UNITED STATES v. MAXWELL

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UNITED STATES v. MAXWELL

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The Ghislaine Maxwell trial starts on Monday, November 29th, The case will take place in New York City.

Members of the press and the public in the United States may access the live audio feed of the proceeding by calling 844-721-7237 and using access code 9991787.

Those outside of the United States may access the live audio feed by calling 409-207-6951 and using access code 9991787.

Any photographing, recording, or rebroadcasting of federal court proceedings is prohibited by law. Violation of these prohibitions may result in fines or sanctions, including monetary fines, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.

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View Case Filing #1: https://url.americanpatriotsforum.com/1IqUo2

View Case Filing #2: https://url.americanpatriotsforum.com/Ke70Z2

View renewed motion for release: https://url.americanpatriotsforum.com/HPeiE1

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20-CR-330 (AJN)

03-22-2021

United States of America, v. Ghislaine Maxwell, Defendant.

ALISON J. NATHAN, District Judge

ORDER :

Defendant Ghislaine Maxwell has been indicted by a grand jury on charges of conspiracy to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371; enticing a minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. §§ 2422 and 2; conspiracy to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371; transporting minors to participate in illegal sex acts, in violation of 18 U.S.C. §§ 2423 and 2; and two charges of perjury, in violation of 18 U.S.C. § 1623.

On July 14, 2020, the Court held a lengthy bail hearing and concluded that the Defendant was a clear risk of flight and that no conditions or combination of conditions would ensure her appearance. It therefore denied bail. On December 8, 2020, the Defendant filed a renewed motion for release on bail pending trial, which was entered into the public docket on December 14, 2020. Dkt. No. 96. On December 28, 2020, the Court denied that motion, concluding that the Defendant posed a risk of flight and that no combination of conditions could ensure her appearance. Dkt. Nos. 104, 106.

The Defendant then filed a third motion for release on bail on February 23, 2021. Dkt. No. 160. In this motion, the Defendant attempts to respond to the reasons that the Court provided in denying bail, proposing two additional conditions to the ones she proposed in her second motion for bail. Specifically, she offers to renounce her French and British citizenship, and she also proposes to have her and her spouse's assets placed in a new account that will be monitored by a retired federal judge. See Dkt. No. 160 at 2.

As set forth below, the Court concludes that none of the Defendant's new arguments and proposals disturb its conclusion that the Defendant poses a risk of flight and that there are no combination of conditions that can reasonably assure her appearance. Thus, for substantially the same reasons that the Court denied the Defendant's first and second motions for release, the Court DENIES the Defendant's third motion for release on bail.

I. Background

On July 14, 2020, this Court held a hearing regarding the Defendant's request for bail. After a thorough consideration of all of the Defendant's arguments and of the factors set forth in 18 U.S.C. § 3142(g), the Court concluded that no conditions or combination of conditions could reasonably assure the Defendant's appearance, determining as a result that the Defendant was a flight risk and that detention without bail was warranted under 18 U.S.C. § 3142(e)(1). The Defendant has been incarcerated at the Metropolitan Detention Center since that time.

The Defendant renewed her motion for release on bail on December 8, 2020. The Court again denied the Defendant's motion. In doing so, the Court explained that none of the Defendant's new arguments materially impacted its conclusion that the Defendant posed a risk of flight. It noted that the charges, which carry a presumption of detention, are serious and carry lengthy terms of imprisonment if convicted; the evidence proffered by the Government, including multiple corroborating and corroborated witnesses, remained strong; the Defendant's substantial resources and foreign ties created considerable uncertainty and opportunities for escape; and that the Defendant's lack of candor regarding her family ties and financial situations raised serious doubts as to her willingness to comply with any conditions imposed by the Court. See Dkt. No. 106.

On February 23, 2021, the Defendant filed a third motion for release on bail. Dkt. No. 160 ("Def. Mot."). The Government opposed the Defendant's motion on March 9, 2021. Dkt. No. 165 ("Gov't Opp'n"). The Defendant filed her reply under temporary seal on March 16, 2021.

II. Legal Standard

The parties dispute whether the divestiture of jurisdiction rule precludes this Court from granting the Defendant's third bail motion while Defendant's bail appeal is pending. See Gov't Opp'n at 2-3; Reply at 2-3; see also United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) ("As a general matter, 'the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'") (citation omitted). Under Rule 37(a) of the Federal Rules of Criminal Procedure, however, the Court unquestionably has authority to defer considering the motion, deny the motion, or state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed. R. Crim. P. 37(a). Because the Court denies the Defendant's motion, it does not resolve the question of whether it would have jurisdiction to grant it.

Pretrial detainees have a right to bail under the Eighth Amendment to the United States Constitution and under the Bail Reform Act, 18 U.S.C. § 3141, et seq. The Bail Reform Act requires that a court release a defendant "subject to the least restrictive further condition, or combination of conditions, that [it] determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). The Court may order that the defendant be held without bail only if, after considering the factors set forth in 18 U.S.C. § 3142(g), the Court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1).

