Document 20-cr-00830

MINISTRY OF JUSTICE Liberty Equality Fraternity Directorate of Criminal Affairs & Pardons Specialized Criminal Justice Sub-Directorate International Criminal Assistance Bureau Paris, March 9, 2021 His Honor the Keeper of Seals, Minister of Justice To the Department of Justice (D.O.J) Through Andrew FINKELMAN, Liaison Magistrate on behalf of the Embassy of the United States of America located in Paris, France I hereby inform you that in France, all removal proceedings and conditions are governed by Articles 696 et sq. of the Code of Criminal Procedure. Article 696-2 of said Code provides that: "The French government is able to remit to foreign governments upon their request any individual who is not a French citizen and who is subject to a lawsuit brought on behalf of the requesting State, or who is subject to a sentence passed by the Court of said requesting State, and who is located on the territory of the French Republic." Article 694-4 expressly specifies as follows: "Removal is not granted: 1- 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." WHEREBY, the fact that the wanted individual is a French national constitutes an insuperable obstacle to his/her removal. As 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. Head of the International Criminal Assistance Bureau Philippe AEGLE 13, place Vendôme - 75042 Paris Cedex 01 - France Telephone: (011) 33.1.44.77.60.60 www.justice.gouv.fr DOJ-OGR-00001253 --- PAGE BREAK --- Case 1:20-cr-00830 Document 312 Filed 07/09/21 Page 2 of 3 We respectfully request that Your Honor vacate the order of January 15, 2021, and allow the institution to resume the prior schedule of laptop access, Monday through Friday, 7:00 AM - 8:00 PM. Respectfully submitted, /s/ Sophia Papapetru Sophia Papapetru Staff Attorney MDC Brooklyn Federal Bureau of Prisons DOJ-OGR-00001354 --- PAGE BREAK --- to the laptop, the Government generally defers to the judgment of the MDC in managing inmates at its facility, and sees no reason to depart from that practice here. In this respect, the Government notes that the trial date remains approximately six months away, the BOP was already affording the defendant access to the laptop for some 65 hours a week, and the BOP was further providing weekend access to a desktop computer should the defendant wish to spend more than 65 hours each week reviewing discovery. Respectfully submitted, AUDREY STRAUSS United States Attorney By: s/ Maurene Comey / Alison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Tel: (212) 637-2324 Cc: All Counsel of Record (By ECF) --- PAGE BREAK --- Case#: 20-cr-00830-AKH:Adjud Beecument 2,582 Filed07/27/23 Page22of 2 Page 2 before being provided to the inmate recipient. Due to the large number of MDC inmates and the volume of mail received at the MDC, this process can take multiple days. As noted above, however, the defendant is able to send and receive emails with defense counsel every day and has regular communication with counsel via VTC. MDC staff conduct two pat-down searches of the defendant per day: once when she is moved from her isolation cell to the day room each morning, and once when returns from the day room to her isolation cell each night. As part of those searches, the defendant is required to remove her mask and open her mouth briefly so that MDC staff, who remain masked during the searches, can confirm she has not hidden contraband in her mouth. These pat-down and mouth searches are consistent with MDC's policy that all inmates be searched whenever they move to a different location within the jail facility. Previously, the defendant attended VTC conferences in a separate part of the MDC, requiring that she be searched when taken to and from her VTC calls with counsel. Recently, however, the MDC changed the location of the defendant's VTC calls so that the defendant does not need to leave her unit in order to attend VTC calls with her counsel, thereby reducing the number of searches. During the suspension of visitation, the defendant has not been strip searched. When visitation resumes, the defendant, like all other inmates, will be strip searched after any in-person visit. In addition, MDC staff search the defendant's cell for contraband once per day. MDC staff also conduct a body scan on the defendant once per week to check for any secreted contraband. At night, MDC staff are required to confirm that the defendant is not in distress every fifteen minutes. To do so, staff point a flashlight to the ceiling of the defendant's cell to illuminate the cell sufficiently to confirm that the defendant is breathing every fifteen minutes. The MDC continues to assess that these searches are all necessary for the safety of the institution and the defendant. Should the Court have any questions or require any additional details regarding this topic, the Government will promptly provide additional information. Respectfully