Document 38

Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 1 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA - v. - JEFFREY EPSTEIN, Defendant. RICHARD M. BERMAN, United States District Judge: WHEREAS the Government intends to produce to JEFFREY EPSTEIN, the defendant, certain documents and materials that (i) affect the privacy and confidentiality of individuals, (ii) would impede, if prematurely disclosed, the Government's ongoing investigation of uncharged individuals; (iii) would risk prejudicial pretrial publicity if publicly disseminated, and (iv) is not authorized to be disclosed to the public or disclosed beyond that which is necessary for the defense of this action, and other materials pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16") and pursuant to any other disclosure obligations (collectively, the "Discovery"), which contain sensitive, confidential, or personal identifying information; WHEREAS, the Government seeks to protect sensitive, confidential, or personal identifying information contained in the materials it produces consistent with Rule 16 or other disclosure obligations; 1 --- PAGE BREAK --- Case 21-770, Document 38, 04/12/2021, 3075291, Page1 of 3 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): 21-58, 21-770 Caption [use short title] Motion for: Leave to file exhibit under seal Set forth below precise, complete statement of relief sought: The Government seeks leave to file exhibit under seal United States v. Maxwell MOVING PARTY: United States of America OPPOSING PARTY: Ghislaine Maxwell Plaintiff Defendant Appellant/Petitioner Appellee/Respondent MOVING ATTORNEY: Audrey Strauss, U.S. Attorney, Southern District of New York OPPOSING ATTORNEY: David Markus By: Lara Pomerantz, Assistant U.S. Attorney Markus/Moss PLLC One Saint Andrew's Plaza, New York, NY 10007 40 NW Third Street, PH 1, Miami, FL 33128 (212) 637-2343; Email: lara.pomerantz@usdoj.gov (305) 379-6667; Email: dmarkus@markuslaw.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: April 26, 2021 Signature of Moving Attorney: s/ Lara Pomerantz Date: 04/12/21 Service by: CM/ECF Other [Attach proof of service] 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: Form T-1080 (rev.12-13) DOJ-OGR-00001315 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 1 of 6 COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 +1 212 957 7600 phone www.cohengresser.com Mark S. Cohen +1 (212) 957-7600 mcohen@cohengresser.com Christian R. Everdell +1 (212) 957-7600 ceverdell@cohengresser.com August 10, 2020 VIA 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: On behalf of our client, Ghislaine Maxwell, we respectfully submit this letter motion seeking the Court's assistance with two critical issues that greatly impact Ms. Maxwell's ability to receive a fair trial on the schedule set by the Court. First, we request that the Court enter an order directing the government to disclose to defense counsel the identities of the three alleged victims referenced in the indictment ("Victims 1-3"), subject to the restrictions of the protective order entered by the Court, so that Ms. Maxwell and defense counsel can meaningfully investigate the alleged conduct, which is now over 25 years old. Second, we request that the Court enter an order directing the Bureau of Prisons ("BOP") to release Ms. Maxwell into the general population and provide Ms. Maxwell with increased access to the discovery materials while she is detained so that she can meaningfully participate in the preparation of her defense. 1. Disclosure of Victim Identities The Court should order the government to disclose the identities of Victims 1-3 to defense counsel, subject to the restrictions of the protective order, because Ms. Maxwell cannot prepare for or receive a fair trial without this information. Moreover, the requested disclosure is authorized under the law in this Circuit, and is narrowly-tailored and reasonable under the circumstances of this case. Here, it is clear from the face of the indictment that the government's case is based on the accounts of Victims 1-3, the three individuals specifically referenced in the indictment. It is therefore critical for the defense to know the names of these individuals as soon as possible, so DOJ-OGR-00001705 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 1 of 6 COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 +1 212 957 7600 www.cohengresser.com Mark S. Cohen +1 (212) 957-7600 mcohen@cohengresser.com Christian R. Everdell +1 (212) 957-7600 ceverdell@cohengresser.com August 10, 2020 VIA 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: On behalf of our client, Ghislaine Maxwell, we respectfully submit this letter motion seeking the Court's assistance with two critical issues that greatly impact Ms. Maxwell's ability to receive a fair trial on the schedule set by the Court. First, we request that the Court enter an order directing the government to disclose to defense counsel the identities of the three alleged victims referenced in the indictment ("Victims 1-3"), subject to the restrictions of the protective order entered by the Court, so that Ms. Maxwell and defense counsel can meaningfully investigate the alleged conduct, which is now over 25 years old. Second, we request that the Court enter an order directing the Bureau of Prisons ("BOP") to release Ms. Maxwell into the general population and provide Ms. Maxwell with increased access to the discovery materials while she is detained so that she can meaningfully participate in the preparation of her defense. 