After a court has made an initial determination that no conditions of release can reasonably assure the appearance of the Defendant as required, the Bail Reform Act allows the Court to reopen the bail hearing if "information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue" of whether pretrial detention is warranted. 18 U.S.C. § 3142(f). The Court is not required to do so if it determines that any new information would not have a material bearing on the issue. See United States v. Raniere, No. 18-CR-2041 (NGG) (VMS), 2018 WL 6344202, at *2 n.7 (E.D.N.Y. Dec. 5, 2018) (noting that "[a]s the court has already held one detention hearing, it need not hold another"); United States v. Havens, 487 F. Supp. 2d 335, 339 (W.D.N.Y. 2007) (electing not to reopen a detention hearing because the new information would not have changed the court's decision to detain the defendant until trial). In addition, the Court may also revisit its own decision pursuant to its inherent authority, even when the circumstances do not match § 3142(f)'s statutory text. See, e.g., United States v. Rowe, No. 02-CR-756 (LMM), 2003 WL 21196846, at *1 (S.D.N.Y. May 21, 2003) (noting that "a release order may be reconsidered even where the evidence proffered on reconsideration was known to the movant at the time of the original hearing."); United States v. Petrov, No. 15-CR-66 (LTS), 2015 WL 11022886, at *3 (S.D.N.Y. Mar. 26, 2015) (noting the "Court's inherent authority for reconsideration of the Court's previous bail decision").

If, as here, there is probable cause to find that the defendant committed an offense specifically enumerated in § 3142(e)(3), a rebuttable presumption arises "that no condition or combination of conditions will reasonably assure" the defendant's appearance or the safety of the community or others. 18 U.S.C. § 3142(e)(3). In such circumstances, "the defendant 'bears a limited burden of production . . . to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.'" United States v. English, 629 F.3d 311, 319 (2d Cir. 2011) (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); see also United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) ("[A] defendant must introduce some evidence contrary to the presumed fact in order to rebut the presumption."). Nonetheless, "'the government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community,' and 'by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight.'" English, 629 F.3d at 319 (quoting Mercedes, 254 F.3d at 436); see also United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986) ("The government retains the burden of persuasion [in a presumption case]."). Even when "a defendant has met his burden of production," however, "the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court." United States v. Mattis, 963 F.3d 285, 290-91 (2d Cir. 2020).

III. Discussion

The Defendant bases her third motion for bail on the Court's inherent powers to review its own bail decisions, arguing that the new conditions she proposes warrant reconsideration of the Court's earlier rulings. See Def. Mot. at 4. She also argues that the strength of the Government's case is diminished in light of the arguments she advances in her pre-trial motions, which are currently pending before the Court. Id. at 7. Having considered those arguments, the Court's view has not changed. The Court again concludes that the Government has shown by a preponderance of the evidence that the Defendant presents a risk of flight and that there are no set of conditions, including the Defendant's third set of proposed conditions, that are sufficient to reasonably assure her appearance. The presumption in favor of detention, the weight of the evidence, and the history and characteristics of the Defendant all continue to support that conclusion. The Defendant's proposed conditions do not alter the Court's determination.

A. The Court's assessment of the 18 U.S.C. § 3142(g) factors has not changed

To begin with, the presumption in favor of detention continues to apply with equal force. See Dkt. No. 106 ("Dec. Op.") at 7-8. And though the Court again concludes that the Defendant has met her burden of production, the presumption "remains a factor to be considered among those weighed by the district court." Mercedes, 254 F.3d at 436 (quoting Martir, 782 F.2d at 1144). The Court is mindful "that Congress has found that these offenders pose special risks of flight, and that 'a strong probability arises' that no form of conditional release will be adequate to secure their appearance." Martir, 782 F.2d at 1144 (citation omitted).

The Court's analysis of the 18 U.S.C. § 3142(g) factors also remains unchanged. Because the nature and circumstances of the offenses charged include crimes involving a minor victim, the first 18 U.S.C. § 3142(g) factor continues to weigh strongly in favor of detention. And the Court remains of the opinion that the Defendant does not pose a danger to any person or to the community. The fourth § 3142(g) factor thus weighs against detention.

With respect to the second § 3142(g) factor, none of the Defendant's new arguments alter the Court's conclusion as to the weight of the evidence. The Defendant argues that the pre-trial motions "raise serious legal issues that could result in dismissal of charges, if not the entire indictment," and she contends that "[t]hese motions cast substantial doubt on the alleged strength of the government's case and warrant granting bail on the conditions proposed." Def. Mot. at 7. Those motions became fully briefed one week ago and are now pending before this Court. The Government strenuously contests each of the motions and the Court has not yet adjudicated them. Without prejudging the merits of any of those pending motions and mindful of the presumption of innocence, the Court remains of the view that in light of the proffered strength and nature of the Government's case, the weight of the evidence supports detention. See Dec. Op. at 9-10.

