Document 465

Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 1 of 127 1 LB1TMAX1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. --------------------------------------------------------x New York, N.Y. November 1, 2021 11:05 a.m. Before: HON. ALISON J. NATHAN, District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York ALISON MOE MAURENE COMEY ANDREW ROHRBACK LARA POMERANTZ Assistant United States Attorney COHEN & GRESSER Attorneys for Defendant CHRISTIAN EVERDELL HADDON MORGAN FOREMAN Attorneys for Defendant JEFFREY PAGLIUCA LAURA MENNINGER BOBBI C. STERNHEIM Attorney for Defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007052 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 2 of 127 2 (Case called) DEPUTY CLERK: Counsel, please state your name for the record, starting with the government. MS. MOE: Good morning, your Honor, Alison Moe for the government, joined at counsel table by Lara Pomerantz, Maurene Comey, Andrew Rohrbach and Sunny Drescher, a paralegal specialist in our office. THE COURT: Good morning. MS. STERNHEIM: Good morning, Judge Nathan, Bobby C. Sternheim appearing for Ghislaine Maxwell. Next to me at counsel table also present are part of the defense team, Jeffrey Pagliuca, Laura Menninger and Christian Everdell. THE COURT: Good morning, everyone. Good morning, Ms. Maxwell. Please be seated. I am told, consistent with the protocols, that I can remove my mask while seated here at the bench, and counsel, when they're at the podium, if you wish to speak from the podium, you may remove your mask. So I will do that. We're here today for a pretrial conference in this matter. Trial is scheduled to commence with the jury questionnaire process beginning this Thursday, November 4. As I have indicated, we will begin trial on November 29. As I see it, the primary purpose of today's conference is largely to address the parties' motions in limine and then discuss some additional logistical issues. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007053 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 3 of 127 LB1 TMAX1 1 Counsel, I'm prepared to turn to the motions first, 2 unless there's any reason to deviate from that. 3 Ms. Moe? 4 MS. MOE: No, your Honor, thank you. 5 THE COURT: Ms. Sternheim? 6 MS. STERNHEIM: Not at this time, Judge. 7 8 THE COURT: All right. I am in receipt of the 9 parties' various motions in limine, responses in opposition, 10 and replies in support. I did require the parties to file the 11 papers on the public docket with their proposed redactions so 12 that the public could have immediate access to the documents. 13 I'll rule on the proposed redactions as quickly as I can, 14 including some that I will discuss today, but we will use 15 the same process going forward so as not to delay public access 16 to the bulk of materials related to pretrial filings. And I 17 thank counsel for that, as well as the submission to me of the 18 unredacted versions with the color coding indicating requested 19 redactions. 20 The government filed 11 motions in limine and the 21 defense 13, so there's a lot of ground to cover. I am prepared 22 to discuss all the motions now with the exception of the 23 Daubert motion. As I indicated in an order that was docketed 24 this morning, I will hold a Daubert hearing before resolving 25 that motion. 26 As to the rest, some I want to hear further from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007054 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 4 of 127 4 parties on issues, some I'm prepared to resolve without further discussion. For all of them, to the extent I can resolve them or give guidance today, I will. In some cases, by necessity, I will reserve. Of course, as with all in limine motions, those are preliminary rulings based on what I know now about the anticipated evidence and arguments. My preliminary rulings are to guide the parties in advance of trial, to guide opening statements and the like. Facts on the ground, of course, can change during trial and you must reraise issues if you think the other side has opened the door or that premises of certain pretrial holdings no longer hold. With that, I'm going to move slightly out of order and begin with the defendant's 12th motion in limine because it involves terminology questions that apply throughout. After that motion I will address the government's motions in order and then address the remaining defense motions in order. In the defendant's 12th motion in limine, the defense asked the Court to preclude use of the terms "victim" and "minor victim." The motion is denied. Government counsel can use the word "victim" if they're referring to someone alleged to be a victim of the crimes charged in the indictment, and they may use the word "minor" to describe individuals that were, at the relevant time period, under the age of consent. As my colleague, Judge Furman, has explained, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007055 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 5 of 127 5 LB1TMAX1 precluding the term "victim" is both unnecessary and impractical. United States v. Dupigny, 18 CR 528, transcript of October 17, 2019, Docket No. 198 at 50. It is appropriate for the government to use the terms as representative of its litigating position. If the government does this in any way that is atypical or unduly prejudicial, I will revisit. Defense only cites out-of-circuit or state court decisions for the proposition that those terms are inherently prejudicial and harm the presumption of innocence. Numerous courts of appeal disagree with that argument, particularly when the presentation of evidence and the court's instructions "taken as a whole clarify the government's burden of proving all elements of the crime." United States v. Washburn, 444 F.3d, 1007, 1113 (8th Cir. 2006); see also, Server v. Mizell, 902 F.2d 611, 615, (7th Cir. 1990); United States v. Granbois, 119 F.App'x 35, 38-39 (9th Cir. 2004). Defendant's lone district court opinion does not tip the balance of this authority. I will, of course, instruct the jury repeatedly that the defendant is presumed innocent and that it is the government's burden and the government's burden alone to prove guilt beyond a reasonable doubt. Those instructions will eliminate any potential prejudice. See again Judge Furman's decision in Dupigny, Docket No. 198 at 49 That matter resolved, I will turn to the government's first motion. This goes to pseudonyms. The government moves SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007056 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 6 of 127 6 LB1TMAX1 pursuant to the Crime Victims Rights Act, 18 USC Section 3771, to permit certain witnesses and certain non-testifying witnesses to be referred to by pseudonyms. And there is also the issue of redacting related exhibits that contain the names or specifically identifying information. Specifically, the government requests that eight individuals be referred to by pseudonyms or their first name. The defense is already aware of the identities of all of these individuals, and as the government proposes it, the jury will also be aware of the individuals' real identities. The request only implicates how those individuals are referred to in open court. This is well-tread territory, and I will grant the request for the following reasons: The burden to justify this type of request, of course, starts with the government. It "must provide a reason for the limitation." United States v. Marcus, which is 2007 WL 330388 at *1, an Eastern District decision citing United States v. Marti, 421 F.2d 1283 (2d Cir. 1970). I agree with the government that limiting disclosure here would protect the alleged victims from potential harassment from the media and others, undue embarrassment and other adverse consequences. The Court has an obligation under the Crime Victims Rights Act to take certain measures at trial to protect the dignity and privacy of alleged victims. 18 USC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007057 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 7 of 127 LB1TMAX1 Section 3771(a)(8). It is quite common for alleged victims, both in cases that have garnered media attention and those involving allegations of sex abuse, to testify or be referred to by pseudonyms or first names. Courts have allowed this whether or not the alleged victims are minors or adults or adults testifying about abuse that allegedly occurred when they were minors. Let me give a bit of a string cite here. See, for example, United States v. Kelly, No. 19 CR 286, which is a high publicity trial involving adults testifying about sex abuse as minors, and that's in the Eastern District of New York; United States v. Raniere, No. 18 CR 204, a high-publicity trial involving at least one adult testifying about sex abuse as minor; United States v. Dupigny, No. 18 CR 528, involving sex trafficking, United States v. Kelly, No. 7 CR 374, and that could be found at 2008 WL 5068820, which is an Eastern District case involving an adult testifying about sex abuse as a minor; United States v. Graham, No. 14 CR 500, found at 2015 WL 6161292 (S.D.N.Y., October 2015), that involved adults testifying about sex trafficking as minors; United States v. Gardner, No. 16 CR 20135, found at 2016 WL 5404207, an Eastern District case from 2016 involving adults and adults testifying about sex abuse as a minor, and collecting similar cases. The practice has been widely permitted because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007058 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 8 of 127 LB1TMAX1 requiring alleged victims to publicly provide their names could chill their willingness to testify for fear of having their personal histories publicized. Raniere, Docket No. 622 at 32. Given the sensitive and inflammatory nature of the conduct alleged, such publicity may cause further harassment or embarrassment, and other alleged victims of sex crimes may be deterred from coming forward. See, Martinez, 17 CR 281, (E.D.N.Y. 2017), Docket No. 34. Limiting the disclosure of alleged victims' identities in this case furthers these important interests. The same is true with the identities of certain witnesses, although not alleged victims themselves, because the disclosure of their identities would necessarily reveal the identities of the alleged victims. I'm not persuaded by defense counsel's arguments to the contrary. First, the defense notes that Ms. Maxwell does not pose a threat to any of the witnesses. That is plainly true, and the government does not argue or suggest or allege otherwise, but just because that reason for limiting disclosures is absent in this case does not eliminate the possibility of other justifications. And again, there is a need here to prevent undue embarrassment, harassment from the press and third parties, and any resistance of others to come forward and report alleged abuse. Cases establish that this is sufficient SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007059 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 9 of 127 LB1TMAX1 1 Moreover, any potential prejudice in this regard can 2 be cured with an appropriate instruction explaining that the 3 reason for the precaution is regard for the witnesses' and 4 alleged victims' privacy, and that no inference can or should 5 be drawn against the defendant because of these precautions 6 My colleagues in this district and elsewhere have used 7 such an instruction in similar cases. The defense's concern 8 that this sort of instruction affords "Court-sanctioned 9 sympathy and credibility" is unfounded. My instructions on the 10 law will clearly and repeatedly instruct the jury on the 11 presumption of innocence and their sole role in assessing 12 witness credibility 13 Nor am I persuaded by the defense's arguments that the 14 fact that some alleged victims have previously publicly 15 disclosed some of their allegations obviates the need to limit 16 disclosure. As another district court has held, "just because 17 some victims' names are publicly available does not mean that 18 the details of their experience are already available." 19 Raniere, Docket No. 662 at 34, n. 17 20 As I acknowledged in my protective order for this 21 case, "Not all accusations and public statements are equal. 22 Deciding to participate in or contribute to a criminal 23 investigation or prosecution is a far different matter than 24 simply making a public statement relating to Ms. Maxwell or 25 Jeffrey Epstein." Docket No. 37 in this case at 2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007060 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 10 of 127 LB1TMAX1 1 The government anticipates that the alleged victims 2 will "testify in explicit detail and/or be the subject of 3 highly sensitive and personal testimony concerning illegal 4 sexual abuse. Thus, there's good reasons to limit public 5 disclosure of their names and specifically identifying 6 information during trial in this highly publicized case 7 involving highly sensitive issues." 8 Since there is a valid reason to limit disclosure in 9 this case, the defense must proffer a particularized need for 10 the disclosure of the relevant information, which is weighed 11 against the risks to the witnesses. I'll cite here, for 12 example, United States v. Marcus, again citing the Second 13 Circuit case in United States v. Marti. 14 As both parties acknowledge, the government's request 15 potentially implicates the defendant's right under the Sixth 16 Amendment's confrontation clause which guarantees defendants 17 the right to cross-examine adverse witnesses. The Second 18 Circuit has identified two central interests defendants have in 19 the public airing of identifying information about witnesses. 20 Again referencing the Marti case, 421 F.2d 1263. 21 The first is not relevant here because, as I have 22 noted, the defense is aware of the alleged victims' and 23 witnesses' identities. 24 The defendant argues that the second interest, 25 however, is implicated. Namely, defense may need the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007061 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 11 of 127 LB1TMAX1 1 to reveal identifying information because knowledge of that 2 information by the jury might be important to its deliberations 3 as to the witness's credibility or knowledgability. That's 4 quoting the Marti case again. In particular, the defense 5 argues that revealing the alleged victims' and witnesses' 6 identities is necessary to probe the nature of the alleged 7 victims' occupations as relevant to the credibility and elicit 8 certain impeachment evidence. 9 I agree that such cross-examination cannot be unduly 10 limited and the government concedes the same. The government's 11 motions in limine 15, n. 6; government reply at 17 to 18. And 12 I will ensure that it is not. 13 My decision today grants the government's request to 14 limit the public disclosure of the alleged victims and some 15 witnesses' names and other specifically identifying 16 information, such as the specific names of current and past 17 employers, names of family members and addresses. 18 Limiting disclosure of the specifically identifying 19 information does not limit the anticipated cross-examination 20 that the defense described in its papers. All lines of inquiry 21 the defense outlined in its response are available without 22 disclosing specific names of employers or other specifically 23 identifying information. For example, the defense can probe 24 the genre, nature, and trajectories of witnesses' careers 25 without eliciting the specific employer name, but the defense's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 12 of 127 LB1TMAX1 1 cross-examination should not include specifically identifying information, and counsel must act responsibly doing so. If, after good faith effort in that regard is made and the defense at some point feels they have hit a wall and can articulate a specific need with respect to a particular line of questioning, they can raise the issue with opposing counsel and with me. So that's my ruling on that motion. That said, I do strongly encourage the government to speak candidly with the anticipated witnesses so that they're clear eyed about what this process will entail, the fact that cross-examination will not be curtailed beyond the specific identifying information that form the basis of the government's request, and the possibility that despite these measures their identities may become known and revealed to the public. Should any of those witnesses or the government choose not to proceed by pseudonym, the government shall let defense counsel and the Court know. In the meantime, the government and defense counsel shall confer about names that will be used and any additional process for facilitating the clear presentation of evidence. The Court will adopt a clear and straightforward approach and the parties are admonished to come to agreement on the use of pseudonyms and/or first names. First assignment, there will be others, by November 10 the parties shall submit a joint letter to the Court under seal explaining the nomenclature that they propose be employed with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007063 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 13 of 127 LB1TMAX1 1 respect to the actual identity of each witness. 2 As I mentioned, I do agree with the government that a 3 limiting instruction explaining the reasons for the precautions 4 is appropriate. In light of my ruling, I expect the parties to 5 confer and jointly propose such a limiting instruction. 6 Homework No. 2. This shall also be filed jointly by 7 November 10, and that can be filed on ECF. 8 There are some logistics of voir dire related to this. 9 Some of my colleagues have used the list method that the 10 government proposes on page 15, footnote 5 of their motion, and 11 I agree that this proposal makes sense. Once again, the 12 parties shall confer and submit on ECF by November 10 a joint 13 proposal for any logistical issues related to this for voir 14 dire. 15 That leaves the issue of sealing unredacted exhibits 16 and the limited redacting of exhibits containing specific 17 personal identifying information. The government shall manage 18 the logistics of this process throughout trial. So think 19 through and include in your November 10 submission on ECF the 20 specifics of this part of the process so that the trial 21 exhibits can be contemporaneously marked with the appropriate 22 limited redactions, and the government will need to manage this 23 on an ongoing basis throughout trial. 24 Government's motion 2, the alleged victims' prior 25 consistent statements. So this goes to the admissibility of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007064 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 14 of 127 LB1TMAX1 1 any alleged victims' prior consistent statements. As I can 2 tell from the cross papers here, I don't think there's an issue 3 to resolve now. The government's reply notes it's not seeking 4 to admit any particular prior consistent statements at this 5 time. 6 Ms. Moe, let me confirm there will be no mention of 7 any such statements in the government's openings, is that 8 correct? 9 MS. MOE: That's correct, your Honor. 10 THE COURT: Okay. Of course, the admissibility of any 11 prior consistent statement hinges on defense counsel's 12 arguments and the purpose for which any statements are being 13 offered. 14 I think the parties agree on the applicable law here. 15 If this does become an issue, as they have outlined in their 16 papers, Rule 801(d)(1)(B)(i) excludes from the rule against 17 hearsay a witness's prior consistent statement offered to rebut 18 the charge of recent fabrication or improper influence or 19 motive. Of course, the prior consistent statement, should the 20 government seek to have any admitted, must have been made 21 before the motive to fabricate that's alleged arose, or else it 22 has no relevance in rebutting the fabrication charge. Tome v. 23 U.S., 513 U.S. 150, (1995). 24 The rule's second subsection excludes prior consistent 25 statements from the rule against hearsay when they're offered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007065 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 15 of 127 LB1TMAX1 1 to rehabilitate a witness attacked on another ground. It's 2 801(d)(1)(B)(ii). For example, the statement could be admitted 3 to explain what would otherwise appear to be an inconsistency 4 in the witness's statement and rebut a charge of faulty memory. 5 United States v. Purcell, 967 F.3d 159, (2d Cir. 2020). 6 If it becomes relevant, the government may offer prior 7 statements before the witness testifies if the defense attacks 8 the credibility in opening statements and it's clear that the 9 witness will be subject to cross-examination. United States v. 10 Flores, 945 F.3d 687, (2d Cir. 2019). That's restating the 11 applicable law here that the parties appear to agree to in the 12 briefs. The government doesn't anticipate any such effort to 13 offer such statements at this time and won't mention any in 14 opening beyond that. 15 Is there anything specific to flag or discuss here, 16 from the government's perspective? 17 MS. MOE: No, your Honor, thank you. 18 THE COURT: Ms. Sternheim? 19 MS. MENNINGER: Your Honor, Laura Menninger. None for 20 the defense at this time. Thank you. 21 THE COURT: All right. Thank you. 22 The government's 3 and 4, which I'm going to group, 23 the government seeks to preclude evidence and arguments by the 24 defense, (1) about the investigation in Florida, including the 25 non-prosecution agreement, (2) that Ms. Maxwell was not charged SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007066 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 16 of 127 16 LB1TMAX1 by the U.S. Attorney's Office in the Southern District of Florida, (3) about the scope and timeline of investigation in New York, and (4) other evidence that demonstrates the government's motives for investigating Ms. Maxwell. The Court's analysis here is guided by four principles set by the Second Circuit and the Supreme Court. First, because the government has no duty to employ, in the course of a single investigation, any particular investigative technique, the failure to utilize some particular technique does not tend to show that a defendant is not guilty of the crime of which he's been charged and is therefore irrelevant. United States v. Saldarriaga, 204 F.3d 50, (2d Cir. 2000). That's the first legal principle that frames the discussion here. Second, arguments that the government had an improper motive generally must be directed to the Court rather than the jury. United States v. Regan, 103 F.3d 1072, (2d Cir. 1997); see also, United States v. Farhane, 634 F.3d 127 (2d Cir. 2011). Third legal principle: There is no per se bar on admitting evidence of the government's charging decisions. Rather, the Court must -- I will quote here -- "inquire into its relevance and probative value to the respective case." United States v. White, 692 F.3d 235 (2d Cir. 2012); see also, United States v. Ngono, 801 F.App'x. 19 (2d Cir. 2020). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007067 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 17 of 127 LB1TMAX1 Fourth, the confrontation clause of the Sixth Amendment guarantees a criminal defendant the right to meaningful cross-examination of government witnesses at trial. United States v. Figueroa, 548 F.3d 222, (2d Cir. 2008). Indeed, cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Davis v. Alaska, 415 U.S. 308, 316, (1974). With this legal framework in mind, and in light of the parties' extensive briefing on these issues, I think the admissibility of some of the proposed evidence can be determined now, but the admissibility of other evidence will require additional facts and the context of trial to decide, but I think it's important for me to give guidance. Based on the papers before me, I provide the following guidance: First, the Court will preclude affirmative evidence by the defense that goes to the thoroughness of the investigation. Although evidence that goes to the thoroughness of the government's investigation can in some cases be relevant and may in some cases be admissible, it's not relevant or admissible if not probative of the defendant's guilt of the crimes charged. In its briefing, the defense relies heavily on Kyles v. Whitley, 514 U.S. 4 (1995), in which the Supreme Court held that an informant's statements to police were material for purposes of Brady disclosures because the statements could be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007068 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 18 of 127 18 used to "attack the thoroughness and even the good faith of the investigation." That holding has only limited relevance here. First, the statement at issue in Kyles was probative because it suggested the defendant's innocence, not because it was evidence of the reasons for the charging decision or the investigation's timeline. Second, the Second Circuit in Watson v. Greene narrowly construed the holding in Kyles by clarifying that it "addresses only the prosecution's obligations to disclose Brady material" and "provides no guidance about what evidence must be admitted at trial or what lines of questioning must be permitted to ensure a meaningful opportunity to cross-examine adverse witnesses." Watson v. Greene, 640 F.3d 501, 512, n. 11 (2d Cir. 2011). Now the Second Circuit's decision in Watson does, however, suggest that some arguments about the thoroughness of the investigation are probative of guilt in some circumstances. In that case, law enforcement had received a tip that the defendant was innocent because another individual shot the victim. The Second Circuit stated that cross-examination of the lead investigating officer on that tip was probative because the jury could conclude that law enforcement had prematurely concluded the defendant was the shooter and it failed to investigate diligently the possibility that it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007069 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 19 of 127 19 LB1TMAX1 the other individual. Watson, 640 F.3d, 511-12. Other courts in this Circuit have described challenges to the thoroughness of the investigation as a "common method of undermining a prosecution" by, for example, cross-examining officers on which leads they followed and which they did not. See, for example, Gray v. Ercole -- I don't have that full quote -- 2011 WL 5082868 (E.D.N.Y 2008). Or defense counsel may, on cross, examine investigating officers if they considered alternative suspects. United States v. Birbal, 92 CR 98, 1996 WL 192924 at *7, that's the District of Vermont, 1996. That was affirmed by the Second Circuit at 113 F.3d 1230. And I will quote here, "The length of the investigation, the investigative techniques used, and the fact that the defendant was not initially a target of the investigation are all irrelevant pursuant to" the principle that the government's failure to use particular investigative techniques does not tend to show that the defendant is not guilty. See, for example, United States v. Duncan, No. 18 CR 289, 2019 WL 2210663 (S.D.N.Y. 2019); see also, United States V. Aleynikov, 785 F.Supp.2d 46, 65 (S.D.N.Y. 2011). The other two cases the defense cites, neither of which is binding on the Court, don't suggest anything different than the law I just referred to. In Bowen v. Maynard, the 10th Circuit held that Brady evidence in the government's possession was material because it suggested that another likely suspect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007070 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 20 of 127 LB1TMAX1 did not have an alibi and suggested that a photo lineup was unduly suggestive. 799 F.2d 593, (10th Cir. 1986). The court stated that, if disclosed, "the defense could have cross-examined the detectives about their decision to use the photographs" that they did as well about their failure to corroborate the other suspect's alibi. And the defense cites another Brady violation in Lindsey v. King where the Fifth Circuit found that a police report was material under Brady because it showed key witnesses to a murder had changed their story, which on cross-examination would have meant the destruction of the witness's identification and the discrediting in some degree of the police methods employed in assembling the case against the defendant. Lindsey v. King, 769 F.2d 1034, (5th Cir. 1985). These two examples of focused cross-examination to impeach a witness that testified to the defendant's guilt and thereby throw the product of the government's investigation into doubt are far afield from the specifics of what the defense proposed here. In its brief, the defense seeks to affirmatively -- and I will quote from their brief -- "call FBI case agents as witnesses" to ask who they talked to, what documents they subpoenaed, and when. See, defense's response at 40. But as the Second Circuit explained in Saldarriaga, the government's use or non-use of certain investigative techniques does not tend to show the defendant's innocence of the charges. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007071 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 21 of 127 21 LB1TMAX1 The defense also seeks to elicit evidence of the public outcry and scrutiny that preceded the decision to charge the defendant. The defense refers to public statements made by assistant United States attorneys -- not those appearing in the case -- to suggest that Ms. Maxwell was charged for improper reasons. The Court finds that this specific proffered evidence is irrelevant to the charged conduct and, therefore, inadmissible. To the extent that the defense's affirmative evidence in this regard would have some marginal probative value, it is substantially outweighed by 403 prejudice. See, for example, United States v. Hill, 12 CR 214, 2014 WL 198813 (E.D.N.Y. 2014), affirmed by the Second Circuit, 658 Fed. Appx. 600. Here's the reason for that 403 analysis: First, investigative details are likely to confuse the jury about the proper standard for determining Ms. Maxwell's guilt by suggesting that the government's choices of investigative techniques are relevant to whether guilt is proved beyond a reasonable doubt. Moreover, I will instruct jurors, as is standard, to the effect that the government is not on trial. And that standard charge can be found in many cases. Admitting testimony on the investigation would confuse the jury once it's received that instruction. Second, these lines of argument are likely to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007072 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 22 of 127 LB1TMAX1 1 substantially confuse and delay the trial. The evidence 2 outlined in the defense's papers, including who was interviewed 3 and when, what documents were subpoenaed and other details of 4 investigations in two different states and different time 5 periods would substantially expand the scope of the trial. 6 Exactly what steps investigators took is not a simple question, 7 of course. The government would likely present a contrary 8 account of events, leading to trials within trials on what law 9 enforcement did over the course of years. This prejudice would 10 substantially outweigh any minimum probative value that might 11 be gained from such a far-flung endeavor. 12 Third, as to prejudice, the evidence would be 13 cumulative, demonstrating that an investigation was "hasty" and 14 not thorough is at best repetitive of the defense's arguments 15 that the government collected insufficient evidence of guilt. 16 That point is made most clearly and directly by focusing on the 17 evidence or lack of evidence and credibility or lack of 18 credibility of the witnesses presented at trial. 19 The second piece of guidance I can provide now is that 20 the Court will exclude much of the evidence outlined in the 21 defense's papers of the government's alleged motives for 22 investigating and charging Ms. Maxwell. This evidence includes 23 but is not limited to the Miami Herald article, statements from 24 Attorney General William Barr and the like. 25 The evidence presented by the government in this trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007073 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 23 of 127 23 LB1TMAX1 is the relevant basis for the jury's determination of guilt or innocence. Why and when the government conducted the investigation is not relevant. If the defense believes the government has a legally improper motive for prosecuting Ms. Maxwell or somehow fabricating evidence or suborning perjury or the like, the Second Circuit has made clear that the proper remedy is to file a motion for the Court to consider. See, Regan, 103 F.3d 1082. Absent that, the law is clear that for purposes of the jury, "the government is not on trial." United States v. Knox, 687 F.App'x 51, (2d Cir. 2017). Moreover, evidence of motive would be highly prejudicial. For the reasons I explained a moment ago, it would confuse jurors as to the proper standard of guilt to be applied in the case. Indeed, the defense's outlined evidence of improper motives is strongly suggestive of jury nullification because it suggests a vindictive or political prosecution which is rightly a matter reserved to the Court. Calling witnesses to testify to the government's motive would substantially expand the scope of trial, rely likely on hearsay and other inadmissible evidence. So what motivated a particular investigative step or charging decision of course doesn't have a black or white answer, and the defense would have one story and the government another, neither of which would assist of the jury in deciding Ms. Maxwell's guilt or innocence of the charges here based on of the government's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007074 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 24 of 127 24 1 ability to prove its case beyond a reasonable doubt. 2 Third piece of guidance: The Court will exclude from 3 evidence the non-prosecution agreement, both its existence and 4 its particular terms. The defense argues the NPA is relevant 5 to the bias and financial interest of two witnesses. One 6 anticipated witness received immunity from criminal prosecution 7 under the NPA. Additionally, under the NPA, Epstein agreed to 8 pay for a lawyer for an alleged victim who was anticipated to 9 testify and agreed not to contest her civil suit against him. 10 The civil suit ended in a settlement with respect to an alleged 11 victim. 12 Of course, defendants are always able to cross-examine 13 witnesses about relevant bias. For example, cross-examination 14 about civil litigation or civil claims against Epstein or 15 others and related financial incentive are fair grounds. 16 Moreover, cooperating witnesses are commonly cross-examined 17 about how testimony may affect the sentence that they receive. 18 And if it were the case that any witness were to receive 19 testimonial immunity in this case, the defense may 20 cross-examine about that. But the defense has not explained 21 any bias or incentive to fabricate that results from or relates 22 to the NPA. Regardless of how the witness covered by the NPA 23 might testify, that witness will remain protected under the NPA 24 in the Southern District of Florida, and as I already ruled, 25 the NPA does not provide protection in the Southern District of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007075 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 25 of 127 25 LB1TMAX1 New York. Similarly, no matter how a witness who has a settlement or financial incentive testifies, those benefits are not received under the NPA, so I don't see any theory of bias that would be relevant that the defense has articulated with respect to the NPA. Moreover, even if there were some relevance, it would be substantially outweighed by a significant risk of 403 prejudice from introducing the NPA. The jury would need to be instructed on what the non-prosecution agreement is, and would need to have its terms explained. In particular, NPA, of course, is controversial and complicated and has a complicated background. There's a risk of undue delay, juror confusion, and improper suggestions of sympathy or nullification made to the jury on the basis of the NPA. I will be clear, it's not clear to me the NPA could never be admitted, but the rationale now provided by the defense in its papers does not justify admission based on the balancing of 401 and 403 factors. Fourth guidance: The government's charging decisions are likely not relevant and therefore inadmissible. The government didn't indict Ms. Maxwell by the end of the Florida investigation, and the government didn't indict Ms. Maxwell when it indicted Jeffrey Epstein originally in New York. As the Second Circuit stated in White, charging decisions can be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007076 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 26 of 127 26 LB1TMAX1 admissible under the usual rules of relevance. In White, the court determined that a prior charging decision was admissible because it bore directly on the credibility of a witness that testified at the defendant's trial. As currently proffered by the defense, the rationale doesn't apply here. For example, according to the defense, an alleged victim's statement to the FBI previously did not implicate or exculpate Ms. Maxwell, but her statement today does implicate her. On the basis of that statement, and assumedly other evidence available to them and a host of reasons, officials in the Southern District of Florida decided to not indict Ms. Maxwell at that time. That charging decision could be understood as a determination that in 2008 the government lacked sufficient evidence of Ms. Maxwell's guilt, but the decision not to charge -- or it could mean any number of a host of reasons, but the decision not to charge has little probative value that the Court can see as to this case. Charging decisions, as I said, are made for a host of reasons. Trying to sort through those reasons would be prejudicial pursuant to 403 both because they would require significant time to explore and because juror confusion would be likely. Any consideration of the government's decisions would also likely rely on hearsay or other inadmissible evidence. More importantly, unlike in White, those officials' assessments of the evidence in Florida in 2008 is not relevant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007077 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 27 of 127 27 LB1TMAX1 to the jury's decision now, which is whether there is evidence of Ms. Maxwell's guilt beyond a reasonable doubt as the government will put its case to the jury. Now there is a difference between admitting a witness' prior statements for impeachment purposes, which is protected by the confrontation clause, and admitting prior charging decisions. In a case analogous to this one on this issue, United States v. Borrero, another district court judge held that a defendant could permissibly cross-examine a witness about their prior statement to law enforcement in which they accused a different individual of the crime for which the defendant was later charged. 2013 WL 6020773 (S.D.N.Y. 2013). That case docket is 13 CR 58. But the court there did not admit the charging decision that the early investigation had ended in a nolle, because it would confuse jurors, require extended factual disputes, and was, at best, cumulative of the witness's statement. As I have explained, the same would appear to be true here. Fifth piece of guidance: In contrast to what I indicated may not come in, the Court will permit relevant cross-examination of the government's witnesses. Defense seeks to impeach the credibility of some witnesses by admitting those witnesses' prior statements to the government that purportedly did not implicate Ms. Maxwell. This use of cross-examination to impeach a witness that has allegedly changed her story to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007078 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 28 of 127 28 LB1TMAX1 law enforcement is exactly the kind of attack on the thoroughness of the government's investigation that the Fifth Circuit approved in Lindsey v. King. Provided that the rules for admitting prior inconsistent statements are satisfied, the Court concludes that this line of evidence is relevant and admissible. The defense may also cross-examine about witnesses' motives or biases for testifying, including, for example, the witnesses' motives for implicating Ms. Maxwell after Jeffrey Epstein's death. Admitting prior statements on cross-examination may require providing the jury some background information about the prior investigations so that the prior statements are understood in the proper context and the jury is provided necessary background to understand that evidence. (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007079 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 29 of 127 29 LB15MAX2 1 THE COURT: (Continuing) 2 I imagine this can be done through cross-examination questions if the witness has personal knowledge. I would also encourage the parties to discuss stipulations in this regard to provide the jury any necessary and non-prejudicial context or background, or other proposals for permitting the jury to understand the background or context without crossing over into the 403 prejudice line. 3 I also would permit the defense to cross-examine law enforcement officers about the investigative steps that were taken if the government puts the thoroughness of the investigation into issue as this, too, would be permissible impeachment and cross. 4 These articulated lines of cross-examination of government witnesses would be relevant to impeach a witness by suggesting bias or otherwise implicating their credibility. Moreover, denying Ms. Maxwell these lines of questioning would have implications under the confrontation clause. The Court expects that the probative value would not be substantially outweighed by 403 prejudice if done along the lines of what I have indicated, especially if accompanied by a limiting instruction by the Court that, for example, prior inconsistent statements are to be considered for their impeachment value and the like. 5 Similarly, the Court may instruct the jury that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007080 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 30 of 127 30 LB15MAX2 counsel made only a good faith -- actually, I will retract that last sentence. At base, the Court encourages the parties to confer on appropriate process for putting background information in front of the jury, as necessary, to allow the kinds of cross-examination that would be permissible and required under the relevant law. Let me pause and ask counsel if they have any questions with respect to the guidance I have offered at this time. Obviously there may be issues we will need to take up as we go. Ms. Moe? MS. MOE: Not from the government, your Honor. Thank you. MR. EVERDELL: Your Honor, Christian Everdell. Not at this time, your Honor. THE COURT: Thank you. No. 6, evidence that goes to consent issues. The government requests to exclude evidence or argument regarding consent. Now let me ask counsel, it seems to me the issues implicated in this motion overlap, at least potentially, to the issues raised and to be discussed in the 412 motion and I am wondering if we should at least begin by taking it up at that time, as necessary. MS. MOE: Your Honor, the government agrees that makes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007081 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 31 of 127 LB15MAX2 1 sense to address this issue at the same time. 2 MS. STERNHEIM: We agree. 3 THE COURT: So we will defer on that. In light of the 4 overlap on the 412 issues we will take that up at the 412 5 hearing. 6 Government's 7. The government argues that before 7 offering evidence or argument of Ms. Maxwell's failure to 8 commit other bad acts it should require the defense to proffer 9 the basis and the relevance of such evidence. Let me hear from 10 the government what the specific concern is here and then I 11 will speak to the defense. 12 MS. MOE: Yes, your Honor. Thank you. 13 The concern here is what the defense has flagged in 14 its opening papers relating to statements by other victims who 15 were interviewed during the course of the government's 16 investigation. Evidence along those lines, if proffered in an 17 opening statement, or if asked about in cross-examination of a 18 law enforcement officer, would be inappropriate and hearsay. 19 Such evidence could only come in at trial, if at all, if the 20 defense called, as defense witnesses, victims who were not at 21 issue in this case. And so, for that reason, your Honor, the 22 defense should be precluded from opening on this issue unless 23 and until they proffer which victims these statements would 24 come through, who they would anticipate calling as defense 25 witnesses at trial so the Court can assess whether that is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007082 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 32 of 127 32 LB15MAX2 1 relevant at all. 2 As the government set forth in its moving papers, the 3 defendant is not charged with trafficking certain victims and 4 so whether or not the defendant is guilty of those crimes is 5 irrelevant before this jury. 6 THE COURT: Ms. Sternheim, any mention on opening with 7 respect to this line of -- 8 We will ask everyone please make sure your masks are 9 on -- counsel, fully on -- unless you are at the podium. 