Document 40-1

Case 21-770, Document 40-1, 04/12/2021, 3075763, Page1 of 25 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 LARA POMERANTZ, pursuant to Title 28, United States Code, Section 1746, hereby declares 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 United States of America in this matter. I submit this affirmation in opposition to defendant-appellant Ghislaine Maxwell's appeal from the District Court's orders denying pre-trial release. 2. Maxwell appeals from orders denying her pre-trial release that were entered on December 28, 2020 and March 22, 2021, in the United States 1 DOJ-OGR-00001318 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page2 of 25 District Court for the Southern District of New York, by the Honorable Alison J. Nathan, United States District Judge. 3. Indictment 20 Cr. 330 (AJN) was filed on June 29, 2020, charging Maxwell in six counts. On July 2, 2020, Maxwell was arrested. On July 8, 2020, Indictment S1 20 Cr. 330 (AJN) (the "Indictment") was filed containing the same charges with ministerial corrections. (Dkt. 17 ("Ind."))1. Count One 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 perjury, in violation of 18 U.S.C. § 1623. 4. On July 14, 2020, Judge Nathan held a lengthy bail hearing, at the conclusion of which she denied Maxwell bail. (Ex. D). Maxwell twice renewed 1 "Br." refers to Maxwell's brief on appeal; "Ex." refers to the exhibits to Maxwell's brief; "Gov't Ex." refers to the exhibit to this affidavit; and "Dkt." refers to an entry on the District Court's docket for this case. Unless otherwise noted, case text quotations omit all internal quotation marks and alterations. 2 DOJ-OGR-00001319 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page3 of 25 her bail application (Ex. E, I), which motions Judge Nathan denied in written orders dated December 28, 2020 and March 22, 2021 (Ex. H, L). Maxwell filed notices of appeal from these two orders (though not the original detention order). 5. Maxwell's trial is scheduled to begin on July 12, 2021. STATEMENT OF FACTS A. The Offense Conduct and Evidence 6. The Indictment charges Maxwell with facilitating the sexual abuse of multiple minor victims by Jeffrey Epstein between approximately 1994 and 1997.2 (Ind. ¶ 1). During that period, Maxwell played a key role in Epstein's sexual abuse of minor girls by helping to identify, entice, and groom minor victims to engage in sex acts with Epstein. (Ind. ¶ 1). Maxwell befriended victims by asking them about their lives, taking them to the movies or on shopping trips, and encouraging them to interact with Epstein. (Ind. ¶ 4(a)). Maxwell groomed victims for sexual abuse for, among other things, discussing sexual topics, undressing in 2 After Judge Nathan's bail decisions were issued, Superseding Indictment S2 20 Cr. 330 (AJN) (the "Superseding Indictment") was filed, charging Maxwell in eight counts. In addition to the original six charges, the Superseding Indictment also charges Maxwell with sex trafficking conspiracy, in violation of 18 U.S.C. § 371, and sex trafficking of a minor, in violation of 18 U.S.C. § 1591. Among other things, the Superseding Indictment expanded the scope of the conspiracies charged in Counts One and Three from 1994 through 2004 and specifically identified a fourth victim of those conspiracies. The additional charges strengthen the evidence against Maxwell and further support Judge Nathan's detention orders. 3 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page4 of 25 front of a victim, being present when a minor victim was undressed, and/or being present for sex acts involving a minor victim and Epstein. (Ind. ¶ 4(b)). Maxwell’s presence as an adult woman normalized Epstein’s abusive behavior, and she took part in at least some acts of sexual abuse. (Ind. ¶¶ 4(c), (e)). To make victims feel indebted to Epstein, Maxwell encouraged victims to accept Epstein’s offers of financial assistance. (Ind. ¶ 4(d)). The victims were as young as 14 years old when they were groomed and abused by Maxwell and Epstein, both of whom knew that their victims were minors. (Ind. ¶ 1). 7. Together, Maxwell and Epstein conspired to entice and cause minor victims to travel to Epstein’s residences in different states, which Maxwell knew and intended would result in their grooming for and subjection to sexual abuse. (Ind. ¶ 2). To conceal her crimes, Maxwell lied under oath during a civil deposition, including when asked about her interactions with minor girls. (Ind. ¶ 2). 8. The Indictment contains detailed speaking allegations which describe: the means and methods of Maxwell’s criminal conduct (Ind. ¶ 4); Maxwell’s interactions with three minor victims (Ind. ¶¶ 7(a)-(c)); specific overt acts performed by Maxwell (Ind. ¶¶ 11(a)-(d)); and specific false statements that form the basis of the perjury charges (Ind. ¶¶ 21, 23). 