1. Disclosure of Victim Identities The Court should order the government to disclose the identities of Victims 1-3 to defense counsel, subject to the restrictions of the protective order, because Ms. Maxwell cannot prepare for or receive a fair trial without this information. Moreover, the requested disclosure is authorized under the law in this Circuit, and is narrowly-tailored and reasonable under the circumstances of this case. Here, it is clear from the face of the indictment that the government's case is based on the accounts of Victims 1-3, the three individuals specifically referenced in the indictment. It is therefore critical for the defense to know the names of these individuals as soon as possible, so The Government is hereby ORDERED to respond to the Defendant's letter motion by Thursday, August 13, 2020. The Defendant's reply, if any, is due on or before Monday, August 17, 2020. SO ORDERED. Alison J. Nathan, U.S.D.J. SO ORDERED. 8/11/20 DOJ-OGR-00001713 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page1 of 23 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-00019367 --- PAGE BREAK --- Case 21-770, Document 38, 04/12/2021, 3075291, Page2 of 3 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ---------------------------------------------------- x UNITED STATES OF AMERICA, Appellee, : AFFIRMATION - v. - : Docket Nos. 21-58, 21- GHISLAINE MAXWELL, : 770 Defendant-Appellant, : ---------------------------------------------------- x STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss.: SOUTHERN DISTRICT OF NEW YORK ) LARA POMERANTZ, pursuant to 28 U.S.C. § 1746, hereby affirms under penalty of perjury: 1. I am an Assistant United States Attorney in the Office of Audrey Strauss, United States Attorney for the Southern District of New York, and I represent the Government in this appeal. I submit this affirmation in support of the Government's motion to file an unredacted copy of Exhibit F, the Government's Memorandum in Opposition to the Defendant's Renewed Motion for Release, under seal. 2. Counsel for the Defendant-Appellant filed publicly a redacted version of Exhibit F, which was the version publicly filed on the docket in this case. (Dkt. No. 100). The redactions to that document are narrowly tailored to cover (1) information implicating the privacy interests of third parties previously articulated by the defense (Dkt. No. 86), and (2) Confidential Material produced by the Government in discovery and governed by the protective order in this case (Dkt. No. 36). The Government believes that some of the redacted information is pertinent to this appeal and therefore seeks leave to file an unredacted copy of Exhibit F under seal. DOJ-OGR-00001316 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 2 of 6 The Honorable Alison J. Nathan August 10, 2020 Page 2 that we can mount an effective defense investigation and adequately prepare for trial. This is especially true in this case where the alleged misconduct took place on unspecified dates roughly 25 years ago in multiple locations—namely, New York, Florida, New Mexico, and the United Kingdom—and where the central figure, Jeffrey Epstein, is alleged to have engaged in misconduct with dozens, if not hundreds, of alleged victims. The defense should not have to speculate which of these individuals are Victims 1-3 referenced in the indictment. It is now almost six weeks since Ms. Maxwell's arrest, and the government is just now beginning to produce Rule 16 discovery, despite confirming to the Court that discovery would begin as soon as the Court entered a protective order. Moreover, the government still has not confirmed to the defense the identities of Victims 1-3. Ms. Maxwell was arrested on July 2, 2020. On July 14, 2020, during her arraignment and bail hearing, the government indicated that it had "begun preparing an initial production" and would be "prepared to produce a first batch of discovery as soon as a protective order [was] entered by the Court."1 The Court entered the protective order on July 30, 2020. (Dkt. 36). The following day, July 31, 2020, defense counsel contacted the government and requested disclosure of the identities of Victims 1-3. The government refused to do so, stating that it would only disclose the identities of alleged victims through its production of Rule 16 discovery, or as part of its production of Jencks Act material closer to trial. That same day, per the government's request, the defense provided a hard drive to load the Rule 16 discovery. However, the government did not make its first production until after 2:00 p.m. on Wednesday, August 5, 2020. The government's initial production was a subset of non-electronic discovery materials, totaling nearly 13,000 pages, which the defense expeditiously reviewed for high-level content. Upon initial review, the materials contain certain records related to one specific individual. However, nothing in the production specifically identifies this individual as Victim 1, 2, or 3. The defense should not be required to speculate whether this individual is one of the three alleged Victims, and if so, which one. Moreover, the initial production does not appear to contain any materials identifying the other two alleged Victims. Although the government has indicated that it will provide additional discovery on a rolling basis, if the initial production is any guide, it seems unlikely that later productions will sufficiently identify the remaining alleged Victims. Furthermore, the defense should not be forced to wait almost two additional weeks until August 21, 2020 (the deadline for the production of initial non-electronic discovery) or potentially months until November 9, 2020 (deadline for the completion of all discovery) before learning information that is vital to the defense. Ms. Maxwell's right to a fair trial depends on the defense's ability to adequately investigate the charges against her, and that investigation will be significantly impaired until we know for certain the names of Victims 1-3. 