things, touching a victim's breast, touching a victim's genitals, placing a sex toy such as a vibrator on a victim's genitals, directing a victim to touch Epstein while he masturbated, and directing a victim to touch Epstein's genitals."), 7 (describing patterns of sexual abuse). Moreover, the Indictment alleges that the defendant persuaded, induced, enticed, and transported minors for purposes of engaging in criminal sexual activity, and that she conspired to do the same. As discussed above, the offenses charged in the Indictment accordingly involved the sexual abuse of minors as defined in Section 3509(a) and incorporated into Section 3283. Because the defendant's crimes involved sexual abuse, the expanded statute of limitations set forth in Section 3283 applies to the crimes charged in Counts One through Four of the Indictment and her motion should be denied. III. The Defendant's Motion to Dismiss the Indictment Based on Alleged Improper Pre- Trial Delay Should Be Denied The defendant contends that the Indictment should be dismissed because the Government's delay in bringing the charges violates the Due Process Clause of the Fifth Amendment. (Def. Mot. 7). The defendant has not and cannot successfully establish such a violation. First, the defendant has not established that any alleged pre-indictment delay caused actual prejudice to the defense. Her speculative assertions about lost witnesses and records are hardly the sort of evidence that she can use to carry her heavy burden. Without proof of actual prejudice, the motion fails. Second, 41 EFTA00039488

even if the Court finds actual prejudice to the defense, the defendant has not established that the Government's purpose in any alleged pre-indictment delay was improper or designed to gain any sort of tactical advantage. The Government obtained an indictment charging the defendant on June 29, 2020, less than two years after opening its investigation and less than a year after victims with information critical to the pending charges came forward. The defendant thus cannot establish an undue delay, much less a delay caused by the Government for an improper purpose. Because the defendant cannot establish either element, let alone both, her due process claim is meritless and should be denied. A. The Defendant Has Failed to Demonstrate Actual and Substantial Prejudice 1. Applicable Law It is well-settled that the statute of limitations is "the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322 (1971) (internal quotation marks and citations omitted). Thus, when a case has been brought within the statute of limitations, it is "only rarely dismissed," and carries a "strong presumption of validity." United States v. ConiesIle, 171 F.3d 748, 752 (2d Cir. 1999); see also United States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982). The Second Circuit standard for pit-indictment delay is clear, and it imposes a heavy burden on the defendant to show that: (i) "he suffered actual prejudice because of the alleged pre- indictment delay," and (ii) "that such delay was a course intentionally pursued by the government for an improper purpose." Conzielle, 171 F.3d at 752 (citations omitted). The burden for proving both prongs of the standard rests squarely on the defendant. United States v. Scarpa, 913 F.3d 993, 1014 (2d Cir. 1990); United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979); United States v. Ricco, 549 F.2d 264, 272 (2d Cir. 1977). The burden is so heavy that it is rarely met by a defendant. 42 EFTA00039489

See DeMichele v. Greenburgh Centr. Sch. Dist No. 7, 167 F.3d 784, 790-91 (2d Cir. 1999) ("[W]hile the [Supreme] Court may not have shut the door firmly on a contention that at some point the Due Process Clause forecloses prosecution of a claim because it is too old, at most the door is barely ajar."). Substantial prejudice is just that—substantial, actual, non-speculative prejudice. See United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982) (a defendant's "proof of prejudice must be definite and not speculative"); see also United States v. Henderson, 337 F.3d 914, 920 (7th Cir. 2003) (prejudice sufficient to warrant dismissal for pre-indictment delay must be "actual and substantial" and "specific, concrete, and supported by evidence"). Prejudice in this context refers to "actual prejudice to the defendant's right to a fair trial." United States v. Elsbety, 602 F.2d 1054, 1059 (2d Cir. 1979). The mere loss of witnesses or evidence, without more, is insufficient. Claims of loss of memory resulting from the passage of time have been held to be insufficient to warrant dismissal of an indictment on due process grounds. See United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003); Henderson, 337 F.3d at 919-20. Moreover, even when a claim of prejudice is based upon the complete loss of a witness's testimony or other evidence, a defendant nevertheless must show how that testimony or evidence would have affected the outcome or otherwise have assisted the case. See United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (defendant's pre-indictment delay claim rejected due to failure to show "how the testimony from [three absent] witnesses would have benefitted his case"); United States v. Spears, 159 F.3d 1081, 1085 (7th Cir. 1999) ("[A] defendant must do more than show that a particular witness is unavailable and that the witness' testimony would have helped the defense. He must also show that the witness would have testified, withstood cross-examination, and that the jury would have found the witness credible" (citations omitted)). "Courts have held that `the defendant 43 EFTA00039490

also has the burden of showing that the lost testimony or information was not available through other means.'" Pieire-Louis, 2018 WL 4043140, at *4 (quoting United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002)). The vast majority of pre-indictment delay cases fail on the first prong. See, e.g., Marion, 404 U.S. at 324-25 (fading witness memories insufficient; "no one suggests that every delay- caused detriment to a defendant's case should abort a criminal prosecution"); United States v. Snyder, 668 F.2d 686, 689 (2d Cir. 1982) (death of a defense witness three years before indictment insufficient prejudice); United States v. lannelli, 461 F.2d 483, 485 (2d Cir. 1972) (unavailability of witnesses insufficient prejudice); United States v. King, 560 F.2d 122, 130-31 (2d Cir. 1977) (death of witness and missing documents insufficient prejudice); Pieire-Louis, 2018 WL 4043140, at *4-5 (death of a defense witness and defendant's own memory issues insufficient prejudice). 2. Discussion The defendant points to at least four ways in which she claims the passage of time prejudiced her defense, but none of her hypothetical claims of prejudice withstand scrutiny. In particular, she contends that, as a result of the passage of time, four witnesses have died, unnamed Epstein employees have been "lost," unspecified witnesses now have "failed or corrupted" memories, and records have been lost or destroyed. She further contends that these collectively demonstrate actual prejudice. (Def. Mot. 7 at 8-14). None has merit, individually or collectively. With respect to the first three arguments, the fact that certain witnesses cannot testify because of their deaths or failed memories does not compel a finding of actual prejudice. "Faded memories or unavailable witnesses are inherent in any delay, even if justifiable. To merit dismissal a defendant must demonstrate a substantial, actual prejudice to his ability to defend himself." 44 EFTA00039491

United States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988). The defendant has not made such a showing. Her speculative assertions simply do not rise to that level. The defendant first claims she has suffered substantial prejudice as a result of pre- indictment delay due to the unavailability of Jeffrey Epstein, Epstein's mother, Michael Casey (the alleged agent of Minor Victim-1), and Palm Beach Police Department Detective Joseph Recarey. She contends that the loss of Epstein demonstrates actual prejudice because Epstein "would have" testified that the defendant did not engage in the criminal activity with which she is charged. (Def. Mot. 7 at 8). That assertion is speculative at best, and the law is clear that "proof of prejudice must be definite and not speculative." Birney, 686 F.2d at 105-06; see also Long, 697 F. Supp. at 657 (finding that "perceived prejudice is speculative" where there was "no way of knowing what [the unavailable witness's] testimony would have been"). To credit Maxwell's argument is to assume that Epstein, after being indicted with federal sex trafficking charges, would have taken the stand, would not have invoked his Fifth Amendment rights, and would have provided testimony that exculpated Maxwell, which a jury would have credited in the face of contradictory trial evidence. This is an exercise in chain upon chain of conjecture that comes nowhere close to meeting the burden of demonstrating actual prejudice. See Spears, 159 F.3d at 1085 ("[A] defendant must do more than show that a particular witness is unavailable and that the witness' testimony would have helped the defense. He must also show that the witness would have testified, withstood cross- examination, and that the jury would have found the witness credible." (citations omitted)); see also United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis must consider whether the missing witness "would have withstood cross-examination," whether the jury would have found him a "credible witness," and whether the testimony, when compared to other trial evidence "would affect the trial outcome" (internal quotation marks and citations 45 EFTA00039492

