Document 1:20-cr-00330-AJN

domestically and abroad; (3) her finances are completely opaque, as her memorandum pointedly declines to provide the Court with information about her financial resources; and (4) she appears to be skilled at living in hiding. These are glaring red flags, even before the Court considers the gravity of the charges in this case and the serious penalties the defendant faces if convicted at trial. Instead of attempting to address the risks of releasing a defendant with apparent access to extraordinary financial resources, who has the ability to live beyond the reach of extradition in France, and who has already demonstrated a willingness and ability to live in hiding, the defendant instead proposes a bail package that amounts to little more than an unsecured bond. Among other things, the proposed bail package contemplates the defendant pledging as the sole security a property that is beyond the territory and judicial reach of the United States, and which therefore is of no value as collateral. She proposes six unidentified co-signers, an unknown number of whom even reside in the United States, and none of whose assets are identified. The Court and the Government have no information whatsoever regarding whether these co-signers would be able to pay the proposed $5 million bond should the defendant flee — or if, of equal concern, the co-signers are themselves so wealthy that it would be no financial burden whatsoever to do so. The defendant does not identify what residence she proposes to live at in the Southern District of New York, nor does she identify any meaningful ties to the area. And most importantly, the defendant’s memorandum provides the Court with no information whatsoever about her own finances or her access to the wealth of others, declining to provide the Court the very information that would inform any decision about whether a bond is even meaningful to the defendant — and which the Government submits would reveal the defendant’s financial means to flee and live comfortably abroad for the rest of her life. 2 DOJ-OGR-00000987 --- PAGE BREAK --- 1/4/2021 Case 1:20-cr-00330-AJN Document docket#16-1 Filed 01/13/21 Page 2 of 4 Learn More Coronavirus.gov The primary lane of information for the public regarding Coronavirus (COVID-19) is a portal for public information published by the Coronavirus (COVID-19) Task Force at the White House, working in conjunction with CDC, HHS and other agency stakeholders. Go to coronavirus.gov CDC.gov The Centers for Disease Control and Prevention (CDC) has established a resource portal on CDC.gov with the latest information from CDC and the overarching medical community on COVID-19. Go to cdc.gov USA.gov To learn about international travel restrictions, how you can prepare for coronavirus, and what the U.S. government is doing in response to the virus, visit https://www.usa.gov/coronavirus Go to usa.gov/coronavirus COVID-19 Cases Loading data ... https://www.bop.gov/coronavirus/ 2/4 DOJ-OGR-00002265 --- PAGE BREAK --- TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................................................................... 1 ARGUMENT ........................................................................................................................................................ 7 I. Reconsideration of the Court's Bail Decision is Appropriate Under 18 U.S.C. § 3142(f) .................... 7 II. Ms. Maxwell Should Be Granted Bail Under the Proposed Strict Bail Conditions ............................... 10 A. Ms. Maxwell Has Deep Family Ties to the United States and Numerous Sureties to Support Her Bond ....................................................................................................................................................... 10 1. Ms. Maxwell is Devoted to Her Spouse and Would Never Destroy Her Family By Leaving the Country ....................................................................................................................................................... 11 2. A Number of Ms. Maxwell's Family and Friends, and the Security Company Protecting Her, Are Prepared to Sign Significant Bonds ............................................................................................................................... 13 B. Ms. Maxwell Has Provided a Thorough Review of Her Finances for the Past Five Years .................... 15 C. Ms. Maxwell Was Not Hiding from the Government Before Her Arrest................................................ 18 1. Ms. Maxwell Was Trying to Protect Herself from a Media Frenzy and from Physical Threats ............ 18 2. Ms. Maxwell's Counsel Was in Regular Contact with the Government Prior to Her Arrest ................ 22 3. Ms. Maxwell Did Not Try to Avoid Arrest, Nor Was She “Good At” Hiding ........................................... 23 D. Ms. Maxwell Has Waived Her Extradition Rights and Could Not Seek Refuge in the United Kingdom or France ............................................................................................................................... 25 E. The Discovery Contains No Meaningful Documentary Corroboration of the Government's Allegations Against Ms. Maxwell ............................................................................................................................... 