Document 76

Case 1:20-cr-00330-AJN Document 76 Filed 11/24/20 Page 1 of 2 LAW OFFICES OF BOBBI C. STERNHEIM 212-243-1100 • Main 917-306-6666 • Cell 888-587-4737 • Fax 33 West 19th Street - 4th Floor bc@sternheimlaw.com New York, New York 10011 November 24, 2020 Honorable Alison J. Nathan United States District Judge United States Courthouse 40 Foley Square New York, NY 10007 Re: United States v. Ghislaine Maxwell 20 Cr. 330 (AJN) Dear Judge Nathan: As counsel for Ghislaine Maxwell, I write in response to the government's letter, dated November 23, 2020 (see Dkt 74), reporting Ms. Maxwell's conditions of detention and confirming that she is currently in quarantine due to contact with a staff member, assigned to her isolation pod, who tested positive for COVID-19. The government recites a variety of allowances given Ms. Maxwell, including being permitted out of her cell three times a week during quarantine for a maximum of 30 minutes, the total time allotted for showering, making personal calls, and using the CorrLinks email system to communicate with family and counsel. However, the letter presents an incomplete picture of Ms. Maxwell's conditions of confinement. The government fails to mention a variety of issues brought to the attention of the MDC, including but not limited to the fact: that all email correspondence between Ms. Maxwell and counsel was deleted in advance of the 180-day period, when deletion is expected to occur; that after being administered two nasal swab tests, under threat of 21-day quarantine if she declined to be tested, Ms. Maxwell was ordered to remove her COVID-protection mask for an in-mouth inspection, further risking exposure to the virus; that Ms. Maxwell was initially quarantined without soap or a toothbrush; that medical and psychology staff, who checked on Ms. Maxwell daily pre-quarantine, have ceased doing so daily since quarantine and have neither informed her of results of the COVID tests nor provided information in response to her inquiry regarding what she should do if she becomes symptomatic. The letter omits the fact that while staff are not supposed to enter Ms. Maxwell's isolation cell during quarantine, an unidentified man entered to take photographs and a guard entered to search. Further, while counsel assumed that an in-person legal visit scheduled for Saturday, November 21, would be canceled as a result of Ms. Maxwell's quarantine status, no notification was provided; and a request for a substituted legal call was not accommodated. DOJ-OGR-00001839 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 11/24/20 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page1 of 30 No. 21-770 & 21-58 In the United States Court of Appeals for the Second Circuit UNITED STATES OF AMERICA, Appellee, v. GHISLAINE MAXWELL, Appellant. On Appeal from the United States District Court for the Southern District of New York, 20-CR-330 (AJN) Appellant Ghislaine Maxwell's Reply in Support of Her Motion for Pretrial Release David Oscar Markus MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, Florida 33128 Tel: (305) 379-6667 markuslaw.com DOJ-OGR-00020291 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 76 Filed 11/24/20 Page 2 of 2 LAW OFFICES OF BOBBI C. STERNHEIM The government highlights what Ms. Maxwell is permitted but not what she is denied: equal treatment accorded other inmates in general population. Ms. Maxwell has spent the entirely of her pretrial detention in de facto solitary confinement under the most restrictive conditions where she is excessively and invasively searched and is monitored 24 hours per day. In addition to camera surveillance in her cell, a supplemental camera follows her movement when she is permitted to leave her isolation cell and is focused on Ms. Maxwell and counsel during in-person legal visits. And despite non-stop in-cell camera surveillance, Ms. Maxwell's sleep is disrupted every 15-minutes when she is awakened by a flashlight to ascertain whether she is breathing. Ms. Maxwell is a non-violent, exemplary pretrial detainee with no criminal history, no history of violence, no history of mental health issues or suicidal ideation. She is overmanaged under conditions more restrictive than inmates housed in 10South, the most restrictive unit in the MCC; or individuals convicted of terrorism and capital murder and incarcerated at FCI Florence ADMAX, the most restrictive facility operated by the BOP. The MDC concedes that it is unable to place her in general population for her safety and the security of the institution but fails to explain why she is deprived of all other opportunities provided to general population inmates. Stating that Ms. Maxwell "continues to have more time to review her discovery than any other inmate at the MDC, even while in quarantine" gives the