Document 529

Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 1 of 18 1 LBF 3MAXC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x UNITED STATES OF AMERICA, v. 20-cr-330 (AJN) GHISLAINE MAXWELL, Defendant. Conference --------------------------------------------------------x New York, N.Y. November 15, 2021 9:40 a.m. Before: HON. ALISON J. NATHAN District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA CHRISTIAN R. EVERDELL LAURA A. MENNINGER -and- Bobbi C. Sternheim Attorney for Defendant Also Present: Sunni Drescher Paralegal, U.S. Attorney's Office SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 2 of 18 2 LBF3MAXC 1 THE DEPUTY CLERK: The Honorable Alison J. Nathan is 2 now presiding. 3 United States v. Ghislaine Maxwell, 20 CR 330. 4 Counsel, please state your name for the record. 5 MS. COMEY: Good morning. Maurene Comey, Andrew 6 Rohrbach, Lara Pomerantz, and Alison Moe for the government. 7 Joining us is paralegal specialist Sunni Drescher. 8 THE COURT: Thank you. And for the defendant? 9 MS. STERNHEIM: Good morning, Judge Nathan. Bobbi C. 10 Sternheim appearing for Ghislaine Maxwell, present at counsel 11 table, along with Christian Everdell, Laura Menninger, and Jeff 12 Pagliuca. 13 THE COURT: Good morning. Please be seated. 14 We're here for a pretrial conference in this matter. 15 My primary purpose of today's conference is to go over the 16 logistics of the voir dire that will begin tomorrow and 17 finalize the list of prospective jurors who will return for 18 voir dire, or at least we will ask to return for voir dire. 19 I want to start with the list of jurors first. And 20 just by background, the jury department conducted five sessions 21 of questionnaires over the course of November 4, 5, and 12. 22 As instructed, the parties conferred and I received 23 your list for each of these days. One, prospective jurors both 24 sides agreed should proceed to voir dire; two, prospective 25 jurors that both sides agreed should be excused or struck for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 3 of 18 3 LBF3MAXC cause; three, prospective jurors that the defense but not the government believes should be excused; and four, prospective jurors that the government but not the defense believe should be excused. And so that produced, putting those together for the days, we had those four lists. My chambers sent the parties just so you had an opportunity to review them before today, a list of 13 additional prospective jurors that were on the parties' agreed to proceed to voir dire list, that when I looked at, thought should be considered for excusing and I had 13 juror numbers on that list. I understand the government didn't object to striking those prospective jurors, but the defense objected to striking four of them. So from my perspective, we'll keep those four on the list for whom the parties agree should proceed to voir dire. So, subtracting those out from the ones that the Court sent, we would move the following onto the agreed to not return list: 23, 114, 215, 257, 338, 420, 422, 542 and 561. And then I also received in that letter or e-mail that the defense wishes to modify its previous strikes, it indicated it wanted to move three from the agreed to proceed to voir dire list to the defense objects to proceeding to voir dire list. One of them, by my count, was already on the agreed to strike. That was number 92. So the two new ones that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008247 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 4 of 18 4 LBF3MAXC 1 defense now wants to include in its the defense objects but the government doesn't is 226 and 404. 2 3 Is that right, Ms. Menninger. 4 MS. MENNINGER: Yes, your Honor. 5 THE COURT: We'll move those two out of the agreed to list and into the list of those for whom the defense objects 6 but the government doesn't. 7 Okay? Everybody understand where we are? 8 9 So, by my count then, making those changes, we have 231 prospective jurors for whom we agree should be called back 10 for voir dire. I believe that's a sufficient number to get to the number of jurors that we need, so that's the list of jurors 11 that we will proceed to call back. 12 13 The way we're going to do it is we are going to aim for 50 jurors a day, a morning session and afternoon session, 14 so we're breaking it so people aren't sitting around all day. We'll direct a certain number to come in the morning, a certain 15 number to come in the afternoon. We'll get into the specific logistics in a moment. But, that list of 231, my assumption is 16 that that will get us to the 50 to 60 qualified that I'm planning on. 17 18 We have produced a list of those numbers with the changes that I just noted, so the parties' agreed list with the 19 changes that I've just noted, so that gets us to the 231. I'll ask my law clerk to hand that list out to both sides. And 20 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 5 of 18 5 LBF3MAXC we're also handing out the names that correspond to the juror numbers, approximately 24 hours in advance of when voir dire even begins. My experience is attorneys get that list simultaneous with the beginning of voir dire. Here you get it 24 hours in advance, and of course two weeks before the exercise of peremptories. So, we'll mark the juror number list that we've agreed that we are calling back as a court exhibit, we'll call that Court Exhibit 1 and mark it. Let me ask counsel if you have any questions about what I've just described. MS. COMEY: Not from the government, your Honor. Thank you. MS. MENNINGER: Not for us, your Honor. Thank you. THE COURT: Very well. Moving to the specific logistics of voir dire. We'll meet at 8:30 each day beginning tomorrow in this courtroom, 518. As I explained when we first began discussing this at the October 21 conference, each panel of jurors will be held in a separate courtroom. They will watch the video remarks that I shared with you and we agreed upon and I recorded the video. They'll be shown those video remarks, and then they will be brought in here one at a time. And my hope is that we can get the jurors, the morning panel jurors checked in and ready to go so we can start at 9 a.m. with the first jurors. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008249 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 6 of 18 6 LBF3MAXC 1 I anticipate that we'll break for lunch at 1 p.m., and 2 then start with the afternoon panel at 2 p.m. 3 We're going to be directing each panel to come back in 4 accordance with that schedule. I do anticipate stopping at 5 5 o'clock each day. 6 When they are here for their individual questioning, 7 they are going to be seated there in the witness box in the 8 seat, is my anticipation, with a microphone. And we will do 9 the questioning in the public courtroom, with the exception of 10 if the juror has indicated on their questionnaire that they 11 request a specific answer to remain confidential, because it 12 would be embarrassing or otherwise concerning for them, which 13 we did in order to encourage full disclosure and openness and 14 ultimately to get a fair and impartial jury, to the extent we 15 need to discuss those questions with any jurors, we will do 16 that at sidebar. And my anticipation is we'll seal that 17 portion of the transcript, to the extent it discusses that 18 private information that the juror has asked to remain 19 confidential. 20 I think just looking at the questionnaires, that 21 shouldn't happen too frequently. And otherwise the voir dire 22 will take place in public. 23 Next, we'll move thoroughly but efficiently through 24 the process to make sure that we can get through it in the time 25 that we have. I've given you an outline of what I will intend SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008250 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 7 of 18 7 LBF3MAXC to go back over in the voir dire and inquire about. I'm not going to stick to that script exactly, I'm going to have a conversation with the jurors, but you know what I'm going to ask about. With respect to individual places and entities, the parties submitted that list to the Court last night, and what we'll do is the list, as we've discussed, contains the name of witnesses who I've permitted to testify under pseudonyms. So we've rearranged that list so it's by letter or number, we'll show the list to the prospective juror, ask them to read the names, do they recognize any of those names, and if so, to indicate what letter. If they indicate the letter of a witness who has been granted permission to testify under pseudonym, we'll discuss at sidebar and presumably sealed, so as not to identify that witness. The rest, to the extent a juror has knowledge of anyone on the list, it can be discussed in open court. Same for the list of entities. There's one inclusion on the list, I think just one, which is a specific employer name that I've indicated would not be discussed in open court because that would undermine the protection for the witness who has been granted permission to proceed by pseudonym. We'll bracket that for a moment. I want to discuss with the parties how I intend to handle that. But to the extent that might include discussing the specific employer, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008251 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 8 of 18 8 well take that up at sidebar in a moment. And as I said, only if the jurors indicated a specific wish to speak not in public because the answer would embarrass them or otherwise seriously compromise their privacy, other than that, we'll proceed in open court. But with respect to those, I'm doing that to ensure juror candor and honesty and ultimately ensure the selection of a fair and impartial jury. Process-wise, during the questioning, as the juror is answering my questions in the voir dire, if I think a juror answers in a way that would require striking for cause, I'll ask counsel whether they have any objection. Meaning do you have any objection to me striking for cause. Assuming no objection, then I will strike that juror for cause, and they'll be excused and we'll give them instructions. If I don't think that any answer requires a striking for cause before we get to the individual questions at the end of the voir dire, I'll ask counsel if they have specific followup. If you have specific followup, I'll hear you at sidebar, that is, outside the hearing of the juror, consider your request for followup, and then either engage in that followup or not, and proceed apace. If we have a juror for whom there is no basis to strike for cause, at that point, we'll proceed to have them respond to the individual questions in the voir dire. And then they won't be struck, so they'll be given instructions on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008252 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 9 of 18 9 LBF3MAXC returning as I've indicated we would do. And again, we need 40 qualified jurors in light of the number of peremptories, but I'm hoping with this number and the time that we have that we can get to 50 to 60 qualified jurors. Any questions? MS. COMEY: Not from the government, your Honor. Thank you. MS. MENNINGER: Your Honor, one briefly. Can I just inquire how you intend to conduct the sidebar in this courtroom, given the number of attorneys and so forth? THE COURT: Yes. So, I think it's going to have to be one attorney per side. And all of you are