Document 24

Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 1 of 9 LAW OFFICE OF MARC FERNICH MARC FERNICH maf@fernichlaw.com ALSO ADMITTED IN MASSACHUSETTS 810 SEVENTH AVENUE, SUITE 620 NEW YORK, NEW YORK 10019 212-446-2346 FAX: 212-459-2299 www.fernichlaw.com July 16, 2019 BY ECF Hon. Richard M. Berman USDJ-SDNY 500 Pearl St. New York, NY 10007 Re: US v. Epstein, 19 CR 490 (SDNY) Dear Judge Berman: In response to requests from the Court and certain arguments made yesterday by the government, we write to supplement Jeffrey Epstein's request for bail. First, make no mistake about the crux of the government's detention argument and its necessary implications. Stripped to its core, the government's position - as urged in its letters and echoed again yesterday - distills to this: the nominally rebuttable remand presumption (connected with 18 USC § 1591 charges)1 plus Epstein's 1 To be clear, Epstein contends that § 1591 and the concomitant remand presumption do not contemplate or cover the core conduct at issue here: performing sexual DOJ-OGR-00000445 --- PAGE BREAK --- Case 19-2221, Document 24, 08/21/2019, 2637838, Page1 of 1 MANDATE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of August, two thousand and nineteen, United States of America, Appellee, ORDER Docket No. 19-2221 v. Jeffrey Epstein, AKA Sealed defendant 1, Defendant - Appellant. The parties in the above-referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". For The Court: Catherine O'Hagan Wolfe, Clerk of Court Catherine O'Hagan Wolfe A True Copy Catherine O'Hagan Wolfe, Clerk United States Court of Appeals, Second Circuit Catherine O'Hagan Wolfe MANDATE ISSUED ON 08/21/2019 DOJ-OGR-00000837 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 24 Filed 07/14/20 Page 1 of 2 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 7/14/2020 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA -v- GHISLAINE MAXWELL Defendant. WAIVER OF RIGHT TO BE PRESENT AT CRIMINAL PROCEEDING 20-cr-330 (AJN) Check Proceeding that Applies X Arraignment I have been given a copy of the indictment containing the charges against me and have reviewed it with my attorney. I understand that I have a right to appear before a judge in a courtroom in the Southern District of New York to confirm that I have received and reviewed the indictment; to have the indictment read aloud to me if I wish; to enter a plea of either guilty or not guilty before the judge; and to have an attorney beside me as I do. By signing this document, I wish to advise the court that after consultation with my attorney I willingly give up my right to appear in person before the judge for my arraignment. By signing this document, I also wish to advise the court that I willingly give up any right I might have to have my attorney next to me for my arraignment so long as the following conditions are met. I want my attorney to be able to participate in the proceeding and to be able to speak on my behalf during the proceeding. I also want the ability to speak privately with my attorney at any time during the proceeding if I wish to do so. Date: 7/10/2020 Signature of Defendant Ghislaine Maxwell by Christian R. Everdell, Esq. X Bail Hearing I am applying or in the future may apply for release from detention, or if not detained, for modification of the conditions of my release from custody, that is, my bail conditions. I understand that I have a right to appear in person before a judge in a courtroom in the Southern District of New York at the time that my attorney makes such an application. I have discussed these rights with my attorney and wish to give up these rights due to the COVID-19 pandemic so long as the following conditions are met. I request that my attorney be permitted to make applications for my release from custody or for modification of the conditions of my release, even though I will not be physically present. I also want the ability to speak privately with my attorney at any time during the proceeding if I wish to do so. Date: 7/10/2020 Signature of Defendant Ghislaine Maxwell by Christian R. Everdell, Esq. X Conference DOJ-OGR-00001631 --- PAGE BREAK --- Case 20-3061, Document 24, 09/10/2020, 2928295, Page1 of 6 EXHIBIT G DOJ-OGR-00019333 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 2 of 9 Hon. Richard M. Berman July 16, 2019 Page 2 wealth creates an irrebuttable presumption whereby no condition(s) can reasonably assure personal appearance or protect the public. The Court should reject the government's misguided effort to effectively create a per se rule.2 Indeed, for the government, there's literally nothing a person of Epstein's means could say, do or pledge to rebut the operative presumption and make himself eligible for release. massages for money. See Fierro v. Taylor, No. 11-CV8573, 2012 WL 13042630, at *3 (SDNY July 2, 2012) (holding that purchasers of sex from minors fall outside § 1591's ambit). 