9. As the Government explained in oral and written proffers, the 4 DOJ-OGR-00001321 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page5 of 25 allegations in the Indictment are supported by the detailed, credible testimony of three different victim-witnesses. (See, e.g., Ex. A at 5; Ex. F at 9-10). Each victim-witness's testimony is not only corroborated by that of the other victim-witnesses, but also by the testimony of other witnesses and documentary evidence, including flight records, diary entries, and other evidence. (Ex. A at 5; Ex. F at 10-12).3 B. The Initial Bail Hearing 10. Before Maxwell's bail hearing, the parties filed extensive written submissions. (Ex. A, B, C). On July 14, 2020, Judge Nathan heard lengthy oral argument from the parties and received statements from two victims. One victim, Annie Farmer, addressed the Court, stating that Maxwell "groomed me and abused me and countless other children and young women." (Ex. D at 40-41). An anonymous victim submitted a written statement describing Maxwell's abuse. (Id. at 38-40). 11. Judge Nathan ultimately ordered Maxwell detained on the basis of risk of flight and explained her reasoning in a detailed oral ruling. (Id. at 79-91). First, Judge Nathan found that "the nature and circumstances of the offense here weigh in favor of detention," given the statutory presumption of detention triggered 3 Exhibit F was filed in redacted form in the District Court. The Government has moved to file an unredacted version under seal in this Court. 5 DOJ-OGR-00001322 --- PAGE BREAK --- by charges involving minor victims and the potential penalties those charges carry. (Id. at 82). Second, Judge Nathan determined that "[t]he government's evidence at this early juncture of the case appears strong" based on the "multiple victims who provided detailed accounts of Ms. Maxwell's involvement in serious crimes," as well as corroboration in the form of "significant contemporaneous documentary evidence." (Id.). Third, Judge Nathan found that Maxwell's history and characteristics demonstrate that she poses a risk of flight. (Id. at 83). 12. In addressing that third factor, Judge Nathan emphasized Maxwell's "substantial international ties," which "could facilitate living abroad," including "multiple foreign citizenships," "familial and personal connections abroad," and "at least one foreign property of significant value." (Id.). Judge Nathan noted that Maxwell "is a citizen of France, a nation that does not appear to extradite its citizens." (Id.). She found that Maxwell "possesses extraordinary financial resources" and "the representations made to Pretrial Services regarding the defendant's finances likely do not provide a complete and candid picture of the resources available." (Id. at 83-84). 13. Judge Nathan noted Maxwell "does have some family and personal connections to the United States," but highlighted "the absence of any dependents, significant family ties or employment in the United States." (Id. at 84). 6 DOJ-OGR-00001323 --- PAGE BREAK --- Although the defense argued that Maxwell did not leave the United States after Epstein's arrest and was in contact with the Government through counsel, Judge Nathan emphasized that Maxwell "did not provide the government with her whereabouts," and, in any event, "the reality that Ms. Maxwell may face such serious charges herself may not have set in until after she was actually indicted." (Id. at 84-85). 14. Accordingly, Judge Nathan found that the Government had carried its burden of demonstrating that Maxwell "poses a substantial actual risk of flight" and that "even the most restrictive conditions of release would be insufficient" to ensure Maxwell's appearance. (Id. at 86). Though the proposed bail package represented only a fraction of Maxwell's assets, Judge Nathan found that "even a substantially larger package would be insufficient." (Id.). She noted that although Maxwell "apparently failed to submit a full accounting or even a close to full accounting of her financial situation," "[e]ven if the picture of her financial resources were not opaque, as it is, detention would still be appropriate." (Id. at 86-87). That conclusion was informed by Maxwell's "significant financial resources" and "demonstrated sophistication in hiding those resources and herself." (Id. at 87). Judge Nathan emphasized that Maxwell's "recent conduct underscores her extraordinary capacity to evade detection, even in the face of what the defense has --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page8 of 25 acknowledged to be extreme and unusual efforts to locate her." (Id.).4 Judge Nathan concluded that electronic monitoring and private security guards "would be insufficient" because Maxwell could remove the monitor and evade private guards. (Id. at 87-88). She also rejected Maxwell's comparison to certain other high-profile defendants, citing "crucial factual differences" in those cases. (Id. at 88). 