unfair impression that she is being given a perquisite. However, given the voluminous discovery in this case, the most recent production alone being 1.2 million documents, the time accorded Ms. Maxwell remains inadequate for her to review and prepare the defense of her life. Due to the failure of MDC's Warden and Legal Department to respond to recurring problems and complaints, counsel have reached out to the government. While we appreciate any assistance provided by government counsel, it has done little to redress the many concerns regarding the disparate treatment of Ms. Maxwell. Rather than receive second-hand information from counsel, the defense requests that the Court summon Warden Heriberto Tellez to report directly to the Court and counsel on Ms. Maxwell's conditions of detention. Your consideration is greatly appreciated. Very truly yours, Bobbi C. Sternheim BOBBI C. STERNHEIM cc: All Counsel SO ORDERED. 11/24/20 Alison J. Nathan, U.S.D.J. 2 The parties are hereby ORDERED to meet and confer regarding Defendant's request that Warden Heriberto Tellez directly address Defendant's concerns regarding the conditions of her detention. The parties shall jointly submit a status update within one week of this Order. SO ORDERED. DOJ-OGR-00001840 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page2 of 30 Appellant Ghislaine Maxwell's Reply in Support of Her Motion for Pretrial Release The Government's Response underscores why this Court should order bail for Ghislaine Maxwell so that she can prepare for trial. The court below erred in accepting the Government's conclusory proffer without any actual evidence. And the conditions of her confinement make it impossible for her to effectively prepare her defense. The Government concedes that Ms. Maxwell is not a danger to the community, and her proposed bail package demonstrates that she is not a risk of flight. Accordingly, she should be released on bail. At the very least, this matter should be remanded to the district court to conduct a real bail hearing to (1) test the actual strength of the Government's case, and (2) determine whether Ms. Maxwell should be granted temporary release so that she can effectively prepare for trial, which she cannot do under the current conditions of confinement. Relying almost entirely on a regurgitation of quotations from the lower court (the first 26 of the 43-paragraph pleading is labeled "Facts"), only ten paragraphs, labeled "Discussion," even attempt to address Ms. Maxwell's arguments. As much as the Government would prefer that Ms. Maxwell not have a fair fight, this Court must level the playing field so 2 DOJ-OGR-00020292 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page3 of 30 that the presumption of innocence is more than mere words on a page. This Reply responds to the arguments the Government does raise: 1. The Court did not conduct a "lengthy bail hearing." Resp.¶2. The transcript of the video arraignment and bail hearing spans only 91 pages, with the bail arguments on pages 22-79. The Government did not present any actual evidence at this brief hearing. Br.7-8,19-21. During the bail hearing, each time the Government mentioned the strength of its case, it cited to the Indictment. See, e.g., Ex.D, p.24("Turning first to the strength of the evidence, the indictment in this case arises .... The indictment further charges that ..."); pg. 25 ("The indictment makes plain ... it was an ongoing scheme ... Given the strength of the government's evidence ... there is an incredibly strong incentive for the defendant to flee..."). The court erred in agreeing that the Indictment itself demonstrates strength. Id. at 82 ("[I]t is appropriate to consider the strength of the evidence proffered by the government in assessing risk of flight. The government's evidence at this early juncture of the case appears strong. Although the charged conduct took place many years ago, the indictment describes ..."). At no point did the Government introduce or even proffer any actual evidence. 3 DOJ-OGR-00020293 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page4 of 30 The Government makes much of the fact that its Indictment is "speaking." But speaking or not, an indictment is not a substitute for evidence and cannot be used as proof that the case is strong. If that were true, then every single case would be strong because in every case there is an indictment. 2. Similarly, the "additional charges" do not "strengthen the evidence against Maxwell" and do not "further support Judge Nathan's detention orders." Resp.¶6, n.2. The new charges are allegations, nothing more. Piling allegation on allegation and then calling it proof does not make it so. Allegations are not evidence. Moreover, these charges will require Ms. Maxwell to spend more time with her lawyers, not less, and further illustrate why bail is necessary.1 3. Contrary to the Government's assertion, "[e]ach witness's testimony" is not "corroborated by that of other victim-witnesses." Resp.