The Court's assessment of the Defendant's history and characteristics has not changed. See Dec. Op. at 10-16. The Defendant continues to have substantial international ties, familial and personal connections abroad, substantial financial resources, and experience evading detection. Id. at 10-11. And the Court's concerns regarding the Defendant's lack of candor regarding her assets when she was first arrested have also stayed the same. As the Court emphasized in its denial of the second motion for release on bail, the discrepancies between the information presented to the Court and to Pretrial Services in July 2020 and the information presented to the Court in December 2020 raised significant concerns about candor. See Dec. Op. at 16. There remains considerable doubt as to the Defendant's willingness to abide by any set of conditions of release. Id. While there continue to be certain mitigating circumstances cutting in the opposite direction, including the Defendant's family ties in the United States, these do not overcome the weight of the considerations that lean in favor of continued detention.

As a result, none of the evidence or arguments presented in this third motion for bail alter the Court's assessment of the 18 U.S.C. § 3142(g) factors. While the fourth factor continues to favor release, the first three factors and the presumption of detention all support the conclusion that the Defendant poses a significant risk of flight. Thus, the Court again concludes that there are no conditions of release that will reasonably assure her appearance in future proceedings.

B. Pretrial detention continues to be warranted

The thrust of the Defendant's argument in her third motion for bail is that the two new proposed conditions vitiate the Court's concerns regarding the risk of flight. The Defendant first offers to renounce her French and British citizenship. Def. Mot. at 2. And she also proposes to have most of her and her spouse's assets placed in a new account that will be monitored by a retired federal judge, who would function as an asset monitor and will have co-signing authority over the account. Id. Those conditions are offered in addition to the bail package she proposed in December. See Dec. Op. at 16-17; see also Def. Mot. at 2. The new bail package does not disturb the Court's conclusion that the Government has carried its burden of showing that these conditions are insufficient to mitigate the flight risks, and the Court again determines that no set of conditions—including the two new ones—can reasonably assure her future appearance.

The Court begins with the Defendant's offer to renounce her French and United Kingdom citizenship. She notes that she can renounce her UK citizenship "immediately upon granting of bail," and she informs the Court that "[t]he process of renouncing her French citizenship, while not immediate, may be expedited." Def. Mot. at 4. As the Government notes, the offer is of unclear validity, and the relevance and practical impact of the renunciations is, at best, unclear. See Gov't Opp'n at 5. With respect to her offer to renounce her French citizenship, the Court is again confronted with dueling opinions on the correct interpretation of French law. The Government relies on the position of the head of the International Criminal Assistance Bureau of the French Ministry of Justice, who argues that "the fact that the wanted individual is a French national constitutes an insuperable obstacle to his/her removal," and that "[a]s long as said nationality is assessed at the time the offense was committed, any loss of nationality subsequent to said offense has no bearing upon the removal proceedings and shall not supersede said assessment of nationality." Gov't Opp'n, Ex. A at 2. The Defendant, meanwhile, relies on the opinion of a French legal expert who argues that nationality is assessed at the time of the extradition request. See Reply, Ex. A ¶ 11. The Defendant's expert concedes that there is no case law addressing this precise issue. Id. ¶ 21.

The Court cites the translated version of the letter, though the original letter is in French.

Exacerbating the uncertainty is the fact that the relevant legal materials also lend themselves to multiple interpretations. For instance, Article 3(1) the Extradition Treaty between the United States and France of April 23, 1996 provides that "[t]here is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State, but the executive authority of the United States shall have the power to surrender a national of the United States if, in its discretion, it deems it proper to do so. The nationality of the person sought shall be the nationality of that person at the time the offense was committed." See Reply, Ex. A ¶ 9 (emphasis added)). Article 694-4 of the French Code of Criminal Procedure similarly provides that "Extradition shall not be granted . . . [w]hen the person claimed has French nationality, the latter being assessed at the time of the offense for which extradition is requested." Id. ¶ 10; see also Gov't Opp'n, Ex. A at 2. Thus, there is considerable uncertainty as to the relevance of the Defendant's offer of renunciation of her French citizenship to her ability to frustrate, if not entirely bar, extradition. The Court's assessment of the risks largely parallel those that the Court articulated when the Defendant proposed signing an extradition waiver. See Dec. Op. at 12-13.

Here, there are minor discrepancies between the two sides' respective translations. The translated letter from the Ministry of Justice cites Article 694-4 as reading, "When the individual claimed to have French citizenship, said citizenship having been assessed at the time of the offense on the basis of which removal is being requested." Gov't Opp'n, Ex. A at 2. --------

Similar doubts exist as to the Defendant's offer to renounce her UK citizenship. The Court is persuaded by the Government's arguments that even if the Defendant were to renounce her UK citizenship, she would still likely be able to delay or resist extradition from the UK. See Gov't Opp'n at 6-7. And for largely similar reasons, the Court again concludes that the proposed conditions do not meaningfully diminish the Court's concerns regarding the Defendant's ability to flee and to frustrate or impair any subsequent extradition attempts. The possibility that the Defendant could successfully resist or forestall extradition heightens the Defendant's incentive to flee.