15. Finally, Judge Nathan rejected Maxwell's arguments about the risks of COVID-19 and the difficulty of preparing a defense with an incarcerated client, noting that Maxwell had many months to prepare for trial and has no underlying conditions that place her at heightened risk of complications from COVID-19.5 (Id. at 89-90). Judge Nathan found that measures in place were sufficient to ensure Maxwell's access to her counsel, but also directed the Government to work with the defense "to provide adequate communication between counsel and client" and stated that the defense may make specific applications to the District Court for further relief if the process was "inadequate in any way." (Id. at 90-91). 4 For example, Maxwell did not leave her home but had security guards make purchases for her using a credit card in the name of an LLC. Before her arrest, Maxwell ignored FBI agents' directions to open the door and tried to flee to another room in the house. A cell phone was found wrapped in tin foil on top of a desk. See, e.g., Dkt. 22 at 7-8 (full version of Ex. C), Ex. D at 32-34. 5 Maxwell now has been fully vaccinated. (Gov't Ex. A at 19, 21). --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page9 of 25 C. The Second Bail Application 16. On December 8, 2020, Maxwell renewed her request for bail, presenting a revised bail package with additional financial restrictions. (Ex. E). After considering multiple written submissions (Ex. E, F, G), Judge Nathan denied Maxwell's application in a written opinion (Ex. H). 17. Judge Nathan found that the arguments presented "either were made at the initial bail hearing or could have been made then" and the new information "only solidifies the Court's view that [Maxwell] plainly poses a risk of flight and that no combination of conditions can ensure her appearance." (Ex. H at 1-2). Judge Nathan explained: the charges, which carry a presumption of detention, are serious and carry lengthy terms of imprisonment if convicted; the evidence proffered by the Government, including multiple corroborating and corroborated witnesses, is strong; the Defendant has substantial resources and foreign ties (including citizenship in a country that does not extradite its citizens); and the Defendant, who lived in hiding and apart from the family to whom she now asserts important ties, has not been fully candid about her financial situation. (Id. at 2). 18. Judge Nathan rejected Maxwell's claim that the Government overstated the strength of its case at the bail hearing, finding that Maxwell "too easily discredits the witness testimony." (Id. at 9-10). Judge Nathan credited the 9 DOJ-OGR-00001326 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page10 of 25 Government's proffer that "additional evidence, including flight records and other witnesses' corroborating testimony, will further support the main witnesses' testimony and link [Maxwell] to Epstein's conduct." (Id. at 10). She thus concluded that the case against Maxwell "remains strong." (Id.). 19. Judge Nathan found that Maxwell "continues to have substantial international ties and multiple foreign citizenships, and she continues to have familial and personal connections abroad." (Id. at 11). Judge Nathan was unpersuaded by Maxwell's offer to consent to extradition, noting that the "legal weight of the waivers is, at best, contested" and therefore the risk of flight remained "fundamentally unchanged." (Id. at 11-13). Judge Nathan further explained that Maxwell's "extraordinary financial resources also continue to provide her the means to flee the country and to do so undetected." (Id. at 13). Judge Nathan acknowledged that "letters of support" written by friends and family "substantiate the Defendant's claim that she has important ties to people in the United States," but found that the letters "leave unaltered the Court's conclusion that flight would not pose an insurmountable burden" for Maxwell in light of, among other things, her claim at the time of arrest that she was getting divorced, her lack of employment, and her significant ties to family and friends abroad. (Id. at 14-15). 20. Judge Nathan emphasized that Maxwell's "pattern of providing --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page11 of 25 incomplete or erroneous information to the Court or to Pretrial Services bears significantly" on her assessment of Maxwell's history and characteristics. (Id. at 15). Judge Nathan highlighted that in July 2020 Maxwell represented to Pretrial Services that she possessed around $3.5 million in assets, but in connection with her renewed request for bail presented a report on her finances that estimated the net worth of Maxwell and her spouse to be approximately $22.5 million as of October 2020. (Id. at 15). Judge Nathan found that the difference "makes it unlikely that the misrepresentation was the result of the Defendant's misestimation rather than misdirection." (Id. at 15-16). She explained: In sum, the evidence of a lack of candor is, if anything, stronger now than in July 2020, as it is clear to the Court that the Defendant's representations to Pretrial Services were woefully incomplete. That lack of candor raises significant concerns as to whether the Court has now been provided a full and accurate picture of her finances and as to the Defendant's willingness to abide by any set of conditions of release. (Id. at 16). 