submitted, AUDREY STRAUSS United States Attorney By: Maurene Comey / Alison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Tel: (212) 637-2324 Cc: All Counsel of Record (By ECF) DOJ-OGR-00001358 --- PAGE BREAK --- takes place in a day room that is separate from the defendant's isolation cell. Accordingly, the defendant is permitted out of her cell from 7am to 8pm every day. While in the day room, the defendant has exclusive access to the MDC desktop computer, the laptop, a television, a phone on which to place social or attorney calls, and a shower. The defendant is also permitted outdoor recreation every day, although she has the option of declining such recreation time if she wishes. The defendant also has as much, if not more, time as any other MDC inmate to communicate with her attorneys. Currently, the defendant receives five hours of video-teleconference ("VTC") calls with her counsel every weekday, for a total of 25 hours of attorney VTC calls per week. At times, unexpected incidents, such as institution-wide lockdowns or short staffing, delay the defendant's arrival to her VTC call with counsel by up to 30 minutes. When such delay occurs, however, the MDC permits the defendant to make up for any missed time either by extending that day's VTC call or by permitting the defendant extra time on the next day's VTC call. All of these VTC calls take place in a room where the defendant is alone and where no MDC staff can hear her communications with counsel. During these VTC calls, MDC staff place a camera approximately 30 feet away from the door to the room where the defendant conducts the VTC calls. The camera has a full view of the door to the VTC room, but the camera cannot view either the defendant or her attorneys while the door is closed during VTC calls. The camera does not capture any sound from the defendant's VTC calls with her attorneys. In other words, the camera records who enters and exits the VTC room, but it does not record activity inside the VTC room. The defendant is also permitted to use the phone in the day room to place phone calls to her attorneys as needed. In addition, defense counsel now have the option of meeting with the defendant in person at the MDC. On or about February 16, 2021, the MDC resumed in-person visitation. As a result, DOJ-OGR-00001360 --- PAGE BREAK --- Case#: 20-cr-00830-Adjlnt D0cument 27202 Filed05/05/21 Page12of 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 May 5, 2021 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter in response to the Court's Order dated April 29, 2021, which directed the Government to confer with legal counsel at the Metropolitan Detention Center ("MDC") regarding the use of flashlights in security checks at MDC. (Dkt. No. 257). The Government has conferred with legal counsel at MDC in accordance with the Court's Order, and legal counsel provided the information set forth herein. MDC staff conduct flashlight checks at night as a matter of course throughout the facility for the safety and security of the inmates at the institution. During these flashlight checks, MDC staff point a flashlight at the ceiling of each cell to illuminate the cell sufficiently to confirm that the inmate is present in the cell, breathing, and not in distress. MDC staff conduct flashlight checks every 30 minutes for inmates housed in the Special Housing Unit (the "SHU") and conduct flashlight checks of inmates in the general population multiple times each night at irregular intervals, but at an average of at least once per hour. With respect to the defendant, MDC staff conduct flashlight checks every fifteen minutes because the defendant, while not on suicide watch, is on an enhanced security schedule. That is DOJ-OGR-00001435 --- PAGE BREAK --- because MDC has identified a number of factors that raise heightened safety and security concerns with respect to this defendant, including: (1) the nature of the charges, (2) the potential stress for inmates that can arise in high-profile cases, and (3) the need to ensure the defendant's safety while she is incarcerated in a cell by herself—a housing determination made by MDC staff based on various factors, including the defendant's expressed concern for her safety if she were to be housed in the general population.1 As to the Court's question whether the defendant can be provided with "appropriate eye covering," MDC legal counsel has informed the Government that the defendant cannot be provided with an eye mask. Eye masks are not available for purchase in commissary and are not issued to inmates and, therefore, are considered contraband. The defendant is permitted, however, to use non-contraband items to cover her eyes at night. Should the Court have any questions or require any additional details regarding this topic, the Government will promptly confer with legal counsel at MDC and provide additional information. 