omitted)). The defendant has not and cannot establish that Epstein would have been available to testify in the first instance, much less that he would have voluntarily agreed to testify at her trial in a way that would help, rather than hurt, the defendant. As to Epstein's mother, who died in April 2004, the defendant contends that she "would have testified that she did not observe Ms. Maxwell with any Accusers between 1994 and 1997." (Def. Mot. 7 at 9). "Counsel's unworn assertions as to vague generalities" that witnesses, "if alive, would give testimony helpful to [the defendant] do not show that [the defendant's] ability to present a defense has been substantially and actually prejudiced." United States v. Scala, 388 F. Supp. 2d 396, 399-400 (S.D.N.Y. 2005). Here, "there is no evidence before the Court as to what [the deceased witness] would have testified, much less specific evidence of how losing that testimony has caused [the defendant] actual prejudice." Id. at 400. Further, unless Epstein's mother was with the defendant "every moment" between 1994 and 1997, "it would be impossible for [her] to testify that [the] defendant did not commit the charged crimes, so whatever helpful testimony [she] might have offered (the details of which are sparse in the motion) would be easily undermined on cross-examination." Pierre-Louis, 2018 WL 4043140, at '4 (citing Spears, 159 F.3d at 1081-1085). Moreover, Epstein's mother died "sufficiently prior to `any realistic trial date,' to make it improbable that any prejudice it may have caused [the defendant] was the result of government delay." United States v. Cheung Kin Ping, 555 F.2d 1069, 1073 (2d Cir. 1977) (quoting United States v. Stein, 456 F.2d 844, 848 (2d Cir. 1972)). Indeed, Epstein's mother passed away before the Palm Beach Police Department even began investigating Epstein in 2005. (Def. Mot. 7, Ex. D at i). The defendant's claims relating to Michael Casey and Detective Recarey fare no better. She again speculates that Casey and Detective Recarey, who passed away in August 2017 and May 46 EFTA00039493

2018 respectively, would have testified, and that such testimony would have been exculpatory and would have materially helped the defense. (Def. Mot. 7 at 9-11). The defendant cannot establish that Casey and Detective Recarey would have testified in a way that would help, rather than hurt, the defendant. In particular, the defendant contends that Michael Casey, the purported agent of Minor Victim-1, "would be able to testify" about Minor Victim-I's behavior during the "relevant time period" and the "lack of any 'outcry' or `grooming.'" (Id. at 10). The defense suggests that Casey not having related any complaints about Maxwell to "any authority, Ms. Maxwell, or any other known witness" means that he knew of no complaints. (Id. at 9-10). As an initial matter, "there is no evidence before the Court as to what [Casey] would have testified." Scala, 388 F. Supp. 2d at 400. Even assuming that Casey would have testified as the defendant now contends, such testimony (which would be purely speculative and unsubstantiated) would also have no bearing on whether the abuse, in fact, occurred. The defendant argues that Detective Recarey would have testified that none of the witnesses with whom he spoke in connection with a prior investigation told him about the defendant participating in sex trafficking activities. (Def. Mot. 7 at 10-11). As a threshold matter, the defendant has not established how such testimony, which would consist entirely of hearsay, could even be admissible at the defendant's trial. Moreover, the fact that Epstein may have abused victims without the defendant's participation is not exculpatory as to charges alleging the defendant assisted in the grooming and abuse of other victims. The well-established law of this Circuit generally precludes a defendant from offering evidence that a defendant did not participate in criminal conduct on a particular occasion—or of her law-abiding conduct during uncharged periods or uncharged events—to rebut the Government's evidence with respect to the charged 47 EFTA00039494

crimes or events. See, e.g., United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) ("A defendant may not seek to establish h[er] innocence . . . through proof of the absence of criminal acts on specific occasions."); United States v. Chambers, 800 F. App'x 43, 46 (2d Cir. 2020) ("A single occurrence of lawful conduct is `simply irrelevant' to other occurrences of lawful conduct." (quoting United States v. Walker, 191 F.3d 326, 336 (2d Cir. 1999)); United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000) ("We reject Williams's assertion that the evidence of innocent travel was necessary to rebut the government's allegation that Williams had been involved in other cocaine importations from Jamaica. Although the government did argue that Williams had been involved in other importations, it did not allege that Williams had engaged in drug activity during these particular trips."); United States v. Fiwnano, No. 14 Cr. 518 (JFK), 2016 WL 1629356, at *7 (S.D.N.Y. Apr. 25, 2016) ("The principle is rather elementary. A defendant charged with robbing a bank in Manhattan on April 22 cannot offer as evidence to disprove the charged crime that he did not rob the bank's branches in Brooklyn or the Bronx on April 22 or that he did not rob the Manhattan branch on April 20, 21, 23, and 24, because this evidence is irrelevant to the charge that he robbed the Manhattan bank on April 22."); United States v. Gambino, 838 F. Supp. 744, 748 (S.D.N.Y. 1993). Inadmissibility aside, the Indictment specifically charges conduct between 1994 and 1997. That a different investigative team focused on Epstein's conduct in the early 2000s may not have uncovered evidence about the defendant's conduct in the 1990s has no bearing on the charges in this case, which was brought entirely independent of the prior SDFL investigation. Moreover, and as detailed further below, two of the victims referenced in the Indictment, Minor Victim-1 and Minor Victim-3, were never interviewed by the USAO-SDFL, and had never spoken to law enforcement until they met with this Office in late August and September 2019, after Epstein's 48 EFTA00039495

death." As such, it is neither surprising nor terribly probative of any issue in dispute in this case that Detective Recarey might have testified to a lack of knowledge as to what the victims identified in this Indictment have told the USAO-SDNY. In sum, the defendant has not put "specific evidence" before this Court demonstrating that the loss of Detective Recarey's testimony, even if admissible, has caused her actual prejudice. Scala, 388 F. Supp. 2d at 400. The defendant next contends that had the Government brought the charges earlier, she would have interviewed and subpoenaed as witnesses "the many Epstein employees that were present at the different locations during that three-year period." (Def. Mot. 7 at 11). She does not specify which employees she would have called as witnesses, the grounds for contending they are "lost" or "missing," whether they would have been willing to testify, or what admissible evidence they would have provided. She merely speculates that the evidence could have helped her defense. This is far from the definite proof of prejudice required to state a due process claim. See United States v. Greer, 956 F. Supp. 525, 528 (D. Vt. 1997) ("In the context of unavailable witnesses, the defendant must offer some grounds for his belief that the absent witness would have helped his case in a material way." (internal quotation marks and citation omitted)). The defendant also argues that "[m]any potential witnesses have been contacted in relation to this matter and other related litigations," noting that "[s]ignificant numbers of potential witnesses no longer remember when events may have occurred" or "who was present." (Def. Mot. 7 at 12). Dimming or fading memories over the passage of time are not in themselves sufficient to "demonstrate that [defendants] cannot receive a fair trial" or "justify the dismissal of the indictment." Marion, 404 U.S. at 326; Elsbery, 602 F.2d at 1059. Indeed, the fact that the defense described the witnesses as "potential witnesses" suggests that she might still call them. Further, 17 The third victim, Minor Victim-2, was interviewed previously by the FBI. The Government is not aware of Detective Recarey having participated in an interview of Minor Victim-2. 49 EFTA00039496