21. Judge Nathan again concluded that Maxwell presented a risk of flight and that Maxwell's proposed bail package "cannot reasonably assure her appearance," as it "would leave unrestrained millions of dollars and other assets that she could sell in order to support herself" and the "proposed bond is only partially secured." (Id. at 16-18). Judge Nathan explained that the pledge of several third 11 DOJ-OGR-00001328 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page12 of 25 parties to support Maxwell's bond did not alter this conclusion because "the amount of wealth that she would retain were she to flee, in addition to contingent assets and future income streams that are not accounted for in the bail package, would plausibly enable her to compensate them, in part or in full, for their losses." (Id. at 18). Judge Nathan also rejected Maxwell's proposed conditions of release to a relative's custody and private security guards, reiterating her concern regarding Maxwell's "extraordinary capacity to evade detection." (Id. at 18-19). 22. Finally, Judge Nathan was "unpersuaded" by Maxwell's argument "that the conditions of her confinement are uniquely onerous, interfere with her ability to participate in her defense, and thus justify release." (Id. at 20). Maxwell did not "meaningfully dispute" that she has received more time than other inmates at the Metropolitan Detention Center ("MDC") to review discovery and as much, if not more, time to communicate with her lawyers. (Id.). Judge Nathan reiterated that she would continue to ensure that Maxwell is able to speak and meet regularly with her attorneys and review discovery to prepare her defense. (Id. at 20 n.3). D. The Third Bail Application 23. On February 23, 2021, Maxwell filed a third bail application, proposing two additional bail conditions: (1) renunciation of her French and British --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page13 of 25 citizenship; and (2) placement of a portion of her and her spouse's assets in a new account to be overseen by a monitor. (Ex. I). After considering multiple written submissions (Ex. I, J, K), Judge Nathan denied Maxwell's request in another written opinion. (Ex. L). 24. Judge Nathan concluded that Maxwell's new application did not disturb her prior conclusions. (Id. at 2). She reiterated that detention was warranted in light of the proffered strength and nature of the Government's case, Maxwell's "substantial international ties, familial and personal connections abroad, substantial financial resources, and experience evading detection," and Maxwell's "lack of candor regarding her assets" at the time of her arrest. (Id. at 7). 25. Judge Nathan rejected Maxwell's argument that the strength of the evidence was diminished by Maxwell's pending pre-trial motions. (Id. at 5-6). She also rejected the two additional conditions proposed by Maxwell, noting the "[c]onsiderable uncertainty regarding the enforceability and practical impact of the [foreign citizenship] renunciations," and finding that, despite the proposed monitorship, Maxwell "would continue to have access to substantial assets--certainly enough to enable her flight and to evade prosecution." (Id. at 10-11). Judge Nathan concluded, "If the Court could conclude that any set of conditions could reasonably assure the Defendant's future appearance, it would order her release. Yet 13 DOJ-OGR-00001330 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page14 of 25 while her proposed bail package is substantial, it cannot provide such reasonable assurances." (Id. at 11). E. Judge Nathan's Oversight of Maxwell's Conditions of Confinement 26. As she indicated she would, Judge Nathan has closely monitored Maxwell's conditions of confinement, including by ordering the Government to submit regular updates regarding that topic (see Gov't Ex. A (compiling update letters and relevant court orders)), and, in one instance, ordering the MDC to provide Maxwell access to a Government-issued laptop on weekends and holidays (see id. at 10-11). The Government most recently filed such an update on April 6, 2021, noting, among other things, Maxwell's extensive access to discovery and communications with counsel; her regular access to outdoor recreation; the thirteen hours per day during which she is brought to a day room outside of her cell with exclusive access to a television, a phone, two computers, and a shower; and her access to medical care, including the COVID-19 vaccine, which she has now received. (Id. at 17-22). 