Document 690

Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 1 of 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, -v- Ghislaine Maxwell, Defendant. USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 11/19/21 20-CR-330 (AJN) MEMORANDUM OPINION & ORDER ALISON J. NATHAN, District Judge: Before the Court is the Defendant's fourth motion in limine to "exclude evidence related to Accuser-3," to whom the Court refers as Witness-3, on the grounds that the testimony is not direct evidence of the charged conspiracies and is inadmissible under Federal Rules of Evidence 404(b) and 403. Dkt. Nos. 387, 444. The Court has twice heard argument related to this motion, including argument at the November 10, 2021 in camera hearing that was sealed pursuant to Federal Rule of Evidence 412. See generally Nov. 1, 2021 Transcript; Nov. 10, 2021 Transcript. At the November 1, 2021 hearing, the Court provided a brief explanation of its current position based on the information then before it, but the Court ultimately reserved ruling pending additional briefing. The Court is now in receipt of the parties' additional briefing and accordingly is prepared to resolve the motion.1 The Government now proffers that the anticipated testimony of Witness-3 will describe how she met the Defendant and her relationship with the Defendant and Mr. Epstein. In particular, Witness-3 is anticipated to testify how Defendant introduced her to Mr. Epstein, how 1 This Memorandum Opinion & Order is filed temporarily under seal to permit the parties the opportunity to propose sealing or limited redactions pursuant to Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), and Federal Rule of Evidence 412(c)(2). 1 DOJ-OGR-00011109 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 2 of 23 massages progressed to involve sexual activity, and Ms. Maxwell's role in facilitating those massages. Based on all of the information now before the Court, including a substantially more detailed proffer by the Government as to the anticipated testimony, see Gov. Supp. Ltr. at 2-3 (Nov. 5, 2021); see also Dkt. No. 452 at 42-43, the Court concludes that some of the anticipated testimony may serve as direct evidence of the Mann Act counts. The Government rightly acknowledged at the November 1 pretrial conference that Ms. Maxwell cannot be found guilty on this witness's testimony alone for any of the crimes charged in the Indictment. Nov. 1, 2021 Tr. at 67:12-25, 68:13-19, 69:4-9, 70:23-71:2, 72:22-25. As the Government acknowledged, with respect to the jury's determination in this case, this witness is not a victim of any of the crimes charged in the Indictment. See id. at 69:4-9; Nov. 10, 2021 Tr. at 164:19-165:3.2 However, evidence of legal conduct can of course be relevant evidence of illegality. And conduct that cannot itself form the basis of a conviction can serve as direct evidence of the crimes charged. See, e.g., United States v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012) (affirming admission of defendant pimp's relationship with and control over women who worked as prostitutes as direct evidence of 18 U.S.C. § 1591(a) charge). Thus some of the anticipated testimony described above can serve as direct evidence, notwithstanding the fact that the alleged conduct as to Witness-3 was not illegal for the purpose of the charges in this case. Portions of the anticipated testimony may also serve permissible purposes under Rule 404(b), namely proving motive, intent, and knowledge. See Fed. R. Evid. 404(b)(2). The witness is expected to testify about certain statements by Ms. Maxwell. For example, the 2 At the November 1 conference, the Court denied the Defendant's motion to preclude the Government from referring to alleged victims as "victims" and "minor victims." Nov. 1, 2021 Tr. at 4. In contrast to the other alleged victim witnesses, it is not (nor could it be) the Government's litigating position that this witness is a victim of the crimes charged in the Indictment. Given this, the Government may not refer to this witness as a "victim" or a "minor victim" in front of the jury. Doing so would constitute prejudicial error for the reasons explained in this Memorandum Opinion & Order. 2 DOJ-OGR-0001110 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 3 of 23 Government expects the witness to testify: Gov. Supp. Ltr. at 2-3 (Nov. 5, 2021). These statements are relevant because the jury may conclude that they tend to establish that the Defendant knew the alleged massages were sexualized and the Defendant's motive for facilitating the encounters. Id. at 3, 9. This testimony is relevant because the jury may conclude that it tends to establish the Defendant's intent to recruit girls for sexualized massages. Id. at 3. Although it is not the only available interpretation of this evidence, the jury could conclude that Such knowledge and intent are of course proper purposes under Rule 404(b).3 3 Defendant argues that this witness's testimony is impermissible propensity evidence as to Mr. Epstein under Rule 404(b). Def. Supp. Resp. at 5-7 (Nov. 11, 2021). The Court is unpersuaded. The testimony is not offered to show that Mr. Epstein acted in accordance with a certain character trait on a particular occasion. Rather, it is probative of whether Ms. Maxwell knew of or at least believed he had a sexual interest in , which a jury may find tends to establish the Defendant's intent and motive as to the charged crimes. See Roe v. Howard, 917 F.3d 229, 245-46 (4th Cir. 2019) (rejecting argument that husband's assault of a non-party housekeeper was improper character evidence under Rule 404(b) in a Trafficking Victims Protection Act action against the wife for facilitating husband's assaults of live-in housekeeper). 3 DOJ-OGR-00011111 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 4 of 23 The probative value of the anticipated testimony must of course be balanced with any potential prejudice under Rule 403. As the Court noted at the November 1 conference, there is a risk that the jury may confuse the issues and think that the sexual conduct this witness is describing itself constitutes the illegality charged in the Indictment due to the closeness in age of this witness to the age of consent. Nov. 1, 2021 Tr. at 89-90. There is also the risk that the jury may convict Ms. Maxwell due to feelings of immorality or sympathy for the witness despite the lack of illegality with regard to the crimes charged in the Indictment. However, the Court concludes that this risk of prejudice can be sufficiently minimized through two avenues. First, the testimony must be carefully limited. Second, there must be a clear limiting instruction. As to the first, the witness is limited to stating that sexual activity occurred but is precluded from providing detailed descriptions of the sexual