10 MS. STERNHEIM: Judge, I just want to say that we are 11 honoring your one counsel rule but we have designated various 12 topics. 13 THE COURT: Appreciate it. 14 MS. STERNHEIM: So if you will allow us? 15 THE COURT: Go ahead. 16 MS. MENNINGER: Your Honor, I don't believe that we 17 will be opening on these issues but I think the government is 18 understating what is charged in the indictment. They have put 19 forth an indictment that does not just allege the four main 20 accusers, rather they have set forth a conspiracy that they 21 claim involves a number of other unnamed individuals, and I 22 believe they have proffered an intent to put other evidence 23 about unnamed individuals in their exhibits, in their trial 24 testimony. For example, there are a number of exhibits that 25 they've set forth that come from a time period outside of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 33 of 127 LB15MAX2 conspiracy and so forth. So it is our position that if they open the door to evidence about anyone other than these four then we would, likewise, be able to talk about the fact that those other individuals were interviewed by the government and said that Ms. Maxwell is not involved, was not there, and was not a part of the activities that they're talking about. None of the cases that the government cited had to do with a co-conspirator. The evidence was just because a defendant did not act in conformity with the charged conduct on a separate occasion, couldn't be set forth by the defense. THE COURT: Do you agree with that principle? MS. MENNINGER: Yes, your Honor. If it is good character evidence, generally I understand the rules of evidence wouldn't apply, but what we have here is a 10-year charged conspiracy with an intent by the government to allude to other individuals. To the extent they try to put on evidence in the form of message pads or other types of evidence that refer to other people, then I think we have the ability to confront that evidence with the fact that Ms. Maxwell was reported by those individuals not to have been involved. THE COURT: Ms. Moe? MS. MOE: Thank you, your Honor. The government agrees that this issue can be deferred until trial unless and until this becomes an issue, provided the defense counsel doesn't intend to open on this issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007084 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 34 of 127 34 LB15MAX2 1 However, even if this became an issue at the trial, the remedy would be to permit the defense to call these relevant witnesses to talk about whether the defendant was or was not involved in their sex trafficking. The remedy would not be to permit defense from cross-examining law enforcement agents about hearsay statements that other individuals provided to them. It would be extremely confusing for the jury to be hearing, through law enforcement agents, the statements of these individuals to assess whether or not those individuals implicated the defendant or simply said nothing about the defendant. And so, the government submits that the only way that this could come in at trial would be if the defense called those witnesses themselves and, of course, it is difficult to determine the potential relevance, if any, of testimony along those lines, and so the government respectfully submits that none of this should be offered at trial unless and until there is an offer of proof along those lines. THE COURT: Ms. Menninger? MS. MENNINGER: Your Honor, whether someone said no one else involved or didn't implicate our client is not hearsay, it is the absence of a statement. So I don't understand the government's position that if an investigator -- THE COURT: It is not the absence of the statement, right? If you are trying to put in an out-of-court statement from someone who said that Ms. Maxwell wasn't involved, it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 35 of 127 LB15MAX2 an out-of-court statement you are putting on for the truth, it is hearsay. MS. MENNINGER: Slightly different, your Honor. If a witness says they interviewed -- if a law enforcement says they interviewed another accuser and that accuser never said that Ms. Maxwell was involved, that's not a hearsay statement. They just didn't mention her, it is the absence of a statement. And as your Honor just ruled in terms of the thoroughness of the investigation, if there is evidence that the government puts on about these other accusers I think that's what opens the door. It is not us opening the door, it would be them submitting evidence that other people were victims without putting those people on, putting on message pads that had their names on it, and then precluding us from introducing evidence that none of those individuals implicated Ms. Maxwell. THE COURT: Right. So, if the government does that you are not precluded from putting other evidence on. The question is what evidence would it be and would it be admissible under the relevant rules of evidence. I am not sure I can resolve that in the abstract. It sounds like neither side intends to open with respect to this issue and I think we largely agree on the legal principles. Tell me if you need more guidance for purposes of opening or preparing your case. Ms. Menninger? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007086 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 36 of 127 LB15MAX2 1 MS. MENNINGER: No, your Honor. I think it depends on 2 the trial testimony. 3 THE COURT: Ms. Moe? 4 MS. MOE: No, your Honor. Thank you. 5 THE COURT: It sounds like the government does need to 6 think about, its opening and whether reference to non-testifying 7 alleged victims would open the door, potentially, to the issue. 8 MS. MOE: Yes, your Honor. And it remains the 9 government's position that, to the extent the defense is 10 offering anything along these lines, it would be for the truth 11 and, therefore, hearsay. But given the fact that the parties 12 don't intend to open on this issue, we don't believe our 13 opening statements would open the door to this issue either, we 14 are happy to raise this issue at the appropriate time. 15 THE COURT: OK. 16 MS. MOE: Thank you, your Honor. 17 THE COURT: OK. Thank you. 18 Next is government 8 which are prior statements of 19 Ms. Maxwell. I think I come away from the papers agreeing with 20 the defense that this one may be premature but, Ms. Moe, what 21 is the specific concern? What are prior statements that you 22 are worried about here? 23 MS. MOE: Yes, your Honor. 24 For example, the government has produced to the 25 defense in discovery a large volume of electronically-stored SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 37 of 127 LB15MAX2 1 information including e-mails between the defendant and Jeffrey Epstein. It is difficult for the government to determine in the abstract what the defense might point to, but that night include, for example, a false exculpatory statement. And so the government's view is unless and until there is a proffer from the defense about a specific statement, that the defense should be precluded from offering a statement along those lines in opening statements or otherwise. 9 THE COURT: Who is taking this one? 10 MR. PAGLIUCA: Your Honor, good morning. Jeffrey Pagliuca for Ms. Maxwell. 11 Your Honor, this is a trial time decision. It depends on what witnesses is testifying and whether or not there is a relevant exception to the hearsay rule. I mean, we understand the rules, we will follow the rules, and if the witness testifies and it becomes relevant, we will ask the question. If there is an objection, the Court will resolve the objection. 18 THE COURT: And you understand you are going to be restrained by what one might say is an asymmetry between the government's ability to use out-of-court statements by the defendant and the defense's inability to do that, absent some other -- 23 MR. PAGLIUCA: Absolutely, your Honor. 24 THE COURT: OK. 25 MR. PAGLIUCA: We understand the hearsay rules. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007088 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 38 of 127 LB15MAX2 38 1 THE COURT: From your perspective, anything further that could be addressed at this time or needs to be addressed? 2 MR. PAGLIUCA: On this topic your Honor? 3 THE COURT: Yes. 4 MR. PAGLIUCA: No. 5 THE COURT: Ms. Moe? 6 MS. MOE: No, your Honor. Thank you. 7 THE COURT: The next is government 9 which is to preclude evidence or argument sounding in nullification. I 8 agree with the defense that there is no need for me to rule on 9 this presently. I trust that defense counsel knows well the 10 clear rules around any such arguments so it is a bit hard to 11 think about what guidance I can offer here. 12 Ms. Moe, is there a specific concern you want to 13 raise? 14 MS. MOE: Thank you, your Honor. 15 Aside from the examples we proffered in our motion, 16 there is nothing in particular that this motion is aimed at and 17 so I don't think anything more along those lines to address 18 today. 19 MS. STERNHEIM: Nothing at this time. 20 THE COURT: OK. So nothing referenced with respect to 21 the government's concerns about nullification would be 22 implicated in the anticipated opening? 23 MS. STERNHEIM: That is correct. 24 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007089 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 39 of 127 LB15MAX2 1 THE COURT: Government 10. Let me say, as a preliminary matter, the government requests that the entirety of this motion be sealed. I have read the government's letter and the footnote 11 in the motion. In my mind they don't justify sealing. As best I can understand the argument the government is saying that the defense should be precluded from make a certain argument because there is no evidence in support of it. If the government is right about that then pretrial publicity would amount to coverage that there is no evidence of that argument. If the government is wrong about that then the evidence in argument comes in so there is no prejudice either way. Frankly, I think the theory of prejudice here runs counter to the whole project of pretrial motion in limine practice which is to litigate, for purposes of trial preparation and trial efficiency and opening statements and the like, what's in and what's out. That's going to sometimes require litigation on what's out. So I don't see a basis to seal this and I think we can discuss it today. But let me begin by simply asking the defense if it intends to make the argument that is outlined in the government's motion 10. MS. STERNHEIM: Your Honor, it is too soon to say what we are going to do at trial. Certainly we have no burden of putting on a case and I know the government is well aware of that, but insofar as the government seeks to preclude us from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007090 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 40 of 127 40 LB15MAX2 raising any issues concerning Ms. Maxwell, I think it is entirely premature and it will depend upon testimony from their witnesses and they know well what their witnesses have said that could support that. I don't think we need to delve into that at this point. It is not anything that we are opening on. We need to see how the evidence plays out. THE COURT: OK. MS. MOE: Your Honor, if the defense is not opening on this issue we are certainly happy to raise it during the trial. We would ask that the defense be required to front this issue before asking witnesses questions about this on cross-examination because for the reasons set forth in the government's moving papers, the government submits that evidence along these lines would not be relevant. Briefly, your Honor, with respect to the sealing issue, the government understands the Court's concerns and would certainly not object to unseeing this portion of the motion at the conclusion of the trial but I -- THE COURT: I don't see why -- I just don't see how -- obviously some sealing on issues is appropriate in order to protect interests that are in play during the course of the trial. This just doesn't fall within that. So my inclination is, no -- and I have not had the ability to go through the complicated set of sometimes overlapping, sometimes not overlapping redaction requests contained throughout these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007091 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 41 of 127 41 LB15MAX2 papers which is why I ordered you just get them up on the docket rather than deprive the public of seeing the bulk of what is contained in the motions, but I looked at this one and I don't see a basis for sealing it in its entirety and I don't see a basis for redaction so I'm not going to grant that request. MS. MOE: Understood, your Honor. THE COURT: I think there is nothing further on 10. No issue for opening. We will figure out a process, once I have had a chance to rule on the remainder of the sealing requests, for putting on the docket any redactions that I don't approve of and we will take this up if it arises. I think everybody understands, obviously, that I trust, again, the defense will have a basis for an argument that they're making and to the extent this issue arises, raise it, so that we can deal with it. MS. STERNHEIM: We will. THE COURT: Thank you. Government 11. The final issue in the government's motion is request to preclude the defense from arguing that the defendant was a "prevailing party in civil litigation." I will grant this motion. The fact that the defendant was deemed a prevailing party after a settlement in civil litigation seems irrelevant and highly prejudicial. The defendant, as I understand it, was deemed a prevailing party following a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007092 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 42 of 127 42 LB15MAX2 1 voluntary dismissal of civil litigation pursuant to a 2 settlement agreement, and after the dismissal the defendant 3 sought costs as a prevailing party under Federal Rule of Civil 4 Procedure 54(d)(1), and at least as described in the papers the 5 alleged victims opted to pay the fairly minimal amount sought 6 rather than burden the court and other resources with continued 7 litigation. 8 The fact that the defendant received costs pursuant to 9 civil procedure 54(d) after a civil settlement just has no 10 relevance to the charges at hand as far as I can tell and there 11 is substantial danger of confusing the issues and misleading 12 the jury. If the defense elicited that the defendant was the 13 prevailing party, a layjuror would almost certainly assume that 14 that was some kind of adjudication on the merits relevant to 15 this case but there is no evidence that there was any relevance 16 adjudication on the merits and certainly none relevant to the 17 case. Any probative value gained by the introduction would be 18 substantially outweighed by juror confusion and the waste of 19 time needed to explain the differing postures of the current 20 case and the prior civil litigation. So on those 401/403 21 balancing grounds the government's motion in this regard is 22 granted. 23 Any questions before I turn to the defense motions? 24 MS. MOE: Not from the government, your Honor. Thank 25 you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007093 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 43 of 127 43 1 MS. MENNINGER: Your Honor, very briefly on the last 2 issue. I assume that there won't be any argument by the 3 government or their witnesses that they believe that they had 4 an adjudication on the merits, in other words both the victims' 5 compensation fund and the civil litigation, there was no right 6 of confrontation, Ms. Maxwell wasn't a party to those 7 settlement agreements. So, to the extent the government tries 8 to suggest to the jury that they somehow had an adjudication, 9 someone else found that their claims had merit, I think that 10 would be confusing to the jury as well and I assume it would 11 also be deemed by this Court to open the door to an explanation 12 from the defense about what really happened in those 13 proceedings. 14 MS. MOE: Thank you, your Honor. 15 The government does not intend to elicit any testimony 16 from the victims about being a prevailing party in any civil 17 litigation or otherwise. To the extent the government elicits 18 any testimony about civil litigation from the victims it would 19 only be in order to front that issue for the jury in 20 anticipation of cross-examination along those lines. 21 THE COURT: Right. 22 MS. MOE: The government certainly wouldn't be 23 offering that evidence to suggest to the jury in any way that 24 those were adjudications on the merits, nor could we, those 25 were civil settlements. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007094 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 44 of 127 LB15MAX2 1 THE COURT: Anything further on that, Ms. Menninger? 2 MS. MENNINGER: I didn't hear any reference to the 3 victim's compensation fund but there certainly was no 4 adjudication on the merits by a fund that Ms. Maxwell had no 5 party to the settlement. 6 THE COURT: Correct. 7 Same response, Ms. Moe? 8 MS. MOE: Yes, your Honor. And in fact, again, we 9 would only be eliciting information about that on direct 10 examination to front that issue for the jury in anticipation of 11 cross-examination along those lines. To the extent the defense 12 wishes not to cross-examine the victims about the victims 13 compensation program, we certainly agree not to address that at 14 all on direct examination. 15 THE COURT: I imagine the defense does anticipate 16 referring to civil settlements and the victims' compensation 17 fund as part of its cross of anticipated witnesses, correct? 18 MS. MENNINGER: That is correct, your Honor. 19 THE COURT: So the government can front those issues 20 to take out the sting. To the extent there is any 21 implication -- it would not be remitted to make any implication 22 as to what those settlements or receiving of funds would mean 23 as to the issues relevant here. The only issue relevant here, 24 as I see it, goes to incentive for bias and credibility issues. 25 MS. MENNINGER: It just depends on what the witness SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007095 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 45 of 127 LB15MAX2 45 says, your Honor. I agree that these are issues that it's important for the Court to be aware of before trial but I can't predict, and I'm not really sure that the government can predict, what their witnesses will say or suggest in their actual testimony. When they open the door through fronting it, it may be that they say something that suggests that there was someone who believed them, that there was a victims' compensation fund that believed them. If those kinds of words are used by the witness, then that becomes problematic in terms of our ability to be hamstrung in cross-examination that there was no actual confrontation during that process. So, depending upon what the witnesses say we would re-raise this but I do think it's important for the Court to sort of have that in mind when the government is trying to use evidence to front an issue but then potentially opening the door to us being open to cross on the same type of language that their witnesses used. THE COURT: Ms. Moe? MS. MOE: Your Honor, again, the government doesn't anticipate that the testimony would come out that way but, in any event, I think with respect to the specific concern defense counsel has raised, to the extent it opened the door I don't believe it would open the door to separate collateral issues about a separate civil lawsuit and resolution of that civil lawsuit. THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007096 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 46 of 127 LB15MAX2 1 MS. MOE: But, beyond that, your Honor, we don't 2 anticipate this would be an issue. 3 THE COURT: OK. I think we are in agreement. 4 My clerk noted I inadvertently skipped over Government 5 so we will return to that. This is the government's 6 expectation that the testimony of certain witnesses would 7 include statements by individuals that are not testifying and 8 the government argues that the defense can't attack the 9 credibility of those non-testifying individuals because their 10 statements would not be admitted for their truth but, for 11 example, their effect on the testifying witness and the like. 12 Again, I think without more specificity it is 13 difficult to make a definitive ruling but I'm happy to hear 14 examples to give some guidance. 15 Ms. Moe? 16 MS. MOE: Thank you, your Honor. 17 I think there will be limited testimony from a victim 18 about her interaction with other victims. I think the 19 statements that would come in from those other victims would be 20 offered not for their truth but because they are instructions, 21 they would be offered for that effect on listener and to 22 explain the course of events that followed. We don't 23 anticipate offering any statements from non-testifying victims 24 for their truth and so we don't anticipate opening the door to 25 a line of cross-examination about their credibility. And so, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007097 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 47 of 127 47 for that reason, we would ask that the defense be precluded from opening on this issue or otherwise raising issues related to the credibility of individuals who would not be testifying at this trial including not only non-testifying victims but also attorneys. MS. MENNINGER: Your Honor, even the statement "a non-testifying victim" is very loaded because who is going to testify that that person is a victim and on what ground? That's the problem. THE COURT: Well, I wouldn't allow testimony by a witness about a characterization that goes to a legal issue so of course they could testify about observations involving other people. I can imagine instances in which they testify about statements of others not offered for the truth but I wouldn't anticipate the government would attempt to do any of that via any characterization of those individuals that go to legal conclusions relevant to the jury's role. Do I have that right, Ms. Moe? MS. MOE: Yes, your Honor. MS. MENNINGER: It is interesting, because in their offer of proof they actually say that one witness is going to talk about another person being a victim of sexual abuse and that second person isn't going to testify, and the question of whether that person was a victim of sexual abuse would turn on the age at which they were conducting certain activities. