Document 209

Case 1:20-cr-00330-PAE Document 209 Filed 04/16/21 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. REPLY MEMORANDUM OF LAW IN SUPPORT OF MS. MAXWELL'S MOTION TO DISMISS COUNTS ONE THROUGH SIX OF THE SUPERSEDING INDICTMENT FOR PRE-INDICTMENT DELAY Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7364 Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600 Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Attorneys for Ghislaine Maxwell DOJ-OGR-00003753 --- PAGE BREAK --- Case 9:08-cv-80736 Document 209 Entered on Filed 07/08/2019 Page 2 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. UNITED STATES' SEALED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION The United States hereby requests that this Court enter an order dismissing these proceedings and the Petition for Enforcement of Crime Victim's Rights Act, 18 U.S.C. Section 3771 (DE 1, the "Petition"), through which Petitioners Jane Doe #1 and Jane Doe #2 have advanced claims pursuant to the Crime Victims' Rights Act ("CVRA"), for lack of subject matter jurisdiction.1 This Court lacks subject matter jurisdiction over the Petition because 1 See, e.g., Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004) ("Challenges to subject-matter jurisdiction can of course be raised at any time prior to final judgment."); United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (recognizing that "a party may raise jurisdiction at any time during the pendency of the proceedings"); Harrell & Sumner Contracting Co. v. Peabody Petersen Co., 546 F.2d 1227, 1229 (5th Cir. 1977) ("[U]nder Rule 12(h)(3), Fed.R.Civ.P., the defense of lack of subject matter jurisdiction may be raised at any time by motion of a party or otherwise."); see also Fed. R. Civ. P. 12(h)(3). In the present motion, the United States seeks dismissal of Petitioners' claims based on both a legal and factual challenge to the Court's subject matter jurisdiction. This Court may properly consider and weigh evidence beyond Petitioners' allegations when evaluating such a challenge to the Court's subject matter jurisdiction: Factual attacks [on a Court's subject matter jurisdiction] . . . "challenge subject matter jurisdiction in fact, irrespective of the pleadings." In resolving a factual attack, the district court "may consider extrinsic evidence such as testimony and affidavits." Since such a motion implicates the fundamental question of a trial court's jurisdiction, 1 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 209 Filed 04/16/21 Page 2 of 5 The significant delay in prosecuting these charges has substantially prejudiced Ms. Maxwell, and the government has offered no legitimate reason for the tactical delay. Indeed, many of the arguments made by the government in response to Ms. Maxwell's motions reveal new information that undercut its claims about the origins of, and motives behind, this prosecution. Ms. Maxwell raised this issue pretrial, as required by Fed. R. Crim. P 12(b)(3)(A)(ii). In her opening memorandum Ms. Maxwell noted that significant discovery related to the allegations had not yet been provided by the government, that her investigation is ongoing, and requested that the Court defer ruling on this motion. The government's responses to Ms. Maxwell's motions, including its response to this motion, underscore the legitimacy of Ms. Maxwell's continued request that the Court hold this issue open. As reflected in the various pleadings, the government did have communications with lawyers for civil litigants and did have information about the allegations made in the indictment well before it claims the investigation was opened. Ms. Maxwell learned about these things only because the government felt the need to make partial disclosures in an attempt to defend its actions. In its response to the instant motion, the government, without actually disclosing the witness's statements, selectively "proffers" "facts" to justify its position but tells Ms. Maxwell and the Court that we should, apparently, just trust the government because "the underlying information, which is contained in the FBI 302 reports of interviews with the victims, will be produced to the defense as 3500 material in advance of trial." Resp. at 55 fn. 21. As discussed in her Motions to Dismiss for Lack of Specificity, for a Bill of Particulars, and for Pretrial Disclosures, the government's failure to provide adequate information about the 1 DOJ-OGR-00003754 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 209 Filed 04/16/21 Page 3 of 5 allegations in the indictment continues to prejudice Ms. Maxwell's ability to investigate and defend this matter. It is fundamentally unfair for the government to withhold basic information while at the same time making representations about that information to the Court when convenient. This type of selective disclosure by one party in litigation is disfavored. See, e.g., United States v. Nobles, 422 U.S. 225, (1975); United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991); In re Grand Jury Proceedings, 219 F.3d 175, 182–84 (2d Cir.2000); Granite Partners, L.P. v. Bear, Stearns & Co., Inc., 184 F.R.D. 49, 54 (S.D.N.Y. 1999); Worthington v. Endee, 177 F.R.D. 113, 116–17 (N.D.N.Y. 1998); Peck v. United States, 514 F. Supp. 210, 213 (S.D.N.Y.), on reargument, 522 F. Supp. 245 (S.D.N.Y. 1981); State of N. D. ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978) (selective disclosure exhibited by the government in this action is “intolerable as a matter of policy”). It would be inefficient and a waste of judicial resources to continue to litigate this issue piecemeal. Moreover, until Ms. Maxwell has complete relevant information, she cannot precisely identify the many witnesses and documents that are unavailable to her as a result of the pretrial delay. CONCLUSION Accordingly, Ms. Maxwell requests that the Court defer consideration of her Motion to Dismiss Counts One Through Six of the Superseding Indictment for Pre-Indictment Delay until after the government has produced all of the discovery in this matter, including, but not limited to any alleged F.R.E. 404(b) information, all witness statements, and all Brady and Giglio material. Dated: March 15, 2021 2 DOJ-OGR-00003755 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 209 Filed 04/16/21 Page 4 of 5 Respectfully submitted, s/ Jeffrey S. Pagliuca Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue Denver, CO 80203 Phone: 303-831-7264 Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 Phone: 212-957-7600 Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Attorneys for Ghislaine Maxwell 3 DOJ-OGR-00003756 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 209 Filed 04/16/21 Page 5 of 5 Certificate of Service I hereby certify that on March 15, 2021, I served by email, pursuant Rule 2(B) of the Court's individual practices in criminal cases, the Reply Memorandum of Law in Support of Ms. Maxwell's Motion to Dismiss Counts One Through Six of the Superseding Indictment for Pre-Indictment Delay upon the following: Alison Moe Maurene Comey Andrew Rohrbach Lara Pomerantz U.S. Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 Alison.moe@usdoj.gov Maurene.comey@usdoj.gov Andrew.Rohrbach@usdoj.gov Lara.Pomerantz@usdoj.gov s/ Christian R. Everdell 4 DOJ-OGR-00003757