Document 20-cr-00330-ajn

Case 20-cr-60038-AJN Document 473-2 Filed 03/24/21 Page 1 of 1 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 3/24/2021 Criminal Notice of Appeal - Form A NOTICE OF APPEAL United States District Court Southern District of New York Caption: United States of America v. Ghislaine Maxwell Docket No.: 20-CR-00330-AJN Alison J. Nathan (District Court Judge) Notice is hereby given that Ghislaine Maxwell appeals to the United States Court of Appeals for the Second Circuit from the judgment other Order on Third Motion for Release on Bail (Doc. 169) entered in this action on March 22, 2021 (date) (specify) This appeal concerns: Conviction only Sentence only Conviction & Sentence Other Defendant found guilty by plea trial N/A Offense occurred after November 1, 1987? Yes No N/A Date of sentence: N/A Bail/Jail Disposition: Committed Not committed N/A Appellant is represented by counsel? Yes No If yes, provide the following information: Defendant's Counsel: David Oscar Markus Counsel's Address: Markus/Moss PLLC 40 NW Third Street, Ph 1, Miami, Florida 33128 Counsel's Phone: (305)379-6667 Assistant U.S. Attorney: Maurene Comey, Alison Moe & Lara Pomerantz AUSA's Address: The Silvio J. Mollo Building One Saint Andrew's Plaza, New York, New York 10007 AUSA's Phone: (212)637-2324 Signature DOJ-OGR-00019746 --- PAGE BREAK --- Case1:20-cr-00330-AJN Document 265 Filed 03/03/21 Page 2 of 9 Page 2 bail in July 2020, the defendant filed a renewed motion for release in December 2020 in which the defendant proposed a "substantially larger bail package" and presented arguments that "either were made at the initial bail hearing or could have been made then." (Dec. Op. at 1). In denying that second application, the Court found that the information provided in the Second Bail Motion "only solidifies the Court's view that the Defendant plainly poses a risk of flight and that no combination of conditions can ensure her appearance." (Id. at 1-2). On January 11, 2021, the defendant filed a notice of appeal to the Second Circuit appealing the Court's December 2020 opinion denying the Second Bail Motion. (Dkt. No. 113). That appeal is pending; the defendant has not yet filed her brief in support of the appeal. On February 23, 2021, the defendant submitted the Third Bail Motion, in which she proposed two additional bail conditions to "supplement the . . . bail package she has already offered" in the Second Bail Motion (Mot. at 2): (1) renunciation of the defendant's French and British citizenship; and (2) placement of a portion of her and her spouse's assets in a new account to be overseen by an asset monitor. II. The Court Does Not Have Jurisdiction to Grant the Third Bail Motion Because of the Defendant's Pending Bail Appeal The defendant asks this Court to "reconsider its earlier ruling and grant bail under the proposed conditions." (Mot. at 4). More specifically, the defendant asks the Court to consider the exact same package previously considered and rejected in the December opinion, as now "supplement[ed]" by two additional conditions. (Id. at 2, 8). However, the Court lacks jurisdiction to grant the Motion by virtue of the defendant's appeal of the Court's prior ruling to the Second Circuit. "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.'" United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). "The divestiture of jurisdiction rule . . . is a judicially crafted rule rooted in the interest of judicial economy, designed 'to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.'" Rodgers, 101 F.3d at 251 (quoting United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989)); see also United States v. Ransom, 866 F.2d 574, 576 (2d Cir. 1989) (describing the Griggs rule as "promot[ing] the orderly conduct of business in both the trial and appellate courts"). In January 2021, the defendant filed an appeal from the Court's December 28, 2020 Opinion and Order denying her Second Bail Motion. The defendant's Third Bail Motion not only seeks reconsideration of the very issue presently on appeal but does so by proposing two additional bail conditions to "supplement" the bail package proposed in the defendant's Second Bail Motion, (Mot. at 2, 8), a package which this Court considered and concluded could not "reasonably assure her appearance." (Dec. Op. at 16). Accordingly, the defendant's Third Bail Motion also concerns bail and is thus an "aspect[] of the case involved in the appeal." Rodgers, 101 F.3d at 251. The DOJ-OGR-00020162 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 2651 Filed 03/09/23 Page 5 of 9 Page 5 1. The Defendant's Alleged Willingness to Renounce Her Foreign Citizenship Should Not Alter the Court's Prior Bail Determinations The defendant contends that she has materially strengthened her proposed bail package by offering to renounce her foreign citizenship "if the Court so requires." (Mot. at 2). She claims that such a renunciation will "eliminate any opportunity for her to seek refuge" in France and the United Kingdom or "remove[] any incentive the Court and government believe she may have to seek refuge in those countries." (Id. at 2, 5). The defendant is wrong. That she is "willing" to renounce her foreign citizenship would do nothing to prevent the defendant from fleeing and then fighting extradition once abroad, and it does nothing to diminish the risk that the defendant could choose to flee to another jurisdiction altogether, including one with which the United States does not have an extradition treaty and from which extradition is impossible. The Court previously found that the likelihood