To summarize, the Defendant's willingness to renounce her French and UK citizenship does not sufficiently assuage the Court's concerns regarding the risk of flight that the Defendant poses. Considerable uncertainty regarding the enforceability and practical impact of the renunciations cloud whatever relevance they might otherwise have to the Court's assessment of whether the Defendant poses a risk of flight. See United States v. Cohen, No. C 10-00547 (SI), 2010 WL 5387757, at *9 n.11 (N.D. Cal. Dec. 20, 2010). And that same uncertainty—and the possibility that she will be able to successfully resist, or at least delay, extradition—incentivizes flight, particularly because of the Defendant's substantial international ties.

Nor does the second proposed condition materially alter the Court's determination that no condition or combination of conditions can reasonably assure the Defendant's appearance. The Defendant proposes to have a retired federal judge provide oversight authority over her financial affairs, and, if granted, he would have the authority to restrain, monitor, and approve disbursement of assets requiring his signature. See Reply at 5. The Court continues to have concerns about whether the full extent of the Defendant's assets have been disclosed in light of the lack of transparency when she was first arrested. But the Court assumes, for purposes of resolving this motion, that the financial report that it reviewed in December is accurate and that it accounts for all of the Defendant's and her spouse's assets. See Dec. Op. at 16-17.

The monitorship condition does not reasonably assure the Defendant's future appearance, even when viewed in combination with the rest of the Defendant's bail package. The Defendant would continue to have access to substantial assets—certainly enough to enable her flight and to evade prosecution. These include the $450,000 that the Defendant would retain for living expenses and any future salaries for her or her spouse, along with other assets, including jewelry and other chattels, that are potentially worth hundreds of thousands of dollars. See Def. Mot. at 5-6; see also Dkt. 97, Ex. O at 9. While those amounts may be a small percentage of the Defendant's total assets, they represent a still-substantial amount that could easily facilitate flight. When combined with the Court's weighing of the § 3142(g) factors and the presumption of detention, the Court concludes that the proposed restraints are insufficient to alter its conclusion that no combination of conditions can reasonably assure her appearance.

If the Court could conclude that any set of conditions could reasonably assure the Defendant's future appearance, it would order her release. Yet while her proposed bail package is substantial, it cannot provide such reasonable assurances. As a result, the Court again determines that "no condition or combination of conditions will reasonably assure the appearance of" the Defendant, and it denies her motion for bail on this basis. 18 U.S.C. § 3142(e)(1).

IV. Conclusion

Defendant Ghislaine Maxwell's third motion for release on bail, Dkt. No. 160, is DENIED. The parties are ORDERED to meet and confer and propose and justify any redactions to the Defendant's reply brief by March 24, 2021. If they conclude that redactions are unnecessary, the Defendant is ORDERED to docket the unredacted version of the brief by March 24, 2021.

SO ORDERED. Dated: March 22, 2021
New York, New York

/s/_________
ALISON J. NATHAN
United States District Judge

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OPINION & ORDER

ALISON J. NATHAN, District Judge.

On April 16, 2021, the Court issued an Opinion & Order granting in part and denying in part Ghislaine Maxwell's various pretrial motions seeking to dismiss portions of the Government's (S1) superseding indictment and compel discovery. Prior to the issuance of that Opinion & Order but after the motions were fully briefed, a grand jury returned a second (S2) superseding indictment adding a sex trafficking count and sex trafficking conspiracy count. The Court did not address the new charges in the April 16, 2021 Opinion & Order. On May 25, 2021, Maxwell filed another round of pretrial motions seeking to dismiss the S2 indictment in whole or in part and to compel discovery. Dkt. No. 292, 293. For appeal preservation purposes or otherwise, the arguments largely, though not entirely, rehash the positions rejected by the Court in its April 16, 2021 Opinion & Order. To the extent new arguments are made, they are addressed below. All pending motions are DENIED. The Court provides a brief summary of its conclusions here and its reasoning on the pages that follow:

• Maxwell moves to dismiss counts one, three, five, and six as barred by Jeffrey Epstein's non-prosecution agreement. The Court again concludes, as it did in its April 16, 2021 Opinion & Order, that the agreement does not bind the United States Attorney for the Southern District of New York.
• Maxwell moves to dismiss counts five and six on the grounds that prosecuting her on those counts would violate her rights under the Double Jeopardy Clause. The Court concludes that Maxwell has not previously been put in jeopardy for these offenses and therefore her prosecution on these counts does not violate the Double Jeopardy Clause.
• Maxwell moves to dismiss counts five and six as untimely. The Court again concludes, as it did in its April 16, 2021 Opinion & Order, that the Government brought the charges within the applicable statute of limitations.
• Maxwell moves to dismiss count five and either count one or count three as multiplicitous. The Court again determines, as it did in its April 16, 2021 Opinion & Order, that this motion is premature and denies it without prejudice for renewal at trial.
• Maxwell moves to dismiss the S2 indictment for pre-indictment delay. The Court again concludes, as it did in its April 16, 2021 Opinion & Order, that Maxwell has not established that she suffered prejudice and therefore any delay has not violated her rights to due process.
• Maxwell moves for a bill of particulars related to counts five and six because they are too vague, and in particular do not provide specific dates. The Court again concludes, as it did in its April 16, 2021 Opinion & Order, that the charges are sufficiently specific.
• Maxwell moves to compel the Government to produce the statements of Minor-Victim 4 in the S2 indictment as Brady material. The Court concludes that the current disclosure schedule gives Maxwell sufficient time to make effective use of any such statements and therefore immediate disclosure is not warranted.

