Document 37

Case 1:19-cr-00490-RMB Document 37 Filed 07/25/19 Page 1 of 1 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 July 25, 2019 VIA ECF The Honorable Richard M. Berman United States District Court Southern District of New York United States Courthouse 500 Pearl Street New York, New York 10007 Re: United States v. Jeffrey Epstein, 19 Cr. 490 (RMB) Dear Judge Berman: The Government respectfully submits this letter to request that the Court endorse a proposed protective order, which is enclosed. For the reasons set forth in the proposed order, and with the consent of defense counsel, the Government respectfully requests that the Court endorse the enclosed order. Respectfully submitted, GEOFFREY S. BERMAN United States Attorney By: /s/ Alison Moe Alison Moe / Alex Rossmiller / Maurene Comey Assistant United States Attorneys Southern District of New York Tel: (212) 637-2225 / 2415 / 2324 Enclosure Cc: Martin Weinberg, Esq., and Reid Weingarten, Esq., counsel for defendant DOJ-OGR-00000585 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 37 Filed 07/30/20 Page 1 of 3 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED:7/30/2020 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, -v- Ghislaine Maxwell, Defendant. 20-CR-330 (AJN) MEMORANDUM OPINION & ORDER ALISON J. NATHAN, District Judge: Both parties have asked for the Court to enter a protective order. While they agree on most of the language, two areas of dispute have emerged. First, Ms. Maxwell seeks language allowing her to publicly reference alleged victims or witnesses who have spoken on the public record to the media or in public fora, or in litigation relating to Ms. Maxwell or Jeffrey Epstein. Second, Ms. Maxwell seeks language restricting potential Government witnesses and their counsel from using discovery materials for any purpose other than preparing for the criminal trial in this action. The Government has proposed contrary language on both of these issues. For the following reasons, the Court adopts the Government's proposed protective order. Under Federal Rule of Criminal Procedure 16(d)(1), "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." The good cause standard "requires courts to balance several interests, including whether dissemination of the discovery materials inflicts hazard to others . . . whether the imposition of the protective order would prejudice the defendant," and "the public's interest in the information." United States v. Smith, 985 F. Supp. 2d 506, 522 (S.D.N.Y. 2013). The party seeking to restrict disclosure bears the burden of showing good cause. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004). 1 DOJ-OGR-00001702 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page1 of 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): 20-3061 Caption [use short title] Motion for: to Dismiss Set forth below precise, complete statement of relief sought: Motion to dismiss appeal for lack of jurisdiction United States v. Maxwell MOVING PARTY: United States of America OPPOSING PARTY: Ghislaine Maxwell Plaintiff Defendant Appellant/Petitioner Appellee/Respondent MOVING ATTORNEY: Maurene Comey, Assistant U.S. Attorney OPPOSING ATTORNEY: Adam Mueller One Saint Andrew's Plaza, New York, NY 10007 150 E. 10th Ave., Denver, CO 80203 (212) 637-2324; Email: maurene.comey@usdoj.gov (303) 831-7364 amueller@hmflaw.com Court- Judge/ Agency appealed from: The Honorable Alison J. Nathan, United States District Judge, Southern District of New York Please check appropriate boxes: Has movant notified opposing counsel (required by Local Rule 27.1): Yes No (explain): Opposing counsel's position on motion: Unopposed Opposed Don't Know Does opposing counsel intend to file a response: Yes No Don't Know Is oral argument on motion requested? Yes No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? Yes No If yes, enter date: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has this request for relief been made below? Yes No Has this relief been previously sought in this court? Yes No Requested return date and explanation of emergency: Signature of Moving Attorney: /s/Maurene Comey Date: September 16, 2020 Service by: CM/ECF Other [Attach proof of service] Form T-1080 (rev.12-13) DOJ-OGR-00019343 --- PAGE BREAK --- Case 1:20-cr-0030-AJN Document 37 Filed 07/30/20 Page 2 of 3 First, the Court finds that the Government has met its burden of showing good cause with regard to restricting the ability of Ms. Maxwell to publicly reference alleged victims and witnesses other than those who have publicly identified themselves in this litigation. As a general matter, it is undisputed that there is a strong and specific interest in protecting the privacy of alleged victims and witnesses in this case that supports restricting the disclosure of their identities. Dkt. No. 29 at 3 (acknowledging that as a baseline the protective order should "prohibit[] Ms. Maxwell, defense counsel, and others on the defense team from disclosing or disseminating the identity of any alleged victim or potential witness referenced in the discovery materials"); see also United States v. Corley, No. 13-cr-48, 2016 U.S. Dist. LEXIS 194426, at *11 (S.D.N.Y. Jan. 15, 