Document 2017-003

reconsideration" by, for example, demonstrating "that the court overlooked information or incorrectly applied the law," or that failure to reconsider "would constitute manifest injustice." Petrov, 2015 WL 1102286 at *3. DISCUSSION Having already raised numerous arguments in its briefing and oral argument at the initial bail hearing in this case, the defense now asks this Court to reverse itself based on virtually the same arguments it already rejected. The Renewed Bail Application largely reiterates the same claims regarding the defendant's ties to the United States and her behavior after Epstein's arrest that the Court already found unpersuasive. To the extent the Renewed Bail Application presents new information, it consists primarily of financial data that was certainly known to the defendant at the time of her initial bail application and that the Court already assumed could be made available (and thus rejected as immaterial) when ordering detention. Ultimately, nothing in the Renewed Bail Application alters the analysis that led this Court to conclude that the defendant "poses a substantial actual risk of flight," and that no combination of conditions could assure her appearance. (Tr. 86). All three of the relevant Bail Reform Act factors still weigh heavily in favor of detention, and the defense claims to the contrary do not warrant a revisiting of this Court's well-reasoned and thorough prior decision. A. The Nature and Circumstances of the Offense The first Bail Reform Act factor indisputably weighs in favor of detention in this case. The egregious conduct charged in the Indictment gives rise to a statutory presumption of detention, and the Renewed Bail Motion makes no effort to challenge this Court's prior conclusion that the nature and circumstances of the offense support detention. The charges in the Indictment describe horrendous conduct involving the sexual abuse of multiple minor victims. If convicted, the --- PAGE BREAK --- COVID-19 related travel restrictions. Id. at 83:21 83:25. The Court also observed that the Defendant had family and personal connections to the United States but concluded that the absence of any dependents, significant family ties, or employment in the United States also supported the conclusion that flight would not pose an insurmountable burden for her. Id. at 84:4 84:9. While the Defendant's renewed motion for bail addresses some of these factors, it does not alter the Court's conclusion. The first few considerations remain relatively unchanged. The Defendant continues to have substantial international ties and multiple foreign citizenships, and she continues to have familial and personal connections abroad. None of the evidence presented in support of the present motion fundamentally alters those conclusions. To address the Court's concern that the Defendant's French citizenship presented the opportunity that she could flee to France and that she would be able to resist extradition on that basis, see Tr. at 83:18-83:20, the Defendant now offers to waive her right to extradition from both the United Kingdom and France, along with expert opinions reports claiming that such waivers would likely make it possible to resist an extradition request from the United States to either country. See Def. Mot., Exs. T, U, V. As the Government points out in its brief, however, the legal weight of the waivers is, at best, contested. The French Ministry of Justice, for instance, indicated in a letter submitted in conjunction to the Government's opposition that the French Code of Criminal Procedure "absolutely prohibits" the extradition of a French national. See Gov't Opp'n, Ex. B. And while the Defendant's own expert attempts to rebut the Ministry of Justice's letter, see Def. Reply, Ex. A, even the Defendant's own experts use probabilistic, rather than absolute, language, leaving open the possibility that extradition would be blocked. See, e.g., Def. Mot., Ex. U at 2 ("On the basis of the information currently known, it is highly unlikely that Ghislaine Maxwell would be able --- PAGE BREAK --- French law, is simply incorrect. Accordingly, the defendant's foreign ties, wealth, and skill at avoiding detection continue to weigh in favor of detention. First, there can be no serious dispute that the defendant has foreign ties. She is a citizen of three countries and holds three passports. As was already noted at the original hearing and is again evidenced in the Renewed Bail Application, the defendant has close relatives and friends who live abroad, as well as a multi-million dollar foreign property and at least one foreign bank account. (Tr. 83). In an attempt to minimize the defendant's foreign ties, the defense emphasizes the defendant's relatives and friends in the United States, history of residence in the United States, and United States citizenship. But the Court was already aware of those factors when making its original detention decision. (See Tr. 84; Dkt. 18 at 2, 12). The letters and documentation included in the Renewed Bail Motion simply prove points that were not in dispute. What that documentation does not do, however, is suggest that the defendant has the kind of ties to this country that come with any employment in the United States or any dependents living here. Indeed, as noted in the Pretrial Services Report, the defendant stated in July that she has no children and has no current employment. (Pretrial Services Report at 3). The Renewed Bail Motion fails to establish sufficiently strong ties to the United States that would prevent her from fleeing. Although the defendant now claims her marriage would