I. Jeffrey Epstein's non-prosecution agreement does not bar the charges in the S2 indictment

In its April 16, 2021 Opinion & Order on Maxwell's first set of pretrial motions, the Court held that the non-prosecution agreement ("NPA") between Jeffrey Epstein and the U.S. Attorney's Office for the Southern District of Florida did not bar the charges against Maxwell in the S1 superseding indictment. See United States v. Maxwell, No. 20-cr-330 (AJN), 2021 WL 1518675, at *2 (S.D.N.Y. Apr. 16, 2021). Maxwell now renews those arguments for the charges in the S2 superseding indictment. The Court understands the primary purpose of Maxwell's renewed motion to be to preserve these arguments for appellate review, and the Court denies the renewed motion for substantially the same reasons set forth in its April 16 opinion. The Court will proceed to briefly explain why neither the new charges in the S2 superseding indictment nor the supplemental authority Maxwell cites change the Court's conclusion that the NPA does not bar the charges against her.

As the Court explained in its April 16, 2021 Opinion & Order, the Second Circuit held in United States v. Annabi that "[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." 771 F.2d 670, 672 (2d Cir. 1985) (per curiam). The Second Circuit's opinion in Annabi is clear, and that court has followed it steadfastly since. See, e.g., United States v. Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004); United States v. Brown, No. 99-1230(L), 2002 WL 34244994, at *2 (2d Cir. Apr. 26, 2002); United States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998) (per curiam); United States v. Rivera, 844 F.2d 916, 923 (2d Cir. 1988). The Second Circuit has held that language nearly identical to that in Epstein's NPA is not enough to overcome the presumption in favor of single-district plea agreements. See Salameh, 152 F.3d at 120. Adhering to this binding authority, this Court thus concluded (and continues to conclude) that the NPA does not bind the U.S. Attorney's Office for the Southern District of New York. It thus provides Maxwell no defense in this case even if it would otherwise cover the conduct charged in the new counts in the S2 superseding indictment.

Maxwell advances two new arguments for why the Court should depart from this reasoning—the first in her renewed motion and the second in a letter of supplemental authority. See Dkt. Nos. 293, 310. In her renewed motion, she contends that Annabi contains an exception for out-of-district prosecutions for charges that are "identical to the dismissed charges." And in the letter of supplemental authority, she contends that the opinion of the Pennsylvania Supreme Court in Commonwealth v. Cosby, No. 39 MAP 2020, 2021 WL 2674380 (Pa. June 30, 2021), requires dismissal. Neither argument is persuasive.

Annabi contains no exception for out-of-district prosecutions for charges that are "identical to the dismissed charges." In the language Maxwell cites from Annabi, the Second Circuit discussed (and rejected) a claim based on the Double Jeopardy Clause, not a claim based on the plea agreement in that case. See Annabi, 771 F.2d at 672. In that section of the opinion, the Second Circuit held that even if the charges had been identical to the dismissed charges, the defendants' double jeopardy claims would fail because they were never in jeopardy on the charges that were dismissed under the plea agreement. Nothing in Annabi suggests that the presumption in favor of single-district plea agreements does not apply if later charges in another district are sufficiently "identical" to the dismissed ones, and no subsequent Second Circuit case applying Annabi has so held. Annabi applies squarely to the facts of this case and binds this Court.

The Court also disagrees that Cosby mandates a different result. To begin with, this Court must follow the precedential opinions of the Second Circuit on questions of federal law, not those of a state court. Thus, nothing in Cosby could change this Court's view that Second Circuit precedent in Annabi forecloses Maxwell's arguments related to the NPA. In any event, the state court in Cosby did not purport to decide the same federal question at issue here. In Cosby, the court held that it was unfair for a district attorney to proceed with charges against Bill Cosby after the district attorney's office had, in that court's view of the facts, unequivocally promised that it would not charge him. Cosby, 2021 WL 2674380, at *34. That case did not involve a question of whether one office's promise bound another, much less whether a plea agreement in one federal district should be construed to apply in another district. Instead, the case focused on whether prosecutors were required to honor a promise that the court found to be clear in the absence of a formal plea agreement. Even if this Court agreed with the analysis in Cosby, that opinion sheds no light on the proper interpretation of the NPA in this case.

After considering the arguments in Maxwell's renewed motion and letter of supplemental authority, the Court's view remains unchanged from its April 16, 2021 Opinion & Order. Under Second Circuit precedent, the NPA does not bind the U.S. Attorney for the Southern District of New York. It thus does not bar the charges in the S2 superseding indictment.