2016). The Defense argues this interest is significantly diminished for individuals who have spoken on the public record about Ms. Maxwell or Jeffrey Epstein, because they have voluntarily chosen to identify themselves. But not all accusations or public statements are equal. Deciding to participate in or contribute to a criminal investigation or prosecution is a far different matter than simply making a public statement "relating to" Ms. Maxwell or Jeffrey Epstein, particularly since such a statement might have occurred decades ago and have no relevance to the charges in this case. These individuals still maintain a significant privacy interest that must be safeguarded. The exception the Defense seeks is too broad and risks undermining the protections of the privacy of witnesses and alleged victims that is required by law. In contrast, the Government's proffered language would allow Ms. Maxwell to publicly reference individuals who have spoken by name on the record in this case. It also allows the Defense to "reference[e] the identities of individuals they believe may be relevant . . . to Potential Defense Witnesses and their counsel during the course of the investigation and preparation of the defense case at trial." Dkt. No. 33-1, ¶ 5. This proposal adequately balances the interests at 2 DOJ-OGR-00001703 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page2 of 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ---------------------------------------------------------x UNITED STATES OF AMERICA Appellee, -v- GHISLAINE MAXWELL, Defendant-Appellant. ---------------------------------------------------------x STATE OF NEW YORK COUNTY OF NEW YORK SOUTHERN DISTRICT OF NEW YORK MAURENE COMEY, pursuant to Title 28, United States Code, Section 1746, hereby affirms under penalty of perjury: 1. I am an Assistant United States Attorney in the Office of Audrey Strauss, Acting United States Attorney for the Southern District of New York, and I am one of the Assistant United States Attorneys representing the Government on this appeal. Defendant-appellant Ghislaine Maxwell appeals from a September 2, 2020 order of the District Court denying Maxwell's motion to modify the protective order regulating criminal discovery in United States v. Ghislaine Maxwell, S1 20 Cr. 330 (AJN) (the "Order"). I respectfully submit this affirmation in support of the Government's motion to dismiss Maxwell's 1 DOJ-OGR-00019344 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 37 Filed 07/30/20 Page 3 of 3 stake. And as the Government's letter notes, see Dkt. No. 33 at 4, to the extent that the Defense needs an exception to the protective order for a specific investigative purpose, they can make applications to the Court on a case-by-case basis. Second, restrictions on the ability of potential witnesses and their counsel to use discovery materials for purposes other than preparing for trial in this case are unwarranted. The request appears unprecedented despite the fact that there have been many high-profile criminal matters that had related civil litigation. The Government labors under many restrictions including Rule 6(e) of the Federal Rules of Criminal Procedure, the Privacy Act of 1974, and other policies of the Department of Justice and the U.S. Attorney's Office for the Southern District of New York, all of which the Court expects the Government to scrupulously follow. Furthermore, the Government indicates that it will likely only provide potential witnesses with materials that those witnesses already have in their possession. See Dkt. No. 33 at 6. And of course, those witnesses who do testify at trial would be subject to examination on the record as to what materials were provided or shown to them by the Government. Nothing in the Defense's papers explains how its unprecedented proposed restriction is somehow necessary to ensure a fair trial. For the foregoing reasons, the Court adopts the Government's proposed protective order, which will be entered on the docket. This resolves Dkt. No. 29. SO ORDERED. Dated: July 30, 2020 New York, New York ALISON J. NATHAN United States District Judge --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page3 of 24 interlocutory appeal for lack of jurisdiction because the Order is neither a final judgment nor an appealable collateral order, and in opposition to Maxwell's motion to consolidate this appeal with the appeal pending in Giuffre v. Maxwell, No. 20-2413. STATEMENT OF FACTS 2. On June 29, 2020, Indictment 20 Cr. 330 (AJN) was filed under seal in the Southern District of New York, charging Maxwell in six counts. (Dist. Ct. Docket Entry 1).1 On July 2, 2020, Maxwell was arrested and the original indictment was unsealed. (Dist. Ct. Docket Entry 2). On July 8, 2020, Superseding Indictment S1 20 Cr. 330 (AJN) (the “Indictment”) was filed in the Southern District of New York. (Dist. Ct. Docket Entry 17). Count One of the Indictment charges Maxwell with conspiracy to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371. Count Two charges Maxwell with enticing a minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 2422 and 2. Count Three charges Maxwell with conspiracy to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371. Count Four charges Maxwell with transporting minors to participate in illegal sex acts, in violation of 18 U.S.C. § 2423 and 2. Counts Five and Six charge Maxwell with 1 “Dist. Ct. Docket Entry” refers to the corresponding numbered entry in the District Court's docket for this case; “Mot.” refers to Maxwell's motion to consolidate; and “Ex.” refers to an exhibit to Maxwell's motion to consolidate. 