provided to Boies Schiller shortly after it was issued. The materials provided by Boies Schiller included, in addition to deposition transcripts of Maxwell and other individuals, materials produced by Giuffre, Maxwell, and non-parties, and court-related pleadings in the civil case. 7. Magistrate Judge Netburn's Order On or about April 9, 2019, the Government advised Judge Netbum, who had not yet ruled on the Government's other application in Jane Doe 43 v. Epstein, et at, 17 Civ. 0616 (JGK) (SN), of Chief Judge McMahon's decision via a pane and sealed letter. (Def. Mot. 3, Ex. I). Subsequently, on April 16, 2019, Judge Netburn denied the Government's application. (Def. Mot. 3, Ex. H). Judge Netburn found that she was authorized under the All Writs Act to modify the protective order, but declined to do so as the Government had not established exceptional circumstances or a compelling need. (Id. at 3). She concluded that on the record before her, the parties' reliance on the protective order was reasonable and the presumption of confidentiality should apply. (Id. at 5-6). The court rejected the Government's arguments for exceptional circumstances and compelling need as relying on "the general desire for secrecy" and "unpersuasive" under the Martindell standard. (Id. at 6). Judge Netbum concluded that "the Government must demonstrate not that this investigation is an extraordinary circumstance, but that the reason for seeking the documents is so extraordinary or compelling that there is a need to modify the Protective Order. The Government has not met that standard." (Id. at 7) (emphasis in original). 8. Unsealing of Maxwell's Depositions Three months after Chief Judge McMahon issued her Order, Giuffre v. Maxwell was reassigned to the Honorable Loretta A. Preska on July 9, 2019. On or about July 23, 2020, Judge Preska ordered unsealed certain litigation materials, including, and related to, Maxwell's April 74 EFTA00039521

2016 deposition transcript. (See 15 Civ. 7433 (LAP), Dkt. No. 1077). Maxwell appealed Judge Preska's order, arguing that the court abused its discretion in ordering the unsealing of the deposition materials and that Maxwell's interests outweighed the public's interests in access to the materials. Giuffre v. Maxwell, No. 20-2413 (2d Cir.), (Dkt. No. 140-1 at 2). On October 19, 2020, the Second Circuit found that Judge Preska "correctly held that the deposition materials are judicial documents to which the presumption of public access attaches, and did not abuse its discretion in rejecting Maxwell's meritless arguments that her interests superseded the presumption of access." (Id. at 3). On October 22, 2020, Maxwell's April 2016 deposition was publicly filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1137-13). On January 27, 2021, a redacted version of Maxwell's July 2016 deposition was publicly filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1201-14). On February 11, 2021, another version of the July 2016 deposition was publicly filed with fewer redactions. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1). 9. The New York Daily News Article On October 13, 2020, the New York Daily News published an article describing the February 29, 2016 meeting (the "Daily News Article" or the "Article").35 The Article stated, among other things, that defense attorneys representing victims of Epstein and Maxwell "urged" the USAO-SDNY to "open an investigation of the duo" during that meeting. Citing two anonymous sources, the Article described the defense attorneys' alleged efforts to "pique" the Government's interest "in a second meeting in the summer of 2016 after Maxwell allegedly 35 See Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and Ghislaine Maxwell case in 2016: sources, New York Daily News, Oct. 13, 2020, https://wwvv.nydailynews.corninew-yorlc/ny-jeffity-epstein-maxwell-case-20201013- jrnzhl7zdrzdgrbbs7yc6bfnszu-story.html. 75 EFTA00039522

committed perjury." According to two anonymous sources, "a second meeting occurred." However, the Article cites another anonymous source as "insist[ing] [a second meeting] never happened." B. The Defendant's Suppression Motion Should Be Denied Maxwell seeks suppression of the evidence the Government obtained via a judicially authorized subpoena to Boies Schiller under Martindell, the Fourth Amendment, Fifth Amendment, the Due Process clause, and the Court's inherent authority. However, Maxwell's motion turns on erroneous facts, runs afoul of controlling law, and should be denied. 1. Martindell Provides No Basis to Grant the Relief the Defendant Seeks Maxwell argues that the Government "circumvented" the Second Circuit's decision in Martindell and "violated Maxwell's rights," which requires suppression of the evidence the Government obtained from the subpoena. (Def. Mot. 11 at 11-12). Even assuming that to be true—which, of course, as detailed above and herein, it is not—there is no basis in law to suppress evidence as a result of a Martindell violation, and Maxwell cites none in support of her claim. Setting that fatal flaw aside, however, her claim is wrong on both the facts and the law. The Government issued a valid grand jury subpoena for the materials, applied for judicial authorization to modify the protective order to permit compliance with the subpoena, and a district court judge, who evaluated the Government's application under Martindell, properly exercised her discretion in modifying the protective order. Only after receiving that court order did the Government obtain any protected materials from Boies Schiller. Maxwell's motion should be denied. a. Applicable Law "[T]here is no question that a Rule 26(c) protective order is subject to modification," and a decision to modify such an order is "committed to the sound discretion of the trial court." In re 76 EFTA00039523

"Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987); see also Andover Data Sows., a Div. of Players Computer, Inc. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir. 1989) ("It is well-settled here and elsewhere, for instance, that a Rule 26(c) protective order may be overturned or modified based on a finding of improvidence, extraordinary circumstances or compelling need."). In Martindell, the Government informally—and without use of a grand jury subpoena— sought access to discovery materials from a civil litigation that were subject to a protective order. 594 F.2d at 294. The Second Circuit found that the "deponents [had] testified in reliance upon [a] Rule 26(c) protective order, absent which they may have refused to testify." Id. at 296. In so ruling, the Second Circuit reasoned that the interest in the enforcement of Rule 26(c) protective orders—which included securing just and speedy determination of civil disputes—was sufficient to outweigh the Government's interest in obtaining information by means of an informal document request. Id. at 295-96. The Second Circuit held that "absent a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need, .. . a witness should be entitled to rely upon the enforceability of a protective order against any third parties, including the Government." Id.; see also In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d 1221, 1224-25 (2d Cir. 1991) ("The Martindell test [ ] does not transform a protective order into a grant of immunity because the test allows a protective order to be overcome by a showing of improvidence in the grant of the order, extraordinary circumstances or compelling need."); Palmieri v. State of N.Y., 779 F.2d 861, 862 (2d Cir. 1985) (holding that "absent an express finding by the district court of improvidence in the magistrate's initial grant of the protective orders or of extraordinary circumstances or compelling need by the State for the 77 EFTA00039524

information protected thereunder, it was error for the district court to modify the magistrate's orders"). At the same time, in Martindell, the court noted that "[t]he reliance of a private party upon protection of pre-existing documents from disclosure to the Government would normally be more difficult to justify than that of a witness who would, absent the protective order, have invoked his privilege and given no testimony at all." Id. at 297 n.8; see also United States v. Davis, 702 F.2d 418, 422-23 (2d Cir. 1983) (finding Martindell inapplicable and affirming enforcement of a grand jury subpoena where "there [was] no indication that [a witness] agreed to testify only in reliance on [an] 'understanding"' of confidentiality and where many records sought "existed prior to the advent of the litigation"). In subsequent cases, the Second Circuit has clarified that the Martindell presumption comes into play only when a party reasonably relies on a protective order in providing deposition testimony. See, e.g., Davis, 702 F.2d 418; SEC v. TheStreet.com, 273 F.3d 222, 230- 31 (2d Cir. 2001) (stating that "some protective orders may not merit a strong presumption against modification," as the nature of some orders "may not justify reliance by the parties"). In United States v. Davis, the Second Circuit explained that "[r]anged against these considerations [relating to the policy in favor of enforcing Rule 26(c) protective orders] are the reasons for permitting the grand jury broad subpoena power in a criminal investigation." 702 F.2d at 421. The Second Circuit noted the grand jury's "wide ranging authority to inquire into suspected violations of the criminal law; and to effectuate such investigations it may compel the production of documentary evidence or the testimony of witnesses, as it deems necessary." Id. at 421-22 (citing United States v. Calandra, 414 U.S. 338, 343 (1974)). "Wide latitude in gathering evidence is vital to the grand jury's investigative function." Id. at 422; see Branzburg v. Hayes, 408 U.S. 665, 688 (1972) ("Although the powers of the grand jury are not unlimited and are subject to the 78 EFTA00039525

supervision of a judge, the longstanding principle that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege is particularly applicable to grand jury proceedings." (internal citations omitted)). b. Discussion The Government did not, in any way, attempt to circumvent Matthaei!. To the contrary, the Government presented Martindell squarely to the relevant courts, first arguing that its test was not applicable, and then, in the alternative, that the requested relief should be granted even if the courts applied the Martindell standard. It cannot possibly be the case that the Government was attempting to "circumvent" a case that it cited 11 times in its argument to both relevant courts. (See (Exs. 8 & 9). Instead, the Government issued a subpoena to Boies Schiller in connection with its investigation and made an application to two judges to modify Rule 26(c) protective orders that precluded full compliance with those subpoenas. While the Government argued that the court need not employ the Manindell balancing test for several reasons, it also made arguments under Martindell in the alternative. Ultimately, both Chief Judge McMahon and Judge Netburn found that Martindell applied and analyzed the Government's application under that framework. As Chief Judge McMahon found, even under the Martindell approach, testimony provided pursuant to a protective order can be divulged to a grand jury if the government establishes "some extraordinary circumstance or compelling need." Martindell, 594 F.2d at 296. After concluding that reliance on the protective order was unreasonable,36 Chief Judge McMahon found that the "Government [ ] persuasively demonstrated extraordinary circumstances," citing "significant 36 See, e.g., hit'! Equity Ines., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ. 2745 (JGK) (RLE), 2010 WL 779314, at *8 (S.D.N.Y. Mar. 2, 2010) (finding that the parties' reliance on a civil protective order "was not unreasonable given the nature of the litigation," but "not so overwhelming as to warrant the indefinite application of Martindell's strong presumption against modification because the order's broad scope and express language, and the minimal level of court inquiry outweigh the Parties' reliance."). 79 EFTA00039526

public interest" which resulted in the Government convening a grand jury to investigate a serious crime. (Del. Mot. 3, Ex. G at 22-23). The Court also noted that because the investigation was not publicly known, "the ordinary exercise of grand jury power [Le., to subpoena witnesses to testify and to produce documents] . . . would implicate and invite the very risk of disclosure—and the possibility of alerting potential criminal targets that they are under investigation, causing them to destroy evidence, flee from prosecution, or otherwise seriously jeopardize the Investigation—that caused the Government to proceed via subpoena [to Boies Schiller] and its related Application." (Id. at 23-24). The Court further noted that the "Government's interest is bolstered" as the request was made by a grand jury that had issued a "subpoena for the production of documents as part of an ongoing investigation." (Id. at 25). In support of her argument, the defendant cites Palmieri where the Second Circuit, applying Martindell, reversed the district court's decision granting the state Attorney General's motion to intervene to modify sealing orders. (Def. Mot. 11 at 14). Maxwell's reliance on Palmieri is of no avail. There, the Second Circuit held that the district court erred by not expressly finding that the state had shown improvidence, extraordinary circumstances, or compelling need before modifying the sealing orders in a civil case. Palmieri, 779 F.2d at 862, 866. By contrast, here Chief Judge McMahon made this explicit finding. Judge Netbum, on the other hand, rejected the Government's arguments for exceptional circumstances and compelling need as "unpersuasive" under the Martindell standard. (Def. Mot. 3, Ex. H at 6). Maxwell argues that Judge Netbum was "exactly right" in her analysis of whether exceptional circumstances existed, but ignores the fact that Chief Judge McMahon made contrary findings on this point. That two neutral judicial officers were presented with the facts, analyzed the law, and reached varying conclusions based on different findings shows that there are guardrails in place to ensure compliance with Martindell. In other words, the Government in no 80 EFTA00039527

way circumvented Martindell; rather, the Government sought court approval to enforce a subpoena and then followed the directives it received.37 Most critically, however, even if the Government's motion did not satisfy Martindell, Maxwell offers no legal authority for the proposition that suppression is the proper remedy.38 Indeed, none of the Second Circuit cases applying Martindell contemplate suppression as a remedy. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d at 1224 (remanding for findings "on whether the protective order was improvidently granted or whether the government had made a showing of exceptional circumstances or a compelling need"); Palmieri, 779 F.2d at 862 (reversing district court's modification of protective orders where district court did not make an "express finding" of improvidence, extraordinary circumstances, or compelling need and "remand[ing] for further proceedings consistent with this opinion"). 37 Maxwell asks this Court to review and reverse Chief Judge McMahon's exercise of her discretion in modifying the protective order, because she disagrees with Chief Judge McMahon's analysis of the Martindell factors. Although Chief Judge McMahon's order modifying the civil protective order was not entered on the civil docket, that order, along with the Government's application and related materials, were produced to the defense on or about August 12, 2020. As a result, Maxwell could have sought review of Chief Judge McMahon's order in the Second Circuit. See Fed. R. App. P. 4(a)(6). Maxwell asks this Court to second-guess a coequal district court's decision to modify a protective order. Putting aside the question of whether this Court even has the authority to do so, it should in any event decline Maxwell's invitation to act as a reviewing court to Chief Judge McMahon's decision, which was made in her "sound discretion." In re "Agent Orange" Prod. Liab. Litig., 821 F.2d at 147. 38 To the extent that Maxwell seeks suppression of documents created prior to the entry of the protective order (or created after its entry but not subject to its protections), that aspect of her motion should be denied. A significant amount of the materials provided in response to the subpoena included such pre-existing documents not created in reliance on a protective order, which do not trigger the Martindell presumption in the Second Circuit, see 77zeStreet.com, 273 F.3d at 234-235; Davis, 702 F.2d at 422. Maxwell's arguments also do not extend to transcripts of other individuals' depositions, who were not parties to the protective order. 81 EFTA00039528

2. Maxwell's Fourth Amendment Claim Fails Maxwell's Fourth Amendment motion is premised on a wholly unsupported expansion of the law. Because Maxwell lacked a privacy interest in the files of a third party law firm who represented her adversary in civil litigation, and because the subpoena was entirely lawful, she cannot make out a Fourth Amendment violation. Moreover, even if Maxwell had standing to assert this claim, it would nonetheless fail because the Government relied in good faith on a judicial order permitting compliance with its subpoena. a. Maxwell Has Not Established Standing i. Applicable Law The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. "The basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Carpenter v. United States, 138 S. Ct. 2206, 2213 (internal quotation marks and citation omitted). "It has been clear for a generation that `Fourth Amendment rights are personal rights ... [that] may not be vicariously asserted."' United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (quoting Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)). Accordingly, a defendant's Fourth Amendment rights "are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." United States v. Payner, 447 U.S. 727, 731 (1980) (emphasis in original); see also United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990). Ultimately, the Fourth Amendment inquiry is "whether [a] defendant has established a legitimate expectation of privacy in the area searched." United States v. Chuang, 897 F.2d 646, 649 (2d Cir. 1990) (citations omitted). This threshold question involves two separate inquiries: (1) whether a defendant has demonstrated a subjective 82 EFTA00039529

expectation of privacy in the places and items that were searched; and (2) whether that expectation was one that society accepts as reasonable. Id. It is axiomatic that "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas, 439 U.S. at 130, n.1; see also Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Under the third party doctrine, the Fourth Amendment "does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities." United States v. Miller, 425 U.S. 435, 443 (1976). The Supreme Court has long held that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," Smith v. Maryland, 442 U.S. 735, 743-44 (1979), "even if the information is revealed on the assumption that it will be used only for a limited purpose," Miller, 425 U.S. 435, at 443. Exceptions to the applicability of the third party doctrine are narrow. For example, in Carpenter, 138 S. Ct. at 2220, the Supreme Court declined to extend the third party doctrine to cell site location information, holding that "a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party." 138 S. Ct. at 2222. However, the Court stressed that its holding was "a narrow one," with specific consideration given to "the unique nature of cell phone location information," id. at 2220, which "provides an intimate window into a person's life," id. at 2217. "The law is clear that the burden on the defendant to establish [Fourth Amendment] standing is met only by sworn evidence, in the form of affidavit or testimony, from the defendant or someone with personal knowledge." United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995) (citations omitted); see also United States v. Ulbricht, No. 14 Cr. 68 (KBF), 2014 WL 5090039, at *6 (S.D.N.Y. Oct. 10, 2014); Rakas, 439 U.S. at 130 n.1. 83 EFTA00039530

ii. Discussion Maxwell cannot assert a Fourth Amendment claim because she had no legitimate expectation of privacy in the deposition transcripts or other materials she designated as confidential under the protective order. The materials were held by a third party law firm that represented her adversary in the civil suit. See Smith, 442 U.S. at 743-44 ("a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties"); Miller, 425 U.S. at 443 (no legitimate expectation of privacy in materials held by a third party "even if the information is revealed on the assumption that it will be used only for a limited purpose"); Carpenter, 138 S. Ct. at 2220 ("We do not disturb the application of Smith and Miller ."). Maxwell cites no authority for the proposition that she has standing to challenge a judicially approved grand jury subpoena directed at a third party law firm, because there is none. Maxwell points to the fact that the materials were designated as confidential under the protective order, but that reliance is misplaced. (Def. Mot. 11 at 6-8). Martindell by its own terms contemplates the modification of a protective order in a civil action. See, e.g., Andover Data Sews., 876 F.2d at 1083 ("It is well-settled here and elsewhere . . . that a Rule 26(c) protective order may be overturned or modified based on a finding of improvidence, extraordinary circumstances or compelling need."). And with respect to the specific protective order at issue, Chief Judge McMahon found that because 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." (Def. Mot. 3, Ex. Gat 18-19); see also Def. Mot. 3, Ex. A at ¶ 5 ("CONFIDENTIAL INFORMATION[] shall not, without the consent of the party producing it or further Order of the Court, be disclosed[.]") (internal quotation 84 EFTA00039531

marks omitted) (emphasis added)); In re "Agent Orange" Prod. Liab. Litig., 821 F.2d at 145 ("It is undisputed that a district court retains the power to modify or lift protective orders that it has entered."). It also bears noting that Martindell and its progeny do not discuss law enforcement applications in Fourth Amendment terms. In an effort to avoid the application of the third party doctrine, Maxwell contends that she did not in fact voluntarily share anything in the civil suit, and that "every other circumstance" supported her "expectation that her deposition transcripts would be private." (Def. Mot. 11 at 9). Neither argument withstands scrutiny. As an initial matter, the facts of this case are far removed from the "narrow" circumstances in which the Supreme Court has found an exception to the third party doctrine. For example, the Carpenter Court, while stressing that its holding was a "narrow one," 138 S. Ct. at 2220, held that "[g]iven the unique nature of cell phone location records," which provide a "intimate window into a person's life," "the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection." Id. at 2217; see also Zietzke v. United States, 426 F. Supp. 3d 758, 768 (W.D. Wash. 2019) ("The Court . . . will extend Carpenter to new circumstances only if they directly implicate the privacy concerns that animated the majority. [T]he majority was overwhelmingly concerned with `Carpenter's anticipation of privacy in his physical location.' In other words, Carpenter was about surveillance." (internal citation omitted)). There can be no serious argument that the facts of this case, or the materials obtained pursuant to the subpoena issued here, revealed Maxwell's physical location over a period of time or are otherwise in any way analogous to the narrow category of information contemplated by the majority in Carpenter. To the extent the defendant argues that her deposition transcripts implicate such interests because she "did not `voluntarily convey' her testimony to Giuffre," (Def. Mot. II 85 EFTA00039532

at 10), the Court should reject the defendant's efforts to twist Carpenter's exception to the third party rule beyond recognition. The defendant was not compelled to participate in the deposition or to answer questions without invoking her Fifth Amendment right against self-incrimination; she voluntarily chose to do so. Even if she chose to do so in reliance on the protective order, that protective order was subject to modification under well-settled case law and by its own terms. Contrary to the defendant's claims (Def. Mot. 11 at 10), she assumed the risk that the deposition transcripts would divulged to the Government. See, e.g., United States v. Schaefer, No. 17 Cr. 400 (HZ), 2019 WL 267711, at *5 (D. Or. Jan. 17, 2019) (declining to apply Carpenter where government obtained defendant's eBay transactions without a warrant as defendant "assumed the risk that [eBay] would reveal to police the purchases he made" and defendant "did not have a reasonable expectation of privacy in the records of his purchases"). Because Maxwell had no legitimate Fourth Amendment privacy interest in the materials in Boies Schiller's possession, she has no standing to challenge their seizure, and no warrant was required to obtain those materials. Her motion should be rejected on this ground alone. b. The Government Acted in Good Faith Even if the defendant had standing to bring this motion, it still fails because the Government only obtained these materials after obtaining a court order authorizing it to do so. The Government accordingly acted in good faith when it acted pursuant to that judicial order. i. Applicable Law Under the so-called "good faith" exception, the exclusionary rule and its remedy of suppression do not apply "when the Government `act[s] with an "objectively reasonable good- faith belief that their conduct is lawful."' United States v. Zodhiates, 901 F.3d 137, 143 (2d Cir. 2018) (quoting Davis v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks 86 EFTA00039533

