Document 765

Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 1 of 95 2739 LCI1MAX1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. Jury Trial ------------------------------------x New York, N.Y. December 18, 2021 9:10 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 LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- COHEN & GRESSER BY: CHRISTIAN R. EVERDELL SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014305 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 1 of 95 LCI1MAX1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. Jury Trial -------------------------------------------------------x New York, N.Y. December 18, 2021 9:10 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 LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- COHEN & GRESSER BY: CHRISTIAN R. EVERDELL SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016927 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 2 of 95 2740 LCI1MAX1 1 (In open court; jury not present) 2 THE COURT: Good morning, everyone. 3 ALL COUNSEL: Good morning. 4 THE COURT: Please be seated. 5 All right. Looks like we have everybody. Let me just 6 make sure we're set up. 7 Okay. Thank you, everyone, for the Saturday charging 8 conference, a first for me, but it helps us use our time well, 9 I think, so thank you for that. 10 I circulated to the parties the draft charge, which we 11 docketed last night. In the draft verdict form, the way I do 12 this is to just ask, starting with the first page on which you 13 have a request that you want to make, and give me the page and 14 line number and we'll discuss it. If I accept the change, it 15 will be entered in redline by my law clerk. And then once 16 we're finished, I'll send to the parties the redline so you can 17 help me make sure that everything got entered properly. 18 All right. So Mr. Rohrbach, first page that you have. 19 MR. ROHRBACH: The government's first request is on 20 page 32. 21 THE COURT: Before that? Mr. Everdell? 22 MR. EVERDELL: Yes, your Honor. Defense's first 23 request -- 24 THE COURT: It may be best to -- you're welcome to 25 remain seated -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014306 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 2 of 95 2740 LCI1MAX1 1 (In open court; jury not present) 2 THE COURT: Good morning, everyone. 3 ALL COUNSEL: Good morning. 4 THE COURT: Please be seated. 5 All right. Looks like we have everybody. Let me just 6 make sure we're set up. 7 Okay. Thank you, everyone, for the Saturday charging 8 conference, a first for me, but it helps us use our time well, 9 I think, so thank you for that. 10 I circulated to the parties the draft charge, which we 11 docketed last night. In the draft verdict form, the way I do 12 this is to just ask, starting with the first page on which you 13 have a request that you want to make, and give me the page and 14 line number and we'll discuss it. If I accept the change, it 15 will be entered in redline by my law clerk. And then once 16 we're finished, I'll send to the parties the redline so you can 17 help me make sure that everything got entered properly. 18 All right. So Mr. Rohrbach, first page that you have. 19 MR. ROHRBACH: The government's first request is on 20 page 32. 21 THE COURT: Before that? Mr. Everdell? 22 MR. EVERDELL: Yes, your Honor. Defense's first 23 request -- 24 THE COURT: It may be best to -- you're welcome to 25 remain seated -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 3 of 95 2741 LCI1MAX1 1 MR. EVERDELL: I can pull this up a little bit? 2 THE COURT: -- if I'm going to hear from you a lot. 3 But yes, pull up the mic and -- yes. First page, Mr. Everdell. 4 MR. EVERDELL: Defense's first page is page 15. 5 THE COURT: Okay. Line? 6 MR. EVERDELL: Well we'll start with line 8 and 9. 7 THE COURT: Okay. 8 MR. EVERDELL: So this was the summary of the indictment charge, your Honor. 9 10 THE COURT: Yes. 11 MR. EVERDELL: And on 8 and 9, there's a reference to travel to both interstate and foreign commerce. I think throughout the charge there's a bit of an inconsistency. 12 Sometimes we're talking about just interstate, sometimes we're talking about interstate and foreign. I actually don't think that there's any evidence, especially with respect to Count One or the Mann Act charges or any of them, we're talking about "and foreign commerce." I think it's interstate commerce, so I don't think the "and foreign" is necessary. 13 14 15 16 17 18 19 20 THE COURT: I think we have -- Mr. Rohrbach? 21 MR. ROHRBACH: Your Honor, this actually relates to the government's later request, but the government's view is that there are flight records that show Virginia Roberts traveling with the defendant and Jeffrey Epstein overseas while she is 17, I believe, and so that would be sufficient, at least 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014307 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 3 of 95 LCI1MAX1 1 MR. EVERDELL: I can pull this up a little bit? 2 THE COURT: -- if I'm going to hear from you a lot. 3 But yes, pull up the mic and -- yes. First page, Mr. Everdell. 4 MR. EVERDELL: Defense's first page is page 15. 5 THE COURT: Okay. Line? 6 MR. EVERDELL: Well we'll start with line 8 and 9. 7 THE COURT: Okay. 8 MR. EVERDELL: So this was the summary of the indictment charge, your Honor. 9 10 THE COURT: Yes. 11 MR. EVERDELL: And on 8 and 9, there's a reference to travel to both interstate and foreign commerce. I think throughout the charge there's a bit of an inconsistency. 12 13 Sometimes we're talking about just interstate, sometimes we're talking about interstate and foreign. I actually don't think that there's any evidence, especially with respect to Count One or the Mann Act charges or any of them, we're talking about "and foreign commerce." I think it's interstate commerce, so I don't think the "and foreign" is necessary. 14 15 16 17 18 19 20 THE COURT: I think we have -- Mr. Rohrbach? 21 MR. ROHRBACH: Your Honor, this actually relates to the government's later request, but the government's view is that there are flight records that show Virginia Roberts traveling with the defendant and Jeffrey Epstein overseas while she is 17, I believe, and so that would be sufficient, at least 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016929 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 4 of 95 2742 LCI1MAX1 1 as to Counts Five and Six. 2 THE COURT: So the government's request is that I 3 include "foreign" in each instance and the defense's request 4 that I remove "foreign" in each instance. As we stand, there's 5 inconsistency. Do I have that right, Mr. Everdell? 6 MR. EVERDELL: I'm sorry, your Honor. Can you say 7 that again? 8 THE COURT: Sure. Right now there's inconsistency as 9 to whether "foreign commerce" is included or not, and the 10 defense's request is that "foreign" be excluded in each 11 instance and the government's request is that "foreign" be 12 included in each instance. 13 MR. EVERDELL: That's correct, your Honor. 14 THE COURT: Okay. Mr. Everdell, do you want to 15 respond to the government's point about flight records. 16 MR. EVERDELL: Your Honor, the flight records, I 17 think -- I'm trying to think of the references to -- you said 18 it relates to which individual? I'm sorry, your Honor. 19 MR. ROHRBACH: It relates to Virginia Roberts while 20 she was 17, and so that, at a minimum, in the government's 21 view, means "foreign commerce" should be included in Counts 22 Five and Six. 23 MR. EVERDELL: Your Honor, there's no testimony about 24 the purpose of those trips or any enticement with respect to 25 those trips. I think Virginia Roberts, the sum total of her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014308 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 4 of 95 LCI1MAX1 1 as to Counts Five and Six. 2 THE COURT: So the government's request is that I 3 include "foreign" in each instance and the defense's request 4 that I remove "foreign" in each instance. As we stand, there's 5 inconsistency. Do I have that right, Mr. Everdell? 6 MR. EVERDELL: I'm sorry, your Honor. Can you say 7 that again? 8 THE COURT: Sure. Right now there's inconsistency as 9 to whether "foreign commerce" is included or not, and the 10 defense's request is that "foreign" be excluded in each 11 instance and the government's request is that "foreign" be 12 included in each instance. 13 MR. EVERDELL: That's correct, your Honor. 14 THE COURT: Okay. Mr. Everdell, do you want to 15 respond to the government's point about flight records. 16 MR. EVERDELL: Your Honor, the flight records, I 17 think -- I'm trying to think of the references to -- you said 18 it relates to which individual? I'm sorry, your Honor. 19 MR. ROHRBACH: It relates to Virginia Roberts while 20 she was 17, and so that, at a minimum, in the government's 21 view, means "foreign commerce" should be included in Counts 22 Five and Six. 23 MR. EVERDELL: Your Honor, there's no testimony about 24 the purpose of those trips or any enticement with respect to 25 those trips. I think Virginia Roberts, the sum total of her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016930 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 5 of 95 2743 LCI1MAX1 testimony was that she recruited Carolyn, and she didn't testify, and I don't think -- this is not the theory that the government's been proceeding on on these counts. These counts relate to the four accusers that testified. I think for the jury to infer then that there's enticement with respect to Virginia Roberts, when there's no evidence in the record of Ms. Maxwell or anybody enticing her, there's just testimony that she enticed Carolyn, if anything, that's not an appropriate theory for the jury to base their conviction on foreign commerce, if she's the one who traveled. MR. ROHRBACH: If I may, your Honor. I think for counts -- THE COURT: We're talking 18 U.S.C. 1591, correct? MR. ROHRBACH: Yes. The government does not -- if the Court and defense prefer to remove "foreign commerce" from One through Four, Virginia Roberts's conduct doesn't show that. While that's a legally proper instruction to leave "foreign commerce," it's at least available to the jury as to Counts Five and Six because of 18 U.S.C. 1591). THE COURT: But the text of 18 U.S.C. 1591 doesn't include "in foreign commerce," does it? MR. ROHRBACH: Yes. It says, "Whoever knowingly, in or affecting interstate or foreign commerce, recruits, entices, harbors," etc. Oh, I see. It appears that -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014309 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 5 of 95 2743 LCI1MAX1 testimony was that she recruited Carolyn, and she didn't testify, and I don't think -- this is not the theory that the government's been proceeding on on these counts. These counts relate to the four accusers that testified. I think for the jury to infer then that there's enticement with respect to Virginia Roberts, when there's no evidence in the record of Ms. Maxwell or anybody enticing her, there's just testimony that she enticed Carolyn, if anything, that's not an appropriate theory for the jury to base their conviction on foreign commerce, if she's the one who traveled. MR. ROHRBACH: If I may, your Honor. I think for counts -- THE COURT: We're talking 18 U.S.C. 1591, correct? MR. ROHRBACH: Yes. The government does not -- if the Court and defense prefer to remove "foreign commerce" from One through Four, Virginia Roberts's conduct doesn't show that. While that's a legally proper instruction to leave "foreign commerce," it's at least available to the jury as to Counts Five and Six because of 18 U.S.C. 1591). THE COURT: But the text of 18 U.S.C. 1591 doesn't include "in foreign commerce," does it? MR. ROHRBACH: Yes. It says, "Whoever knowingly, in or affecting interstate or foreign commerce, recruits, entices, harbors," etc. Oh, I see. It appears that -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016931 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 6 of 95 2744 LCI1MAX1 1 THE COURT: There is a -- 2 MR. ROHRBACH: -- there was a statutory change that 3 added "foreign commerce." 4 MR. EVERDELL: Yeah. 5 THE COURT: It depends on what the operative time 6 period for the inclusion of it is. 7 MR. ROHRBACH: In light of that, your Honor, I think 8 the government would withdraw its request as to Counts Five and 9 Six. 10 THE COURT: Okay. 11 MR. ROHRBACH: To avoid any ambiguity about that 12 point. 13 THE COURT: Okay. All right. So you'll help me, 14 Mr. Everdell, find each instance in which we need to remove 15 "and foreign"? 16 MR. EVERDELL: Yes, your Honor. 17 THE COURT: The first one you've identified -- 18 MR. EVERDELL: If you like, on this charge, I can go 19 through the ones I see on this page. 20 THE COURT: Let me just note the first one we've 21 discussed, because my clerk is going to wait for me to say the 22 change in order to make it. So let me just note on page 15, 23 lines 8 and 9 -- on line 8, deleting the word "and," on line 9, 24 deleting the word "foreign." 25 Next one, Mr. Everdell? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014310 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 6 of 95 2744 LCI1MAX1 1 THE COURT: There is a -- 2 MR. ROHRBACH: -- there was a statutory change that 3 added "foreign commerce." 4 MR. EVERDELL: Yeah. 5 THE COURT: It depends on what the operative time 6 period for the inclusion of it is. 7 MR. ROHRBACH: In light of that, your Honor, I think 8 the government would withdraw its request as to Counts Five and 9 Six. 10 THE COURT: Okay. 11 MR. ROHRBACH: To avoid any ambiguity about that 12 point. 13 THE COURT: Okay. All right. So you'll help me, 14 Mr. Everdell, find each instance in which we need to remove 15 "and foreign"? 16 MR. EVERDELL: Yes, your Honor. 17 THE COURT: The first one you've identified -- 18 MR. EVERDELL: If you like, on this charge, I can go 19 through the ones I see on this page. 20 THE COURT: Let me just note the first one we've 21 discussed, because my clerk is going to wait for me to say the 22 change in order to make it. So let me just note on page 15, 23 lines 8 and 9 -- on line 8, deleting the word "and," on line 9, 24 deleting the word "foreign." 25 Next one, Mr. Everdell? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016932 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 7 of 95 2745 LCI1MAX1 1 MR. EVERDELL: Line 12, your Honor. 2 THE COURT: Line 12, deleting the word "and," deleting the words "and foreign"? Go ahead, Mr. Everdell. 3 MR. EVERDELL: Line 15, same change, your Honor. 4 THE COURT: Line 15, deleting "and foreign." 5 MR. EVERDELL: Yes, your Honor. 6 THE COURT: And line 19? 7 MR. EVERDELL: Correct, your Honor. 8 THE COURT: Deleting "and foreign." 9 That's it for that, for the summary, correct? 10 MR. EVERDELL: That's it for the "and foreign," yup. 11 THE COURT: Okay. 12 MR. EVERDELL: We have a few others. 13 THE COURT: All right. Well, let's be comprehensive on this. Are there any other places in the charge where that appears? 14 MR. EVERDELL: Oh, the other places in the whole charge. 15 THE COURT: Actually, we'll hit it when we get there. 16 So what else on 15? 17 MR. EVERDELL: Sure. So line 10, your Honor -- 18 THE COURT: Okay. Just one second. 19 MR. EVERDELL: Okay. 20 THE COURT: Go ahead. 21 MR. EVERDELL: Thank you, your Honor. On line 10, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014311 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 7 of 95 2745 LCI1MAX1 1 MR. EVERDELL: Line 12, your Honor. 2 THE COURT: Line 12, deleting the word "and," deleting the words "and foreign"? Go ahead, Mr. Everdell. 3 4 MR. EVERDELL: Line 15, same change, your Honor. 5 THE COURT: Line 15, deleting "and foreign." 6 MR. EVERDELL: Yes, your Honor. 7 THE COURT: And line 19? 8 MR. EVERDELL: Correct, your Honor. 9 THE COURT: Deleting "and foreign." 10 That's it for that, for the summary, correct? 11 MR. EVERDELL: That's it for the "and foreign," yup. 12 THE COURT: Okay. 13 MR. EVERDELL: We have a few others. 