1 July 14, 2020 Tr. at 12:14-17; see also id. at 12:25-13:3 ("Following the entry of [the] protective order . . . the government is prepared to make a substantial production of discovery.") DOJ-OGR-00001706 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page2 of 23 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-00019368 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 3 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 3 of 9 e) May be shown to, but not disseminated to or provided copies of to, prospective witnesses and their counsel (collectively, "Potential Witnesses"), to the extent deemed necessary by defense counsel, for trial preparation. 2. To the extent the Discovery is disclosed to Defense Staff, Defense Experts/Advisors, Other Authorized Persons, or Potential Witnesses, Defense Counsel shall instruct such individual(s) of the terms of this Order and that such individual(s) are bound by this Order. To the extent that Discovery is disseminated to Defense Staff, Defense Experts/Advisors, or Other Authorized Persons, Defense Counsel shall encrypt and/or password protect the Discovery. The provisions of this paragraph do not apply to communications exclusively between and among Defense Counsel. 3. The Government, the Defendant, Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Witnesses, and Other Authorized Persons are prohibited from posting or causing to be posted any of the Discovery or information contained in the Discovery on the Internet, including any social media website. 4. The Government (other than in the discharge of their professional obligations in this matter), Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Witnesses, and Other Authorized Persons are precluded from publicly 3 DOJ-OGR-00000597 --- PAGE BREAK --- Case 21-770, Document 38, 04/12/2021, 3075291, Page3 of 3 3. The Government has communicated with counsel for the Defendant-Appellant, who does not object to this request. 4. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York April 12, 2021 /s/ Lara Pomerantz Lara Pomerantz Assistant United States Attorney Telephone: (212) 637-2343 2 DOJ-OGR-00001317 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 3 of 6 The Honorable Alison J. Nathan August 10, 2020 Page 3 District courts have the inherent authority to compel pretrial disclosure of the identities of government witnesses. See United States v. Cannone, 528 F.2d 296, 301 (2d Cir. 1975). Such disclosure is warranted when there is a specific showing that the disclosure is material to the preparation of the defense and reasonable in light of the circumstances surrounding the case. See id. at 302; United States v. Rueb, No. 00 CR. 91 (RWS), 2001 WL 96177, at *9 (S.D.N.Y. Feb. 5, 2001) (ordering disclosure of government witness list where defendant "ha[d] met his burden to show a particularized need that outweighs the possible dangers of disclosure").2 This principle has been applied in sex crimes cases, where the right of the defendant to prepare a defense can outweigh the privacy interests of alleged victims referenced in the indictment and warrant the disclosure of their identities. See United States v. Warme, No. 09CR19A, 2009 WL 427111, at *2 (W.D.N.Y. Feb. 20, 2009) (ordering government to disclose identity of sex crime victim where "defendant's ability to adequately prepare a defense against this charge is significantly compromised without being advised of the identity of the alleged victim"); see also id. ("Absent knowing the identity of Victim 1, the defendant is precluded from investigating the facts surrounding the crime charged.") The defense's narrowly-tailored request, which only seeks the disclosure of the identity of Victims 1-3, and not the government's entire witness list, is also reasonable in light of the circumstances of this case. And because the protective order prohibits 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 (Dkt. 36 ¶ 5), the disclosure will have no impact on the privacy interests of Victims 1-3. Nor is there any basis for the government to claim that there is a risk that witnesses will face intimidation or refuse to testify.3 To the contrary, many alleged victims have already chosen to speak on the record in criminal proceedings in the Epstein case and in this case; to file civil suits against Mr. Epstein, Ms. Maxwell and others, and to provide deposition testimony and discovery in those suits; and to give interviews to the press and other television and film productions. Moreover, Victims 1-3 are no longer minors, but are now adults in their late 30s or early 40s, which provides additional assurance that they will be willing to appear for trial. Disclosure is therefore warranted here. 2 In determining whether to order pretrial disclosure of the identity of witnesses, some district courts have considered the