omitted)). "As the rule seeks to deter future Fourth Amendment violations, the Supreme Court advises district courts to only suppress evidence where it serves such a purpose." United States v. Williams, No. 10 Cr. 622 (ADS), 2018 WL 4623017, at *4 (E.D.N.Y. Sept. 26, 2018) (internal quotation marks and citations omitted). "`[T]he exclusionary rule is not an individual right and applies only where it results in appreciable deterrence." United States v. Eldred, 933 F.3d 110, 118 (2d Cir. 2019) (quoting Herring v. United States, 555 U.S. 135, 141 (2009)); see also Herring, 555 U.S. at 144 (concluding that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."). As a result, exclusion should be a "last resort" rather than a "first impulse." United States v. Rosa, 626 F.3d 56, 64 (2d Cir. 2010) (internal quotation marks and citation omitted). The exclusionary rule should be used only where law enforcement "`exhibit[s] deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights."' United States v. Raymonda, 780 F.3d 105, 117-18 (2d Cir. 2015) (quoting United States v. Stokes, 733 F.3d 438, 443 (2d Cir. 2013)); see also United States v. Green, 981 F.3d 945, 957 (11th Cir. 2020) ("It follows that when officers act with `an objectively reasonable good-faith belief that their conduct is lawful'—i.e., by acting in reasonable reliance on a warrant, statute, or court order—the exclusionary rule does not apply because there is little, if any, deterrence benefit in such circumstances." (citations omitted)). In the context of search warrants, suppression will generally not be warranted where the evidence at issue was "obtained in objectively reasonable reliance on a subsequently invalidated search warrant." United States v. Leon, 468 U.S. 897, 922 (1984). As a result, although the burden is on the Government to establish good faith, "[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to 87 EFTA00039534

establish that a law enforcement officer has acted in good faith in conducting the search." Id. (internal quotation marks and citations omitted); see also Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (noting that the "issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause"). Indeed, the good faith exception does not apply only in four narrow circumstances: (1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable. United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992) (citing Leon, 468 U.S. at 923). The good faith exception analysis applies in the context of court orders. See, e.g., Zodhiates, 901 F.3d at 143 (applying good faith analysis in Fourth Amendment challenge to cell phone location information obtained by subpoena issued pursuant to 18 U.S.C. § 2703(c)(2)); United States v. Serrano, No. 13 Cr. 58 (KBF), 2014 WL 2696569, at *7 (S.D.N.Y. June 10, 2014) (finding good faith exception would apply to cell site information obtained pursuant to a subpoena authorized by magistrate judge pursuant to 18 U.S.C. § 2703(d)); United States v. Ashburn, 76 F. Supp. 3d 401, 406, 414-18 (E.D.N.Y. 2014) (applying Leon to § 2703(d) orders for historical cell-site data obtained and finding that the good faith exception applied). ii. Discussion The exclusionary rule and its remedy of suppression should not apply here, as the Government issued a grand jury subpoena; sought the materials after applying to the district court for an order to modify the civil protective order; and only obtained the materials after the district 88 EFTA00039535

court modified the protective order and issued a 26-page decision. The Government acted in reasonable reliance on the district court's decision. The defendant argues that the Government misled the Court when it "claimed not to know what was in Boies Schiller's file and that Boies Schiller had no role in instigating the investigation of Maxwell." (Del. Mot. 11 at 1). The defendant's claims are both factually inaccurate and meritless. First, the Government did not mislead Chief Judge McMahon about its contacts with Boies Schiller. As an initial matter, Maxwell's argument is premised solely on her use of selective snippets from a lone Daily News Article that is premised, in meaningful part, on anonymous sources and hearsay. As the factual background set forth above—which is corroborated by notes and correspondence produced alongside this brief—makes clear, David Boies and Boies Schiller played no role in initiating, let alone "fomenting" the Government's investigation. That investigation was opened more than two and a half years after the last known contact between any lawyer associated with any civil counsel for Giuffre and, in any event, was initially focused on Epstein, not this defendant. As detailed above, the USAO-SDNY opened the instant investigation in late November 2018 shortly after the Miami Herald published a series of articles about Epstein. AUSA-1 was not involved in that decision, which in any event had nothing to do with a meeting that had taken place nearly three years prior.39 (Ex. 4 at 6). 39 Maxwell repeatedly claims that Boies Schiller urged AUSA-1 to open an investigation of Epstein and Maxwell, (Def. Mot. 3 at 8), but that allegation, which is supported by nothing aside from the above-referenced media report, is incorrect. While AUSA-1 did meet with the three attorneys in February 2016, she understood the attorneys to be focused on Epstein, and not on Epstein and Maxwell as a "duo." (Ex. 4 at I, 4). The presentation to AUSA-1 focused on urging an investigation into Epstein with only passing references to Maxwell. Simply put, the pitch was to investigate Epstein, not Maxwell. 89 EFTA00039536

The defendant repeatedly argues that the Government's failure to mention AUSA-1's prior contact with Boies Schiller in 2016 was a misrepresentation that led to the modification of the protective order. The argument, which relies principally on hyperbolic rhetoric, is simply incorrect. As an initial matter, the Government did not insist, contrary to Maxwell's twisted reading of the transcript, that "there had been no contact whatsoever" between Boies Schiller and the Government at any time prior to the Government opening its investigation. (Def. Mot. 3 at 1). Instead, Chief Judge McMahon's question was more specific: referencing Chemical Bank and the desire to avoid "a Chemical Bank kind of situation," Chief Judge McMahon asked about contacts between the two parties "prior to the issuance of the subpoena on the subject ofyour investigation." (Def. Mot. 3, Ex. E at 2 (emphasis added); see also Def. Mot. 3 at 7 (omitting the italicized portion of the question)). In response, the Government described accurately its communications with Boies Schiller that had occurred in the time period surrounding the opening of its investigation and the issuance of the subpoena. Additionally, and in light of the Government's prior arguments to Chief Judge McMahon relating to Chemical Bank,4° the Government attempted to address the misconduct at issue in that case: namely the production of confidential documents without seeking modification of a protective order by confirming that, here, no such production had yet occurred. (Def. Mot. 3, Ex. E at 2) (noting that Boies Schiller "generally advised us that they believed there 40 See, e.g., Exs. 8 & 9 at 2-3 (discussing Chemical Bank as rejecting a contempt request where a party "compl[ied] with a grand jury subpoena despite the existence of a protective order" and focusing arguments on the nature of the production of documents); (Def. Mot. 3, Ex. D at 15) (the Government describing Chemical Bank as "essentially say[ing]: You should have asked, but of course this is fine for you to disclose this information to the government based on the validly issued grand jury subpoena"); cf (id. at 4 (Chief Judge McMahon describing Chemical Bank as saying "the proper procedure [for the production of documents] is for somebody to make a motion to be relieved from the terms of the protective order"), 20 (Chief Judge McMahon stating that "in the Chemical Bank case, it all was ex post facto and it all happened")). 90 EFTA00039537

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.")). While the Government appreciates, with the benefit of hindsight, that an answer that had also referenced the February 2016 meeting (and the fact that USAO-SDNY took no action as a result of that meeting) would have provided additional context—and would have further reinforced that this was not a "Chemical Bank situation"—as noted above, the Government's response accurately described its contacts with Boies Schiller as relevant to "your investigation" and the issuance of the subpoena at hand. Indeed, there is no reason to believe that a description of the February 2016 meeting would have been material to Chief Judge McMahon's analysis of whether she was facing a "Chemical Bank kind of situation." (Def. Mot. 3, Ex. E at 2). In Chemical Bank, counsel for a civil party approached the Manhattan District Attorney's Office "suggesting that it had evidence of criminal violations relating to the case." 154 F.R.D. at 93. In response, a grand jury subpoena was issued and "confidential documents were produced by the defendant without complying with any of the specific procedures or exceptions provided in the [confidentiality] orders." Id. Here, by contrast, the Government accurately conveyed to Chief Judge McMahon the opening of its investigation in late 2018, the reason it made contact with Boies Schiller shortly thereafter and served a subpoena in February 2019, and that no documents governed by the protective order had yet been produced. Aside from rank speculation loosely premised on an anonymously sourced news report, the defendant offers nothing to support her assertion that "Boies Schiller was instrumental in fomenting the Maxwell prosecution" (Def. Mot. 3 at 2) (emphasis in original), or that AUSA-1 's February 2016 meeting with Boies Schiller (as it actually occurred) undercut the accuracy of the Government's representations to Chief Judge McMahon, or played any role in the Government opening its investigation in November 2018. 91 EFTA00039538

Second, the Government did not misrepresent the extent of its knowledge of the contents of Boies Schiller's files. As the Government correctly represented to the court, the Government had "either little or no additional information than the Court does in terms of what materials there are [and] who was deposed." (Def. Mot. 3, Ex. D at 17). In support of her argument, Maxwell cites again to the Daily News Article, which reports that "after Maxwell's two depositions, David Boies himself apparently approached the government in the summer of 2016, asking if the Southern District would consider charging Maxwell with perjury"' (Def. Mot. 3 at 8). But the Government has uncovered no evidence that such a meeting ever occurred. AUSA-1 does not recall ever speaking with or meeting David Boies in her life. (Ex. 4 at 4). Moreover, AUSA-1 does not recall being asked if the USAO-SDNY would consider charging Maxwell with perjury (id. at 5), and while notes of the February 2016 meeting refer to the existence of depositions generally, there can be no question Chief Judge McMahon appreciated the Government's general understanding that such transcripts would be part of the civil litigation file. (Def. Mot. 3, Ex. G at 21). Simply put, there is no evidence that the Government had any significant knowledge of the contents of Boies Schiller's files, or that the Government's representations to Chief Judge McMahon were incorrect. In sum, Maxwell has failed to put forth any evidence that the Government misled Chief Judge McMahon, and as such, the good faith exception applies. To the contrary, the record before the Court demonstrates that the Government directly responded to Chief Judge McMahon's question and accurately described the contacts between Boies Schiller and the USAO-SDNY in connection with the investigation, the Government's lack of knowledge of the contents of that file, and the fact that no protected materials had been produced in violation of the protective order. Upon receiving a court order issued by a Chief United States District Judge who had carefully 92 EFTA00039539

considered the Government's application and then issued a lengthy opinion ruling on that application, the Government was entirely reasonable in its understanding that the order was lawful. It was therefore similarly reasonable for the Government to obtain materials from Boies Schiller in response to the subpoena that had been analyzed and blessed by a court order. The Government acted with an 'objectively reasonable good-faith belief' that its conduct was lawful and in reasonable reliance on the district court's order. Zodhiates, 901 F.3d at 143 (internal quotation marks and citations omitted). c. Suppression of Certain Materials Would Be Improper Under the Inevitable Discovery Doctrine To the extent materials the Government obtained from Boies Schiller have now been unsealed and posted on the public docket, there is no basis to suppress such materials because the Government would have inevitably been able to access them upon unsealing. i. Applicable Law Under the inevitable discovery doctrine, "evidence that was illegally obtained will not be suppressed `if the government can prove that the evidence would have been obtained inevitably' even if there had been no statutory or constitutional violation." United States v. Roberts, 852 F.2d 671, 675-76 (2d Cir. 1988) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)). When a claim of inevitable discovery is raised, the court must "determine, viewing affairs as they existed at the instant before the unlawful search occurred, what would have happened had the unlawful search never occurred." Stokes, 733 F.3d at 444 (citation omitted) (emphasis in original); see also United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (The application of the inevitable discovery doctrine "turns on a central question: Would the disputed evidence inevitably have been found through legal means `but for' the constitutional violation? If the answer is `yes,' the evidence seized will not be excluded."). 93 EFTA00039540

"The government bears the burden of proving inevitable discovery by a preponderance of the evidence." Stokes, 733 F.3d at 444 (citing Mr, 467 U.S. at 444). This requires establishing, "'with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government's favor." Id. (quoting Heath, 455 F.3d at 60). As the Supreme Court has explained, if the Government can establish that the evidence inevitably would have been discovered by lawful means, "then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received." Nix, 467 U.S. at 444. ii. Discussion Even if the Court were to find that there had been some constitutional violation in the Government obtaining a modification of the protective order—which it should not—the question in an inevitable discovery analysis is whether the Government would inevitably have found the disputed evidence. The answer is yes, at least as to some of the evidence, including the April 2016 deposition that forms the basis of Count Five and part of the July 2016 deposition that forms the basis of Count Six.41 41 In January 2021, the defendant asked Judge Preska to reconsider her order unsealing certain portions of her testimony on the basis that, among other things, public release of the section would make it more difficult for Maxwell to suppress the testimony as evidence against her at her criminal trial. On February 8, 2021, Judge Preska "decline[d] Ms. Maxwell's invitation to reconsider its order" and noted that the defendant had both filed a suppression motion and available tools under the Federal Rules of Evidence and Procedure. (See 15 Civ. 7433 (LAP), Dkt. No. 1211 at 3, 5). The portion of the July 2016 deposition transcript that forms the basis of Count Six that has been unsealed relates to the defendant denying that she has given a massage to anyone, including Epstein or Minor Victim-2. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1 at 113). The fact that the defendant argued against unsealing the transcript by pointing to her suppression argument is irrelevant. Judge Preska determined that the public's First Amendment right of access outweighed the defendant's interests. If the Government had not modified the protective order and charged the defendant with perjury based on the deposition transcript, that argument would have been unavailable and the balance would have tipped still more in favor of public access, leading to the transcript's inevitable discovery. 94 EFTA00039541

The defendant asks the Court for a drastic remedy, namely suppression of all evidence the Government obtained pursuant to the subpoena, as well as the dismissal of Counts Five and Six. In so doing, the defendant seeks a windfall to which she is not entitled based on unprecedented claims that ignore the facts and the law. Suppression of all materials the Government obtained pursuant to the subpoena is unwarranted here, particularly where certain of the materials have been subsequently unsealed by Judge Preska in the underlying civil litigation, including Maxwell's April 2016 deposition transcript. (See 15 Civ. 7433 (LAP), Dkt. No. 1077). The Second Circuit affirmed Judge Preska's ruling in October 2020, finding that the Court "correctly held that the deposition materials are judicial documents to which the presumption of public access attaches, and did not abuse its discretion in rejecting Maxwell's meritless arguments that her interests superseded the presumption of access." Giuffre v. Maxwell, No. 20-2413 (2d Cir.), (Dkt. No. 140- 1 at 3).42 On October 22, 2020, the defendant's April 2016 deposition was publicly filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1137-13). In February 2021, a redacted version of the defendant's July 2016 deposition was publicly filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1). In other words, had the Government not obtained an order modifying the protective order, the Government inevitably would have discovered and obtained, at a minimum, the defendant's April 2016 deposition transcript and a portion of the July 2016 transcript that form the basis of the charges in Counts Five and Six. 42 Relatedly, the defendant moved to modify the criminal protective order in order to use confidential criminal discovery materials in filings she intended to submit in civil litigation. The defendant raised this precise point—that if the Court ultimately decided that it was inappropriate for the Government to proceed by subpoena, the Government would claim inevitable discovery. (Dkt. No. 54 at 3). The defendant offered no coherent explanation of how the criminal discovery materials could have any conceivable impact on the issues pending in civil litigation. She cited no case law suggesting that, for example, the possibility of an inevitable discovery argument by the Government should foreclose unsealing in a civil case. This Court rejected the defendant's motion to modify the criminal protective order. (Dkt. No. 51). The Second Circuit also dismissed the defendant's appeal for want of jurisdiction. (Dkt. No. 71). 95 EFTA00039542

3. The Defendant's Motion to Suppress Evidence Obtained Pursuant to the Subpoena Under the Fifth Amendment Is Without Merit The defendant's motion to suppress all evidence obtained pursuant to the subpoena on Fifth Amendment grounds fails for multiple, independent reasons. As an initial matter, Boies Schiller is not the Government and was not acting as an agent of the Government when it deposed the defendant or otherwise litigated the civil case against her. That the defendant may regret her choice to respond to Boies Schiller's questions during two depositions instead of invoking her privilege against self-incrimination does not transform that choice into a Fifth Amendment violation. a. Applicable Law i. The Fifth Amendment — Generally The Fifth Amendment provides in pertinent part: "No person .. . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To establish a Fifth Amendment violation, an individual must "demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication." In re Grand Jwy Subpoena, 826 F.2d 1166, 1168 (1987); see also, e.g., In Re Three Grand Jut), Subpoenas Jan. 5, 1988, 847 F.2d 1024, 1028 (2d Cir. 1988). It is "axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials." United States v. Washington, 431 U.S. 181, 186 (1977). "Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable." Id. at 187. "[T]he Fifth Amendment proscribes only self-incrimination obtained by a `genuine compulsion of testimony.'" Id. (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)); see also Washington, 431 U.S. at 187 ("Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions."). Nor does the Constitution "prohibit every 96 EFTA00039543

element which influences a criminal suspect to make incriminating admissions." Id. The question is not whether a witness was encouraged to speak, but whether his "free will," when he spoke, "was overborne." Id. at 188; see also, e.g., United States v. Corbett, 750 F.3d 245, 253 (2d Cir. 2014). It follows that the Government need not inform a witness of the nature of its investigation, see United States v. Olovumabua, 828 F.2d 950, 953 (2d Cir. 1987), much less his individual status in the investigation, see Washington, 431 U.S. at 189 & 190 n.6. The Constitution does not "require that the police supply a suspect with a flow of information to help him calibrate his self- interest in deciding whether to speak or stand by his rights." Colorado v. Spring, 479 U.S. 564, 576-77 (1987) (internal quotation marks omitted); see also, e.g., id. at 577 (there is no requirement that law enforcement give information that might affect "the wisdom" of speaking). Nor does the Constitution require that someone be questioned only in the manner most likely to ensure that he gives the decision whether to speak careful thought. See, e.g., United States v. Roberts, 660 F.3d 149, 157 (2d Cir. 2011) ("the Fifth Amendment does not protect against hard choices" (internal quotation marks omitted)); United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976) (there is a difference between "those choices which are physically or psychologically coerced and those which are merely difficult"). In short, the Fifth Amendment is only violated by "government misconduct" that is "coercive." Colorado v. Connelly, 479 U.S. 157, 163 (1986); see also Oregon v. Elstad, 470 U.S. 298, 312 (1985) (Fifth Amendment prohibits "coercion" effected "by physical violence or other deliberate means calculated to break the suspect's will"). ii. The Fifth Amendment — Act of Production Privilege The act of production privilege is a form of the Fifth Amendment privilege pertaining to the production of materials. "[Ain individual may claim an act of production privilege to decline 97 EFTA00039544

to produce documents, the contents of which are not privileged, where the act of production is, itself, (1) compelled, (2) testimonial, and (3) incriminating." In re Three Grand Jury Subpoenas Duces Tecwn Dated Jan. 29, 1999, 191 F.3d 173, 178 (2d Cir. 1999). Consistent with these requirements, the privilege only "prohibits the compelled disclosure of documents when the act of production has independent communicative aspects-such as an admission that the documents exist, that the subject possesses or controls the documents, that the documents are authentic, or that the subject believes the documents are responsive to the subpoena." In re Various Grand Jury Subpoenas, 924 F. Supp. 2d 549, 552 (S.D.N.Y. 2013), aff'd, 579 F. App's 37 (2d Cir. 2014); see also Fisher v. United States, 425 U.S. 391, 408 (1976). It follows that the privilege does not apply when "[t]he existence and location of the [sought] papers are a foregone conclusion and the [compelled individual] adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." Id. at 411; see also In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993); Madanes v. Madanes, 186 F.R.D. 279, 284 (S.D.N.Y. 1999) ("[E]ven if documents contain incriminating information, requiring a person to produce them does not implicate the Fifth Amendment unless the act of production is itself testimonial in nature and incriminating to the person making the disclosure."). iii. The Fifth Amendment — When Private Action Is Deemed Government Action As discussed above, "[t]he sole concern of the Fifth Amendment . . is governmental coercion." Connelly, 479 U.S. at 170. "[T]he Fifth Amendment privilege is not concerned `with moral and psychological pressures to confess emanating from sources other than official coercion.'" Id. (quoting Elsiad, 470 U.S. at 305). For this reason, even "[t]he most outrageous 98 EFTA00039545

behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible." Connelly, 479 U.S. at 166. This does not mean that only action undertaken directly by the Government may violate the Fifth Amendment (or another right). In certain circumstances, a private entity may be deemed to be acting as a government agent. See United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) ("Actions of a private entity are attributable to the State if there is a sufficiently close nexus between the State and the challenged action of the entity so that the action of the latter may be fairly treated as that of the State itself." (internal quotation marks and ellipsis omitted)). However, this standard "is not satisfied when the state merely approves of or acquiesces in the initiatives of the private entity, or when an entity is merely subject to governmental regulation." Id. (internal quotations marks and citations omitted; alterations incorporated)). Nor is it sufficient that a non-government entity chooses to cooperate with a government investigation or has its own parallel investigation. See id. at 150. Non-government action is attributable to the government "only when it can be said that the State is responsible for the specific conduct of which the [defendant] complains." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original). "Such responsibility is normally found when the State `has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State."' Stein, 541 F.3d at 147 (quoting Blum, 457 U.S. at 1004); see also Flagg v. Yonkers Say. & Loan Ass 'n, 396 F.3d 178, 187 (2d Cir. 2005). b. Discussion As an initial matter, the defendant's Fifth Amendment claim fails because she has not demonstrated state action. Boies Schiller is not an agent of the Government and has not been at any time during the course of the Government's investigation, including when it initiated the civil 99 EFTA00039546

lawsuit against the defendant or took her deposition years before the Government initiated its own investigation. The defendant offers no evidence to the contrary, and there is no reason to believe, on this record, that the Government in any way controlled Boies Schiller when it litigated a civil case against the defendant. As such, the Fifth Amendment does not apply. The defendant's claim further fails because without coercion or compulsion, there is no Fifth Amendment violation. See Minnesota v. Murphy, 465 U.S. 420, 431 (1984) (rejecting claim that a "failure to inform [the defendant] of the Fifth Amendment privilege barred use of his confession at trial"); United States v. Mitchell, 966 F.2d 92, 100 (2d Cir. 1992) ("Inculpatory statements are not involuntary when they result from a desire to cooperate, or from a defendant's ignorance of, or inattention to, his right to remain silent."); United States v. Mast, 735 F.2d 745, 750 (2d Cir. 1984) (same). The defendant implicitly argues that she only testified under oath in the civil matter because she thought she would not be held to that oath. In other words, had she known that she would be subject to the penalties of perjury, she would have invoked her Fifth Amendment right. But the defendant's misguided expectation that she would face no consequences cannot be said to coerce speech. The defendant, represented by able counsel, voluntarily chose to waive her Fifth Amendment rights and testify under oath. And she chose to do so in connection with civil depositions that occurred over two years before the Government opened its investigation. The circumstances surrounding that decision come nowhere near the type of coercion that rises to the level of a Fifth Amendment violation. See, e.g., United States v. Ash, 464 F. Supp. 3d 621, 627-30 (S.D.N.Y. 2020) (finding suppression of defendant's phone unwarranted where defendant complied with former employer's request to return the phone because defendant was not coerced into doing so, and rejecting defendant's argument that the 100 EFTA00039547

employer was required to warn her that it might produce the phone to the government, even assuming arguendo that that employer's actions were attributable to the government). The defendant's claim that her act of production privilege was somehow violated similarly fails. Counsel cites Boyd v. United States, 116 U.S. 616 (1886) for the proposition that "a compulsory production of the private books and papers . . . [also] is compelling . . . him to be a witness against himself, within the meaning of the fifth amendment." (Det. Mot. 11 at 15) (quoting Boyd, 116 U.S. at 634-35). In In re Grand Jury Subpoena Duces Tecum Dated Oct 29, 1992, the Second Circuit ruled that the Fifth Amendment does not protect the contents of private papers that are not business documents, and also noted that "[s]everal aspects of the Boyd decision did not endure." 1 F.3d at 90 (citing Fisher v. United States, 425 U.S. 391 (1976)). Further, the Fifth Amendment does not protect against being compelled to speak and then speaking falsely. "[E]ven if an individual's perjured testimony is improperly procured because of government misconduct, that testimony may still be used to prosecute that defendant for perjury." United States v. Olivieri, 740 F. Supp. 2d 423, 425 (S.D.N.Y. 2010) (citing United States v. Remington, 208 F.2d 567 (2d Cir. 1953); United States v. Winter, 348 F.2d 204 (2d Cir. 1965)); see also United States v. Wong, 431 U.S. 174, 180 (1977) ("[P]erjury is not a permissible way of objecting to the Government's questions. . . . Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely."); Bryson v. United States, 396 U.S. 64, 72, 90 (1969) (rejecting challenge to false statement prosecution; "[I]t cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. . . . A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."). 101 EFTA00039548

Contrary to the defendant's argument (Def. Mot. 11 at 16), this case is distinguishable from United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988). There, the defendant had already been indicted at the time of his deposition in a civil case, "was reluctant to be deposed because of the pending indictment, and he agreed only after the parties in the civil case stipulated that the deposition would be sealed." Id. at 699-700. The court found that the subpoenas for the deposition transcript were "unenforceable" because the "government has not argued that the protective order was improvidently granted or that there are some extraordinary circumstances or compelling need, in view of the holding in Martindell."43 Id. at 701. The court found that the protective order served the "'vital function" described in Martindell, as the defendant had already been indicted at the time of his deposition in a civil case for almost seven months; the defendant "consistently resisted the use of his testimony in the criminal action against him"; and the Government did not seek the deposition "to aid it in a criminal investigation or grand jury proceeding." Id. at 700; see also Botha v. Don King Productions, Inc., No. 97 Civ. 7587 (JGK), 1998 WL 88745 (S.D.N.Y. Feb. 27, 1998) (noting importance of policy concerns of Martindell where Government obtained an indictment against witness "long before his deposition in the civil action" and where federal criminal case remains pending after civil action is resolved). Here, by contrast, Chief Judge McMahon found that the "Government has persuasively demonstrated extraordinary circumstances, which would entitle it to modification in any event." (Def. Mot. 3, Ex. G at 22). As she noted in her opinion, the situation was distinct from Oshatz "where the Government was trolling for evidence to use at a trial, rather than seeking information as part of a criminal investigation or grand jury proceeding." (Id. at 24-25). As Chief Judge McMahon already concluded, Oshatz does not warrant a different result here. 43 In Martindell, the Second Circuit explicitly deemed it "unnecessary for us to decide the Fifth Amendment issues raised by the parties." Martindell, 594 F.2d at 297. 102 EFTA00039549

The defendant argues that Martindell "authorized her to give deposition testimony under the shield of the Protective Order without worrying whether the government could `insinuate itself' into the case and use her own words against her." (Def. Mot. 11 at 15-16). That is not the law, and the defendant cannot use the protective order to cloak her testimony. The Second Circuit has recognized that because "[i]t is well-settled here and elsewhere . . . that a Rule 26(c) protective order may be overturned or modified based on a finding of improvidence, extraordinary circumstances or compelling need[,]" "as a practical matter it is clear that the protections afforded by a Rule 26(c) order are not as extensive as those afforded by the fifth amendment, or by a statutory grant of use immunity, and that a protective order therefore cannot be used to abridge a witness' fifth amendment rights." Andover Data Servs., 876 F.2d at 1083 (emphasis in original); see id. at 1084 ("Uncertainty about the ultimate outcome of a protective order will mean that no deponent may always effectively rely on a protective order to secure his right against self- incrimination.") (quoting In re Grand Jury Subpoena, 836 F.2d 1468, 1478 (4th Cir. 1988))); Davis, 702 F.2d at 421-22 ("Absent applicable grounds for exception, such as a previously asserted Fifth Amendment privilege, no shield protects the civil evidence [ ] from compellable production before the grand jury which subpoenaed it"). 4. The Government Did Not Violate Maxwell's Due Process Rights The defendant also claims that the Government's conduct "cannot be squared with elemental due process." (Def. Mot. 3 at 14 (citing U.S. Const. amend. V)). This claim is meritless. Because there was no Government misconduct—let alone the type of outrageous Government 103 EFTA00039550

misconduct that would justify the extraordinary remedy the defendant seeks—the motion must be denied. a. Applicable Law The Due Process Clause of the Fifth Amendment provides that "[n]o person . . . shall be deprived of life, liberty, or property without due process of law . ." The Due Process Clause "protects individuals against two types of government action." Martinez v. McAleenan, 385 F. Supp. 3d 349, 356 (S.D.N.Y. 2019). Procedural due process "ensures that government cannot unfairly and without meaningful process deprive a person of life, liberty, or property," while substantive due process "prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty." Id. (internal quotation marks and citations omitted; alteration omitted). Procedural due process analysis focuses on whether government action depriving a person of life, liberty, or property. . . [is] implemented in a fair manner," United States v. Salerno, 481 U.S. 739, 746 (1987). "Courts examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the [Government]; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." United States v. Arzberger, 592 F. Supp. 2d 590, 599 (S.D.N.Y. 2008) (internal quotation marks and citations omitted). As to substantive due process, the Supreme Court is "always . . . reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (internal quotation marks and citation omitted). Because of this reluctance, the Supreme Court held in Graham v. Connor, 490 U.S. 386 (1989), "that where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of 104 EFTA00039551

government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (internal quotation marks omitted); Albright v. Oliver, 510 U.S. 266, 272 (1993) ("[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity."). The defendant bears the "'very heavy' burden of establishing a due process violation." United States v. Walters, 910 F.3d 11, 27 (2d Cir. 2018). "To succeed on a claim that the government's conduct in pursuit of evidence violates a defendant's Fifth Amendment due process rights, the government's method of acquiring the evidence must be so egregious that it 'shocks the conscience.'" United States v. Loera, 333 F. Supp. 3d 172, 184 (E.D.N.Y. 2018) (internal quotation marks and citations omitted). "The concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice, or conduct that is `so outrageous' that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction against the accused." United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997) (internal quotation marks and citations omitted). "Such outrageous or conscience shocking behavior involves egregious invasions of individual rights, or coercion." United States v. Coke, No. 07 Cr. 971 (RPP), 2011 WL 3738969, at *5 (S.D.N.Y. Aug. 22, 2011) (internal quotation marks and citations omitted). The Second Circuit has explained: The paradigm examples of conscience-shocking conduct are egregious invasions of individual rights. See, e.g., Rochin, 342 U.S. at 172, 72 S. Ct. 205 (breaking into suspect's bedroom, forcibly attempting to pull capsules from his throat, and pumping his stomach without his consent). Especially in view of the courts' well-established deference to the Government's choice of investigatory methods, see United States v. Myers, 692 F.2d 823, 843 (2d Cir. 1982), the burden of establishing outrageous 105 EFTA00039552

investigatory conduct is very heavy, see United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999); United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) ("Generally, to be `outrageous,' the government's involvement in a crime must involve either coercion or a violation of the defendant's person. It does not suffice to show that the government created the opportunity for the offense, even if the government's ploy is elaborate and the engagement with the defendant is extensive." (internal citations omitted)). The Second Circuit has "yet to identify a particular set of circumstances in which government investigative conduct was so egregious that it shocked the conscience and violated fundamental guarantees of due process." United States v. Heyward, No. 10 Cr. 84 (LTS), 2010 WL 4484642, at *3 (S.D.N.Y. Nov. 9, 2010); see also United States v. Cromitie, 727 F.3d 194, 218 (2d Cir. 2019). There also "must be a causal connection between the violation and the deprivation of the defendant's life or liberty threatened by the prosecution." United States v. Ghailani, 751 F. Supp. 2d 502, 505 (S.D.N.Y. 2010). "That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause." Id. Even where Government misconduct meets the outrageousness test, dismissal of an indictment is warranted only where the Government's behavior "resulted in [] prejudice to the [defendant's] defense or legal representation." United States v. DiGregorio, 795 F. Supp. 630, 635 (S.D.N.Y. 1992). Absent a showing of prejudice, the appropriate remedy for conduct violating the test for outrageousness is suppression of the evidence obtained as the result of the Government's outrageous misconduct. Id. 106 EFTA00039553

b. Discussion The defendant argues that the Due Process Clause requires the suppression of the evidence the Government obtained pursuant to subpoena, including the April and July 2016 depositions, and the dismissal of Counts Five and Six. The defendant falls far short of carrying the very heavy burden of establishing a due process violation to warrant the extraordinary relief she seeks. The Government's conduct did not, by any reasonable definition, "shock the conscience." The defendant has not identified explicitly the component of her due process rights that the Government allegedly violated. As she does not seem to allege that the Government deprived her of life, liberty, or property in an unfair manner (nor could she), it seems that the defendant is claiming that the Government's supposed misrepresentation of facts to the Court violated her substantive due process rights. As set forth above, the Government did not mislead Chief Judge McMahon in connection with its ex pane application. The Government did not violate the law, much less participate in any violation that so "shocks the conscience" as to require suppression as a matter of substantive due process. The defendant has neither specified what "fundamental right" the Government allegedly violated nor provided legal authority supporting her claim. She cites United States v. Valentine, 820 F.2d 565, 570 (2d Cir. 1987), seemingly to argue that her right to a fair trial has been implicated because of the same alleged prosecutorial misconduct in connection with the modification of the protective order described above. However, the defendant cites no authority for the proposition that such misconduct (assuming, of course, it occurred, which it did not) would warrant the relief she now seeks, and the primary case she relies upon is readily distinguishable. In Valentine, the defendant was convicted of perjury based upon grand jury testimony in which he denied that he was given a loan to make a political contribution. 820 F.2d at 570. The Second Circuit reversed 107 EFTA00039554

and held that it was a due process violation for the prosecutor to suggest that certain witnesses, who had not testified at trial but who had testified before the grand jury, supported the Government's theory of the case, when in fact their testimony before the grand jury did not. Id. The Second Circuit stated that this action "violated the due process prohibition against a prosecutor's making `knowing use of false evidence,' including by misrepresenting the nature of nontestimonial evidence." Id. at 570-71 (quoting Miller v. Pate, 386 U.S. 1, 6-7 (1967)). The Second Circuit further noted that reversal of a criminal conviction is a "drastic remedy that courts are generally reluctant to implement," and that the court would only do so "when a prosecutor's tactics cause substantial prejudice to the defendant and thereby serve to deprive him of his right to a fair trial." Id. The instant case is easily distinguishable from Valentine, as it does not involve any of the same facts, including any alleged mischaracterization of grand jury testimony at trial or any prosecutor making "knowing use of false evidence." Id. at 570-71; see also Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir. 1987) (citing Valentine for the proposition that "[e]ven where defense counsel is aware of the falsity, there may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument, or by posing misleading questions to the witnesses" (citations omitted)). "Prosecutorial misconduct denies a defendant due process only when it is `of sufficient significance to result in the denial of the defendant's right to a fair trial!" Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). The defendant has otherwise failed to identify how she has been deprived of the right to a fair trial. A jury will hear testimony about the defendant's statements during her April and July 2016 depositions, along with other evidence, and determine if her statements were perjurious. 108 EFTA00039555

"While the Constitution guarantees a fair trial through the Due Process Clauses . . it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment." Cap/in & Drysdale, Chartered v. United States, 491 U.S. 617,633 (1989) (citations omitted). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." Chambers v. Mississippi, 410 U.S. 284,294 (1973). And as noted, the defendant cites no legal authority supporting the proposition that the Government's actions during its investigation have somehow deprived her of a fair trial or otherwise violated her due process rights. In short, none of Maxwell's allegations of misconduct rises to the level of a due process violation. Dismissal of Counts Five and Six of the Indictment would be all the more unwarranted here, where there was no outrageous Government misconduct and where the defendant cannot show that the Government's behavior prejudiced her defense or legal representation. Similarly, because there was no misconduct by the Government, there is no basis to suppress the evidence obtained pursuant to the subpoena. The defendant's motion—unsupported by the law and the facts-must be denied. 5. The Court Should Not Exercise Its Inherent Authority to Order Suppression The defendant urges the Court to exercise its inherent authority to order suppression. This Court should decline the defendant's invitation to exercise this sparingly used power. a. Applicable Law "[T]he Supreme Court has recognized three purposes for the supervisory powers, `to implement a remedy for violation of recognized rights, to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury, and finally, as a remedy 109 EFTA00039556

designed to deter illegal conduct.' Coke, 2011 WL 3738969, at '6 (quoting United States v. Hastings, 461 U.S. 499, 505 (1983)). "However, while there are times when a district court may properly find it absolutely necessary[, in order] to preserve the integrity of the criminal justice system, to suppress evidence under its inherent or supervisory authority, 'the Supreme Court has explained that a court's inherent power to refuse to receive material evidence is a power that must be sparingly exercised [only in cases of] manifestly improper conduct by federal officials." United States v. Lambus, 897 F.3d 368, 401 (2d Cir. 2018) (alterations and emphasis in original) (internal quotations and citations omitted). The Second Circuit has "'recognized that courts cannot fashion their own sub-constitutional limitations on the conduct of law enforcement agents." Id. (quoting United States v. Ming He, 94 F.3d 782, 792 (2d Cir. 1996)); see also United States v. Myers, 692 F.2d 823, 847 (2d Cir. 1982). "Accordingly, the court should not exercise its inherent or supervisory power `as a substitute for Fourth Amendment jurisprudence, which adequately safeguards against unlawful searches and seizures.' Lambus, 897 F.3d at 401 (quoting Ming He, 94 F.3d at 792); see also United States v. Payner, 447 U.S. 727, 737 (1980) ("the supervisory power does not extend so far" as to "confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing"). b. Discussion By asking the Court to exercise its inherent authority, the defendant apparently means to suggest that the Court should grant the relief she seeks, even if she has failed to establish a violation of the Constitution or other governing law. The defendant fails to provide justification for the extraordinary remedy of suppression or to cite persuasive case law in favor of such an extraordinary use of the Court's inherent authority. 110 EFTA00039557

The law is clear that a district court's supervisory authority does not extend to suppressing evidence absent some violation of the Constitution or other governing law. See Payner, 447 U.S. at 737 (holding that "the supervisory power does not extend" to "disregard[ing] the considered limitations of the law it is charged with enforcing"); United States v. Anderson, 772 F.3d 969, 976 (2d Cir. 2014) (same); United States v. Jennings, 960 F.2d 1488, 1491 (9th Cir. 1992) ("Absent a violation of a recognized right under the Constitution, a statute, or a procedural rule, a district court is not entitled to exclude evidence as a sanction against government practices disapproved of by the court."). The requirements established by the Supreme Court and the Second Circuit for suppressing evidence would have little effect if district courts were free to disregard them and suppress evidence by invoking their supervisory authority. Consistent with that principle, and given that this power is "sparingly exercised," Lambus, 897 F.3d at 401, (emphasis in original), this Court should not elect to do so here where the defendant has not established a violation of her Fourth Amendment, Fifth Amendment, or due process rights. See, e.g., id. at 401-02 ("We can appreciate the district court's frustration at careless government representations that may impact the integrity of judicial decisions, especially proffers in support of ex parte applications that an adversary has no opportunity to dispute[,]" but finding that the district court erred in suppressing evidence by invoking its inherent authority); Coke, 2011 WL 3738969, at *6 (declining to exercise its supervisory powers to suppress wiretap evidence and finding defendant "has no Fourth Amendment right, and the novel substantive due process right he asks this Court to create cannot be described as a recognized right." (internal citations omitted)). 6. The Defendant Is Not Entitled to a Hearing The defendant argues that if the Court is "disinclined" to grant the extraordinary relief of suppression she seeks, she is entitled to an evidentiary hearing to probe the Government's 111 EFTA00039558