2 DOJ-OGR-00019345 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page4 of 24 perjury, in violation of 18 U.S.C. § 1623. The matter remains pending in the pretrial phase before the Honorable Alison J. Nathan, United States District Judge. Maxwell's pretrial motions are due on December 21, 2020, and trial has been scheduled to commence on July 12, 2021. 3. On July 30, 2020, upon the Government's application, Judge Nathan entered a protective order governing the parties' disclosure of information produced in discovery in the criminal case (the “Protective Order”). (Ex. A). The Protective Order expressly provides that any and all discovery material produced to Maxwell by the Government, regardless of designation, “[s]hall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action.” (Protective Order ¶¶ 1(a), 10(a), 14(a)). The Protective Order further provides that any discovery material produced to Maxwell by the Government that is marked “confidential” may not be filed publicly or excerpted within any public filing. (Id. ¶ 15). Maxwell's criminal defense counsel consented to the foregoing provisions of the Protective Order. (See Dist. Ct. Docket Entry 29). 4. On August 17, 2020, Maxwell filed a motion before Judge Nathan seeking an order modifying the Protective Order to allow Maxwell to use confidential criminal discovery materials, which were produced to Maxwell by the --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page5 of 24 Government, in filings Maxwell intended to submit in separate civil litigation. (District Court Docket Entry 52). In particular, Maxwell's motion sought authorization to use materials relating to applications the Government previously made in 2019 seeking the modification of certain protective orders in other judicial proceedings. 5. On August 21, 2020, the Government filed an opposition to Maxwell's motion to modify the Protective Order. (Dist. Ct. Docket Entry 46). In its opposition, the Government explained the factual background regarding the confidential criminal discovery materials at issue. In particular, the Government explained that those discovery materials related to the Government's requests to modify certain protective orders in civil cases to permit compliance with grand jury subpoenas (the “Subpoenas”). Those Subpoenas were issued to a certain recipient (the “Recipient”) in connection with a grand jury investigation into Jeffrey Epstein and his possible co-conspirators. In order to maintain the integrity of the grand jury investigation and in accordance with both Federal Rule of Criminal Procedure 6(e) and its standard practice, the Government did not notify Maxwell or her counsel of the Subpoenas. In response to receiving the Subpoenas, the Recipient advised the Government that it believed that certain existing protective orders precluded full compliance. Accordingly, in or about February 2019, the Government applied ex parte and under seal to each relevant court to 4 DOJ-OGR-00019347 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page6 of 24 request modification of the respective protective orders to permit compliance with the Subpoenas. In or about April 2019, one court (“Court-1”) granted the Government’s application, and permitted the Government to share Court-1’s order—and only that order, which itself prohibited further dissemination—to the Recipient. Subsequently, the second court (“Court-2”) denied the Government’s application. Because the relevant grand jury investigation remains ongoing, both Court-1 and Court-2 have ordered that the filings regarding the Subpoenas remain under seal, except that both have expressly permitted the Government to produce those filings to Maxwell as part of its discovery obligations in this criminal case. 6. After providing that factual background, the Government argued that Maxwell’s motion should be denied for failing to show good cause to modify the Protective Order for several reasons. First, Maxwell had consented to the portions of the Protective Order that prohibit use of criminal discovery materials produced by the Government in any civil litigation. Second, Maxwell had cited no authority to support the argument that a criminal defendant should be permitted to use criminal discovery in civil cases. Third, Maxwell utterly failed to explain how the criminal discovery materials at issue supported any legal argument she wished to make in civil litigation. The Government also noted that to the extent Maxwell sought to challenge the process by which the Government sought compliance with the Subpoenas and obtained certain materials that it intended to 5 DOJ-OGR-00019348 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page7 of 24 use in prosecuting its criminal case, she would have a full opportunity to do so in her pretrial motions in the criminal case before Judge Nathan. 