II. This prosecution does not violate the prohibition against double jeopardy

The Double Jeopardy Clause provides that "[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "This protection applies both to successive punishments and to successive prosecutions for the same criminal offense." United States v. Dixon, 509 U.S. 688, 696 (1993). "A defendant may only raise a Double Jeopardy claim if he has been put in jeopardy (i.e. jeopardy has `attached') sometime before the alleged `second' prosecution." United States v. Podde, 105 F.3d 813, 816 (2d Cir. 1997). A defendant is put in jeopardy when the jury in their case is empaneled or upon the defendant's entry of a guilty plea. Crist v. Bretz, 437 U.S. 28, 35 (1978); Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir. 2001). Until then, a defendant has not been put in jeopardy and the Government is free to commence a prosecution.

Maxwell has not previously been put in jeopardy for the offenses charged in this case. She concededly has not been punished or prosecuted for any prior offense. She was never charged in the Southern District of Florida in connection with the Epstein investigation. She agreed to nothing in Epstein's NPA, because she was not a party to it. She suffered no criminal consequences as a result of Epstein's guilty plea in Florida state court. To the contrary, there is no indication that Maxwell was even a subject of the Florida investigation. The Double Jeopardy Clause bars only successive prosecution or punishment for the same offense, and Maxwell has endured neither. Thus, the Double Jeopardy Clause does not bar the charges against her.

Despite facing no prior prosecution or punishment herself, Maxwell contends that she is immune from prosecution because Epstein was already punished for the same conspiracy. The cases she cites, however, deal with successive prosecutions of a particular defendant for the same conspiracy, not separate prosecutions of individual co-conspirators. See, e.g., United States v. Lopez, 356 F.3d 463, 469 (2d Cir. 2004). The Double Jeopardy Clause does not require all co-conspirators be tried together for related offenses. See Zafiro v. United States, 506 U.S. 534, 539 (1993); United States v. Hinton, 543 F.2d 1002, 1014 (2d Cir. 1976). Whether the Government could have charged Epstein again in this case has nothing to do with Maxwell's rights under the Double Jeopardy Clause.

Maxwell finally points to one case in which the Second Circuit held that a subsequent prosecution might not be permissible against a defendant whose charges were dismissed after her husband pleaded guilty. Dkt. No. 293 at 19 (citing United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979)). However, the Court agrees with the Government that the result in Cambindo Valencia rested on the terms of the husband's plea agreement, not the Double Jeopardy Clause. See Cambindo Valencia, 609 F.2d at 638. No precedent stands for the proposition that an uncharged co-conspirator is put in jeopardy when another co-conspirator accepts a non-prosecution agreement. This is the first case in which Maxwell will be put in jeopardy for these offenses, and so this prosecution does not put her in jeopardy a second time.

III. Counts five and six are not time-barred

For most non-capital offenses, the statute of limitations under federal law is five years. 18 U.S.C. § 3282(a). Congress has enacted longer limitations periods for certain crimes, in particular for "offense[s] involving the sexual or physical abuse, or kidnapping" of a minor in 18 U.S.C. § 3283. Prior to 2003, the limitations period in § 3283 lasted until the victim reached the age of 25, and then Congress extended the limitations period to the life of the victim with the PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat 60. In 2006, Congress enacted 18 U.S.C. § 3299, which eliminated the statute of limitations for the sex trafficking of minors in violation of 18 U.S.C. § 1591 and for some other sex crimes. See 18 U.S.C. § 3299 ("Notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for any offense under . . . section 1591.").

In her previous motion, Maxwell argued that the Mann Act charges against her in the indictment were time-barred on the grounds that the extended limitations period § 3283 was not applicable. The Court denied that motion in its April 16, 2021 Opinion & Order. Maxwell, 2021 WL 1518675, at *5. Maxwell now argues that the new charges the Government has brought against her in the S2 indictment, Sex Trafficking Conspiracy (18 U.S.C. § 371) and Sex Trafficking (18 U.S.C. § 1591), are time-barred as well because § 3283 does not apply to those offenses either. She renews her contention from her previous motion that the limitations period in § 3283 only applies to offenses which "necessarily entail" the sexual abuse of a minor and argues that a violation of 18 U.S.C. § 1591 does not. Thus, according to Maxwell's reasoning, the general five-year statute of limitations period in 18 U.S.C. § 3282(a) applies to the sex trafficking counts and, because the alleged conduct occurred from 2001 to 2004, the Government is now time-barred for prosecuting her for these offenses.

The Court denies this motion for substantially similar reasons as those discussed in its April 16, 2021 Opinion & Order. As an initial matter, the Court reiterates that Maxwell's analysis of § 3283 is incorrect. As the Court explained, § 3283 does not call for a "categorical approach" nor an "essential ingredient" test, but instead requires that the defendant's conduct in that particular case involved the sexual abuse of a minor. Maxwell, 2021 WL 1518675 at *5-7. Here, there is no question that Maxwell is alleged to have engaged in activity that constitutes the sexual abuse of a minor with respect to the sex trafficking counts.

