Document 1:20-cr-00330-PAE

10/21/21, 11:32 AM Case 1:20-cr-00330-PAE Document 363 Filed 10/21/21 Page 1 of 1 members of SDNY press corps join RCFP in opposition to secret jury selection in USA v. Maxwell Pete Brush <pete.brush@law360.com> Thu 10/21/2021 11:28 AM To: Nathan NYSD Chambers <NathanNYSDChambers@nysd.uscourts.gov> Cc: Matthew R. Lee <matthew.lee@innercitypress.com>; CNS New York Fed <newyork@courthousenews.com>; thays_ap.org <thays@ap.org>; adamklasfeld@lawandcrime.com <adamklasfeld@lawandcrime.com>; Jacobs, Shayna <Shayna.Jacobs@washpost.com> CAUTION - EXTERNAL: Dear Judge Nathan - Reporters belonging to the Southern District of New York's in-house press corps write respectfully in support of the arguments made by the Reporters Committee for Freedom of the Press (docket #362) in opposition to any secret jury selection and/or secret juror-vetting in the upcoming USA v. Maxwell trial. The case is USA v. Maxwell, case number 1:20-cr-00330, in the U.S. District Court for the Southern District of New York. best regards, Pete Brush, Law360; Tom Hays, AP; Josh Russell, Courthouse News Service; Shayna Jacobs, Washington Post; Matthew Russell Lee, Inner City Press; Adam Klasfeld, Law&Crime -- Pete Brush, reporter, New York federal courts 212 267 3090 Law360 Newswires www.law360.com @petebrush CAUTION - EXTERNAL EMAIL: This email originated outside the Judiciary. Exercise caution when opening attachments or clicking on links. https://outlook.office365.com/mail/NathanNYSDChambers@nysd.uscourts.gov/inbox/id/AAMkAGI3N2ZmZDU5LTQ1OTctNDI1Yi1hMzkxLWJmYzkOY... 1/1 DOJ-OGR-00005273 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 161 Filed 02/24/22 Page 2 of 117 A-5841 Page 2 80 A.D.3d 168, 913 N.Y.S.2d 187, 2010 N.Y. Slip Op. 09090 (Cite as: 80 A.D.3d 168, 913 N.Y.S.2d 187) mental health provider attesting to attorney's current fitness to re-commence practice of law was necessary. N.Y.Ct.Rules, § 603.16(c)(1), (f). **188 Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York (Kevin E.F. O'Sullivan, of counsel), for petitioner. Victor M. Serby, for respondent. DAVID B. SAXE, Justice Presiding, DAVID FRIEDMAN, JOHN W. SWEENY, JR., EUGENE NARDELLI, JAMES M. McGUIRE, Justices. PER CURIAM. *169 Respondent Catherine M. Conrad was admitted to the practice of law in the State of New York by the Second Judicial Department on January 26, 2000, and, at all times relevant to this proceeding, has maintained an office for the practice of law within the First Judicial Department. In a previous order dated December 18, 2007, this Court suspended respondent from the practice of law for failure to respond to requests made by the Departmental Disciplinary Committee pursuant to its investigation of two complaints made against her (22 NYCRR 603.4[e][1][i]). After receiving a response by respondent six months later seeking an opportunity to respond to the complaints, the Committee conducted an investigation. Based upon respondent's admitted problem with alcohol dependency, which she acknowledged was connected to her failure to cooperate and the underlying conduct, the Committee obtained a psychiatric evaluation of respondent in November 2009, and a subsequent re-evaluation in May 2010. The psychiatrist determined that respondent's prognosis is good, but did not go as far as to assert that she is now fit to re-commence the practice of law. The Departmental Disciplinary Committee now moves for an order suspending respondent from the practice of law on the ground that she suffers from a "disability by reason of physical or mental infirmity or illness" (22 NY-CRR 603.16[c][1]). In her cross motion respondent seeks to convert the current suspension nunc pro tunc, but further seeks an order vacating the suspension and reinstating her to the practice of law, due to her year-long sobriety. The Committee's motion, and the first branch of respondent's cross motion, are granted to the extent that the prior finding of non-cooperation is vacated and an order **189 of suspension based upon the attorney's medical disability is granted (see Matter of Kaplan, 65 A.D.3d 287, 883 N.Y.S.2d 182 [2009]; Matter of Fusco, 18 A.D.3d 81, 798 N.Y.2d 364 [2005]). [1][2] However, that branch of respondent's cross motion seeking immediate reinstatement is denied at this time. The cross motion itself concedes the existence of the alcohol dependence rendering her unfit to practice law; additionally, she acknowledged during her deposition that her failure to cooperate was related to alcohol dependency. To support her cross motion, respondent implies that the examining psychiatrist failed to satisfy an obligation to establish that she continues to be unfit to resume her practice. However, to be entitled to reinstatement, since the initial infirmity has been conceded, it is respondent who must prove her fitness to be reinstated (see 22 NYCRR 603.16[f]), and that burden is not satisfied here by her own self-assessment (see Matter of Stewart, 47 A.D.3d 