14 THE COURT: All right. Well, let's be comprehensive on this. Are there any other places in the charge where that appears? 15 16 MR. EVERDELL: Oh, the other places in the whole charge. 17 18 THE COURT: Actually, we'll hit it when we get there. 19 So what else on 15? 20 21 MR. EVERDELL: Sure. So line 10, your Honor -- 22 THE COURT: Okay. Just one second. 23 MR. EVERDELL: Okay. 24 THE COURT: Go ahead. 25 MR. EVERDELL: Thank you, your Honor. On line 10, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016933 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 8 of 95 2746 LCI1MAX1 now reads, "Count One relates to multiple alleged victims in the time period 1994 into 2004." We believe it should read, "Count One relates solely to Jane and the time period 1994 to 2004." And I can explain, if you like, your Honor. THE COURT: Let me just get my eyes on it. Okay. MR. EVERDELL: So, your Honor, this is an issue I think we've gone back and forth on quite a bit in the motions in limine. But with respect to the government's theory of the conspiracy and of the substantive counts, enticement and transportation, so Counts One through Four, is that the underlying object was a violation of New York law, right, Section 130.55. So there has to be -- the object of this conspiracy is a violation of New York law. With respect to Kate, there was no violation of New York law. Your Honor already instructed the jury that they can't consider that evidence for purposes of conviction because she was above the age of consent. There was no violation of New York law. Same thing with -- THE COURT: Well, just to be slightly more precise, they can't convict on that count based solely on the evidence of the conduct involving her. MR. EVERDELL: Correct. And with respect to Annie, the Court also instructed that this is -- whatever conduct they may find that she talked about in New Mexico, was not illegal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 8 of 95 2746 LCI1MAX1 now reads, "Count One relates to multiple alleged victims in the time period 1994 into 2004." We believe it should read, "Count One relates solely to Jane and the time period 1994 to 2004." And I can explain, if you like, your Honor. THE COURT: Let me just get my eyes on it. Okay. MR. EVERDELL: So, your Honor, this is an issue I think we've gone back and forth on quite a bit in the motions in limine. But with respect to the government's theory of the conspiracy and of the substantive counts, enticement and transportation, so Counts One through Four, is that the underlying object was a violation of New York law, right, Section 130.55. So there has to be -- the object of this conspiracy is a violation of New York law. With respect to Kate, there was no violation of New York law. Your Honor already instructed the jury that they can't consider that evidence for purposes of conviction because she was above the age of consent. There was no violation of New York law. Same thing with -- THE COURT: Well, just to be slightly more precise, they can't convict on that count based solely on the evidence of the conduct involving her. MR. EVERDELL: Correct. And with respect to Annie, the Court also instructed that this is -- whatever conduct they may find that she talked about in New Mexico, was not illegal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016934 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 9 of 95 2747 LCI1MAX1 sexual activity as charged in the indictment, which is a reference to the violation of New York law, because that is the theory we're proceeding under. With respect to Carolyn, there was no limiting instruction, but it's evident we were talking about Florida conduct. There is no violation of New York law there. So the only evidence we have that goes to -- that actually establishes a violation of New York law, which is the object of this conspiracy, and the object of the transportation conspiracy, is what Jane said. Now the Court did instruct the jury that they can consider the testimony of Kate and of Annie for whatever relevant purpose they see fit, and I suppose that could be evidence of a conspiracy, correct, but for them to actually convict on this, they have to believe that somebody committed a violation of New York law, and that relates solely to Jane, and so we don't think -- there are no multiple alleged victims of this conspiracy other than Jane that's been established by the evidence at trial. So we believe while they may be able to consider the testimony of Annie and Kate as evidence of some sort of relevant evidence that speaks to this conspiracy, that is not -- they are not victims of this conspiracy, there was no violation of New York law that they testified to, and that is Jane alone. So this count relates solely to Jane, as does the substantive count, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014313 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 9 of 95 2747 LCI1MAX1 1 sexual activity as charged in the indictment, which is a 2 reference to the violation of New York law, because that is the 3 theory we're proceeding under. 4 5 With respect to Carolyn, there was no limiting 6 instruction, but it's evident we were talking about Florida 7 conduct. There is no violation of New York law there. So the 8 only evidence we have that goes to -- that actually establishes 9 a violation of New York law, which is the object of this 10 conspiracy, and the object of the transportation conspiracy, is 11 what Jane said. 12 Now the Court did instruct the jury that they can 13 consider the testimony of Kate and of Annie for whatever 14 relevant purpose they see fit, and I suppose that could be 15 evidence of a conspiracy, correct, but for them to actually 16 convict on this, they have to believe that somebody committed a 17 violation of New York law, and that relates solely to Jane, and 18 so we don't think -- there are no multiple alleged victims of 19 this conspiracy other than Jane that's been established by the 20 evidence at trial. So we believe while they may be able to 21 consider the testimony of Annie and Kate as evidence of some 22 sort of relevant evidence that speaks to this conspiracy, that 23 is not -- they are not victims of this conspiracy, there was no 24 violation of New York law that they testified to, and that is 25 Jane alone. So this count relates solely to Jane, as does the 26 substantive count, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016935 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 10 of 95 2748 LCI1MAX1 THE COURT: Mr. Rohrbach? MR. ROHRBACH: Your Honor, this is a place where the defense confuses conspiracy violations and substantive violations. There does not have to be a proven violation of New York law as to any of the minor victims. It just has to be an agreement to accomplish that purpose. Carolyn, for instance, was invited to travel by the defendant. The jury can readily find that that invitation to travel included an invitation to New York, where the abuse would continue, as it did for Jane. Annie was in fact transported by the defendant Epstein to New Mexico and New York. The jury could readily find that that was a conspiracy that existed, and as part of that grooming conduct, the plan would be to continue to abuse her, including back in New York. These are available inferences to the jury, and that's all that's required for the conspiracy count. THE COURT: That's precisely why there was a different limiting instruction for Annie than there was for Kate. MR. EVERDELL: Well, your Honor, I would dispute the facts a little bit there, because they said that Carolyn's testimony was that she was invited to travel to the island. She was not invited to travel anywhere; she specifically testified she was given an invitation to the island. That's not travel to New York. And her mother said she couldn't be able to go. So I don't think that is evidence -- if the object SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014314 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 10 of 95 2748 LCI1MAX1 THE COURT: Mr. Rohrbach? MR. ROHRBACH: Your Honor, this is a place where the defense confuses conspiracy violations and substantive violations. There does not have to be a proven violation of New York law as to any of the minor victims. It just has to be an agreement to accomplish that purpose. Carolyn, for instance, was invited to travel by the defendant. The jury can readily find that that invitation to travel included an invitation to New York, where the abuse would continue, as it did for Jane. Annie was in fact transported by the defendant Epstein to New Mexico and New York. The jury could readily find that that was a conspiracy that existed, and as part of that grooming conduct, the plan would be to continue to abuse her, including back in New York. These are available inferences to the jury, and that's all that's required for the conspiracy count. THE COURT: That's precisely why there was a different limiting instruction for Annie than there was for Kate. MR. EVERDELL: Well, your Honor, I would dispute the facts a little bit there, because they said that Carolyn's testimony was that she was invited to travel to the island. She was not invited to travel anywhere; she specifically testified she was given an invitation to the island. That's not travel to New York. And her mother said she couldn't be able to go. So I don't think that is evidence -- if the object SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016936 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 11 of 95 2749 LCI1MAX1 of the conspiracy is to violate New York law, then an invitation to an island that's not New York doesn't count. And also, an invitation to travel to New Mexico to do whatever it is they were planning on doing in New Mexico is also not a goal of violating New York law. I'm sorry, from Arizona. So there's no connection to New York law with respect to Annie's testimony either. And so whatever purpose they want to glean from those two witnesses' testimony, Kate and Annie, or even Carolyn, the object of this conspiracy, for this to be a crime, it can only be hung on the testimony, at least in the evidence in the record, the testimony of Jane. And -- THE COURT: You're doing precisely what Mr. Rohrbach said, which is you're switching back and forth between the conspiracy and the substantive count. So Annie, for example, the evidence is the conduct occurred in New Mexico. That's why I gave the limiting instruction. But that could be considered with other evidence of the conspiracy with respect to New York, the violation of New York law. You don't have to have the violation of New York law to establish the elements of the conspiracy count. So the objection is overruled. Next. MR. EVERDELL: All right. Next is line 13, your Honor, same page. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014315 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 11 of 95 2749 LCI1MAX1 1 of the conspiracy is to violate New York law, then an 2 invitation to an island that's not New York doesn't count. 3 And also, an invitation to travel to New Mexico to do 4 whatever it is they were planning on doing in New Mexico is 5 also not a goal of violating New York law. I'm sorry, from 6 Arizona. So there's no connection to New York law with respect 7 to Annie's testimony either. 8 And so whatever purpose they want to glean from those 9 two witnesses' testimony, Kate and Annie, or even Carolyn, the 10 object of this conspiracy, for this to be a crime, it can only 11 be hung on the testimony, at least in the evidence in the 12 record, the testimony of Jane. And -- 13 THE COURT: You're doing precisely what Mr. Rohrbach 14 said, which is you're switching back and forth between the 15 conspiracy and the substantive count. So Annie, for example, 16 the evidence is the conduct occurred in New Mexico. That's why 17 I gave the limiting instruction. But that could be considered 18 with other evidence of the conspiracy with respect to New York, 19 the violation of New York law. You don't have to have the 20 violation of New York law to establish the elements of the 21 conspiracy count. 22 So the objection is overruled. 23 Next. 24 MR. EVERDELL: All right. Next is line 13, your 25 Honor, same page. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016937 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 12 of 95 2750 LCI1MAX1 1 THE COURT: Okay. 2 MR. EVERDELL: We would add, the last sentence, "Count Two relates solely to Jane and the time period 1994 to 1997." 3 THE COURT: Okay. Mr. Rohrbach? 4 MR. ROHRBACH: I think that's redundant, but the government is fine with that. 5 THE COURT: Okay. Page 15, line 13, adding "solely" between "Count Two" and "relates." No, I'm sorry. Between "relates" and the word "to." So the sentence will read, "Count Two relates solely to Jane." 6 Next. 7 MR. EVERDELL: Yes, your Honor. Same page, line 15. This is on Count Three. 8 I'll just go back to line 14. Count "Three of the indictment charges the defendant with conspiring with others to transport an individual," and we would add "under the age of 18," "in interstate commerce," because we've eliminated "and foreign." 9 THE COURT: Mr. Rohrbach. 10 MR. ROHRBACH: I believe that the elements that the Court has set forth for that count is an individual under the age of 17. 11 MR. EVERDELL: I'm sorry. 12 MR. ROHRBACH: Is that -- 13 THE COURT: We've adopted the Sand suggestion. 14 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 DOJ-OGR-00014316 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 12 of 95 LCI1MAX1 1 THE COURT: Okay. 2 MR. EVERDELL: We would add, the last sentence, "Count Two relates solely to Jane and the time period 1994 to 1997." 3 THE COURT: Okay. Mr. Rohrbach? 4 MR. ROHRBACH: I think that's redundant, but the government is fine with that. 5 THE COURT: Okay. Page 15, line 13, adding "solely" between "Count Two" and "relates." No, I'm sorry. Between "relates" and the word "to." So the sentence will read, "Count Two relates solely to Jane." 6 Next. 7 MR. EVERDELL: Yes, your Honor. Same page, line 15. This is on Count Three. 8 I'll just go back to line 14. Count "Three of the indictment charges the defendant with conspiring with others to transport an individual," and we would add "under the age of 18," "in interstate commerce," because we've eliminated "and foreign." 9 THE COURT: Mr. Rohrbach. 10 MR. ROHRBACH: I believe that the elements that the Court has set forth for that count is an individual under the age of 17. 11 MR. EVERDELL: I'm sorry. 12 MR. ROHRBACH: Is that -- 13 THE COURT: We've adopted the Sand suggestion. 14 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 13 of 95 2751 LCI1MAX1 1 MR. EVERDELL: Right. 2 THE COURT: So just rather than give the jury two elements with two different ages, which I think makes sense. 3 But so then the suggestion is "to transport an individual under the age of 17." 4 " 5 MR. EVERDELL: Yes, your Honor. 6 THE COURT: Mr. Rohrbach? 7 MR. ROHRBACH: The government agrees that that's an element of the offense. There is no reason to incorporate all of the elements into the summary. 8 THE COURT: Well, he's not asking all. He's just asking this one. So -- 9 MR. ROHRBACH: That's fine, your Honor, although the government would note that that creates an asymmetry between Counts One and Three, so we think it should be in both or neither. 10 THE COURT: All right. 11 MR. EVERDELL: Well, it's not an element of the offense in Count One. I add it there because it says "an individual" and "an individual" seems sort of vague. I mean, there's testimony about lots of individuals traveling, and transporting here and there. We just wanted to make it clear to the jury that we're talking about individuals under the age of 17 rather than all these people on the flight logs that we saw who we have no evidence of their ages. 12 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014317 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 13 of 95 2751 LCI1MAX1 1 MR. EVERDELL: Right. 2 THE COURT: So just rather than give the jury two elements with two different ages, which I think makes sense. 