14 DOJ-OGR-00001331 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page15 of 25 ARGUMENT The District Court Properly Denied Maxwell's Motions for Bail and Temporary Release 27. Judge Nathan did not clearly err when she determined that Maxwell is a risk of flight and that no conditions would reasonably assure her appearance in court. Nor did Judge Nathan abuse her discretion or clearly err by denying Maxwell's request for temporary release. A. Applicable Law 28. In seeking pretrial detention, the Government bears the burden of showing, by a preponderance of the evidence, that the defendant poses a risk of flight, and that no condition or combination of conditions would reasonably assure her presence in court. See 18 U.S.C. § 3142(f); United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). 29. Where the defendant is charged with certain offenses, including offenses involving a minor victim under 18 U.S.C. §§ 2422 or 2423, a statutory presumption arises "that no condition or combination of conditions will reasonably assure the appearance of the person as required . . ." 18 U.S.C. § 3142(e)(3)(E). In such a case, the defendant "bears a limited burden of production-not a burden of persuasion-to rebut that presumption by coming forward with evidence that he does not pose a ... risk of flight." United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2002). 15 DOJ-OGR-00001332 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page16 of 25 Cir. 2001). Even where a defendant produces sufficient evidence to rebut the statutory presumption of detention, the presumption does not disappear; instead, it becomes a factor to be weighed and considered in deciding whether release is warranted. Id. 30. Where the Government seeks detention based on flight risk, the court must consider: (1) "the nature and circumstances of the offense charged"; (2) "the weight of the evidence against the person"; and (3) the "history and characteristics of the person." 18 U.S.C. § 3142(g). 31. This Court generally applies "deferential review to a district court's order of detention." United States v. Watkins, 940 F.3d 152, 158 (2d Cir. 2019). It reviews for clear error the district court's findings regarding risk of flight and whether the proposed bail package would reasonably assure the defendant's appearance in court, see United States v. English, 629 F.3d 311, 319 (2d Cir. 2011); United States v. Shakur, 817 F.2d 189, 196 (2d Cir. 1987), and will reverse only if "on the entire evidence," it is "left with the definite and firm conviction that a mistake has been committed," Sabhnani, 493 F.3d at 75. 32. Once a defendant has been ordered detained, a judicial officer may "permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer 16 DOJ-OGR-00001333 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page17 of 25 determines such release to be necessary for preparation of the person's defense or for another compelling reason." 18 U.S.C. § 3142(i). The defendant bears the burden of showing that temporary release is necessary. See United States v. Scarborough, 821 F. App'x 598, 600 (6th Cir. 2020); United States v. Belardo, No. 20 Cr. 126 (LTS), 2020 WL 1689789, at *2 (S.D.N.Y. Apr. 7, 2020). This Court has not resolved whether it reviews a district court's temporary release decision for abuse of discretion or clear error. See United States v. McCloud, 837 F. App'x 852, 853 n.3 (2d Cir. 2021). B. Discussion 1. The District Court Did Not Clearly Err By Denying Bail 33. Judge Nathan did not commit clear error in finding, three times, that the Government established by a preponderance of the evidence that Maxwell is a risk of flight and no bail conditions could reasonably assure her appearance in court. In three detailed, thorough decisions, rendered after hearing lengthy argument and receiving multiple rounds of briefing, Judge Nathan explained that detention was appropriate in light of the nature and circumstances of the offense, which carry a presumption of detention; the strength of the Government's proffered evidence, which was based on multiple victims and contemporaneous documentary corroboration; and Maxwell's history and characteristics, including her substantial 17 DOJ-OGR-00001334 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page18 of 25 international ties, multiple foreign citizenships, familial and personal connections abroad, ownership of at least one foreign property of significant value, lack of candor about her finances, and “extraordinary capacity to evade detection.” (Ex. D at 79-91; Ex. H at 7-20; Ex. L at 6-11). Maxwell does not come close to identifying clear error. 