2 E.g., 7/15/19 Tr. 11 ("even if the defense were able at some point to rebut the presumption by providing some more information, there simply is no way that they can meet the standard here"); 7/12/19 Ltr. 5 ("even assuming the defendant's assets are presently in the United States, nothing ... would prevent the defendant from transferring liquid assets out of the country quickly and in anticipation of flight or relocation. The defendant is an incredibly sophisticated financial actor with decades of experience in the industry and significant ties to financial institutions and actors around the world. He could easily transfer funds and holdings on a moment's [notice] to places where the [g]overnment would never find them so as to ensure he could live comfortably while a fugitive."); id. ("even were the defendant to sacrifice literally all of his current assets, there is every indication that he would immediately be able to resume making ... tens of millions of dollars per year outside of the United States.... [T]here would be little to stop the defendant from fleeing, transferring his unknown assets abroad, and then continuing to ... earn his vast wealth from a computer terminal beyond the reach of extradition.") (footnote omitted); id. 7 ("the notion that any individual co-signer could meaningfully secure a bond for this defendant strains credulity"). DOJ-OGR-00000446 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 24 Filed 07/14/20 Page 2 of 2 I have been charged in an indictment with violations of federal law. I understand that I have a right to be present at all conferences concerning this indictment that are held by a judge in the Southern District of New York, unless the conference involves only a question of law. I understand that at these conferences the judge may, among other things, 1) set a schedule for the case including the date at which the trial will be held, and 2) determine whether, under the Speedy Trial Act, certain periods of time should be properly excluded in setting the time by which the trial must occur. I have discussed these issues with my attorney and wish to give up my right to be physically present at the upcoming conference. By signing this document, I wish to advise the court that I willingly give up my right to be physically present at the upcoming conference in my case on account of the COVID-19 pandemic so long as the following conditions are met. I want my attorney to be able to participate in the proceeding and to be able to speak on my behalf during the proceeding. I also want the ability to speak privately with my attorney at any time during the proceeding if I wish to do so. Date: 7/10/2020 Signature of Defendant Ghislaine Maxwell by Christian R. Everdell, Esq. Ghislaine Maxwell Print Name I hereby affirm that I am aware of my obligation to discuss with my client the charges contained in the indictment, my client's rights to attend and participate in the criminal proceedings encompassed by this waiver, and this waiver form. I affirm that my client knowingly and voluntarily consents to the proceedings being held in my client's absence. I will inform my client of what transpires at the proceedings and provide my client with a copy of the transcript of the proceedings, if requested. Date: 7/10/2020 Signature of Defense Counsel Christian R. Everdell Christian R. Everdell Print Name Addendum for a defendant who requires services of an interpreter: I used the services of an interpreter to discuss these issues with the defendant. The interpreter also translated this document, in its entirety, to the defendant before the defendant signed it. The interpreter's name is: ___________________________________ Date: Signature of Defense Counsel Alvin Q. Nettle 7/14/20 Accepted: Signature of Judge Date: 2 DOJ-OGR-00001632 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 3 of 9 Hon. Richard M. Berman July 16, 2019 Page 3 That cannot be the law. Such a construction turns the statute's plain text - expressly providing that the presumption is "[s]ubject to rebuttal," and otherwise mandating bail on the "least restrictive" conditions that reasonably assure the defendant's presence and community safety - on its head. It defies legislative intent. It thwarts the presumption of innocence. And it violates the Fifth, Sixth and Fourteenth amendment rights to due process, counsel, a defense and equal protection, not to mention the Eighth Amendment guarantee of bail - all based on a suspect if not invidious classification. To be sure, wealthy defendants do not deserve preferential treatment. But they certainly shouldn't be singled out for worse treatment - in effect, categorically disqualified from bail, at least in a presumption case - on the basis of their net worth. Second, it bears emphasis that the presumption is hardly an insurmountable bar to release in a § 1591 prosecution.3 To the contrary, 3 E.g., US v. Brinson, No. 13-CR-04-GKF, 2013 WL 11305792 (N.D. Okla. Feb. 8, 2013); US v. Afyare, No. 3:10-cr-00260, 2011 WL 1397820 (M.D. Tenn. April 13, 2011); US v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007). DOJ-OGR-00000447 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 4 of 9 Hon. Richard M. Berman July 16, 2019 Page 4 courts have determined that there are suitable conditions under which defendants accused of trafficking minors are bailed - notwithstanding the remand presumption. Third, as apparent from Epstein's initial financial disclosure, his finances are fairly complex. It would be impossible for Epstein - given, among other impediments, his detention, inability to quickly access pertinent records, and inability to quickly make a precise valuation of particular assets - to provide a sufficient financial statement by the Court's 5 pm deadline. Epstein certainly recognizes the Court's request for further transparency and is committed to providing a complete and accurate disclosure. Accordingly, we propose that the Court preliminarily accept the initial disclosure