Document 101

Case 1:20-cr-00330-AJN Document 101 Filed 12/23/20 Page 1 of 2 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 12/23/20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, -v- Ghislaine Maxwell, Defendant. 20-CR-330 (AJN) ORDER ALISON J. NATHAN, District Judge: On December 18, 2020, the Defendant filed her reply to the Government's opposition to her renewed application for bail. In accordance with this Court's December 7, 2020 Order, see Dkt. No. 89, she filed these materials under seal and proposed narrowly tailored redactions on those materials. The Government did not file any opposition to the Defendant's proposed redactions. The Court will adopt the Defendant's proposed redactions after applying the three-part test articulated by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Under this test, the Court must: (i) determine whether the documents in question are "judicial documents;" (ii) assess the weight of the common law presumption of access to the materials; and (iii) balance competing considerations against the presumption of access. Id. at 119-20. "Such countervailing factors include but are not limited to 'the danger of impairing law enforcement or judicial efficiency' and 'the privacy interests of those resisting disclosure.'" Id. at 120 (quoting United States v. Amodeo ("Amodeo II"), 71 F.3d 1044, 1050 (2d Cir. 1995)). The proposed redactions satisfy this test. The Court finds that the Defendant's submissions are "relevant to the performance of the judicial function and useful in the judicial process," thereby qualifying as a "judicial document" for purposes of the first element of the 1 DOJ-OGR-00002204 --- PAGE BREAK --- Case 22-1426, Document 101, 03/10/2024, 3614237, Page1 of 2 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 March 10, 2024 By CM/ECF Catherine O'Hagan Wolfe, Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, Docket No. 22-1426 Argument date: March 12, 2023 Dear Ms. Wolfe: The Government respectfully submits this letter, pursuant to Federal Rule of Appellate Procedure 28(j), to inform this Court of United States v. Watkins, 940 F.3d 152 (2d Cir. 2019). In Watkins, this Court explained that the portion of the Bail Reform Act, 18 U.S.C. § 3142(f)(1)(E), that required a detention hearing for "any felony . . . that involves a minor victim . . ." permits a court to conduct a "conduct-specific inquiry in which the judicial officer may look beyond the elements of the charged offense to consider the actual conduct underlying the arrestee's charged offense." 940 F.3d at 165, 167. Because that phrase "refers to a 'minor victim,' it "suggest[s] factual details surrounding the charged conduct." Id. at 166. The Court also noted the absence of a textual trigger for the categorical approach like "that has as an element." Id. at 166 n.70. The Court further explained that its conclusion was reinforced by legislative history, namely, the inclusion of Section 3142(f)(1)(E) in a statute intended to "afford minor victims of crime the greatest degree of protection." Id. at 166. The Court contrasted Section 3142(f)(1)(E) with another portion of the Act that contains the word "involves" but requires use of the categorical approach, because that text "refers, variously, to a 'crime,' an 'offense,' and a 'felony,'" indicating an emphasis on the nature of the legal charge rather than "factual details." Id. (quoting 18 U.S.C. § 3182(f)(1) (discussing "a case that involves . . . a crime of violence . . ."); see id. at 162-65. DOJ-OGR-00021790 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 101 Filed 12/23/20 Page 2 of 2 Lugosch test. United States v. Amodeo ("Amodeo I"), 44 F.3d 141, 145 (2d Cir. 1995). And the Court also finds that the common law presumption of access attaches. Id. at 146; see also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 602 (1978). As with the redactions to her renewed motion for bail, the proposed redactions here are narrowly tailored to serve substantial interests, including, most importantly, third parties' personal privacy interests. See Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017). See also Dkt. No. 95. The Defendant is hereby ORDERED to docket the redacted documents and corresponding exhibits by no later than December 23, 2020. SO ORDERED. Dated: December 23, 2020 New York, New York ALISON J. NATHAN United States District Judge 2 DOJ-OGR-00002205 --- PAGE BREAK --- Case 22-1426, Document 101, 03/10/2024, 3614237, Page2 of 2 Catherine O'Hagan Wolfe March 10, 2023 Page 2 of 2 The same principles apply to the statute of limitations at issue here. (See Gov. Br. 42-49). That statute covers an "offense involving the sexual or physical abuse . . . of a child," 18 U.S.C. § 3283 (2003), which similarly "suggests factual details surrounding the charged conduct" and lacks language like "has as an element." And it is also part of a statute intended to afford broader protections for minor victims of crimes. See, e.g., Weingarten v. United States, 865 F.3d 48, 54 (2d Cir. 2017). Respectfully submitted, DAMIAN WILLIAMS United States Attorney By: /s/ Andrew Rohrbach Maurene Comey Lara Pomerantz Hagan Scotten Assistant United States Attorneys Tel: (212) 637-1944 cc: Diana Fabi Samson, Esq. (via CM/ECF) DOJ-OGR-00021791