following factors: (1) Did the offense alleged in the indictment involve a crime of violence? (2) Have the defendants been arrested or convicted for crimes involving violence? (3) Will the evidence in the case largely consist of testimony relating to documents (which by their nature are not easily altered)? (4) Is there a realistic possibility that supplying the witnesses' names prior to trial will increase the likelihood that the prosecution's witnesses will not appear at trial, or will be unwilling to testify at trial? (5) Does the indictment allege offenses occurring over an extended period of time, making preparation of the defendants' defense complex and difficult? (6) Do the defendants have limited funds with which to investigate and prepare their defense? Rueb, 2001 WL 96177, at *7-8 (citation omitted). The Second Circuit, however, has not adopted these factors, nor do they constitute an exhaustive list of factors that the Court may consider in determining whether to disclose the identities of alleged victims. 3 Notably, the government did not argue at the bail hearing that Ms. Maxwell posed a danger to the community. (See 7/14/2020 Tr. at 37:15-21). DOJ-OGR-00001707 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page3 of 23 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 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 4 of 6 The Honorable Alison J. Nathan August 10, 2020 Page 4 See Warme, 2009 WL 427111, at *2 (ordering government to disclose identity of sex crime victim where "the government has not demonstrated that disclosing the identity to the defendant would subject the victim to a significant risk, or to increase the likelihood that victim will refuse to appear or testify"). With each day that passes without knowing the identities of Victims 1-3, the defense is losing crucial time to conduct a meaningful investigation and prepare its defense so that Ms. Maxwell can receive a fair trial on the schedule set by the Court. For these reasons, we respectfully request the Court to order the government to disclose the identities of Victims 1-3 to defense counsel, consistent with the provisions of the protective order. 2. Ms. Maxwell's Conditions of Confinement and Access to Discovery We also seek the Court's assistance to improve Ms. Maxwell's conditions of confinement at the Metropolitan Detention Center ("MDC"), and her access to the discovery in this case, so that she can meaningfully participate in her defense. As discussed below, Ms. Maxwell has been treated less favorably than a typical pretrial detainee, and this has impacted her ability to assist in her defense. It has become apparent that the BOP's treatment of Ms. Maxwell is a reaction to the circumstances surrounding the pretrial detention and death of Mr. Epstein. On July 6, 2019, Mr. Epstein was arrested and detained at the Metropolitan Correctional Center ("MCC") on sex trafficking charges, and was subsequently assigned to the MCC's Special Housing Unit ("SHU") due to risk factors for suicide and safety concerns. After an apparent suicide attempt on July 23, 2019, Mr. Epstein was transferred to suicide watch and then psychological observation. On August 10, 2019, Mr. Epstein's body was discovered in his cell. Thereafter, the government indicted the two correctional officers who were assigned to the SHU at the time of Mr. Epstein's death. As a result of what occurred with Mr. Epstein, Ms. Maxwell is being treated worse than other similarly situated pretrial detainees, which significantly impacts her ability to prepare a defense and be ready for trial on the schedule set by the Court. Since arriving at the MDC over a month ago, on July 6, 2020, Ms. Maxwell has been held under uniquely onerous conditions. Ms. Maxwell has been confined alone in an area outside of the general population for the entire 36-day period (40 days if we include her confinement in New Hampshire), which is over three weeks longer than the 14-day quarantine period required for all new arrivals to the MDC under current COVID-19 protocols, and there is no indication that this will change. She continues to be surveilled 24 hours a day by security cameras and by multiple prison guards, many of whom do not appear to be regular MDC personnel. These prison guards constantly observe Ms. Maxwell and take notes on her every activity, including her phone conversations with defense counsel. Until recently, Ms. Maxwell was subjected to suicide watch protocols, including being woken up every few hours during the night and being forced to wear special clothing, despite the --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page4 of 23 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-00019370 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 5 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 5 of 9 other identifying designation, are deemed "Confidential Information." 7. Confidential Information may contain personal identification information of specific individuals who are not parties to this action, and other confidential information; as well as information that identifies, or could lead to the identification of, witnesses in this matter. The Government's designation of material as Confidential Information will be controlling absent contrary order of the Court. 