3 But so then the suggestion is "to transport an individual under the age of 17." 4 MR. EVERDELL: Yes, your Honor. 5 THE COURT: Mr. Rohrbach? 6 MR. ROHRBACH: The government agrees that that's an element of the offense. There is no reason to incorporate all of the elements into the summary. 7 THE COURT: Well, he's not asking all. He's just asking this one. So -- 8 MR. ROHRBACH: That's fine, your Honor, although the government would note that that creates an asymmetry between Counts One and Three, so we think it should be in both or neither. 9 THE COURT: All right. 10 MR. EVERDELL: Well, it's not an element of the offense in Count One. I add it there because it says "an individual" and "an individual" seems sort of vague. I mean, there's testimony about lots of individuals traveling, and transporting here and there. We just wanted to make it clear to the jury that we're talking about individuals under the age of 17 rather than all these people on the flight logs that we saw who we have no evidence of their ages. 11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 DOJ-OGR-00016939 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 14 of 95 2752 LCI1MAX1 1 MR. ROHRBACH: If this is the defense's preference, 2 your Honor, the government is fine with it. 3 THE COURT: Okay. I'll accept that request. Page 15, 4 line 15, after the word "individual," adding "under the age of 5 17." 6 Next? 7 MR. EVERDELL: Yeah. And then similar request: line 8 18, after the word "individual," add "under the age of 17." 9 THE COURT: Mr. Rohrbach? 10 MR. ROHRBACH: No objection. 11 THE COURT: Okay. Making that same change, page 15, 12 line 18, after "individual," adding "under the age of 17." 13 Let me just give my law clerk a moment to get it 14 entered. 15 Okay. 16 MR. EVERDELL: And then line 20, it's a similar -- 17 THE COURT: Hang on. Hang on. Let me just read that 18 full sentence for clarity. 19 So page 15, line 18, first sentence of the paragraph, 20 "Count Four of the indictment charges the defendant with 21 transporting an individual under the age of 17 in interstate 22 commerce." 23 MR. EVERDELL: Yes, your Honor. 24 THE COURT: Go ahead. 25 MR. EVERDELL: Next line, line 20, similar to what we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014318 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 14 of 95 LCI1MAX1 2752 1 MR. ROHRBACH: If this is the defense's preference, 2 your Honor, the government is fine with it. 3 THE COURT: Okay. I'll accept that request. Page 15, 4 line 15, after the word "individual," adding "under the age of 5 17." 6 Next? 7 MR. EVERDELL: Yeah. And then similar request: line 8 18, after the word "individual," add "under the age of 17." 9 THE COURT: Mr. Rohrbach? 10 MR. ROHRBACH: No objection. 11 THE COURT: Okay. Making that same change, page 15, 12 line 18, after "individual," adding "under the age of 17." 13 Let me just give my law clerk a moment to get it 14 entered. 15 Okay. 16 MR. EVERDELL: And then line 20, it's a similar -- 17 THE COURT: Hang on. Hang on. Let me just read that 18 full sentence for clarity. 19 So page 15, line 18, first sentence of the paragraph, 20 "Count Four of the indictment charges the defendant with 21 transporting an individual under the age of 17 in interstate 22 commerce." 23 MR. EVERDELL: Yes, your Honor. 24 THE COURT: Go ahead. 25 MR. EVERDELL: Next line, line 20, similar to what we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016940 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 15 of 95 2753 LCI1MAX1 1 asked for before, last sentence, "Count Four relates solely to Jane and the time period --" 2 3 THE COURT: Okay. I'll accept that. 4 5 Page 15, line 20, the sentence that begins, "Count Four," adding "solely" after "relates," so the sentence would read, "Count Four relates solely to Jane." 6 7 Okay. Next? 8 9 MR. EVERDELL: Page 16, line 2, similar request: "Count Six relates solely to Carolyn." 10 11 THE COURT: Okay. I'll accept that. 12 13 Page 16, last line, adding "solely" after "relates" and before "to Carolyn." 14 15 Okay. Next page. 16 17 MR. EVERDELL: Page 17, this is a small one, your Honor. 18 19 THE COURT: Okay. 20 21 MR. EVERDELL: Lines 2 to 3, "Each count charges the defendant," since we're using "Ms. Maxwell" in the other parts of this charge, we'll just say, "Each count charges Ms. Maxwell with a different crime." 22 23 THE COURT: All right. That's fine. 24 25 So instruction 11, page 17, line 3, changing "defendant" to "Ms. Maxwell." So the sentence reads, "Each count charges Ms. Maxwell with a different crime." 26 27 MR. EVERDELL: Your Honor, can I just have one moment. 28 29 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014319 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 15 of 95 2753 LC11MAX1 1 asked for before, last sentence, "Count Four relates solely to Jane and the time period --" 2 3 THE COURT: Okay. I'll accept that. 4 5 Page 15, line 20, the sentence that begins, "Count Four," adding "solely" after "relates," so the sentence would read, "Count Four relates solely to Jane." 6 7 Okay. Next? 8 9 MR. EVERDELL: Page 16, line 2, similar request: "Count Six relates solely to Carolyn." 10 11 THE COURT: Okay. I'll accept that. 12 13 Page 16, last line, adding "solely" after "relates" and before "to Carolyn." 14 15 Okay. Next page. 16 17 MR. EVERDELL: Page 17, this is a small one, your Honor. 18 19 THE COURT: Okay. 20 21 MR. EVERDELL: Lines 2 to 3, "Each count charges the defendant," since we're using "Ms. Maxwell" in the other parts of this charge, we'll just say, "Each count charges Ms. Maxwell with a different crime." 22 23 THE COURT: All right. That's fine. 24 25 So instruction 11, page 17, line 3, changing "defendant" to "Ms. Maxwell." So the sentence reads, "Each count charges Ms. Maxwell with a different crime." 26 27 MR. EVERDELL: Your Honor, can I just have one moment. 28 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016941 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 16 of 95 2754 LCI1MAX1 1 THE COURT: Yes. 2 MR. EVERDELL: Your Honor, I'm sorry. Could we just return to page 15. 3 THE COURT: Sure. 4 MR. EVERDELL: Line 23. 5 THE COURT: Okay 6 MR. EVERDELL: There, it says -- and it's also on the next page, but we'll get to that. It says, "Count Five of the indictment charges the defendant with conspiring to engage in sex trafficking of minors. And the word "minors" depends on jurisdiction, and it creates a lot of ambiguity because we've got allegations, especially because the time period of the conspiracy, 2001 to 2004, you know, the word "minors" is going to create an ambiguity, and it raises issues with the age of consent, because you're not a minor unless, you know -- 15 THE COURT: You want to change it to an individual under the age of 17? 16 MR. EVERDELL: Yeah, either under the age of 17 or under the age of consent. 17 MR. ROHRBACH: Well, your Honor, first, for the sex trafficking counts, the relevant age of consent is 18. 18 THE COURT: Right. Sorry. Thank you. 19 MR. EVERDELL: Yeah, actually, that's right. That's in the language of the statute itself. 20 MR. ROHRBACH: Yeah. 21 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014320 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 16 of 95 2754 LCI1MAX1 1 THE COURT: Yes. 2 MR. EVERDELL: Your Honor, I'm sorry. Could we just return to page 15. 3 4 THE COURT: Sure. 5 MR. EVERDELL: Line 23. 6 THE COURT: Okay. 7 8 MR. EVERDELL: There, it says -- and it's also on the next page, but we'll get to that. It says, "Count Five of the indictment charges the defendant with conspiring to engage in sex trafficking of minors. And the word "minors" depends on jurisdiction, and it creates a lot of ambiguity because we've got allegations, especially because the time period of the conspiracy, 2001 to 2004, you know, the word "minors" is going to create an ambiguity, and it raises issues with the age of consent, because you're not a minor unless, you know -- 9 10 11 12 13 14 15 16 THE COURT: You want to change it to an individual under the age of 17? 17 18 MR. EVERDELL: Yeah, either under the age of 17 or under the age of consent. 19 20 MR. ROHRBACH: Well, your Honor, first, for the sex trafficking counts, the relevant age of consent is 18. 21 22 THE COURT: Right. Sorry. Thank you. 23 MR. EVERDELL: Yeah, actually, that's right. That's in the language of the statute itself. 24 25 MR. ROHRBACH: Yeah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016942 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 17 of 95 2755 LCI1MAX1 1 MR. EVERDELL: So why don't we say "under the age of 18," if we could, your Honor. 2 THE COURT: Is that okay, Mr. Rohrbach? 3 MR. ROHRBACH: Since it relates to multiple individuals here, it would have to be "individuals under the age of 18," but the government would be fine with that change to avoid ambiguity. 4 THE COURT: Okay. So page 15, line 23, it will read "to engage in sex trafficking of individuals under the age of 18." Just one moment. 5 MR. EVERDELL: And your Honor, next page, it's a similar request. On line 1, we would say, "Count Six of the indictment charges the defendant with sex trafficking of individuals under the age of 18." 6 THE COURT: Okay. 7 MR. ROHRBACH: Well, your Honor, for this one, since it just relates to Carolyn, it could just be an individual, but otherwise that's fine. 8 MR. EVERDELL: An individual under the age of 18. 9 THE COURT: That's right. All right. So we'll change page 16, line 1 to read, "Count Six of the indictment charges the defendant with sex trafficking of an individual under the age of 18." 10 MR. EVERDELL: Yes, your Honor. 11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 DOJ-OGR-00014321 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 17 of 95 LCI1MAX1 1 MR. EVERDELL: So why don't we say "under the age of 18," if we could, your Honor. 2 THE COURT: Is that okay, Mr. Rohrbach? 3 MR. ROHRBACH: Since it relates to multiple individuals here, it would have to be "individuals under the age of 18," but the government would be fine with that change to avoid ambiguity. 4 THE COURT: Okay. So page 15, line 23, it will read "to engage in sex trafficking of individuals under the age of 18." Just one moment. 5 MR. EVERDELL: And your Honor, next page, it's a similar request. On line 1, we would say, "Count Six of the indictment charges the defendant with sex trafficking of individuals under the age of 18." 6 THE COURT: Okay. 7 MR. ROHRBACH: Well, your Honor, for this one, since it just relates to Carolyn, it could just be an individual, but otherwise that's fine. 8 MR. EVERDELL: An individual under the age of 18. 9 THE COURT: That's right. All right. So we'll change page 16, line 1 to read, "Count Six of the indictment charges the defendant with sex trafficking of an individual under the age of 18." 10 MR. EVERDELL: Yes, your Honor. 11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016943 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 18 of 95 2756 LCI1MAX1 1 THE COURT: Okay. Have we made it to 17? 2 MR. EVERDELL: We've made it to 19, in fact. 3 THE COURT: 19. Wow. Progress. 4 MR. EVERDELL: Page 19 is the next one, your Honor. 5 THE COURT: Okay. Go ahead. 6 MR. EVERDELL: First, on line 5, there's another "or foreign," which we can omit. 7 8 THE COURT: Okay. Let me just look. 9 Yeah. Okay. 10 MR. ROHRBACH: It would need to be ellipses since this is the statutory text, but that's fine with the government. 11 12 THE COURT: So we'll do, page 19, line 5, it will read, "Travel in interstate... commerce," cutting "or foreign" and replacing with the ellipses. 13 14 15 Okay. Next page. 16 MR. EVERDELL: Same page, your Honor, line 4. 17 Don't worry. I tried to be efficient about this. 18 We'll go quickly. 19 THE COURT: That's fine. 20 MR. EVERDELL: Line 4. There is the inclusion of the statutory text "or coerces," and since we don't have any evidence of coercion, our proposal would be to add -- have it read "knowingly persuades, induces, or entices... any individual." 21 22 23 24 25 THE COURT: Or in brackets. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014322 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 18 of 95 LCI1MAX1 1 THE COURT: Okay. Have we made it to 17? 2 MR. EVERDELL: We've made it to 19, in fact. 3 THE COURT: 19. Wow. Progress. 4 MR. EVERDELL: Page 19 is the next one, your Honor. 5 THE COURT: Okay. Go ahead. 6 MR. EVERDELL: First, on line 5, there's another "or foreign," which we can omit. 7 8 THE COURT: Okay. Let me just look. 9 Yeah. Okay. 10 MR. ROHRBACH: It would need to be ellipses since this is the statutory text, but that's fine with the government. 11 12 THE COURT: So we'll do, page 19, line 5, it will read, "Travel in interstate... commerce," cutting "or foreign" and replacing with the ellipses. 13 14 15 Okay. Next page. 16 MR. EVERDELL: Same page, your Honor, line 4. 17 Don't worry. I tried to be efficient about this. 18 We'll go quickly. 19 THE COURT: That's fine. 20 MR. EVERDELL: Line 4. There is the inclusion of the statutory text "or coerces," and since we don't have any evidence of coercion, our proposal would be to add -- have it read "knowingly persuades, induces, or entices... any individual." 21 22 23 24 25 THE COURT: Or in brackets. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016944 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 19 of 95 2757 LCI1MAX1 1 MR. EVERDELL: Or in brackets because it's an addition to the statutory text. 2 3 MR. ROHRBACH: Your Honor, the government does not agree with this one. The jury could conclude that the minors had been coerced for the enticement counts. There's expert testimony from Dr. Rocchio about how these relationships sort of evolved; there's testimony from Jane in the record about how, toward the end of her relationship with Mr. Epstein, she felt like she was compelled to continue answering the phone and would drop everything because she had no other choice. I think the jury could conclude that these victims were coerced. "Coercion" in this context just bears its ordinary and natural meaning, and there's no reason to delete it from the charge. 13 14 MR. EVERDELL: Well, your Honor, I agree I know we give normal meanings to these words, and coercion in my normal meaning implies some sort of force, or at least of violence or something, and there's no evidence of that in the record. 17 18 MR. ROHRBACH: It's an argument that the defense is free to make to the jury. 19 20 THE COURT: Well, what's the legal basis for the notion that coercion as used here textually requires force? 21 22 MR. EVERDELL: Your Honor, as in Sand, they just say "given the normal everyday meaning." It's not particularly helpful, but I guess that can differ by person. My normal everyday meaning of "coercion" means some sort of force being 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014323 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 19 of 95 2757 LCI1MAX1 1 MR. EVERDELL: Or in brackets because it's an addition to the statutory text. 2 MR. ROHRBACH: Your Honor, the government does not agree with this one. The jury could conclude that the minors had been coerced for the enticement counts. There's expert testimony from Dr. Rocchio about how these relationships sort of evolved; there's testimony from Jane in the record about how, toward the end of her relationship with Mr. Epstein, she felt like she was compelled to continue answering the phone and would drop everything because she had no other choice. I think the jury could conclude that these victims were coerced. "Coercion" in this context just bears its ordinary and natural meaning, and there's no reason to delete it from the charge. 3 MR. EVERDELL: Well, your Honor, I agree I know we give normal meanings to these words, and coercion in my normal meaning implies some sort of force, or at least of violence or something, and there's no evidence of that in the record. 4 MR. ROHRBACH: It's an argument that the defense is free to make to the jury. 5 THE COURT: Well, what's the legal basis for the notion that coercion as used here textually requires force? 