Document 20-cr-0330

Case 1:20-cr-0330-AJN Document 117 Filed 03/23/21 Page 2 of 8 Preliminary Statement The issue before the Court, as it has been since Ms. Maxwell's first bail application, is whether conditions exist that can reasonably assure Ms. Maxwell's appearance at trial. On her third application (the "Third Bail Motion") (Dkt.160), Ms. Maxwell has put before the Court significant enhancements to the already extraordinary bail package previously presented to the Court in her renewed application for bail (the "Second Bail Motion") (Dkt. 97).1 Together, these two motions present a unique and comprehensive bail package with the strictest of conditions known in any bail application: - $28.5 million in bonds (including a $1M bond co-signed by a security company); - $9.5 million in real property; - $550,000 in cash; - Asset Monitoring by a retired federal district court judge; - Renunciation of British and French citizenship; - Irrevocable written waivers of the right to contest extradition; - Surrender of all travel documents; - Home confinement in New York City; - Electronic GPS monitoring; - In-residence third-party custodian;2 1 Ms. Maxwell's present motion (the "Third Bail Motion") (Dkt.160) incorporates her Memorandum in Support of Her Renewed Motion for Bail and accompanying exhibits (Dkt. 97, including Attachments 1-24) and her Reply Memorandum in Support of Her Renewed Motion for Bail (Dkt. 103, including Attachments 1-2) (collectively, the "Second Bail Motion"). 2 To assist Ms. Maxwell in making up for lost time preparing for her upcoming trial, one of her lawyers (not trial counsel) has agreed to reside with her and serve as an additional residential custodian. 1 DOJ-OGR-00001256 --- PAGE BREAK --- Case 1:20-cr-0330-AJN Document 11892 Filed 03/22/21 Page 3 of 12 escape; and that the Defendant's lack of candor regarding her family ties and financial situations raised serious doubts as to her willingness to comply with any conditions imposed by the Court. See Dkt. No. 106. On February 23, 2021, the Defendant filed a third motion for release on bail. Dkt. No. 160 ("Def. Mot."). The Government opposed the Defendant's motion on March 9, 2021. Dkt. No. 165 ("Gov't Opp'n"). The Defendant filed her reply under temporary seal on March 16, 2021. II. Legal Standard The parties dispute whether the divestiture of jurisdiction rule precludes this Court from granting the Defendant's third bail motion while Defendant's bail appeal is pending. See Gov't Opp'n at 2–3; Reply at 2–3; see also United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) ("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.'") (citation omitted). Under Rule 37(a) of the Federal Rules of Criminal Procedure, however, the Court unquestionably has authority to defer considering the motion, deny the motion, or state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed. R. Crim. P. 37(a). Because the Court denies the Defendant's motion, it does not resolve the question of whether it would have jurisdiction to grant it. Pretrial detainees have a right to bail under the Eighth Amendment to the United States Constitution and under the Bail Reform Act, 18 U.S.C. § 3141, et seq. The Bail Reform Act requires that a court release a defendant "subject to the least restrictive further condition, or combination of conditions, that [it] determines will reasonably assure the appearance of the 3 DOJ-OGR-00001276 --- PAGE BREAK --- The language of the extradition treaty between the United States and France and the applicable French statues are clear that anyone seeking to contest extradition on the basis of French citizenship must be a French national at the time of the extradition request. (Id. ¶ 11). The provisions on which the government relies were not intended to apply in cases where the person whose extradition is sought had lost French citizenship. To the contrary, it was designed to apply to individuals who had acquired French citizenship subsequent to the commission of the alleged crime “in order to avoid fraudulent nationality applications of offenders seeking to escape extradition.” (Id. ¶¶ 15-16). If the person is no longer a French national at the time of the request, the provision does not apply. The government cites no case where the relevant statute was applied to protect a formerly French national from extradition, and we have found none ourselves. (Id. ¶¶ 19-21). By contrast, there are numerous examples of French courts deporting individuals who have lost French nationality following the commission of an offense. (Id. ¶ 21). Accordingly, Mr. Julié concludes: “[I]t cannot have been the intention of French lawmakers that Article 696-4 be construed as meaning that a person who has lost French nationality would still be entitled to be protected from extradition.” (Id. ¶ 26). Ms. Maxwell’s agreement to give up both British and French citizenship and waive any and all right to contest extradition is a formidable challenge to the assertion that Ms. Maxwell would likely flee if released from custody and goes above and beyond the “reasonable assurances” that the Bail Reform Act requires to grant bail. While we maintain that Ms. Maxwell’s written waivers of the right to challenge extradition should suffice, her willingness to forfeit citizenship birthrights exceeds what is necessary and profoundly demonstrates her commitment to abide by conditions of release and appear at trial. 