"misstatements" to Chief Judge McMahon and the extent of coordination between the USAO- SDNY and Boies Schiller prior to the issuance of the subpoena. (Def. Mot. 3 at 16). With respect to that alleged "misconduct," the defendant appears to makes two general accusations: first, that in 2016 Boies Schiller encouraged the USAO-SDNY to investigate the defendant for perjury, and second, that the Government's statement to Chief Judge McMahon as to whether she was facing a "Chemical Bank kind of situation" was false. Neither is correct, for the reasons described above. Because the defendant has proffered no reliable evidence to support any of the accusations contained in her motion papers, and because the Government has responded to those accusations with AUSA-1's contemporaneous notes of the February 29, 2016 meeting and notes from an interview of AUSA-1 conducted by the USAO-SDNY and the FBI (see Exs. 4 & 5), as well as relevant AUSA-1 emails (Exs. 6 & 7), such a hearing is not warranted. a. Applicable Law "[E]videntiary hearings should not be set as a matter of course, but only when the petition alleges facts which if proved would require the grant of relief." Grant v. United States, 282 F.2d 165, 170 (2d Cir. 1960). "In order to make the requisite showing in sufficient detail, the defendant must submit an affidavit by someone with personal knowledge that disputed facts exist." United States v. Noble, No. 07 Cr. 284 (RJS), 2008 WL 140966, at *1 (S.D.N.Y. Jan. 11, 2008). "In the absence of such an affidavit, or when the allegations contained in such an affidavit are general and conclusory, an evidentiary hearing is unnecessary." United States v. Dewar, 489 F. Supp. 2d 351, 359 (S.D.N.Y. 2007). A district court may decide the motion without a hearing if the moving papers do not create a genuine issue as to any material fact. United States v. Carving, 968 F.2d 232, 236 (2d Cir. 1992), abrogated on other grounds by Ratzlaf v. United States, 510 U.S. 135 (1994. Moreover, it is well settled that a material issue of fact sufficient to justify an evidentiary 112 EFTA00039559

hearing requires "an affidavit of someone with personal knowledge of the underlying facts." United States v. Shaw, 260 F. Supp. 2d 567, 570 (E.D.N.Y. 2003); see also United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967); United States v. Ahmad, 992 F. Supp. 682, 685 (S.D.N.Y. 1998) ("ordinarily [a factual issue must be] raised by an affidavit of a person with personal knowledge of the facts;" otherwise "there is no basis for holding an evidentiary hearing or suppressing the evidence"). The defendant's allegations are analogous to those raised when evaluating defendants' claims of Government Franks violations. To obtain a Franks hearing, a defendant must make a "substantial preliminary showing," United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)), that (i) there were "inaccuracies or omissions" in the affidavit, (ii) "the alleged falsehoods or omissions were necessary to the issuing judge's probable cause or necessity finding," and (iii) "the claimed inaccuracies or omissions [were] the result of the affiant's deliberate falsehood or reckless disregard for the truth." Lambus, 897 F.3d at 397; see also United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). Even if a defendant clears the first Franks hurdle with a substantial preliminary showing of a false statement or omission, the defendant is not entitled to a Franks hearing unless a reviewing court makes the legal determination that the false statement or omission was "necessary to the [issuing] judge's probable cause finding." United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000). To determine whether alleged errors and omissions are material, a court should revise the affidavit (adding alleged omissions and correcting alleged errors), and determine whether the revised affidavit supports a finding of probable cause. See, e.g., Canfield, 212 F.3d at 719. If the revised affidavit supports a probable cause finding, then "the inaccuracies were not material to the probable cause determination and suppression is inappropriate." Id. at 718. After adding the 113 EFTA00039560

alleged omissions and correcting the alleged errors, the "ultimate inquiry" is whether "there remains a residue of independent and lawful information sufficient to support probable cause." United States v. Martin, 426 F.3d 68, 74 (2d Cir. 2005) (internal quotation marks and citations omitted). "[E]ven if the misrepresented or omitted information was material, a motion to suppress is to be denied unless the misrepresentations or omissions were intentional or deliberate, or were made in reckless disregard for the truth." Lambus, 897 F.3d at 399. The standard to demonstrate material false statements and omissions in an agent's affidavit is a "high one." Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991). The intent prong of Franks is particularly demanding with respect to omissions. "Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead." Awadallah, 349 F.3d at 68 (emphasis in original). After all, "la]ll storytelling involves an element of selectivity,' and it is therefore not necessarily constitutionally significant that an affidavit `omit[s] facts which, in retrospect, seem significant.'" United States v. Lahey, 967 F. Supp. 2d 698, 708 (S.D.N.Y. 2013) (quoting United States v. Vilar, No. 05 Cr. 621 (KMK), 2007 WL 1075041, at *27 (S.D.N.Y. Apr. 4, 2007)); see also United States v. DeFilippo, No. 17 Cr. 585 (WHP), 2018 WL 740727, at *2 (S.D.N.Y. Jan. 31, 2018) ("As courts in this Circuit have recognized, it is not shocking that every affidavit will omit facts which, in retrospect, seem significant." (internal quotation marks and citations omitted)). The "substantial preliminary showing" requirement explained above exists to "avoid fishing expeditions into affidavits that are otherwise presumed truthful." Falso, 544 F.3d at 125. "[C]onclusory allegations cannot support a Franks challenge as a matter of law." United States v. Pizarro, No. 17 Cr. 151 (AJN), 2018 WL 1737236, at *10 (S.D.N.Y. Apr. 10, 2018); see also 114 EFTA00039561

Franks, 438 U.S. at 171 ("To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine."). Instead, to warrant a Franks hearing: [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Id. The burden to even obtain a Franks hearing is a heavy one, and such hearings are thus exceedingly rare. See United States v. Brown, 744 F. Supp. 558, 567 (S.D.N.Y. 1990) ("A defendant seeking to have the Court hold a Franks hearing bears a substantial burden."); United States v. Swanson, 210 F.3d 788, 790 (7th Cir. 2000) ("These elements are hard to prove, and thus Franks hearings are rarely held."). b. Discussion In an alternative effort to suppress the materials obtained pursuant to the subpoena, the defendant argues that an evidentiary hearing is warranted to inquire into the Government's "misrepresentations" to Chief Judge McMahon. (Def. Mot. 3 at 16). However, as discussed extensively above, Maxwell's motion is little more than speculation and innuendo, itself rooted in a lone news article that, as described above, is not fully accurate. She otherwise presents no admissible evidence, affidavits, or other materials supporting the breathless accusations contained in her motion papers. As such, because the defendant does not include "an affidavit of someone with personal knowledge of the underlying facts," Shaw, 260 F. Supp. 2d at 570, and because the 115 EFTA00039562

Government has responded with reliable information directly rebutting the defendant's allegations, there is no material issue of fact sufficient to justify an evidentiary hearing.4* The defendant cites Franks, to suggest that a hearing is somehow warranted, but her motion falls far short of the standard required to obtain a hearing. "While the Franks analysis discussed above is typically employed to evaluate misstatements and omissions relating to probable cause, the Second Circuit has extended the Franks analysis to other Title III requirements for obtaining a warrant." United States v. Rajaratnam, No. 09 Cr. 1184 (RJH), 2010 WL 4867402, at *18 (S.D.N.Y. Nov. 24, 2010). The defendant fails to identify the standard that would govern such a hearing. In light of the interests implicated by a Title III wiretap, the USAO-SDNY submits that the defendant's depositions in a civil matter, even with a protective order, are no more significant than the interests implicated by a Title III wiretap. As such, the exacting standard of Franks should apply. On this record, the defendant has not made a threshold showing that the Government acted with the intent to mislead or in reckless disregard for the truth. The Franks standard is rightly a "high one," Rivera, 928 F.2d at 604, and one the defendant has failed to meet here. The defendant's bald assertions alone do not entitle her to a fishing expedition in the form of a hearing. V. The Jury Should Decide Whether the Defendant Committed Perjury Counts Five and Six of the Indictment allege that, during the course of two depositions, the defendant knowingly made false material declarations, in violation of 18 U.S.C. § 1623. The defendant moves to dismiss those Counts, arguing that the Court can determine now—on a pre- 44 For similar reasons, the defendant's request for discovery regarding this matter should be denied. The defendant has failed to meet her burden under Rule 16 of making "a prima fade showing of materiality and must offer more than the conclusory allegation that the requested evidence is material." Urena, 989 F. Supp. 2d at 261 (citations omitted). Because the defendant has offered nothing more than her conjecture, based on an inaccurate and hearsay-ridden article, that some unspecified evidence might exist, her request for discovery should be denied. 116 EFTA00039563

trial record—that the questions were fundamentally ambiguous, and the defendant's answers were truthful and immaterial. (Def. Mot. 5). To the contrary, the Government expects to prove at trial that the defendant understood the questions and that her answers were both false and materially so. This case does not present the narrow circumstances in which a court can and should dismiss perjury counts, let alone do so before trial. A. Factual Background On July 7, 2008, following the USAO-SDFL entering into the non-prosecution agreement with Epstein, two minors filed a petition under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, alleging that the prosecutors violated their rights under that statute. See Doe v. United States, 08 Civ. 80736 (S.D.F.L). See generally Doe No. 1. v. United States, 749 F.3d 999, 1002 (11th Cir. 2014) (describing the background of the suit). On December 30, 2014, Virginia Roberts Giuffre moved to join the petition, alleging that the USAO-SDFL had also violated her CVRA rights. See Doe, No. 08 Civ. 80736, Dkt. No. 279.45 In her motion for joinder, Giuffre described the defendant as "'one of the main women' Epstein used to `procure under-aged girls for sexual activities,"' and as a "'primary co-conspirator' with Epstein in his scheme. See Giuffre v. Maxwell, No. 18-2868 (2d Cir. 2019), Dkt. No. 287 at 10 (containing the unsealed summary judgment opinion from 15 Civ. 7433 (LAP)). Among other allegations, Giuffre alleged that the defendant "'persuaded' [her] to go to Epstein's mansion," and, "when Giuffre began giving Epstein a massage, [he] and [the defendant] 'turned it into a sexual encounter.'" Id. at 11. Giuffre alleged that the defendant also "`participat[ed] in the sexual abuse" of others. Id. A few days later, the press reported a statement by a spokesman for the defendant, Ross Gow. Among other things, 45 Giuffre filed a corrected motion on January 2, 2015. See Doe, No. 08 Civ. 80736, Dkt. No. 280. The court later struck the original motion, sealed the corrected motion, and ordered filing of a redacted version of the corrected motion. See id., Dkt. No. 325 (Apr. 7, 2015). 117 EFTA00039564

Gow stated that Giuffre's claims were "untrue" and "obvious lies." (15 Civ. 7433 (LAP), Dkt. No. 1 at 6). As described in the preceding section, in the fall of 2015, Giuffre sued the defendant for defamation." (See 15 Civ. 7433 (LAP), Dkt. No. 1). Giuffre alleged that Epstein sexually abused her, "with the assistance and participation of Maxwell" at "numerous locations" between 1999 and 2002, and that Epstein abused more than thirty minors between 2001 and 2007 "with the assistance of numerous co-conspirators." (Id. at 3). During the defendant's first deposition on April 22, 2016, the defendant refused to answer questions that she deemed related to consensual adult sexual interactions. (See, e.g., Ex. 10 at 92:20-93:6). Giuffre moved to compel the defendant to answer, explaining that "[a]t the core of [her] allegations is the allegation that [the] Defendant lured her into a sexual situation with the offer of a job making money as a massage therapist; that Epstein always habitually tried to turn massages into sex . . . and that Maxwell recruited other females for an ostensibly proper position, such as therapeutic masseuse, with knowledge that the intent was for that person would be pressured to provide sexual gratification to Epstein." (15 Civ. 7443 (LAP), Dkt. No. 1137-1 at 5- 6). Giuffre also explained that the defendant's refusal to answer questions about adult consensual sex prevented Giuffre "from seeking legitimate discovery," such as the identity of people the defendant presently deemed adults. (id. at 6). The Court granted Giuffre's motion. "[N]otwithstanding" the intrusiveness of the questions and the fact that the defendant had not put her private affairs at issue, "the questions are directed to reveal relevant answers regarding Defendant's knowledge of Plaintiff's allegations." " The below discussion is provided as context for the Court's consideration of the motion. As discussed further in the Government's opposition to the defendant's motion for severance, the Government expects to provide a more streamlined presentation regarding the Giuffre suit at trial. 118 EFTA00039565

(Def. Mot. 4, Ex. H at 9). "That knowledge," the Court explained, "goes directly to the truth or falsity of the alleged defamation, a key element of Plaintiff's claim." (Id.). The Court therefore ordered the defendant to answer the questions related to her sexual activity with or involving (1) Epstein, (2) Giuffre, (3) underage girls known to Epstein or who she thought might become known to Epstein, or (4) involving massage with individuals the defendant "knew to be, or believed might be, known to Epstein." (Id. at 10). The Court further ordered the defendant to answer questions about her knowledge of the sexual activities of others in the same four categories. The Court added that the "scope of Defendant's answers are not bound by time period, though Defendant need not answer questions that relate to none of these subjects or that is clearly not relevant." (Id.). The defendant sat for a second deposition on July 22, 2016, before the case settled. As discussed more fully below, the Indictment charges the defendant with two counts of perjury, one arising from statements made during the April 2016 deposition and one arising from statements made during the July 2016 deposition. Indictment ¶y 21, 23. (Ex. 10 at 253:25-254:8, 384:15-20; Ex. 11 at 88:9-89:13, 91:22-92:16, 113:2-12). The defendant now moves to dismiss both counts, arguing that the Court can effectively decide now, as a matter of law, that the questions were fundamentally ambiguous, her answers were true, and her answers were immaterial to the case. B. Applicable Law Section 1623(a) imposes criminal penalties on anyone who "in any proceeding before or ancillary to any court ... knowingly makes any false material declaration." 18 U.S.C. § 1623(a). In perjury prosecutions, "whether the witness believes that an answer is true or false generally turns on the declarant's understanding of the question." United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986). Accordingly, and as is true of virtually all factual issues, "[a] jury is best equipped 119 EFTA00039566

to determine the meaning that a defendant assigns to a specific question." Id.; see, e.g. United States v. Sampson, 898 F.3d 287, 307 (2d Cir. 2018).47 A narrow exception arises when language in a question is so "fundamentally ambiguous" that a Court can conclude, as a matter of law, that a perjury count cannot stand. Lighte, 782 F.2d at 375. A question is "fundamentally ambiguous" when "it is not a phrase with a meaning about which [people] of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony." Id. at 375 (internal quotation marks omitted). In such a case, the "answers associated with the questions posed may be insufficient as a matter of law to support the perjury conviction." United States v. Markiewicz, 978 F.2d 786, 808 (2d Cir. 1992) (quoting Lighte, 782 F.2d at 375). For instance, in Lighte, a case involving post-conviction appellate review, the Court found that a question was fundamentally ambiguous because it used the word "'you' without indication that, unlike the prior two questions, the appellant was now being questioned in his role as trustee." 782 F.2d at 376. "[F]undamental ambiguity," however, "is the exception, not the rule." United States v. Sarwari, 669 F.3d 401, 407 (4th Cir. 2012) (quoting United States v. Fanner, 137 F.3d 1265, 1269 (10th Cir. 1998)). A defendant cannot demonstrate fundamental ambiguity simply by showing that words used in a question are amenable to multiple meanings, or that an answer "might generate a number of different interpretations." Lighte, 782 F.2d at 375; United States v. Strohm, 671 F.3d 1173, 1178 (10th Cir. 2011) ("Simply plumbing a question for post hoc ambiguity will not defeat a perjury conviction where the evidence demonstrates the defendant understood the question in context and gave a knowingly false answer."). "If, in the 47 The Second Circuit analyzes general principles of perjury similarly under 18 U.S.C. § 1623 and another perjury statute, 18 U.S.C. § 1621, see Lighte, 782 F.3d at 372, and it has assumed without deciding that those standards also apply to offenses under 18 U.S.C. § 1001(a)(2), see United States v. Sampson, 898 F.3d 287, 307 n.15 (2d Cir. 2018). 120 EFTA00039567

natural meaning in the context in which words were used they were materially untrue, perjury was established." United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir. 1976). Critically, and as noted with respect to Lighte above, courts generally evaluate whether a challenge to a perjury count on the basis that a question was fundamentally ambiguous after trial and following the development of a full factual record. See, e.g., Strohm, 671 at 1175 (appeal following conviction); SanvaH, 669 F.3d at 406 (same); Farmer, 137 F.3d at 1269 (appeal following conviction and partial Rule 29 dismissal) Marldewicz, 978 F.2d at 808 (appeal following conviction); cf. United States v. Forde, 740 F. Supp. 2d 406, 413 (S.D.N.Y. 2010) (denying a motion to dismiss a perjury count). Indeed, the defendant cites no case in which a court has dismissed a perjury count on the basis of "fundamental ambiguity" before trial. Because perjury requires a knowing false statement, the law does not permit conviction based on answers that are literally true. See Lighte, 782 F.2d at 374. Nor can a conviction rest on answers that are literally true but unresponsive, and therefore "arguably misleading by negative implication." Id.; see Bronston v. United States, 409 U.S. 352, 362 (1973). But when "the answer is false, the fact that it is unresponsive is immaterial." United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976). Even statements that "could be literally true in isolation" can support a perjury conviction if they are "materially untrue" in "the context in which the statements were made." United States v. Schaftick, 871 F.2d 300, 304 (2d Cir. 1989). "[U]nless the questioning is fundamentally ambiguous or imprecise, the truthfulness of [the defendant's] answers is an issue for the jury." Id. at 304; see United States v. Kaplan, 758 F. App'x 34, 39 (2d Cir. 2018) (same); cf. Lighte, 782 F.2d at 374 (finding the evidence insufficient where some answers "were literally true under any conceivable interpretation of the questions"). 121 EFTA00039568

Finally, even if a defendant makes a knowing false statement, a perjury conviction requires that the statement be material. A false statement is material if it has "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." United States v. Gaudin, 515 U.S. 506, 509 (1995) (alteration in original) (quotation marks omitted). A statement made in a civil deposition is also material if "a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit." United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994)); see United States v. Birrell, 470 F.2d 113, 115 n.1 (2d Cir. 1972) (explaining, in the context of a motion to proceed in forma pauperis and for appointment of counsel, that "it must be shown that a truthful answer would have been of sufficient probative importance to the inquiry so that, as a minimum, further fruitful investigation would have occurred." (citation and internal quotation marks omitted)). "The testimony need not have actually influenced, misled, or impeded the proceeding." United States v. Chan Lo, No. 14 Cr. 491 (VSB), 2016 WL 9076234, at ■8 (S.D.N.Y. Feb. 4, 2016), aff'd 679 F. App'x 79 (2d Cir. 2017); see Forde, 740 F. Supp. 2d at 412. Since materiality is an element of the offense, it is a question for the jury "except in the most extraordinary circumstances." Forde, 740 F. Supp. 2d at 412 (citing Gaudin, 515 U.S. at 522-23). C. Discussion The Government expects to prove at trial that the defendant's deposition statements were knowingly false. The defendant's strained efforts to inject ambiguity into the questioning and to justify her answers as truthful are in significant part, arguments that are properly put to the jury and not a basis to dismiss the counts pretrial and without the benefit of a complete record. See United States v. Triumph Capital Group, Inc., 237 F. App'x 625, 627-28 (2d Cir. 2007) ("Generally, the meaning and truthfulness of a defendant's statement is a question of fact for the 122 EFTA00039569

jury."). At this stage, the defendant must identify defects so fundamental that the charged statements cannot, as a matter of law, support a perjury conviction. She has failed to do so, and her motion should be denied. 1. April 2016 Deposition At the April 2016 deposition, Giuffre's counsel asked the defendant about how Giuffre came to Epstein's home (Ex. 10 at 14:9-17:4), whether hired massage therapists engaged in sexual activity with Epstein (id. at 51:13-55:16), and the defendant's knowledge of Epstein's Florida criminal case (id. at 171:25-173:12, 183:25-186:21), among other topics. The transcript makes clear that when the defendant did not understand a question, she said so. (See, e.g., id. at 9:4-9 ("[C]an you please clarify the question. I don't understand what you mean by female, I don't understand what you mean by recruit."), 39:23-24 ("I don't understand what your question is asking."), 94:18-95:4 ("You don't ask me questions like that. First of all, you are trying to trap me, I will not be trapped."), 138:6 ("Define relationship."), 244:22-23 ("You are not asking me a good question, sorry."). Count Five charges the defendant with perjury arising from two colloquies at this deposition. First, Giuffre's counsel asked the defendant a series of questions about whether the defendant brought women to Epstein, which the defendant resisted by observing that she hired "people across the board" to "work for Jeffrey." (Id. at 245:7-18). Giuffre's counsel asked whether any minors worked as exercise instructors or masseuses at Epstein's home, and the defendant testified that they were all adults except for Giuffre, who she acknowledged at least claimed to have been seventeen. (Id. at 246:18-251:12). Giuffre's counsel then asked questions about whether Epstein had a "sexual preference for underage minors," which drew objections from 123 EFTA00039570

defense counsel and which the defendant ultimately answered by saying "I cannot tell you what Jeffrey's story is. I'm not able to." (Id. at 251:13-253:12). This colloquy followed: Q. Did Jeffrey Epstein have a scheme to recruit underage girls to use them for purposes of sexual massages? MR. PAGLIUCA: Objection to the form and foundation. A. Can you ask me again, please? Q. Did Jeffrey Epstein have a scheme to recruit underage girls to recruit them for sexual massages? MR. PAGLIUCA: Objection to the form and foundation. A. Can you ask it a different way? Q. Did Jeffrey Epstein have a scheme to recruit underage girls for sexual massages? MR. PAGLIUCA: Objection to the form and foundation. Q. If you know. A. I don't know what you are talking about.48 (Ex. 10 at 253:13-254:8). The defendant argues that the question was ambiguous, as shown by her requests for the questioner to rephrase the question. (Def. Mot. 4 at 9-10, 18). A properly instructed jury could readily conclude otherwise in light of the evidence the Government expects to introduce at trial. The defamation case involved allegations that Giuffre was a victim of that scheme: Giuffre had alleged that Epstein and the defendant had sexualized a massage that Giuffre gave Epstein. The preceding questions focused on (I) whether the defendant brought underage masseuses to work for Epstein, and (2) whether Epstein had a sexual preference for underage girls. Moreover, at trial and as discussed further below, the Government expects to elicit testimony from one or more of 48 Underlined sentences are charged as false statements in the Indictment. 124 EFTA00039571

the victims specified in the Indictment about sexualized massages the victims provided to Epstein, conduct that obviously predated the deposition. See Indictment ¶ 7(a), (c). In context, and with an understanding of the Government's other evidence, a rational juror could readily conclude that the question "did Jeffrey Epstein have a scheme to recruit underage girls for sexual massages . . . [i]f you know?" had a clear meaning, and more important for purposes of the instant motion, any ambiguity was not "fundamental." Cl Triumph Capital Grp., Inc., 237 F. App'x at 628 (concluding that an answer about "this arrangement" was not fundamentally ambiguous). Nor is there any basis to dismiss the count now based on the defendant's professed confusion or denial of knowledge of the scheme's existence. A defendant may commit perjury by falsely denying memory or knowledge of an event. See, e.g., United States v. Alberti, 568 F.2d 617, 625 (2d Cir. 1977); United States v. Weiner, 479 F.2d 923, 926, 929 (2d Cir. 1973); Forde, 740 F. Supp. 2d at 410-11. Viewing the question and answer "in the context of the line of questioning as a whole," the defendant "consistently denied" knowledge of Epstein's scheme, Markiewicz, 978 F.2d at 810, and a jury could conclude that the "question was not fundamentally ambiguous—and thus that [the defendant], understanding the question, lied." See Sampson, 898 F.3d at 307; cf. Indictment ¶¶ 4(e) 11(c)-(d), 17(c)-(d) (discussing use of massage as part of the sexual abuse scheme). Second, later in the deposition, Giuffre's counsel asked the defendant a series of questions in an attempt to identify other underage girls that the defendant met and brought to Epstein. Specifically: Q. Can you list for me all the girls that you have met and brought to Jeffrey Epstein's house that were under the age of 18? MR. PAGLIUCA: Objection to the form and foundation. 125 EFTA00039572