to the extent the passage of time affects the memories of witnesses who testify at trial, the defendant will have an opportunity to cross-examine such witnesses. See United States v. Harrison, 764 F. Supp. 29, 32 (S.D.N.Y. 1991) (noting that "the passage of time does affect witnesses' memories and it may be relevant to the credibility of their testimony" and that the Government also faces potential harms from the passage of time).18 Accordingly, the defendant's bald assertions regarding diminished memories of potential witnesses are speculative and, thus, fall short of the proof of actual prejudice required by the Supreme Court's standard in Marion. The defendant also claims that because of the delay in the prosecution, she does not have access to certain exculpatory documentary evidence. (Def. Mot. 7 at 12-14). Once again, this argument is entirely speculative. The defendant hypothesizes that if she had access to certain documentary evidence (some of which, such as travel records, has been produced in discovery), or evidence which she herself should have access to (e.g., her own emails from 1994 to 1997, her own phone records from 1994 to 1997, and her own travel records from 1994 to 1997), this evidence would have helped her. She offers no proof or basis for concluding that the records would be helpful. Even if such records were helpful, dismissal of the Indictment would be too extreme a measure in light of the relative significance of this form of evidence to other proof in the case. Thus, the defendant's claim that she no longer has access to certain evidence is not a proper basis to dismiss the Indictment. See United States v. Donau, 356 F. Supp. 1091, 1094 (S.D.N.Y. 1973) ("A bare allegation that records have been lost or destroyed, which might relate Ig The Government notes that it faces the same potential harms from the passage of time as does any party, including loss of witnesses through death or disappearance, diminishment of memories over the passage of time, and loss of evidence. The Government, of course, bears the burden of proof at trial, and as such, prosecutors have every incentive to bring cases as promptly as possible, when memories are fresh and when it is possible to identify corroborating witnesses and records. Any suggestion that the Government delayed bringing the instant case for over two decades for its own benefit or a tactical advantage borders on the absurd. 50 EFTA00039497

to the instant prosecution, is insufficient to show actual prejudice. .. . The fact that evidence may be lost or destroyed during the pre-indictment stage is inherent in any delay, no matter what the duration. Furthermore, there has been no allegation in this case that the destruction of the records was deliberate on the part of either the government or trustee." (internal citations omitted)). Lastly, the defendant contends that prejudicial media reporting and inappropriate pm-trial publicity from at least 2011 through the present has resulted in prejudice to the defendant. (Def. Mot. at 14). She claims that had the Government brought charges against her between 1996 and 2011, the Government "would have not prevailed," noting that the defendant's accusers would not have been "able to conform their `memories' to the often republished 'obvious lies.'" (Id. at 15). This argument, like the others contained in this motion, is steeped in speculation. The defendant cites not one case in support of her argument that pre-trial publicity can ever establish actual prejudice, nor does she point to any evidence that the Government fomented such publicity dating back to 2011. To the extent the defendant is concerned about pretrial publicity, she will have the opportunity to propose an appropriate examination of potential jurors during voir dire to identify a panel of impartial jurors who have not been prejudiced by any publicity this case may have garnered. In short, the defendant's complaints are nothing more than the type of self-serving, vague, speculative, and conclusory claims of prejudice that courts have consistently rejected as insufficient to warrant dismissal of charges based upon pm-indictment delay.19 The motion should therefore be denied. 19 The defendant also complains about the Government's failure to "provide discovery adequate to fully investigate the extent of the prejudice to Ms. Maxwell." (Def. Mot. 7 at 7). Among the items the defense complains about not receiving in discovery are the names and dates of birth of the Minor Victims, the specific location of any overt act, the date of any overt act, any witness statements, or any corroboration of any allegation in the Indictment. (Id.). As described herein, see Section X, infra, the Government has made substantial discovery productions pursuant to Rule 51 EFTA00039498

B. The Defendant Has Failed to Establish That the Government Delayed the Indictment for An Improper Purpose 1. Applicable Law If, and only if, a defendant has established significant, actual prejudice does the inquiry turn to the reason for the delay.20 See, e.g., Pierre-Louis, 2018 WL 4043140, at *5 ("Because Defendant failed to show prejudice, the Court need not even address the second prong."). The reason for delay violates due process only if it is so extreme that it departs from fundamental notions of "fair play."' United States v. Lovasco, 431 U.S. 783, 795 (1977). The Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly," Dowling v. United States, 493 U.S. 342, 352 (1990), and the Supreme Court has "stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government," Arizona v. Youngblood, 488 U.S. 51, 57 (1988). 16 of the Federal Rules of Criminal Procedure, which provides ample information about the charged crimes and the victims referenced in the Indictment. Additionally, many of the defendant's requests fall within the scope of the Government's Giglio and Jencks Act obligations, which the Government intends to produce at the appropriate stage in the litigation, well in advance of trial. 20 The defendant invites the Court to engage in a balancing test that weighs the prejudice to the defendant against the Government's reasons for delay. (Def. Mot. 7 at 5, 6 n.4). This Court should reject the defendant's invitation. The defendant cites United States v. Brand, 556 F.2d 1312, 1317 n.7 (5th Cir. 1977), for the proposition that a showing of prejudice triggers such balancing. (Def. Mot. 7 at 5). However, the Fifth Circuit subsequently rejected such a balancing test, finding that the "Brand footnote is pure dicta" and instead requiring that defendants demonstrate that the prosecution intentionally caused the delay to gain a tactical advantage over the defendant or "for some other bad faith purpose." United States v. Crouch, 84 F.3d 1497, 1509, 1512 (5th Cir. 1996). The defendant also cites that several Circuit courts, namely the Fourth, Seventh, and Ninth Circuits, require such a balancing test. (Def. Mot. 7 at 6 n.4). The Second Circuit, however, "has not adopted any balancing test, as the Fourth, Seventh and Ninth Circuits have, and its jurisprudence suggests that it would not do so." United States v. Santiago, 987 F. Supp. 2d 465, 490 (S.D.N.Y. 2013). Several other Circuits have also "refused to adopt a balancing test." Id. (collecting cases). This Court should follow that example. 52 EFTA00039499

The Second Circuit has clearly held that a defendant seeking the dismissal of an indictment filed within the statute of limitations must establish that the Government acted intentionally, deliberately, or with some strategy, and that the Government used that delay to gain a tactical advantage over the defendant. See, e.g., Cornielle, 171 F.3d at 752 (delay must be "intentional device to gain [a] tactical advantage over the accused"); see also United States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003) ("To show unjustifiable conduct, a defendant must demonstrate that the government has intentionally used delay to gain unfair tactical advantage."); see also United States v. Delacruz, 970 F. Supp. 2d 199, 203 (S.D.N.Y. 2013) ("Delacruz's motion to dismiss would nevertheless fail for the independent reason that he has not made any showing that the preindictment delay was an intentional device designed by the Government to gain a tactical advantage."); United States v. Martinez, No. 94 Cr. 219 (RPP), 1995 WL 10849, at ■4 (S.D.N.Y. Jan. 12, 1995) ("In order to establish improper delay by the Government in filing an indictment, a defendant must show that the delay was the result of an intentional device of the Government to gain tactical advantage over the accused." (internal quotation marks and alterations omitted) (citing United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987))). Indeed, some version of the phrase "deliberate device" and "tactical advantage" is found in nearly every Second Circuit decision on the issue. See, e.g., Alameh, 341 F.3d at 176 ("intentionally used delay to gain unfair tactical advantage"); Cornielle, 171 F.3d at 752 (requiring "intentional device" to gain "tactical advantage"); Lawson, 683 F.2d at 694 (delay not "engineered by the government for an improper purpose, such as gaining a tactical advantage"); Snyder, 668 F.2d at 689; United States v. Watson, 599 F.2d 1149, 1157 n.5 (2d Cir. 1979); United States v. Tanu, 589 F.2d 82, 89 (2d Cir. 1978); United States v. Laurenti, 581 F.2d 37, 40 n.11 (2d Cir. 1978); United States v. Hillegas, 578 F.2d 453, 460 (2d Cir. 1978). 53 EFTA00039500