6 MR. EVERDELL: Your Honor, as in Sand, they just say "given the normal everyday meaning." It's not particularly helpful, but I guess that can differ by person. My normal everyday meaning of "coercion" means some sort of force being 7 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 DOJ-OGR-00016945 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 20 of 95 2758 LCI1MAX1 used, and if that's not the Court's opinion, then -- THE COURT: I'm just asking if you have any legal support for that principle. MR. ROHRBACH: Your Honor, one good reason to think that coercion does not involve force is that the sex trafficking statute includes criminal activity by force, fraud, or coercion, and in that statute, "force" and "coercion" carry different meanings. THE COURT: Okay. I'm going to overrule the objection. So that will remain. Next page, Mr. Everdell. MR. EVERDELL: Yes, your Honor. Before I get to the next page, just for purposes of clarity, if the Court overrules a proposed edit, I would still note that I have that same proposal going through my changes. I just won't reiterate it. But I would like to just preserve those, preserve my suggestions, similar ones in similar charges. THE COURT: So you would repeat your request to remove "coercion" from every instance, so that is preserved. MR. EVERDELL: Correct, your Honor. All right. So we can go to page 20 now, your Honor. THE COURT: Okay. MR. EVERDELL: All right. So on this one, your Honor, I understand, we're talking about the substantive count, and I do understand that because the way the charge is organized and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014324 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 20 of 95 2758 LCI1MAX1 used, and if that's not the Court's opinion, then -- THE COURT: I'm just asking if you have any legal support for that principle. MR. ROHRBACH: Your Honor, one good reason to think that coercion does not involve force is that the sex trafficking statute includes criminal activity by force, fraud, or coercion, and in that statute, "force" and "coercion" carry different meanings. THE COURT: Okay. I'm going to overrule the objection. So that will remain. Next page, Mr. Everdell. MR. EVERDELL: Yes, your Honor. Before I get to the next page, just for purposes of clarity, if the Court overrules a proposed edit, I would still note that I have that same proposal going through my changes. I just won't reiterate it. But I would like to just preserve those, preserve my suggestions, similar ones in similar charges. THE COURT: So you would repeat your request to remove "coercion" from every instance, so that is preserved. MR. EVERDELL: Correct, your Honor. All right. So we can go to page 20 now, your Honor. THE COURT: Okay. MR. EVERDELL: All right. So on this one, your Honor, I understand, we're talking about the substantive count, and I do understand that because the way the charge is organized and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016946 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 21 of 95 2759 LCI1MAX1 the conspiracy counts come later, I think there is an attempt here to generalize the wording of the elements because it's going to be applied later to the conspiracy counts, right? But this is the substantive count, and if we look at the line 5, it says first that the defendant knowingly persuaded or induced or enticed or coerced an individual to travel in interstate commerce. The individual in the substantive count is Jane. The defense request is for it to say not "an individual," replace that with "Jane to travel in interstate commerce from Florida to New York, as alleged in the indictment." THE COURT: Mr. Rohrbach. MR. ROHRBACH: So, your Honor, I don't think the jury will be confused. Both in the summary and later on in this section, it says this relates to Jane. If the defense would like it to say it relates solely to Jane here as in the summary, that would be fine, but the Court is just laying out the elements of the offense and there's no need to put all of the factual predicates of the offense into the statement of the elements. I think here and elsewhere, the defense -- Mr. Everdell can correct me, but an issue in the parties' proposed requests to charge is whether things like the name Jane, travel to New York, the name Jeffrey Epstein should all be included in the recitation of the elements. I think the defense is getting that because it's in the "to wit" clause of the indictment, and the law is quite clear -- and I have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014325 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 21 of 95 2759 LCI1MAX1 the conspiracy counts come later, I think there is an attempt here to generalize the wording of the elements because it's going to be applied later to the conspiracy counts, right? But this is the substantive count, and if we look at the line 5, it says first that the defendant knowingly persuaded or induced or enticed or coerced an individual to travel in interstate commerce. The individual in the substantive count is Jane. The defense request is for it to say not "an individual," replace that with "Jane to travel in interstate commerce from Florida to New York, as alleged in the indictment." THE COURT: Mr. Rohrbach. MR. ROHRBACH: So, your Honor, I don't think the jury will be confused. Both in the summary and later on in this section, it says this relates to Jane. If the defense would like it to say it relates solely to Jane here as in the summary, that would be fine, but the Court is just laying out the elements of the offense and there's no need to put all of the factual predicates of the offense into the statement of the elements. I think here and elsewhere, the defense -- Mr. Everdell can correct me, but an issue in the parties' proposed requests to charge is whether things like the name Jane, travel to New York, the name Jeffrey Epstein should all be included in the recitation of the elements. I think the defense is getting that because it's in the "to wit" clause of the indictment, and the law is quite clear -- and I have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016947 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 22 of 95 2760 LCI1MAX1 authority if the Court would like -- that the fact that there are proper nouns in the "to wit" clauses does not mean the government is bound by them as elements of the offense, as long as the government is proceeding on the essential elements of the crime as charged by the grand jury. And I think there's no suggestion -- it's quite clear that the government has been trying to prove the offenses in the indictment and there's no need to include words like "travel from Florida to New York," or "Jane," to avoid any suggestion of a variance. THE COURT: Yes, I agree with that. Obviously this dispute was in the parties' proposed charge, and I balanced I think, as appropriate, including the name of the individual where a particular count applies only to them, but not otherwise restating factually in the explanation of the counts and the elements each of the factual points to be proved. So I think here, Mr. Rohrbach, you didn't disagree with substituting Jane for an individual? MR. ROHRBACH: Well, that just creates the -- the government thinks the charge is fine as it is because, in line 11, it says it relates to Jane, and the government would be fine with adding "solely to Jane," or "relates," if that's what the defense would like. I do think adding Jane in line 6 would create a problem when it's later incorporated by the conspiracy instruction. THE COURT: Okay. I agree with that. And that's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014326 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 22 of 95 2760 LCI1MAX1 authority if the Court would like -- that the fact that there are proper nouns in the "to wit" clauses does not mean the government is bound by them as elements of the offense, as long as the government is proceeding on the essential elements of the crime as charged by the grand jury. And I think there's no suggestion -- it's quite clear that the government has been trying to prove the offenses in the indictment and there's no need to include words like "travel from Florida to New York," or "Jane," to avoid any suggestion of a variance. THE COURT: Yes, I agree with that. Obviously this dispute was in the parties' proposed charge, and I balanced I think, as appropriate, including the name of the individual where a particular count applies only to them, but not otherwise restating factually in the explanation of the counts and the elements each of the factual points to be proved. So I think here, Mr. Rohrbach, you didn't disagree with substituting Jane for an individual? MR. ROHRBACH: Well, that just creates the -- the government thinks the charge is fine as it is because, in line 11, it says it relates to Jane, and the government would be fine with adding "solely to Jane," or "relates," if that's what the defense would like. I do think adding Jane in line 6 would create a problem when it's later incorporated by the conspiracy instruction. THE COURT: Okay. I agree with that. And that's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016948 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 23 of 95 2761 LCI1MAX1 1 usefulness of line 11, which states expressly Count Two, and 2 I'll add, "Count Two relates solely to Jane during the time period 1994 to 1997," for the reason indicated. Because the 3 conspiracy count requires looking back to the substantive count 4 for the object of the conspiracy. 5 6 I won't adopt the requested change within the 7 statement of the elements. 8 9 Anything else on page 20? 10 MR. EVERDELL: With the addition of solely, your Honor, on line 11, there is just, on line 7, another "or foreign" that we need to omit. 11 12 THE COURT: Okay. Thank you. So from the second element, page 20, line 7, the sentence that begins with 13 "Second," cutting "or foreign." Okay. 14 15 MR. EVERDELL: Page 21, your Honor. On line 4, I'll just reiterate, I understand this has been overruled by the 16 Court but we would propose replacing "an individual" with the 17 word "Jane." On line 5, there is "or foreign," which should be 18 omitted. 19 20 THE COURT: Thank you. Page 21, line 5, "to travel in interstate commerce," cutting "or foreign." 21 22 Okay. 23 MR. EVERDELL: On line 6 we would just reiterate our 24 objection to the word "coerced." I understand that's been 25 overruled. But then, your Honor, generally I would say the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014327 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 23 of 95 LCI1MAX1 1 usefulness of line 11, which states expressly Count Two, and 2 I'll add, "Count Two relates solely to Jane during the time period 1994 to 1997," for the reason indicated. Because the conspiracy count requires looking back to the substantive count for the object of the conspiracy. 3 4 5 6 I won't adopt the requested change within the statement of the elements. 7 8 Anything else on page 20? 9 10 MR. EVERDELL: With the addition of solely, your Honor, on line 11, there is just, on line 7, another "or foreign" that we need to omit. 11 12 THE COURT: Okay. Thank you. So from the second element, page 20, line 7, the sentence that begins with 13 "Second," cutting "or foreign." Okay. 14 15 MR. EVERDELL: Page 21, your Honor. On line 4, I'll just reiterate, I understand this has been overruled by the Court but we would propose replacing "an individual" with the word "Jane." On line 5, there is "or foreign," which should be omitted. 16 17 18 19 THE COURT: Thank you. Page 21, line 5, "to travel in interstate commerce," cutting "or foreign." 20 21 22 Okay. 23 MR. EVERDELL: On line 6 we would just reiterate our objection to the word "coerced." I understand that's been overruled. But then, your Honor, generally I would say the 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016949 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 24 of 95 2762 LCI1MAX1 word "coerced" we would like to remove. We understand that's been overruled by the Court. Okay. But there is some additional language we would propose at the end of line 6, and this is something that I raised I think in a letter submission in -- or not in a letter -- orally at the Rule 29 argument. It's based on U.S. v. Broxmeyer, which, as I argued to the Court at the Rule 29 argument, the words "persuade," "induce," and "entice" are words of causation and they need to cause an effect, and so what we would propose after the sentence, "The terms 'persuaded,' 'induced,' 'enticed,' and 'coerced' have their ordinary, everyday meanings," we would propose adding the following language: "This element is satisfied only if the 'persuasion,' 'inducement,' or 'enticement' caused Jane to travel in interstate commerce as alleged in the indictment." We're basing that on U.S. v. Broxmeyer, interpreting those words from a different but related statute. THE COURT: Give me one moment. MR. EVERDELL: I have a copy of Broxmeyer, your Honor, if you'd like to see it. THE COURT: Sure. I'll take it. MR. EVERDELL: Your Honor, I believe it's on page 125 of the opinion. THE COURT: Okay. The relevant language. MR. ROHRBACH: Your Honor, this is not just a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014328 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 24 of 95 LCI1MAX1 1 word "coerced" we would like to remove. We understand that's 2 been overruled by the Court. 3 Okay. But there is some additional language we would 4 propose at the end of line 6, and this is something that I 5 raised I think in a letter submission in -- or not in a 6 letter -- orally at the Rule 29 argument. It's based on U.S. 7 v. Broxmeyer, which, as I argued to the Court at the Rule 29 8 argument, the words "persuade," "induce," and "entice" are 9 words of causation and they need to cause an effect, and so 10 what we would propose after the sentence, "The terms 11 'persuaded,' 'induced,' 'enticed,' and 'coerced' have their 12 ordinary, everyday meanings," we would propose adding the 13 following language: "This element is satisfied only if the 14 'persuasion,' 'inducement,' or 'enticement' caused Jane to 15 travel in interstate commerce as alleged in the indictment." 16 We're basing that on U.S. v. Broxmeyer, interpreting those 17 words from a different but related statute. 18 THE COURT: Give me one moment. 19 MR. EVERDELL: I have a copy of Broxmeyer, your Honor, 20 if you'd like to see it. 21 THE COURT: Sure. I'll take it. 22 MR. EVERDELL: Your Honor, I believe it's on page 125 23 of the opinion. 24 THE COURT: Okay. The relevant language. 