7. On August 24, 2020, Maxwell filed a reply in further support of her motion. (Dist. Ct. Docket Entry 54). 8. On September 2, 2020, Judge Nathan issued the Order denying Maxwell's motion. (Ex. F). In that Order, Judge Nathan noted that despite "fourteen-single spaced pages of heated rhetoric," Maxwell had offered "no more than vague, speculative, and conclusory assertions" regarding why the criminal discovery materials were necessary to fair adjudication of her civil cases. (Id. at 3). Judge Nathan concluded that absent any "coherent explanation" of how the criminal discovery materials related to any argument Maxwell intended to make in civil litigation, Maxwell had "plainly" failed to establish good cause to modify the Protective Order. (Id.). Further, Judge Nathan noted that the basic facts Maxwell sought to introduce in civil litigation were already made public through the Government's letter in opposition to her motion. (Id. at 3-4). Accordingly, even though Judge Nathan "remain[ed] in the dark as to why this information will be relevant" to the courts adjudicating the civil cases, Judge Nathan expressly permitted Maxwell to inform the tribunals overseeing her civil cases, under seal, of the basic series of events set forth in paragraph 5, supra. (Id. at 4). 9. On September 4, 2020, Maxwell filed a notice of appeal from 6 DOJ-OGR-00019349 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page8 of 24 the Order. (Dist. Ct. Docket Entry 55). On September 10, 2020, Maxwell filed the instant motion to consolidate this appeal with the appeal currently pending in Giuffre v. Maxwell, No. 20-2413. The Government is not a party to the appeal in Giuffre v. Maxwell, which concerns an order issued in a civil case unsealing materials that were previously filed under seal. ARGUMENT I. THE APPEAL SHOULD BE DISMISSED FOR LACK OF JURISDICTION A. Applicable Law 1. The Collateral Order Doctrine 10. Title 28, United States Code, Section 1291 expressly limits the jurisdiction of Courts of Appeals to "final decisions of the district courts." 28 U.S.C. § 1291. "This final judgment rule requires that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits. In a criminal case[,] the rule prohibits appellate review until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263 (1984) (internal citations and quotation marks omitted); accord United States v. Aliotta, 199 F.3d 78, 81 (2d Cir. 1999). As the Supreme Court has "long held," the "policy of Congress embodied in this statute is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation, and . . . this policy is at its strongest in the field of criminal law." United States v. Hollywood Motor Car Co., 7 DOJ-OGR-00019350 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page9 of 24 458 U.S. 263, 265 (1982) (per curiam); see also Flanagan, 465 U.S. at 270 (noting "overriding policies against interlocutory review in criminal cases" and that "exceptions to the final judgment rule in criminal cases are rare"); United States v. Culbertson, 598 F.3d 40, 46 (2d Cir. 2010) (recognizing that "undue litigiousness and leaden-footed administration of justice,' the common consequences of piecemeal appellate review, are 'particularly damaging to the conduct of criminal cases'" (quoting Di Bella v. United States, 369 U.S. 121, 124 (1962))). 11. There is a limited exception to this rule that permits immediate appeal from certain collateral orders. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). To fall within the "small class" of decisions that constitute immediately appealable collateral orders, the decision must "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988) (internal quotation marks and citations omitted). 12. The Supreme Court has made clear that the collateral order exception should be "interpreted . . . with the utmost strictness in criminal cases." Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (internal quotation marks omitted) (quoting Flanagan, 465 U.S. at 265); accord United 8 DOJ-OGR-00019351 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page10 of 24 States v. Robinson, 473 F.3d 487, 490 (2d Cir. 2007). In over 70 years since Cohen was decided, despite "numerous opportunities" to expand the doctrine, Midland Asphalt, 489 U.S. at 799, the Supreme Court has identified only four types of pretrial orders in criminal cases as satisfying the collateral-order doctrine: an order denying a bond, Stack v. Boyle, 342 U.S. 1 (1951); an order denying a motion to dismiss on Double Jeopardy grounds, Abney v. United States, 431 U.S. 651 (1977); an order denying a motion to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S. 500 (1979); and an order permitting the forced administration of antipsychotic drugs to render a defendant competent for trial, Sell v. United States, 539 U.S. 166 (2003). In contrast, the circumstances in which the Supreme Court has "refused to permit interlocutory appeals" in criminal cases have been "far more numerous." Midland Asphalt, 489 U.S. at 799. 