that the defendant "would be able to frustrate any extradition requests . . . weighs strongly in favor of detention" (Dec. Op. at 13); the defendant's Motion provides no basis to disturb this finding. Indeed, just as the defendant's offer to execute anticipatory extradition waivers failed to provide the Court with any assurance that she would not frustrate any potential extradition, so too should her offer to renounce her foreign citizenship. First, the defendant's willingness to renounce her citizenship is an offer of unclear validity. As an initial matter, the defendant's offer is itself of little value, as she would at bare minimum have to follow the legal requirements attendant to each country in order to formally renounce her citizenship. Moreover, she provides no assurances—nor could she—that she will not contest the validity and/or voluntariness of such a renunciation once she is actually in France or the United Kingdom. For example, the Government understands that in order to give up one's British citizenship or status, one must be, among other things, "of sound mind (unless it's decided that it's in your best interest)." See www.gov.uk/renounce-british-nationality. The defendant could choose to frustrate any future extradition proceedings by claiming that her decision to give up her citizenship was compelled by some person or circumstance, or that she was not of sound mind. Simply put, while the defendant may believe that it is in her interest to give up her citizenship now, there is no way for the defendant to assure the Court that she will not take the contrary position in the future if she believes it to be in her interest at the time. And even if the defendant could not challenge her renunciation, it is unclear whether, as a separate matter, she could seek to have her citizenship rights restored. Second, and related, the defendant has offered no authority for the proposition that her offer to renounce foreign citizenship would have any impact on an extradition proceeding, nor has she reckoned with the Court's findings regarding her offer to sign a so-called irrevocable waiver of her extradition rights. See United States v. Cohen, No. 10 Cr. 547 (SI), 2010 WL 5387757, at *9 n.11 (N.D. Cal. Dec. 20, 2010) ("Defendant's offers to turn in his passports, to 'renounce' his Israeli citizenship, and have someone 'instruct' the Israeli embassy to deny new documents or travel authorizations to defendant, as well as his offer to waive extradition—assuming he flees overseas at some point—do not sufficiently assure the Court that defendant is not still a flight risk. Defendant offers no authority about the real impact of these offers or whether they are enforceable in Israel if defendant were to flee there.") The Court placed "little weight" on the defendant's argument in the Second Bail Motion that waiver of the right to appeal an extradition order indicates DOJ-OGR-00020165 --- PAGE BREAK --- Case#: 20-cr-00330-AJN Document#: 121 Filed#: 03/23/21 Page#: 5 of 18 Monitoring of Assets is a Valid and Significant Condition of Release To address the Court's concern about Ms. Maxwell's access to assets, the bail motion proposed another extremely significant and restrictive bail condition - the imposition of a monitor to supervise the assets of Ms. Maxwell and her spouse and approve expenditures. Rather than suggest conditions to satisfy its concerns, the government urges the Court to summarily reject the proposed monitorship. William S. Duffey, Jr., a retired federal district court judge and the former United States Attorney for the Northern District of Georgia, has agreed to undertake appointment by the Court as asset monitor. Judge Duffey has extensive experience evaluating and monitoring funds held in and disbursed from financial accounts. He has agreed to serve by appointment of the Court in a capacity similar to other trustees and receivers who serve as officers of the Court and are entrusted, pursuant to court order, with oversight authority to restrain, monitor, and approve disbursement of assets requiring his signature. Similar to others who have been appointed by courts to oversee financial matters, Judge Duffey will be compensated at the same hourly rate billed for his services as an ADR panelist for Federal Arbitration (FedArb). The proceeds from the sale of Ms. Maxwell's London home will be restrained and monitored by Judge Duffey. As required by court order, documentation concerning the proceeds of the sale will be provided to Judge Duffey and the funds will be deposited in the financial account approved by Judge Duffey. The government tries to steer the Court's attention to allegations of Ms. Maxwell's lack of candor to dissuade the Court from considering the proposed monitorship as a meaningful restraint on the assets of Ms. Maxwell and her spouse. As previously stated, despite being questioned by Pretrial Services following a period of solitary confinement, suicide watch, sleep 5 DOJ-OGR-00020178 --- PAGE BREAK --- accounts and will be entrusted with the authority to oversee the assets of Ms. Maxwell and her spouse, as described above. Restraining Ms. Maxwell's assets that are not used to secure the bond and placing them under the supervision of a former federal District Court judge eliminates any concern that such funds could be used to violate the terms of release. II. Ms. Maxwell's Pretrial Motions Raise Substantial Legal and Factual Issues That Could Result in Dismissal of Some or All of the Charges Against Her In addition to the new conditions proposed above, the numerous substantive pretrial motions now before