¶9. The Government continues to press the false point that the mere number of accusers provides corroboration for the accusers. To the 1The defense has been forced to asked for a continuance of the July trial because of the expansion of the conspiracy time period. Ex.O. If the trial is delayed and Ms. Maxwell is not released on bail, she will be further prejudiced with the inhumane conditions of confinement and the inability to aid her defense. --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page5 of 30 contrary. Not a single on of the anonymous accusers saw or heard what purportedly happened to the other accusers. Not a single one of the anonymous accusers will be able to corroborate the 25-year old stories of the other accusers. Indeed, their stories are contradictory, not corroborating. At a real hearing, the defense will demonstrate that each of the witness' stories has dramatically changed over the years. At first, none of the anonymous accusers even mentioned Ms. Maxwell. As they hired the same law firm, sought money and fame, joined a movement, and only after Epstein died, did the accusers start to point the finger at Ms. Maxwell. Far from corroboration, this is fabrication. The district judge erred in relying on the Indictment as proof that the Government's case is strong. 4. Because there was no meaningful proffer, the Government's reliance on United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) and United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986), is misplaced. Resp. ¶34. In fact, those cases highlight the court's error. In LaFontaine, for example, the bail revocation hearing lasted three days where the government's proffer included providing tape recordings, transcripts, and an affidavit for the court. No such evidentiary proffer 5 DOJ-OGR-00020295 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page6 of 30 occurred here. The LaFontaine Court explained that "while the informality of bail hearings serves the demands of speed, the ... district judge must also ensure the reliability of the evidence, 'by selectively insisting upon the production of the underlying evidence of evidentiary sources where their accuracy is in question.' Id. at 131 (quoting Martir, 782 F.2d at 1147). And in Martir, this Court recognized the "high stakes" involved in a detention hearing and explained that the power afforded to the lower courts "should always be exercised 'with the recognition that a pretrial detention hearing may restrict for a significant time the liberty of a presumably innocent person.'" 782 F.2d at 1145 (internal citations omitted). It then criticized the government's proffer as stating in "the most general and conclusory terms what it hoped to provide," for failing to submit any "independent evidence, such as tapes, documents, or photographs," and for failing to furnish any testimony or affidavits. Id. at 1147. Sounds familiar. Unlike Martir, where this Court found that it could not reverse because the defense "did not challenge the proffer in any way," Ms. Maxwell absolutely challenged the flimsy proffer from the initial bail hearing through three renewals. Instead of properly putting the Government to the test, the court blindly, uncritically, and 6 DOJ-OGR-00020296 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page7 of 30 erroneously adopted its conclusory proffer. 5. Ms. Maxwell's intention to evade the media does not even marginally amount to risk of flight. Resp.¶33. The Government does not dispute that the media placed a bounty on Ms. Maxwell or that she was being stalked by them before her arrest. Of course she took measures to protect herself and her family, just as government lawyers and judges do when their safety is at issue. Ms. Maxwell was at her home in the United States. The Government admits that it knew where she was. It had such confidence that it could arrest her whenever it chose that it orchestrated her arrest to coincide with a press conference replete with incendiary demonstrative aids. And it is worth repeating that the Government does not claim that Ms. Maxwell – a 59-year old woman with no prior criminal history – is a danger to the community. She is no monster, but she is being treated like one because of the “Epstein effect.” 