A. I could only recall my family members that were there and I could not make a list of anyone else because that list -- it never happened that I can think of. Q. I'm talking about the time you were working for Jeffrey Epstein, can you list all girls that you found for Jeffrey Epstein that were under the age of 18 to come work for him in any capacity? MR. PAGLIUCA: Objection to the form and foundation. A. I didn't find the girls. Q. You choose the word. MR. PAGLIUCA: If you have a question ask it, you don't choose the word. Q. List all of the girls you met and brought to Jeffrey Epstein's home for the purposes of employment that were under the age of 18? MR. PAGLIUCA: Objection to the form and foundation. A. I've already characterized my job was to find people, adults, professional people to do the jobs I listed before; pool person, secretary, house person, chef, pilot, architect. Q. Pm asking about individuals under the age of 18, not adult persons, people under the age of 18. A. I looked for people or tried to find people to fill professional jobs in professional situations. Q. So Virginia Roberts was under the age of 18, correct? A. I think we've established that Virginia was 17. Q. Is she the -- sorry, go ahead. Is she the only individual that you met for purposes of hiring someone for Jeffrey that was under the age of 18? MR. PAGLIUCA: Objection to form and foundation. Mischaracterizes her testimony. A. I didn't hire people. Q. I said met. 126 EFTA00039573

A. I interviewed people for jobs for professional things and I am not aware of anyone aside from now Virginia who clearly was a masseuse aged 17 but that's, at least that's how far we know that I can think of that fulfilled any professional capacity for Jeffrey. Q. List all the people under the age of 18 that you interacted with at any of Jeffrey's properties? A. I'm not aware of anybody that I interacted with, other than obviously Virginia who was 17 at this point? (Ex. 10 at 382:4-384:20). The defendant argues that this question was "grossly ambiguous: who was `Jeffrey'; what were 'Jeffrey's properties;' to what time frame did the question apply; what was the basis for Ms. Maxwell to determine who may or may not have been `under the age of 18'; and what did `interact with' mean?" (Def. Mot. 4 at 11). These arguments only underscore the principle that perjury prosecutions are an inquiry into "the natural meaning in the context in which words were used," Bonacorsa, 528 F.2d at 1221, and not an opportunity for defense counsel to "plumb[] a question for post hoc ambiguity," Strohm, 671 F.3d at 1178. A reasonable jury, after hearing the evidence, could readily conclude that the natural meaning of those words in context is abundantly clear. For instance, at the end of trial, a jury could conclude that "Jeffrey" is Jeffrey Epstein; "Jeffrey's properties" are Jeffrey Epstein's properties, including his houses in Palm Beach, New York, New Mexico, and the United States Virgin Islands (see, e.g., Ex. 10 at 248:17-20 (naming those properties)); and "interact" is an expansive word aimed at capturing any encounter, that was used after the defendant resisted words like "met," "found," and "hired" in the prior questions, see Interact, Oxford English Dictionary Online, https://oed.corniview/Entry/97518 (last visited February 25, 2021) ("To act reciprocally, to act on each other."). Such inferences will be particularly easy for a jury to reach after hearing multiple victims testify about their own 127 EFTA00039574

interactions with the defendant and Epstein at Epstein's various properties. See, e.g., Indictment 1 7(a) ("MAXWELL subsequently interacted with Minor Victim-1 on multiple occasions at Epstein's residences."). Accordingly, a rational juror, after hearing the evidence, could find that the question called for the names of minors that the defendant interacted with at any of Jeffrey Epstein's properties, that the defendant answered that she was aware of no such minors other than Giuffre, and therefore that her answer was false. And even if the defendant identifies some plausible ambiguity—and she has not—the terms in this question are ones "with a meaning about which [people] of ordinary intellect could agree," and therefore are not fundamentally ambiguous. Lighte, 782 F.2d at 375 (internal quotation marks omitted). The defendant points out that, in response to an earlier question asking her to list the underage girls she "met and brought" to Epstein's house, she said that she could not do so. (Del. Mot. 4 at 12-13). She argues that the charged question was "improper" because it asked her to generate a list "from events that had happened nearly two decades previously." (Id.). Her unpersuasive after-the-fact efforts to justify her answer provide no basis to keep this question from the jury. As noted above, the transcript makes clear (and a jury could find) that when the defendant did not understand or could not answer a question, she said so. To the extent the defendant is arguing that her answer was literally true, a reasonable July could find otherwise. In this respect, the Government notes, among other things, that in response to the earlier question, the defendant said that she could not make a list not because she could not remember events from that long ago but "because that list -- it never happened that I can think of." (Ex. 10 at 382:4-13) (emphasis added). And in response to the charged question, the defendant said that she "was not aware of anybody" under 18—that is, the list would be empty. See Forde, 740 F. Supp. 2d at 413 ("Olivieri, if truly confused, could also have asked for clarification. Instead he replied with a strong 128 EFTA00039575

denial..."). A properly instructed jury could conclude after hearing all of the evidence at trial that the defendant intended the natural meaning of the words she used, not the allegedly truthful answer she suggests now, and therefore that she lied. In sum, the defendant's post-hoc efforts to inject confusion into clear questioning are unavailing and should be rejected, and the jury should decide whether the defendant's answers were false. 2. July 2016 Deposition Count Six charges the defendant with perjury arising from three colloquies at the second deposition. ans thaelMr. EPalBea at 544 Although she didiathe names of any of aomen,, "bloand llirrwyera tiefenarilTaWarlirt/d. Following that line of questioning, the following colloquy occurred: Er. When you and Mr. Epstein were engaged in sexual activity that included these other women, were any devices or sex toys used as part of the sexual activity? A. No. Q. Were you ever involved in sexual activities in Mr. Epstein's Palm Beach house that included the use of sex toys or any kind of mechanical or other device? MR. PAGLIUCA: Objection to form and foundation. A. No. Q. Were you ever involved in sexual activities in any of Mr. Epstein's properties other than Palm Beach that included the use of sex toys or any kind of mechanical or other device? 129 EFTA00039576

Q. Were you aware of the presence of sex toys or devices used in sexual activities in Mr. Epstein's Palm Beach house? A. No. not that I recall. other pi question: Giuffre's lawyer asked the following Q. Do you know whether Mr. Epstein possessed sex toys or devices used in sexual activities? Ir -ionl n and foundation. A. Ng, The defendant now argues that these questions are ambiguous because they contain "numerous undefined terms," such as "sex toy or device" and "sexual activities." (Def. Mot. 4 at 14). She asks, for instance, whether "bath oil" would count as a sex toy or device. (Id.). Yet this argument is simply another attempt to imbue ambiguity after the fact into commonly used words with common sense meanings. The mere fact that a term could apply equally to several different objects does not automatically mean that the question is impermissibly vague and can never form the basis of a perjury charge. See, e.g., H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958) ("A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles . ?"). Instead, it is well- settled that "[t]he jury should determine whether the question—as the declarant must have understood it, giving it a reasonable reading—was falsely answered." Lighte, 782 F.2d at 372. So 130 EFTA00039577

long as the question involves a phrase "which could be used with mutual understanding by a questioner and answerer," it is not fundamentally ambiguous. Id. at 375 (internal quotation marks omitted); see United States v. Jenkins, 727 F. App'x 732, 735 (2d Cir. 2018) ("An individual of ordinary intelligence would not think that a question asking for information regarding `real estate, stocks, bonds, ... or other valuable property' would allow omission of information regarding money market funds ...."). The use of broad or inclusive terms does not render the question fundamentally ambiguous. As the Second Circuit explained in the context of the term "employment activities," "[t]he broad language of the question is not fundamentally ambiguous; it is instead designed to capture all employment activities in an applicant's recent history." United States v. Polos, 723 F. App'x 64, 65-66 (2d Cir. 2018). So too here. A "sex toy or device" is an intelligible phrase with an understood meaning. See Sex Toy, Oxford English Dictionary Online, https://www.oed.corn/view/Entry/176989 (last visited February 12, 2021) ("[A] device or object designed for sexual stimulation (as a dildo, vibrator, etc.) or to enhance sexual pleasure or performance."). To the? al ac ins a , it was de t earlier in the depositimardniyities" to include "Kissing, touchinpwith hands ox mouths or otaa.1.= The defendant's objections to the next colloquy in the indictment are similarly unavailing. Shortly after the above exchange, the following conversation occurred: 17.11 atrme tiittany circri=r i tsprcWres,taialyou engage in lexual activities with any woman other than when you had three- 'ray sexual activities with Mr. Epstein? MR. PAGLIUCA: Object to the form. 131 EFTA00039578

A. Can you repeat the question? At any time, in Mr. Epstein's properties, did you engage in sexual activities any woman other than when you had thrill way sexual activities with Mr. Epstein? MR. PAGLIUCA: Same objection. A. No. Q. Other than yourself and the blond and brunette that you have identified as having been involved in three-way sexual activities, with whom did Mr. Epstein have sexual activities? r -Objection to form A. I wasn't aware that he was having sexual activities with anyone when I was with him other than myself. Q. I want to be sure that I'm clear. Is it your testimony that in the 1990s and 2000s, you were not aware that Mr. Epstein was having sexual activities with anyone other than yourself and the blond and brunette on those few occasions when they were involved with you? A. That is my testimony, that is correct. The defendant primarily argues that her answers were literally true. In the defendant's telling, the phrase "[w]hen I was with him," refers not to the duration of the defendant's relationship with Epstein, but instead to only those moments when she was in the act of having sex with Epstein and either the blond or brunette identified above. (Def. Mot. 4 at 16). as the de gi rigimppuiggiggrEkred wh Mile" three-perir encas inn a fourth person, the answer 631‘firfi is no, she argil beca I activities by defi cannot involve four people. And in any event, she further argues, because the question asked the defendant about the 1990s and 2000s, it therefore covered any 'sexual activities' spanning more than a millennium." (Id. at 16-17). 132 EFTA00039579

The defendant, therefore, argues that the questioner asked whether a logically impossible event occurred or will occur at some point over the course of a millennium. But the defendant's professed confusion—which again was not raised during the deposition itself—ignores the plain and obvious context of the question, which did not refer to a time period far exceeding the human life span, and was not limited to only the times in which the defendant was in the act of having sex with Epstein. Plainly, a jury could find that the defendant correctly understood the question when she answered it in July 2016, and that she ascribed a natural meaning to the words used in the questions, and not the tortured illogical meaning she now assigns to those questions: whether, during the course of her relationship with Epstein, she was aware of anyone other than herself having sexual relations with Epstein. The Government expects its evidence to show that she was. See, e.g., Indictment ¶ 1 (stating that the defendant "assisted, facilitated, and contributed to" Epstein's sexual abuse of minors). At a minimum, the defendant's answers were not "literally true under any conceivable interpretation of the questions." Lighte, 782 F.2d at 374. And the defendant's professed confusion now and proposed illogical reading of the questions in the instant motion does not render them fundamentally ambiguous. See Bonacorsa, 528 F.2d at 1221 ("A defense to a charge of perjury may not be established by isolating a statement from context, giving it in this manner a meaning entirely different from that which it has when the testimony is considered as a whole."). Accordingly, a jury should be permitted to determine what meaning the defendant ascribed to those questions and whether her answers were in fact false. Finally, the defendant answered the following questions: Q. Did you ever give a massage to anyone other than Mr. Epstein at any of Mr. Epstein's properties? A. First of all, I never said I gave Mr. Epstein a massage. 133 EFTA00039580

Q. I will ask that question if you want, but I was focusing on people other than Mr. Epstein right now. A. I don't give massages. Q. Let's just tie that down. It is your testimony that you've never given anybody a massage? A. I have not given anyone a massage. Q. You never gave Mr. Epstein a massage, is that your testimony? A. That is my testimony. Q. You never gave [Minor Victim-2] a massage is your testimony? A. I never gave [Minor Victim-21 a massage. (Ex. II at 112:17-113:12). The defendant argues that these questions were fundamentally ambiguous because the deposition elsewhere discussed both sexual and professional massages. It was unclear, she explains, what kind of massage the questioner meant. (Def. Mot. 4 at 17.) The defendant's argument is, yet again, misguided. This line of questioning used broad language, and at no point during this set of questions did Giuffre's counsel suggest that the questions were limited to sexual or professional massages. Cf. Lighte, 782 F.2d at 376 (concluding that the word "you" was ambiguous when the prior two questions asked about the defendant "as an individual" and then switched "without indication" to the defendant "as trustee"). The defendant's answers were unequivocal, with no expressions of confusion or internal contradictions. Cf. Markiewicz, 978 F.2d at 809 (explaining that a question was ambiguous as to whether it asked about the deponent's personal or professional capacities, in light of the deponent's confusion in the next questions). A properly instructed jury could conclude that the defendant meant what she said: she never gave anyone a massage, including Epstein and Minor Victim-2. 134 EFTA00039581

The defendant is, of course, free to testify on her own behalf to her professed confusion or otherwise argue to the jury that the questions were ambiguous or the answers truthful. The issue before the Court is whether the questions were so fundamentally ambiguous that a jury, after hearing the trial evidence, could not conclude that the "response given was false as the defendant understood the question." Lighte, 782 F.2d at 375 (internal quotation marks omitted). The defendant has failed to establish such a fundamental defect.° 3. Materiality Finally, the defendant argues that none of these answers was material to the defamation action. As a threshold issue, however, materiality is also not appropriate for resolution on a motion to dismiss the indictment. As noted above, materiality is a jury question "except in the most extraordinary circumstances." Forde, 740 F.Supp.2d at 412 (citing Gaudin, 515 U.S. at 522-23). As the Supreme Court explained in Johnson v. United States, 520 U.S. 461 (1997), "there is no doubt that materiality is an element of perjury under § 1623," and its precedent "therefore dictates that materiality be decided by the jury, not the court." Id. at 465. The Second Circuit has explained that it is inappropriate for courts to resolve questions relating to the sufficiency of the evidence on a motion to dismiss the indictment. The Federal Rules of Criminal Procedure contain no "analogue for summary judgment under Federal Rule of Civil Procedure 56" for several reasons. United States v. Sampson, 898 F.3d 270, 280 (2d Cir. 2018). First, "[p]ermitting civil `summary judgment'-like motions . . . would enable an end-run around the calibrated framework for discovery in criminal cases," and thereby "upset the policy 49 Even if the Court concludes that any of the individual statements charged in the Indictment cannot sustain a perjury conviction, the count survives so long as some statement can properly be presented to the jury. See Bonacorsa, 528 F.2d at 1221 ("It is customary, and ordinarily not improper, to include more than one allegedly false statement in a single count. . . . Where there are several such specifications of falsity in a single count, proof of any of the specifications is sufficient to support a verdict of guilty." (citations omitted)). 135 EFTA00039582

choices reflected in the criminal discovery rules." Id. Second, doing so "risks invading 'the inviolable function of the jury' in our criminal justice system."' Id. at 281 (citation omitted). Accordingly, if the "defense raises a factual dispute that is inextricably intertwined with a defendant's potential culpability, a judge cannot resolve that dispute on a Rule 12(b) motion." Id. The exception to this rule is "extraordinarily narrow" because, in the normal course, the "government must make a detailed presentation of the entirety of the evidence before a district court can dismiss an indictment on sufficiency grounds," which the Government is not required to do at the motion-to-dismiss stage. Id. at 282 (internal quotation marks and citation omitted). That point is underscored by United States v. Nitsche, 843 F. Supp. 2d 4 (D.D.C. 2011), on which the defendant relies. There, the district court dismissed an indictment in a child enticement case for insufficiency of the evidence. First, however, the court explained that the question was ripe because "(1) Defendant has stipulated to the entire record that is relevant to Count I; (2) the Government has had several opportunities to make a proffer of any additional facts, to conduct any subsequent investigation, and to ask the Court for further delay to seek more evidence; and (3) because the record is limited to the chat." Id. at 9. Accordingly, "[t]he transcripts themselves provide the Court with all of the relevant undisputed facts to decide the motion." Id. Here, of course, that is simply not the case and, in particular, there is no stipulation as to the entire relevant record. Under the relevant legal standard, the defendant's statements were material if they could have led to the discovery of other evidence or could influence the factfinder in the defendant's civil case. Evaluating that standard necessarily implicates facts beyond the deposition testimony itself and Judge Preska's unsealing order,5° such as identification of the allegedly defamatory 5° The defendant observes that Judge Preska redacted some of the statements that form the basis of Count Six, stating that the "testimony is . . . far afield from the sex trafficking and sexual abuse 136 EFTA00039583

statements at the heart of that case and the evidence that might have been uncovered had the defendant answered the questions truthfully. A jury should be allowed to hear the questions in context to evaluate their materiality, which cannot be done at this stage.51 The Court therefore should deny the motion. In any event, the perjurious statements were material in both senses of the definition. First, the questions were aimed at developing a record in the civil suit that Epstein and the defendant recruited Giuffre to Epstein's Palm Beach property in the guise of hiring her as a masseuse, and then sexualized that massage. Honest answers to those questions-for instance that Epstein in fact had a scheme to recruit underaged girls for sexual massages—would have been corroborative of some of Giuffre's claims. Second, had the defendant honestly answered the deposition questions, Giuffre could have located other victims or witnesses who may have corroborated her testimony. But in any event, the question of materiality should be put to the jury and is inappropriate for the Court to resolve on a motion to dismiss without the benefit of the full factual record. The motion should be denied. allegations that were central to the dispute in Giuffre v. Maxwell." (Def. Mot. 4, Ex. I at 7:3-6.) (The last colloquy has been unsealed except for Minor Victim-2's name. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1).) Yet Judge Preska's opinion as to the propriety of certain redactions in a civil case is not controlling as to whether the Government can meet the elements of a criminal perjury charge here. First, before Judge Preska were the defendant's denials of various sexual activities, not honest answers that would have been quite different. In part for that reason, Judge Sweet authorized the deposition at the outset. Second, the Government was not a party to the civil unsealing litigation and did not have an opportunity to be heard on this issue before Judge Preska. 5I While the Government is open to crafting a stipulation on the background of the Giuffre lawsuit to streamline presentation of these issues to the jury, it notes that the defendant's summary of that suit as set forth in her motion is incorrect. (E.g., Def. Mot. 4 at 20 (erroneously asserting that the defamation claims at issue turned on Giuffre's ability to prove salacious allegations about public officials)). 137 EFTA00039584

In sum, the defendant asks this Court to dismiss Counts Five and Six by stretching to read ambiguity into clear questions and encouraging the Court to resolve questions committed to the jury. The Court should reject those arguments and permit the jury to resolve these issues of fact. VI. Counts Five and Six Are Properly Joined and Should Not Be Severed The Indictment charges the defendant with participating in a scheme to sexually abuse minors, and with committing perjury to conceal her crimes. All six counts of the Indictment are properly joined: they are logically connected, subject to overlapping proof, and connected by a common scheme or plan. To sever the counts and justify holding a second trial at which a second jury will be convened and the same witnesses—including victims of sexual abuse—will testify a second time, the defendant must carry a heavy burden by showing substantial prejudice from the joinder. She has not done so, and the severance motion should be denied. A. Applicable Law Federal Rule of Criminal Procedure 8(a) permits the joinder of offenses that "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). This rule establishes three tests for joinder, each "reflect[ing] a policy determination that gains in trial efficiency outweigh the recognized prejudice that accrues to the accused." United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). Charges are "similar" if they are "somewhat alike" or "hav[e] a general likeness to each other." United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (quoting United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980) (internal quotation marks omitted). "Rule 8(a) does not require `too precise an identity between the character of the offenses!" United States v. Pizarro, No. 17 Cr. 151, 2018 WL 1737236, at *3 (S.D.N.Y. Apr. 10, 2018) (Nathan, J.) (quoting Werner, 620 138 EFTA00039585