4 DOJ-OGR-00001259 --- PAGE BREAK --- Case 1:20-cr-0330-AJN Document 1182 Filed 03/22/21 Page 6 of 12 Court's view has not changed. The Court again concludes that the Government has shown by a preponderance of the evidence that the Defendant presents a risk of flight and that there are no set of conditions, including the Defendant's third set of proposed conditions, that are sufficient to reasonably assure her appearance. The presumption in favor of detention, the weight of the evidence, and the history and characteristics of the Defendant all continue to support that conclusion. The Defendant's proposed conditions do not alter the Court's determination. A. The Court's assessment of the 18 U.S.C. § 3142(g) factors has not changed To begin with, the presumption in favor of detention continues to apply with equal force. See Dkt. No. 106 (“Dec. Op.”) at 7-8. And though the Court again concludes that the Defendant has met her burden of production, the presumption “remains a factor to be considered among those weighed by the district court.” Mercedes, 254 F.3d at 436 (quoting Martir, 782 F.2d at 1144). The Court is mindful “that Congress has found that these offenders pose special risks of flight, and that ‘a strong probability arises’ that no form of conditional release will be adequate to secure their appearance.” Martir, 782 F.2d at 1144 (citation omitted). The Court's analysis of the 18 U.S.C. § 3142(g) factors also remains unchanged. Because the nature and circumstances of the offenses charged include crimes involving a minor victim, the first 18 U.S.C. § 3142(g) factor continues to weigh strongly in favor of detention. And the Court remains of the opinion that the Defendant does not pose a danger to any person or to the community. The fourth § 3142(g) factor thus weighs against detention. With respect to the second § 3142(g) factor, none of the Defendant's new arguments alter the Court's conclusion as to the weight of the evidence. The Defendant argues that the pre-trial motions “raise serious legal issues that could result in dismissal of charges, if not the entire indictment,” and she contends that “[t]hese motions cast substantial doubt on the alleged strength 6 DOJ-OGR-00001279 --- PAGE BREAK --- Case1:20-cr-0330-AJN Document 211-1 Filed 08/20/21 Page 7 of 9 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-00001239 --- PAGE BREAK --- of the government's case and warrant granting bail on the conditions proposed." Def. Mot. at 7. Those motions became fully briefed one week ago and are now pending before this Court. The Government strenuously contests each of the motions and the Court has not yet adjudicated them. Without prejudging the merits of any of those pending motions and mindful of the presumption of innocence, the Court remains of the view that in light of the proffered strength and nature of the Government's case, the weight of the evidence supports detention. See Dec. Op. at 9-10. The Court's assessment of the Defendant's history and characteristics has not changed. See Dec. Op. at 10-16. The Defendant continues to have substantial international ties, familial and personal connections abroad, substantial financial resources, and experience evading detection. Id. at 10-11. And the Court's concerns regarding the Defendant's lack of candor regarding her assets when she was first arrested have also stayed the same. As the Court emphasized in its denial of the second motion for release on bail, the discrepancies between the information presented to the Court and to Pretrial Services in July 2020 and the information presented to the Court in December 2020 raised significant concerns about candor. See Dec. Op. at 16. There remains considerable doubt as to the Defendant's willingness to abide by any set of conditions of release. Id. While there continue to be certain mitigating circumstances cutting in the opposite direction, including the Defendant's family ties in the United States, these do not overcome the weight of the considerations that lean in favor of continued detention. As a result, none of the evidence or arguments presented in this third motion for bail alter the Court's assessment of the 18 U.S.C. § 3142(g) factors. While the fourth factor continues to favor release, the first three factors and the presumption of detention all support the conclusion 7 DOJ-OGR-00001280 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 211 Filed 