Document 549-1

Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 1 of 24 Exhibit A DOJ-OGR-00008395 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 2 of 24 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-00008396 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 3 of 24 15 LB1TMAX1 to rehabilitate a witness attacked on another ground. It's 801(d)(1)(B)(ii). For example, the statement could be admitted to explain what would otherwise appear to be an inconsistency in the witness's statement and rebut a charge of faulty memory. United States v. Purcell, 967 F.3d 159, (2d Cir. 2020). If it becomes relevant, the government may offer prior statements before the witness testifies if the defense attacks the credibility in opening statements and it's clear that the witness will be subject to cross-examination. United States v. Flores, 945 F.3d 687, (2d Cir. 2019). That's restating the applicable law here that the parties appear to agree to in the briefs. The government doesn't anticipate any such effort to offer such statements at this time and won't mention any in opening beyond that. Is there anything specific to flag or discuss here, from the government's perspective? MS. MOE: No, your Honor, thank you. THE COURT: Ms. Sternheim? MS. MENNINGER: Your Honor, Laura Menninger. None for the defense at this time. Thank you. THE COURT: All right. Thank you. The government's 3 and 4, which I'm going to group, the government seeks to preclude evidence and arguments by the defense, (1) about the investigation in Florida, including the non-prosecution agreement, (2) that Ms. Maxwell was not charged SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008397 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 4 of 24 16 1 by the U.S. Attorney's Office in the Southern District of 2 Florida, (3) about the scope and timeline of investigation in 3 New York, and (4) other evidence that demonstrates the 4 government's motives for investigating Ms. Maxwell. 5 The Court's analysis here is guided by four principles 6 set by the Second Circuit, and the Supreme Court. 7 First, because the government has no duty to employ, 8 in the course of a single investigation, any particular 9 investigative technique, the failure to utilize some particular 10 technique does not tend to show that a defendant is not guilty 11 of the crime of which he's been charged and is therefore 12 irrelevant. United States v. Saldarriaga, 204 F.3d 50, (2d 13 Cir. 2000). That's the first legal principle that frames the 14 discussion here. 15 Second, arguments that the government had an improper 16 motive generally must be directed to the Court rather than the 17 jury. United States v. Regan, 103 F.3d 1072, (2d Cir. 1997); 18 see also, United States v. Farhane, 634 F.3d 127 (2d Cir. 19 2011). 20 Third legal principle: There is no per se bar on 21 admitting evidence of the government's charging decisions. 22 Rather, the Court must -- I will quote here -- "inquire into 23 its relevance and probative value to the respective case." 24 United States v. White, 692 F.3d 235 (2d Cir. 2012); see also, 25 United States v. Ngono, 801 F.App'x. 19 (2d Cir. 2020). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008398 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 5 of 24 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-00008399 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 6 of 24 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-00008400 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 7 of 24 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 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 8 of 24 20 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-00008402 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 9 of 24 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-00008403 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 10 of 24 22 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. 10 This prejudice would 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-00008404 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 11 of 24 23 LB1TMAX1 1 is the relevant basis for the jury's determination of guilt or 2 innocence. Why and when the government conducted the 3 investigation is not relevant. If the defense believes the 4 government has a legally improper motive for prosecuting 5 Ms. Maxwell or somehow fabricating evidence or suborning 6 perjury or the like, the Second Circuit has made clear that the 7 proper remedy is to file a motion for the Court to consider. 8 See, Regan, 103 F.3d 1082. Absent that, the law is clear that 9 for purposes of the jury, "the government is not on trial." 10 United States v. Knox, 687 F.App'x 51, (2d Cir. 2017). 11 Moreover, evidence of motive would be highly 12 prejudicial. For the reasons I explained a moment ago, it 13 would confuse jurors as to the proper standard of guilt to be 14 applied in the case. Indeed, the defense's outlined evidence 15 of improper motives is strongly suggestive of jury 16 nullification because it suggests a vindictive or political 17 prosecution which is rightly a matter reserved to the Court. 