F.2d at 929). Offenses may be joined "where the same evidence may be used to prove each count or if the counts have a sufficient logical connection." United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks and citations omitted). "For purposes of analysis under Rule 8(a)," however, "no one characteristic is always sufficient to establish `similarity' of offenses, and each case depends largely on its own facts." United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991) (internal quotations and citations omitted). For instance, in United States v. Werner, 620 F.2d 922 (2d Cir. 1980), the "Second Circuit found sufficient similarity between two cargo thefts that occurred two years apart and only one of which was violent in nature," because "'both offenses arose out of [defendant's] scheme to use his position as an insider ... to obtain money or property carried by it."' United States v. Smith, No. 05 Cr. 922 (DLC), 2007 WL 980431, at *2 (S.D.N.Y. Apr. 3, 2007), aff'd, 348 F. App'x 636, 638 (2d Cir. 2009) (first alteration in original) (quoting Werner, 620 F2d at 927). Joinder is also proper for "distinct criminal acts where they originated from a common scheme." United States v. Ying Lin, No. 15 Cr. 601 (DLI), 2018 WL 5113139, at *2 (E.D.N.Y. Oct. 19, 2018) (citing Werner, 620 F.2d at 927). Specifically in the context of perjury, "[t]he law in this circuit clearly supports the joinder of underlying substantive crimes with perjury counts where, as here, the false declarations concern the substantive offenses." United States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984); see United States v. Sweig, 441 F.2d 114, 118 (2d Cir. 1971). False statements can "concern" or be connected with substantive offenses even if they were not made as part of an investigation into the specific substantive conduct. See United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990) (joining false statements on loan applications with perjury about "attempts to secure Senate Ethics Committee approval" of "consulting fees'); United States v. Broccolo, 797 F. Supp. 1185, 1190-91 (S.D.N.Y. 1992) (joining fraud counts with a false statement 139 EFTA00039586

in a bankruptcy proceeding). Similarly, "[c]ourts have repeatedly recognized the appropriateness of trying perjury or obstruction charges together with the underlying crimes to which the perjury relates, where proof of the alleged perjury requires proof of knowledge of the underlying crime." United States v. Butler, No. 04 Cr. 340, 2004 WL 2274751, at *4 (S.D.N.Y. Oct. 7, 2004) (Lynch, J.) (permitting joinder of defendants under Rule 8(b)). In the event that properly joined counts "appear[] to prejudice a defendant or the government," Rule 14(a) permits a court to "order separate trials of counts . . . or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). "[I]n order to prevail" on a Rule 14 motion, "the defendant must show not simply some prejudice but substantial prejudice." United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) (quoting Werner, 620 F.2d at 928). The defendant carries this "heavy burden" because Rule 8(a) already strikes a "balance" between "considerations of economy and speed" and "possible unfairness" to the defendant. United States v. Amato, 15 F.3d 230, 237 (2d Cir. 1994). Accordingly, "the principles that guide the district court's consideration of a motion for severance usually counsel denial," Pizarro, 2018 WL 1737236, at *5 (alteration, internal quotation marks, and citation omitted), and severance should be granted "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence," Zafiro v. United States, 506 U.S. 534, 539 (1993).52 But "Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Id. at 538-39. "[L]ess drastic measures . .. such as limiting instructions, 52 While Zafiro involved a motion to sever defendants, rather than counts, the Supreme Court's construction of Rule 14(a) applies in either case. See Page, 657 F.3d at 129 (relying on Zafiro); United States v. Gracesqui, No. 10 Cr. 74 (PKC), 2015 WL 5231168, at *4 n.2 (S.D.N.Y. Sept. 8, 2015), aff'd, 730 F. App'x 25 (2d Cir. 2018) (citing Page for the proposition that Zafiro applies both to motions to sever counts and motions to sever defendants). 140 EFTA00039587

often will suffice to cure any risk of prejudice and permit joinder." Page, 657 F.3d at 129 (internal quotation marks omitted). B. Discussion The perjury counts should be tried jointly with Counts One through Four. The offenses are of similar character, are logically connected and will be proved through much of the same evidence because the perjury counts concern at least some of the same conduct relevant to the crimes charged in Counts One through Four and, as such, are properly joined. See generally Potamitis, 739 F.2d at 791. Severing the counts would waste judicial resources by requiring a second trial at which the Government would offer similar proof, including by calling the same victims of sexual abuse to testify again at a second trial. The defendant has identified no prejudice sufficient to justify imposing that burden on the victims, the Court, and the Government. First, the Government expects to prove the offenses charged in Counts One through Four and those charged in Counts Five and Six with much of the same evidence. See United States v. Hester, No. 19 Cr. 324 (NSR), 2020 WL 3483702, at *21 (S.D.N.Y. June 26, 2020) ("Notably, the fact that evidence of the crime charged in one count may be admissible in the Government's direct case in the trial of the other will typically defeat the need to severe the counts."). At trial, some of the most critical evidence that the defendant committed the offenses charged in Counts One through Four will also form the crux of the Government's proof of the falsity of the defendant's deposition testimony. In particular, victim testimony and related evidence offered to prove the existence of Epstein's scheme to abuse underage girls, and Maxwell's participation therein, will also provide much of the evidence demonstrating the falsity of the statements charged in Count Five. Compare, e.g., Indictment ¶ 4(c), (e) (discussing massages resulting in sexual abuse), with id. ¶ 21 (denying interacting with underage girls and a denying a "scheme to recruit underage girls for sexual massages"). Similarly, aspects of that proof, such as testimony regarding the sexualized 141 EFTA00039588

massages that were part of the scheme, will also prove the falsity of the statements charged in Count Six. Indeed, were severance to be granted, the facts involving Counts One through Four "would be central to a separate trial" on Counts Five and Six. Butler, 2004 WL 2274751, at *4; see Sweig, 441 F.2d at 118-19 ("Virtually every overt act alleged in the conspiracy count formed the subject matter of one of the eight perjury counts, and would therefore be admissible in a perjury trial to show the falsity of Sweig's denial before the grand jury."). Critically, the Government expects that proof to include testimony from victims of sexual abuse. For instance, the Government anticipates that Minor Victim-2 will testify that the defendant gave her an unsolicited massage during which Minor Victim-2 was topless. Indictment 7(b). That is an overt act charged in Counts One and Three. Id. ¶¶ 11(c), 17(c). It is also strong evidence that the defendant's statement "I never gave [Minor Victim-2] a massage" was false, as charged in Count Six. Id. ¶ 23. If the Court severs the Indictment into two trials, it will require Minor Victim-2 to testify about her abuse twice. Cf. Richardson v. Marsh, 481 U.S. 200, 210 (1987) (recognizing that joint trials of multiple defendants avoid "requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying"). Similarly, the defendant's efforts to conceal her crimes by lying in a deposition is itself compelling evidence of her consciousness of guilt as to the offenses charged in Counts One through Four and indeed would almost certainly be relevant and admissible at a trial as to those counts even if severance were granted. In particular, and among other examples, the defendant's false denial of the existence of a scheme to recruit underage girls for sexual massages, and her specific (and equally false) denials as to Minor Victim-2, would be admissible as evidence of the defendant's consciousness of guilt, even at a trial focused exclusively on Counts One through Four. See, e.g., United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) ("[A]cts that exhibit a 142 EFTA00039589

consciousness of guilt, such as false exculpatory statements, may also tend to prove knowledge and intent of a conspiracy's purpose ...." (internal quotation marks and citations omitted)). Second, the offenses are logically connected and are part of the same common plan or scheme. It is settled law in this Circuit that joinder of "underlying substantive crimes with perjury counts" is appropriate "where, as here, the false declarations concern the substantive offenses." Potamitis, 739 F.2d at 791; see also United States v. Ruiz, 894 F.2d 501 (2d Cir. 1992) (same). In Ruiz, the defendant was a New York state senator who founded a nonprofit that was developing a mall in the Bronx, and for which he provided consulting services. In 1984 and 1985, he made two loan applications for funds to invest in the project, on which he made false statements. Id. at 503- 04. In 1986, the defendant also lied about his possession of a letter from the Senate Ethics Committee to a grand jury that was investigating his consulting activities for the nonprofit. Id. at 503. He was charged with two counts of false statements on the loan applications and one count of perjury, and he moved to sever the perjury charge. The district court denied the motion, explaining that, although the "alleged perjury did not occur during a specific investigation by the grand jury into the alleged bank fraud," the statements nonetheless "'concerned the defendant's scheme to maximize his personal gain from the [project], as well to cover any improprieties that scheme might involve."' Broccolo, 797 F. Supp. at 1190 (quoting United States v. Ruiz, 702 F. Supp. 1066, 1076-77 (S.D.N.Y. 1989)) (emphasis omitted). And the Second Circuit affirmed, explaining that the counts had "sufficient logical connection" because they all "relate to [the defendant's] extra-senatorial activities through the [nonprofit]," and therefore were "part of a common scheme or plan." Ruiz, 894 F.2d at 505. So too here: the defendant's perjury did not occur in the context of a grand jury investigation into the same sexual offenses charged in the Indictment, but the statements concerned those offenses and sought to conceal the defendant's role 143 EFTA00039590

therein. See Broccolo, 797 F. Supp. at 1190-91 (joining counts involving use of businesses to commit fraud with a count of falsely swearing in bankruptcy court that the defendant "had not engaged in any business activity during the preceding six years").53 Accordingly, and consistent with the holdings in Ruiz and Broccolo, this Court should deny the severance motion. The defendant argues that the offenses are not connected because they involve different time periods. To be sure, Counts One through Four charge conduct involving certain victims from 1994 to 1997, while the perjury counts charge statements made in 2016 in a case concerning Giuffre's abuse from 1999 to 2002. However, the specific statements charged in Count Five and Count Six directly relate to the conduct charged in Counts One through Four, including, in one instance, a specific victim identified as relevant to those counts. And those statements were not time-bound or restricted to Giuffre. For instance, the defendant denied the existence of any scheme to recruit underage girls for sexual massages, not the existence of such a scheme between 1999 and 2002, or a scheme specifically focused on Giuffre. The defendant also denied ever giving anyone a massage, specifically including Epstein and Minor Victim-2. She did not limit her denial to Giuffre or to a particular time period. There is, accordingly, a strong connection between the truth or falsity of the defendant's broad denials and her acts in the period at issue in the substantive counts. The cases on which the defendant relies are factually inapposite and do not support her argument, because they involve wholly unrelated events. See, e.g., United States v. Halper, 590 F.2d 422, 431 (2d Cir. 1978) (severing a Medicaid fraud indictment from a tax evasion indictment where the only similarly was the defendant's manipulation of people he had employed—different 53 While the defendant may argue that the fact that her deposition, unlike Ruiz, did not involve criminal authorities counsels in favor of a different outcome, as discussed further below, the prospect of a criminal prosecution was nonetheless plainly on her mind at the time of the depositions, as evidenced by the myriad arguments she herself makes in support of her motions to suppress the fruits of the grand jury subpoena to Boies Schiller. (See, e.g., Def. Mot. 3 at 3-4, Def. Mot. 11 at 2). 144 EFTA00039591

in each indictment—to his personal profit); United States v. Brown, No. 07-0296, 2008 WL 161146, at *5 (E.D. Pa. Jan. 16, 2008) (severing an "isolated" firearms possession charge on a certain day from other narcotics and firearms charges); United States v. Martinez, No. 92 Cr. 839 (SWK), 1993 WL 322768, at *8-9 (S.D.N.Y. Aug. 19, 1993) (similar). The defendant also contends that her false statements were not connected to the substantive offenses because they were made in a civil deposition, rather than "to the grand jury or the FBI to derail its investigation." (Def. Mot. 5 at 8). As an initial matter, and as evidenced by the defendant's own motions to suppress the fruits of the grand jury subpoena issued to Boies Schiller, the defendant herself professes to have been concerned about the prospect of a criminal investigation at the time of her depositions, which strongly suggests that, on these facts, the distinction is of little moment. (See, e.g., Def. Mot. 3 at 3-4 (explaining that the defendant "flatly rejected" a law enforcement exception to the civil protective order); Def. Mot. 11 at 2 (arguing that the defendant "declined to invoke" her Fifth Amendment privilege against self-incrimination at the deposition after negotiating the protective order)). More important, and whatever moment that distinction may have in other contexts, it has little bearing on the severance analysis which turns instead on whether the substance of the false statement relates to the substantive offense, and is thereby provable through overlapping evidence and part of the speaker's effort to conceal the offense. See Ruiz, 894 F.2d at 505; Potamitis, 739 F.2d at 791 (citing United States v. Carson, 464 F.2d 424, 436 (2d Cir. 1972); Sweig, 441 F.2d at 118-19) (affirming denial of a severance motion where the false statements "concern the substantive offenses" and citing cases where the perjury count's proof overlapped with the evidence on the substantive counts). With respect to that analysis, the defendant cites no case for the proposition that the setting in which the statement is made is significant, much less determinative. Cl Broccolo, 797 F. Supp. at 1190 (false statement 145 EFTA00039592

in bankruptcy proceeding). And the cases the defendant cites in which a perjury or false statements count was severed only underscore this point. In both cases, the statement itself concerned an entirely different subject matter, provable through largely if not entirely different evidence. See United States v. Botti, No. 08 Cr. 230 (CSH), 2009 WL 3157582, at *1, *5 (D. Conn. Sept. 25, 2009) (severing a structuring conspiracy and false statements related to that conspiracy from a "separate" corruption conspiracy); United States v. Milan, No. 08-760, 2009 WL 2328870, at *3 (E.D. Pa. July 28, 2009) (severing counts charging a fraud scheme from perjury count for an affidavit submitted as part of a bail motion, which "was not as an attempt to cover up the scheme to defraud, but rather an attempt to show that Court had erred" in its bail decision). Finally, the defendant argues that the counts are unrelated because the defendant's testimony was given in response to questions "tangential to the defamation action," and her answers "concealed" no crimes because they were "true and reflective of the poor questioning by the plaintiffs lawyers." (Def. Mot. 5 at 8-9). The defendant is free to make at least some of these arguments to the jury, but these assertions are not a lawful basis for severing Counts Five and Six. This is merely an attempt to refashion the defendant's claim that she gave truthful, immaterial answers to ambiguous questions. But, as discussed in detail in Section V, those arguments have no merit. Third, the defendant has failed to carry her heavy burden under Rule 14(a) to show prejudice. At the outset, "[t]he contention that there is some inherent prejudice in joining perjury and related counts with substantive charges has been widely rejected." Potamitis, 739 F.2d at 791. And courts routinely hold that there is no prejudice where the evidence in support of the two counts is "interconnected." Blakney, 941 F.2d at 116; see Carson, 464 F.2d at 436 ("[T]he commonality 146 EFTA00039593

of proof of the conspiracy and perjury crimes permitted joinder of the offenses . . . and denial of appellant's Rule 14 pretrial motion for severance."); Pizarro, 2018 WL 1737236, at *6-*7. The defendant argues that the trial on the perjury counts will require a "full-blown re- litigation of the defamation action." (Def. Mot. 5 at 9). That is a significant exaggeration. To litigate the perjury counts, the parties will need to present evidence about the basic substance of the civil suit—in particular, Giuffre's allegations and the defendant's denials-such that the jury will be able to assess materiality and the statements' context. This can be done briefly—as stated in Section V, the Government is amenable to presenting that information through a stipulation— and, in any event, through minimal additional evidence. The stipulation or other evidence could be crafted to minimize the risk of spillover prejudice, for instance by referring to Giuffre by a pseudonym to avoid any connection she might have to testimony on the substantive counts. And any remaining prejudice could be vitiated by a limiting instruction that the jury should not consider Giuffre's allegations as evidence of the substantive counts. See Page, 657 F.3d at 130-31 (approving of similar precautions when introducing evidence of a defendant's prior felony conviction); Pizarro, 2018 WL 1737236, at *7; see also Zafiro, 506 U.S. at 540 ("[J]uries are presumed to follow their instructions." (citation and internal quotation marks omitted)). There is every reason to think a jury could and would follow such an instruction. See, e.g., Rivera, 546 F.3d at 254 (using a limiting instruction to prevent spillover prejudice for counts involving the sexual exploitation of different children, especially in light of admissibility across counts); United States v. Pena, 932 F. Supp. 2d 464, 467 (S.D.N.Y. 2013) (using a limiting instruction to address spillover prejudice from two murder for hire conspiracies). Indeed, even if the counts were severed, as noted above, the Government would still seek to offer evidence of the defendant's false denials of conduct relevant to Counts One through Four as evidence of her consciousness of guilt 147 EFTA00039594

as to those counts, and would consent to a similar limiting instruction, which a jury would be presumed to follow. And, of course, in a severed trial exclusively on the perjury counts, the defendant would surely argue that a limiting instruction is necessary to prevent the jury from concluding that the defendant's statements were false based in part on the substance of Giuffre's unproven allegations. Just as a jury would set aside the substance of Giuffre's allegations for that purpose, so can the jury set aside the substance of Giuffre's allegations for Counts One through Four. The defendant contends instead that the perjury counts require a "collateral trial" on the truth of Giuffre's statements and resolution of "more than 50 substantive motions . . . pending before the District Court." (De£ Mot. 5 at 9-10). As described in Section V, a false statement in a civil deposition is material ( 1) if a "truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit," United States v. Kross, 14 F.3d 751, 753 (2d Cir. 1994), or (2) if it has "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed," United States v. Gaudin, 515 U.S. 506, 509 (1995) (alteration in original) (internal quotation marks omitted). Neither of these standards requires the jury to determine whether the defendant's statements would have tipped the scales in the defamation suit or would likely have led to the discovery of evidence. See Kungys v. United States, 485 U.S. 759, 771 (1988) ("It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation."); United States v. An Antique Platter of Gold, 184 F.3d 131, 135-36 (2d Cir. 1999) (distinguishing the "natural tendency test" from a but-for test); Kross, 14 F.3d at 754 (rejecting, in a civil forfeiture case, the argument that the defendant's true testimony would not itself have justified a forfeiture because 148 EFTA00039595

"such evidence might lead to evidence . . . which would justify forfeiture"). The jury need not decide the outcome of the defamation case in order to evaluate whether truthful answers were capable of influencing the decisionmaker or could reasonably have led to the discovery of admissible evidence.54 Finally, the defendant argues that severance is appropriate because including the perjury counts "will necessarily introduce into the trial the issue of Ms. Maxwell's credibility." (Def. Mot. 5 at 13). That is true anytime perjury or false statements counts are joined with other offenses, yet joining perjury or false statements counts to the substantive crimes they concern is the rule, not the exception. And more generally, the "adverse effect of being tried for two crimes rather than one" is not prejudice. Werner, 620 F.2d at 929. Trying the perjury counts with the Mann Act counts they concern makes eminent sense. Doing so greatly advances judicial efficiency by avoiding the need for two trials at which the same evidence would be presented, including testimony from the same victims. Just as the counts are similar in character, the trial would not be unwieldy. Against these efficiencies, endorsed by the liberal joinder principles behind Rule 8, the defendant identifies at most only "generalized claim[s] of prejudice," Rivera, 546 F.3d at 254, that can be cured by an appropriate limiting instruction. She thus falls far short of meeting her heavy burden, and her motion should be denied. 54 The defendant relatedly suggests that her counsel from the defamation suit may have to testify regarding the perjury counts, denying her counsel of her choice. She has not identified what factual issue they might testify to and why it must come from one of the lawyers who represented her on both that case and this one. The Government notes, in this respect, that three of the defendant's attorneys in this case had no involvement in the civil suit. Even if such testimony were necessary by one of the defendant's lawyers, it would only disqualify the firm if that lawyer is called "on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client." N.Y. R.P.C. 3.7(b); see generally Murray v. Met. Life Ins. Co., 583 F.3d 173, 177-80 (2d Cir. 2009) (discussing the advocate-witness rule). 149 EFTA00039596