8. Confidential Information disclosed to the defendant, or Defense Counsel, respectively, during the course of proceedings in this action: a) Shall be used by the defendant or his counsel only for purposes of the defense of this action; b) Shall be maintained in a safe and secure manner solely by Defense Counsel; c) Shall be reviewed by the Defendant solely in the presence of Defense Counsel; d) Shall not be possessed outside the presence of Defense Counsel, or maintained, by the Defendant; e) May be disclosed only by Defense Counsel and only to Designated Persons; f) May be shown to, but not disseminated to or provided copies of to, Potential Witnesses, to the extent deemed 5 DOJ-OGR-00000599 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 5 of 6 The Honorable Alison J. Nathan August 10, 2020 Page 5 fact that she, unlike Mr. Epstein, has never been suicidal and was never diagnosed as exhibiting risk factors for suicide. Her cell is searched multiple times a day and she has been forced to undergo numerous body scans. In addition, Ms. Maxwell's access to the standard prison resources available to other pretrial detainees in the general population has been extensively curtailed or eliminated altogether. This treatment threatens Ms. Maxwell's Sixth Amendment right to participate in her defense. This case will require time-consuming review of voluminous discovery materials. Ms. Maxwell must therefore have adequate time to review the materials, to confidentially take notes on them, and to discuss them with her attorneys. But there currently is no such structure in place. Indeed, although the government agreed that Ms. Maxwell would have access to a hard drive containing the discovery in the MDC, it is our understanding that the hard drive containing the first production has not yet been made available to Ms. Maxwell. Defense counsel understands that the BOP has proposed (but not yet implemented) a procedure that would permit Ms. Maxwell to use a computer on her floor to review discovery materials during the three-hour period each day that she is not confined to her cell. But there are two significant flaws in this proposal: - The three-hour period is specifically designated to be used by Ms. Maxwell for recreation, exercise, and personal hygiene, including showers. The BOP should not be permitted to force Ms. Maxwell to choose between maintenance of her physical and mental health and participating in her own defense. - Even if Ms. Maxwell were to forgo personal maintenance altogether, three hours a day is on its face an insufficient amount of time for reviewing documents in a complex case with voluminous document discovery, such as this one. As an illustration, the government's first set of production materials consists of nearly 13,000 pages of documents. Assuming it takes Ms. Maxwell an average of one minute to review each page of those materials, based on the BOP's proposed cap of three hours per day of review, Ms. Maxwell would conceivably finish reviewing this first set of documents at the earliest by mid-November 2020. This is entirely unworkable under the schedule set by the Court. Ms. Maxwell does not seek special treatment at the MDC; but she does ask that she not be specially disfavored in her treatment in detention, especially when it comes to preparing her defense to conduct that allegedly took place over 25 years ago. In light of the voluminous discovery that we expect to receive, Ms. Maxwell would normally be spending 40 hours a week or more reviewing the discovery. Ms. Maxwell should be granted a comparable amount of time DOJ-OGR-00001709 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page5 of 23 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-00019371 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 6 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 6 of 9 necessary by defense counsel, for trial preparation, and after defense counsel and/or Defense Staff instructs such individual(s) of the terms of this Order and that such individual(s) are bound by this Order. 9. Copies of Discovery or other materials produced by the Government in this action bearing "highly confidential" stamps or otherwise designated as "highly confidential" and/or electronic Discovery materials designated as "highly confidential" by the Government, including such materials marked as "highly confidential" either on the documents or materials themselves, or designated as "highly confidential" in a cover letter, index, folder title, or other identifying designation, are deemed "Highly Confidential Information." 10. Highly Confidential Information contains images of nude or partially-nude individuals. The Government's designation of material as Highly Confidential Information will be controlling absent contrary order of the Court. Highly Confidential Information disclosed to Defense Counsel during the course of proceedings in this action: a) Shall not be disseminated, transmitted, or otherwise copied and provided to Defense Counsel or the Defendant; b) Shall be reviewed by the Defendant solely in the presence of Defense Counsel; 6 DOJ-OGR-00000600 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 38 Filed 08/10/20 Page 6 of 6 The Honorable Alison J. Nathan August 10, 2020 Page 6 to review the discovery in the MDC so that she can engage in her defense full-time. We therefore request that Ms. Maxwell: - Be released to the general population and be granted the privileges given to other pretrial detainees. - Be given significantly increased access to a computer terminal in order to review the discovery in this case. * * * For the reasons set forth above, we respectfully submit