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007098 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 48 of 127 48 LB15MAX2 1 so, just as we were arguing earlier, your Honor, if the government is trying to put on evidence about other people being victims, then that opens the door to us challenging that other person's credibility. I don't have any issue with the way we briefed it which was it just depends on what is said by the witness and we will certainly re-raise these issues. But, the government can't have their cake and eat it, too. If they want to put on evidence about a broad number of supposed victims then we have the obligation, ethically, to challenge whether or not those other individuals are in fact victims. THE COURT: Well, I think maybe speaking in the abstract is where the fine points get lost. So if a testifying witness testifies about something that she observed involving the defendant and another individual, that doesn't open the door to attacking the credibility of that other individual. Agree to that basic premise? MS. MENNINGER: Correct, your Honor; an observation alone. THE COURT: And if the witness testifies that another individual, using the name or pseudonym -- if that is what is appropriate in light of the Court's ruling, I don't have it firmly in mind at this point but, just as an example: Someone told me to go to somebody's home. That doesn't put the credibility of the out-of-court witness in issue, does it? Because that is not being offered for the truth. Now, if it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007099 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 49 of 127 49 LB15MAX2 1 says go to so and so's home at the following address -- 2 MS. MENNINGER: Or what is going to happen there and 3 why do I think it is going to happen there -- those kinds of 4 things -- that is really getting into the circumventing the 5 not-for-the-truth issue. 6 THE COURT: I don't think those other points could 7 come in because they would be for the truth. 8 MS. MENNINGER: Hearsay, right. 9 THE COURT: So they don't come in, obviously you can't 10 attack credibility. 11 Ms. Moe, do you disagree with any of that? 12 MS. MOE: No, your Honor. The government agrees. And 13 if this issue arises, we would certainly agree to a limiting 14 instruction about those out-of-court statements not being 15 offered for their truth. We don't anticipate that there would 16 be any testimony from an out-of-court declarant who is a victim 17 offered for its truth at this trial, and so we don't anticipate 18 option the door. 19 THE COURT: If the government thinks any of these, of 20 what it does intend to offer, is close to the line on that 21 question, it must raise them before inquiring or raising it in 22 opening. 23 MS. MOE: Certainly, your Honor. 24 THE COURT: OK. 25 Anything further on that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007100 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 50 of 127 LB15MAX2 1 MS. MENNINGER: No. Thank you, your Honor. 2 THE COURT: All right. 3 Anything else before turning to the defense motion? 4 MS. MOE: No, your Honor. 5 MS. STERNHEIM: No, thank you. 6 THE COURT: Defense 1 relates to the government's disclosure of co-conspirator statements. The parties spill a lot of ink about the meaning of prior orders and whether the government has fully met its disclosure obligations as set out by those orders. The government did not violate my orders and the defense motion to preclude the government from introducing any alleged co-conspirator statements is denied. I do think the schedule, as set out in this case, has provided for certainly a vastly earlier disclosure schedule than any other trial over which I have previously presided and I do think the defense is well equipped to know what is coming and can responsibly raise issues that can be dealt with in advance of trial. Here, the defense has the names of the co-conspirators who will be mentioned by the government at trial and it has the government's marked exhibits, and although it doesn't feel like it, we still have a month to go before trial. That said, here is how we will proceed on this point -- and this is another homework assignment. By this Thursday, November 4, the government will provide to the defense the categories of the kinds of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007101 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 51 of 127 LB15MAX2 1 co-conspirator statements that it intends to introduce at trial 2 pursuant to 801(d)(2)(E) and specifically representative 3 exemplars of each category whether by exhibit number or 4 anticipated testimony. That is a process that I have used 5 before, I think not infrequently used, in order to try to 6 litigate anything that could be litigated. So the government 7 will do that by November 4th. The defense, bearing fully in 8 mind the well-established law regarding conditional admission 9 of the co-conspirator statements, the defense should indicate 10 to the government, by November 8, any good faith, non-frivolous 11 objections to the introduction of any such statements. After 12 conferring, if there are disputes remaining that wouldn't 13 obviously fall into the law regarding conditional admission, 14 the government shall file a letter, by November 10, justifying 15 admission of exemplars and statements over which the parties 16 disagree. So that's the 10th, and then the defense could put 17 in an opposition, in writing, by November 12th. 18 Any questions about that, Ms. Moe? 19 MS. MOE: No, your Honor. Thank you. 20 THE COURT: Ms. Sternheim? 21 MR. PAGLIUCA: We are clear, your Honor. Thank you. 22 23 THE COURT: I think it is probably worth maybe just a 24 moment, because it impacts this issue and some other ones, to 25 just discuss one category of potential statements that's been flagged and that's alleged co-conspirator statements that date SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007102 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 52 of 127 52 LB15MAX2 after what's alleged in the indictment as of the date of the conspiracy. Let me ask, Ms. Moe, if are you in position to say, does the government intend to seek admission of alleged co-conspirator statements that post-date the dates of the conspiracy alleged in the indictment? MS. MOE: Your Honor, I think I would want a moment to confer with my colleagues about that and so, if possible, we would like to address that in our November 10th letter. In brief, as a preview, I think to the extent there were any statements that post-dated the time frame of the charged conspiracy we would be offering them only to the extent they reference the charged conduct. But, again, I would like to confer with my colleagues and think through that in detail before making a representation to the Court, and so we ask to brief that as well at the same time. THE COURT: Anyone want to take this now? Or just wait? MR. PAGLIUCA: Your Honor, I am happy to wait but it is clear to me that there are post-alleged-conspiracy statements that the government will attempt to introduce and I think we attach what were the representative samples of those statements. And so I don't think it should be a surprise, as we sit here today, what those statements may or may not be. I think whether or not you want to say that those statements go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007103 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 53 of 127 53 LB15MAX2 to something alleged in the indictment doesn't change the 801(d)(2)(E) analysis and that is it has to be made in the course of and in furtherance of a conspiracy. So post-event statements that don't have anything to do with furtherance of the conspiracy are simply hearsay and inadmissible. I think that's a pretty simple proposition, your Honor. MS. MOE: Your Honor, among other reasons why we would like time to think about this further and address it in more detail, is that Rule 801(d)(2)(E) is not limited to the charged conspiracy at trial, a statement said in furtherance of the conspiracy even if it is not the charged conspiracy. And so we would want to think through that as well. And we would also want to think through, even if a statement is offered by a co-conspirator, whether it is being offered under Rule 801(d)(2)(E) at all. And so we would just ask for additional time to think through that to make sure we give an accurate and thorough representation to the Court. THE COURT: So, I will stick with the process and schedule that I have indicated but I do think we will separate out statements that post-date the conspiracy as charged in the indictment and the government will indicate grounds for the specific introduction of any of those anticipated statements. OK, Ms. Moe? MS. MOE: Yes, your Honor. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007104 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 54 of 127 54 LB15MAX2 1 MR. PAGLIUCA: Yes, your Honor. That's fine. 2 THE COURT: Thank you. 3 Defendants 2 is the admission of certain evidence outlined in the government's 404(b) letter dated October 11, 2021. First, as to the defense argument that there has been an inadequate notice under 404(b), I disagree because the government's letter and briefing between the government's letter and the briefing here, the defendant has "reasonable notice" of any 404(b) evidence so the question is whether the evidence can be properly admitted. I think there is two categories of evidence, the first goes to e-mails, and I will speak in the just general description which I think is appropriate. The government may have attempted to redact some general description and to the extent that you have, I disagree with that but I will speak generally -- I'm sorry, the defense requested redaction as to some general description but I don't think it's appropriate. So I'm going to ask the government, if this understanding is correct, that the e-mails reflect instances of the defendant setting up dates that involve women over the age of consent. 21 MS. MOE: Your Honor, I think as we noted in our briefing, for some of the documents it is unclear what the age range is. 24 THE COURT: So you wouldn't be able to prove that it was under the age of consent? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007105 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 55 of 127 55 LB15MAX2 1 MS. MOE: Exactly, your Honor. 2 THE COURT: For our purposes I think we need to assume 3 over the age of consent, correct? 4 MS. MOE: Your Honor, I think it would be ambiguous 5 from the evidence but we are not proffering them as evidence of 6 conduct with respect to other minors. 7 THE COURT: OK. So, let's just start with the 8 following statement: You are seeking to introduce e-mails that 9 involve the defendant setting up people on dates with women 10 over the age of consent? 11 MS. MOE: Your Honor, because we are not able to 12 determine the age of those individuals -- 13 THE COURT: Let's assume that you could for some of 14 them. Right? Are you seeking to introduce those? It is clear 15 that the women involved are over the age of the consent. Are 16 you seeking to introduce those e-mails? 17 MS. MOE: I think the e-mails that the defense has 18 moved to preclude don't say one way or the other the age -- 19 THE COURT: You are fighting my hypo. So, to be 20 clear, it is a hypothetical. If you have an e-mail involving 21 the defendant setting someone up on a date with someone who the 22 government knows is over the age of consent on the basis of the 23 argument made here, are you seeking to introduce it? 24 MS. MOE: Yes, your Honor. 25 THE COURT: And why? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007106 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 56 of 127 LB15MAX2 1 MS. MOE: The government respectfully submits that although the defense is free to characterize these as dates, the tenor of the e-mail suggests that she is offering up women largely based on descriptions based on physical descriptions and not in sort of a matchmaking capacity. And so, I think the jury would be free to conclude from those e-mails that the defendant is serving a particular role with respect to the men that she is e-mailing with. 2 3 4 5 6 7 8 9 THE COURT: Are you suggesting like some kind of financial arrangement? 10 11 MS. MOE: No, your Honor. 12 I think the issue, as reflected in our briefing, is that a jury may wonder at this trial about the relationship between Ms. Maxwell and Mr. Epstein and why Ms. Maxwell would be willing to serve in a particular role with respect to Mr. Epstein, and it is probative of that issue that she is serving a similar role, albeit in a different context, with other men during that same time frame. 13 14 15 16 17 18 19 THE COURT: On the e-mails, I am excluding them. 20 The indictment charges the defendant with conspiring and aiding and abetting the transport and enticement of minors to engage in illegal sex acts and the commercial sex act 21 22 23 e-mails setting up dates between non-minors or meetings, however you want to describe it, involving non-minors are not direct evidence of the crimes charged, they don't arise out of 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007107 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 57 of 127 57 LB15MAX2 the same transaction or series of transactions as the charged offenses, they're not inextricably intertwined with the evidence nor necessary to complete the story of the crime on trial. The government doesn't allege that the individuals in these e-mails have anything to do with the crimes charged nor could they on the assumption that they can't establish that any of the individuals are below the age of consent. As for 404(b), I am also not convinced. The government argues that the e-mails show motive, intent, plan, and knowledge. Any potential probative value here would be substantially outweighed by the possibility of confusing the jury. Thus, I grant the defendant's motion as to Government's Exhibits 401 through 404, 409, 410, and 413. The next category is the anticipated testimony that -- and this involves someone who has knowledge based -- this goes to the post-date conspiracy charged. This is someone who, as I understand it, has knowledge that post dates the conspiracy alleged; is that right? MS. MOE: That's correct, your Honor; and that testimony will be proffered principally authenticate certain evidence relevant to the charged conduct. THE COURT: OK. Who is taking this? With respect to authenticating evidence, do you have an objection, Ms. Menninger? MS. MENNINGER: Yes, your Honor, because it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007108 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 58 of 127 58 LB15MAX2 post-dating the alleged conspiracy. For example, there are documents -- I don't know, they weren't specified which documents that this witness intends to authenticate, but among the documents that I believe the witness may attempt to authenticate, they are dated in 2005 and beyond. And so the question really is whether you can -- it is an authentication one, whether that relates to the conspiracy or not. As we set forth in our reply, your Honor, there is a real concern because a number of, I think, the entire first series of exhibits, are largely taken from a period outside of the charged conspiracy. I think this witness may attempt to authenticate some of those exhibits and they haven't established why that will be relevant to the charged time period of the conspiracy. They really didn't argue 404(b) on this point and we asked for additional time in terms of the direct evidence because we had just received these 400 pages that relate to that particular witness, your Honor. THE COURT: So the basic contention would be if we have a document that, on its face, that post-dates the charged conspiracy. I mean that, alone, is I think the first point of your objection, right? MS. MENNINGER: Yes, your Honor. THE COURT: The authentication issue aside. What is the relevance of a document that, on its face, post-dates the charged conspiracy? Let's start with that, Ms. Moe. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007109 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 59 of 127 59 LB15MAX2 1 MS. MOE: Yes, your Honor. 2 The category of exhibits that this witness would be 3 authenticating would include, among other things, contact 4 information for the minor victims and so the fact that that 5 contact information and messages from those victims was in 6 Mr. Epstein's residence and, in part, in the defendant's 7 possession is relevant regardless of the time frame and is 8 corroborative of the other evidence at trial. 9 THE COURT: The charged conspiracy ends and then 10 Mr. Epstein maintains addresses of individuals alleged to be 11 victims here. Is that the context? 12 MS. MOE: Yes, your Honor; but more specifically with 13 respect to the two categories of exhibits, the first would 14 include messages that were left at the residence during the 15 time frame of the charged conspiracy, they are dated and 16 include a name of a victim and her contact information and so 17 this witness will be authenticating those. Those documents 18 come from the time frame of the charged conspiracy and were 19 created at the time frame of the charged conduct. 20 With respect to a second category of information -- 21 THE COURT: And you have a witness who would 22 authenticate that they were created at the time of the charged 23 conduct which, presumably, wouldn't be somebody who doesn't 24 come onto the scene until after the time period of the charged 25 conduct. Fair to say? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007110 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 60 of 127 LB15MAX2 1 MS. MODE: Your Honor, those records would be authenticated through number of different witnesses; in part, law enforcement officer describing those exact records being seized from the residence in 2005 in their general description and format, witnesses describing the practice for maintaining those records contemporaneously and doing so in the course of their employment. 2 3 4 5 6 7 8 THE COURT: Contemporaneous to what? 9 MS. MODE: At the time the message was made. 10 THE COURT: During the period of the conspiracy? 11 MS. MODE: Yes, your Honor. And that testimony would include testimony about the format of these documents, where they were kept, and the practice for keeping messages along these lines. We think that is consistent with the Second Circuit's rulings on authentication being based on the particulars of a document and their formatting and their contents. So I think this would come in through a number of witnesses and, collectively, at the conclusion of that testimony, we would offer those exhibits based on that foundation. 12 13 14 15 16 17 18 19 20 21 THE COURT: And I don't think I can rule on that in advance until we hear the authentication evidence being offered. What you have proffered I think -- I will hear from the defense -- but it seems like those pieces could add up to authentication. 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007111 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 61 of 127 61 LB15MAX2 1 But take the example, if you would, that a document 2 that, on its face, post-dates the charged conspiracy, for what 3 purpose would you be offering that? And let's use the address 4 book as an example. 5 MS. MOE: Yes, your Honor. 6 With respect to that particular document, the 7 testimony would be that that document belonged to the defendant 8 and that she -- and the document itself would include contact 9 information for some minor victims under a certain heading that 10 has relevance to the case and organized in a certain way that 11 is consistent with victim testimony. So, whether the defendant 12 held on to that or maintained it following the conclusion of 13 the charged conspiracy, it would nonetheless be relevant to 14 establish the defendant's knowledge to confirm her contact with 15 those victims and to be corroborative of other exhibits at 16 trial. 17 THE COURT: If the evidence were that it wasn't 18 created or maintained until after the charged conspiracy, is it 19 relevant? 20 MS. MOE: Yes, your Honor. 