13. As to the third Van Cauwenberghe criterion, "[a]n order is 'effectively unreviewable' where 'the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.'" United States v. Punn, 737 F.3d 1, 5 (2d Cir. 2013) (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 498-99 (1989)). "The justification for immediate appeal must . . . be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009). A ruling that is burdensome to a party "in ways that are only 9 DOJ-OGR-00019352 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page11 of 24 imperfectly reparable by appellate reversal of a final district court judgment is not sufficient." Punn, 737 F.3d at 5 (internal quotation mark omitted) (quoting Mohawk Indus., 558 U.S. at 107). "Instead, the decisive consideration is whether delaying review until the entry of final judgment 'would imperil a substantial public interest' or 'some particular value of a high order.'" Mohawk Indus., 558 U.S. at 107 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)); see also Kensington Int'l Ltd. v. Republic of Congo, 461 F.3d 238, 241 (2d Cir. 2006). In a criminal case, the availability of post-judgment relief through reversal or vacatur of conviction, if warranted, will generally be sufficient to protect whatever right a defendant claims was abridged by the district court's pretrial decision. See, e.g., Punn, 737 F.3d at 14 ("Punn's claim can be adequately vindicated upon appeal from a final judgment. . . . [I]f Punn's arguments continue to fail before the district court, purportedly ill-gotten evidence or its fruits are admitted at his trial, and conviction results, appellate review will be available at that point[,] . . . [and the Court] may order a new trial without the use of the ill-gotten evidence, or whatever additional remedies are necessary to ensure that Punn's legitimate interests are fully preserved."); United States v. Hitchcock, 992 F.2d 236, 239 (9th Cir. 1993) (district court's refusal to seal documents not immediately appealable because "[r]eversal after trial, if it is warranted, will adequately protect . . . interest[s]" asserted by defendants). 10 DOJ-OGR-00019353 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page12 of 24 14. When applying the collateral-order doctrine, the Supreme Court has "generally denied review of pretrial discovery orders." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981). This Court likewise has consistently ruled that protective orders regulating the use of documents exchanged by the parties during a criminal case are not subject to interlocutory appeal. See, e.g., United States v. Caparros, 800 F.2d 23, 24 (2d Cir. 1986) ("We hold that this collateral protective order is not appealable under 28 U.S.C. § 1291 . . ."); United States v. Pappas, 94 F.3d 795, 798 (2d Cir. 1996) ("To the extent that the [protective] order imposed restrictions on the parties' disclosure of materials exchanged in the course of pending litigation, it is not subject to appeal."); see also H.L. Hayden Co. of N.Y. v. Siemens Medical Sys., Inc., 797 F.2d 85, 90 (2d Cir. 1986) ("The district court's denial of modification [of a protective order] does not fall within the 'collateral order' doctrine of Cohen."). Because "a litigant does not have 'an unrestrained right to disseminate information that has been obtained through pretrial discovery,'" such protective orders do not amount to an impermissible prior restraint under the First Amendment. Caparros, 800 F.2d at 25 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)). Even where a litigant raises a colorable argument that a protective order violates a litigant's right to release documents outside of criminal litigation, "adjudication of any such right can await final judgment on the underlying charges" because the "purported right 11 DOJ-OGR-00019354 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page13 of 24 at issue is not related to any right not to stand trial.” Id. at 26. 2. Appeals Involving Injunctions 15. Title 28, United States Code, Section 1292(a)(1) provides that Courts of Appeals shall have jurisdiction over “[i]nterlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” Orders regulating discovery in a criminal case, even if couched “using words of restraint,” are not injunctions and are therefore not appealable under § 1292(a)(1). See Pappas, 94 F.3d at 798 (“Protective orders that only regulate materials exchanged between the parties incident to litigation, like most discovery orders, are neither final orders, appealable under 28 U.S.C. § 1291, nor injunctions, appealable under 28 U.S.C. § 1292(a)(1.” (internal citations omitted)); Caparros, 800 F.2d at 26. B. Discussion 16. There is no dispute that the Order is not a final judgment and thus is not appealable unless it fits within the “small class” of decisions that constitute immediately appealable collateral orders. Van Cauwenberghe, 486 U.S. at 522. Because the Order does not fall within the extremely narrow category of collateral orders that are appealable in criminal cases, where the collateral order 12 DOJ-OGR-00019355 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page14 of 24 rule is “interpreted . . . ‘with the utmost strictness,’” the appeal should be dismissed. Midland Asphalt, 489 U.S. at 799 (quoting Flanagan, 465 U.S. at 265). Among other things, the Order does not meet the third criterion of the standard for identifying immediately appealable collateral orders, which requires that the order being appealed from be “effectively unreviewable on appeal from a final judgment.” Van Cauwenberghe, 486 U.S. at 522 (internal quotation mark omitted) (quoting Coopers & Lybrand, 437 U.S. at 468). Accordingly, this Court does not have jurisdiction to review the Order, and Maxwell’s appeal should be dismissed. 