34. Maxwell principally argues that Judge Nathan placed undue reliance on Government proffers in assessing the weight of the evidence. (Br. 19-21). Not so. “It is well established in this circuit that proffers are permissible both in the bail determination and bail revocation contexts.” United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000). “[B]ail hearings are typically informal affairs, not substitutes for trial or even for discovery. Often the opposing parties simply describe to the judicial officer the nature of their evidence; they do not actually produce it.” Id.; see also United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (“a detention hearing is not to serve as a mini-trial ... or as a discovery tool for the defendant”). This Court has thus repeatedly upheld the Government’s ability to proceed by proffer in bail proceedings. See, e.g., United States v. Cirillo, 149 F. App’x 40, 42-43 (2d Cir. 2005); United States v. Abuhamra, 389 F.3d 309, 321 n.7 (2d Cir. 2004); United States v. Vondette, 5 F. App’x 73, 76 (2d Cir. 2001); Martir, 782 F.2d at 1145. 18 DOJ-OGR-00001335 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page19 of 25 35. Judge Nathan's reliance on the Government's proffers was entirely proper, particularly on the facts of this case. This is not a case where the Government "simply stat[ed] in general and conclusory terms what it hoped to prove," or where the Government proffered the statements of a single witness with a history of perjury. LaFontaine, 210 F.3d at 131. The Indictment—which reflects far more than just a proffer but instead the probable cause determination of the grand jury after receiving evidence—sets forth in detail the expected testimony of three victim-witnesses, describing specific actions Maxwell took with respect to each. (Ind. ¶ 7(a)-(c)). And as the Government explained, each victim-witness's testimony is corroborated by the testimony of other witnesses and by documentary evidence. (Ex. A at 5; Ex. F at 9-12). Judge Nathan was entitled to rely on these proffers in assessing the strength of the evidence. 36. Maxwell's remaining arguments repeat contentions made below but do not meaningfully engage with Judge Nathan's considered rejection of them. Maxwell disputes that she was hiding from law enforcement before her arrest (Br. 23-24), but Judge Nathan was dubious of that assertion and found that even assuming Maxwell was hiding from the media, not the Government, her evasive actions demonstrated her "extraordinary capacity to evade detection." (Ex. D at 87). Maxwell asserts in conclusory fashion that her proposed bail package alleviates any 19 DOJ-OGR-00001336 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page20 of 25 concerns about her foreign citizenship or substantial assets (Br. 24-25), but Judge Nathan thoroughly analyzed these assertions and, after multiple rounds of briefing regarding the efficacy of Maxwell's proposed package, was not persuaded. (Ex. H at 11-14; Ex. L at 8-11). Maxwell attempts to compare herself to other high-profile defendants (Br. 25), but Judge Nathan rejected the comparison, noting "crucial factual differences" in several of these cases (Ex. D at 88) and making extensive findings about the particular facts and circumstances of this case that make detention appropriate. None of this was clear error. 2. The District Court Did Not Clearly Err or Abuse Its Discretion by Denying Temporary Release 37. Maxwell also argues that she should be temporarily released—though she specifies no end date—because she cannot effectively prepare her defense under the conditions of her confinement. (Br. 13-19). Judge Nathan did not abuse her discretion or clearly err by concluding otherwise.6 To the contrary, Judge Nathan has gone to significant lengths to ensure that Maxwell has adequate access to her counsel and opportunity to prepare her defense. 6 As noted, this Court has not resolved which standard of review applies to such an application. The Government submits that the decision of whether temporary release is "necessary" is a mixed question of law and fact which, like the district court's bail determination, should be reviewed for clear error. See United States v. Mattis, 963 F.3d 285, 291 (2d Cir. 2020). The Court need not resolve the matter here, however, as Maxwell's claim fails under either standard of review. 20 DOJ-OGR-00001337 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page21 of 25 38. At the outset, it bears noting that Maxwell only specifically invoked Section 3142(i) in her first bail motion. (Ex. B at 5-9). Judge Nathan denied her request for temporary release under that provision, noting that the case was in its early stages and that the MDC has established procedures to ensure access to counsel despite the pandemic. (Ex. D at 89-90). Nevertheless, Judge Nathan ordered the Government to work with the defense to ensure adequate access to counsel and invited Maxwell to make further applications if the accommodations were "inadequate in any way." (Id. at 90-91). Maxwell did not appeal Judge Nathan's first detention order. Instead, she