02/21/21 Page 8 of 9 assure her appearance as required. Before preventive detention may be ordered under § 3142(e), the Court is obliged to determine both whether the defendant is likely to flee the jurisdiction if released, and whether any conditions of release will be reasonably certain to guard against this propensity to flee. The Court expressed concerns and denied bail without indicating what conditions would be reasonably certain to assure Ms. Maxwell's appearance. Ms. Maxwell is no danger to the community and not alleged to have been involved in ongoing criminal activity. To say that there are absolutely no conditions flies in the face of cases where non-United States citizens with no ties to the district, let alone the country, were released on lesser conditions for alleged criminality ongoing up to or within hours of the time of arrest, in contrast to 26-year-old claims alleged against Ms. Maxwell.2 The additional conditions set forth above, which supplement the exceptional bail package previously proposed, are sufficient to address the hypothetical risk of flight and secure Ms. Maxwell's presence at trial. The financial magnitude of the proposed bonds, the collateral pledged to secure the bonds, the stringent requirements of home detention, the renunciation of foreign citizenship and monitoring of assets contained in a special account from which no funds can be withdrawn without the approval and signature of a retired federal District Court judge and former United States Attorney are conditions that amply satisfy the concerns expressed by the government and the Court. These conditions are unique and unprecedented. They profoundly 2 See Dkt. 97 at 34 (case-comparison chart in the Renewed Motion for Bail); cf. People v. Dominique Strauss-Kahn, 02526/2011(S.Ct. N.Y. County). Strauss-Kahn, a French citizen with no ties to the United States, was arrested on a Paris-bound flight at JFK minutes before takeoff and later charged with several counts of sexual assault, including felony charges punishable up to 25 years imprisonment, for sexual assault and attempted rape of a Manhattan hotel housekeeper on the day of his arrest. The accusations were corroborated by semen containing Strauss-Kahn's DNA on the accuser's uniform. The New York State Supreme Court granted bail in the amount of $1 million cash, 24-hour home detention electronic monitoring ankle bracelet, and private 24/7 security guards. After surrendering his French passport and posting an additional $5 million bail bond, Strauss-Kahn was placed under house arrest in a residence in Manhattan. See https://www.theguardian.com/world/2011/may/20/dominique-strauss-kahn-new-york-apartment. 8 DOJ-OGR-00001240 --- PAGE BREAK --- Case 1:20-cr-0330-AJN Document 11702 Filed 08/23/21 Page 8 of 18 prosecution. The ongoing review of discovery confirms the lack of evidence in support of the stale allegations in the indictment. Further, the government's concessions reveal that it failed to properly investigate the allegations of at least one of its three core witnesses. The passage of time continues to reveal information and lack of evidence that undermine the purported strength of the government's case. Bail Must Be Granted The detention of Ms. Maxwell on 25-year-old allegations - based on the lowest grade misdemeanor under New York Penal Law 130.55 6 - presented in a sensationalized indictment containing pictures to inflame the public and entice and feed the media frenzy 7 - is unwarranted in the face of the unique bail package before the Court. Relentless media coverage of Ms. Maxwell, which preceded and impacted the bringing of this prosecution, has increased significantly since her arrest and detention. Ms. Maxwell's continued detention - providing daily fodder for media for the past nine months-continues to severely undermine her presumption of innocence. In the face of this enhanced bail package, the government's claim that Ms. Maxwell poses "an extreme risk of flight" rings hollow. The government urges the Court to apply a standard that defies the law - an absolute guarantee against all risks. See United States v. Orta, 760, F.2d 887, 888 n.4 (8th Cir. 1985)("The legal standard required by the [Bail Reform] Act is one of reasonable assurances, not absolute guarantees."). Under the Bail 6 Counts Two and Four allege violations of New York Penal Law § 130.55 - sexual abuse in the third degree - a class B misdemeanor punishable by maximum penalties of three months in jail or one year probation. 7 What other purpose could be served by the inclusion of a picture of Ms. Maxwell and Jeffrey Epstein taken over a dozen years after the period of the conspiracy alleged and pictures of three high-value residences? 