17. As an initial matter, when evaluating Maxwell’s appeal, this Court cannot engage in an “individualized jurisdictional inquiry” based on the facts of this case, but instead must focus on the “entire category to which a claim belongs.” Mohawk, 558 U.S. at 107 (internal quotation marks omitted) (quoting Coopers & Lybrand, 437 U.S. at 473; Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). Here, like any other order regulating the use of discovery materials exchanged by the parties during litigation, Judge Nathan’s Order declining to modify the Protective Order in this criminal case is not subject to interlocutory appeal. See Pappas, 94 F.3d at 798; Caparros, 800 F.2d at 24-26. 18. There can be no serious suggestion that this Order falls within the four categories of orders that the Supreme Court has identified as appealable prejudgment in criminal cases, as the Order does not address bail, double jeopardy, 13 DOJ-OGR-00019356 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page15 of 24 the Speech or Debate Clause, or the forced administration of antipsychotic drugs. See Midland Asphalt, 489 U.S. at 799; Sell, 539 U.S. at 176-77. The rights implicated here do not meet the high threshold of expanding the collateral order exception in criminal cases beyond those limited categories. Rather, this Order falls within the category of rulings addressing pretrial discovery, which are generally unreviewable on interlocutory appeal. See Pappas, 94 F.3d at 798; Caparros, 800 F.2d at 24-26. Maxwell has identified no public interest or value that is "sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes." Mohawk, 558 U.S. at 107. 19. Maxwell seems to claim that reversal of Judge Nathan's Order is necessary in order to prevent documents in a civil case from being unsealed. Even assuming a presentation of criminal discovery materials would affect an unsealing decision in a civil case — an argument that Judge Nathan found speculative at best (Ex. F at 3) — a risk of unsealing is not significant enough to merit interlocutory appeal. See United States v. Martoma, No. 13-4807, 2014 WL 68119, at *1 (2d Cir. Jan. 8, 2014) (concluding that even though the defendant's "personal interest in the privacy of embarrassing information is an interest that, as a practical matter, cannot be vindicated after disclosure," that interest is insufficient to merit interlocutory appeal); United States v. Guerrero, 693 F.3d 990, 998 (9th Cir. 2012) (finding no jurisdiction over defendant's interlocutory 14 DOJ-OGR-00019357 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page16 of 24 appeal from unsealing of competency evaluation because "any alleged incursions on criminal defendants' rights to privacy and a fair trial do not render the unsealing order effectively unreviewable on appeal"); Hitchcock, 992 F.2d at 238-39 (district court's refusal to seal documents not immediately appealable because "[r]eversal after trial, if it is warranted, will adequately protect . . . interest[s]" asserted by defendant); cf. Mohawk Indus., 558 U.S. at 109 (holding that orders to disclose privileged information are not immediately appealable even though they "intrude[] on the confidentiality of attorney-client communications"). 20. To the extent Maxwell complains that unsealing filings in a civil case may result in unfair pretrial publicity in her criminal case, such a concern is not an issue that is effectively unreviewable on appeal from a final judgment. Indeed, that very issue has been reviewed by this Court in multiple cases on post-judgment appeal. See, e.g., United States v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010) (evaluating on post-judgment appeal whether publicity biased the venire); United States v. Elfgeeh, 515 F.3d 100, 128-31 (2d Cir. 2008) (evaluating on post-judgment appeal whether publicity biased trial jurors). Should the Court determine that the jury at Maxwell's trial was biased based on disclosure of material in a civil case, and that such material would not have been unsealed had Judge Nathan permitted modification of the Protective Order, then vacatur of the defendant's conviction - if warranted - will adequately vindicate the defendant's 15 DOJ-OGR-00019358 --- PAGE BREAK --- right to an impartial jury. See, e.g., United States v. Nelson, 277 F.3d 164, 201-04, 213 (2d Cir. 2002) (vacating conviction where district court improperly refused to excuse potential juror who admitted bias based upon knowledge of defendant's previous acquittal). Thus, the defendant's right to a fair and impartial jury would not "be destroyed if it were not vindicated before trial," Midland Asphalt, 489 U.S. at 799 (internal quotation mark omitted) (quoting United States v. MacDonald, 435 U.S. 850, 860 (1978)), and, as such, the Order does not meet the third criterion for appealability of a collateral order. See Punn, 737 F.3d at 14 (defendant's interests "can be adequately vindicated upon appeal from a final judgment" through "a new trial . . . or whatever additional remedies are necessary"). 