repeatedly availed herself of the invitation to raise concerns about her access to counsel, and Judge Nathan responded with significant oversight of Maxwell's conditions of confinement. (See Gov't Ex. A). Thus, when Maxwell again cited her conditions of confinement in her second bail motion—though she did not, this time, invoke Section 3142(i) (Ex. E at 35-38)—Judge Nathan observed that Maxwell "does not meaningfully dispute that she has received more time than any other inmate at the MDC to review her discovery and as much, if not more, time to communicate with her attorneys." (Ex. H at 20). And, again, Judge Nathan made clear that she would "continue to ensure" that Maxwell has such accommodations as are necessary to prepare her defense and invited Maxwell to make further applications. (Id. at 20 n.3). Judge Nathan continued to oversee 21 DOJ-OGR-00001338 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page22 of 25 Maxwell's access to counsel, and Maxwell did not renew her request for temporary release in her third bail motion.7 39. Under these circumstances, Judge Nathan can hardly be said to have abused her discretion by finding that temporary release is not "necessary" for Maxwell to prepare her defense. "Temporary release is not warranted when a defendant has had ample time to prepare his defense." Scarborough, 821 F. App'x at 601. That is the case here. Maxwell is represented by a team of highly qualified, retained counsel, and has resources to prepare her defense far beyond those of the average defendant. Maxwell has access to a desktop computer provided by the MDC and a laptop provided by the Government for Maxwell's exclusive use to review discovery thirteen hours per day, seven days per week. (Ex. F at 29-30; Gov't Ex. A at 17-18). Also during that time, Maxwell has access to email with defense counsel, calls with defense counsel, and legal visits (depending on pandemic-related conditions).8 (Ex. F at 29-30; Gov't Ex. A at 18-19). Maxwell currently receives 7 Thus, to the extent Maxwell's arguments about her ability to prepare for trial are tied to any developments since the time of her first bail motion—such as, for example, the imminency of trial (see Br. 17)—this Court need not address such arguments in the first instance. Cf. United States v. Hochevar, 214 F.3d 342, 344 (2d Cir. 2000). 8 In-person visitation at the MDC resumed on or about February 16, 2021. Attorney visits are permitted seven days per week. (Ex. A at 18-19). --- PAGE BREAK --- five hours of video-teleconference calls with her counsel every weekday. (Gov't Ex. A at 18). 40. Given these accommodations, Maxwell's argument amounts to a suggestion that any defendant in a case with voluminous discovery must be released on bail to prepare for trial, regardless of flight risk or danger to the community. That cannot be the law. Rather, "[i]n considering whether there is a 'compelling reason' for a defendant's release under [Section 3142(i)], a court must balance the reasons advanced for such release against the risks that were previously identified and resulted in an order of detention." United States v. Chambers, No. 20 Cr. 135 (JMF), 2020 WL 1530746, at *1 (S.D.N.Y. Mar. 31, 2020). Here, that balance emphatically favors detention, given Judge Nathan's repeated findings about risk of flight and the substantial accommodations made to ensure Maxwell's ability to prepare her defense. 41. The risks presented by COVID-19 do not alter this conclusion. Not only does Maxwell have no underlying conditions that place her at heightened risk of complications from COVID-19 (Ex. D at 89-90; Ex. H at 21), but she now has been fully vaccinated (Gov't Ex. A at 19, 21). And while some district courts have ordered temporary release based in part on the COVID-19 pandemic, each of these discretionary decisions rests on its particular facts, as Judge Nathan was well- 23 DOJ-OGR-00001340 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page24 of 25 positioned to note with respect to the principal case cited below. (See Ex. D at 90-91 (distinguishing United States v. Stephens, 447 F. Supp. 3d 63, 67 (S.D.N.Y. 2020))). 42. In sum, Judge Nathan acted well within her substantial discretion by denying Maxwell's motion for temporary release. CONCLUSION 43. For the foregoing reasons, Maxwell's motion should be denied. Dated: New York, New York April 12, 2021 /s/ Lara Pomerantz Maurene Comey / Alison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Telephone: (212) 637-2343 24 DOJ-OGR-00001341 --- PAGE BREAK --- Case 21-770, Document 40-1, 04/12/2021, 3075763, Page25 of 25 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this 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 opposition, there are 5,200 words in this opposition. /s/ Lara Pomerantz LARA POMERANTZ Assistant United States Attorney Southern District of New York Telephone: (212) 637-2343 25 DOJ-OGR-00001342