30 F. The Proposed Bail Package Is Expansive and Far Exceeds What Is Necessary to Reasonably Assure Ms. Maxwell's Presence in Court ............................................................................................................................... 34 i DOJ-OGR-00020016 --- PAGE BREAK --- 3. In February 2019, the Government, ex parte and under seal, sought modification of those civil protective orders so as to permit compliance with the criminal grand jury subpoenas; 4. In April 2019, one court ("Court-1") permitted the modification and, subsequently, another court ("Court-2") did not; 5. That as a result of the modification of the civil protective order by Court-1, the Recipient turned over to the Government certain materials that had been covered by the protective order; and 6. That the Defendant learned of this information (sealed by other courts) as a result of Rule 16 discovery in this criminal matter. With the exception of identifying the relevant judicial decision makers and specific civil matters, all of the information listed above is available in the public record, including in the letter filed on the public docket by the Government on this issue. See Dkt. No. 46. Although this Court remains in the dark as to why this information will be relevant to those courts, so that those courts can make their own determination, to the extent it would otherwise be prohibited by the protective order in this matter, the Court hereby permits the defendant to provide to the relevant courts under seal the above information, including the information identifying the relevant judicial decision makers and civil matters. In addition, the Government has indicated that "there is no impediment to counsel making sealed applications to Court-1 and Court-2, respectively, to unseal the relevant materials." Dkt. No. 46 at 3 n.5. In her reply, the Defendant asserts that she is amenable to such a solution if the Court agrees with the Government that doing so would not contravene the protective order in this case. To the extent it would otherwise be prohibited by the protective order in this case. 4 DOJ-OGR-00019261 --- PAGE BREAK --- evidence and witness testimony, will conclusively establish that the defendant groomed the victims for sexual abuse by Jeffrey Epstein.1 The defendant's motion alludes to defenses in this case, all of which are legal or procedural in nature, and none of which pass muster, let alone counsel in favor of bail. To begin with, the notion that the defendant is protected from prosecution by the Non-Prosecution Agreement (“NPA”) between Jeffrey Epstein and the U.S. Attorney's Office in the Southern District of Florida (“SDFL”) is absurd. That agreement affords her no protection in this District, for at least three reasons. First, the defendant was not a party to that agreement nor named in it as a third-party beneficiary, and the defendant offers no basis to think she would have standing to claim any rights under the NPA. Tellingly, the defendant cites no authority for the proposition that an agreement she was not a party to and that does not even identify her by name could possibly be invoked to bar her prosecution. Second, and equally important, the NPA does not bind the Southern District of New York, which was not a party to the agreement. See United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (per curiam) (“A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.”); United States v. Prisco, 391 F. App'x 920, 921 (2d Cir. 2010). This rule applies even when the text of the agreement refers to the signing party as the “Government.” Annabi, 771 F.2d at 672. Third, and perhaps most important, even assuming the NPA could be read to protect this defendant and bind this Office, which are both legally unsound propositions, the Indictment 1 Additionally, and beyond the strong evidence set forth in the Indictment, in just the past week, and in response to the charges against the defendant being made public, the Federal Bureau of Investigation (“FBI”) and the U.S. Attorney's Office have been in touch with additional individuals who have expressed a willingness to provide information regarding the defendant. The Government is in the process of receiving and reviewing this additional evidence, which has the potential to make the Government's case even stronger. --- PAGE BREAK --- earnestness to abide by the conditions of her release and underscores that she has no intention to flee and reflects her deep need to communicate freely with counsel to prepare for her defense. Her renunciation of foreign citizenship obviates the Court's concerns about the validity of waivers of extradition. (See Dkt. 106 at 13). Ms. Maxwell will have no ability to contest extradition from France or the United Kingdom on the basis of citizenship, which removes any incentive the Court and government believe she may have to seek refuge in those countries. B. Restraint and Monitoring of Assets In denying bail, the Court noted that the bond was not fully secured, and that Ms. Maxwell and her spouse would still have several million dollars in unrestrained assets that could be used to facilitate her flight from the country. (See id. at 17-18). To assuage any concerns that those assets would be available to finance flight to and shelter in a foreign country, Ms. Maxwell has taken steps to create a monitorship that will place meaningful restraints on the assets that are not used to secure the bond, while still allowing Ms. Maxwell to pay for her legal defense, for her spouse to pay for daily living expenditures and for payment of taxes. 