2. Discussion Even if the defendant could establish any actual prejudice—which she cannot—such prejudice would be "necessary but not sufficient" to establish a due process claim. Lovasco, 431 U.S. at 790. The defendant's motion fails because she has not demonstrated the other necessary element to prevail: that the claimed delay by the Government was intentional and deliberate to gain a strategic advantage. Here, as in Lovasco, any pre-indictment delay was the result of the Government's continuing investigation of the case. The Lovasco Court held that the investigative delay did not deprive the defendant of his due process rights and noted that imposing a duty upon prosecutors to file charges as soon as probable cause exists "'would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself."' Id. at 791 (quoting United States v. Ewell, 383 U.S. 116, 120 (1966)). The same is true in the present case. The defendant has not shown—and cannot show— that the Government caused any pre-indictment delay in this case to gain a tactical advantage. The defendant argues that "[t]actical, reckless, and bad faith motives can reasonably be inferred from the way the government has ignored evidence, delayed any prosecution, enlisted partisan lawyers to do its bidding, circumvented established precedent to illegally obtain evidence, and misleadingly quoting banal testimony so that it could be labeled `perjury."' (Def. Mot. 7 at 15). But rhetoric aside, the defendant offers nothing beyond baseless speculation in support of her claims. The defendant claims a twenty-six-year delay on the part of the Government in bringing Counts One through Four and a four-year delay as to Counts Five and Six. (Def. Mot. 7 at 4). That is not so. The USAO-SDNY opened its investigation into Epstein and his co-conspirators in late November 2018. See Section IV, infra. Epstein was charged by indictment on July 2, 2019. Thereafter, the Government continued its investigation, which included interviewing two victims 54 EFTA00039501

(Minor Victim-1 and Minor Victim-3) for the first time. In particular, Minor Victim-1 first agreed to be interviewed in September 2019, and Minor Victim-3 first agreed to be interviewed in August 2019.21 The Government conducted multiple additional interviews of both victims, as well as other witnesses, and took additional investigative steps over the next several months before it was prepared to seek an indictment charging the defendant. Those two victims were critical to the investigation, as they helped form the basis of the charges in the Indictment, which the Government sought on June 29, 2020, less than a year after the victims came forward. That period of time— and, in particular, less than one year between when key victims came forward and the Indictment was obtained—cannot possibly give rise to a colorable due process violation.11 See Cheung Kin Ping, 555 F.2d at 1072 (finding that "the government is not responsible for a period of delay during which an important witness is unavailable to it" and describing the delay as the period between the witness's cooperation and the date of indictment); United States v. Rubinson, 543 F.2d 951, 961 (2d Cir. 1976) ("If there was any intentional delay in returning the instant indictment, it was due in significant measure to the refusal of critical witnesses until 1973 to reveal what they knew."). Cf. Lovasco, 431 U.S. at 796 ("Rather than deviating from elementary standards of fair play and decency, a prosecutor abides by them if he refuses to seek indictments until he is completely 21 While the Government is proffering these facts for purposes of this Motion, the underlying information, which is contained in the FBI 302 reports of interviews with the victims, will be produced to the defense as 3500 material in advance of trial. n In this respect, the Government notes that significant aspects of the defendant's argument rest on a faulty premise: i.e., that the Government could have indicted the defendant at any time between 1994 and 2020, but simply chose not to do so for tactical reasons. As noted above, two key witnesses who helped give rise to the instant charges did not agree to speak law enforcement until 2019, facts that significantly undercut the notion that the Government was intentionally sitting on a criminal case against the defendant for any meaningful period of time. Cf. Ex. 3 (OPR Report) at 81 ("Villafafia told OPR that, apart from the women named in the NPA, the investigation had not developed evidence of `any other potential co-conspirators.'"); id. at 167 (with respect to Maxwell, "according to Villafafia, in 2007, they `didn't have any specific evidence against her."). 55 EFTA00039502

satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt." (internal quotation marks and citations omitted)). Moreover, even if the Court were to determine that a twenty-six-year period of delay were applicable here, the defendant's motion should be dismissed because she failed to show that the Government acted improperly to obtain a tactical advantage. See, e.g., Pierre-Louis, 2018 WL 4043140 (denying motion to dismiss for pre-indictment delay as to conduct charged in 2016 involving sexual abuse of minors from 1998 to 2007 as defendant failed to satisfy both prongs of pre-indictment delay standard); United States v. Burke, No. 09 Cr. 135 (SO, 2011 WL 2609837, at *7 (E.D.N.Y. July 1, 2011) (denying motion to dismiss indictment based on thirty-year pre- indictment delay because even if unavailability of alibi witnesses were prejudicial, defendant failed to show that government delayed for its own benefit); United States v. Carbonaro, No. 02 Cr. 743 (RCC), 2004 WL 2222145 (S.D.N.Y. Sept. 30, 2004) (in a racketeering conspiracy case in which a 14-year-old murder was alleged as a predicate act, finding that, even assuming defendant had shown actual prejudice, defendant's motion to dismiss based on pre-indictment delay failed because defendant supplied no evidence that government's conduct was for an improper purpose). The defendant claims that the Government intentionally delayed the indictment in this case with a prescient view towards capitalizing on civil litigation. For instance, Maxwell asserts that it "has been advantageous to the government to have aggressive lawyers collecting information from Ms. Maxwell as part of civil discovery and disseminating that information to the public, as part of an ongoing campaign to vilify Ms. Maxwell." (Def. Mot. 7 at 16). She again cites the subpoena the Government issued to Boies Schiller & Flexner LLP ("Boles Schiller") to obtain materials from the Giuffre civil litigation. (Id.). Leaving aside the fact that, as set forth in Section IV, the Government obtained such materials through a judicially approved and entirely appropriate 56 EFTA00039503