capable of operating on your own. So, if we are doing a sidebar with the juror, because they have private, confidential information they want to convey, then it will be me and the two attorneys and the court reporter with the juror. To the extent we are talking about any followup questions that you want me to ask, we'll go over here, and I'll still ask we limit it to one attorney per side. Okay? MS. MENNINGER: Thank you. THE COURT: Any other questions? MS. MENNINGER: No, thank you. THE COURT: Anything else about voir dire? MS. COMEY: Not from the government, your Honor. MS. STERNHEIM: Judge, this isn't actually about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 10 of 18 10 LBF3MAXC protocols that you've just described. But has the Court made a determination with regard to whether we are sitting the week from Christmas to New Year's? Because I noticed on some of the individuals on your list, it appeared that they were people who might not be available that week. I'm just asking for some clarification. THE COURT: Yes. I think we do need to sit Monday, Tuesday and Wednesday of that week. I think there were enough responses of folks who had travel beginning the 23rd, so the Thursday if I had that right. We will sit the 20th, 21st and 22nd. And I think I had been thinking to sit the 23rd as well, but I think there were enough individuals who we're bringing back who indicated that travel began then. So I think someone who has got travel beginning on the 23rd is not an issue. The 20th, 21st or 22nd wouldn't be an issue. MS. STERNHEIM: For the following week, are you following a similar is schedule? THE COURT: I think we can sit through Thursday. The way the holidays fall this year, I do think we have to use that time. So the 27th, 28th, 29th, and 30th we'll sit. We won't sit the 31st, which is New Year's Eve. Any other questions about voir dire? MS. COMEY: No, your Honor. THE COURT: I'm not going to give rulings now, but to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008254 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 11 of 18 11 LBF3MAXC 1 flag what I understand to be remaining, we have two issues that 2 are now fully briefed. That's the supplemental briefing on the 3 defendant's fourth motion in limine, and we have the 4 government's motion to exclude the testimony, or some of the 5 testimony at least, of Drs. Loftus and Dietz pursuant to 702 6 and Daubert. 7 I'm working my way through that. I will either rule 8 by written order or address those at the November 23 final 9 pretrial conference. 10 We also have not yet fully briefed the defendant's 11 seventh motion in limine which relates to Government Exhibit 12 52, the defendant's first motion in limine related to 13 introduction of co-conspirator statements. 14 Let me say the Court appreciates some effort to find 15 places on which agreement was necessary and to come to it. 16 Thank you. 17 Those matters will be fully briefed tonight when I 18 receive the defense's response. And again, I will either put 19 out written orders on those or address them at the November 23 20 final pretrial conference. 21 If the government does move to exclude any of the 22 other defense witnesses that have been noticed as potential 23 experts, that briefing is due tonight, response by Friday. 24 I'll either put out a written order, address it at the final 25 pretrial conference on the 23rd if I can, or some time after SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008255 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 12 of 18 LBF3MAXC 12 that in advance of trial if I can't get to it by then. From your perspective, other outstanding issues that the Court hasn't addressed yet? MS. COMEY: Nothing outstanding, your Honor. The government did have a few small issues to alert your Honor to. But I'll defer to the defense on these issues you already raised. MR. PAGLIUCA: Late breaking, we requested subpoena issue last evening. THE COURT: Yes. MR. PAGLIUCA: I understand that's very new, but I'm just flagging that as an outstanding issue. THE COURT: Yes. And let me ask, has notice been provided to the victim witnesses? MS. COMEY: No, your Honor. We received it late last night and had not had the opportunity to provide that notice, but we will do that today. THE COURT: So the government will provide notice? MS. COMEY: Yes, your Honor. THE COURT: So, I don't know that it matters. I can issue the subpoena, if there is a motion to quash, we can deal with it, or we can brief it in advance. I think we need to move as expeditiously as possible, so my inclination would be to issue the subpoena, and if there is a basis to quash, the government can be heard. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008256 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 13 of 18 13 LBF3MAXC 1 MS. COMEY: I do think we anticipate opposing the subpoena, your Honor. In terms of which way mechanically your Honor would like to proceed we don't have a particular preference, but I think we would like to brief that issue. 2 3 THE COURT: Well, I think the only constraint under the rule, the victims have to be notified. So I'd like that notification to happen today. 4 5 MS. COMEY: Yes, your Honor. 6 7 THE COURT: And then I suppose, why don't you propose when the government would brief any opposition. 8 9 MS. COMEY: May I have a moment, your Honor? 10 11 THE COURT: You may. 12 13 MS. COMEY: We would propose by Thursday of this week, your Honor. 14 15 THE COURT: So if we do Wednesday of this week and response from the defense by Friday. 16 17 MS. COMEY: Thank you, your Honor. 18 19 MR. PAGLIUCA: Your Honor, on that point, I'm hoping that the Court could, once notice is given, issue the subpoena so we can get it served. The documents are returnable to your Honor, not the parties. And then we're not holding up production by the briefing. 