21. Simply put, the Order denying Maxwell's motion to amend the Protective Order is not reviewable on interlocutory appeal. Maxwell complains that if she cannot use criminal discovery materials in civil litigation then there is a risk that certain filings in the civil cases may be unsealed that otherwise would have remained sealed. Maxwell apparently believes such a result would risk prejudicing her trial rights in the criminal case. If such materials are unsealed in the civil case, and if Maxwell believes that unsealing causes her prejudice at her criminal trial, Maxwell will have a full opportunity to raise that issue in the criminal case. To the extent Maxwell is concerned that unsealing in the civil case might permit the Government to oppose any motion challenging the unsealing --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page18 of 24 order it obtained during its criminal investigation on the grounds of inevitable discovery, she will have the opportunity to assert such a claim before Judge Nathan. If she is dissatisfied with Judge Nathan's decision on that score, she can raise the issue on appeal after the entry of final judgment. 22. Further, given the substance of Maxwell's motion to consolidate, it is not entirely clear that all of the issues Maxwell seeks to raise in this appeal have been finally resolved. Maxwell's motion to consolidate this matter with the Giuffre v. Maxwell appeal appears primarily focused on attacking the legitimacy of the Government's methods of obtaining evidence that it intends to use to prosecute the criminal case through the Subpoenas to the Recipient. (See Mot. at 10-12). It thus seems readily apparent that Maxwell intends to file a motion to preclude the use of such evidence at her criminal trial. Yet she seeks to have this Court reach the merits of her arguments on that issue in the context of the civil appeal, and before they have been properly litigated before and adjudicated by the District Court in the criminal case. As Judge Nathan has not yet addressed (or even had the opportunity to address) that issue in the criminal case, the issues Maxwell raises on this appeal do not appear to be final. Any such arguments are properly heard in the criminal case in the first instance by the district judge, "who play[s] a 'special role' in managing ongoing litigation," and who "can better exercise [his or her] responsibility [to police the prejudgment tactics of litigants] if 17 DOJ-OGR-00019360 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page19 of 24 the appellate courts do not repeatedly intervene to second-guess prejudgment rulings." Mohawk, 558 U.S. at 106 (alterations in original) (internal quotation mark omitted) (quoting Firestone, 449 at 374; Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 436 (1985)). 23. The cases cited in Maxwell's notice of appeal do not alter this analysis. All three are inapposite because they involved appeals by intervenors — not parties — seeking to modify protective orders in civil cases. See Pichler v. UNITE, 585 F.3d 741, 745-746 (3d Cir. 2009) (third party intervenor foundation appealing order denying motion to modify protective order in civil litigation to allow third party access to discovery materials); Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 741 (2d Cir. 1987) (Commodity Futures Trading Commission ("CFTC") acting as third party intervenor appealing order denying motion to modify protective order in civil litigation to allow CFTC to obtain discovery exchanged by parties to civil case permissible because "[t]he entire controversy between the CFTC and the defendants in this case was disposed of by the district court's denial of the government's motion to modify the protective order"); Brown v. Maxwell, 929 F.3d 41, 46 (2d Cir. 2019) (third party intervenors, including members of the press, appealing order denying motion to modify protective order in civil litigation to allow third parties access to sealed filings, after parties to the litigation settled). Thus, appellate jurisdiction in those cases 18 DOJ-OGR-00019361 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page20 of 24 was founded on the principle that when intervenors seek access to sealed records, "orders denying access are final as to the intervenors." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 117 (2d Cir. 2006) (emphasis added). By contrast, rulings governing the parties' use of discovery materials — such as Judge Nathan's Order here — are not appealable in the context of a criminal prosecution until after judgment is entered. See Caparros, 800 F.2d at 24; Pappas, 94 F.3d at 798. 24. Judge Nathan's Order does not fall into one of the narrow categories of decisions in a criminal case reviewable on interlocutory appeal. Accordingly, Maxwell's appeal should be dismissed. II. THE MOTION TO CONSOLIDATE SHOULD BE DENIED 25. Even if Maxwell's appeal is not dismissed — which it should be — her motion to consolidate the appeal in this criminal case with the appeal in the Giuffre v. Maxwell civil case should be denied. 