21 If, at the conclusion of the conspiracy, the defendant 22 nonetheless memorialized that information about those victims, 23 it would nonetheless be relevant to her knowledge to rebut 24 arguments that she didn't know the victims or have contact with 25 them and so certainly that would be relevant, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007112 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 62 of 127 62 LB15MAX2 THE COURT: Ms. Menninger? MS. MENNINGER: Your Honor, I am a little confused but what I think I understand the government is saying is that knowledge after the conspiracy is relevant to the time frame of the conspiracy. I don't believe that the witness we are talking about, who didn't start working until after the time of the conspiracy for Mr. Epstein, would be able to set forth the foundation that they're claiming. I believe that this is more likely to be a trial-time testimony decision because I think there will be some pretty substantial objections to the ability of this witness to authenticate the document which I know your Honor is aware from other briefing, is what we consider to be from a very suspect source and obtained years later. There is a lot of notations and things on it that will not be anything that this witness can attest to. I think it is Exhibit 52. THE COURT: Yes. MS. MENNINGER: I don't think it is relevant to the time period of the conspiracy. THE COURT: Right. I guess the question, given the pieces of authentication that the government intends to offer through different witnesses and what sounds like lines of cross-examination as to those pieces, I think at that point I am potentially -- at least the government will have to proffer, put forward questions and get answers from the witness that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007113 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 63 of 127 63 LB15MAX2 would go to authentication. I just don't know if I am in a position to rule at this point but let me ask both sides if anybody intends -- I mean, take Exhibit 52, is that going to be mentioned in opening? MS. MOE: Your Honor, the government doesn't anticipate opening with respect to Government Exhibit 52 but may address, in opening, other categories of exhibits, for example, the message pads that I just referenced. MS. MENNINGER: Your Honor, that's a problem. In terms of the message pads that have a post-conspiracy date on them without a witness who can authenticate them under any exception under hearsay in opening statements, we would strongly object to that. I still have not heard appropriate grounds to lay a foundation or relevance for those. THE COURT: Yes. Let's take the message pads. Who will authenticate? MS. MOE: Your Honor, a number of witnesses. I think we would be offering those messages at the conclusion of a series of witnesses laying foundation for their authenticity including law enforcement witnesses and employees talking about the circumstances under which messages were maintained but we don't anticipate offering messages in those message books that post-date the time frame of the charged conspiracy. THE COURT: OK. So the government will not mention any message pads that post-date the charged conspiracy in its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007114 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 64 of 127 64 LB15MAX2 opening. MS. MOE: That's correct, your Honor. THE COURT: Ms. Menninger, anything further on that? MS. MENNINGER: Nothing further on that, your Honor. THE COURT: OK. Anything further in this general category that needs to be addressed now, Ms. Menninger? MS. MENNINGER: If there is no other evidence that the government intends to offer via Rule 404(b), then no. There was a reference to another exhibit -- GX- 416 -- in the government's briefing. That was not one of the exhibits that was mentioned in the Rule 404(b) letter. I assume because it was not mentioned in that letter it cannot be offered through 404(b). It is of a same type and characteristic of the e-mail that your Honor has excluded so I don't know what the intent is there. THE COURT: Ms. Moe? MS. MOE: Yes, your Honor. We didn't include that exhibit in our notice. We are offering it as direct evidence, unlike the other evidence which were included in our notice. That document is a series of notes. The metadata for that exhibit reflects that the defendant created that series of notes but, unlike the other exhibits outlined in our letter, it doesn't appear that that was directed at a third-party as opposed to Mr. Epstein, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007115 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 65 of 127 65 LB15MAX2 although it is not clear from the document to whom it's directed. MS. MENNINGER: It relates to individuals in their 30s and 20s, your Honor. I'm just unclear how it relates to charged conduct or direct evidence of a conspiracy to abuse underage females. THE COURT: It seems like it falls within my -- it wasn't specifically moved for exclusion but because of the government not including it in its notice but I'm not seeing -- I am pulling it up but I'm not seeing -- a basis, from what I am hearing, distinguishing it from my ruling on the e-mails. MS. MODE: Your Honor, the government submits that along with other exhibits at trial, which will establish the defendant's role with respect to Mr. Epstein and her role in particular in setting up sexualized massages for him, that this is corroborative of other exhibits and other testimony at trial that the defendant did in fact serve that role, was willing to do -- take steps along those lines. And so, for that reason -- THE COURT: But it involves, clearly, people over the age of consent? MS. MODE: That's correct, your Honor. THE COURT: Let me just pull it up. For the same reasons, 416 is excluded. MS. MODE: Understood, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007116 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 66 of 127 66 LB15MAX2 1 THE COURT: Anything else on this? 2 MS. MENNINGER: No, your Honor. Thank you. 3 THE COURT: Next is Defendant's Exhibit 3 which is the motion to exclude the excerpt which, as I have indicated, we will take up at the Daubert hearing. 6 Let's take a short comfort break. 10-minute break. 7 (Recess) 8 (Continued next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007117 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 67 of 127 LB1TMAX3 1 THE COURT: We'll pick up with Defense 4. This is the issue of evidence related to alleged Victim-3. 2 Defense seeks to exclude evidence related to this individual that's not probative of the charged conspiracy and inadmissible under 404(b) and 403. There are redactions issues here. Redactions of specific identifying information is permissible here. I don't think that redactions as to some general background information that does not reveal specific identifying information regarding the alleged victims is necessary, but we'll proceed bearing in mind the requested redactions. 3 I want to begin this one with questions for the government. Ms. Moe, so it's a hypothetical. I gather there's statute of limitations issues, but setting the statute of limitations issue aside, if the only evidence in the case pertained to this individual, if all the testimony of this individual is accepted by the jury, could the defendant be found guilty of any crimes charged in the indictment? 4 MS. MOE: With respect, just so I understand the hypothetical, if the only count in the indictment were the Mann Act conspiracy -- 5 THE COURT: No, any of the crimes charged, just stipulate to that, but if the only evidence pertains to this individual. 6 MS. MOE: Yes, your Honor. The answer is no. In SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007118 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 68 of 127 68 LB1TMAX3 particular, because with respect to -- that's why I was clarifying, your Honor. With respect to the Mann Act conspiracies, the particular criminal sexual activity relates to a particular statute in New York. And with respect to the sex trafficking -- THE COURT: The particular statute in New York that the government here -- that's 130.053(a), right? MS. MOE: Yes, your Honor. THE COURT: And that establishes 17 as the age of consent for the underlying sexual activity that's charged in the indictment. MS. MOE: That's correct, your Honor. THE COURT: So the Mann Act is going to -- the case that the government is going to prove here is going to incorporate that as the illegal sexual conduct. MS. MOE: That's correct, your Honor. THE COURT: So couldn't be convicted with respect to that count. MS. MOE: That's correct, your Honor. And that's among the many reasons why we submit there's very little potential prejudice of offering this testimony considering its relevance to the counts charged, because given the elements of the offense standing alone and the statute of limitations issue, we think there's no 403 issue here. THE COURT: Well, not just with respect to the Mann SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007119 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 69 of 127 69 LB1TMAX3 1 Act, there's no count charged in the indictment for which the 2 defendant could be convicted -- again, setting aside -- I'm not 3 dealing with the statute of limitations issue, put it out of 4 your mind. So assuming no statute of limitations issue, could 5 the defendant be convicted of any count charged in the 6 indictment based on the evidence as it pertains to this? 7 MS. MOE: No, your Honor, we have not charged the case 8 that way, and that testimony alone wouldn't satisfy those 9 crimes charged. 10 THE COURT: And is the government's position that this 11 individual could be deemed a victim for restitution purposes or 12 any legal purpose with respect to the crimes charged in this 13 case and the case that the government is going to put on? 14 MS. MOE: Your Honor, with apologies, I haven't 15 thought through the restitution issue. I would want to confer 16 with my office about that. I'm not certain, your Honor. 17 THE COURT: Well, if the defendant can't be indicted 18 based on this conduct -- again, assuming no statute of 19 limitations issue, assuming that the jury adopts and accepts 20 all of the testimony as true, the defendant couldn't be 21 convicted of any of the crimes charged based on that conduct, 22 how could that individual be deemed a victim of the crime 23 charged? 24 MS. MOE: I understand the Court's point, your Honor. 25 I guess my concern is that the distinction between charging SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007120 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 70 of 127 LB1TMAX3 1 based on that conduct alone and the evidence based on that conduct alone, we submit that, given the course of conduct in the charged conspiracy, that Minor Victim-3 is a victim of an ongoing conspiracy, which is one of agreement and intent. 2 3 We submit that her testimony alone wouldn't establish a violation of the Mann Act, and without the other circumstances of other victim testimony, we couldn't establish that there was an ongoing intent to transport minor victims. 4 But given that the crime here is conspiracy and one of agreements and mental states and not about attempts to violate certain statues or agreements to do so, it's about the intention at the time of agreement during the course of a span of conduct. 5 6 THE COURT: But it has to be an intention to engage in an illegal act. 7 8 MS. MOE: That's correct, your Honor. 9 10 THE COURT: And so I think I need an answer to the question. There is a distinction, surely, between criminality and evidence of criminality. You have evidence of criminality, which is not itself criminality, for sure. You have 403 questions and the like. But I need to know the government's position I think for a number of things in issue, including Defendant's 4. So you have confirmed that the defendant couldn't be found guilty of any crimes charged based on the conduct alleged with respect to what you refer to as alleged SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007121 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 71 of 127 71 LB1TMAX3 1 Victim-3. 2 MS. MOE: Yes, your Honor. 3 THE COURT: And you're not sure what the government's position is as to whether alleged Victim-3 could in any legal sense be deemed a victim of any of the counts charged, despite the I think necessary, but I wasn't sure of the government's position, with respect to the illegality of conduct involving the victim. 8 MS. MOE: Your Honor, with apologies, may I have one moment to confer with my colleagues? I want to make sure I'm not misunderstanding the Court's question and want to confer with them about a specific issue. 13 THE COURT: Okay. 14 (Pause) 15 MS. MOE: Thank you, your Honor. 16 THE COURT: One moment, because I want to pull up this portion of the government's briefing on this which triggered these questions. 19 (Pause) 20 THE COURT: Okay, go ahead. 21 MS. MOE: Thank you, your Honor. As my colleagues have pointed out to me, the definition of a victim for purposes of the element of the statute and pursuant to the restitution statute are different. And part of our hesitation in speaking to issues of restitution is because that implicates the Crime 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007122 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 72 of 127 72 LB1TMAX3 Victims' Rights Act, so we want to confer with victims' counsel on that issue as well before we reach a conclusion on that. The definition set forth in the restitution statute, which is 18 USC 3663(a)(2), for purposes of the section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered. So that's the particular issue that we just want to think through before we reach a conclusion on in particular because we're mindful of the Crime Victims' Rights Act. So I apologize, it's not my intention, certainly, to fight the hypothetical, we wanted to be thoughtful about that issue. THE COURT: You will get me your views on that question with respect to restitution, but as I understand your initial point, for purposes, as you said, of the elements of establishing any of the offenses, the government's view is that this individual is not a victim in the sense -- granting that restitution's definition of "victim" could be broader than those for whom the government's proof of elements as to the charged account would show to be victims, I think that's the distinction you're trying to draw. MS. MOE: Your Honor, our position is that we recognize Minor Victim-3's testimony alone would not satisfy the elements of the conspiracy count in which the overt acts appear, our view is nonetheless that it's direct evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007123 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 73 of 127 LB1TMAX3 1 THE COURT: That's because the relevant age of consent for purposes of the case that the government is trying to prove is the New York statute, which sets 17 as the age of consent, and this individual was -- sorry, under 17 is the age of consent, and this individual, when the government understands sexual conduct to have occurred, was 17, correct? MS. MOE: That's correct, your Honor. THE COURT: Okay. MS. MOE: It's nonetheless our position this is direct evidence for a number of reasons. First, it's -- THE COURT: Direct evidence of what? MS. MOE: Of the charged conspiracy. In part because this conduct occurred at the same time the defendant was engaged in conduct with respect to the other victims, and her testimony will establish a pattern that is corroborative of their testimony and demonstrates the defendant's knowledge and intent. With respect to the issue -- THE COURT: You've slid between direct evidence and 404(b), right, knowledge and intent? MS. MOE: No, your Honor. The government will certainly be required to prove at trial the defendant's knowledge and intent to commit these crimes. So the defendant's conduct with respect to this victim goes directly to that issue. In particular, I take the Court's point with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007124 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 74 of 127 74 LB1TMAX3 respect to the issue of 17 or under 17, but more broadly, I think the question at trial will be about, among other things, the defendant's knowledge of Jeffrey Epstein's preference for very young girls. THE COURT: Well, let's say this individual were 20, is it direct evidence of the crimes being charged? MS. MOE: Yes, your Honor, but for a different reason. Under those circumstances, it would nonetheless be our position, even if the victim were 18, 19 or 20, that the defendant's specific conduct towards that victim proves other aspects of the course of conduct. In other words, the particular pattern -- THE COURT: This seems to move into the email issue, which I have excluded. That is to say, you wanted to put in emails of the defendant setting up individuals with other individuals over -- in some cases well over the age of consent, and I have excluded that. So is there a basis for distinguishing this here? MS. MOE: Yes, your Honor, there certainly is for a number of reasons. Here, the course of conduct is closely intertwined. In other words, the defendant's interactions with this victim closely mirror actions with other victims, for example, introducing sexual topics in a slow and gradual way. THE COURT: When you say "victim" there, do you mean that in a legal sense? Because I still want to understand the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 75 of 127 LB1TMAX3 1 point. 2 Now one might have all kinds of moral judgments and 3 concerns, but is there a legal sense in which the government 4 right now in talking to me is just identify the person, or is 5 there a legal sense in which you're proffering this individual 6 as an victim of the crimes charged, setting aside you don't 7 have an answer yet as to whether they may meet some basis for 8 restitution should the defendant be convicted. 9 MS. MOE: Yes, your Honor, I'm using that term both 10 for identification purposes and because I think, as the 11 victim's testimony will illustrate, she will describe a course 12 of unwanted conduct, and the way in which she came to engage in 13 that conduct is as a direct result of the defendant's behavior 14 in a way that closely mirrors the way the defendant secured 15 access for Mr. Epstein to the other minor victims in this case. 16 THE COURT: That is an argument about consent being 17 the basis for which -- we have put it aside to 412, but as a 18 general matter you have argued consent is irrelevant because 19 the age of consent is the only thing in issue for these 20 charges, but you're saying the relevance of this individual's 21 testimony turns on the government establishing nonconsensual 22 sexual conduct? 23 MS. MOE: No, your Honor, I'm simply explaining why we 24 are using that term "victim," because that's the way she 25 characterizes that experience, and I think that will come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007126 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 76 of 127 LB1TMAX3 1 across when she describes it. 2 What I mean is not that the relevance turns on whether 3 or not she consented to that conduct, but the way in which that 4 occurred closely mirrors exactly how that occurred with other 5 victims. So in terms of proving the methods of the conspiracy, 6 the means they employed, the defendant's role in the 7 conspiracy, all of which is direct proof of the defendant's 8 guilt, this victim's testimony will be corroborative and 9 establish the defendant's knowledge. 10 THE COURT: You're saying that would be true 11 regardless of the age of this individual. I could keep doing a 12 hypothetical, 25, 30, it doesn't matter, from your perspective, 13 it would be relevant to establishing the conspiracy because it 14 occurred at the same time? 15 MS. MOE: Your Honor, I could see universe in which 16 there were an outer limit on the age a hypothetical victim 17 where this would be relevant. Our view is that the age of this 18 victim makes it particularly relevant, but it's the other 19 aspects of the course of conduct which are corroborative and 20 make this direct evidence. Here, this victim was 17, in close 21 proximity to the age of the other victims, and so her 22 testimony, among other things, establishes the defendant's 23 knowledge and awareness of a certain sexual preference for 24 girls under the age of 18. 25 THE COURT: But under the age of 18 is legally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007127 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 77 of 127 77 LB1TMAX3 1 irrelevant to the crimes charged, correct? Under the age of 17 2 is what is legally relevant. 3 MS. MOE: That's certainly true with respect to the 4 elements as to the other victims, but I think as a matter of 5 common sense, a jury understanding that the defendant is 6 willing to provide Epstein with a girl at the age of 17 would 7 certainly speak to her knowledge of his sexual preferences. 8 THE COURT: Why doesn't it speak to a knowledge of 9 sexual preferences to someone just above the age of consent? 10 MS. MOE: Well, your Honor, I think the close 11 proximity of ages, it speaks to her knowledge about his 12 preference for very young girls. 13 I would also note that, although the age of 17 is 14 relevant with respect to the Mann Act counts, with respect to 15 the trafficking counts, the applicable age is there is 18. 16 THE COURT: I began this whole series by asking, like 17 eight times and very clearly, is there any sense in which this 18 individual, the conduct that's -- assuming it to all be true 19 with respect to this individual, could establish an element of 20 any of the crimes charged? 21 MS. MOE: Yes, your Honor. With respect to that 22 victim, that's certainly the case. But speaking to direct 23 evidence of knowledge and preferences, it's certainly also 24 direct evidence of the defendant's knowledge with respect to 25 the sex trafficking counts where the age of consent there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007128 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 78 of 127 78 18. And so the fact that the defendant was taking these steps towards a girl who was 17 years old certainly speaks to her knowledge and willingness to provide such a girl to Epstein with respect to the sex trafficking counts as well. THE COURT: So to prove the sex trafficking count, we're talking Count Five and Count Six, right? MS. MOE: Yes, your Honor. THE COURT: On this one, for sex trafficking, you have to prove what with respect to H in order to get a conviction? MS. MOE: That the victims were less than 18 years old. I would note on that score, your Honor, with respect to the trafficking counts, the issue is about commercial sex acts in exchange for something of value involving individuals under 18. Minor Victim-3 would testify about participating in sexualized massages with Epstein at the defendant's urging and receiving compensation in part. And that's one of the many other reasons why her testimony is corroborative of other victim testimony in this case and direct evidence of the charged crimes. THE COURT: So the conduct took place -- the sexual conduct took place at the age of 17. Factually, this is an individual who says -- the government can't establish under the age of 18 for purposes of travel. I guess that goes to the Mann Act, not to the trafficking count. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007129 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 79 of 127 LB1TMAX3 1 So on trafficking, the government would seek to have 2 this testimony as direct evidence with respect to the 3 trafficking count, because the individual of legal age in all 4 relevant jurisdictions was under the age of 18. You're going 5 to have to spell it out for me. 6 MS. MOE: Yes, your Honor. If the defense were to 7 argue that the defendant didn't know that victims with respect 8 to the trafficking count were under the age of 18 or wouldn't 9 have done this if they were under 18 or that she did not know 10 that Epstein had a preference for underage girls or his 11 sexualized massages were with girls under the age of 18, this 12 would certainly speak to that issue. 13 In particular, if the defendant were to argue that she 14 didn't know that the massages she was arranging were 15 sexualized, I think the testimony of the victim speaking to 16 that issue would certainly make that all the more relevant. 17 THE COURT: Right. Okay. I'm not sure the government 18 had previously argued this constituted direct evidence of the 19 trafficking count, is that right? 20 MS. MOE: Your Honor, I would have to review our 21 briefing. I believe we said that it was direct evidence of the 22 charged crimes. I apologize if we were vague about that, but 23 our view is the entire course of conduct speaks to the 24 defendant's role and knowledge, and the proof here is mutually 25 sufficient. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007130 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 80 of 127 LB1TMAX3 1 THE COURT: Who am I hearing from on this one? 2 MR. EVERDELL: Me, your Honor. Thank you, your Honor. 3 I think your Honor hit it right on the head right from 4 the outset, which is if all we had were allegations related to 5 this particular individual, we would not have a charged crime 6 here because there was no criminal activity at all. 7 The only basis for which -- I think the government has 8 tried to articulate some basis for its relevance as direct 9 evidence of the charged crimes is her subjective experience of 10 what happened to her. She was of legal age in every single 11 jurisdiction where these events allegedly took place. So the 12 issue of consent, while we may have moral objections to this, 13 it was entirely legal and the government can't prove otherwise. 14 So all she's going to testify to, presumably, is how she felt 15 about those instances, and that is not proof that is probative 16 of the defendant's guilt of these charges. 17 Moreover, your Honor, it is quite inflammatory and 18 misleads the jury to hear when someone feels a certain way what 19 happened to her, even though legally it doesn't make a 20 difference, that is going to encourage them to feel sympathy 21 for her and convict the defendant potentially on a false ground 22 because there is no illegal conduct here. 23 Your Honor, I think the government has articulated or 24 at least tried to articulate at the Court's urging a basis why 25 this may be direct evidence of the sex trafficking conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007131 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 81 of 127 LB1TMAX3 1 That really was not spelled out in the briefing. 2 THE COURT: I think for sure it wasn't, because just 3 hearing it for the first time, it strikes me as having 4 potential plausibility. That was not present in the papers, so 5 I certainly will need briefing and to think about that question 6 more. 7 MR. EVERDELL: I can assure you if it had been really 8 teed up, I would have addressed it. But I would note that 9 there is a time difference between the Mann Act conspiracies 10 and the sex trafficking counts. 11 The sex trafficking counts are 2001 to 2004, and this 12 particular individual was well over the age of consent by the 13 time 2001 to 2004 is going on. She's alleging events that took 14 place in '94 and '95 when she's 17 and 18. 2001 to 2004 is 15 well past the age of consent in any of these relevant 16 jurisdictions. 17 I don't see how it is probative of the defendant's 18 intent -- when someone is presumably allegedly engaging in 19 perfectly legal sex acts, how that is probative of intent, 20 knowledge, or any of the above of a sex trafficking conspiracy. 21 And by the way, there's no allegation that she got paid, so how 22 are we talking about sex trafficking? 23 It seems like the government is trying to take an 24 episode of legal conduct and make it sound salacious for the 25 jury and use it as direct evidence of conspiracies for which it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007132 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 82 of 127 82 LB1TMAX3 1 is entirely irrelevant, every single one of them. 2 So our view, Judge, is that her testimony should not 3 come in as direct evidence of the conspiracy. At best, what 4 the government has articulated -- they keep talking about 5 pattern, intent, knowledge. That's classic 404(b). So if 6 we're going to talk about this witness's testimony at all, we 7 should be talking about it in terms of 404(b) and whether it 8 meets that test. And it doesn't, your Honor. It is not 9 probative of knowledge or intent. 10 For a crime that charges causing someone to travel to 11 engage in a legal sex act as a minor, if that person is neither 12 a minor, did not travel with the intent of doing something 13 illegal because it was not illegal in any of those 14 jurisdictions, whatever happened, according to her own 15 testimony, it is not probative of any of those crimes and for 16 404(b) purposes, too. 17 Pattern, Judge, if it's modus operandi, that need to 18 be extremely specific before that can come in as modus operandi 19 evidence. We can't talk about engaging in social pleasantries 20 and polite conversation with someone as a pattern. That is not 21 a pattern that passes muster. 22 Furthermore, there are huge 403 issues with this 23 witness's testimony. If she talks about how she felt about 24 these experiences, that is eliciting sympathy from the jury. 25 It is not legally probative and it will lead them to think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007133 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 83 of 127 83 LB1TMAX3 she felt, in her words, sexually abused in these circumstances, that she was in fact engaging in illegal conduct. And it raises a real problem that the jury will convict on a false premise, on a legally incorrect assumption that the conduct that was occurring was illegal when it wasn't. So your Honor, we object to her testimony for any purpose at this trial. MS. MOE: Thank you, your Honor. Just to taking those points one by one, with respect to the time difference, we think that it is nonetheless relevant with respect to the sex trafficking counts. THE COURT: Am I right -- point me to the page. It's not argued in the papers. MS. MOE: I apologize, your Honor, we should have been more specific, and I do apologize about that. I do think that the way we framed it was about preference for girls under the age of 18 and about the course of conduct, but I apologize, we should have been more specific about that. But with respect to the timeframe and the course of conduct, I think the jury would be free to conclude, based on this direct evidence, that in 2002 and 2003 when Minor Victim-4 was being trafficked, that the defendant knew that Epstein had a preference for girls under the age of 18 and knew that he would engage in sexual contact with them because she knew in 1994 when she was involved in transporting Minor Victim-1 that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007134 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 84 of 127 84 LB1TMAX3 she knew about that preference because of her conduct with respect to Minor Victim-2 and with respect to Minor Victim-3. That course of conduct continued throughout a decade and is consistent. And I think the consistency of that is part of why that is powerful proof of her knowledge and intent and why it's direct evidence of the crimes charged. With respect to the question of prejudice, the government doesn't see any risk that this jury could convict on this conduct for a number of reasons. First, with respect to the concern that there's a risk that the jury would convict based on this conduct alone, I think we're confident that the Court's jury instructions will explain to the jury what the elements of the charges in the indictment are and what they aren't. And it's certainly the case in many trials that there's evidence of lawful conduct that is nonetheless offered as direct evidence of the charged crimes. For example, if this were a case involving a Hobbs Act robbery and there were evidence that on the morning of the robbery the defendant bought a ski mask, that would be lawful conduct but nonetheless offered as direct evidence of the crimes charged, and it would be peculiar to either exclude that evidence or introduce it with a limiting instruction that that is lawful conduct to suggest that in some way the Court endorses that conduct. THE COURT: The hypo is interesting. If the ski mask SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007135 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 85 of 127 85 LB1TMAX3 1 is bought that day, it's direct evidence, if it's bought three 2 years earlier or three years later, at best it's 404(b) 3 evidence, not direct evidence. 4 MS. MOE: Well, here the pattern would be much 5 stronger, that the defendant participated -- again, to play out 6 the analogy -- in a robbery in 1994 involving ski masks, and 7 another robbery in 1995 involving ski masks, and again another 8 robbery in which the defendant bought ski masks, and then a 9 robbery years later in which the perpetrator was wearing a very 10 similar ski mask. That's the pattern here and why this is 11 direct evidence of the defendant's methods and her knowledge 12 and intent. 13 THE COURT: That's 404(b), evidence of methods, of MO. 14 MS. MOE: Here, your Honor, the government certainly 15 submits that this would otherwise be admissible under Rule 16 404(b), but here where the conduct is intertwined with the 17 conduct on trial, that it speaks to her knowledge about 18 preferences and the role that she played and the similarity, 19 and the fact this happened during the course of the charged 20 conspiracy the same time the defendant was involved in this 21 conduct with respect to other -- 22 THE COURT: During the time of the Mann Act charged 23 conspiracy. 24 MS. MOE: That's correct, your Honor. 25 THE COURT: Not the trafficking charged conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 86 of 127 LB1TMAX3 1 MS. MOE: That's correct, your Honor. 2 THE COURT: So I need to get something in writing on 3 the trafficking count, because you haven't raised it directly 4 before and the defense hasn't had an opportunity to respond to 5 it before. 6 With respect to how this has been argued, I don't 7 think there's a basis to exclude entirely, but let me tell you 8 my thinking and I will hear a reaction to it. 9 The evidence related to alleged Victim-3, as the 10 government describes her, is not direct evidence of the 11 conspiracy charged in Counts One and Three of the indictment. 12 Counts One and Three charge the defendant with conspiracy to 13 entice minors to travel to engage in illegal sex acts and 14 conspiracy to transport minors with intent to engage in 15 criminal sexual activity. 16 The parties agree that alleged Victim-3 was 17 at the 17 time she was acquainted with the defendant and Epstein in 18 London, England where the age of consent is 16. Moreover, she 19 can't recall, and the government wouldn't be able to establish 20 that she was invited to travel with the defendant when she was 21 17 or 18. And because the alleged victim was over the age of 22 consent in all relevant jurisdictions and, therefore, any 23 alleged sexual activity was lawful, the alleged conduct does 24 not arise out of the same transactions or series of 25 transactions as the charged offense. It's not inextricably SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007137 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 87 of 127 87 LB1TMAX3 intertwined with the evidence, again with respect to the Mann Act, and it's not necessary to complete the story of the crime on trial, so I don't think it can be direct evidence of the Mann Act counts. There's a prejudice analysis that I will get to in a moment, but as proffered, it strikes me the testimony may serve a proper purpose under 404(b) as relevant testimony of the defendant's knowledge, intent and alleged MO. For example, the proffered testimony could tend to establish that the defendant was aware of, for example, the sexualized nature of the alleged massages. So if the argument is massages are not sexual or there's no knowledge, this witness might have evidence and testimony that could refute that point. The testimony could support that the defendant asked the witness to recruit underage girls to engage in similar sexualized massages which tends to make the alleged MO more probable. The testimony that this witness was allegedly groomed by the defendant does not tend to establish the defendant's knowledge, intent or MO to groom minor victims alone without more, the kind of testimony I indicated, because this witness was not a minor pursuant to the age of consent laws in any of the relevant jurisdictions. I will say I think there may be room for 404(b) testimony, but there's a risk of a prejudice, the risk of confusing issues and misleading the jury. A limiting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007138 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 88 of 127 88 LB1TMAX3 instruction that makes clear that any alleged conduct was lawful and cannot form the basis of a conviction in this case certainly would be required to ensure that probative value is not substantially outweighed by potential prejudice. So that's my thinking. I'm going to need more from the government on the anticipated testimony. I want to see a proposed limiting instruction that would go to that, and I want briefing on whether there might be a basis for direct evidence as to the trafficking count. So I will ask the government here for a submission that outlines anticipated testimony that would be potentially 404(b) with respect to the Mann Act counts, as I've indicated, a proposed limiting instruction in that regard, and to the extent the government does have I think a not-yet-really-thought-through argument about direct evidence as to the trafficking act, I'm open to hearing it. So let me look at the calendar. I will get briefing from the government and then a response time from the defense. Government by the 5th, defense response by the 10th. Questions about that, Ms. Moe? MS. MOE: No, your Honor, thank you. THE COURT: Mr. Everdell? MR. EVERDELL: No questions on this schedule or the Court's direction. We would like to clarify one thing, which I believe the Court said that the parties agree that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007139 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 89 of 127 LB1TMAX3 1 particular individual was 17. We agree that she alleges that she was 17. It's quite possible, in fact likely, that she was older than that, but I wanted to clarify that. 4 THE COURT: Fair enough. At least 17, the parties agree. Thank you. 6 And I should say on that, Ms. Moe, I don't know if the government anticipated putting in evidence about the sort of subjective feelings of the individual. I can't say I see the relevance in light of the fact of the legality of the conduct here and my ruling, and certainly 403 prejudice would be a concern. So if that is something that the government is still contemplating, despite what I've indicated here, you'll have to include briefing with respect to that. 14 MS. MOE: Yes, your Honor. My point was simply I think it would be obvious based on the way that she presents that this is a difficult thing to discuss, and so that was my point on that issue. But I take the Court's point, if we were intending to elicit any testimony about that, we would certainly find that for the Court, particularly in light of the Court's ruling. 21 THE COURT: You see the potential, given the legality of the conduct with respect to this individual, that the sort of feelings as to the immorality or wrongness or damage done to this individual, all of which may be true, would have the potential to prejudice the jury by convicting on a basis for 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007140 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 90 of 127 90 LB1TMAX3 which conviction the government has conceded would be inappropriate, would be unlawful. MS. MOE: I understand the Court's concern and we certainly don't anticipate eliciting testimony about the victim's conclusions about the event or suggesting that it was unlawful or satisfied certain elements. My point was simply in describing it, which would be difficult for Minor Victim-3, that sort of her feelings about that or the circumstances that -- in narrating the facts of the event would I think come to light at trial, but we certainly don't intend to elicit testimony about conclusions, about things like consent or whether it was lawful, and particularly in light of the Court's ruling, and in any event, we wouldn't be seeking to proffer legal conclusions from a witness. THE COURT: Okay. Anything further on that, counsel? MS. MOE: Not from the government, your Honor. MR. EVERDELL: No, your Honor, thank you. THE COURT: Defendant's 5 I think we determined is a non-issue. This goes to evidence that the defense was concerned in the government presenting regarding flight, and the government has represented that it will not offer evidence as to flight. Is that correct, Ms. Moe? MS. MOE: Yes, your Honor. THE COURT: Anything else we need to address here? MR. EVERDELL: No, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007141 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 91 of 127 LB1TMAX3 1 THE COURT: Defendant's 6 is evidence of the defendant's alleged false statements and regarding redacting allegations related to the perjury counts in the indictment, which I severed. The government has agreed not to introduce evidence of these alleged false statements and agrees to the proposed redaction. 2 3 4 5 6 Anything else that we need to address here, Ms. Moe? 8 MS. MOE: No, your Honor. 9 MR. EVERDELL: No, your Honor, thank you. 10 THE COURT: Thank you. 11 Defendant's 7 is Exhibit 52, which I think we have addressed. Do we need to discuss that any further at this point? 13 MS. MOE: Nothing further from the government, your Honor, thank you. 15 MR. PAGLIUCA: Your Honor, I think we do need to discuss this a little bit further. 17 The problem that we have on the defense side of this is that the government says that we can establish a foundation for this, but I'm quite frankly very skeptical about the provenance of that foundation. 20 This is an exhibit that surfaces in 2009, and we don't know how it surfaced. Assuming it was stolen by now deceased, twice convicted felon Alfredo Rodriguez and sold to the government, assume that for a moment, we don't know where it 24 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007142 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 92 of 127 92 LB1 TMAX3 came from or how it was created. The government says that it has a witness that is going to say that that was Ms. Maxwell's book. I'm highly suspect of that to begin with. And secondarily, that witness wasn't around in 2004. And so we have now two witnesses for this purported foundation, both of whom were not employed during the relevant timeframe of the conspiracy. So I'm at a loss, frankly, to understand how anyone could either authenticate that document or admit it as some non-hearsay document. The government says well, even if it's not admissible, then they will say as a business record -- the government says we'll admit it for some other purpose, which I don't know what that is. And if they're admitting it for another purpose, I don't understand the relevance of this, given the inability to establish a foundation and to tie it with any alleged conduct that is part of the indictment in this case. So I don't think we can just leave this here and then have a discussion about this in the middle of trial. And it seems to me that in this type of hearing, a pretrial hearing, the government should say here's the witness that is going to authenticate it, here's how they're going to authenticate it, that is what we're authenticating it for, here are the pages that we think are relevant and here's why. We don't have anything of that information. We are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007143 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 93 of 127 93 LB1TMAX3 left with: Yeah, we think we can admit this. Given this lack of evidentiary foundation, I think we should address this issue now. MS. MOE: Thank you, your Honor. With respect to the particulars in the exhibit, the government has marked and produced to the defense excerpts from that book that it intends to offer at trial. So the defense knows the limited number of pages from that book that the government intends to offer at trial. THE COURT: What pages? MS. MOE: Your Honor, I don't have the exhibit numbers in front of me, but they're included in the subset that we provided to the Court. I think there are about -- I don't want to guess, but somewhere between four and six particular pages, one in particular relating to victims in this case. So we are happy to confer with the defense about those particular exhibits and then raise those issues to the Court if there is still confusion on that score. With respect to the question of authentication, I think the defense's argument confuses the question of chain of custody with the question of authentication. I know the Second Circuit has rejected essentially exactly the argument that the defense is advancing here. For example, in a case of United States v. Al Farekh, 810 F.App'x 21, (2d Cir. 2020), the defense argued the government shouldn't be able to offer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007144 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 94 of 127 LB1TMAX3 1 certain documents that were obtained by an FBI agent on a USB drive, and the authentication testimony was about the familiarity with the witnesses with things like handwriting on the documents, their structure and the like. The same will be true here. 2 3 4 5 6 And in that case, the Second Circuit said although the government did not present evidence regarding the circumstances surrounding the seizure of the USB drive, Federal Rule of Evidence 901(b)(4) permits authentication based on the appearance, contents, substance, internal patterns or other distinctive characteristics of the items taken together with all the circumstances. And the government submits that the testimony at trial will satisfy all of the aspects of Rule 901 7 8 9 10 11 12 13 14 We're happy to submit additional briefing on this during the trial, but in particular, given we don't intend to offer any evidence from this book in our opening statement -- 15 16 17 THE COURT: What is it going to be offered for? 18 MS. MOE: Your Honor, the evidence from that book will be offered in particular related to the minor victims in this case, so that's the relevance of those documents. 