VII. The Indictment Contains the Elements of Each Offense and Provides the Defendant More Than Adequate Notice of the Charges Against Her The defendant also moves to dismiss Counts One through Four on the grounds that the Indictment lacks specificity because it does not name minor victims, does not include specific dates, and uses language that the defendant claims not to understand. (Del. Mot. 12). The motion is meritless and should be denied. The plain language of the Indictment clearly and sufficiently sets forth every element of each crime charged, and the extensive details contained in the Indictment as further amplified through the voluminous discovery and the Government's various pit-trial filing describing the case and its anticipated proof at trial provide the defendant with more than sufficient notice of the charges against her. A. Applicable Law It is well-established that "[a]n indictment is sufficient if it contains the elements of the offense(s) charged and fairly informs a defendant of the charge(s) against which he must defend." United States v. Rahimi, No. 16 Cr. 760 (RMB), 2017 WL 2984169, at ■1 (S.D.N.Y. June 22, 2017) (citing United States v. Chalmers, 474 F. Supp. 2d 555, 559 (S.D.N.Y. 2007); Hamling v. United States, 418 U.S. 87, 117 (1974)). As a result, "'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime" in order to be sufficient. United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)). As such, "[a] defendant faces a high standard in seeking to dismiss an indictment." United States v. Nejad, No. 18 Cr. 224 (MN), 2019 WL 6702361, at *3 (S.D.N.Y. Dec. 9, 2019) (internal quotation marks omitted) (quoting United States v. Post, 950 F. Supp. 2d 519, 527 (S.D.N.Y. 2013)). Additionally, "when deciding a motion to dismiss, a court must accept all factual allegations in the indictment as true." Chalmers, 474 F. Supp. 2d at 559. "A court should not look beyond the face 150 EFTA00039597

of the indictment and draw inferences as to proof to be adduced at trial, for `the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.' Id. (quoting United States v. Alfonso, 143 F.3d 772, 776-77 (2d. Cir. 1998)). Federal Rule of Criminal Procedure 7 states in part that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. P. 7(c)(1). There are two constitutional requirements an indictment must satisfy in order to be sufficient: first, it must "contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which [s]he must defend," and second, it must "enable[]" a defendant "to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (internal quotation mark omitted) (quoting Handing, 418 U.S. at 117). "[A]n indictment parroting the language of a federal criminal statute is often sufficient . .." Id. at 109. As a general matter, "[a]n indictment does not . . `have to specify evidence or details of how the offence was committed.' United States v. Wey, No. 15 Cr. 611 (MN), 2017 WL 237651, at *5 (S.D.N.Y. Jan, 18, 2017) (emphasis in original) (quoting United States v. Coffey, 361 F. Supp. 2d 102, 111 (E.D.N.Y. 2005)). "When the charges in an indictment have stated the elements of the offense and provided even minimal protection against double jeopardy," the Second Circuit "has repeatedly refused, in the absence of any showing of prejudice, to dismiss ... charges for lack of specificity." United States v. Stringer; 730 F.3d 120, 124 (2d Cir. 2013) (ellipses in original) (internal quotation marks omitted) (quoting United States v. Walsh, 194 F.3d. 37, 45 (2d Cir. 1999)). Although courts have identified certain crimes for which an indictment may require greater specificity beyond tracking the language of the statute, such cases are "very rare." Stringer, 730 F.3d at 125. For example, the Second Circuit has clarified that within this "less-common category" 151 EFTA00039598

is the "specification of what statements are alleged to be false, and in what respect they are false, in charges of criminal falsity," as well as "the subject matter of the congressional inquiry" for charges of "refusal to answer questions in a congressional inquiry." Id. at 125-26 (citing, inter alia, Russell v. United States, 369 U.S. 749 (1962)). Similarly, "where an indictment charges a crime that depends in turn on violation of another statute, the indictment must identify the underlying offense." United States v. PilTO, 212 F.3d 86, 93 (2d Cir. 2000). When delineating the contours of this narrow category of crimes requiring additional specificity in an indictment, the Second Circuit has previously found that the failure to name a specific victim of fraud does not render an indictment inadequate under this standard. See Stringer, 730 F.3d at 127. In other words, absent some affirmative indication that additional specificity is required when charging a particular statute, there is no basis to conclude that an indictment need contain more than the elements of the offense and the approximate time and place of the alleged violation. See Wey, 2017 WL 237651 at *5 (declining to "depart from the usual sufficiency framework" where defendant "cites no authority" suggesting that the statutes at issue fall into the narrow exception to the general rule when considering motion to dismiss for lack of specificity). B. Discussion Because each of the four counts at issue—Counts One, Two, Three, and Four—clearly lays out each element of the charged offense and adequately informs the defendant of the accusations against her, the Indictment easily satisfies the standard for sufficiency. Tellingly, the defendant does not claim that any of these counts fails to allege an essential element or to track the language of the relevant statute. Nor could she, as the face of the Indictment not only contains each and every essential element of the crimes charged, but also goes beyond the basic requirements for pleading each charge by providing additional factual background. Instead, the defendant baldly 152 EFTA00039599

asserts that the crimes charged in Counts One through Four require additional specificity without citing any authority in support of such a broad claim. (See Def. Mot. 12 at 2). In particular, the defendant suggests that the failure to identify each minor victim by name, the presence of a date range rather than specific dates, and the use of certain language that the defendant claims not to understand render Counts One through Four so deficient that they must be dismissed. Because the defendant cites no authority indicating that violations of 18 U.S.C. §§ 371, 2422, or 2423 fall into the rare exception to "the rule that `an indictment need do little more than to track the language of the statute charged,'" her motion should be denied. United States v. Murgio, 209 F. Supp. 3d 698, 716 (S.D.N.Y. 2016) (Nathan, J.) (quoting Stringer, 730 F.3d at 124). First, the use of pseudonyms to refer to minor victims of the charged conduct does not warrant dismissal of the Indictment. See Stringer, 730 F.3d at 124 (affirming sufficiency of fraud indictment InJotwithstanding its failure to specify the names of persons whose identifying documents were used" in scheme where prosecution provided victims' names in advance of trial). The identity of a victim is not required to be included on the face of a charging instrument, and the "lack of any identity or date of birth information of the alleged victims does not warrant dismissal" of charges alleging sexual abuse. United States v. Kidd, 386 F. Supp.3d 364, 369 (S.D.N.Y. 2019). The defendant cites no law to the contrary and has not identified a single indictment in this District that includes the full names of minor victims of sexual abuse. Indeed, it makes good sense that a charging instrument alleging sexual abuse of minors would not include the full names of minor victims, whose privacy Congress has emphasized should be protected. See 18 U.S.C. § 3509(d) (delineating privacy protections for child victims and witnesses). Judge Marrero's decision in Kidd, which denied a motion to dismiss a sex trafficking charges in violation of 18 U.S.C. § 1591 where the indictment referred to victims by pseudonyms, 153 EFTA00039600

is particularly instructive here. See 386 F. Supp.3d at 366. In denying the motion to dismiss, Judge Marrero found Stringer's holding "that the identity of a victim was not required to be contained in an indictment, despite the centrality of the victim's identity to the charge" to be equally applicable in a case involving sex trafficking charges. Id. at 369. The same logic follows here. The use of pseudonyms to refer to the minor victims of sexual abuse in Counts One through Four is no more prejudicial to the defendant here than the absence of victim identities was to the defendants in Kidd or Stringer. This is especially so when the Government has already provided the defendant with the birth month and year of each victim, provided discovery regarding each victim, and has repeatedly indicated that it will provide the defendant with the names of its witnesses, including the minor victims referenced in the Indictment, four weeks in advance of trial. Such disclosure will ensure that the defendant is readily able to bar future prosecutions for the same offense, and together with the elements of each crime and additional details contained in in the Indictment, is more than sufficient to survive a motion to dismiss. Second, the Indictment "state[s] the time and place (in approximate terms)" of the conduct alleged in Counts One through Four. Stavroulakis, 952 F.2d at 693 (quoting Tramunti, 513 F.2d at 1113). In particular, Counts One through Four each allege that the defendant engaged in a continuing course of conduct involving the enticement and transportation of minors with intent to commit illegal sex acts, as well as conspiracies to do so, between in or about 1994 and in or about 1997. See Indictment ¶¶ 1, 6, 7, 9-11, 13, 15-17, 19. Courts in the Second Circuit have consistently upheld indictments containing a range of time rather than a specific date. See, e.g., Kidd, 386. F. Supp. 3d at 369 ("[Th]e Second Circuit routinely upholds the 'on or about' language used to describe the window of when a violation occurred." (citing United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987)); United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL 154 EFTA00039601

1838255, at *1, 4-6 (W.D.N.Y. May 8, 2014) (denying motion to dismiss indictment charging enticement of a minor, in violation of 18 U.S.C. 2423(a), "between in or about 2000 to in or about 2004," because "the Indictment states all the elements of the crime charged by tracking the statutory language," as well as "the nature of the criminal activity" and "the underlying facts"). "This is especially true in cases of sexual abuse of children: allegations of sexual abuse of underage victims often proceed without specific dates of offenses," including "[i]n cases of continuing sexual abuse," for which "it is sufficient for the indictment to specify a period of time— rather than a specific date—in which defendant committed the acts at issue ...." United States v. Young, No. 08 Cr. 285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008) (internal quotation mark omitted) (quoting Edwards v. Mazzuca, No. 00 Civ. 2290 (US), 2007 WL 2994449, at *5 (S.D.N.Y. Oct. 15, 2007)). Indeed, lbJecause minors often are not capable of remembering the exact dates when the alleged acts occurred, 'fairly large time windows in the context of child abuse prosecutions are not in conflict with constitutional notice requirements!" Young, 2008 WL 4178190, at *2 (quoting Valentine v. Konteh, 395 F.3d 626, 632 (6th Cir. 2005)). The same is true here. The minor victims in this case cannot reasonably be expected to recall the exact dates when particular instances of abuse took place during their adolescence. This is especially so for Minor Victim-1, who experienced numerous instances of abuse over multiple years of her youth. Providing the approximate ranges of dates during which the offenses took place fully satisfies the requirements of an adequately pled charging instrument. The defendant cites no authority to the contrary, and her motion to dismiss should accordingly be denied. Third, the Indictment lists in clear detail the allegations relevant to each element of every criminal statute for which she is charged. Beyond simply "parroting the language of a federal criminal statute," Resendiz-Ponce, 549 U.S. at 108, the Indictment provides extensive detail 155 EFTA00039602

regarding how the defendant is alleged to have committed the crimes charged in Counts One through Four. See Indictment ¶¶ 1-11. Indeed, "by providing Defendant with a narrative of the manner in which Defendant is alleged to have committed the charged offenses, the Indictment provides Defendant with more detail than is strictly necessary" under the governing law. United States v. Kozel, No. 19 Cr. 460 (ICMW), 2020 WL 4751498, at *2 (S.D.N.Y. Aug. 17, 2020). Although the defendant complains that some of the terms used in the speaking portions of the Indictment are somehow vague, she cites no authority to suggest that her difficulty comprehending basic language in portions of a charging instrument that do not speak to the elements of the offense requires dismissal.55 Counts One and Three, charging the defendant with violations of 18 U.S.0 § 371, "clearly contain[] the elements of the offense charged, fairly inform[] [her] of the charge[s] against [her], and enable[] [her] to plead an acquittal or conviction in bar of future prosecution for the same offense." United States v. Born, 154 F. App'x 227, 229 (2d Cir. 2005). Counts Two and Four, charging violations of 18 U.S.0 §2422 and § 2243, respectively, similarly contain the elements of those offenses and adequately inform the defendant of the charges 55 Alternatively, the defendant claims that the acts listed throughout the Indictment do not constitute illegal behavior. In this vein, the defendant makes specific reference to "grooming" as conduct that is not illegal. (Def. Mot. 12 at 4). The defendant cites no authority for this argument, which is contrary to Second Circuit law. In particular, the Second Circuit has for many years found grooming behavior to be a means to "persuade, induce, or entice" minors to engage in illegal sexual activity. See, e.g., United States v. Thompson, 896 F.3d 155, 173 (2d Cir. 2018) ("Our precedent, however, supports applying a broad definition of enticement in this context: that definition would reasonably include Thompson's grooming of the minor victims to act as he desired with regard to many matters over the months before he made the video."); United States v. Dorvee, 616 F.3d 174, 180 (2d Cir. 2010) ("We do not believe that the district court was clearly erroneous in finding, as a matter of fact, that these images were sent as part of a grooming process to persuade the agent to engage in the type of sexual conduct depicted in the images." (internal quotation marks and citation omitted)); United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) ("Brand's sexual advances and grooming behavior provide additional evidence in support of the jury's finding that Brand attempted to entice a minor."). In any event, whether grooming alone constitutes a crime is immaterial to the instant motion, and it will be for the jury to decide whether the evidence at trial, as a whole, establishes the elements of the crime beyond a reasonable doubt. 156 EFTA00039603

against her. The Indictment also cites the relevant state criminal statute under which the defendant is charged constituting "sexual activity" within the language of both § 2422 and § 2243, specifically, violations of New York Penal Law § 130.55. Indictment ¶¶ 11(b), 13, 17(b), 19. The defendant cites no authority for her suggestion that by providing additional detail regarding how the defendant committed the charged crimes, the Government is somehow required to provide even more specificity beyond the basic elements of the crimes charged. Absent any such authority, and where there is no suggestion that the Indictment fails to allege the essential elements of each crime charged, there is no basis to dismiss any of the counts in the Indictment. For the foregoing reasons, the defendant's sufficiency challenges to the Indictment fail as a matter of law, and her motion to dismiss Counts One through Four should be denied. VIII. There Is No Basis to Strike Any Portion of the Indictment The defendant moves to strike any reference to Minor Victim-3 from the Indictment, claiming that—contrary to the plain terms of the Indictment—the events involving Minor Victim- 3 are unrelated to the conspiracies charged in Counts One and Three and that some of that the allegations regarding Minor Victim-3 are unduly prejudicial. (Def. Mot. 6). The motion is baseless. First, as the Indictment itself makes clear, the defendant's and Epstein's interactions with Minor Victim-3 were part of a broader scheme and agreement to entice and transport minor victims with intent to commit illegal sex acts. Even if Minor Victim-3 was not ultimately transported as a minor, the core of a conspiracy is an agreement to engage in criminal conduct; there is no legal requirement that the agreed upon crime be completed. Although Minor Victim- 3's experiences cannot alone form the basis of a timely substantive charge, both charged conspiracies include timely overt acts, and it is well established that a charged conspiracy can encompass otherwise time-barred acts so long as at least one overt act in furtherance of the 157 EFTA00039604

conspiracy is timely. Second, the description of Minor Victim-3's experiences in the Indictment is no more inflammatory or prejudicial than those regarding Minor Victim-1 and Minor Victim-2. Finally, even if evidence regarding Minor Victim-3 were not admissible as direct evidence of the charged conspiracies—which it is—that evidence will be admissible under Federal Rule of Evidence 404(b) to prove the defendant's knowledge, intent, and modus operandi. Accordingly, the motion to strike references to Minor Victim-3 as surplusage should be denied. A. Relevant Facts As alleged in the Indictment, Minor Victim-3 was one of the minor girls whom the defendant groomed to engage in sexual activity with Jeffrey Epstein. Minor Victim-3 was born in . At trial, the Government expects that Minor Victim-3 will testify,se in substance and in part, that when she was , she met the defendant. After meeting Minor Victim- 3, the defendant befriended Minor Victim-3 by, among other things, discussing Minor Victim-3's life and family with Minor Victim-3. As a result, the defendant came to know Minor Victim-3's age. Minor—Victim-3 to meet Epstein. At some-Rairm 19 Minor Victim-3, who was still 17 years old, to the defendant's home in L where _II defendant introduced Minor Victim-3 to Epstein. During that first visit, the defendant encouraged Minor Victim-3 to provide Epstein with a massage. During the ensuing massage, Epstein engaged in at least one sex act with Minor Victim-3. Subsequently, the defendant invited Minor Victim-3, who was still 17 years old, to return to the defendant's home in London and massage Epstein again. 56 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 Minor Victim-3, will be produced to the defense as 3500 material in advance of trial. 158 EFTA00039605

Once again, the defendant encouraged Minor Victim-3 to provide a massage to Epstein. During the ensuing massage, Epstein engaged in at least one sex act with Minor Victim-3. Following those two encounters, the defendant and Epstein invited Minor Victim-3 to travel with them to Florida, the U.S. Virgin Islands, and New York. Minor Victim-3 eventually accepted these invitations, but she does not recall whether she was 17 or 18 when she took her first trip at Epstein and the defendant's invitation. When Minor Victim-3 traveled with Epstein and the defendant, she provided additional massages to Epstein, during which he engaged in multiple sex acts with Minor Victim-3. Over the course of their interactions, the defendant made multiple statements to Minor Via the defendant's awareness that Epstein engaged in sex acts with Minor Victim-3. _On at-acne occasion, the defendant asked Minor Victim-3 if she knew any otboviOunga acts with Epstein. B. Applicable Law "Although the Federal Rules of Criminal Procedure grant the Court authority to strike surplusage from an indictment, see Fed. R. Crim. P. 7(d), li]t has long been the policy of courts within the Southern District to refrain from tampering with indictments."' United States v. Bin Laden, 91 F. Supp. 2d 600, 621 (S.D.N.Y. 2000) (quoting United States v. Jimenez, 824 F. Supp. 351, 369 (S.D.N.Y. 1993)). "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are 'not relevant to the crime charged and are inflammatory or prejudicial.'" United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (quoting United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982)). "'Ulf evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken."' Id. (brackets in original) (quoting United States v. DePalma, 461 F. Supp. 778, 797 (S.D.N.Y. 1978)); see also United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001). "This standard is an exacting one, and only rarely is alleged surplusage stricken from an indictment." 159 EFTA00039606

Murgio, 209 F. Supp. 3d at 724 (internal quotation marks omitted) (quoting United States v. Smith, 985 F. Supp. 2d 547, 610 (S.D.N.Y. 2014)). In setting forth allegations in an indictment, the Government is not limited to description of only the bare elements of a crime; rather, an indictment may be used to provide background to the charged criminal conduct, to describe the circumstances, means, and methods of an offense, and to describe evidence that is otherwise admissible at trial. Simply put, "[s]tatements providing background are relevant and need not be struck." United States v. Mostafa, 965 F. Supp. 2d 451, 466 (S.D.N.Y. 2013) (citing Mulder, 273 F.3d at 100). Allegations also will not be stricken where they elucidate the circumstances, means, and methods of a charged scheme or would be admissible, in the alternative, under Rule 404(b) of the Federal Rules of Evidence. See United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996) (affirming denial of motion to strike surplusage where "[defendants' cocaine-related activity was clearly relevant evidence of the organizational structure and method of operation of their heroin conspiracy, and it also tended to establish the nature of the relationship between Defendants and their supplier of heroin, defendant Jose Antonio Hernandez," and citing Rule 404(b)). In terms of timing, "[c]ourts in this district routinely await presentation of the Government's evidence at trial before ruling on a motion to strike." Mostafa, 965 F. Supp. 2d at 467 (citing, inter alia, Scarpa, 913 F.2d at 1012); see also United States v. Ahmed, No. 10 Cr. 131 (PKC), 2011 WL 5041456, at *3 (S.D.N.Y. Oct. 21, 2011). As multiple courts have concluded, "'[t]here is little or no purpose in attempting to predict in advance of trial what evidence will prove admissible or how specific allegations relate to the overall charges." Smith, 985 F. Supp. 2d at 612 (brackets in original) (quoting United States v. Butler, 351 F. Supp. 121, 124 (S.D.N.Y. 2004)). 160 EFTA00039607