activity. There is little to no probative value of a witness describing sexual activity when that witness's testimony regarding the sexual activity cannot form the basis for the conviction of the crimes charged. For example, any prejudice from described above is substantially diminished by limiting the proffered testimony to the Defendant's interaction with the witness and testimony indicating that sexual activity allegedly took place without describing the details of that sexual activity. Unlike the details of the sexual conduct itself, this anticipated testimony would not be unduly prejudicial. In contrast, the minimal probative value of the details of sexual conduct would be substantially outweighed by the risk of the jury convicting Ms. Maxwell on an improper basis. The same is true of the witness's subjective experience of the sexual conduct and any emotional or other impact the sexual conduct had on the witness because such testimony cannot form the basis of a conviction in this case. Accordingly, the witness is limited, as the Government phrased it, to describing her "factual experience" as to the lines of testimony 4 DOJ-OGR-0001112 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 5 of 23 described above. See Gov. Supp. Ltr. at 12 (Nov. 5, 2021). For example, in a recent murder trial, the Court permitted the nephew of the victim to describe his uncle's wounds because the nephew, who had served as a caretaker, had some information that was not cumulative of the medical records. The Court expressly cautioned the Government that it would not permit emotional testimony, or the probative value would be outweighed by the prejudice: [I]t's clearly a 403 line here. You have cumulativeness with the medical testimony, you have graphic descriptions from a relative who cared for the victim which could very well produce sympathies and prejudice that would interfere with and overcome the medical facts that you need for purposes of proving causation. . . . I am certainly going to cut off the line at any graphic descriptions. To the extent that walking this person through questions regarding the medical condition is emotional testimony, I think we are - it will have to be stopped. United States v. Berry, No. 20 Cr. 84 (AJN), Dkt. No. 138 at 13; see also id. at 15. In that case, the Government agreed that the line had to be carefully guarded. Id. at 13-14. The transcript of that ruling is attached for counsel's reference. See Exhibit A. The Court cautions the Government to proceed carefully because the Court will not allow testimony that steps over this 403 line. The Court will allow some leading questions for this portion of the testimony to help ensure that it does not. Finally, the Court concludes that this witness's anticipated testimony as to the sex trafficking counts is inadmissible. Although the Government's letter points to some relevant direct evidence that this witness could provide regarding these counts, see Gov. Supp. Ltr. at 6-7, any minimal probative value of this evidence is diminished by its remoteness in time to the charged sex trafficking conspiracy, which is alleged to have run from 2001 to 2004. This evidence does not face the same problem as it relates to the Mann Act conspiracies, which are alleged to have begun in 1994 (and when the Defendant allegedly began her relationship with this witness.). Because the risk of unfair prejudice substantially outweighs the probative value of 5 DOJ-OGR-0001113 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 6 of 23 this evidence as to the sex trafficking counts, the witness is precluded from testifying that The Court thus draws the line described above for limiting Witness-3's testimony. Permitting the entirety of the proffered testimony carries a risk that the jury may convict Ms. Maxwell due to conduct that cannot form the basis of a conviction for the charged crimes. But by limiting the testimony to the few categories of relevant testimony outlined above, the prejudice is substantially minimized. Moreover, whether as direct evidence of the Mann Act counts or offered for a proper purpose under 404(b), this testimony must be paired with a proper limiting instruction to guard against potential juror confusion. The Defense has submitted proposed limiting instructions, and the Government agrees that some sort of instruction is appropriate, although it disagrees with the basis for the instruction. Dkt. No. 452 at 50 n.12; Gov. Supp. Ltr. at 12 (Nov. 5, 2021). In accordance with this ruling, the Court proposes the following instruction before this anticipated witness testifies: You will hear testimony from the next witness about interactions that she says she had with the Defendant and Mr. Epstein. I instruct you that because the witness was over the relevant age of consent at the relevant time period, any sexual conduct she says occurred with Mr. Epstein was not "illegal sexual activity" as the Government has charged in the Indictment. I instruct you that this witness is not a victim of the crimes charged in the Indictment. To the extent you may conclude that her testimony is relevant to the issues before you, you may consider it. However, you may not convict the Defendant on the basis of the testimony regarding the sexual conduct between this witness and Mr. Epstein. Nor may you consider this testimony as any kind of reflection on Mr. Epstein's nor Ms. Maxwell's character or propensity to commit any of the crimes charged in the Indictment. The Court also proposes the following instruction before any testimony by other witnesses regarding sexual activity that occurred after the relevant age of consent: I anticipate that you will hear testimony from the next witness about sexual conduct that she says she had with Mr. Epstein in [insert relevant jurisdiction, e.g. New Mexico]. I instruct you that because the witness was over the age of consent in [insert relevant 6 DOJ-OGR-00011114 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 690 Filed 11/19/21 Page 7 of 23 jurisdiction, e.g. New Mexico] at the relevant time period, the sexual conduct she says occurred with Mr. Epstein was not "illegal sexual activity" as the Government has charged in the Indictment. However, to the extent you conclude that her testimony is relevant to the issues before you, you may consider it. However, you may not consider this testimony as any kind of reflection on Mr. Epstein's nor Ms. Maxwell's character or propensity to commit any of the crimes charged in the Indictment. The parties may submit any requested edits to the proposed limiting instructions that are consistent with the Court's ruling or indicate that they have none on or before November 21, 2021. This resolves Dkt. Nos. 387, 444. SO ORDERED. Dated: November 19, 2021 New York, New York ALISON J. NATHAN United States District Judge