process, the inference that the defendant urges this Court to draw—that the Government delayed seeking an indictment to gain a tactical advantage and did so through strategy in the pending civil litigation—is both unsupported by the record and illogical. The defendant makes much of the Government having moved to intervene and stay the proceedings in Doe v. Indyke, No. 20 Civ. 484 (JGK), while the Government has not moved to stay Giuf•e v. Maxwell. (Def. Mot. 7 at 16-19). She suggests that there is some "sharp contrast" between the Government's actions in the various civil matters, which "establish a strong inference that as long as the government stood to gain a tactical advantage by delaying the indictment .. ., it would not move to intervene." (Id. at 19). Setting the defendant's conspiracy theories aside, the civil matters were in completely different procedural postures, which implicate different concerns regarding a pending criminal case. The Giuffre v. Maxwell litigation was settled and complete well before the Government even opened its investigation in this case. By contrast, the Doe v. Indyke case was initiated after the Government opened its investigation and remained ongoing after the Indictment in this case was filed.23 The defendant quotes the Government's letter to Judge Freeman requesting permission to intervene and stay Doe v. Indyke (see id.), but omits the portion of that letter in which the Government explained that, as far as it was aware, Doe v. Indyke was the "lone case in this District that has not yet been either resolved or stayed at this point. . . In 23 In particular, Giuffre v. Maxwell was resolved in 2017 and the determination of what material should remain sealed remains the only open issue. Accordingly, there is no more discovery to be conducted in the Giuffre case and no possible concern to the Government that, for example, its trial witnesses in the criminal case might be deposed in that civil case. In Doe v. Indyke, on the other hand, discovery was just beginning, and if discovery were to have proceeded, multiple witnesses or potential witnesses at the criminal trial would likely have been subject to deposition. That concern, among others, raised a significant risk that proceeding with the civil matter would adversely affect the ongoing criminal prosecution against the defendant. Moreover, the interests of judicial economy and the public interest in enforcement of the criminal law were served by a stay in the Doe case because the outcome of the criminal case could resolve disputed issues in the Doe case. Such concerns are not present in Giuffre v. Maxwell. 57 EFTA00039504

particular, this matter appears to be the only remaining active civil case in this District in which claims against Ghislaine Maxwell have been asserted." (20 Civ. 484 (DCF) (JGK), Dkt. No. 80 at 2). The defendant's baseless conjecture about the Government's supposedly nefarious reasons for delaying her prosecution are not sufficient to support a dismissal of the Indictment. The defendant ignores the fact that cases such as this one take time to investigate and indict. The defendant also suggests that the Government engaged in reckless disregard of circumstances that would likely impede her ability to mount an effective defense. (Def. Mot. 7 at 5-6, 15). As an initial matter, this argument falls short of "a standard that requires a showing of intentionality." United States v. Wey, No. 15 Cr. 611 (AJN), 2017 WL 237651, at *13 n.8 (S.D.N.Y. Jan. 18, 2017).24 While this Court in Wey did not foreclose the possibility of recklessness sufficing under certain circumstances, much as in Wey, "the instant case does not require this Court to pass on the issue," id., because there is no evidence of recklessness in this case. To the contrary, as detailed above, the Government acted promptly in bringing criminal charges shortly after two key victims whose testimony helped give rise to those charges first agreed to speak with law enforcement. Baseless speculation aside, the defendant offers no argument or evidence as to how or why the Government acted recklessly here. In sum, not only does the defendant fail to demonstrate actual, non-speculative prejudice owing to pre-indictment delay, but she also fails to establish that the Government intentionally 24 This Court has noted "some disagreement among the district courts in this Circuit as to whether reckless—as opposed to intentional—disregard of circumstances . . . may support a due process challenge based on pre-indictment delay," but concluded that "the pertinent decisions [], on balance, more plainly comport with a standard that requires a showing of intentionality." Wey, 2017 WL 237651, at *13 n.8 (citing Cornielle, 171 F.3d at 752 (defendant bears burden of showing that "delay was a course intentionally pursued by the government for an improper purpose") (emphasis added)); see also United States v. Gonzalez, No. 00 Cr. 447, 2000 WL 1721171, at *1 & n.1 (S.D.N.Y. Nov. 17, 2000) ("Neither the Supreme Court nor the Second Circuit . . . has adopted this alternative [recklessness] standard."). 58 EFTA00039505

manufactured any alleged delay to gain a tactical advantage over her. She has "offered no credible evidence to suggest that the Government tarried in bringing charges against [her] solely to gain some prosecutorial advantage." Pierre-Louis, 2018 WL 4043140, at *5. As such, because the defendant cannot meet her "heavy burden" of showing both actual prejudice and unjustifiable Government conduct, her motion to dismiss the Indictment for pre-indictment delay should be denied.25 IV. The Court Should Deny the Defendant's Motions to Suppress The defendant moves to suppress evidence the Government obtained pursuant to a grand jury subpoena issued to Boies Schiller and to dismiss Counts Five and Six under the Due Process Clause, the Fourth Amendment, the Fifth Amendment, and the Second Circuit's decision in Martindell v. Intl Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979). (Def. Mots. 3 & 11). In particular, the defendant contends that the Government violated the Second Circuit's decision in Martindell and misled Chief Judge McMahon in obtaining the modification of a protective order. She also contends the subpoena was overly broad and amounted to an unlawful search of materials in which she had a reasonable expectation of privacy, as well as an infringement of her privilege against self-incrimination. Although the defendant styles her request for relief as two separate 25 The defendant asks the Court for leave to supplement her motion "after the government provides her with meaningful discovery" and notes that "after the disclosure of meaningful discovery, [she] may request that the Court defer ruling on this motion until after any trial if the indictment has not been dismissed on other grounds." (Def. Mot. 7 at 1). As noted above and discussed further in Section X, infra, the Government has complied with its Rule 16 obligations and will produce Giglio and Jencks Act materials well in advance of trial. The Court should reject the defendant's invitation to defer ruling on this motion. See, e.g., United States v. Muric, No. 10 Cr. 112 (LTS), 2010 WL 2891178, at *1 (S.D.N.Y. July 13, 2010) ("The motion to dismiss the Indictment as the result of pre-indictment delay is therefore denied, without prejudice to appropriately supported later motion practice."); United States v. Drago, No. 18 Cr. 0394 (SJF) (AYS), 2019 WL 3072288, at *2 (E.D.N.Y. July 15, 2019) (denying motion to dismiss on the ground of pre-indictment delay without prejudice to renewal). 59 EFTA00039506

motions, the suppression motions overlap in fact and argument, and accordingly, the Government responds to both motions in this section. As set forth herein, the defendant's suppression motions challenging a judicially approved grand jury subpoena should be denied without a hearing for multiple reasons. As an initial matter, the defendant's claim that the Government "circumvented" Martindell fails because the Government issued a valid grand jury subpoena, sought judicial authorization to permit compliance with the subpoena, and obtained materials from Boies Schiller that otherwise would have been covered by the relevant protective order only after receiving such authorization. In any event, even if the Government's motion did not satisfy Martindell, Martindell provides no basis to suppress evidence, and the defendant cites no authority in support of that request. Second, the defendant's claim that the subpoena was a warrantless search in violation of the Fourth Amendment fails because she has not established standing to challenge a judicially approved grand jury subpoena issued to a third party, and because the subpoena was entirely lawful. Even if she had standing, her claim still fails because suppression would be improper under the good faith exception and the inevitable discovery doctrine. Third, the defendant's claim that the subpoena violated her Fifth Amendment rights fails because, among other things, such a violation requires coercion and state action. Fourth, the defendant's claim that the Government violated the Due Process Clause is meritless, as the Government's conduct was not, by any reasonable definition, outrageous or conscience shocking. And finally, the defendant's request for a hearing should be denied because she has proffered no admissible evidence to support her accusations of Government misconduct; instead, she relies entirely on an anonymously sourced article that, as detailed herein, she cites to describe certain events that simply did not occur. Accordingly, the defendant's suppression motions should be denied. 60 EFTA00039507