C. Discussion The defendant's motion to strike should be denied—or at a minimum deferred until after the conclusion of the Government's direct case—because all of the challenged allegations pertain to evidence that will be relevant and admissible at trial, and are not unduly prejudicial. First, the allegations regarding Minor Victim-3 are properly included in the Indictment's description of the conspiracies charged in Counts One and Three because evidence of those incidents is relevant and admissible at trial as direct evidence of the crimes charged. Counts One and Three allege that the defendant participated in conspiracies with Epstein both to transport minor victims and to entice minor victims to travel with the intent to commit illegal sex acts. Indictment¶¶ 9-11, 15-17. In the course and as part of those conspiracies, the defendant groomed multiple minor victims for sexual abuse by Epstein through multiple methods, including befriending victims and encouraging minor victims to provide massages to Epstein knowing he would engage in sex acts with them. Id. ¶¶ I, 4, 7, 14. As detailed in the Indictment, that grooming was a fundamental part of both conspiracies because it encouraged minor victims to be alone with and to engage in sex acts with Epstein. 1, 4, 14. It follows that the defendant's role grooming Minor Victim-3 to engage in sex acts with Epstein was a part of and therefore constitutes evidence of these conspiracies. Id. ¶¶ 7(c), 11(d), 17(d). The defense claims that because the Indictment does not allege that each element of substantive violations of 18 U.S.C. §§ 2422 and 2423(a) was met as to Minor Victim-3, her experiences cannot be direct evidence of the conspiracies to violate those statutes charged in Counts One and Three. But that argument ignores a fundamental tenet of conspiracy law. It is axiomatic that a conspiracy does not require a completed substantive crime. See Salinas v. United States, 522 U.S. 52, 65 (1997) ("It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensures, for the conspiracy is a distinct evil, dangerous to the 161 EFTA00039608

public, and so punishable in itself."). Indeed, "[i]t is well settled that the essential elements of the crime of conspiracy are: (1) that the defendant agreed with at least one other person to commit an offense; (2) the defendant knowingly participated in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and (3) that during the existence of the conspiracy, at least one of the overt acts set forth in the indictment was committed by one or more of the members of the conspiracy in furtherance of the objectives of the conspiracy." United States v. Salarneh, 152 F.3d 88, 145-46 (2d Cir. 1998). Because a conspiracy does not require the completion of a substantive crime, it does not matter whether Minor Victim-3 was ever in fact transported as a minor, or whether the elements of the substantive crimes of transportation an enticement are satisfied as to her. See Salinas, 522 U.S. at 65. What matters is whether the Indictment properly alleges that the defendant agreed to participate in schemes to transport and entice minors to travel with the intent that an illegal sex act would be committed, and whether the allegations at issue are relevant and admissible evidence of that conspiracy. Here, that is plainly the case. As alleged, the defendant's participation in recruiting and grooming Minor Victim-3 to engage in sex acts as a minor with Epstein during the period charged in the Indictment, is itself evidence of the defendant's agreements with Epstein to identify minor girls to entice and transport for purposes of illegal sex acts.57 Moreover, the 57 The defendant takes issue with the Indictment's reference to these sex acts as "abuse" because, she asserts, Minor Victim-3 was above the age of consent in the United Kingdom at the time they occurred. The description in the Indictment is factually accurate, however, because Minor Victim- 3 will testify to her subjective experience of these acts with a much older man as traumatic, exploitative, and abusive at trial. While the Government will be careful to avoid suggesting to the jury that any consensual act committed after Minor Victim-3 was at or above the age of consent was itself criminal (as opposed to evidence of the charged conspiracies), to the extent defense counsel wishes to request a particular limiting instruction or to seek authorization for a particular line of cross-examination regarding the legality of any sex acts that took place in London, the appropriate forum to do so is in a motion in litnine. 162 EFTA00039609

Government further expects Minor Victim-3 will testify that , which is probative of the defendant's intent, in her initial interactions with Minor Victim-3, to entice Minor Victim-3 to travel and be transported for the purpose of engaging in sexual acts.58 Thus, even if Minor Victim- 3 did not travel as a minor, the events involving Minor Victim-3 outlined in the Indictment constitute direct and admissible evidence of the agreements between and the relationship of the defendant and Epstein. Because evidence regarding Minor Vitim-3 is therefore relevant and admissible at trial, there is no basis to strike these allegations from the Indictment. See Scarpa, 913 F.2d at 1013. Given the relevance of these allegations, the defendant has not satisfied the "exacting" standard required to justify striking portions of an Indictment. Murgio, 209 F. Supp. 3d at 724 (quoting Smith, 985 F. Supp. 2d at 610). Accordingly, the motion should be denied, or, at the very least, deferred until "presentation of the Government's evidence at trial" after which the Court will have a full understanding of how Minor Victim-3's experiences fit into the charged conspiracies. Mostafa, 965 F. Supp. 2d at 467. The fact that the Government would be precluded, by virtue of the statute of limitations, from bringing a charge based exclusively on the experience of Minor Victim-3 is immaterial. It is well-established that a prosecution for a conspiracy is timely so long as the conspiracy exists and at least one timely overt act is committed in furtherance of the conspiracy within the applicable statute of limitations. See United States v. Sahnonese, 352 F.3d 608, 614 (2d Cir. 2003) (citing Grunewald v. United States, 353 U.S. 391, 396-97 (1957)); United States v. Rutkoske, 506 F.3d 170, 174-75 (2d Cir. 2007); United States v. Mason, 479 F. App'x 397, 398 (2d Cir. 2012). 5S Minor Victim-3 has been a she was invitedil when she was 18 years old. Regardless, the subsequent invitation demonstrates that the grooming and sex acts in London were part of conspiracies to entice and transport minors. 163 EFTA00039610

Accordingly, overt acts that may, on their own, be untimely can nevertheless serve as direct evidence of the existence of a charged conspiracy. See, e.g., United States v. Benussi, 216 F. Supp. 2d 299, 301-07, 309 (S.D.N.Y. 2002) (admitting evidence of otherwise untimely acts during conspiracy trial); cf. United States v. Marcus, 628 F.3d 36, 43 (2d Cir. 2010) (declining to vacate a conviction on a statute with only prospective application when "the Government presented post- enactment evidence sufficient to satisfy the elements" in addition to evidence of relevant pre- enactment conduct). Evidence regarding Minor Victim-3 is thus admissible to prove the existence of the conspiracy, even if a conviction could not be supported based on her experiences alone.S9 The Government agrees with the defendant that Minor Victim-3 turned 25 before 2003 and, as a result, a substantive count based exclusively on conduct involving Minor Victim-3 is time-barred. As discussed above, however, the conduct involving Minor Victim-1 and Minor Victim-2 alleged in the Indictment is timely. Thus, if the jury concludes that the conspiracies existed, involved either Minor Victim-1 or Minor Victim-2, and included at least one overt act as to either Minor Victim-1 or Minor Victim-2, then Counts One and Three are not time-barred. See Salmonese, 352 F.3d at 614. Moreover, and so as to ensure that any count of conviction is based on timely conduct, the Government would have no objection to an appropriate instruction from " As a fallback argument, the defense cites United States v. Hsia, 24 F. Supp. 2d 14 (D.D.C. 1998), in which a District Judge concluded that alleged overt acts involving concealment or "cover-ups" were not obviously within the scope of the charged conspiracy to defraud the United States by impairing and impeding the Immigration and Naturalization Service. Id. at 20, 24-26. Although the Court denied the motion to strike the alleged surplusage, it ordered the prosecution to provide a bill of particulars regarding the alleged acts of concealment. Id. at 26, 33. The case is readily distinguishable because the alleged surplusage in Hsia involved a completely different type of conduct—obstruction—than that charged in the indictment—fraud. Here, by contrast, the allegations regarding Minor Victim-3 involve conduct that falls within the heartland of the conspiracy: grooming a minor girl to engage in sex acts with Jeffrey Epstein. Moreover, in both the Indictment and in this memorandum, the Government has provided extensive detail regarding Minor Victim-3's anticipated testimony, which avoids any concern that the defendant will be surprised at trial, which was the animating concern in Hsia. See id. at 33. As such, this motion does not offer a basis for a bill of particulars. 164 EFTA00039611

the Court informing the jury that, to convict on any conspiracy count, it must find at least one overt act in furtherance of the conspiracy that occurred within the statute of limitations. See Benussi, 216 F. Supp. 2d at 309 (describing a similar jury instruction provided fora conspiracy containing some allegations that were time-barred and others that were timely). Second, the allegations regarding Minor Victim-3 in the Indictment are no more inflammatory or prejudicial than those describing the experiences of Minor Victim-1 and Minor Victim-2. The references to "sexual abuse" accurately describe Minor Victim-3's experience of sex acts with Epstein as traumatic, exploitative, and abusive, and she will testify to that effect at trial. Moreover, because these acts were committed in furtherance of the criminal conspiracies charged in the Indictment, it is neither misleading nor prejudicial to imply that this activity involved illegal conduct. More to the point, because evidence regarding Minor Victim-3 "is admissible and relevant to the charge[s]" contained in Counts One and Three of the Indictment, the language describing Minor Victim-3's experiences in the Indictment "may not be stricken" "regardless of how prejudicial the language is .. ." Scarpa, 913 F.2d at 1013 (quoting DePahna, 461 F. Supp. at 797). Finally, even if Minor Victim-3's experiences did not constitute direct evidence of the crimes charged—which they do—this same evidence will also be admissible pursuant to Rule 404(b) to prove the defendant's knowledge, intent, and modus operandi. Federal Rule of Evidence 404(b) provides, in pertinent part: Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 165 EFTA00039612

"[E]vidence of uncharged criminal conduct is not evidence of `other crimes, wrongs, or acts' under Rule 404(b) if that conduct is `inextricably intertwined with the evidence regarding the charged offense.'" United States v. Quinones, 511 F.3d 289, 309 (2d Cir. 2007) (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989)). Where "the indictment contains a conspiracy charge, uncharged acts may be admissible as direct evidence of the conspiracy itself." United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (internal quotation marks omitted) (quoting United States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997)); see also United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). "An act that is alleged to have been done in furtherance of the alleged conspiracy . is not an `other' act within the meaning of Rule 404(b); rather, it is part of the very act charged." United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992). The Second Circuit "follows the `inclusionary' approach to `other crimes, wrongs, or acts' evidence, under which such evidence is admissible unless it is introduced for the sole purpose of showing the defendant's bad character, or unless it is overly prejudicial under Fed. R. Evid. 403 or not relevant under Fed. R. Evid. 402." United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996) (internal citation omitted); see also United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006); United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993). Under this approach, uncharged acts are admissible in a conspiracy case where they are used to (i) explain the development of the illegal relationship between coconspirators; (ii) explain the mutual criminal trust that existed between coconspirators; and/or (iii) complete the story of the crime charged. See Diaz, 176 F.3d at 80; United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993). In addition, evidence of "other acts" is admissible under Rule 404(b) if it (i) is advanced for a proper purpose, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident," Fed. R. Evid. 166 EFTA00039613

404(b)(2); (ii) is relevant to the crime for which the defendant is on trial; (iii) has probative value that is not substantially outweighed by any unfair prejudicial effect; and (iv) is admitted with a limiting instruction to the July, if requested. See Huddleston v. United States, 485 U.S. 681, 691- 92 (1988); United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004). Here, evidence regarding the defendant's interactions with Minor Victim-3 is admissible to prove the defendant's knowledge, intent, and modus operandi, all of which are permissible purposes under Rule 404(b). Testimony regarding the defendant's efforts to recruit and encourage Minor Victim-3 to engage in sex acts with Epstein in the context of massages establishes that the defendant knew of Epstein's attraction to minor girls and knew that Epstein used massage to initiate sexual contact with minor girls. Similarly, testimony regarding the defendant's interactions with Minor Victim-3, including how the defendant befriended Minor Victim-3 and then encouraged her to engage in sex acts with Epstein, establishes that the defendant intended for minor girls to engage in sex acts with Epstein when she befriended them, invited them to travel, and arranged for their travel.60 Finally, the details of how the defendant interacted with Minor Victim-3 demonstrates that the defendant had a specific modus operandi when grooming minor girls to engage in sexual activity with Epstein. As with Minor Victim-1 and Minor Victim-2, the defendant asked minor girls details about their lives, normalized sexual topics and activity, and used her presence as an adult woman to convince minor girls that the sexual activity Epstein initiated was normal and acceptable. "The similarity sufficient to admit evidence of past acts to establish a recurring modus operandi need not be complete; it is enough that the characteristics relied upon are sufficiently idiosyncratic to permit a fair inference of a pattern's existence." United 60 Such evidence is particularly probative when it seems apparent from defense filings that the defendant plans to argue that even if she were somehow involved in transporting or traveling with minors, she had no knowledge or intent that they engage in sexual conduct with Epstein. 167 EFTA00039614

States v. Sliker, 751 F.2d 477, 487 (2d Cir. 1984). Here, the defendant's specific and unique approach to preparing minor girls to engage in sex acts with Epstein demonstrate the existence of such an idiosyncratic pattern warranting admission. Other acts evidence is, like all other evidence, inadmissible under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. Evidence is unfairly prejudicial, however, "only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence." United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). Other acts evidence is typically not unfairly prejudicial where it is not "any more sensational or disturbing than the crimes" with which the defendant has been charged. United States v. Rolan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990). Here, as already discussed, evidence regarding Minor Victim-3's experiences with the defendant and Epstein are no more inflammatory or upsetting than those of Minor Victim-1 and Minor Victim-2. Those experiences include a wide range of abuse at the hands of Epstein, including abuse that the defendant witnessed and participated in herself. Evidence regarding similar events involving Minor Victim-3, who was of a similar age and experienced similar types of sexual contact, is no more "sensational or disturbing" than the other acts detailed in the Indictment. Id. Evidence of other acts involving the grooming or abuse of minor victims is regularly admitted for similar purposes in cases where charges allege sexual activity with minors. See, e.g., United States v. Vickers, 708 F. App'x 732, 737 (2d Cir. 2017) ("As to the testimony concerning Vickers' `grooming' of his victims, we conclude that such evidence was admissible even under Rule 404(b), because it was probative of Vickers' knowledge of how to secure adolescent boys' trust so that he could sexually abuse them. We identify no abuse of discretion in the district court's decision to admit all of the challenged testimony [regarding uncharged acts of sexual abuse] under Rule 168 EFTA00039615

403."); United States v. McDarrah, 351 F. App'x 558, 563 (2d Cir. 2009) (affirming admission pursuant to Rule 404(b) of defendant's "e-mail responses to the Craigslist advertisements" for erotic services because the e-mails "were relevant to his knowledge and intent, because he wrote those emails to girls he knew could be minors (he enthusiastically indicated that girls younger than 18 are acceptable) and his e-mails showed his interest in actual sexual conduct"); United States v. Brand, No. 04 Cr. 194 (PKL), 2005 WL 77055, at *5 (S.D.N.Y. Jan. 12, 2005) (admitting "evidence that Brand exhibited an interest in child erotica and child pornography on the intemet in the period leading up to the charged conduct" under Rule 404(b) because evidence was "pertinent to whether he used the intemet in an attempt to engage in sexual conduct with" victim). Accordingly, Rule 403 does not bar the admission of evidence regarding Minor Victim-3, especially given its probative value in demonstrating the defendant's knowledge, intent, and modus operandi. In sum, because evidence regarding Minor Victim-3's experience is admissible both as direct evidence of the conspiracies charged in Counts One and Three and pursuant to Rule 404(b), there is no basis to strike the allegations regarding Minor Victim-3 from the Indictment. IX. The Defendant's Motion to Dismiss Count One or Count Three as Multiplicitous Is Premature The defendant moves to dismiss Counts One or Three on the ground that they are multiplicitous. (Def. Mot. 8). Because the Second Circuit has made clear that a multiplicity challenge does not become timely until after trial, this motion should be denied as premature. A. Relevant Facts Count One charges the defendant with participating in a conspiracy, in violation of 18 U.S.C. § 371, to transport minors with the intent to commit an illegal sex act, in violation of 18 U.S.C. § 2422. See Indictment ¶¶ 9-11. Count Three charges the defendant with participating in 169 EFTA00039616

a conspiracy, in violation of 18 U.S.C. § 371, to entice minors to travel with the intent to commit an illegal sex act, in violation of 18 U.S.C. § 2423(a). See Indictment ¶t 15-17. In other words, Count One and Count Three charge the defendant with agreeing to commit two separate and distinct federal crimes. B. Applicable Law The Double Jeopardy Clause of the Fifth Amendment to the Constitution "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Accordingly, a defendant cannot be sentenced for multiplicitous charges covering the same crime. "An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999); see also United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006) ("A claim of multiplicity cannot succeed, however, 'unless the charged offenses are the same in fact and in law."' (quoting United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003)). Although the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, a defendant does have a right not to be punished twice for the same crime. United States v. Joseplzberg, 459 F.3d 350, 355 (2d Cir. 2006) (per curiam). Accordingly, "[i]f the jury convicts on more than one multiplicitous count, the defendant's right not to suffer multiple punishments for the same offense will be protected by having the court enter judgment on only one of the multiplicitous counts." Id. Similarly, where the judgment of conviction has already been entered on multiplicitous counts, that right is protected by vacating the convictions on all but one count. Id. The Second Circuit has clarified that District Courts should not rule on a motion to dismiss a charge on multiplicity grounds until the time of sentencing. See id. (vacating district court's 170 EFTA00039617

dismissal of count as multiplicitous prior to trial, as such a determination before trial is "at best premature"). Among other reasons, courts look to "the record as a whole in determining whether an indictment is in fact multiplicitous," and the record cannot be fully established until trial is complete. United States v. McCouny, 562 F.3d 458, 469 (2d Cir. 2009). Additionally, because double jeopardy is meant to protect a defendant from successive punishments for the same offense, a multiplicitous count does not violate the Clause unless and until sentence is imposed. See Josephberg, 459 F.3d at 355 ("Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed."). Following the Second Circuit's directive, courts in this Circuit regularly defer ruling on a multiplicity motion until after the conclusion of trial. See, e.g., United States v. Halkbank,No. 15 Cr. 867 (RMB), 2020 WL 5849512, at *9 (S.D.N.Y. Oct. I, 2020) (denying pretrial motion to dismiss multiplicitous count and noting that "lc]ourts in this Circuit have routinely denied pre- trial motions to dismiss potentially multiplicitous counts as premature." (quoting United States v. Medina, No. 13 Cr. 272 (PGG), 2014 WL 3057917, at *3 (S.D.N.Y. July 7, 2014)1); United States v. Dwnitru, No. 18 Cr. 243 (LAK), 2018 WL 3407703, at *1 (S.D.N.Y. June 26, 2018) (denying pretrial motion to dismiss multiplicitous count in light of "the Circuit's controlling view that the question of multiplicitousness is properly considered only at a later point in the proceedings"); United States v. Mostafa, 965 F. Supp. 2d 451, 464 (S.D.N.Y. 2013) ("[M]ultiplicity is properly addressed by the trial court at the sentencing stage."); United States v. Ghavami, No. 10 Cr. 1217 (KMW), 2012 WL 2878126, at *11 (S.D.N.Y. July 13, 2012) ("To the extent that the Indictment alleges more than one conspiracy . . ., Defendants' multiplicity challenge is premature. Should the jury convict Defendants on what the Court ultimately determines to be multiplicitous counts, 171 EFTA00039618

the Court will enter judgment on only one of the multiplicitous convictions." (citations omitted)); United States v. Rivera, No. 09 Cr. 619 (SJF), 2011 WL 1429125, at *4 (E.D.N.Y. Apr. 13, 2011) ("Since it is possible that the jury will convict defendants on only one (1) of the respective counts that they allege are multiplicitous, and acquit defendants on all of the counts with which they allege that count is multiplicitous, the issue of whether the counts are multiplicitous in violation of the Double Jeopardy Clause is premature at the pretrial stage."). C. Discussion The defendant's motion to dismiss Counts One or Three of the Indictment as multiplicitous is, at best, premature. Consistent with the directive of the Second Circuit, this Court should defer ruling on this motion until after the completion of trial. The additional time will ensure that the full factual record is developed before the Court conducts the multiplicity analysis, and the motion may become moot depending on the jury's verdict. First, the Court cannot conduct the multiplicity analysis before hearing all of the evidence regarding the charges contained in the Indictment. Prior to trial, the record will not be fully developed, and the Court cannot conduct the necessary analysis to determine whether the counts are in fact multiplicitous. Consistent with the directive of the Second Circuit and the consistent practice in this District, the Court should defer conducting any multiplicity analysis until after hearing all of the evidence at trial. See Josepliberg, 459 F.3d at 355. Second, the motion may become moot because it is possible that the jury could conclude that the defendant is guilty of one of the charged conspiracies but not guilty of the other. That is because each charged conspiracy alleges that the defendant agreed to violate a different criminal statute. Count One alleges that the defendant agreed to transport minors with the intent that they engage in illegal sex acts. Count Three alleges that the defendant agreed to entice minors to travel 172 EFTA00039619

with the intent that they engage in illegal sex acts. In other words, Count One requires proof of an agreement to transport, while Count Three requires proof of an agreement to entice. Transportation does not necessarily require enticement, and likewise enticement to travel does not necessarily require transportation. See United States v. Griffith, No. 99 Cr. 786 (HB), 2000 WL 1253265, at *4 (S.D.N.Y. Sept. 5, 2000) (denying post-trial motion to dismiss as multiplicitous 18 U.S.C. § 2422 transportation charge and 18 U.S.C. § 2423(a) enticement charge involving same alleged conduct and noting "[t]hat persuasion and transportation involve proof of different facts is hardly contentious"). Here, it is possible that the jury could conclude, after hearing all the evidence, that the defendant agreed to transport one or more minors interstate, but that she did not agree to entice minors to travel. For example, the jury could theoretically conclude that although the defendant agreed to arrange transportation for a minor victim, the defendant herself did not agree to persuade or entice a minor victim to travel. Likewise, the jury could theoretically conclude that the defendant agreed to entice, or encourage, one or more minors to travel interstate, but she did not agree to actually transport or assist in the transportation itself. Although the Government expects to prove beyond a reasonable doubt that the defendant in fact agreed both to entice and to transport one or more minor victims, it is possible that the jury may reach a different conclusion. Depending on the inferences the jury draws from the evidence presented at trial, it could convict on one conspiracy count while acquitting on the other, or it could conclude that the defendant agreed both to transport and to entice, in which case it could convict on both counts. That possibility means that a motion to dismiss counts as multiplicitous is premature. Because the Government has the discretion to present to the jury both the theory that the defendant agreed to transport and the theory that the defendant agreed to entice, the defense motion is premature. See Josephberg, 459 F.3d at 173 EFTA00039620