1. New Account All assets of Ms. Maxwell and her spouse, with the exception of money currently held in escrow for legal fees and related defense expenses and the funds contained in the bank account in the name of Ms. Maxwell's spouse ("the Personal Account")1, will be deposited in a newly created account ("the New Account") to be overseen by an asset monitor appointed pursuant to order of the Court. The New Account will contain all of Ms. Maxwell's and her spouse's remaining cash and other liquid assets, including any proceeds that result from the pending sale 1 The Personal Account is identified as Account I on page 9 of the Financial Report annexed to Ms. Maxwell's Renewed Bail Application. (See Dkt. 97, Exhibit O.) 5 DOJ-OGR-00001237 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 1651 Filed 08/03/23 Page 6 of 9 Page 6 her intent not to flee. (Dec. Op. at 13 n.2). The Court recognized that "a defendant could strategically offer to waive the right to extradition while intending to resist any subsequent extradition that might result." (Id.). So too here. An offer to renounce her foreign citizenship "[s]hould the Court feel this drastic condition is necessary," (Mot. at 4) is another strategic, but hollow offer given that the defendant would be free to fight extradition once in the United Kingdom or France, or any other jurisdiction of her choosing (i.e., the one to which she chooses to flee). As such, the defendant's claimed "willing[ness] to renounce her citizenship in both the United Kingdom and France is little more than window dressing. After receiving the defendant's Third Bail Motion, the Government, through the Department of Justice's Office of International Affairs ("OIA"), contacted the French Ministry of Justice ("MOJ") to understand the impact of the defendant's offer to renounce her French citizenship on France's categorical unwillingness to deport its own citizens for crimes they have committed. In response, the MOJ provided the Government with a letter setting forth the relevant law and conclusively indicating that the defendant's offer to waive her French citizenship will not make her eligible to be extradited from France because, for purposes of extradition, nationality is assessed as of the time the charged offense was committed. That letter in its original French, as well as an English translation of the letter, are attached hereto as Exhibit A. See Ex. A ("[A]ny loss of nationality subsequent to said offense has no bearing upon the removal proceedings and shall not supersede said assessment of nationality."); see also Dkt. No. 100, Ex. B at 3 (MOJ letter stating that the French Code of Criminal Procedure "absolutely prohibits the extradition of a person who had French nationality at the time of the commission of the acts for which extradition is requested"). The defendant's renunciation of her French citizenship in 2021 would not change the fact that she was a French citizen at the time she is alleged to have committed the charged crimes in the 1990s and 2016. As such, the defendant's citizenship at the time of the alleged crimes would bar her extradition from France, making her offer to renounce her French citizenship meaningless. Meanwhile, the defendant's offer to give up her British citizenship does not mean that she will not fight extradition once in the United Kingdom or that an extradition request to the United Kingdom would be successful. The Government understands from OIA that a defendant's nationality has historically played little to no role in extradition from the United Kingdom. Indeed, Article 3 of the 2003 Extradition Treaty between the United States and the United Kingdom expressly prohibits using nationality as a basis to deny extradition. See https://www.congress.gov/108/cdoc/tdoc23/CDOC-108tdoc23.pdf at 5 ("Extradition shall not be refused based on the nationality of the person sought."); see also Crown Prosecution Service, Extradition, Legal Guidance, International and organised crime (May 12, 2020), https://www.cps.gov.uk/legal-guidance/extradition (setting forth the statutory bars to extradition, which do not include nationality). In any event, assuming the Government could locate and apprehend the defendant if she were to flee, as set forth in the Government's opposition to the Second Bail Motion, a judge in the United Kingdom must make an independent decision on extradition based on the circumstances at the time the defendant is before the court, including the passage of time, forum, and considerations of the individual's mental or physical condition. The Government understands from OIA that extradition from the United Kingdom is frequently extensively litigated, uncertain, and subject to multiple levels of appeal. This process is lengthy, complicated, and time-consuming, and would