19 20 21 THE COURT: But why? 22 MS. MOE: It would be a page of that book that contains contact information for several victims, including their names, in a section marked "Massage" that includes the names of -- I think it's exclusively female girls with 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007145 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 95 of 127 95 LB1TMAX3 parentheticals like "Mom" or "Parents," showing that the contact number for the individuals in a section marked "Massage" is for people's parents. That list includes some of the minor victims in this case that the jury will learn about in this trial. THE COURT: It's not going to be talked about in openings, but before in front of the jury this full authentication process happens, I would like the government to put out specifically what it intends to enter into evidence with respect to this, and with specificity, who will provide authentication and the proffer as to that testimony. And you will deal with the timeframe questions that have been raised as well. MS. MOE: Certainly, your Honor. THE COURT: I need to see a little bit more than what's been suggested, and I need to have a better understanding of what is potentially being offered for. MS. MOE: Understood, your Honor, certainly. THE COURT: So when would you like to do that? MS. MOE: Your Honor, may I confer with my colleagues? THE COURT: Sure. (Pause) MS. MOE: Thank you, your Honor. Could we possibly submit it on November 10, along with other briefing that date? THE COURT: That's fine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007146 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 96 of 127 LB1TMAX3 1 MR. PAGLIUCA: That's fine, your Honor. 2 THE COURT: Respond in the same timeframe. 3 MR. PAGLIUCA: Understood. 4 THE COURT: Defendant's 8 is the search, the El Brillo Way search. The defendant seeks to prohibit the introduction of any items seized during an October 2000 search of Jeffrey Epstein's Palm Beach residence. 5 6 7 8 The defense raises concerns, including how and where the evidence was maintained, the lack of authenticating witnesses and the lack of relevance to the charges against Ms. Maxwell. Here, again, the government states that it intends to call witnesses to establish the authenticity of the evidence. 9 10 11 12 13 14 So how do we take this up now, Ms. Moe? 15 MS. MOE: Yes, your Honor. The government submits that at trial law enforcement witnesses will discuss the search and lay a foundation for the admission of this evidence. 16 17 18 THE COURT: So as to authentication, you have witnesses that did exactly what with respect to the search? 19 MS. MOE: They were personally involved in the search. 20 21 THE COURT: Okay. So they will describe the process by which they engaged in the search and the evidence that they obtained and how it was maintained and the like. 22 23 24 MS. MOE: Yes, your Honor. 25 THE COURT: And the relevance of the search result SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007147 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 97 of 127 97 LB1TMAX3 evidence is what? MS. MOE: Your Honor, a number of exhibits were seized from that residence and there are a number of marked photographs from the interior of that residence which are relevant both to give context to the jury about what the interior looked like but in particular about certain decorations in the residence that are both consistent with what witnesses will describe but also illustrate for the jury the number of, for example, nude images in the house and otherwise that give context to sort of the knowledge that certain people would have whilst inside the house. I think all that will be corroborative of witness testimony and, for the same reasons, certain items seized from the residence will be as well. For example, a massage table was seized from that residence and is marked as a government exhibit. THE COURT: Okay. Who is taking this one? MR. PAGLIUCA: This would be me, your Honor. Again, this is very, I suppose, aspirational by the government that they can lay these foundations. THE COURT: This sounds like pretty standard stuff. Law enforcement had a search warrant, engaged in a search, this is what they found, here's how they marked it, here it is. MR. PAGLIUCA: The affiant who conducted the search and who took the items into evidence is deceased. There are, I believe, two officers who participated in the search, but in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007148 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 98 of 127 98 LB1TMAX3 discrete fashion, and I believe they do not have knowledge about what the other officers did or didn't do as part of that search. So what we end up with is this piecemeal approach of: I was over here and did this, somebody over there did that, but I can't put it all together for you 20 years after the fact. And look, I understand if they have a witness who could say I was there, I saw this, I can authenticate, that's fine. I don't have a problem with that. But again, they haven't identified that witness or what pieces of this that witness is going to talk about. So that's problem number one. Problem number two is the timing of this. This is an October 2005 search where they seized items that they're trying to now relate back to a 1994 to 2004 timeframe. What that table has to do with 1994, I don't know. 2004, I don't know. Whether it was there in 2004, we don't know. All we know is that in a moment in time, in October 2005, someone says these items were seized and that ends up on a search warrant inventory from a deceased detective that doesn't have any foundation to it. That's my problem, your Honor. And there may be discrete pieces of evidence that a certain witness might be able to identify, but I think we're just short shifting the whole evidentiary process here with these proffers where they're saying we can do it, and I'm not convinced they can. THE COURT: We're not short shifting because it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007149 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 99 of 127 99 LB1TMAX3 hasn't happened yet. What you're making are cross points. Ms. Moe, obviously you're dealing with a time question, and it sounds like one of the primary investigators or law enforcement who engaged in the search is deceased. So what's the proffer to the Court as to what specifically the government will do to authenticate these items? MS. MOE: Yes, your Honor. On this score, I would note there is a difference, certainly, between authentication and chain of custody. With respect to authentication, law enforcement witnesses who personally participated in the search will describe what they observed in the search and how they -- THE COURT: The government's proffer to the Court is that even though one of the law enforcement relevant here is deceased, that you have other law enforcement who have personal knowledge of these items being found where they were and seized when they were, et cetera? MS. MOE: Yes, your Honor. I additionally note that the search was video recorded, that video has been produced to the defense, and so some of these items also appear on the video walk through of that search. And so our view is that their direct testimony about their experiences in the search satisfies our obligations with respect to authenticity. THE COURT: I'm not going to prohibit this in limine, but questions remain as to the government's ability to authenticate the items, and there will be an opportunity for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007150 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 100 of 127 LB1TMAX3 the defense to engage in the full set of questions that counsel has indicated, but for purposes of the in limine motion, it's denied. Defense 19. Here, the defense seeks to suppress alleged Victim-4's identification of Ms. Maxwell on the ground that the government used unduly suggestive photo array procedures that violate due process rights. I am prepared to deny this motion. Eyewitness identifications should be excluded when improper police conduct created a substantial likelihood of misidentification. Perry v. New Hampshire, 565 U.S. 228, (2012). I follow a two-step analysis in ruling on the admissibility of identification evidence. First, I must determine whether the pretrial identification procedures were unduly suggestive. Some examples of suggestive procedures include using a very small number of photographs, making suggestive comments, or the display of the accused in a way that so stood out from all other photographs to suggest to an identifying eyewitness that the person was more likely to be the culprit. See, United States v. Concepcion, 983 F.2d 369, (2d Cir. 1992). Looking at the photo array, neither the photos used or the procedure itself was unduly suggestive. The array contained a sufficient number of photos larger than many arrays that courts have held were not unduly suggestive. Defense's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007151 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 101 of 127 LB1TMAX3 argument that the Ms. Maxwell's photo looks like a mugshot and is different from the others doesn't persuade me here. Alleged Victim-4 identified at least one other photo in the array that she thought could be Ms. Maxwell but she ultimately chose Ms. Maxwell's photo, and there were several photos in the array that were of roughly the same quality and angle as Ms. Maxwell's photo. The defense fails to identify any suggestive comments made during the identification that would deem the procedures unduly suggestive. The government appears to have asked whether the individual recognized anyone in the book. So I conclude the identification procedure was not unduly suggestive. Even assuming the photo array was unduly suggestive, the identification here had independent reliability factors I must consider under the totality of circumstances that include the opportunity of the witness to view the individual at the time of the alleged crime, the witness's degree of attention, the accuracy of the the witness's prior description of the individual, the level of uncertainty demonstrated, the length of time between the alleged crime and the confrontation. See, Neil v. Biggers, 409 U.S. 188, (1972). Here, the alleged Victim-4 had the opportunity to view Ms. Maxwell. They interacted several times over the span of years. As the government points out, the alleged interactions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007152 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 102 of 127 102 LB1TMAX3 with Ms. Maxwell make the alleged victim's identification more accurate than other instances where identification has been deemed admissible, like when a witness saw the defendant in the distance under street-lit illumination and was familiar with the individual seeing them in the neighborhood. (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007153 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 103 of 127 LB15max4 1 THE COURT: (Continuing) 2 The government also correctly notes that the delay in time between the alleged misconduct and identification is not determinative because of the frequency of interactions between the alleged individual and Ms. Maxwell. Alleged Victim 4 was able to identify Ms. Maxwell when she got to the photo in the array with little hesitation. The argument that -- I will leave it at that. 3 4 5 6 7 8 9 The defense requested an evidentiary hearing on this issue but I don't see facts put forward by the defense that puts, in genuine dispute, any facts that would support suppression of the identification so there would be nothing gained from an evidentiary rehearing, see United States v. Brown, 784 F. App'x 1 (2d Cir. 2019) so the request is denied. 10 11 12 13 14 15 Defense 10. Expert testimony by law enforcement officers which the defense moves to exclude and the government has noticed intent to call three law enforcement officers as fact witnesses but not as experts. The government represents that it will not elicit expert testimony from any of them. 16 17 18 19 20 So, the law enforcement officers can testify as fact witnesses to the facts that they personally perceived but not provide testimony that summarizes parts of the investigation which the officer did not personally experience and may not provide testimony that relies on specialized training and experience. The government's example of a law enforcement 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007154 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 104 of 127 LB15max4 officer testifying as to what the officer himself found and participated in while executing a search seems to me permissible fact testimony. Anything to take up here from the defense, Ms. Menninger? MS. MENNINGER: No, your Honor. Thank you THE COURT: Ms. Moe? MS. MOE: No, your Honor. Thank you. THE COURT: Defense 11 is anticipated testimony regarding an alleged rape by Jeffrey Epstein. Let me ask the government to explain what it intends to do with respect to this and for what purpose the testimony would be sought to be introduced. MS. MOE: Certainly, your Honor. As a threshold matter, your Honor, I would note that there is an overlap here between the arguments in the defendant's motion in limine and the 412 motion. I think one motion seeks to introduce some of this evidence but characterize it as consensual and the other motion seeks to preclude it, reference it to be non-consensual. And so, I would be happy to address that now, but it may be easier to address that issue in the context of the 412 briefing. THE COURT: Counsel, do you agree? MR. EVERDELL: Your Honor, we can wait until the 412 briefing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007155 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 105 of 127 105 LB15max4 THE COURT: So to the extent there is overlap in these issues, it's best to take it up in the 412 proceeding so that we can discuss the issues without violating that rule. Defendant's 13. This is a motion to preclude the admission of several exhibits. I'm going to grant the motion with respect to Exhibit 251 and 288. Based on the briefing before me, 401 relevance is minimal, at best, and outweighed by 403 prejudice. 294, so some of the same questions around the authentication issue so I think that ruling holds. I won't otherwise preclude this evidence. It is potentially corroborative evidence of testimony and 403 prejudice does not rule out 401 but the defense can maintain the search and authentication issues that we have discussed. Exhibit 403 I won't preclude, it's potentially probative of the relationship between the defendant and Mr. Epstein. The government proffers that it will corroborate and that the photo would corroborate anticipated witness testimony and I don't -- so, there is 401 relevance and not substantially outweighed by any 403 prejudice. On this last one I may have said the wrong number. I had 403 on mine. So, Exhibit 313 is the photograph that I have indicated I am not excluding, it is potentially probative of the relationship between the defendant and Mr. Epstein and not outweighed by prejudice. And then 606, this is the issue on authentication and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007156 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 106 of 127 106 LB15max4 hearsay grounds that I have already indicated I'm going to have the parties address further, correct? MR. PAGLIUCA: Yes, your Honor. THE COURT: All right. Any questions about any of those rulings? MS. MOE: Not from the government, your Honor. Thank you. MR. PAGLIUCA: No, your Honor. Thank you. THE COURT: And about the time frames I have set on the different pieces that I require briefing on after everybody has. And, you will get the transcript. MS. MOE: Understood, your Honor. Thank you. THE COURT: All right. With that, I think we can pick up some outstanding logistics issues and I will hear from counsel as to any issues they want to raise. So, we begin our questionnaire process on Thursday. The government -- my chambers will produce the copies as an original matter. The government will take the completed copies from the jury department -- the completed questionnaires with no identifying information and make copies for the defense and for the Court. My request is to give both a paper copy and an electronic copy. I think that will aid everybody's use of the document since we have got multiple people looking at them, and then of course return the originals to the Court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007157 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 107 of 127 107 LB15max4 1 Any questions from the government on its obligations there? 2 3 MS. MOE: No, your Honor. Thank you. 4 5 THE COURT: The video remarks, at our last conference, as we discussed, my plan is to video record the preliminary instructions to be played for each panel before the questionnaire. I sent the parties my script and there were no objections. I'm actually going to record that tomorrow. I just want, does either party request to see the video before it's played for the prospective jurors on Thursday? Obviously I'm going to record it exactly as stated in the script. 6 7 MS. MOE: No, your Honor. 8 9 MS. STERNHEIM: Judge, unless you are wearing some funky t-shirt, no. 10 11 THE COURT: It's just a robe. Thank you. 12 13 Just in thinking ahead to the voir dire process, I have preliminary instructions that I'm drafting that I will give to each panel before they are individually brought in for the voir dire. Thinking ahead again, just for time-saving purposes, what I propose is we do another video of that so that it is played for each panel -- there is a morning panel and afternoon panel. And the logistics of all of this is complicated. So, what I propose I will send out, again, my script, let me know if you have any comments or objections, and once we all agree I will record it so that the jury staff can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007158 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 108 of 127 108 LB15max4 just play it once each panel is assembled. Any concerns with that, Ms. Moe? MS. MOE: No, your Honor. Thank you. THE COURT: Ms. Sternheim? MS. STERNHEIM: No. THE COURT: I think what I am also going to do, we haven't talked through the specifics of the logistics of the voir dire days -- I think I did generally -- but we are going to have a morning panel, the jurors are going to come in to a courtroom which is sort of the holding courtroom. The preliminary instructions will be played and then we bring them in one at a time. The afternoon panel is going to assemble somewhere else so there is no overlap, they'll be played the instructions. Once we are finished with the morning panel, they'll be brought in and the like. We will do the individual voir dire, obviously if anyone is struck for cause following that they'll be excused. Those who are not struck for cause, what I propose is that we give them an instruction sheet that tells them where and when they're returning for the final stage of the process and remind them the basic instructions about media restrictions and the like just so they have that and they take it with them. Of course I would show you what I am thinking before we do it but that basic idea. I want to see if anybody has any concerns or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007159 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 109 of 127 109 LB15max4 objections. MS. MOE: No, your Honor. Thank you. MS. STERNHEIM: No objection. THE COURT: I do think once we do that, the non-struck jurors, with that information, can then be excused for the day and returning on -- and obviously I haven't indicated yet -- the 19th or the 29th, those instructions. But they don't need to sit around for the rest of the day while we do the other individuals. Any objections to that process, Ms. Moe? MS. MOE: No. Thank you. THE COURT: Ms. Sternheim? MS. STERNHEIM: No, thank you. THE COURT: There are logistical issues we are dealing with for bringing the full panel back for the exercised peremptories as well as setting up the courtroom with distancing issues which turns, to some extent, on the vaccine status of the individuals because we have different spacing requirements under the current protocols for the vaccinated versus unvaccinated. Now, the parties have proposed that I ask that question in voir dire and I rejected that because I don't think there is any proper basis for striking based on vaccination status. But what I would propose, in order to facilitate the Court's logistical process which is complicated, is that for our non-struck jurors, as we give them the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007160 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 110 of 127 110 LB15max4 1 instruction, they're handed a sheet of paper which says write your juror number and check a box, vaccinated, not vaccinated, I don't want to say, and the Court gets that but not the parties. And that way we can set up the courtroom, we can figure out where we are going to put everybody for peremptories and the like. 2 3 4 5 6 7 Ms. Moe? 8 MS. MOE: The government has no objection to that, your Honor. 9 10 MS. STERNHEIM: No objection. 