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: Defense Counsel (By ECF) 1 The MDC has determined the defendant's current housing assignment based, in part, on her concerns about being housed in the general population and as an alternative to her being housed in the SHU. By contrast, in the SHU, most inmates have a cellmate which provides an additional check should something go wrong or should an inmate need medical attention in the middle of the night. DOJ-OGR-00001436 --- PAGE BREAK --- in-person attorney visits are now available seven days per week. The MDC has placed HEPA air filters in its attorney visiting rooms to improve air quality during visits. Additionally, the defendant has received the COVID-19 vaccine and is now fully vaccinated. The Government understands that defense counsel have thus far declined to meet with the defendant in person and instead rely on VTC calls, email, and supplemental phone calls to communicate with their client. The option of in-person visits remains available seven days per week should defense counsel wish to meet with the defendant in person. The defendant's legal mail is processed in the same manner as mail for all other inmates at the MDC. All inmate mail is sent to the MDC's mail room, where every piece of mail is processed before being provided to the inmate recipient. Due to the large number of MDC inmates and the volume of mail received at the MDC, this process can take multiple days. As noted above, however, the defendant is able to send and receive emails with defense counsel every day and has regular communication with counsel via VTC, which can be supplemented by phone calls. Like any other inmate, the defendant is patted down by MDC staff whenever she is moved to a different part of the facility. Typically, these searches include at least two pat-down searches of the defendant per day: once when she is moved from her isolation cell to the day room each morning, and once when returns from the day room to her isolation cell each night. In addition, when the defendant elects to attend outdoor recreation, she is searched two additional times: once when she is moved to the recreation area, and once when she returns to the day room from the recreation area. MDC staff also conduct a body scan, which is a non-invasive machine scan, on the defendant once per week to check for any secreted contraband. Because those scans take place in a different part of the facility than the day room, the defendant is patted down two additional times when these weekly scans occur: once when she is moved to the scan area, and once when DOJ-OGR-00001361 --- PAGE BREAK --- Case1:20-cr-00830-AJN Document 272-2 Filed 05/07/21 Page 3 of 3 LAW OFFICES OF BOBBI C. STERNHEIM In the face of the Epstein's death on the BOP's watch, the MDC would not risk a repeat of the debacle that occurred in the MCC. There can be no doubt that the MDC was following directives from Attorney General William Barr and the Director of the BOP in determining that Ms. Maxwell should not be placed in general population, not Ms. Maxwell. Regardless, the MDC would never risk security to Ms. Maxwell or the institution by placing her in general population, knowing the difficulties it would face in protecting Ms. Maxwell from assault and extortion by other inmates given that they do not protect her from physical abuse by guards. But that decision does not justify the degree to which the MDC overmanages Ms. Maxwell's detention and its detrimental effect on her health, well-being, and ability to prepare for trial. We have repeatedly expressed our concern for Ms. Maxwell's health and the impact her conditions of confinement are having on her health and well-being, her ability to prepare for trial, and the overall impact the severe conditions will have on her stamina to withstand trial, which we moved to the fall. With each passing day, it becomes increasingly more obvious that Ms. Maxwell's extreme conditions of detention will not be improved and health deteriorate commensurate with the unprecedented conditions of confinement unparalleled in the MDC. Very truly yours, Bobbi C. Sternheim BOBBI C. STERNHEIM cc: Counsel for all parties 3 DOJ-OGR-00001440 --- PAGE BREAK --- Case No.: 20-cr-00830 Page 5 legal counsel informed the Government that the defendant's meals arrive in containers that are both microwavable and oven safe. Currently, the defendant's meals are heated in a thermal oven. The tap water available in the MDC is provided by New York City. As a result, on occasions when the City has conducted maintenance near the MDC, the water has been temporarily shut off. During those periods, MDC staff have provided all inmates, including the defendant, with bottled water. After the water is turned back on, the water is sometimes cloudy or brown and needs to run for several seconds before becoming clear. MDC staff have not observed any instance