20 21 THE COURT: I agree with that. 22 23 MS. COMEY: Understood, your Honor. 24 25 THE COURT: So I will issue the subpoena with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008257 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 14 of 18 LBF3MAXC 14 1 understanding that the government will provide notice to the victims today, and will file any -- I suppose at that point you 2 could phrase it as a motion to quash the subpoena by Wednesday. Defense response by Friday. Okay. All right. 5 Yes, Ms. Comey. 6 MS. COMEY: Yes, your Honor. Two issues we wanted to bring up for your Honor. We've been working with defense 7 counsel to reach points of agreement, and have reached stipulations as to certain pieces of evidence. But there are 8 certain pieces of evidence where we believe we may need to brief authentication for your Honor. Particularly, there are 9 certain birth certificates and a prior sworn statement that we think we need to brief. We have been conferring with defense 10 counsel, I don't think we are going to reach agreement, so we'd like to set a schedule for the briefing on that. 11 And the other issue we wanted to put on your Honor's radar but that does not need a briefing schedule at this point I believe, is we plan to confer with defense counsel about areas that we believe would be improper for cross-examination of government witnesses. Usually we can reach agreement on those, but if we can't reach agreement, then we will need to brief that with your Honor. 23 THE COURT: Okay. So what do you propose for the authentication issues? 24 MS. COMEY: We would propose that the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008258 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 15 of 18 15 LBF3MAXC submit its papers by Friday, and that the defense submit theirs early next week. THE COURT: I'm not giving you to Friday to brief that. So, we'll do Thursday, Monday. MS. COMEY: Thank you, your Honor. THE COURT: And what's the other issue? MS. COMEY: This is an issue that does not require briefing, but just a logistical question. THE COURT: No -- MS. COMEY: The other issue. THE COURT: Yes. MS. COMEY: Motions to preclude cross-examination on certain topics of government witnesses. We have not had an opportunity to confer with defense counsel about that issue. If we are able to agree, we won't need to brief it. If we can't agree, we will need to brief that. THE COURT: Okay. I might just need to hear you once we get through openings. Well, see if you can get to agreement. See if you can get to agreement. If not, I'll hear you on the 23rd. MS. COMEY: Thank you, your Honor. THE COURT: And logistics? MS. COMEY: With respect to seating in the courtroom where the witnesses will be heard during trial. The government wanted to know whether there would be a seat available for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 16 of 18 LBF3MAXC 1 witness counsel in that room when that witness is testifying. 2 THE COURT: That's a question for the district executive's office. 3 MS. COMEY: Understood, your Honor. I imagine the same would be true for supervisors of the government. That question would go to the district executive's office? 4 THE COURT: It does. 5 MS. COMEY: Thank you, your Honor. 6 I have nothing else. Thank you. 7 THE COURT: Okay. Yes. 8 MR. EVERDELL: Yes, your Honor. One brief issue that I am not asking the Court to do anything about, but I want to make the Court aware of it. The defense has made a number of Touhy requests, thus far in the case. 9 I want to raise with the Court one in particular where we've asked for a witness to authenticate certain border crossing records, a witness from the Customs and Border Protection. The government has been working to get a witness and make one available to us. The request was made several weeks ago. 10 I want to flag this for the Court because, as I understand it from the government, there is some complications with this issue. But we do expect to have a witness available to us to be able to authenticate these documents, unless we reach some agreement as to authenticity in a stip. 11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008260 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 17 of 18 LBF3MAXC 17 1 But we wanted to flag that for the Court because we 2 are getting close to trial. 3 THE COURT: Okay. 4 MS. COMEY: Yes, your Honor. We are working 5 expeditiously to identify a witness for the defense. 6 THE COURT: Okay. I certainly will encourage that 7 process to continue. 8 Anything else? 9 MS. COMEY: Not from the government, your Honor. 10 Thank you. 11 MS. STERNHEIM: Nothing, thank you. 12 THE COURT: Thank you, everyone. We are adjourned. 13 See you the 23rd. 14 My apologies. There was an issue that I had bracketed 15 that I neglected to come back to. And that's the question of 16 the voir dire process with the entity, the specific employer 17 entity. So, because we might need to discuss that specific 18 employer, we are going to do this at sidebar. 19 (Pages 18-22 SEALED) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008261 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 529 Filed 12/08/21 Page 18 of 18 23 LBF3MAXC 1 (In open court) 2 THE COURT: With that, I have nothing further and we 3 are adjourned. 4 One correction to what I said. My deputy reminded me 5 that the courthouse is actually closed on the 30th of December. 6 It's also closed on the 23rd. I've already said we won't sit. 7 It is also closed on the 30th so we won't sit that day either. 8 So anything else? 9 We are adjourned. 10 (Adjourned) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008262