6. The Government's contention that Ms. Maxwell receives more time than other inmates at MDC to “review her discovery” and “communicate with her attorneys” does not prove anything about whether she is actually able to effectively prepare her defense. Ms. Maxwell needs more time with her lawyers and discovery than almost any other MDC 7 DOJ-OGR-00020297 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page8 of 30 inmate, few of which are preparing for trial. Over 97% of criminal defendants plead guilty and, therefore, need far less time with their lawyers. Of the remaining 3% who do proceed to trial, the vast majority are out on bond. For those few in custody, how many involve anonymous accusations that are decades old and 2.7 million pages?2 And how often is such a defendant forced to prepare her case during a pandemic where in-person lawyer visits are unsafe and impractical? It is no wonder that courts around the country are ordering temporary release under § 3142(i) for the few defendants who are trying to prepare for trial during the pandemic. The Government's weak response is that Ms. Maxwell only mentioned temporary release at the first bail hearing. The Government suggests waiver, without saying it. Nonsense. Ms. Maxwell has repeatedly pressed her inability to effectively prepare her defense, which is properly 2To illustrate, for Ms. Maxwell to review the 2.7 million pages, she would have to do it, page by page, on a computer screen. If she spent only 1 minute per page, it would take 45,000 hours or 3,750 days (at 12 hours a day), without taking any notes, without discussing a single page with her lawyers, and not including the discovery that is on the way. Although the Government labels this new discovery "non-testifying witness discovery," it really is Brady material which severely undermines the already weak case. 8 DOJ-OGR-00020298 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page9 of 30 before this Court. 7. Ms. Maxwell is not suggesting that "any defendant in a case with voluminous discovery must be released on bail to prepare for trial." Resp.¶40. Her case and situation is unique. Other defendants may pose a danger to the community. The Government concedes that she does not. Other defendants may not be U.S. citizens. She is. Other defendants may not have strong U.S. connections. Ms. Maxwell has lived here for 30 years, has a husband and step-children here, and has two sisters who are U.S. citizens and live here. Other defendants may not have pledged almost all of their assets or offer to have a monitor track her expenses. Ms. Maxwell has. Other defendants may not be willing to renounce their foreign citizenship. She is. Other defendants may have prior convictions. She does not. But other defendants have no connection to Jeffrey Epstein, and she does. Although unstated, that old connection is the driving factor for detention, and that is error. 8. The Government says that the district judge has "closely monitored" her conditions of confinement. Unfortunately, that is not accurate. The District Court accepted, without any real inquiry, the self-serving Government letters. These letters describe a "prison 9 DOJ-OGR-00020299 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page10 of 30 paradise," not one of the most notorious prisons in America. A "day room." Two computers. Recreation. Eye masks. But the Government's description of Ms. Maxwell's conditions is not true. For example, she has no eye mask. The guards flash lights in her cell every 15 minutes for no reason so she tries as best as she can to shield her eyes with a towel that is not secured and not effective against the unwelcome beams. Even the Government does not dispute that Ms. Maxwell is in de facto solitary confinement. It does not dispute that she has no surface to write on in her isolation cell. It does not dispute that there is often cloudy, obviously unsanitary, water in the jail. It does not dispute that she is being forced to prepare for this trial with a computer that cannot do research and cannot search documents. Attached as Exhibit P, is a response to the latest Government letter, which outlines her actual conditions. It is inconceivable that the government lawyers or its witnesses could prepare for trial under these conditions. It is painfully apparent that the two sides are far apart on how Ms. Maxwell is being treated. The Government's letters, however, are based on multiple layers of hearsay - prison guards to the prison lawyer to the prosecutor, which get summarized in an unsworn letter to the court. No 10 DOJ-OGR-00020300 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page11 of 30 affidavits at all, let along from anyone with actual knowledge, were submitted to the court. And the judge has never had an evidentiary hearing about the conditions. In its most recent letter, the Government contends that Ms. Maxwell's allegation of abuse by the prison guards is unfounded because the Bureau of Prisons has reviewed a video of the incident and has concluded that there is no abuse. This self-serving proclamation is no substitute for evidence. The prosecutors who filed the