the Court amply challenge the purported strength of the government's case. Ms. Maxwell's pretrial motions raise serious legal issues that could result in dismissal of charges, if not the entire indictment. Among the dozen submissions are motions to dismiss the superseding indictment for breach of the non-prosecution agreement, for pre-indictment delay, and for being based on improperly obtained evidence in violation of Ms. Maxwell's constitutional rights under the Fifth and Sixth the Amendments. Other motions seek dismissal of the Mann Act charges as being time-barred and the perjury charges as based on non-perjurious statements. These motions are substantial with a likelihood of success on the merits. These motions cast substantial doubt on the alleged strength of the government's case and warrant granting bail on the conditions proposed. III. The Court Should Grant Bail Under the Bail Reform Act of 1984, a defendant must be released on personal recognizance or unsecured personal bond unless the judicial officer determines "that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). The enhanced bail package proposed by Ms. Maxwell contains financial burdens and a combination of restrictions that reasonably 7 DOJ-OGR-00020157 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 17 Filed 09/08/20 Page 26 of 125 13. From at least in or about 1994, up to and including in or about 1997, in the Southern District of New York and elsewhere, GHISLAINE MAXWELL, the defendant, knowingly did persuade, induce, entice, and coerce an individual to travel in interstate and foreign commerce to engage in sexual activity for which a person can be charged with a criminal offense, and attempted to do the same, and aided and abetted the same, to wit, MAXWELL persuaded, induced, enticed, and coerced Minor Victim-1 to travel from Florida to New York, New York on multiple occasions with the intention that Minor Victim-1 would engage in one or more sex acts with Jeffrey Epstein, in violation of New York Penal Law, Section 130.55. (Title 18, United States Code, Sections 2422 and 2.) COUNT THREE (Conspiracy to Transport Minors with Intent to Engage in Criminal Sexual Activity) The Grand Jury further charges: 14. The allegations contained in paragraphs 1 through 8 of this Indictment are repeated and realleged as if fully set forth within. 15. From at least in or about 1994, up to and including in or about 1997, in the Southern District of New York and elsewhere, GHISLAINE MAXWELL, the defendant, Jeffrey Epstein, and others known and unknown, willfully and knowingly did combine, conspire, confederate, and agree together and with each other to commit an offense against the United States, to 12 App.024 DOJ-OGR-00019483 --- PAGE BREAK --- Defense Counsel may make an appropriate application to the Court for any such modifications. SO ORDERED: Dated: New York, New York July 30, 2020 Alison J. Nathan HONORABLE ALISON J. NATHAN United States District Judge 12 App.086 DOJ-OGR-00019545 --- PAGE BREAK --- Case 20-cr-00330-AJN Document 473 Filed 03/24/21 Page 34 of 1 Criminal Notice of Appeal - Form A NOTICE OF APPEAL United States District Court Southern District of New York Caption: United States of America v. Ghislaine Maxwell Docket No.: 20-CR-00330-AJN Alison J. Nathan (District Court Judge) Notice is hereby given that Ghislaine Maxwell appeals to the United States Court of Appeals for the Second Circuit from the judgment other Order on Third Motion for Release on Bail (Doc. 169) entered in this action on March 22, 2021 (date) This appeal concerns: Conviction only | Sentence only | Conviction & Sentence | Other Defendant found guilty by plea | trial | N/A. Offense occurred after November 1, 1987? Yes | No | N/A Date of sentence: N/A Bail/Jail Disposition: Committed Not committed | N/A Appellant is represented by counsel? Yes | No If yes, provide the following information: Defendant's Counsel: David Oscar Markus Counsel's Address: Markus/Moss PLLC 40 NW Third Street, Ph 1, Miami, Florida 33128 Counsel's Phone: (305)379-6667 Assistant U.S. Attorney: Maurene Comey, Alison Moe & Lara Pomerantz AUSA's Address: The Silvio J. Mollo Building One Saint Andrew's Plaza, New York, New York 10007 AUSA's Phone: (212)637-2324 Signature DOJ-OGR-00000840 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 17 Filed 09/08/20 Page 38 of 125 New York Residence, in violation of New York Penal Law, Section 130.55. c. In or about 1996, when Minor Victim-2 was under the age of 18, MAXWELL provided Minor Victim-2 with an unsolicited massage in New Mexico, during which Minor Victim-2 was topless. d. Between in or about 1994 and in or about 1995, when Minor Victim-3 was under the age of 18, MAXWELL encouraged Minor Victim-3 to provide massages to Epstein in London, England, knowing that Epstein intended to sexually abuse Minor Victim-3 during those massages. (Title 18, United States Code, Section 371.) COUNT FOUR (Transportation of a Minor with Intent to Engage in Criminal Sexual Activity) The Grand Jury further charges: 18. The allegations contained in paragraphs 1 through 8 of this Indictment are repeated and realleged as if fully set forth within. 19. From at least in or about 1994, up to and including in or about 1997, in the Southern District of New York and elsewhere, GHISLAINE MAXWELL, the defendant, knowingly did transport an individual who had not attained the age of 18 in interstate and foreign commerce, with the intent that the individual engage in sexual activity for which a person can be charged with a criminal offense, and attempted to do so, and 14 App.026 DOJ-OGR-00019485