in which the water in the defendant's cell did not clear after being run for several seconds. MDC legal counsel emphasized that MDC staff, including the legal staff, drink the same tap water from the same water system as the defendant while in the institution. MDC medical staff monitor the defendant daily and weigh the defendant at least once per week. During her time at the MDC, the defendant's weight has fluctuated between the 130s and the 140s. The defendant's lowest observed weight was 133 pounds in July of 2021. Since then, her weight has fluctuated but has never been lower than 134 pounds. Most recently, when the defendant was weighed last week, her weight was 137.5 pounds. The defendant is 5' 7", meaning that even her lowest weight of 133 pounds resulted in a BMI of 20.8, which is considered a normal weight for a person of the defendant's height. MDC staff have not observed the defendant experience any noticeable hair loss. As noted above, the defendant has received a COVID-19 vaccine and is now fully vaccinated. In short, MDC medical staff assess that the defendant is physically healthy. DOJ-OGR-00001363 --- PAGE BREAK --- Casase:20-cr/00830-AJN Document 611002 Filed 03/23/20 Page 9 of 36 the Court concluded that electronic monitoring and home security guards "would be insufficient" because the defendant could remove the monitor and evade security guards. (Tr. 87-88). Finally, the Court rejected the defense's arguments about the risks of COVID-19 and the difficulty of preparing a defense with an incarcerated client. In so doing, the Court noted that the defendant has no underlying conditions that place her at heightened risk of complications from COVID-19 and emphasized that the defendant had many months to prepare for trial. (Tr. 89-90). Viewing all of these factors together, the Court ordered the defendant detained pending trial. (Tr. 91). APPLICABLE LAW Under the Bail Reform Act, 18 U.S.C. §§ 3141 et seq., federal courts are empowered to order a defendant detained pending trial upon a determination that the defendant poses a risk of flight. 18 U.S.C. § 3142(e). When seeking detention on this ground, "[t]he Government bears the burden of proving by a preponderance of the evidence both that the defendant 'presents an actual risk of flight' and that 'no condition or combination of conditions could be imposed on the defendant that would reasonably assure his presence in court.'" United States v. Boustani, 932 F.3d 79, 81 (2d Cir. 2019) (quoting United States v. Sabhani, 493 F.3d 63, 75 (2d Cir. 2007)). The Bail Reform Act lists three factors to be considered in the detention analysis when the Government seeks detention based on flight risk: (1) the nature and circumstances of the crimes charged; (2) the weight of the evidence against the person; and (3) the history and characteristics of the defendant, including the person's "character . . . [and] financial resources." See 18 U.S.C. § 3142(g). If a judicial officer concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required . . . such judicial officer shall order the detention of the person before trial." 18 U.S.C § 3142(e)(1). 6 DOJ-OGR-00001151 --- PAGE BREAK --- 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. D 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). --- PAGE BREAK --- Case#: 20-cr-00830 Conclusion The Court should grant bail for Ms. Maxwell on the extraordinary conditions proposed. Should the Court determine that additional conditions are necessary, Ms. Maxwell is willing to satisfy and abide by those terms as well. Dated: March 16, 2021 Respectfully submitted: Bobbi C. Sternheim Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600 Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 Attorneys for Ghislaine Maxwell Maxwell's guards and a hand-held camera focused on both Ms. Maxwell and counsel. Further, confidential attorney-client communications conducted during video teleconferencing (VTC) are now further compromised by the repositioning of a camera with sensitive audio recording, putting a chill on privileged communication. During VTC conferences, counsel can hear conversation among the guards, so it is likely that the guards, who seem to be writing during those sessions, are able to hear discussions between Ms. Maxwell and counsel. Last night, prior to the filing of defense replies to Ms. Maxwell's pretrial motions, the MDC refused her request to speak with her lawyers to provide information bearing on those filings. Such denial violates the BOP's Program Statement pertaining to providing legal calls upon request of pretrial inmates. See https://www.bop.gov/policy/progstat/7331_004.pdf at par. 24(c). The chronic difficulties related to Ms. Maxwell's review of the millions of documents of electronic discovery are continuing to negatively impact her ability to prepare for a trial that is only a few months away. 10 DOJ-OGR-00001265