that the Court should grant Ms. Maxwell's motion. Respectfully submitted, /s/ Christian R. Everdell Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue, 21st Floor New York, New York 10022 (212) 957-7600 cc: All counsel of record (via ECF) DOJ-OGR-00001710 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page6 of 23 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-00019372 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 7 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 7 of 9 c) Shall not be possessed outside the presence of Defense Counsel, or maintained, by the Defendant; d) Shall be made available for inspection by Defense Counsel and the Defendant, under the protection of law enforcement officers or employees; and e) Shall not be copied or otherwise duplicated by Defense Counsel or the Defendant during such inspections. 11. The Defendant and Defense Counsel shall provide a copy of this Order to Designated Persons to whom they disclose Confidential Information or Highly Confidential Information. Prior to disclosure of such information to Designated Persons, any such Designated Person shall agree to be subject to the terms of this Order by signing a copy hereof and stating that they "Agree to be bound by the terms herein," and providing such copy to the defendant's counsel. However, the defendant and his or her respective counsel need not obtain signatures from any member of the defense team (i.e., attorneys, experts, consultants, paralegals, investigators, support personnel, and secretarial staff involved in the representation of the defendants in this case), all of whom are nonetheless bound by this Protective Order. 12. Except for Discovery that has been made part of the record of this case, Defense Counsel shall return to the Government or securely destroy or delete all Discovery, 7 DOJ-OGR-00000601 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page7 of 23 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-00019373 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 8 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 8 of 9 including but not limited to Confidential Information, within 30 days of the expiration of the period for direct appeal from any verdict in the above-captioned case; the period of direct appeal from any order dismissing any of the charges in the above-captioned case; the expiration of the period for a petition pursuant to 28 U.S.C. § 2255; or the granting of any motion made on behalf of the Government dismissing any charges in the above-captioned case, whichever date is later. 8 DOJ-OGR-00000602 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page8 of 23 458 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-00019374 --- PAGE BREAK --- Case 1:19-cr-00490-RMB Document 38 Filed 07/25/19 Page 9 of 9 Case 1:19-cr-00490-RMB Document 37-1 Filed 07/25/19 Page 9 of 9 13. The foregoing provisions shall remain in effect unless and until either (a) the Government and Defense Counsel mutually agree otherwise, or (b) this Order is modified by further order of the Court. SO ORDERED: Dated: New York, New York July 25, 2019 HONORABLE RICHARD M. BERMAN United States District Judge AGREED AND CONSENTED TO: Dated: July 24, 2019 New York, New York GEOFFREY S. BERMAN United States Attorney Southern District of New York By: /s/ Alison Moe / Alex Rossmiller / Maurene Comey Assistant United States Attorneys Dated: July 25, 2019 New York, New York JEFFREY EPSTEIN By: Martin Weinberg, Esq. Reid Weingarten, Esq. Counsel for Jeffrey Epstein 9 DOJ-OGR-00000603 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page9 of 23 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-00019375 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page10 of 23 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-00019376 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page11 of 23 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-00019377 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page12 of 23 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-00019378 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page13 of 23 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; Capiro, 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-00019379 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page14 of 23 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-00019380 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page15 of 23 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-00019381 --- 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 38, 09/16/2020, 2932233, Page17 of 23 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-00019383 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page18 of 23 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-00019384 --- PAGE BREAK --- 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 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page20 of 23 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-00019386 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page21 of 23 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 2Moreover, 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 DOJ-OGR-00019387 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page22 of 23 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-00019388 --- PAGE BREAK --- Case 20-3061, Document 38, 09/16/2020, 2932233, Page23 of 23 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-00019389