proffered last Friday and, if intending to grant bail, include a release condition directing Epstein to tender a comprehensive forensic accounting of his finances as expeditiously as practicable. Joel Podgor, Partner Emeritus at prominent Manhattan accounting firm Baker Tilly Virchow Krause, LLP, has agreed to conduct the forensic investigation and prepare a report rapidly. As counsel said DOJ-OGR-00000448 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 5 of 9 Hon. Richard M. Berman July 16, 2019 Page 5 during the July 15 argument, Epstein will agree to any monetary condition - consistent with his Sixth Amendment need to retain counsel and pay ordinary expenses, which, at the Court's discretion, could be subject to supervision by a Court-appointed trustee - that collateralizes his assets as a condition of release. Fourth, to the extent the government complains Epstein lacks meaningful domestic ties, we clarify and emphasize that his brother Mark, a U.S. resident, stands prepared to co-sign and secure a release bond in the full amount of his "own net worth,"4 which exceeds $100 million - tangible proof of his certainty that Epstein will appear as necessary. Fifth, in response to the Court's inquiry about Epstein's New Mexico registration status, the state's Public Safety Department formally advised in August 2010 that "you are not required to register with the State of New Mexico ... for your 2008 Florida conviction of Procuring Person Under 18 for Prostitution." Nonetheless, in an abundance of 4 7/12/19 Ltr. 6 (footnote omitted). DOJ-OGR-00000449 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 6 of 9 Hon. Richard M. Berman July 16, 2019 Page 6 caution and as an extra precaution, Epstein consistently notified the appropriate New Mexico official, Detective Deborah Anaya, when he spent any time at his residence there. (The underlying documents are available upon request.) Sixth, though some studies may well indicate that sex offender recidivism rates "actually go[] up at 15 years," as Your Honor suggested from the bench,5 others reach the opposite conclusion. For example, a respected study found that the relapse risk drops substantially the longer a person remains sex-offense free in the community.6 Another determined that it's mistaken to think of anyone who's been offense-free for 15 years as high-risk.7 5 7/15/19 Tr. 34. 6 Hanson et al., "High-Risk Sex Offenders May Not Be High Risk Forever," Journal of Interpersonal Violence (March 2014), https://www.researchgate.net/publication/261069441 High-Risk Sex Offenders May Not Be High Risk Forever. 7 Ira Mark & Tara Ellman, "Frightening and High': The Supreme Court's Crucial Mistake About Sex Crime Statistics" (2015). Constitutional Commentary. 419. https://scholarship.law.umn.edu/concomm/419. DOJ-OGR-00000450 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 7 of 9 Hon. Richard M. Berman July 16, 2019 Page 7 Seventh, to the extent third-party counsel (Mr. Boies) speculated that the November 28 and December 3, 2018 payments8 were made to "witnesses who were cooperating with us"9 in civil litigation, he is wrong. As explained in Court, the recipients were "long-time [Epstein] friends and employees"10 - not putative victims - and they never cooperated with Mr. Boies. To the contrary, each invoked the Fifth Amendment and refused to testify when civilly deposed, respectively, in prior New York federal and Florida state civil proceedings. Subject to the protective orders in these proceedings, we would be pleased to provide relevant deposition transcripts. Eighth, as for the Austrian passport the government trumpets, it expired 32 years ago. And the government offers nothing to suggest - and certainly no evidence - that Epstein ever used it. In any case, Epstein - an affluent member of the Jewish faith - acquired the passport in the 8 7/12/19 Ltr. 11. 9 7/15/19 Tr. 70-71. 10 Ibid. 69. DOJ-OGR-00000451 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 8 of 9 Hon. Richard M. Berman July 16, 2019 Page 8 1980s, when hijackings were prevalent, in connection to Middle East travel. The passport was for personal protection in the event of travel to dangerous areas, only to be presented to potential kidnapers, hijackers or terrorists should violent episodes occur. Ninth, the Court is undoubtedly aware of the highly charged context surrounding this prosecution. In November 2018, media reports suggested that Epstein received a plea deal that amounted to a "slap on the wrist." Putting aside the robust negotiations leading to the non-prosecution agreement and the prison sentence Epstein completed, there's no denying that although certain witnesses through their attorney representatives,11 the media - e.g., The Miami Herald - and the public were all clamoring for his re-prosecution, Epstein traveled extensively over these eight months and invariably returned to the United States. That inescapable reality emphatically proves he won't flee and entitles him to release - on any and all conditions the Court deems appropriate. 11 See, e.g., Doe v. US, CV 807-36 (SD Fla.). DOJ-OGR-00000452 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 24 Filed 07/16/19 Page 9 of 9 Hon. Richard M. Berman July 16, 2019 Page 9 We thank the Court for its consideration and would be pleased to provide any additional information at Thursday's appearance. Respectfully, /s/ Marc Fernich Martin Weinberg Reid Weingarten cc: All Counsel (ECF) DOJ-OGR-00000453