Document 372

Case 1:20-cr-00330-PAE Document 372 Filed 10/26/21 Page 1 of 3 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 October 26, 2021 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter in response to the Court's Order dated October 22, 2021, attaching the Court's draft preliminary remarks to be recorded and played before each questionnaire session and directing the parties to suggest any proposed edits by letter. (Dkt. No. 366). The Government has no objection to the Court's proposed remarks. However, the Government seeks clarification from the Court of the following line in the Court's draft remarks: "Throughout the selection process and if you are selected as a juror, although the lawyers and I will know your names, we will only refer to you in Court by your juror number." (Id. at 3). In particular, the Government respectfully requests that the Court clarify for the parties when during the jury selection process that the parties will be provided with the names of prospective jurors. The Government understands that during the jury selection process, prospective jurors will only be referred to in open court by their juror numbers. The Government seeks confirmation that, consistent with the practice in other high profile cases in this District using jury questionnaires, the parties will be provided the prospective jurors' names no earlier than November 16, 2021, the day that oral voir dire begins. See, e.g., United States v. Skelos, 15 Cr. 317 (KMW); United States DOJ-OGR-00005380 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 372 Filed 10/26/21 Page 2 of 3 Page 2 v. Kaloyeros, et al., 16 Cr. 776 (VEC); United States v. Percoco, et al., 16 Cr. 776 (VEC); cf. Oct. 12, 2021 Tr. at 7:14-8:1, United States v. Parnas, 19 Cr. 725 (JPO) (denying defense's request for a second day of jury selection to allow time for background research on potential jurors; no juror questionnaire used). Here, the time between the administration of the jury questionnaire, oral voir dire, and the start of trial is significantly more extended in light of, among other things, COVID-19 precautions. As the Court has noted, the purpose of the jury questionnaire process is to streamline challenges for cause. Juror identities are not necessary for that process. The Government submits that having identifying information for jurors for weeks in advance of selection would be unusual, and is not necessary, because "the purpose of the voir dire is to ascertain disqualifications, not to afford individual analysis in depth to permit a party to choose a jury that fits into some mold that he believes appropriate for his case." United States v. Barnes, 604 F.2d 121, 138 (2d Cir. 1979) (citations omitted). For similar reasons, the Government respectfully requests that peremptory challenges be exercised at the conclusion of voir dire and not on November 29, 2021, the day that trial is scheduled to commence. Accordingly, the Government respectfully requests that the Court clarify for the parties when during the jury selection process the parties will be provided with the names of prospective jurors. DOJ-OGR-00005381 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 372 Filed 10/26/21 Page 3 of 3 Page 3 Respectfully submitted, DAMIAN WILLIAMS United States Attorney By: s/ Alison Moe Lara Pomerantz Andrew Rohrbach Assistant United States Attorneys Southern District of New York Cc: Defense Counsel (By ECF) DOJ-OGR-00005382 --- PAGE BREAK --- Case1:20-cr-00320-AJN Document 372 Filed 08/03/20 Page 3 of 63 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 App.089 DOJ-OGR-00019548 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 372 Filed 08/08/20 Page 20 of 63 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 App.088 DOJ-OGR-00019547