18 Calling witnesses to testify to the government's 19 motive would substantially expand the scope of trial, rely 20 likely on hearsay and other inadmissible evidence. So what 21 motivated a particular investigative step or charging decision 22 of course doesn't have a black or white answer, and the defense 23 would have one story and the government another, neither of 24 which would assist of the jury in deciding Ms. Maxwell's guilt 25 or innocence of the charges here based on of the government's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008405 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 12 of 24 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-00008406 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 13 of 24 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-00008407 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 14 of 24 26 LB1TMAX1 1 admissible under the usual rules of relevance. In White, the 2 court determined that a prior charging decision was admissible 3 because it bore directly on the credibility of a witness that 4 testified at the defendant's trial. 5 As currently proffered by the defense, the rationale 6 doesn't apply here. For example, according to the defense, an 7 alleged victim's statement to the FBI previously did not 8 implicate or exculpate Ms. Maxwell, but her statement today 9 does implicate her. On the basis of that statement, and 10 assumedly other evidence available to them and a host of 11 reasons, officials in the Southern District of Florida decided 12 to not indict Ms. Maxwell at that time. That charging decision 13 could be understood as a determination that in 2008 the 14 government lacked sufficient evidence of Ms. Maxwell's guilt, 15 but the decision not to charge -- or it could mean any number 16 of a host of reasons, but the decision not to charge has little 17 probative value that the Court can see as to this case. 18 Charging decisions, as I said, are made for a host of 19 reasons. Trying to sort through those reasons would be 20 prejudicial pursuant to 403 both because they would require 21 significant time to explore and because juror confusion would 22 be likely. Any consideration of the government's decisions 23 would also likely rely on hearsay or other inadmissible 24 evidence. More importantly, unlike in White, those officials' 25 assessments of the evidence in Florida in 2008 is not relevant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008408 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 15 of 24 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-00008409 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 16 of 24 28 LB1TMAX1 1 law enforcement is exactly the kind of attack on the 2 thoroughness of the government's investigation that the Fifth 3 Circuit approved in Lindsey v. King. Provided that the rules 4 for admitting prior inconsistent statements are satisfied, the 5 Court concludes that this line of evidence is relevant and 6 admissible. 7 The defense may also cross-examine about witnesses' 8 motives or biases for testifying, including, for example, the 9 witnesses' motives for implicating Ms. Maxwell after Jeffrey 10 Epstein's death. Admitting prior statements on 11 cross-examination may require providing the jury some 12 background information about the prior investigations so that 13 the prior statements are understood in the proper context and 14 the jury is provided necessary background to understand that 15 evidence. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008410 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 17 of 24 29 LB15MAX2 THE COURT: (Continuing) 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. 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. 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. Similarly, the Court may instruct the jury that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00008411 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 18 of 24 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-00008412 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 19 of 24 31 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-00008413 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 20 of 24 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 549-1 Filed 12/17/21 Page 21 of 24 33 LB15MAX2 1 conspiracy and so forth. So it is our position that if they open the door to evidence about anyone other than these four 2 then we would, likewise, be able to talk about the fact that those other individuals were interviewed by the government and 3 said that Ms. Maxwell is not involved, was not there, and was not a part of the activities that they're talking about. None 4 of the cases that the government cited had to do with a co-conspirator. The evidence was just because a defendant did 5 not act in conformity with the charged conduct on a separate occasion, couldn't be set forth by the defense. 6 THE COURT: Do you agree with that principle? 7 MS. MENNINGER: Yes, your Honor. If it is good character evidence, generally I understand the rules of evidence 8 wouldn't apply, but what we have here is a 10-year charged conspiracy with an intent by the government to allude to other 9 individuals. To the extent they try to put on evidence in the form of message pads or other types of evidence that refer 10 to other people, then I think we have the ability to confront that evidence with the fact that Ms. Maxwell was reported 11 by those individuals not to have been involved. 12 THE COURT: Ms. Moe? 13 MS. MOE: Thank you, your Honor. The government agrees that this issue can be deferred until trial unless and until 14 this becomes an issue, provided the defense counsel doesn't intend to open on this issue. 15 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 DOJ-OGR-00008415 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 22 of 24 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 549-1 Filed 12/17/21 Page 23 of 24 35 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-00008417 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 549-1 Filed 12/17/21 Page 24 of 24 36 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 DOJ-OGR-00008418