25 MR. ROHRBACH: Your Honor, this is not just a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016950 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 25 of 95 2763 LCI1MAX1 different statute, it's quite a different statute. It's the production of child pornography statute. And also, the question in Broxmeyer was somewhat different. It was a sufficiency of the evidence question about whether the government's evidence showed that the persuasion or inducement occurred before the production of the child pornography, and so that's -- I don't think that this case stands for a particular, like, form of causal nexus that's required between "persuasion," "inducement," or "coercion" and the travel itself. I think the jury will be confused by an instruction along those lines because it suggests that some amount of causation is required above the inherent causation in the statutory terms of inducement or enticement. Those are words of causation, but they are sort of words of causation in the plain and ordinary sense and not in any greater or more significant sense that I think a further instruction on that point would suggest. MR. EVERDELL: Your Honor, if I could just respond. I don't think this is heightening the level of proof. I think this is simply -- the opinion is simply explaining what is required by those words, "persuasion," "inducement," "enticement," and those words are the exact same words that are used in the statute, so I don't think the context of the case really matters in terms of what those words mean. There may be some inherent causation built into these words, but this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014329 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 25 of 95 2763 LCI1MAX1 different statute, it's quite a different statute. It's the production of child pornography statute. And also, the question in Broxmeyer was somewhat different. It was a sufficiency of the evidence question about whether the government's evidence showed that the persuasion or inducement occurred before the production of the child pornography, and so that's -- I don't think that this case stands for a particular, like, form of causal nexus that's required between "persuasion," "inducement," or "coercion" and the travel itself. I think the jury will be confused by an instruction along those lines because it suggests that some amount of causation is required above the inherent causation in the statutory terms of inducement or enticement. Those are words of causation, but they are sort of words of causation in the plain and ordinary sense and not in any greater or more significant sense that I think a further instruction on that point would suggest. MR. EVERDELL: Your Honor, if I could just respond. I don't think this is heightening the level of proof. I think this is simply -- the opinion is simply explaining what is required by those words, "persuasion," "inducement," "enticement," and those words are the exact same words that are used in the statute, so I don't think the context of the case really matters in terms of what those words mean. There may be some inherent causation built into these words, but this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016951 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 26 of 95 2764 LCI1MAX1 explaining the fact that that causation needs to exist. In case there's any doubt in the minds of the jurors, there does need to be causation. There has to be an effect from the inducement, the persuasion, the enticement. MR. ROHRBACH: First there has to be some sort of causal relationship. That's what the word "inducement" means, for example, as a form of a causal relationship. I'm certainly not aware of any case or treatise that provided this instruction. Maybe perhaps defense counsel is. But, you know, the fact that it is in Broxmeyer does not mean it's appropriate to give a further and more specific instruction about causation than is already inherent in the ordinary meaning of these words. THE COURT: Just so I have my head around it, the specific suggestion was what, Mr. Everdell? MR. EVERDELL: "This element is satisfied only if the persuasion, inducement, or enticement caused Jane," or we can say "caused the individual," "to travel in interstate commerce as alleged in the indictment." MR. ROHRBACH: The problem, your Honor, is that to the extent that those words already mean to cause, inducement has a causal meaning, persuasion has a causal meaning. It's already in the instruction. And to say, you can only satisfy those words if she caused the travel suggests that there are two requirements -- there's the requirement that the defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 26 of 95 2764 LCI1MAX1 explaining the fact that that causation needs to exist. In case there's any doubt in the minds of the jurors, there does need to be causation. There has to be an effect from the inducement, the persuasion, the enticement. MR. ROHRBACH: First there has to be some sort of causal relationship. That's what the word "inducement" means, for example, as a form of a causal relationship. I'm certainly not aware of any case or treatise that provided this instruction. Maybe perhaps defense counsel is. But, you know, the fact that it is in Broxmeyer does not mean it's appropriate to give a further and more specific instruction about causation than is already inherent in the ordinary meaning of these words. THE COURT: Just so I have my head around it, the specific suggestion was what, Mr. Everdell? MR. EVERDELL: "This element is satisfied only if the persuasion, inducement, or enticement caused Jane," or we can say "caused the individual," "to travel in interstate commerce as alleged in the indictment." MR. ROHRBACH: The problem, your Honor, is that to the extent that those words already mean to cause, inducement has a causal meaning, persuasion has a causal meaning. It's already in the instruction. And to say, you can only satisfy those words if she caused the travel suggests that there are two requirements -- there's the requirement that the defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016952 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 27 of 95 2765 LCI1MAX1 induced the travel, and a separate requirement that she caused the travel. And there's no causal obligation or causal requirement in the statute above and beyond the persuasion, inducement type causal requirement. MR. EVERDELL: I mean, your Honor, if the objection is to the preamble by saying "This element is satisfied only if," we could modify that a bit, if the government's saying that is too strong, but the guts of the suggestion is that the persuasion, inducement, or enticement must have caused the individual to travel in interstate commerce, as alleged in the indictment. THE COURT: I mean, I've seen this charge in a variety of cases. I've never seen that language. This decision is 2010. Have you ever seen it in a charge? MR. EVERDELL: I can't say that I have, your Honor. But it is interpreting the very words of the statute that are at issue here, and I don't think this is the way that -- the proposal I'm proposing is not trying to belabor the point, but it is trying to raise the issue of causation. THE COURT: I mean, the opinion includes further definition of the words that are subject to the ordinary meaning, the paragraph above that you point to. MR. EVERDELL: Your Honor, I'll add that it is possible to be persuaded, induced or enticed, and then not actually travel. I mean, the persuasion does have to cause the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014331 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 27 of 95 LCI1MAX1 2765 induced the travel, and a separate requirement that she caused the travel. And there's no causal obligation or causal requirement in the statute above and beyond the persuasion, inducement type causal requirement. MR. EVERDELL: I mean, your Honor, if the objection is to the preamble by saying "This element is satisfied only if," we could modify that a bit, if the government's saying that is too strong, but the guts of the suggestion is that the persuasion, inducement, or enticement must have caused the individual to travel in interstate commerce, as alleged in the indictment. THE COURT: I mean, I've seen this charge in a variety of cases. I've never seen that language. This decision is 2010. Have you ever seen it in a charge? MR. EVERDELL: I can't say that I have, your Honor. But it is interpreting the very words of the statute that are at issue here, and I don't think this is the way that -- the proposal I'm proposing is not trying to belabor the point, but it is trying to raise the issue of causation. THE COURT: I mean, the opinion includes further definition of the words that are subject to the ordinary meaning, the paragraph above that you point to. MR. EVERDELL: Your Honor, I'll add that it is possible to be persuaded, induced or enticed, and then not actually travel. I mean, the persuasion does have to cause the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016953 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 28 of 95 2766 LCI1MAX1 travel, so that there has to be a causation, some effect of the persuasion. MR. ROHRBACH: Well, the instructions say that there has to be persuasion and inducement or enticement to travel, and the individual has to actually travel. Those concepts are all already captured in the instruction. These instructions for this element are just -- or this offense are quite standard that are in the Court's jury charge. THE COURT: Yeah, I think that's right. It seems to me -- well, one, it's a standard charge for this provision; two, it's accurate; three, adding -- I mean, it seems to me that the basic suggestion applies additional causation beyond what's required by the ordinary meaning, and I don't see a basis for that. So I will overrule the request. What's next? MR. EVERDELL: One moment, your Honor? THE COURT: Yes. MR. EVERDELL: Your Honor, next request is at page 23. THE COURT: Okay. MR. EVERDELL: This is at line 15 through 22, which is the instruction on significant or motivating purpose -- THE COURT: Yes. MR. EVERDELL: -- which was a suggestion from the defense, and we appreciate the Court's inclusion. THE COURT: Well, I think you'd suggested significant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014332 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 28 of 95 2766 LCI1MAX1 travel, so that there has to be a causation, some effect of the persuasion. MR. ROHRBACH: Well, the instructions say that there has to be persuasion and inducement or enticement to travel, and the individual has to actually travel. Those concepts are all already captured in the instruction. These instructions for this element are just -- or this offense are quite standard that are in the Court's jury charge. THE COURT: Yeah, I think that's right. It seems to me -- well, one, it's a standard charge for this provision; two, it's accurate; three, adding -- I mean, it seems to me that the basic suggestion applies additional causation beyond what's required by the ordinary meaning, and I don't see a basis for that. So I will overrule the request. What's next? MR. EVERDELL: One moment, your Honor? THE COURT: Yes. MR. EVERDELL: Your Honor, next request is at page 23. THE COURT: Okay. MR. EVERDELL: This is at line 15 through 22, which is the instruction on significant or motivating purpose -- THE COURT: Yes. MR. EVERDELL: -- which was a suggestion from the defense, and we appreciate the Court's inclusion. THE COURT: Well, I think you'd suggested significant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016954 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 29 of 95 2767 LCI1MAX1 and, if I'm remembering correctly -- MR. EVERDELL: Yes, your Honor. That may be true. THE COURT: Yes. Go ahead. MR. EVERDELL: So we have found a different instruction on this point which we would ask the Court to consider, and it comes from United States v. Miller, and I can hand that up to the Court and the government. THE COURT: Just to be clear, I adopted your suggestion and now you're asking me to do something different. MR. EVERDELL: Well, it is true, your Honor, and I will keep what I have, if this is objectionable to the Court. But we only found this one as we were looking through with respect to the charge. THE COURT: It happens. Just give me a moment to get to my notes on this one. MR. EVERDELL: Your Honor, I can give a typewritten proposed instruction. Page 211 of the opinion is the instruction that was given by Judge Rakoff. THE COURT: And what's the charge in the Miller case? MR. EVERDELL: Well, your Honor, Miller was found guilty of 2422 and 2423, the same statutes we're talking about. THE COURT: Okay. So the proposal is, in order to establish the element, the government must prove that it was part of Ms. Maxwell's conscious purpose in having Jane travel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014333 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 29 of 95 2767 LCI1MAX1 and, if I'm remembering correctly -- MR. EVERDELL: Yes, your Honor. That may be true. THE COURT: Yes. Go ahead. MR. EVERDELL: So we have found a different instruction on this point which we would ask the Court to consider, and it comes from United States v. Miller, and I can hand that up to the Court and the government. THE COURT: Just to be clear, I adopted your suggestion and now you're asking me to do something different. MR. EVERDELL: Well, it is true, your Honor, and I will keep what I have, if this is objectionable to the Court. But we only found this one as we were looking through with respect to the charge. THE COURT: It happens. Just give me a moment to get to my notes on this one. MR. EVERDELL: Your Honor, I can give a typewritten proposed instruction. Page 211 of the opinion is the instruction that was given by Judge Rakoff. THE COURT: And what's the charge in the Miller case? MR. EVERDELL: Well, your Honor, Miller was found guilty of 2422 and 2423, the same statutes we're talking about. THE COURT: Okay. So the proposal is, in order to establish the element, the government must prove that it was part of Ms. Maxwell's conscious purpose in having Jane travel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016955 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 30 of 95 2768 LCI1MAX1 across state lines to have her engage in criminal sexual conduct, in violation of New York law. It need not have been her only purpose or motivation, but it must have been more than merely incidental. It must have been one of the dominant purposes of the trip. MR. ROHRBACH: Your Honor, all that the law requires is that it be one of the dominant purposes of the trip, which is the instruction that the defense originally sought and the Court gave. It's the practice, as Sand endorses, to rephrase "dominant" as "significant or motivating purpose" to avoid confusion, because it doesn't have to be the sole dominant purpose, it just has to be a dominant purpose, and so from Sand, that creates ambiguity that it has to be a sufficient -- such a big purpose that it's the dominant purpose, which is not what is required by the statute. This instruction suggests there's an additional requirement, which is that it be some sort of conscious purpose to engage in the particular criminal violation suggesting knowledge of the criminal statute and criminal prohibition. All the Miller case does is affirm that this instruction is not error. It does not say that that is the required instruction by -- at least as I'm reading the -- I'm reading the Miller case for the first time now, but it is an appeal from a conviction on that instruction. It is not suggesting that it's required by -- THE COURT: Let me look. I've only read the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014334 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 30 of 95 2768 LCI1MAX1 across state lines to have her engage in criminal sexual conduct, in violation of New York law. It need not have been her only purpose or motivation, but it must have been more than merely incidental. It must have been one of the dominant purposes of the trip. MR. ROHRBACH: Your Honor, all that the law requires is that it be one of the dominant purposes of the trip, which is the instruction that the defense originally sought and the Court gave. It's the practice, as Sand endorses, to rephrase "dominant" as "significant or motivating purpose" to avoid confusion, because it doesn't have to be the sole dominant purpose, it just has to be a dominant purpose, and so from Sand, that creates ambiguity that it has to be a sufficient -- such a big purpose that it's the dominant purpose, which is not what is required by the statute. This instruction suggests there's an additional requirement, which is that it be some sort of conscious purpose to engage in the particular criminal violation suggesting knowledge of the criminal statute and criminal prohibition. All the Miller case does is affirm that this instruction is not error. It does not say that that is the required instruction by -- at least as I'm reading the -- I'm reading the Miller case for the first time now, but it is an appeal from a conviction on that instruction. It is not suggesting that it's required by -- THE COURT: Let me look. I've only read the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016956 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 31 of 95 2769 LCI1MAX1 1 MR. ROHRBACH: I've only read portions of it too, but 2 that's my quick read. 3 THE COURT: So the defendant's argument in Miller was 4 that the prostitution or other criminal sexual activity must be 5 the dominant purpose of the interstate travel rather than only 6 one of the dominant purposes as the judge charged. 