8 DOJ-OGR-00001263 --- PAGE BREAK --- that the Defendant poses a significant risk of flight. Thus, the Court again concludes that there are no conditions of release that will reasonably assure her appearance in future proceedings. B. Pretrial detention continues to be warranted The thrust of the Defendant's argument in her third motion for bail is that the two new proposed conditions vitiate the Court's concerns regarding the risk of flight. The Defendant first offers to renounce her French and British citizenship. Def. Mot. at 2. And she also proposes to have most of her and her spouse's assets placed in a new account that will be monitored by a retired federal judge, who would function as an asset monitor and will have co-signing authority over the account. Id. Those conditions are offered in addition to the bail package she proposed in December. See Dec. Op. at 16-17; see also Def. Mot. at 2. The new bail package does not disturb the Court's conclusion that the Government has carried its burden of showing that these conditions are insufficient to mitigate the flight risks, and the Court again determines that no set of conditions—including the two new ones—can reasonably assure her future appearance. The Court begins with the Defendant's offer to renounce her French and United Kingdom citizenship. She notes that she can renounce her UK citizenship "immediately upon granting of bail," and she informs the Court that "[t]he process of renouncing her French citizenship, while not immediate, may be expedited." Def. Mot. at 4. As the Government notes, the offer is of unclear validity, and the relevance and practical impact of the renunciations is, at best, unclear. See Gov't Opp'n at 5. With respect to her offer to renounce her French citizenship, the Court is again confronted with dueling opinions on the correct interpretation of French law. The Government relies on the position of the head of the International Criminal Assistance Bureau of the French Ministry of Justice, who argues that "the fact that the wanted individual is a French national constitutes an insuperable obstacle to his/her removal," and that "[a]s long as said --- PAGE BREAK --- who are already suffering without her presence, and she would cause financial ruin to herself and her closest family and friends. 1. Ms. Maxwell is Devoted to Her Spouse and Would Never Destroy Her Family By Leaving the Country The letter submitted by Ms. Maxwell's spouse powerfully demonstrates that Ms. Maxwell has deep roots in the United States and is not a flight risk. The letter describes Ms. Maxwell's domestic life with her spouse in the four years prior to her arrest. Her spouse describes Ms. Maxwell as a "wonderful and loving person," who does not remotely resemble the person depicted in the indictment. (Ex. A ¶ 4). Contrary to the government's assertion that Ms. Maxwell lived a rootless, "transient" lifestyle (Dkt. 4 at 9), Ms. Maxwell lived a quiet family life with her spouse until Epstein's arrest in July 2019 ignited a media frenzy that has ripped the family apart. The person described in the criminal charges is not the person we know. I have never witnessed anything close to inappropriate with Ghislaine; quite to the contrary, the Ghislaine I know is a wonderful and loving person. Until the explosion of media interest that followed the arrest and subsequent death in custody of Jeffrey Epstein in July thru August 2019. (Id. ¶¶ 4-5). The letters from Ms. Maxwell's family members similarly describe how Ms. Maxwell's home is in the United States with her spouse and how deeply committed she is to her family. See Ex. D --- PAGE BREAK --- It is very obvious that they love her deeply. They are an incredibly strong and close family unit."); Ex. F ("I joined a large family event hosted by Ghislaine and her husband in which she was very hospitable and obviously very much at home and in love."); Ex. C ("[Ghislaine] has called the United States her home for almost 30 years. She has deep affective family ties here in this country Most of all, her own husband are here."); Ex. B ("I wish ... to attest to the loving relationship she has with her husband which I have personally witnessed on many different occasions."). Indeed, it was because of Ms. Maxwell's devotion to her family, and her desire to protect her spouse from harassment and threats, that she went forward at the first bail hearing without relying on her spouse as a co-signer, even though she knew his support would greatly strengthen her bail application. As her spouse writes: I did not initially come forward as a co-signer of her first bail application ... [because we were] trying to protect from ferocious media aggression.... (Ex. A ¶ 13). Her spouse is coming forward now because he is deeply concerned about how she is being treated in the MDC and because the terrible consequences that he and Ms. Maxwell were trying to prevent have already occurred. (Id. ¶¶ 10-11). Ms. Maxwell's spouse fully supports her and is prepared to put up all of his and Ms. Maxwell's assets to ensure that Ms. Maxwell abides by the strict conditions proposed. He 12 DOJ-OGR-00001114