84, 846 N.Y.S.2d 13 [2007]). The branch of respondent's cross motion seeking reinstatement to the practice of law therefore must be denied at this time, without prejudice to a further application, supported by an evaluation by a mental health provider attesting to her current fitness to re-commence the practice of law (see Matter of Supino, 23 A.D.3d 11, 14, 806 N.Y.S.2d 178 [2005]). Accordingly, the Committee's motion and respondent's cross motion should be granted to the extent that the prior or order's finding of non-cooperation is vacated, and respondent is suspended from the practice of law for an indef- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 6-2 DOJ-OGR-00009445 --- PAGE BREAK --- Case1:20-cr-00330-PAEDocument178012102Filed03/27/21PagePage14of 26 Indictment. The District Court therefore correctly denied Maxwell's motion without an evidentiary hearing. 2. The Indictment Is Timely Maxwell argues that Counts Three and Four of the Indictment are untimely because they do not fall within the scope of offenses involving the sexual or physical abuse or kidnapping of a minor and thereby do not fall within the extended statute of limitations provided by § 3283.19 Separately, Maxwell contends that the Government cannot apply the 2003 amendment to § 3283 that extended the statute of limitations to those offenses that were committed before the enactment into law of the provision. On both points, we disagree and hold that the District Court correctly denied Maxwell's motions to dismiss the charges as untimely. We review de novo the denial of a motion to dismiss an indictment and the application of a statute of limitations.20 First, Counts Three and Four of the Indictment are offenses involving the sexual abuse of minors. The District Court properly applied Weingarten v. United States.21 In Weingarten, we explained that Congress intended courts to apply § 3283 using a case-specific 19 18 U.S.C. § 3283 provides: "[n]o statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer." 20 United States v. Sampson, 898 F.3d 270, 276, 278 (2d Cir. 2018). 21 865 F.3d 48, 58-60 (2d Cir. 2017); see also United States v. Maxwell, 534 F. Supp. 3d 299, 313-14 (S.D.N.Y. 2021). 14 DOJ-OGR-00014864 --- PAGE BREAK --- a violation of New York law."43 It is therefore not "uncertain whether [Maxwell] was convicted of conduct that was the subject of the grand jury's indictment."44 We also cannot conclude that the evidence at trial prejudicially varied from the Indictment. To allege a variance, a defendant "must establish that the evidence offered at trial differs materially from the evidence alleged in the indictment."45 To prevail and win reversal, the defendant must further show "that substantial prejudice occurred at trial as a result" of the variance.46 "A defendant cannot demonstrate that he has been prejudiced by a variance where the pleading and the proof substantially correspond, where the variance is not of a character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense."47 For reasons similar to the ones noted above in the context of the constructive amendment, the evidence at trial did not prove facts 43 A-387; see United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990) ("The trial judge is in the best position to sense whether the jury is able to proceed properly with its deliberations, and [] has considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion.") 44 United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003). 45 Dove, 884 F.3d at 149 46 Id. (citation and internal quotation marks omitted). 47 Salmonese, 352 F.3d at 621-22 (citation and internal quotation marks omitted); see also Khalupsky, 5 F.4th at 294. 22 DOJ-OGR-00014872 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616220 Filed 02/24/22 Page 45 of 130 A-5730 273 C2GFDAU1 Brune - direct 1 instances, correct, Ms. Brune? 2 A. I think you know what I did is I listened to the voir dire 3 that the juror gave and her answers and I credited her answers. 4 Q. Well, that wasn't my question, Ms. Brune. My question was, 5 you can acquire knowledge by asking questions, correct? 6 A. I certainly cannot disagree with you. One way of acquiring 7 knowledge is to ask questions. 8 Q. Did you tell the other defense counsel about the suspension 9 opinion that you all had found? 10 A. During voir dire, I don't believe that we did. 11 Q. And at some point in time, and correct me if I'm wrong, but 12 I believe based on something I think you said in court that 13 all the defense counsel met with Dennis Donahue prior to voir 14 dire or prior to the actual selection of the jury? 15 A. Prior to the actual selection of the jury, all defense 16 counsel did meet with Dennis Donahue. 17 Q. And you could have raised it at that point in time with the 18 other defense counsel, correct? 19 A. And had I believed it was the same person I certainly would 20 have. 21 Q. But you could have? 22 A. Oh, I certainly could have raised that this was information 23 that I had discarded as not pertaining to the prospective 24 juror, which would be true of a whole host of other information 25 that we discarded. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009334 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 161 Filed 02/24/22 Page 58 of 130 A-5743 286 C2GFDAU1 Brune - direct 1 Court know. 2 Q. And you understood that the Court had the resources and 3 ability to get information on its own, correct? 4 A. Oh, yes. 5 Q. And you chose not to bring either what you had found before 6 voir dire or what you had found on March 12th to the Court's 7 attention, correct? 8 A. I made no particular choice relating to May 12th because I 9 didn't know that there was any more out there, but I certainly 10 did not bring the Google search results to the Court. 11 Q. When you were an AUSA, would you have felt an obligation to 12 bring that kind of information to the Court's attention? 13 A. I have the same obligation to the Court now as I did when I 14 was an AUSA and had I believed that that information was 15 accurate, I would have immediately brought it to the Court's 16 attention. 17 Q. But you had no basis to know, Ms. Brune, one way or the 18 other, about the accuracy of the information, correct? 19 A. I believed, based on the juror's sworn statements and the 20 other factors, that she was someone else entirely. 21 Q. Let me ask you this question: In the papers and in court 22 you all -- talking about her, oh, she was a stay at home wife. 23 That does not preclude the possibility that she's an attorney, 24 correct? 25 A. I think that's so. There certainly people who are SOUTHERN DISTRICT REPTERS, P.C. (212) 805-0300 DOJ-OGR-00009347 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 611 Filed 02/24/22 Page 126 of 130 A-5811 C2GFDAU3 Edelstein - cross 354 1 A. We didn't know that Juror No. 1 was the suspended lawyer 2 and we didn't know we had a motion. 3 Q. Any discussion of raising it as an appellate issue? 4 A. No. 5 Q. And why not? 6 A. For the same reasons. We didn't know that Juror No. 1 was 7 the suspended lawyer. 8 MR. SCHECTMAN: No further questions, your Honor. 9 THE COURT: Mr. Okula? 10 MR. OKULA: I'm waiting for the defense, but I see 11 absence from here. May I ask one or two questions from here, 12 your Honor? 13 THE COURT: You may. 14 REDIRECT EXAMINATION 15 BY MR. OKULA: 16 Q. Do I understand you to just testify that you specifically 17 discussed with Susan Brune and Theresa Trzaskoma in the park 18 about whether you were going to bring it to the Court's 19 attention or not? 20 A. Yes. 21 Q. And you decided you would not? 22 A. Yes. 23 Q. And the ultimate decision of that discussion was that you 24 were going to call it off and not even do an investigation, 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009415 --- PAGE BREAK --- Timeline of Key Events for Crime Victims' Rights Act Analysis Filed 05/25/21 Page 217 of 349 Case 1:20-cr-00330-PAE Aug 10 - FBI begins interviewing victims Aug 24 - Villafaña e-mail to supervisors indicating that she sent victim notification letters to "all of the girls" Aug 28 - FBI begins sending VNS letters to victims Dec 7 - Sloman tells Villafaña to "hold the letter" re notification to victims about state court plea hearing Sept 6 - Villafaña e-mail to Sloman raising victim consultation issue, which Sloman forwards to Acosta Oct - FBI agents meet with 3 victims to inform them of the NPA, but then raise impeachment concerns Oct - Nov - FBI agents interview additional victims for the first time Dec 19 - Acosta sends letter to Epstein's counsel advising USAO will defer notification of state plea to state officials Jan 10 - FBI sends VNS letter to some victims Jan 31-Feb 1 - FBI, Villafaña, and CEOS attorney interview victims Feb 19 - Villafaña completes third update to prosecution memorandum Feb 28 - USAO notifies DOJ Civil Rights Division that Epstein investigation is ongoing Mar 19 - Villafaña secures pro-bono attorneys for victims Mar-May - FBI interviews victims June 27 - Villafaña drafts new version of indictment June 27-28 - Villafaña contacts Reiter and Edwards regarding Epstein's plea June 30 - Epstein pleads guilty in state court July 7 - Jane Doe files an emergency petition against the United States asserting violations of the CVRA July 9 - USAO begins sending letters to victims concerning resolution of federal investigation Additional Key Dates Dec 17, 2010 - DOJ Office of Legal Counsel issues opinion regarding CVRA Oct 2011 - DOJ revises AG Guidelines May 29, 2015 - CVRA amended to include two new rights Feb 21, 2019 - Dist. Ct. issues opinion finding U.S. violated the CVRA Jul 6, 2019 - Epstein arrested on SDNY charges Aug 10, 2019 - Epstein dies in custody Sep 16, 2019 - Dist. Ct. closes CVRA case and denies petitioners' request for remedies Apr 14, 2020 - 11th Circuit Court of Appeals denies Mandamus petition Aug 7, 2020 - Petitioners' petition for rehearing en banc granted DOJ-OGR-00004514