7 MR. ROHRBACH: In fact, your Honor, I think in light 8 of that conclusion, the final sentence of the defense's 9 proposed instruction would be suggestive of error because the 10 point is that -- or at least creates the very confusion that 11 arose in Miller about whether it has to be one of the dominant 12 purposes. The use of the word "dominant" is a source of 13 confusion, as Sand has explained. 14 MR. EVERDELL: Well, your Honor, on that point, the 15 language "significant or motivating purpose" is completely 16 invented by Sand, right, and now people have used it because 17 Sand is an authority in this area, but that does not -- that 18 did not come from case law. That is Sand's proposal to deal 19 with the issue of the dominant purpose versus one dominant 20 purpose. There is, however, case law in many circuits where 21 the instruction "one dominant purpose" is accepted instruction, 22 and the Miller case endorses that instruction because that was 23 the charge that was given by Judge Rakoff and they said it was 24 perfectly proper to give that charge. So I actually think 25 there is more support in the case law for the "one dominant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014335 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 31 of 95 2769 LCI1MAX1 1 MR. ROHRBACH: I've only read portions of it too, but 2 that's my quick read. 3 THE COURT: So the defendant's argument in Miller was 4 that the prostitution or other criminal sexual activity must be 5 the dominant purpose of the interstate travel rather than only 6 one of the dominant purposes as the judge charged. 7 MR. ROHRBACH: In fact, your Honor, I think in light 8 of that conclusion, the final sentence of the defense's 9 proposed instruction would be suggestive of error because the 10 point is that -- or at least creates the very confusion that 11 arose in Miller about whether it has to be one of the dominant 12 purposes. The use of the word "dominant" is a source of 13 confusion, as Sand has explained. 14 MR. EVERDELL: Well, your Honor, on that point, the 15 language "significant or motivating purpose" is completely 16 invented by Sand, right, and now people have used it because 17 Sand is an authority in this area, but that does not -- that 18 did not come from case law. That is Sand's proposal to deal 19 with the issue of the dominant purpose versus one dominant 20 purpose. There is, however, case law in many circuits where 21 the instruction "one dominant purpose" is accepted instruction, 22 and the Miller case endorses that instruction because that was 23 the charge that was given by Judge Rakoff and they said it was 24 perfectly proper to give that charge. So I actually think 25 there is more support in the case law for the "one dominant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016957 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 32 of 95 2770 LCI1MAX1 purpose" language than language that happened to have been invented by Sand. As smart as Judge Sand was, that did not actually come from any circuit case law. So we propose going with what the courts have actually said on this issue rather than a proposal in Sand. THE COURT: I'm just going to read for a moment. I think I want to start by asking what's wrong with the current instruction, the one that you proposed that I adopted? That's the one that I've seen in -- MR. EVERDELL: Well -- THE COURT: -- in charges. MR. EVERDELL: Your Honor, there's nothing wrong with it per se. It is a charge that has been used in other cases, and we proposed it, so we obviously think it's acceptable. But I think the new proposed charge is a charge that is more accurate and also tracks the case law development on this point because the dominant purpose is actually something that was in a Second Circuit opinion and it's, you know -- Judge Rakoff has tried to craft an instruction in Miller to deal with the issue of one dominant purpose versus the dominant purpose, but the way that I think the case law has developed in the Second Circuit, it started with "dominant purpose" was the language used and then we had to deal with this issue of ambiguity there, and this is how Judge Rakoff came out, but was still keeping the "dominant purpose" language but clarifying it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 32 of 95 LCI1MAX1 1 purpose" language than language that happened to have been 2 invented by Sand. As smart as Judge Sand was, that did not 3 actually come from any circuit case law. So we propose going 4 with what the courts have actually said on this issue rather 5 than a proposal in Sand. 6 THE COURT: I'm just going to read for a moment. 7 I think I want to start by asking what's wrong with 8 the current instruction, the one that you proposed that I 9 adopted? That's the one that I've seen in -- 10 MR. EVERDELL: Well -- 11 THE COURT: -- in charges. 12 MR. EVERDELL: Your Honor, there's nothing wrong with 13 it per se. It is a charge that has been used in other cases, 14 and we proposed it, so we obviously think it's acceptable. But 15 I think the new proposed charge is a charge that is more 16 accurate and also tracks the case law development on this point 17 because the dominant purpose is actually something that was in 18 a Second Circuit opinion and it's, you know -- Judge Rakoff has 19 tried to craft an instruction in Miller to deal with the issue 20 of one dominant purpose versus the dominant purpose, but the 21 way that I think the case law has developed in the Second 22 Circuit, it started with "dominant purpose" was the language 23 used and then we had to deal with this issue of ambiguity 24 there, and this is how Judge Rakoff came out, but was still 25 keeping the "dominant purpose" language but clarifying it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 33 of 95 2771 LC1MAX1 1 only one of the dominant purposes. 2 THE COURT: Let me just note my remarkably crack law 3 clerks have found the following case: United States v. An Soon 4 Kim. 5 MR. EVERDELL: Yes. 6 THE COURT: You're aware of it. 7 MR. EVERDELL: Yes. But that case -- 8 THE COURT: Just let me give the cite. 471 F. App'x 9 82 (2d Cir. 2012). Summary order, obviously, but it says a 10 couple of things. One -- ooh, I lost what my crack law clerk 11 sent there. It endorses the Sand language over "dominant." 12 "These instructions are legally sound. Neither 'dominant' nor 13 'predominant' appear in the statutory language. Although we 14 have previously approved a jury charge that included the phrase 15 "one of the dominant purposes," (see, e.g., Miller) we've never 16 required such language to appear in a jury charge on 2421. 17 Indeed, Judge Sand recommends excluding the word 'dominant' 18 from the charge so as to avoid confusion." And then at the end 19 of the opinion, "The charge given by the district court, which 20 closely tracks the charge outlined by Judge Sand, accurately 21 and thoroughly conveyed the second element of the crime. 22 Accordingly, we find no error, much less plain error, in the 23 jury charge." 24 MR. EVERDELL: Yes. So the way I read that case, your 25 Honor, is that there are two variants on how this charge has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 33 of 95 LCI1MAX1 only one of the dominant purposes. THE COURT: Let me just note my remarkably crack law clerks have found the following case: United States v. An Soon Kim. MR. EVERDELL: Yes. THE COURT: You're aware of it. MR. EVERDELL: Yes. But that case -- THE COURT: Just let me give the cite. 471 F. App'x 82 (2d Cir. 2012). Summary order, obviously, but it says a couple of things. One -- ooh, I lost what my crack law clerk sent there. It endorses the Sand language over "dominant." "These instructions are legally sound. Neither 'dominant' nor 'predominant' appear in the statutory language. Although we have previously approved a jury charge that included the phrase "one of the dominant purposes," (see, e.g., Miller) we've never required such language to appear in a jury charge on 2421. Indeed, Judge Sand recommends excluding the word 'dominant' from the charge so as to avoid confusion." And then at the end of the opinion, "The charge given by the district court, which closely tracks the charge outlined by Judge Sand, accurately and thoroughly conveyed the second element of the crime. Accordingly, we find no error, much less plain error, in the jury charge." MR. EVERDELL: Yes. So the way I read that case, your Honor, is that there are two variants on how this charge has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 34 of 95 2772 LCI1MAX1 1 been given in the Second Circuit, both of which have been 2 endorsed by the Second Circuit, neither of which is required 3 but both are permissible. 4 THE COURT: But I think what we have here is Second 5 Circuit agreeing with Sand that "dominant" can be confusing. 6 And so I will stick with your original proposal and not the 7 request to change that out now for the language adopted by 8 Judge Rakoff because it would include the -- although deemed 9 not error, it would include the "one dominant purpose" 10 language, which is potentially confusing and not moored to the 11 text of the statute. 12 What's next? 13 MR. EVERDELL: Understood, your Honor. 14 The next page, your Honor? 15 THE COURT: Yes, please. 16 MR. EVERDELL: Page 24. So this is the page where the 17 charge describes the violation of New York law. 18 THE COURT: Page? Oh, I'm sorry. I'm on my annotated 19 version. Just a second. 20 Yes. 21 MR. EVERDELL: Well, first, this one very small change 22 on line 19, if we could replace "the defendant" with 23 "Ms. Maxwell." 24 THE COURT: Okay. 25 MR. EVERDELL: But there's a larger request. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 34 of 95 LCI1MAX1 1 been given in the Second Circuit, both of which have been 2 endorsed by the Second Circuit, neither of which is required 3 but both are permissible. 4 THE COURT: But I think what we have here is Second 5 Circuit agreeing with Sand that "dominant" can be confusing. 6 And so I will stick with your original proposal and not the 7 request to change that out now for the language adopted by 8 Judge Rakoff because it would include the -- although deemed 9 not error, it would include the "one dominant purpose" 10 language, which is potentially confusing and not moored to the 11 text of the statute. 12 What's next? 13 MR. EVERDELL: Understood, your Honor. 14 The next page, your Honor? 15 THE COURT: Yes, please. 16 MR. EVERDELL: Page 24. So this is the page where the 17 charge describes the violation of New York law. 18 THE COURT: Page? Oh, I'm sorry. I'm on my annotated 19 version. Just a second. 20 Yes. 21 MR. EVERDELL: Well, first, this one very small change 22 on line 19, if we could replace "the defendant" with 23 "Ms. Maxwell." 24 THE COURT: Okay. 25 MR. EVERDELL: But there's a larger request. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 35 of 95 2773 LCI1MAX1 1 THE COURT: All right. Page 24, line 19, I'll adopt that change. So instead of "the defendant," "Ms. Maxwell." Just one moment. 2 Okay. 3 MR. EVERDELL: Okay. So the additional request is -- this is where the issue of the fact that Kate was above the age of consent and about the fact that -- well, Annie's testimony was not a violation of New York law. That's what the Court gave the limiting instruction to the jury on. We think that it is appropriate to incorporate those limiting instructions into the jury charge and that this is the place where it should be given. Because it's one thing to give the limiting instruction at the time of the testimony -- that is what we asked for and we appreciate the Court doing that -- but I think that they need to be instructed again before they go into deliberations, now having heard 12 plus days of testimony, that what those considerations -- that testimony they are allowed to consider for what purpose, because if they're given an instruction on New York law, I think it's time to reiterate in the charge to them that Kate was over the age of consent and was not involved -- it cannot be considered illegal sexual activity, because this is where the illegal sexual activity is defined. And same with Annie. I have a proposed instruction to add here, but it tracks the language of the limiting instruction the Court gave, so I don't think it's adding any language. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 35 of 95 2773 LC11MAX1 1 THE COURT: All right. Page 24, line 19, I'll adopt that change. So instead of "the defendant," "Ms. Maxwell." Just one moment. Okay. MR. EVERDELL: Okay. So the additional request is -- this is where the issue of the fact that Kate was above the age of consent and about the fact that -- well, Annie's testimony was not a violation of New York law. That's what the Court gave the limiting instruction to the jury on. We think that it is appropriate to incorporate those limiting instructions into the jury charge and that this is the place where it should be given. Because it's one thing to give the limiting instruction at the time of the testimony -- that is what we asked for and we appreciate the Court doing that -- but I think that they need to be instructed again before they go into deliberations, now having heard 12 plus days of testimony, that what those considerations -- that testimony they are allowed to consider for what purpose, because if they're given an instruction on New York law, I think it's time to reiterate in the charge to them that Kate was over the age of consent and was not involved -- it cannot be considered illegal sexual activity, because this is where the illegal sexual activity is defined. And same with Annie. I have a proposed instruction to add here, but it tracks the language of the limiting instruction the Court gave, so I don't think it's adding any language. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016961 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 36 of 95 2774 LCI1MAX1 1 can hand it up. 2 THE COURT: Sure. 3 MR. EVERDELL: And your Honor, as you consider that, 4 there is one proposed addition I just want to request to what's 5 on that page, but I want to handle that slightly separately. 6 THE COURT: The representation is these are -- 7 MR. EVERDELL: Yeah. 8 THE COURT: -- my limiting instructions given before 9 Kate and Ms. Farmer testified, and you're asking for 10 inclusion -- repetition of those limiting instructions where 11 the violation of New York criminal law is provided. 12 MR. EVERDELL: That's correct, your Honor. And we 13 would propose just putting it at the end after the discussion 14 that's already there. 15 THE COURT: Mr. Rohrbach. 16 MR. ROHRBACH: I think that among other things, your 17 Honor, I think that would be -- the instruction as you've 18 crafted it is a correct statement of New York law and the 19 relevant issues. Adding these instructions would be quite 20 confusing to the jury. The jury has already heard them. This 21 is the place where there's no reason to give the Kate 22 instruction because these jury instructions state specifically 23 that the jury may not convict based solely on overt acts that 24 relate to Kate, and so there is no risk, when these full set of 25 instructions is read to the jury, that they will think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014340 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 36 of 95 LC1MAX1 1 can hand it up. 2 THE COURT: Sure. 3 MR. EVERDELL: And your Honor, as you consider that, 4 there is one proposed addition I just want to request to what's 5 on that page, but I want to handle that slightly separately. 6 THE COURT: The representation is these are -- 7 MR. EVERDELL: Yeah. 8 THE COURT: -- my limiting instructions given before 9 Kate and Ms. Farmer testified, and you're asking for 10 inclusion -- repetition of those limiting instructions where 11 the violation of New York criminal law is provided. 