provide no measure of justice to the victims who --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 2651 Filed 03/03/23 Page 7 of 9 would be forced to wait years for the defendant's return. As the Government has repeatedly emphasized, the strong possibility that the defendant could successfully resist extradition only heightens the defendant's incentive to flee. (Dkt. No. 100 at 19-20). Indeed, in rejecting the defendant's offer in the Second Bail Motion to execute anticipatory extradition waivers, the Court noted, among other things, "the likelihood that any extradition would be a difficult and lengthy process." (Dec. Op. at 13). The Court further noted that the "likelihood that the Defendant would be able to frustrate any extradition requests—even if she were correct that she would be unable to stop extradition entirely—weighs strongly in favor of detention." (Id.). That statement remains true even if the face of the defendant's newest offer to renounce her foreign citizenship. As this Court previously found, the defendant has substantial international ties, familial and personal connections abroad, and owns at least one foreign property of significant value. (Dec. Op. at 10-11). The defendant's alleged willingness to renounce her foreign citizenship should not fundamentally alter the Court's conclusions. 2. The Court Should Reject the Defendant's Proposed Monitorship Condition Next, the defendant has offered to place a portion of her and her spouse's assets into a new account that "will be monitored by a retired federal District Court judge and former United States Attorney who will function as asset monitor and will have co-signing authority over the account." (Mot. at 2). This proposed condition—the details of which are vague—is insufficient to ensure that the defendant appears in Court. It first bears noting that the defendant's finances—and her candor with the Court about those finances—is not an issue of first impression. Significantly absent from the defendant's Motion is any attempt to address the Court's determination that the defendant's "lack of candor raises significant concerns as to whether the Court has now been provided a full and accurate picture of her finances and as to the Defendant's willingness to abide by any set of conditions of release." (Dec. Op. at 16). That is critical because the value of any proposed monitorship would depend entirely on the monitor having a completely accurate picture of the defendant's finances and access to all of her accounts and sources of wealth. Given the Court's concerns about the defendant's candor, the Court should hesitate before trusting the defendant to be transparent with a monitor under her employ. In any event, even if the Court were to accept the defendant's representations about her assets at face value, the defendant's proposal would leave the defendant with significant assets unrestrained. In particular, the defendant's proposal does not in any way restrain her $2 million townhouse in London, which she could live in or sell to support herself. Although the defendant asserts that the monitor would oversee any account into which the proceeds of the sale of the defendant's properties were deposited, the defendant does not explain how the monitor—or this Court—would have the authority to force the defendant to deposit foreign assets in a domestic account. As the Government has previously explained, the Government cannot realistically recover assets abroad. Accordingly, the defendant's proposal would leave her with access to at DOJ-OGR-00020167 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 20 Filed 06/12/20 Page 8 of 9 make purchases for the property using the credit card. As these facts make plain, there should be no question that the defendant is skilled at living in hiding. The defendant asks the Court to ignore many of the obvious indicators of a flight risk by arguing that she has lived in hiding because of unwanted press attention. This argument entirely misses the point. First, the defendant's conduct is clearly relevant to the Court's assessment of her risk of flight, because it evidences her readiness and ability to live in hiding, and to do so indefinitely. As such, even if her behavior in the last year could be attributed solely to her desire to avoid media attention, that should give the Court serious concerns about what steps she would be willing to take to avoid federal prison. Second, the fact that the defendant took these measures to conceal herself after Epstein was indicted in this District – and after the Government announced that its investigation into Epstein's co-conspirators was ongoing – cannot be ignored. To the contrary, these measures are at least equally consistent with the notion that the defendant also sought to evade detection by law enforcement. In attempting to sidestep the evidence of her ability and willingness to hide, the defendant points to her decision to remain in the United States for the past year while the Government's investigation remained ongoing. She claims that because she did not flee the country during an ongoing investigation, she will not do so while under indictment. This argument ignores the world of difference between believing that an