letter do not even claim to have watched the video. The Government should produce it for the court and defense to review. The court should conduct a hearing to determine what actually happened. The Government professes to believe women, but only when those women are on their side, despite their inconsistent and self-contradictory statements about old, uncorroborated allegations. When it is Ms. Maxwell who has been abused, the Government wants to believe only the abusers who say they did no such thing and without watching the actual video. It seems like the only rule is to get Ms. Maxwell at all costs. And it seems that a conviction is not even enough for the Government - it wants to go so far as to humiliate Ms. Maxwell with false statements about the cleanliness of her cell. See 11 DOJ-OGR-00020301 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page12 of 30 Gov'tEx. (April 6, 2021 letter, n.2). But as Ms. Maxwell explained, the Government's narrative is total fiction - the unsanitary conditions are caused by other inmates and guards, not Ms. Maxwell. 9. The Government also makes much of Ms. Maxwell's vaccination. Again this demonstrates a gross double standard. Imagine if the defense had publicly filed medical information about the accusers. There would be hell to pay. The Government insists on secrecy and redactions when discussing their witnesses, and will not even reveal their names. Yet it freely discloses private information in violation of HIPAA about Ms. Maxwell in public filings. In any event, whether Ms. Maxwell is vaccinated or not does not help her search documents on an ancient computer or give her access to a printer or allow her to meet with her lawyers (who would still need to come into the jail and interact with numerous other prisoners and guards who have not been vaccinated). Ms. Maxwell's bail motion is not based on her risk of contracting COVID. Her vaccination status is irrelevant. 12 DOJ-OGR-00020302 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page13 of 30 CONCLUSION Ms. Maxwell should be released. The allegations against her are weak, she is not a risk of flight, and her appearance at trial is assured by an unprecedented bail package. In the meantime, she cannot effectively prepare for trial under these truly appalling conditions. The Government's tactic in this appeal, and in the court below, is transparent - it is "trust us." Trust our proffer on the evidence because we indicted her (and this case relates to Jeffrey Epstein). Trust us when we say her conditions are fine because the Bureau of Prisons says they are fine (and we can't have another Jeffrey Epstein situation). The court below clearly erred, however, in just trusting the Government without any actual evidence and without a real hearing, notwithstanding Jeffrey Epstein. As much as the Government would like this case to be the Jeffrey Epstein show, Ghislaine Maxwell is not Jeffrey Epstein. Ms. Maxwell understands that she and the Government are not going to agree on the facts. This is an adversary system, of course. But in that circumstance, there must be an adversarial hearing where Ms. Maxwell can demonstrate that the Government's case - based on old, anonymous accusations - is weak. There must be an adversarial hearing 13 DOJ-OGR-00020303 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page14 of 30 where she can demonstrate that her conditions of confinement make preparing for trial impossible. There must be an adversarial hearing where she can challenge any contrary evidence. At the very least, this matter should be remanded to the trial court to conduct such proceedings. Respectfully submitted, MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, Florida 33128 Tel: (305) 379-6667 Fax: (305) 379-6668 markuslaw.com By: /s/ David Oscar Markus DAVID OSCAR MARKUS Florida Bar Number 119318 dmarkus@markuslaw.com 14 DOJ-OGR-00020304 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page15 of 30 CERTIFICATE OF COMPLIANCE I CERTIFY that this petition complies with the type-volume limitation of FED. R. APP. P. 27. According to Microsoft Word, the numbered pages of this petition contains 2600 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 27(d)(2). This petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 27 because it has been prepared in a proportionally spaced typeface using WordPerfect in Century Schoolbook 14-point font. /s/ David Oscar Markus David Oscar Markus CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing was e-filed this 19th day of April, 2021. /s/ David Oscar Markus David Oscar Markus 15 DOJ-OGR-00020305 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page16 of 30 EXHIBIT O DOJ-OGR-00020306 --- PAGE BREAK --- Case 21-58, Document 76, 04/19/2021, 3080288, Page25 of 30 EXHIBIT P DOJ-OGR-00020315