But in any event, as the Government pointed out in its brief — and as Maxwell did not contest in her reply — § 3283 is not the only statute of limitations that applies to the sex trafficking counts. As discussed above, in 2006, Congress enacted § 3299 to eliminate altogether the limitations period for the offense of sex trafficking children in violation of § 1591. See 18 U.S.C. § 3299.

Moreover, while the alleged sex trafficking in the S2 indictment is alleged to have occurred prior to the enactment of § 3299 in 2006, the Court holds that the provision nonetheless applies retroactively to cover that conduct. In its April 16, 2021 Opinion & Order, the Court analyzed § 3283 under the Landgraf v. USA Film Products, 511 U.S. 244, 280 (1994) framework and concluded that the limitations period applied retroactively so long as the previous limitations period had not yet expired. Maxwell, 2021 WL 1518675, at *7-8. Similar to § 3283, which states that "[n]o statute of limitations that would otherwise preclude prosecution" shall apply, the language of § 3299 provides that an indictment may be instituted at any time for certain offenses "[n]otwithstanding any other law." As discussed in the Court's previous opinion with respect to § 3283, this kind of language unambiguously requires that the limitations period apply retroactively to prosecutions for offenses committed before the date of enactment so long as the applicable limitations period has not yet run — offenses that by definition are those for which "other law[s]" of limitation would otherwise bar prosecution. See 18 U.S.C. § 3299. Moreover, as the Court also explained, not only does this kind of language unambiguously require retroactivity, it also does not result in any impermissible retroactive effects so long as it does not revive time-barred claims. Maxwell, 2021 WL 1518675, at *7-8. The Court therefore joins multiple other district courts in concluding that, like § 3283, § 3299 applies retroactively to offenses for which the previous limitations period has not yet run. See United States v. Nader, 425 F.Supp.3d 619, 629 (E.D. Va. 2019); United States v. Pierre-Louis, No. 16 CR 541 (CM), 2018 WL 4043140, at *6 (S.D.N.Y. Aug. 9, 2018); United States v. Vickers, No. 13-CR-128-A, 2014 WL 1838255, at *8 (W.D.N.Y. May 8, 2014); United States v. Sensi, No. 3:08-CR-253 (WWE), 2010 WL 2351484, at *3 (D. Conn. June 7, 2010).

The sex trafficking charges are therefore not time-barred. Regardless of whether it was the general five-year limitations period in § 3282(a) or the extended limitations period for sexual abuse of minors in § 3283 that was applicable to Maxwell's alleged conduct prior to the enactment of § 3299 in 2006, neither had expired by that date. Thus, as Maxwell does not contest, § 3299 applies retroactively to the sex trafficking offenses in the indictment and the Government is permitted to bring those charges without time limitation.

IV. Maxwell's motion to dismiss count five and either count one or count three as multiplicitous is premature
In her previous motions, Maxwell argued that either count one or count three of the S1 indictment, the Mann Act conspiracy charges, must be dismissed because the counts are multiplicitous. In the Court's April 16, 2021 Opinion & Order, the Court joined many other courts in this Circuit holding that pretrial motions of this sort are premature in light of United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006), and the Court dismissed without prejudice. Maxwell, 2021 WL 1518675, at *14. In the instant motion, Maxwell similarly argues that count five of the S2 indictment, the sex trafficking conspiracy charge, is duplicative of either counts one or three. Maxwell's motion is denied without prejudice for the reasons stated in the Court's April 16, 2021 Opinion & Order.

V. The Government's delay in bringing the charges did not violate due process

Maxwell also renews her motion to dismiss the S2 indictment based on alleged improper pretrial delay. In its April 16, 2021 Opinion & Order, the Court denied Maxwell's motion, concluding that her efforts to show actual and substantial prejudice fell far short of the "stringent standard" necessary to prevail on such a claim. Maxwell, 2021 WL 1518675, at *9. Maxwell's motion to dismiss the S2 on these grounds fails for the same reasons. As before, nothing in the record indicates that the Government's delay in bringing these charges was designed to thwart Maxwell's ability to prepare a defense. However, it is sufficient to conclude that Maxwell does not make the strong showing of prejudice required to support this sort of claim. Maxwell contends that the Government's delay in bringing charges has prejudiced her interests because potential witnesses have died, others have forgotten, and records have been lost or destroyed. It is highly speculative that any of these factors would make a substantial difference in her case.

The Court thus again concludes for the reasons stated in the April 16, 2021 Opinion & Order, that Maxwell has failed to establish actual prejudice from the Government's delay in bringing charges. She may renew her motion if the factual record at trial shows otherwise. On the present record, neither the applicable statute of limitations nor due process bars the charges here.