26. Despite Maxwell's efforts to characterize this criminal case as somehow intertwined with the Giuffre civil case, the issues on appeal are factually and legally distinct. The civil appeal concerns Judge Preska's order unsealing civil litigation materials. The Government is not a party to the civil suit, the Government has never intervened or appeared in the civil suit, the Government has had no role in the litigation that resulted in Judge Preska's order, and the Government has no legal interest in the relief Maxwell seeks in the civil case. For 19 DOJ-OGR-00019362 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page21 of 24 these reasons alone, the Court should deny Maxwell's motion to consolidate these appeals. 27. Maxwell has filed two separate appeals challenging two different orders by two different district judges. But Maxwell's consolidation motion makes plain that her goal — in both appeals — is to ask this Court to rule on an entirely different question: the lawfulness of the Government's applications to modify certain protective orders in other judicial proceedings. Maxwell's strategy is procedurally improper, for at least two reasons. First, none of the applications or orders with which Maxwell takes issue are before this Court for review — the civil appeal concerns Judge Preska's unsealing order, and this criminal appeal concerns Judge Nathan's Order denying Maxwell's request to modify the Protective Order. Maxwell's motion to consolidate offers no coherent explanation of the connection between the legality of the Government's prior applications and those two appeals. Indeed, as Judge Nathan found, Maxwell has failed to explain, despite a high volume of "heated rhetoric," how those applications could have any possible impact on Judge Preska's decision to unseal filings in the civil litigation. (Ex. F at 3). Second, if Maxwell seeks to challenge the manner in which the Government gathered evidence in a criminal investigation, neither the civil appeal nor this interlocutory criminal appeal is the appropriate forum for her arguments on that score. Maxwell will have the opportunity to raise 20 DOJ-OGR-00019363 --- PAGE BREAK --- any legal objections to the Government's evidence before Judge Nathan, who is presiding over the criminal case. If Maxwell is dissatisfied with Judge Nathan's rulings on those matters, she will have a full opportunity to appeal those rulings after entry of final judgment in her criminal case. The Court should not permit Maxwell to raise these issues at this juncture, before they have been fully litigated before and adjudicated by the presiding district judge. 28. Moreover, Maxwell's motion to consolidate is a transparent attempt to circumvent Judge Nathan's Order without litigating the merits of this appeal. That Order, which is the only ruling on appeal in this case, prohibits Maxwell from using certain criminal discovery materials in civil litigation. If this Court were to consolidate the criminal and civil appeals, the record on appeal in both cases would be merged, the lines between the two cases would be blurred in the manner Maxwell seeks, and the Court would effectively reverse Judge Nathan's Order and grant Maxwell the relief she seeks in this appeal — all without requiring Maxwell to show that Judge Nathan actually abused her discretion by denying Maxwell's motion to modify the Protective Order.2 Indeed, Maxwell's motion to consolidate does not in any way suggest that there will be anything left 2 Moreover, if the appeals were consolidated, the sealed filings in this criminal appeal would become part of the record in the civil appeal. The Government is concerned that consolidating these matters would entail disseminating sensitive, sealed documents in a criminal case to civil litigants. 21 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page23 of 24 for this Court to adjudicate regarding Judge Nathan's Order — the lone Order on appeal in this matter — if the Court were to grant Maxwell's request to consolidate these appeals. Accordingly, the motion to consolidate should be denied. CONCLUSION 29. For the foregoing reasons, Maxwell's appeal should be dismissed for lack of jurisdiction. If the appeal is not dismissed, the Government respectfully requests that the Court deny Maxwell's motion for consolidation. Dated: New York, New York September 16, 2020 /s/ Maurene Comey Maurene Comey Assistant United States Attorney Telephone: (212) 637-2324 22 DOJ-OGR-00019365 --- PAGE BREAK --- Case 20-3061, Document 37, 09/16/2020, 2932231, Page24 of 24 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this motion/opposition complies with the type-volume limitation of the Federal Rules of Appellate Procedure. As measured by the word processing system used to prepare this motion/opposition, there are 5,099 words in this motion/opposition. AUDREY STRAUSS, Acting United States Attorney for the Southern District of New York By: MAURENE COMEY, Assistant United States Attorney DOJ-OGR-00019366