A. Factual Background The defendant's motion is, at its core, premised on a false factual narrative. The defendant alleges, based on a New York Daily News article, that Boies Schiller and the Government colluded starting in at least early 2016 with the "precise[] design[]" of having the defendant "charged with perjury." (Def. Mot. 3 at 10). In particular, she claims that Boies Schiller met with the Government in February 2016, urged the Government to open an investigation of Epstein and Maxwell, told the Government what was in its files, and met with the Government again in the summer of 2016 to ask if it would consider charging the defendant with perjury after her two depositions. (Id. at 2, 8). That is not so. While a now former Assistant United States Attorney ("AUSA-1") met with a lawyer from Boies Schiller and two other attorneys about Epstein in February 2016, that meeting was not focused on the defendant, and AUSA-1 did not participate in a second meeting with those attorneys. Moreover, that February 2016 meeting pre-dated the depositions that gave rise to the perjury counts in the Indictment, which itself was obtained more than four years thereafter.26 The Indictment was instead the product of an investigation that was not opened until late 2018 and that had nothing to do with a meeting that had taken place nearly three years earlier with an AUSA who played no part in the decision to open the 2018 investigation and similarly played no part in the 2018 investigation itself. 1. The Civil Lawsuit against Maxwell In or about September 2015, Giuffre, represented by Boies Schiller, filed a civil defamation lawsuit against Maxwell in the Southern District of New York. (See 15 Civ. 7433 (LAP), Dkt. 26 While, as discussed herein, the Government has uncovered evidence of a phone call from one of the attorneys, Stan Pottinger, to AUSA-1 in early May 2016, AUSA-1 has no specific memory of that call, nor did AUSA-1 provide any notes or records of that call to the team working on the instant investigation. 61 EFTA00039508

No. 1). In short, Giuffre alleged that Maxwell had defamed her when Maxwell stated that Giuffre was not the victim of sex crimes perpetrated by Epstein and Maxwell. Giuffre alleged that Maxwell had made those false statements for the "malicious purpose of further damaging a sexual abuse and sexual trafficking victim; to destroy Giuffre's reputation and credibility; to cause the world to disbelieve Giuffre; and to destroy Giuffre's efforts to use her experience to help others suffering as sex trafficking victims." (Id. at 8). 2. February 2016 Meeting Attorney Peter Skinner of Boies Schiller contacted AUSA-1, who was at that time the Human Trafficking and Project Safe Childhood Coordinator of the USAO-SDNY, to request an opportunity for him and other attorneys to meet with AUSA-1 to present on a potential case. (See Ex. 4 at 1).22 AUSA-1 agreed to the meeting, and on or about February 29, 2016, AUSA-1 met with three attorneys—Peter Skinner of Boies Schiller, Brad Edwards, and Stan Pottinger— regarding Jeffrey Epstein. (See Ex. 4 at 1). Edwards and Pottinger were also attorneys for Virginia Roberts Giuffre, who had alleged that she is a victim of sex crimes perpetrated by Epstein and Maxwell.28 (Ex. 5 at 1).29 At the meeting, Edwards provided AUSA-1 with details about, among other things, the USAO-SDFL's prior investigation of Epstein, as well as Giuffre's personal history and experience with Epstein. (See Ex. 5). The focus of the meeting was on Epstein, and AUSA-1 understood that the attorneys were advocating that the USAO-SDNY open an investigation into Epstein. (See Ex. 22 On February 11, 2021, to help gather facts relevant to the reporting contained in the New York Daily News article, the USAO-SDNY and the FBI conducted a telephonic interview of AUSA-1. Notes of that interview are attached as Exhibit 4. 28 Peter Skinner of Boies Schiller is not listed on the docket as an attorney representing Giuffre. " AUSA-1's notes from the February 29, 2016 meeting are attached as Exhibit 5. 62 EFTA00039509

4 at 1, 4). During the meeting, the attorneys referenced multiple individuals who worked for and/or helped Epstein, including Maxwell, but the attorneys primarily focused their presentation on Epstein. (See id. at 1-2, 4). The attorneys did not present particular criminal statutes that might be pursued by the USAO-SDNY or make suggestions about investigative steps, nor did they suggest the use of civil lawsuits as a means to conduct a criminal investigation. (Id. at 2-3). AUSA-1 did not tell the attorneys whether or not an investigation would be opened, consistent with her standard practice. (Id. at 3). After the meeting, AUSA-1 received a limited number of emails from the attorneys (see Exs. 6 & 7).30 AUSA-1 did not participate in a second meeting with those attorneys and has never met David Boies. (See Ex. 4 at 4). AUSA-1 recalls being aware of depositions as a general matter, but she does not recall having knowledge of who had been deposed or the substance of the depositions. (Id. at 5). AUSA- 1 does recall thinking through the challenges of a potential perjury investigation, but she does not recall who specifically would have been he target of such an investigation. (Id.). AUSA-1 does not recall being asked if the USAO-SDNY would consider charging Maxwell with perjury. (Id.). Moreover, and critically for present purposes, the meeting described above pre-dated the depositions which give rise to the perjury counts in the instant Indictment, making it all but impossible that the attorneys suggested, during that February 2016 meeting, that Maxwell had committed perjury in depositions that, as detailed below, had yet to occur. The Government has also conducted a review of AUSA-1's emails in an effort to determine whether any further contacts occurred. One email dated May 3, 2016 from Pottinger to AUSA-1 appears to suggest that AUSA-1 spoke with Pottinger on or about May 2, 2016 by telephone (see 3° AUSA-1 left the USAO-SDNY in 2019. Since receiving the Defense Motions, the Government has searched AUSA-1's archived emails for any email communications with attorneys from Boies Schiller or the other attorneys who participated in the February 2016 meeting. The Government is producing all identified emails to defense counsel today. 63 EFTA00039510

Ex. 7), but AUSA-1 does not recall the details of that conversation (see Ex. 4 at 4), nor is the Government aware of any notes or other records documenting the substance of the call. The Government has not identified any records that suggest AUSA-1 ever communicated via email with Pottinger, Edwards, Skinner, or any other attorney at Boies Schiller regarding this matter after May 3, 2016. The USAO-SDNY did not open an investigation into Epstein or Maxwell in 2016. (Id. at 4). 3. The April and .luly 2016 Depositions of Maxwell On March 2, 2016, Maxwell moved for entry of a protective order for materials produced in discovery and submitted a proposed order for the consideration of the Honorable Robert W. Sweet, the United States District Judge who was then overseeing the Giuffre v. Maxwell civil litigation. (See 15 Civ. 7433 (LAP), Dkt. Nos. 38 & 39-1). On or about March 4, 2016, Boies Schiller represented that Giuffre did not oppose the entry of a protective order, but opposed the form proposed by Maxwell out of concern that it was overly broad and could lead to over- designation of material as confidential. (See 15 Civ. 7433 (LAP), Dkt. No. 40 at 2). Boies Schiller submitted a redline of Maxwell's proposed protective order, deleting some provisions and adding language that confidential material could be disclosed to law enforcement. (Def. Mot. 3, Ex. B). On March 18, 2016, Judge Sweet entered a protective order governing the discovery and dissemination of confidential information after the parties agreed to the form of the order originally proposed by Maxwell. (See 15 Civ. 7433 (LAP), Dkt. No. 62; see also Def. Mot. 3, Ex. G at 2-3). 64 EFTA00039511