investigation is ongoing and being indicted in six counts by a federal grand jury. The defendant now faces the reality of serious charges, supported by significant evidence, and the real prospect of spending many years in prison. The return of the indictment fundamentally alters the defendant's incentives and heightens the incentive to flee far beyond the theoretical possibility of a charge during an investigation (one the defendant may have wrongly believed would or could not reach her). That is especially so when the defendant has DOJ-OGR-00000993 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 2651 Filed 03/09/23 Page 8 of 9 Page 8 least $2 million. In addition, the defendant proposes that she retain an additional half a million dollars in liquid assets in an unrestrained account, as well as any future income.2 That figure appears to be in addition to the approximately $1 million in "chattels" the defendant has disclosed among her various assets. See Dkt. 97, Ex. O at 9. In short, the defendant's proposal would leave her with ample resources to fund her flight from prosecution. Further still, the defendant's Motion provides only cursory details of the monitorship program she proposes, and it offers no legal precedent to explain what, if any, authority this Court has to establish and oversee such a monitorship. Aside from defense counsel's assertions, the Motion offers nothing that would enable the Court to meaningfully consider the details of such a monitorship. Among other things, it is unclear from the defendant's Motion whether such a program would require the defendant's voluntary compliance with the monitorship, or whether the funds would be placed in a bank account that the defendant could not access. Given that the defendant's Motion suggests that attorney's fees could be disbursed without approval, it appears that the defendant's proposal would provide her latitude to engage in financial transactions, subject only to a review that would require her voluntary compliance. Finally, although the defendant does not provide any detail about the amount of money she would pay the monitor, presumably the monitor would not undertake this responsibility for free. As a result, the tension between the monitor's obligation to review the defendant's finances and the monitor's employment relationship with the defendant creates a conflict of interest. But at bottom, if the Court determines that the only way to keep the defendant from using her assets to flee is to take away control of her assets, then she is too great a flight risk to release. In sum, in light of this Court's determination that the defendant "has not been fully candid about her financial situation," the Court should reject the defendant's vague proposal. (Dec. Op. at 2). Nothing in the defendant's Motion should alter the Court's determination that the defendant poses a significant risk of flight, and that she has the resources and skills to flee prosecution. The Court should reject the proposed bail conditions. 3. The Defendant's Pending Pretrial Motions Have Not Diminished the Strength of the Government's Case Finally, the defendant also argues that the "numerous substantive pretrial motions now before the Court amply challenge the purported strength of the government's case." (Mot. at 7). But the defendant cannot merely point to the sheer volume of briefing she has filed to suggest that the strength of the Government's case has diminished. To the contrary, as the Government has set forth in detail in its memorandum in opposition, the defendant's pretrial motions are entirely without merit. In any event, it is premature for the defendant to claim that her pretrial motions—which have not been adjudicated, much less granted—have altered the Court's original 2 The defendant's proposal also leaves unrestrained several million dollars in escrow for the defendant's legal fees. See Dkt. 97, Ex. O at 9 (listing approximately $7.6 million in retainer fees); see also Mot. at 6. If the defendant fled the country, her counsel would presumably be required to return those funds to the defendant, who would no longer need defense counsel in this case. DOJ-OGR-00020168 --- PAGE BREAK --- Case1:20-cr-00330-AJN Document2651 Filed08/03/21 Page9of9 Page 9 determination that the Government's case is strong. IV. Conclusion The defendant continues to represent a "plain[]" risk of flight. (Dec. Op. at 1). Even assuming the Court has jurisdiction to grant this third bail motion, the two new bail conditions offer insufficient protection against the "substantial and actual risk of flight" this Court has already found that the defendant poses. (Id. at 21). The defendant's Third Bail Motion should be denied. Respectfully submitted, AUDREY STRAUSS United States Attorney By: s/ Maurene Comey / Alison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Cc: All Counsel of Record (By email) DOJ-OGR-00020169 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 1 Filed 06/29/20 Page 18 of 18 Form No. USA-33s-274 (Ed. 9-25-58) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA v. GHISLAINE MAXWELL, Defendant. INDICTMENT (18 U.S.C. §§ 371, 1623, 2422, 2423(a), and 2) AUDREY STRAUSS Acting United States Attorney Foreperson 18 DOJ-OGR-00001484