VI. No bill of particulars is warranted

Maxwell moves for a bill of particulars as to counts five and six. Federal Rule of Criminal Procedure 7 requires that an indictment contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]" The indictment must be specific enough to inform the defendant of the charges and allow the defendant to plead double jeopardy in a later prosecution based on the same events. See United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). "Under this test, 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." United States. v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975).

"Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). "The purpose of a bill of particulars is to supplement the allegations in the indictment when necessary to (1) enable the defendant to prepare his defense, (2) avoid unfair surprise to the defendant at trial, and (3) preclude a second prosecution of the same offense." United States v. Mandell, 710 F.Supp.2d 368, 384 (S.D.N.Y. 2010)). On the other hand, the Court must balance these interests against the harm to the Government from restricting its proof at trial. See United States v. Rajaratnam, No. 09-cr-1184 (RJH), 2010 WL 2788168, at *1 (S.D.N.Y. Jul. 13, 2010).

In her previous motions, Maxwell argued that the Mann Act counts in the indictment should be dismissed for lack of specificity or that, in the alternative, the Court should compel the Government to submit a bill of particulars providing greater detail of the charges. Maxwell contended specifically that the indictment is too vague because it refers to open-ended time periods for the Mann Act counts. The Court disagreed in light of Circuit precedent requiring only that an indictment describe the time and place of the charged conduct in "approximate terms" and permitting the use of "on or about" language to describe the window of when a violation occurred. Maxwell, 2021 WL 1518675, at *10 (citing Tramunti, 513 F.2d at 1113; United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987)). The Court explained that approximate time periods are particularly appropriate if the allegations involved ongoing conduct and especially if the indictment alleges sexual abuse against minor victims. Id. (citing United States v. Young, No. 08-cr-285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008)).

Maxwell now again moves for a bill of particulars. Maxwell primarily argues that the S2 indictment does not provide specific dates for the conduct alleged with respect to the sex trafficking counts. Instead, the S2 indictment provides a four-year time period from 2001 to 2004 in which the alleged sex trafficking and sex trafficking conspiracy occurred. Maxwell's motion in this respect is denied for the same reasons stated in the Court's April 16, 2021 Opinion & Order. The indictment alleges ongoing conduct that involve the sexual abuse of minors with respect to counts five and six and therefore the approximate time period provided is sufficient. Accordingly, the motion for a bill of particulars is denied.1

VII. The current disclosure schedule for impeachment material is adequate

Finally, Maxwell moves to compel the immediate disclosure of any of Minor Victim's prior statements in which she did not mention Maxwell, including prior statements made to the FBI. The Court has ordered the Government to disclose all Jencks Act and Giglio material by October 11, 2021. Dkt. No. 297 at 1. That date is seven weeks in advance of trial. The Court sees no reason to depart from the rule in this district that impeachment material of anticipated witnesses does not warrant an order compelling immediate disclosure. See United States v. Campo Flores, No. 15 Cr. 765 (PAC), 2016 WL 5946472, at *11 (S.D.N.Y. Oct. 12, 2016). Seven weeks in advance of trial is far more time than is standard in this district and no showing has been made that it will be insufficient for Maxwell to make effective use of the information in preparation of her defense.

To the extent Maxwell argues that the Government is in possession of prior statements that are exculpatory under Brady (for example, if a witness denied Maxwell's involvement), rather than useful only for standard impeachment purposes, it is of course the Government's obligation to "disclose such information to the defense promptly after its existence becomes known to the Government so that the defense may make effective use of the information in the preparation of its case." Dkt. 68 at 1. The context of questions and answers surely matters as to whether a statement (or omission) is exculpatory, impeaching, or neither. It is for the Government to make these assessments ex ante and fully meet its disclosure obligations so that the defense may make effective use of any such information in preparation for trial. See United States v. Coppa, 267 F.3d 132, 144-46 (2d Cir. 2001). The Government has repeatedly confirmed that it understands those obligations, and that it has met them and will continue to meet them. Accordingly, the motion to compel the immediate disclosure of any of Minor Victim-4's prior statements in which she did not mention Maxwell is denied.

Conclusion
For the reasons above and in this Court's April 16, 2021 Opinion & Order, the Court DENIES Maxwell's motion to obtain relief specified in her supplemental pre-trial motions relating to the S2 indictment. This resolves Dkt. No. 292.

SO ORDERED.

FootNotes

1. Additionally, Maxwell includes in her motion for a bill of particulars a request to require the government to identify the unnamed co-conspirators who allegedly participated in the conspiracies charged in the S2 indictment. Maxwell also made this request in the parties' joint May 21, 2021 letter to the Court regarding the disclosure schedule. Dkt. No. 291. In both her motion and the May 21, 2021 letter, Maxwell requests that this information be disclosed to the defense at the same time that the Government discloses Jencks Act material. The Government has not opposed this request. In the absence of objection, the Court presumes the Government intends to disclose this information to Maxwell at the same time that as it discloses Jencks Act material.

Trevor Winchell
Site Admin - Investigative Journalist
American Patriots Forum

Information and knowledge becomes powerful only when used to educate and inform others of the truth according to Almighty God!
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