12 MR. EVERDELL: That's correct, your Honor. And we 13 would propose just putting it at the end after the discussion 14 that's already there. 15 THE COURT: Mr. Rohrbach. 16 MR. ROHRBACH: I think that among other things, your 17 Honor, I think that would be -- the instruction as you've 18 crafted it is a correct statement of New York law and the 19 relevant issues. Adding these instructions would be quite 20 confusing to the jury. The jury has already heard them. This 21 is the place where there's no reason to give the Kate 22 instruction because these jury instructions state specifically 23 that the jury may not convict based solely on overt acts that 24 relate to Kate, and so there is no risk, when these full set of 25 instructions is read to the jury, that they will think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016962 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 37 of 95 2775 LCI1MAX1 they can convict based on the illegal sexual activity as it relates to Kate and as it relates to Annie. Annie only relates to the conspiracy counts, at least as to these Mann Act charges, and the jury is going to be instructed here that the relevant illegal sexual activity has to be the violation of the New York offense. So again, there's no risk that the jury will think that the sexual contact that happened in New Mexico is something that on its own is sufficient to show the illegal sexual activity required by the statute. So, here, in the full set of instructions, there's no need for an additional instruction, especially on top of the fact that the Court has already given these limiting instructions to the jury. THE COURT: All right. I agree with that. MR. EVERDELL: Well, your Honor, there's one other issue, which is the part that's not in the typewritten instruction I handed you, which is the fact that Jane testified about traveling to New Mexico at various times in her testimony. And there was I think one trip she may have said she was under the age of 16, which -- 15 or 16 I think is what she said as to that trip, which we believe is the actual legal age of consent in New Mexico; but she also testified about other travel to New Mexico, where events took place, where sexual contact took place, and so I think with respect to that, we are going to need some kind of instruction to the jury that if she's above the age of consent in New Mexico, that can't be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014341 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 37 of 95 2775 LCI1MAX1 they can convict based on the illegal sexual activity as it relates to Kate and as it relates to Annie. Annie only relates to the conspiracy counts, at least as to these Mann Act charges, and the jury is going to be instructed here that the relevant illegal sexual activity has to be the violation of the New York offense. So again, there's no risk that the jury will think that the sexual contact that happened in New Mexico is something that on its own is sufficient to show the illegal sexual activity required by the statute. So, here, in the full set of instructions, there's no need for an additional instruction, especially on top of the fact that the Court has already given these limiting instructions to the jury. THE COURT: All right. I agree with that. MR. EVERDELL: Well, your Honor, there's one other issue, which is the part that's not in the typewritten instruction I handed you, which is the fact that Jane testified about traveling to New Mexico at various times in her testimony. And there was I think one trip she may have said she was under the age of 16, which -- 15 or 16 I think is what she said as to that trip, which we believe is the actual legal age of consent in New Mexico; but she also testified about other travel to New Mexico, where events took place, where sexual contact took place, and so I think with respect to that, we are going to need some kind of instruction to the jury that if she's above the age of consent in New Mexico, that can't be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016963 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 38 of 95 2776 LCI1MAX1 1 considered illegal sexual activity for the purposes of their deliberations. It's not as charged in the indictment. We're talking about New York law, so I don't know if that was made clear to the jury. 2 3 4 5 MR. ROHRBACH: Your Honor, these instructions do not put before the jury any violation of any New Mexico offense whatsoever above or below the age of consent, so I think there's no risk that the jury is going to convict the defendant based on their concerns about a violation of a New York offense. 6 7 8 9 10 11 MR. EVERDELL: That's not really the issue about what instructions to put before the jury. The testimony put before the jury, sexual contact between Jane and Epstein in New Mexico after what we believe is the age of consent in New Mexico, and so if -- 12 13 14 15 16 THE COURT: That's why, I think, it's the same reason I gave limiting instructions as asked with respect to the testimony of Kate and Annie. I think what I'm hearing you say is, you meant to ask for a limiting instruction at that time? 17 18 19 20 MR. EVERDELL: Well, your Honor, we knew from the proffered 3500s for the other witnesses what they were planning on testifying to, so we were able to request those at the time before the witnesses testified and brief those in limine. I didn't think we -- what we knew about Jane ahead of time was that she alleged that she traveled to New Mexico but that 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014342 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 38 of 95 2776 LCI1MAX1 considered illegal sexual activity for the purposes of their deliberations. It's not as charged in the indictment. We're talking about New York law, so I don't know if that was made clear to the jury. MR. ROHRBACH: Your Honor, these instructions do not put before the jury any violation of any New Mexico offense whatsoever above or below the age of consent, so I think there's no risk that the jury is going to convict the defendant based on their concerns about a violation of a New York offense. MR. EVERDELL: That's not really the issue about what instructions to put before the jury. The testimony put before the jury, sexual contact between Jane and Epstein in New Mexico after what we believe is the age of consent in New Mexico, and so if -- THE COURT: That's why, I think, it's the same reason I gave limiting instructions as asked with respect to the testimony of Kate and Annie. I think what I'm hearing you say is, you meant to ask for a limiting instruction at that time? MR. EVERDELL: Well, your Honor, we knew from the proffered 3500s for the other witnesses what they were planning on testifying to, so we were able to request those at the time before the witnesses testified and brief those in limine. I didn't think we -- what we knew about Jane ahead of time was that she alleged that she traveled to New Mexico but that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016964 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 39 of 95 2777 LCI1MAX1 1 nothing happened on the New Mexico trips, and then I think it 2 came out in the testimony -- unless the government wants to 3 correct me if we're wrong about that, but I think that our 4 status of our knowledge was that we weren't expecting to hear 5 about testimony about sexual contact in New Mexico. But they 6 can correct me if I'm wrong about that. 7 8 MR. ROHRBACH: I believe that Jane only testified as 9 to one sexual incident of sexual abuse in New Mexico and that 10 that was reflected in the 3500 material. I think Ms. Pomerantz 11 is looking for it, but it should not have been a surprise to 12 the defense. 13 THE COURT: Yeah. I mean, the problem -- the 14 instructions are accurate. It's clear it's a violation of New 15 York law. This was the government's argument for not giving 16 the limiting instructions that I gave with respect to Annie and 17 Kate, but I did give those instructions. It sounds like maybe 18 there was an instance in which the defense might have requested 19 one following a particular piece of testimony. To add that 20 now, having not -- well, let me put it this way. Having not 21 asked for a limiting instruction then I don't think provides a 22 basis for inclusion of limiting instructions, repetition of 23 limiting instructions in the charge, and even without it, which 24 was the government's original argument, it's clear that the 25 violation of law is as charged in New York. So I'm not persuaded to include it. I'm not persuaded to include it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014343 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 39 of 95 2777 LCI1MAX1 1 nothing happened on the New Mexico trips, and then I think it 2 came out in the testimony -- unless the government wants to 3 correct me if we're wrong about that, but I think that our 4 status of our knowledge was that we weren't expecting to hear 5 about testimony about sexual contact in New Mexico. But they 6 can correct me if I'm wrong about that. 7 MR. ROHRBACH: I believe that Jane only testified as 8 to one sexual incident of sexual abuse in New Mexico and that 9 that was reflected in the 3500 material. I think Ms. Pomerantz 10 is looking for it, but it should not have been a surprise to 11 the defense. 12 THE COURT: Yeah. I mean, the problem -- the 13 instructions are accurate. It's clear it's a violation of New 14 York law. This was the government's argument for not giving 15 the limiting instructions that I gave with respect to Annie and 16 Kate, but I did give those instructions. It sounds like maybe 17 there was an instance in which the defense might have requested 18 one following a particular piece of testimony. To add that 19 now, having not -- well, let me put it this way. Having not 20 asked for a limiting instruction then I don't think provides a 21 basis for inclusion of limiting instructions, repetition of 22 limiting instructions in the charge, and even without it, which 23 was the government's original argument, it's clear that the 24 violation of law is as charged in New York. So I'm not 25 persuaded to include it. I'm not persuaded to include it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016965 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 40 of 95 2778 LCI1MAX1 1 MR. EVERDELL: Understood, your Honor. 2 Okay. Next page, your Honor? 3 THE COURT: Yes. 4 MR. EVERDELL: The next one we have is on page 26. 5 THE COURT: Okay. 6 MR. EVERDELL: We would reiterate, just for the purposes of the record, of including "Jane" as opposed to "an individual" or "the individual." That's been overruled, but we will ask that the word "solely" be included on line 12, so, "Count Four also relates solely to Jane." 11 MR. ROHRBACH: No objection. 12 THE COURT: Okay. We'll make that change. And my clerk tells me we missed an "and foreign" on page 25. 14 MR. EVERDELL: Yes, yes. So we do have to go back to page 25. So on line 5, there's an "or foreign." 16 THE COURT: So that will be with the ellipses. So page 25, line 5, "interstate... commerce..." 18 MR. EVERDELL: Yes. And there's one other thing on that page, your Honor, I forgot to mention. 20 THE COURT: Just a moment. 21 Okay. Go ahead. 22 MR. EVERDELL: Your Honor, on line 4 of that same page, 25, I know it's a quote from the statute, which does say, "knowingly transports any individual under the age of 18," but this is the issue with New York law being under the age of 17, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014344 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 40 of 95 LCI1MAX1 1 MR. EVERDELL: Understood, your Honor. 2 Okay. Next page, your Honor? 3 THE COURT: Yes. 4 MR. EVERDELL: The next one we have is on page 26. 5 THE COURT: Okay. 6 MR. EVERDELL: We would reiterate, just for the purposes of the record, of including "Jane" as opposed to "an individual" or "the individual." That's been overruled, but we will ask that the word "solely" be included on line 12, so, "Count Four also relates solely to Jane." 7 MR. ROHRBACH: No objection. 8 THE COURT: Okay. We'll make that change. And my clerk tells me we missed an "and foreign" on page 25. 9 MR. EVERDELL: Yes, yes. So we do have to go back to page 25. So on line 5, there's an "or foreign." 10 THE COURT: So that will be with the ellipses. So page 25, line 5, "interstate... commerce..." 11 MR. EVERDELL: Yes. And there's one other thing on that page, your Honor, I forgot to mention. 12 THE COURT: Just a moment. 13 Okay. Go ahead. 14 MR. EVERDELL: Your Honor, on line 4 of that same page, 25, I know it's a quote from the statute, which does say, "knowingly transports any individual under the age of 18," but this is the issue with New York law being under the age of 17, 15 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016966 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 41 of 95 2779 LCI1MAX1 which is on the next page, page 26. The third element says that the defendant knew that Jane was less than 17 years old. THE COURT: Do you want to do bracket? MR. EVERDELL: Yeah, I think we should do a bracket. THE COURT: Mr. Rohrbach? MR. ROHRBACH: That's fine. The government proposed perhaps an awkward instruction I think to perhaps explain this to the jury. This is an elegant solution. THE COURT: I spent an inordinate amount of time thinking through precisely this question, and I decided that it's best just to do this because it would just be confusing. I mean, it is a separate element, but it would just be confusing. So I think this is a good suggestion. Page 25. So we'll take out -- we'll, why don't we do this. Why don't we do "under [the age of 17 years] in interstate commerce." MR. EVERDELL: That's fine, your Honor. MR. ROHRBACH: That's fine with the government. MR. EVERDELL: That's perfectly acceptable. THE COURT: So page 25, line 4, "Any individual under [the age of 17 years] in interstate commerce." Okay. What's next? MR. EVERDELL: We covered page 26 already, so -- and on page 27, I believe there's an "or foreign" issue, so line 5. THE COURT: Yes. Page 27, line 5, deleting "or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014345 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 41 of 95 2779 LCI1MAX1 which is on the next page, page 26. The third element says that the defendant knew that Jane was less than 17 years old. THE COURT: Do you want to do bracket? MR. EVERDELL: Yeah, I think we should do a bracket. THE COURT: Mr. Rohrbach? MR. ROHRBACH: That's fine. The government proposed perhaps an awkward instruction I think to perhaps explain this to the jury. This is an elegant solution. THE COURT: I spent an inordinate amount of time thinking through precisely this question, and I decided that it's best just to do this because it would just be confusing. I mean, it is a separate element, but it would just be confusing. So I think this is a good suggestion. Page 25. So we'll take out -- we'll, why don't we do this. Why don't we do "under [the age of 17 years] in interstate commerce." MR. EVERDELL: That's fine, your Honor. MR. ROHRBACH: That's fine with the government. MR. EVERDELL: That's perfectly acceptable. THE COURT: So page 25, line 4, "Any individual under [the age of 17 years] in interstate commerce." Okay. What's next? MR. EVERDELL: We covered page 26 already, so -- and on page 27, I believe there's an "or foreign" issue, so line 5. THE COURT: Yes. Page 27, line 5, deleting "or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016967 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 42 of 95 2780 LCI1MAX1 1 foreign." 2 MR. EVERDELL: And then also on lines 7 to 8, it said, 3 "from one state to another or between the United States and a 4 foreign country," so we should eliminate "or between the United 5 States and a foreign country." 6 MR. ROHRBACH: No objection. 