keep her in the United States, her motion does not address the plainly inconsistent statements she made to Pretrial Services at the time of her arrest, when, as documented in the Pretrial Services Report, the defendant said she was "in the process of divorcing her husband." (Id.). On this point, it bears noting that the defendant's motion asks that she be permitted to live with if granted bail, not her spouse. Moreover, the fact that the defendant's spouse has only now come forward to support the defendant should be afforded little weight given that he refused to come forward at the --- PAGE BREAK --- and secured by approximately $8 million in property and $500,000 in cash, along with six additional bonds—five co-signed by the Defendant’s friends and family members and the sixth posted by the security company that would provide security services to the Defendant if she were granted bail and transferred to home confinement. See Def. Mot. at 2. At the initial hearing, the Court noted that the opaqueness of the Defendant’s finances rendered it difficult to set financial bail conditions that could reasonably assure her appearance in court. The financial information that the Defendant presented to the Court at the initial bail hearing was undisputedly incomplete, and as the Court noted, the Court lacked “a clear picture of Ms. Maxwell’s finances and the resources available to her.” Tr. at 86 87. The Defendant has now presented to the Court what is perhaps a more thorough report on her finances prepared by Macalvins, an accounting firm in the United Kingdom. Macalvins analyzed the Defendant’s assets and finances for the past five years, basing its analysis on, among other things, bank statements, tax returns, and FBAR filings, providing a summary of the assets held by the Defendant and her spouse as well as the assets held in trust for the benefit of the Defendant for the period stemming from 2015 to 2020. See Def. Mot., Ex. O. In addition, the Defendant retained a Certified Fraud Examiner and a former IRS Special Agent, who reviewed the Macalvins report and the underlying documents and determined that report accurately represents the assets held by the Defendant and her spouse. See Def. Mot., Ex. P. The Defendant’s new bail proposal is based on the numbers derived from the Macalvins report. But even assuming that the financial report provides an accurate analysis of the Defendant’s finances, the Court is unpersuaded by her argument that the bail package reasonably assures her appearance. As the Government argues, the bail package would leave unrestrained --- PAGE BREAK --- millions of dollars and other assets that she could sell in order to support herself. See Gov't Opp'n at 23. Furthermore, the proposed bond is only partially secured. Taking into account the vast amounts of wealth left relatively unrestrained by the bail package, that amount, standing alone, cannot reasonably assure that she would appear before the Court. Nor is the Court's conclusion altered by the fact that a number of third parties have pledged to support her bond; the amount of wealth that she would retain were she to flee, in addition to contingent assets and future income streams that are not accounted for in the bail package, would plausibly enable her to compensate them, in part or in full, for their losses. And while the Defendant argues that she has procured "significant loans on the basis of a negative pledge" over a property and that $4 million is invested in an "illiquid hedge fund that could only be liquidated with considerable difficulty," see Def. Reply at 6, these arguments do not alter the Court's ultimate conclusion that the financial package does not meaningfully mitigate the possibility of flight. The proposed conditions also provide that the Defendant would be released to the custody of a family member, who would serve as the Defendant's third-party custodian under 18 U.S.C. § 3142(c)(1)(B)(i); that the Defendant would be placed in home confinement with GPS monitoring and that her travel would be restricted to the Southern and Eastern Districts of New York and would be limited to appearances in Court, meetings with counsel, medical visits, and upon approval by the Court or Pretrial Services; that she would be under the strict supervision of Pretrial Services; and that she would surrender all travel documents. Id. at 2–3. Furthermore, the Defendant would have on-premises security guards who would prevent her from leaving the residence at any time without prior approval by the Court or Pretrial Services and who would escort her when she is authorized to leave. Id. at 3. 18 DOJ-OGR-00001227 --- PAGE BREAK --- to other countries outside of the European Union, including the United States. As set forth in Exhibit B, according to the MOJ, the French Code of Criminal Procedure "absolutely prohibits the extradition of a person who had French nationality at the time of the commission of the acts for which extradition is requested." (Ex. B at 3). That the defendant is a citizen of multiple countries is of no moment. (See id.). In applying the Bilateral Extradition Treaty between the United States and France and the "general principle of non-extradition of nationals under French law, France systematically refuses to grant the extradition of French nationals to the American judicial authorities." (Id. at 4). Thus, contrary to the suggestion of the defense submission, any anticipatory waiver of extradition would not be effective under French law, and would not be recognizable by French courts in any extradition process, or otherwise enforceable. The defendant's expert writes that "[i]n the recent past," he is "not aware that the French authorities would have had to address the situation in which the United States sought extradition of a French citizen who was also a United States citizen. Thus, there is no precedent to draw from in that regard." (Def. Ex. V. at 2). That is not so. France has previously rejected such a request. For example, in 2006, Hans Peterson, an American citizen and French national, turned himself in to French authorities in Guadeloupe and confessed to committing a murder in the United States. Despite turning himself in to French authorities, Peterson remained beyond the reach of U.S. law enforcement despite the repeated requests of OIA and U.S. officials. See Durbin, Schakowsky, Emanuel Urge French Justice Minister To Ensure Justice Is Done During Hans Peterson Retrial (Nov. 16, 2012), https://www.durbin.senate.gov/newsroom/press-releases/durbin-schakowsky-emanuel-urge-french-justice-minister-to-ensure-justice-is-done-during-hans-peterson-retrial; see also Senators' letter to French government (Mar. 14, 2008), https://www.nbcnews.com/id/wbna23601583 (citing a letter from the MOJ to the Department of --- PAGE BREAK --- Justice on August 22, 2007 which provides that the "Ministry of Justice considers the American-born, U.S. citizen Peterson to also be a French national and that the extradition request has been denied"). Indeed, the Government is unaware of any instance in which France has ever extradited a French citizen to the United States. (See Ex. B at 4 ("[T]he principle of non-extradition of nationals is a principle of extradition law from which France has never deviated outside the framework of the European Union.")). Simply put, the Court was correct when it determined at the initial bail hearing that France does not appear to extradite its own citizens. (Tr. 83). The defendant's supposed waiver of her extradition rights with respect to the United Kingdom should similarly be afforded no weight. Although an anticipatory waiver of extradition may be admissible in extradition proceedings in the United Kingdom, such a waiver is by no means binding, authoritative, or enforceable. See United States v. Stanton, No. 91 Cr. 889 (CHS), 1992 WL 27130, at *2 & n.1 (S.D.N.Y. Feb. 4, 1992) (denying modification of defendant's bail where defendant indicated willingness to waive extradition proceeding by providing extradition waivers, as British authorities advised that extradition waivers were possible only in cases where the fugitive actually appeared before a British magistrate after the filing of an extradition request, and concluding that such a waiver was not an "enforceable undertaking"). Under the United Kingdom's Extradition Act of 2003, consent to extradition is permitted, "if (and only if) [a person] has the assistance of counsel or a solicitor to represent him in the proceedings before the appropriate judge." Extradition Act 2003, § 127(9), https://www.legislation.gov.uk/ukpga/2003/41. As such, a judge in the United Kingdom must independently evaluate any waiver of extradition in real time, thereby necessarily rendering any anticipatory waiver executed before the defendant is found in the United Kingdom meaningless. Id. at §127. In other words, consent given --- PAGE BREAK --- this Court already weighed in favor of detention, and confirmation of that deception only reemphasizes that this defendant cannot be trusted to comply with bail conditions. Now, the defense has submitted a financial report that reflects the defendant has approximately $22 million in assets—far more than the figure she initially reported to Pretrial Services. (Def. Ex. O). Accepting the financial report at face value, it is clear that the defense's proposed bail package would leave the defendant with substantial resources to flee the country. Not only would she have millions of dollars in unrestrained assets at her disposal,6 but she would also have a $2 million townhouse in London, which she could live in or sell to support herself. In other words, even with the proposed bond—which is only partially secured—the defendant would still have millions of dollars at her disposal. She could absolutely afford to leave her friends and family to lose whatever they may pledge to support her bond, and then repay them much of their losses. In fact, the defendant could transfer money to her proposed co-signers immediately following her release,7 given the large sums of money that would be left unrestrained by her proposed bail package. Moreover, the schedule provided by the defense is notably silent regarding any future revenue streams to which the defendant may have access. The financial report only addresses the defendant's assets without detailing her income at all. The defendant has similarly provided the Court with no information about what resources her spouse might have access to on a prospective 6 In particular, according to the report, the defendant would have more than $4 million in unrestrained funds in accounts, in addition to hundreds of thousands of dollars of jewelry and other items. Moreover, the Government presumes the defendant has not yet spent all $7 million of the retainer paid to her attorneys, which would still belong to the defendant if she fled. 7 The Government notes that two of the defendant's proposed co-signers are citizens and residents of the United Kingdom, against whom the Government could not realistically recover a bond amount. These co-signers have not offered to secure this bond with any cash or property, and as a result, such a bond would effectively be worthless if the defendant were to flee. 23 DOJ-OGR-00001168