The protective order, among other things, restricted the parties from disclosing discovery materials marked confidential to third parties, absent express permission from the Court. In connection with the defamation suit, Maxwell was deposed by Boies Schiller, counsel for Giuffre, on April 22, 2016 and July 22, 2016. On or about May 24, 2017, the parties entered into a settlement agreement and voluntarily dismissed the civil action. (See 15 Civ. 7433 (LAP), Dkt. No. 916). Boies Schiller has continued to represent Giuffre in post-settlement litigation. Giuffre v. Maxwell, No. 18-2868 (2d Cir.); Giuffre v. Maxwell, No. 20-2413 (2d Cir.). 4. The USAO-SDNY Commences the Instant Investigation in 2018 On or about November 29, 2018, the USAO-SDNY initiated its investigation into Epstein and possible co-conspirators, and formally opened the investigation by completing the requisite paperwork to open an investigation on or about November 30, 2018. The investigation was prompted by a series of articles published by the Miami Herald earlier that same week relating to Epstein, his conduct, and the circumstances of his prior conviction. See Julie K. Brown, "Even from Jail, Sex Abuser Manipulated the System. His Victims Were Kept in the Dark," Miami Herald (Nov. 28, 2018).31 AUSA-1 was not involved in the decision to open the investigation or in the investigation itself. (See Ex. 4 at 6). Indeed, AUSA-1 stopped serving as the Office's Human Trafficking and Project Safe Childhood Coordinator as of April 2017. Shortly after initiating the investigation, the prosecutors involved in the investigation learned of the prior February 2016 meeting and requested copies of AUSA-1's notes and records 31 Indeed, on July 8, 2019, at the press conference following the arrest of Epstein, Geoffrey S. Berman, then United States Attorney for the Southern District of New York, stated that while he was not "going to go into any aspects of how our investigation originated[,] I will say that we were assisted from some excellent investigative journalism." 65 EFTA00039512

from that meeting. On or about December 6, 2018, AUSA-1 provided the prosecutors with her notes from the February 2016 meeting (which are attached as Exhibit 5) and documents the attorneys provided.32 5. The USAO-SDNY's Subpoenas and Ex Pane Applications for Materials Shortly after opening the investigation in late November 2018, the Government identified possible victims and their counsel through public filings or media reports, which included Boies Schiller. (Def. Mem. 3, Ex. E at 2-3). The USAO-SDNY first contacted Boies Schiller about its investigation on or about December 18, 2018. Shortly thereafter, in or about December or January 2018, the Government indicated to Boies Schiller that it intended to make document requests. Boies Schiller generally advised the Government that a protective order would govern some of the materials. (Id. at 3). In or about February 2019, approximately two months after the USAO-SDNY opened its investigation (and almost three years after the February 29, 2016 meeting described above), the USAO-SDNY issued two criminal grand jury subpoenas to Boies Schiller. One of the subpoenas requested non-privileged documents relating to Giuffre v. Maxwell, 15 Civ. 7433 (RWS); the other 32 The Government has reviewed the file that AUSA-1 provided to the prosecution team on or about December 6, 2018 and understands, based on a review of that file, that at the February 2016 meeting, AUSA-1 received copies of Epstein's black book, flight records, and Palm Beach Police Department reports. Although AUSA-1 does not now recall the attorneys providing her with any documents at the meeting (Ex. 4 at 2), an email she sent to the prosecution team on December 6, 2018 refers to these documents as materials that the attorneys provided at the meeting. The Government notes that as of March 7, 2016, one week after AUSA-1's February 29, 2016 meeting with the attorneys when she received these documents, Maxwell had only produced two emails in response to Giuffre's discovery requests. (See 15 Civ. 7433 (LAP), Dkt. No. 43 at 1-2). None of the documents apparently provided to AUSA-1 during the February 2016 meeting was an email. Accordingly, the Government has no reason to believe that Giuffre's counsel provided AUSA-1 with any discovery materials from the Giu&•e v. Maxwell civil case. AUSA-1 also does not believe she ever received any such discovery materials. (Ex. 4 at 6). 66 EFTA00039513

requested the same relating to Jane Doe 43 v. Epstein, et al., 17 Civ. 0616 (JGK) (SN). Because of the ongoing and covert nature of the grand jury investigation, and consistent with its standard practice under such circumstances, the Government did not notify the defendant or her counsel that it had issued the subpoenas. In response to receiving the subpoenas, Boies Schiller began producing materials not covered by the protective orders in the relevant civil cases. However, Boies Schiller also had advised the Government that although it would not otherwise contest compliance with the subpoenas, it believed that the protective orders precluded full compliance.33 (Exs. 8 & 9). Accordingly, the Government applied a pate and under seal to each relevant court (Judge Sweet and Magistrate Judge Sarah Netbum, respectively) to request that each court modify the respective protective orders to permit compliance with the subpoenas. (Def. Mot. 3, Ex. C). Following a request by Judge Sweet for briefing supporting the Government's initial application, see Del Mot. 3, Ex. D at 4, 20; Ex. G at 6, the Government submitted a pane and sealed letters in support of its applications to each court on or about February 28, 2019. (Exs. 8 & 9). The Government wrote, "Where, as here, a grand jury subpoena has validly issued, and the recipient of the subpoena is not contesting compliance—but rather seeking authorization to comply with the subpoena—a court should grant such permission through limited modification of an applicable protective order, absent countervailing interests not present in this case." (Id. at 2). The Government submitted that the court was "best guided" by Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91, 93 (S.D.N.Y. 1994), in which the court rejected an application for a party in civil litigation to be held in contempt for complying with a grand jury subpoena by producing 33 Significantly, and as detailed herein, Boies Schiller did not produce to the Government any materials subject to the protective orders until, as further described below, it received an order granting it the ability to do so in one of the civil cases. 67 EFTA00039514

materials in violation of a protective order, without first obtaining authorization from the court, because the court would have granted such authorization had it been sought. (Id.). The court also stated that such formal judicial approval could be obtained ex pane if sufficient reason was provided. (Id.). In its letters, the Government noted that its "specific knowledge of the subject matter of discovery materials is relatively limited, due to the confidential nature" of the litigation. (Id. at 2 n.1). The Government also submitted that the court need not employ the Martindell balancing test to evaluate the Government's ability to obtain access to materials covered by a protective order because (1) the Martindell balancing test generally relates to "instances where the Government sought protected information without [ ] grand jury process" and (2) "any presumption against modification of a protective order is unreasonable where, as here, the protective order is on its face temporary or limited." (Id. at 3-4). 6. Proceedings before Chief Judge McMahon a. March 26, 2019 Hearing Judge Sweet passed away in March 2019 before ruling on the Government's application. After Judge Sweet's death, but before the civil case was reassigned to a new judge, Chief Judge McMahon took up the Government's application. Chief Judge McMahon subsequently inquired about the Government's application in two transcribed ex pane and sealed hearings. (Def. Mot. 3, Exs. D & E). At the first hearing, on March 26, 2019, Chief Judge McMahon inquired as to why Boies Schiller did not make an application for permission to be relieved from the protective order, to which the Government replied that it could not "speak to why Boies Schiller in particular didn't make their own application." (Def. Mot. 3, Ex. D at 3). The Government further noted that Boies Schiller "simply isn't in a position to be able to describe the investigation in the way that we have in our submission." (Id. at 11-12). Chief Judge McMahon noted that she believed that 68 EFTA00039515