11 12 THE COURT: I do think we are going to do the peremptories on the 29th, as I have indicated. We are still working through the logistics. This piece helps. As I said, there are pros and cons to both, but I think that the safest course for proceeding with a full jury is to bring them back on the 29th -- I will give you my final resolution as to that when I have it -- but my thinking is we are in the courtroom, all of us. The panel, approximately 50 to 60 people who I will bring back are in two other courtrooms because we can't get them all in one place, with a video, in which I ask some very preliminary questions: Does anybody need to change any answers and has anybody had media exposure, etc. Hands raised. If anybody does raise their hands, we will have staff in each of those rooms who we can bring in one at a time to deal with. 13 14 15 16 17 18 19 20 21 22 23 24 25 And assuming not, or once we deal with that, that's our panel, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007161 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 111 of 127 111 LB15max4 the parties exercise the peremptories by list, and we are done. So, as I say, I am still working through the specific logistics of that but that's my thinking as to how we will do it. Any reactions, Ms. Moe? MS. MOE: No, your Honor. Thank you. THE COURT: Ms. Sternheim? MS. STERNHEIM: Yes. My only reaction is are we going to be able to see the jurors as they respond to the Court's questioning? THE COURT: So, I think what we can do is have staff in each of the courtrooms, I will ask my question, anyone who raises their hand will be brought in individually. If you would like to have someone in each of those rooms for the hand-raising, that's fine with me. MS. STERNHEIM: OK. THE COURT: We would be happy to do that. MS. STERNHEIM: Thank you. THE COURT: But because there are other trials being selected on the 29th we can't use the jury assembly room and, in any event, it would slow us down. So I think this is the way to go logistically but that's what it will entail for the exercised peremptories. MS. STERNHEIM: Thank you. THE COURT: One of the obstacles to the jury selection SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007162 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 112 of 127 112 LB15max4 here is length of trial and the timing of trial. I would like the parties, in light of -- you have gotten some rulings, obviously not everything yet -- to think about whether what we include in the questionnaire is still the six-week time frame that we have indicated. And if it is, it is, but if there is any basis to suggest a lower estimate as the parties have continued preparing their cases and in light of any rulings, I would certainly be open to hearing it if we could safely put a shorter time frame in the questionnaire. Again, maybe we can't. So I just ask you to think about it and confer and put in a letter by November 2nd, on ECF, indicating whether the parties agree that there should be any different estimate to the trial length than what we have indicated in the current draft of the questionnaire. I recognize that may change after that but for jury selection purposes it won't help us if a few days later we decide that we could say four weeks instead of six weeks. So you will let me know and I will ask the parties to confer. You don't need to put in specific reasons, just if you can put in a joint submission as to the parties' best overall estimate of length of trial is to see if it can be realistically any shorter than what is in the questionnaire to help facilitate jury selection. That's what I have. I will hear from counsel any other issues. Ms. Moe? MS. MOE: Yes, your Honor; very briefly on two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007163 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 113 of 127 113 LB15max4 administrative items. First, it is the practice in this district to place on the record at a final pretrial conference the status of plea discussions and so I just wanted to place on the record -- THE COURT: I guess I hadn't assumed this is our final pretrial conference and I do usually do that, but there is no point in not at least doing that now in case we don't get together again, which seems unlikely. But, go ahead. MS. MOE: Yes, your Honor; for that reason we wanted to place on the record that the government has not issued any plea offers to the defense and the defense has not requested any plea offers from the government, and we would respectfully request that the Court confer with the defendant that that is accurate. THE COURT: OK. Ms. Sternheim? MS. STERNHEIM: Do you want to hear from me? THE COURT: I will hear from you first and then I will ask Ms. Maxwell. MS. STERNHEIM: That is correct. We take the position that our client has not committed a crime so plea bargaining was not an issue. THE COURT: Ms. Maxwell, what Ms. Sternheim indicated is accurate and correct? THE DEFENDANT: I have not committed any crime and -- THE COURT: And what Ms. Sternheim indicated is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007164 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 114 of 127 114 LB15max4 accurate? THE DEFENDANT: Oh sorry. Yes, your Honor. THE COURT: Anything else on that, Ms. Moe? MS. MOE: No, your Honor. Thank you. Just with respect to the second administrative item, the government has received the Court's order related to the Daubert hearing. Because the defense's Daubert briefing was focused on the question of grooming it would be helpful to understand the scope of the hearing and, in particular, whether the Court would like the government to present evidence with respect to the full scope of the expert's findings and conclusions that were addressed in the motions or whether the hearing would be focused on the question of grooming. THE COURT: I guess I think it goes to each of the proffered opinions being offered -- MS. MOE: Thank you, your Honor. THE COURT: -- in part because of overlap in those issues. I don't know that it's obvious to me how to separate them out at this point. MS. MOE: Thank you, your Honor. It is very helpful to know in advance of the hearing. THE COURT: Ms. Sternheim, anything on that? MS. STERNHEIM: Yes, Judge. These, I guess you put them under the housekeeping category and I know tomorrow the government is to respond to a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 115 of 127 115 LB15max4 letter that I raised concerning legal mail, but we still have the issue that Ms. Maxwell has not received trial-related discovery that is imperative for her to review to consult with counsel. It also has bearing on some of the issues -- THE COURT: What hasn't been received? MS. STERNHEIM: Recent disclosures that the government has made, she still has not received some of them. They're sent by the government to the MDC. THE COURT: Yes. But, specifically, what are you talking about? MS. STERNHEIM: 3500 material that we -- counsel received electronically the other day. THE COURT: And by the other day what do you mean, Ms. Sternheim? MS. STERNHEIM: It was Monday, Judge. She has still not received the production made by the government which I believe they send via federal express. THE COURT: So, Ms. Moe, the government made a 3500 production a week ago? MS. MOE: Your Honor, the government has been supplementing its 3500 productions on a rolling basis. I don't recall the exact date but we have been supplementing them and have made productions last week. THE COURT: And do you know why -- the representation is a production made a week ago has not made its way to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007166 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 116 of 127 116 LB15max4 1 Ms. Maxwell. Do you know anything about that? 2 MS. MOE: Your Honor if I could have one moment? 3 THE COURT: Sure. 4 MS. MOE: Thank you. 5 (Counsel conferring) 6 MS. MOE: Your Honor, I don't have particular information about the series of disclosures we made last week and whether or not they've been processed by the MDC but we will certainly be conferring with the MDC in connection with a response to the defense's letter on Friday. Our understanding is that, generally, that drives have been received by MDC, processed through their warehouse, picked up by legal counsel and produced to the defense in regular time frame. I can't speak to any particular package that was mailed last week because I am hearing about it now for the first time. 16 THE COURT: Well, OK. You will include in your letter -- I mean, I think at this point a week is too long. I think the representation in the prior letter was one to two days for legal mail, maybe this is different because this is different? 21 MS. MOE: I don't believe so, your Honor. Part of the reason why I want to look into this and confer with my colleague is we are not quite sure whether the date was Monday or Wednesday that we produced this material to the defense and we want to just double-check the mailing date to make sure we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007167 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 117 of 127 117 LB15max4 have all our facts straight about the exact timeline. So I am happy to address that in the letter. THE COURT: Yes, do address that in the letter. Is there anything the government can do -- you know, there is going to be some time built in for the facilities screening process and it getting to the defendant. Obviously there are other individuals in the same situation pretrial, heading into trial, and there are a lot of inmates, but -- so you will address what's happening on the institution side in the letter. What can the government do to facilitate the process going forward? MS. MODE: Your Honor, we have been trying to produce materials as quickly as possible. We have been FedExing those materials promptly to the facility. When we do so, we notify the facility that, in particular, a disclosure for this defendant is in-bound to the facility so that legal counsel knows about it and can keep an eye out for it which I think is unusual but we are happy to continue to take that step in this case. My understanding is that materials have been received by the defendant at the facility. We will continue to check on that issue. I would note that our rolling productions are going to be frequent but also small as we continue to meet with witnesses and produce small amounts of rolling materials. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007168 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 118 of 127 118 LB15max4 think the defense is well equipped to print those materials and meet with the defendant in person about it as they have been doing. They can certainly discuss those documents in the video conferences that they're having with the defendant. Our understanding is that this defense team has a large amount of access to video conferencing sessions with this defendant and so when the defense receives those materials, they're certainly free to review those with the defendant in real-time in their sessions. And so, we are taking every step that we can to ensure that the defense and the defendant have those materials but we think those steps are all that is required here and certainly more than is necessary to make sure the defendant is apprised of those materials in anticipation of trial. THE COURT: As to the steps, if you have a new submission we are talking about newly produced 3500 material, limited volume; correct, Ms. Moe? MS. MOE: Yes, your Honor. THE COURT: And you are going to send that by FedEx -- so overnight -- to the facility in each instance, correct? MS. MOE: Yes, your Honor. THE COURT: And you alert BOP counsel, MDC Legal counsel that something is coming for Ms. Maxwell so they can be on alert. Do you get indication back from legal counsel that it's been received and delivered? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007169 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 119 of 127 119 LB15max4 MS. MOE: No, your Honor. We have not been asking to do that mindful of their obligations towards all of the other inmates at the facility but we appreciate the steps they have taken to be responsive to our alerts and about the defense's requests. For example, in some instances I think the defense has been e-mailing legal counsel noting certain tracking numbers and asking them to check at the particular warehouse. So that process seems to be working. I don't think we can create a system where the defendant is receiving, in jail, on a 24-hour basis, all disclosures. I don't think that is practical but I think especially because, in some instances, we may be uploading to the defense through a file sharing program certain disclosures on one day and they may be meeting with the defendant in person the very next day, they certainly have the ability to talk about those materials with the defendant, to provide her with paper copies if they wish, and I think that is more than sufficient. THE COURT: Well, you are not suggesting that instead of government sending the materials to the facility and working with the facility to facilitate timely movement of the materials to Ms. Maxwell, are you? MS. MOE: Of course, your Honor. Our view is in combination of the fact that, in the short-term, the defense has the opportunity to talk to the defendant immediately about it if they wish to, and in longer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007170 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 120 of 127 120 LB15max4 term the defendant will have those materials in a reasonable time frame. I think in combination with those efforts, that's sufficient. THE COURT: So in your letter tomorrow you will indicate your understanding of the time frame including the specific 3500 material sent last week because, again, the representation I have is that you sent it to the defense on Monday and we are here a week later and Ms. Maxwell hasn't received it. You will find out what the story is with that and inquire as to whether there are any additional steps that can be taken in light of where we are in advance of trial to further facilitate the speedy transmission of the materials to Ms. Maxwell. MS. MOE: Yes, your Honor. THE COURT: Ms. Sternheim? MS. STERNHEIM: Judge, the procedure is such that even if I were to hand-deliver it myself she would not get it. If the government hand delivers it, she will get it. And we have requested that if they are going to do late-breaking disclosures, given that we are within weeks now of trial, that it be hand-delivered with a call to the MDC legal department to facilitate that. I can't just give her papers. As the Court well knows, even when I put them in the legal mail box, there is an issue as to when she gets that. And I know the government will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007171 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 121 of 127 121 LB15max4 respond to those issues tomorrow. But this is an issue -- and I will give the government the benefit of the doubt -- they do not know what we do when we have a conference with Ms. Maxwell so to assume what we are doing is erroneous. But, I will complete that topic and move on to another one. THE COURT: I want to understand the specific suggestion. So, presumably now, on a daily basis, the government may be meeting with witnesses and taking notes. I mean, I get those notes, an additional 3500 material during trial, it is one or two pages of chicken scratch, handwriting. So your proposal is that every day that one of those is produced it's hand delivered to the MDC by government staff? MS. STERNHEIM: That would be ideal but I'm not asking that and I don't think it comes that way, I think it comes more in these clumps. I'm not asking for every single page to be hand-delivered but if they know they are making a substantial production, that should be hand-delivered. THE COURT: And what do you mean by substantial? Over a hundred pages? What are we talking about? MS. STERNHEIM: Look. You know, it is not the quantity, it is what is in it that may have significance here. THE COURT: Ms. Sternheim, you have to be realistic on this. MS. STERNHEIM: I'm trying to be. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 122 of 127 122 LB15max4 1 THE COURT: I mean, you have made a lot of this noise 2 about not having received it, not having received it in time. 3 I am asking for a specific request that's realistic. 4 MS. STERNHEIM: Every day I would like whatever 5 they're producing to be hand-delivered. 6 THE COURT: Well, I deny that request. 7 MS. STERNHEIM: I understand that. That's why I 8 didn't raise it but I think there needs to be some mechanism 9 either if a FedEx comes to the facility that it be 10 speed-delivered to Ms. Maxwell. Boxes of legal materials that 11 have been sent to her, when we follow the tracking, they are 12 left in a facility, they're not being picked up. 13 I am not privy to what the mail operation is there. 14 Perhaps the government can get some insight. 15 THE COURT: When you say they're not being picked up 16 you are saying that there are some that she has never received? 17 You are saying she is not receiving it in the one to two to 18 three-day time frame that you are asking for. 19 MS. STERNHEIM: I submitted a letter to the Court the 20 other day. In it there were four indications of items that 21 were available for pickup. When I alerted the MDC to that, 22 after the second request on Friday, they sent me back 23 something, We are going to go pick them up. I shouldn't have 24 to push them to go to the post office. I can't deliver the 25 stuff myself because it's not going to be given to her. So you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007173 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 123 of 127 123 LB15max4 do it through the United States post office, I don't know what the situation is how the MDC receives its packages, but if the tracking information says available for pick up and days go by and it's not picked up, what am I to do to put a candle under the MDC to get those packages? THE COURT: I guess I'm still trying to understand what it is that you are asking the Court to do. MS. STERNHEIM: I'm asking the Court to have the MDC retrieve its mail in a timely manner. I will notify them if a next-day delivery is on the way, and that it be picked up for next-day and not languish in the post office. THE COURT: Ms. Moe? MS. MOE: Your Honor, we will confer with MDC legal about this issue and their practices and happy to provide the Court with additional information about our disclosures last week and the ongoing practices. I can't speak to the particular mail sorting practices of the MDC, but I want to assure the Court we have been working diligently with the defense and with MDC legal on this issue and have been taking extraordinary efforts to make sure the disclosures are produced promptly and that they're sent to the defendant quickly and we will continue to do so. And if we learn of a practical way of expediting this, we would certainly be open to exploring that but that's all the information that I have at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007174 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 124 of 127 124 LB15max4 1 THE COURT: Thank you. 2 Can I ask the government, if you have a substantial 3 production, let's say over 50 pages of documents to review, can 4 the government have those hand-delivered to the facility? 5 MS. MOE: No, your Honor. 6 Respectfully, that is extremely resource intensive, it 7 requires asking either a member of the prosecution team or 8 their colleagues who are also working on cases to, instead of 9 pursuing law enforcement activities or preparing for trial, 10 spend the day driving to the MDC to hand deliver a drive to the 11 defendant personally which is a remedy that I'm not aware of 12 being implemented in any other case and would be sort of an 13 extraordinary step for this defendant that would be out of step 14 with the ordinary practice. 15 THE COURT: We are a month away from trial but if we 16 are a few days away from trial and suddenly the government has 17 a substantial production of material for some reason, 50 pages, 18 a hundred pages, would the government take those steps? 19 MS. MOE: Your Honor, without having a sense of what 20 those materials are, what their sensitivities are, whether it 21 is sort of a relevant matter that we are producing in an 22 abundance of caution or something that is sensitive that is 23 urgent that is hard to troubleshoot that issue in advance but 24 we are mindful of Court's concern and that, even as we approach 25 trial, that the issue of timing is of particular concern and so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007175 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 125 of 127 125 LB15max4 1 would be attentive to that issue in those circumstances but I think it is difficult assess that in a hypothetical. 2 3 THE COURT: OK. I will wait for the government's letter. 4 5 Ms. Sternheim. 6 MS. STERNHEIM: One other issue, Judge; it has to do going forward with the production of Ms. Maxwell to the court house. 7 8 She is woken up at approximately 3:45. She is taken here and this morning she arrived at 5:38. She sits in a cellblock, very cold, she cannot bring any warmer garments. 9 10 She is not allowed to look at her legal materials. She is given very little food and whatever she is given doesn't even have a utensil for her to use. And, she is shackled. Today she had to get on her hands and knees to climb into the van because her leg shackles would not permit her to step up. This is just not the right thing. The wear and tear on her going forward to trial five days a week -- 11 12 THE COURT: What is the application, Ms. Sternheim? 13 14 MS. STERNHEIM: The application is for her to be brought here later. The real application, obviously, is for her to be let out on bail but I'm not going to make that application right here, I will make it in writing, but these conditions are just terrible. And today, when she was nodding out, she was poked to be woken up just because she's the only 15 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007176 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 126 of 127 126 LB15max4 1 person sitting in a cell. That's not necessary. 2 Nutrition is important, sleep is important. We all 3 are going to be fatigued but we all get to go home, and 4 something needs to be done to ensure that she is not 5 debilitated during the trial. 6 THE COURT: Are you making any allegations of 7 differential treatment as to Ms. Maxwell? 8 MS. STERNHEIM: Yes. I don't know any other client I 9 have ever had who has been woken up every 15 minutes at night 10 and then -- 11 THE COURT: No, I'm talking about what you are talking 12 about which is the transport to the court house for 13 proceedings. 14 MS. STERNHEIM: I don't know any clients who have ever 15 arrived that early. I can't speak to that. They've never been 16 taken individually as she has so I don't have a big history 17 about that. In other cases that I have had in this court house 18 either the clients come from the MCC, which is no longer here 19 and they're transported one way, or when I come here in the 20 morning for a court proceeding or trial, and I will get here at 21 9:00, I'm told they haven't arrived yet. So, the differential 22 between getting here at 5:38 and not being here at 9:00 for 23 another defendant seems extraordinary. 24 THE COURT: Ms. Moe? 25 MS. MOE: Your Honor, the government is learning of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007177 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 465 Filed 11/15/21 Page 127 of 127 127 LB15max4 1 this concern for the first time at this conference. I would be happy to reach out to both the MDC and the Deputy U.S. Marshal assigned to this particular trial to ask, as a general matter, what time they anticipate producing the defendant on trial days and can provide the defense with that information. 2 3 4 5 6 THE COURT: Yes; and whether there is any differential treatment between Ms. Maxwell and other defendants being produced from the MDC to the court house under COVID protocols and currently. You will inquire as to that. 7 8 9 10 MS. MOE: Yes, your Honor. 11 12 THE COURT: As well as differential or not, what the timing issue is, availability of food and comfort items, as necessary, and the like. 13 14 MS. MOE: Certainly, your Honor. 15 16 THE COURT: Ms. Sternheim, anything further? 17 MS. STERNHEIM: Thank you, Judge. No. 18 19 THE COURT: Anything, Ms. Moe? 20 MS. MOE: No, your Honor. Thank you. 21 22 THE COURT: We are adjourned. 23 24 ooo 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007178