Martindell was applicable. (Id. at 3). She stated that were the Government's application disclosed to the parties, "Maxwell would protest" and argue that the Government lacked standing as it was not a party to the protective order. (Id. at 8). In response to questions from Chief Judge McMahon, the Government explained that the protective order, on its face, did not implicate the types of confidential business information or trade secrets ordinarily considered by courts in conducting the Martindell balancing test. (Id. at 13). Chief Judge McMahon stated that the protective order did not contain a provision allowing a party to the order to disclose materials requested by law enforcement without permission of the court, noting her understanding that "it may have been negotiated out." (Id. at 14-15). The court inquired whether the Government's position was that "reliance on the nondisclosure of confidential materials to law enforcement in connection with a grand jury subpoena that has been duly authorized would be unreasonable." (Id. at 14). The Government responded in the affirmative, stating that the Government believed a provision precluding compliance with a law enforcement request would be void for public policy. (Id. at 15). The Government further cited Chemical Bank in support of the proposition that it would be unreasonable to rely on a protective order provision that barred the disclosure of information to law enforcement. (Id. at 15-16). In response to questions about the breadth of the subpoena, the Government explained that it was "essentially unable to significantly narrow the request for information . . We have either little or no additional information than the Court does in terms of what materials there are [and] who was deposed." (Id. at 17). In response to Chief Judge McMahon's question about the privacy interests implicated by the protective order, (id. at 16-17), the Government also noted that it was dissimilar to an ordinary third-party intervenor in that it would be "extremely restricted" in its use 69 EFTA00039516

of the materials in light of the "extraordinary protections" of Federal Rule of Criminal Procedue 6(e). (Id. at 17-18). Finally, Chief Judge McMahon also inquired whether the materials sought by the Government might be used to commence criminal proceedings against either of the parties to the libel case, i.e., including Maxwell. (Id. at 18). The Government acknowledged that possibility as a general matter. (Id.). Chief Judge McMahon noted that the parties to the protective order relied on that order "in order to give whatever in discovery they gave, whether it was deposition testimony they gave or — then again, I can't fathom why anybody who has any criminal exposure would not have taken the Fifth Amendment in response to questions in a civil deposition, but I don't know." (Id. at 18-19). The Government stated, "I do not know, but I think it is entirely possible that what we are seeking is page after page of people taking the Fifth. That is entirely possible. But to the extent that it is not or there are other materials -- and this may be bad for our argument, but in all transparency and candor, I think there may be other individuals who also relied on the protective order." (Id.). The Government further explained that it "want[ed] to have a formal application" for the relevant materials and took that approach to "avoid the types of problems" created by other less formal government requests in other cited cases. (Id. at 20). b. April 9, 2019 Hearing Chief Judge McMahon held another conference on April 9, 2019. She stated that she wanted "to make sure I'm not in a Chemical Bank kind of situation, so I would like to know about contacts between [the USAO-SDNY and Boies Schiller] prior to the issuance of the subpoena on the subject of your investigation." (Del Mot. 3, Ex. E at 2 (emphasis added)).34 In Chemical 34 Tellingly, Maxwell omits the italicized portion of this question from her motion, thereby stripping important context from the nature of Chief Judge McMahon's question which, as asked, was focused on "your investigation." (See Def. Mot. 3 at 7). 70 EFTA00039517

Bank, of course, as noted above, the subpoena recipient produced materials to a prosecutor in direct violation of the relevant protective order, without seeking a modification of the protective order and without any court authorization to do so. 154 F.R.D. at 93. Moreover, in that case, the District Attorney seemingly opened its investigation and issued the subpoena in direct response to information provided by the subpoena recipient who was then a party to civil litigation. Id. The Government responded to Chief Judge McMahon by explaining its contacts with Boies Schiller in connection with the instant (and only) investigation it had opened on Epstein, that is, the investigation prompted by, and opened following, public reporting on Epstein in November 2018. In particular, the Government explained that the USAO-SDNY opened an investigation first, on either November 30, 2018 or December 3, 2018, and then made contact with Boies Schiller shortly thereafter. (Def. Mot. 3, Ex. E at 2-3). In this respect, the Government further explained that the USAO-SDNY, after opening the investigation, had endeavored to identify counsel who represented victims or witnesses in public filings or media reports, which included Boies Schiller, noting that "[w]ith respect to Boies Schiller in particular, we quickly came to learn during the investigation that they had at the time either active or recently completed civil litigation" and indicated that the USAO-SDNY intended to make document requests. (Id.). The Government also noted that, unlike in Chemical Bank, here Boies Schiller had informed the Government that it would be unable to comply with the subpoena in light of the protective order. (Id. (noting that Boies Schiller "generally advised us that they believed there was a protective order that would govern at least some of the materials, and that is why we ultimately made the application to the Court.")). c. Chief Judge McMahon's Memorandum and Order 71 EFTA00039518

On or about April 9, 2019, Chief Judge McMahon granted the Government's application and issued a memorandum and order. (Def. Mot. 3, Exs. F & G). The Court noted that while the Government's application was procedurally "[i]rregular," there was precedent for granting the Government's request and, therefore, the Court would consider the application. (De£ Mot. 3, Ex. G at 6, 8-9). The Court found that, contrary to the Government's arguments, it was appropriate for the Court to analyze the Government's application in light of the Martindell factors. (Id. at 9- 12). In so doing, Chief Judge McMahon considered, among other things, "the degree to which . . . the party who could be expected to oppose unsealing[] reasonably relied on the protective order." (Id. at 16). She concluded that such reliance was unreasonable. (Id. at 22). She evaluated the factors under Second Circuit case law that are relevant to assessing whether a party's reliance on the protective order was reasonable, namely the scope of the protective order, the language of the order itself, the court's level of inquiry before granting the order, and the nature of reliance on the order. (Id. at 17). She concluded that first three factors favored granting the Government's application for modification. (Id. at 17-20). Chief Judge McMahon noted that, as the order "plainly gives the court the power to enter an order compelling disclosure to anyone—law enforcement included—Maxwell could not reasonably have relied on the absence of automatic permission for such disclosure to shield anything she said or produced from a grand jury's scrutiny." (Id. at 18-19). As to the last factor, Chief Judge McMahon found that "the nature of the parties' reliance on the order does seem to weigh against modification." (Id. at 20). She noted that the record indicated that "Giuffre likely could not have secured Maxwell's deposition—at least in the absence of substantial court involvement—without" the protective order. (Id.). "However, the only thing 72 EFTA00039519

on which Maxwell or anyone else might reasonably have relied is that Giuffre or her lawyers would not do what the defendant in Chemical Bank did—that is, forward discovery materials in their possession to prosecutors for the purpose of fomenting an investigation. But I am not faced with that situation." (Id. at 21). Chief Judge McMahon further stated, "Nothing in this record suggests to me that Giuffre or Boies Schiller had anything to do with the Government's decision to convene a grand jury to look into the matters that were the subject of the [civil lawsuit]." (Id.). Instead, she explained that the Government informed the Court that it had "contacted Boies Schiller as part of its search for parties who might have been victims in its investigation; and that Boies Schiller told the Government that it could not consensually produce at least some documents in its files because of the existence of the Protective Order." (Id.). Chief Judge McMahon concluded that it was "quite clear that Boies Schiller did not foment the Government's investigation." (Id.). Among other conclusions, Chief Judge McMahon found that because Maxwell's reliance on the protective order in that case as a "shield [. . .] from the court-ordered disclosure of Confidential Materials pursuant to a grand jury subpoena was unreasonable, the Court may exercise its discretion to grant the Government's application." (Id. at 22). The Court further concluded that "[t]he Government has persuasively demonstrated extraordinary circumstances, which would entitle it to modification in any event." (Id.). She also noted that "while in other circumstances the breadth of the subpoena might be troubling, here the Government is in no position to narrow its request, because [the civil case] was litigated almost entirely under seal." (Id. at 25). Chief Judge McMahon permitted that the Government share the order—and only that order, which itself prohibited further dissemination, and not including any other materials associated with the Government's application—with Boies Schiller. The relevant order was 73 EFTA00039520