7 THE COURT: Okay. Page 27, lines 7 through 8 -- oh, 8 and also the sentence above has "or foreign" in the quote, so 9 we'll ellipses I guess the phrase "transport an individual in 10 interstate," cutting "or foreign," adding "... commerce." And 11 then the next line, ending the sentence after "another," so it 12 would read "from one state to another," cutting "or between the 13 United States and a foreign country." 14 MR. EVERDELL: Yes, your Honor. 15 THE COURT: Hang on one second. 16 Oh. My clerk makes a good point. We should just cut 17 "or foreign" in that quote, not do ellipses, because I'm just 18 quoting myself. 19 MR. EVERDELL: That's right. 20 THE COURT: Okay. So line 6 is just "transporting an 21 individual in interstate commerce." 22 Okay. Next. 23 MR. EVERDELL: And your Honor, I did just notice 24 something, because I always forget to focus on the titles 25 sometimes, but for Count Four, they all refer to transportation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014346 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 42 of 95 2780 LCI1MAX1 foreign." MR. EVERDELL: And then also on lines 7 to 8, it said, "from one state to another or between the United States and a foreign country," so we should eliminate "or between the United States and a foreign country." MR. ROHRBACH: No objection. THE COURT: Okay. Page 27, lines 7 through 8 -- oh, and also the sentence above has "or foreign" in the quote, so we'll ellipses I guess the phrase "transport an individual in interstate," cutting "or foreign," adding "... commerce." And then the next line, ending the sentence after "another," so it would read "from one state to another," cutting "or between the United States and a foreign country." MR. EVERDELL: Yes, your Honor. THE COURT: Hang on one second. Oh. My clerk makes a good point. We should just cut "or foreign" in that quote, not do ellipses, because I'm just quoting myself. MR. EVERDELL: That's right. THE COURT: Okay. So line 6 is just "transporting an individual in interstate commerce." Okay. Next. MR. EVERDELL: And your Honor, I did just notice something, because I always forget to focus on the titles sometimes, but for Count Four, they all refer to transportation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016968 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 43 of 95 LCI1MAX1 1 of a minor to engage in, so I think we need to change the titles for Count Four, and I can get you the pages in a second, but "transportation of an individual under 18 to engage in illegal sexual activity." 2 3 4 5 MR. ROHRBACH: That's fine, your Honor, but this actually raises a related question, which is just whether the Court sends the indictment back with the jury, since I think the indictment has the same issue. It describes some of the offenses in their captions as "of a minor." 6 7 8 9 10 THE COURT: Well, what are the parties' positions on that? 11 12 MR. ROHRBACH: The government is not seeking to send the indictment back, your Honor. 13 14 MR. VERDELL: One moment, your Honor. 15 THE COURT: Yes. 16 MR. VERDELL: Your Honor, the defense would not like that to happen. We think that the instructions advise the jury about what they need to know about the law. 17 18 19 THE COURT: You're saying you don't want to send the indictment back. 20 21 MR. VERDELL: Right. 22 THE COURT: You're in vigorous agreement. 23 MR. VERDELL: Oh, I thought we were disagreeing. 24 That's so rare. Yes, we're in agreement with that. 25 THE COURT: I don't send it back unless the parties SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 43 of 95 2781 LCI1MAX1 of a minor to engage in, so I think we need to change the titles for Count Four, and I can get you the pages in a second, but "transportation of an individual under 18 to engage in illegal sexual activity." MR. ROHRBACH: That's fine, your Honor, but this actually raises a related question, which is just whether the Court sends the indictment back with the jury, since I think the indictment has the same issue. It describes some of the offenses in their captions as "of a minor." THE COURT: Well, what are the parties' positions on that? MR. ROHRBACH: The government is not seeking to send the indictment back, your Honor. MR. EVERDELL: One moment, your Honor. THE COURT: Yes. MR. EVERDELL: Your Honor, the defense would not like that to happen. We think that the instructions advise the jury about what they need to know about the law. THE COURT: You're saying you don't want to send the indictment back. MR. EVERDELL: Right. THE COURT: You're in vigorous agreement. MR. EVERDELL: Oh, I thought we were disagreeing. That's so rare. Yes, we're in agreement with that. THE COURT: I don't send it back unless the parties SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016969 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 44 of 95 2782 LCI1MAX1 1 agree. 2 MR. ROHRBACH: That's fine, your Honor. We're in 3 agreement. How about that? So then the edit to this title is 4 fine and there's no need to make it track the indictment. 5 THE COURT: And this one -- 6 MR. EVERDELL: So, your Honor, this would apply to 7 pages 25, 26, 27 -- 8 THE COURT: Can you give me the instruction numbers, 9 because my clerk's pages are off now that we made edits. 10 MR. EVERDELL: Yes, sure. It's Instruction No. -- let 11 me get the first one. 18, 19, 20, 21, 22, and I think that's 12 it. 13 THE COURT: Okay. And the request here is? 14 MR. EVERDELL: We would change the title to 15 "Transportation of an Individual Under 18 to Engage In --" 16 MR. ROHRBACH: It would be 17. 17 MR. EVERDELL: 17, yes. 18 THE COURT: Okay. So for all of the Count Four 19 titles, we'll change "a Minor" to "an Individual Under the Age 20 of 17." 21 MR. ROHRBACH: And I'm sure the Court will likely make 22 this change automatically, but just to note that that change 23 would need to be reflected in the Table of Contents as well. 24 THE COURT: I believe that auto-populates it. I 25 wouldn't know how to do that, but I believe that's what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 44 of 95 2782 LCI1MAX1 agree. MR. ROHRBACH: That's fine, your Honor. We're in agreement. How about that? So then the edit to this title is fine and there's no need to make it track the indictment. THE COURT: And this one -- MR. EVERDELL: So, your Honor, this would apply to pages 25, 26, 27 -- THE COURT: Can you give me the instruction numbers, because my clerk's pages are off now that we made edits. MR. EVERDELL: Yes, sure. It's Instruction No. -- let me get the first one. 18, 19, 20, 21, 22, and I think that's it. THE COURT: Okay. And the request here is? MR. EVERDELL: We would change the title to "Transportation of an Individual Under 18 to Engage In --" MR. ROHRBACH: It would be 17. MR. EVERDELL: 17, yes. THE COURT: Okay. So for all of the Count Four titles, we'll change "a Minor" to "an Individual Under the Age of 17." MR. ROHRBACH: And I'm sure the Court will likely make this change automatically, but just to note that that change would need to be reflected in the Table of Contents as well. THE COURT: I believe that auto-populates it. I wouldn't know how to do that, but I believe that's what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016970 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 45 of 95 2783 LCI1MAX1 happens. But we will double-check it. Thank you. Okay. What's next, Mr. Everdell? MR. EVERDELL: Well, your Honor, just page 28, to preserve our suggestion, we would request to substitute the Miller charge. We understand that's been overruled. Lines 11 to 17. THE COURT: Okay. MR. EVERDELL: Then I think we can skip to page 32. THE COURT: That was your first one, right, Mr. Rohrbach? MR. ROHRBACH: It was, although, your Honor, we have, in the course of our conversations, resolved that, so the government has no -- our next edit, our next request, is on page 69, actually. THE COURT: Okay. Page 32, Mr. Everdell. MR. EVERDELL: Yes, still on 32 for the defense. We request on line 10, "This count relates solely to Carolyn." MR. ROHRBACH: No objection. THE COURT: Okay. Thank you. We'll make that change. Instruction No. 25, line 10, "This count relates," adding the word "solely," "to Carolyn." All right. Mr. Everdell, next page. MR. EVERDELL: One moment, your Honor. THE COURT: My clerk notes that we have "Minor" in the heading of all the Count Six -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 45 of 95 2783 LCI1MAX1 happens. But we will double-check it. Thank you. Okay. What's next, Mr. Everdell? MR. EVERDELL: Well, your Honor, just page 28, to preserve our suggestion, we would request to substitute the Miller charge. We understand that's been overruled. Lines 11 to 17. THE COURT: Okay. MR. EVERDELL: Then I think we can skip to page 32. THE COURT: That was your first one, right, Mr. Rohrbach? MR. ROHRBACH: It was, although, your Honor, we have, in the course of our conversations, resolved that, so the government has no -- our next edit, our next request, is on page 69, actually. THE COURT: Okay. Page 32, Mr. Everdell. MR. EVERDELL: Yes, still on 32 for the defense. We request on line 10, "This count relates solely to Carolyn." MR. ROHRBACH: No objection. THE COURT: Okay. Thank you. We'll make that change. Instruction No. 25, line 10, "This count relates," adding the word "solely," "to Carolyn." All right. Mr. Everdell, next page. MR. EVERDELL: One moment, your Honor. THE COURT: My clerk notes that we have "Minor" in the heading of all the Count Six -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016971 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 46 of 95 2784 LCI1MAX1 1 MR. EVERDELL: So this one, because the statute is 18, it would have to be sex trafficking of an individual under the age of 18. 2 THE COURT: I agree with that. 3 Mr. Rohrbach? 4 MR. ROHRBACH: No objection, your Honor. 5 THE COURT: Okay. So go ahead. You want to call them off, the instruction numbers for that, Mr. Everdell? 6 MR. EVERDELL: Sure, your Honor. That is Instruction Nos. -- just a minute -- 24, 25, 26, 27, 28, and 29. 7 THE COURT: Okay. So for all of those, we'll take out "a Minor" and replace with "an Individual Under the Age of 18." 8 MR. EVERDELL: Right. 9 THE COURT: Next page. 10 MR. EVERDELL: Okay. So we just dealt with page 32, which is the addition of the word "solely" on line 10? 11 THE COURT: Yes. 12 MR. EVERDELL: All right. Then on page 35, small edit. At line 13, replace "the defendant" with "Ms. Maxwell." 13 THE COURT: Okay. Page 35, line 13, replacing "the defendant" with "Ms. Maxwell." 14 MR. EVERDELL: Yeah. 15 THE COURT: Okay. 16 MR. EVERDELL: Okay. Yes. And just for clarity's sake, your Honor, we're not replacing every instance of the 17 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014350 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 46 of 95 2784 LCI1MAX1 1 MR. EVERDELL: So this one, because the statute is 18, 2 it would have to be sex trafficking of an individual under the 3 age of 18. 4 THE COURT: I agree with that. 5 Mr. Rohrbach? 6 MR. ROHRBACH: No objection, your Honor. 7 THE COURT: Okay. So go ahead. You want to call them 8 off, the instruction numbers for that, Mr. Everdell? 9 MR. EVERDELL: Sure, your Honor. That is Instruction 10 Nos. -- just a minute -- 24, 25, 26, 27, 28, and 29. 11 THE COURT: Okay. So for all of those, we'll take out 12 "a Minor" and replace with "an Individual Under the Age of 18." 13 MR. EVERDELL: Right. 14 THE COURT: Next page. 15 MR. EVERDELL: Okay. So we just dealt with page 32, 16 which is the addition of the word "solely" on line 10? 17 THE COURT: Yes. 18 MR. EVERDELL: All right. Then on page 35, small 19 edit. At line 13, replace "the defendant" with "Ms. Maxwell." 20 THE COURT: Okay. Page 35, line 13, replacing "the 21 defendant" with "Ms. Maxwell." 22 MR. EVERDELL: Yeah. 23 THE COURT: Okay. 24 MR. EVERDELL: Okay. Yes. And just for clarity's 25 sake, your Honor, we're not replacing every instance of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016972 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 47 of 95 2785 LCI1MAX1 1 word "defendant" with "Ms. Maxwell." We tried to pick the ones which made sense, and I understand the Court did the same. 2 3 THE COURT: I was trying to do that as well, as is typical in my charges. 4 5 MR. EVERDELL: Yes, understood. 6 So I think our next one is not until -- I'm just checking with my colleagues -- is not until page 49, but give me one minute. 7 8 THE COURT: Okay. 9 10 MR. EVERDELL: Okay. Actually, your Honor, if we go back to page 44. 11 12 THE COURT: 44? Okay. 13 MR. EVERDELL: So this is line 4. We have the word "minors" again, right? This is a discussion of the elements of 14 the conspiracy, but, "Count One charges Ms. Maxwell with participating in a conspiracy" etc., etc. "to entice minors to travel and engage in sexual activity." And there are other instances of "minors" in line 15. It's "to transport minors." 15 16 17 18 19 THE COURT: So for all of these, this would be "an individual under the age of 17." 20 21 MR. EVERDELL: Well, yes. So it's going to be line 4, line 6, line 15, and line 19. 22 23 THE COURT: Mr. Rohrbach? 24 MR. ROHRBACH: That's fine, your Honor. And I would note in the next paragraph, there is a reference to "minor," 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014351 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 47 of 95 2785 LCI1MAX1 1 word "defendant" with "Ms. Maxwell." We tried to pick the ones 2 which made sense, and I understand the Court did the same. 3 THE COURT: I was trying to do that as well, as is 4 typical in my charges. 5 MR. EVERDELL: Yes, understood. 6 So I think our next one is not until -- I'm just 7 checking with my colleagues -- is not until page 49, but give 8 me one minute. 9 THE COURT: Okay. 10 MR. EVERDELL: Okay. Actually, your Honor, if we go 11 back to page 44. 12 THE COURT: 44? Okay. 13 MR. EVERDELL: So this is line 4. We have the word 14 "minors" again, right? This is a discussion of the elements of 15 the conspiracy, but, "Count One charges Ms. Maxwell with 16 participating in a conspiracy" etc., etc. "to entice minors to 17 travel and engage in sexual activity." And there are other 18 instances of "minors" in line 15. It's "to transport minors." 19 THE COURT: So for all of these, this would be "an individual under the age of 17." 20 MR. EVERDELL: Well, yes. So it's going to be line 4, 21 line 6, line 15, and line 19. 22 23 THE COURT: Mr. Rohrbach? 24 MR. ROHRBACH: That's fine, your Honor. And I would 25 note in the next paragraph, there is a reference to "minor," SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016973 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 48 of 95 2786 LCI1MAX1 and there the change should be "under the age of 18" rather than 17, but the conforming changes make sense. THE COURT: Okay. Let me just articulate these. MR. EVERDELL: That's fine. THE COURT: So Instruction No. 34 on lines 4, 6, 15, and 19, we're going to replace "minors" with "individuals under the age of 17." MR. EVERDELL: And there's one on line 10 as well, your Honor. MR. ROHRBACH: As well as line 13, your Honor. THE COURT: Come on. The clerks are good, but, you know, it's Saturday, after all. We'll do a search and replace also, but I think it is worth doing, since some of them are under 17 and some are under 18. MR. EVERDELL: That's right, your Honor. THE COURT: Okay. So let me just repeat. So Instruction 34, lines 4, 6, 10, 13, 15, and 19, we will replace "minors" with "individuals under the age of 17." MR. EVERDELL: Correct, your Honor. THE COURT: And then moving to replacing the word "minor" with "an individual under the age of 18," Mr. Everdell, that's line 24. MR. EVERDELL: Yes, your Honor. THE COURT: And what else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014352 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 48 of 95 2786 LCI1MAX1 and there the change should be "under the age of 18" rather than 17, but the conforming changes make sense. THE COURT: Okay. Let me just articulate these. MR. EVERDELL: That's fine. THE COURT: So Instruction No. 34 on lines 4, 6, 15, and 19, we're going to replace "minors" with "individuals under the age of 17." MR. EVERDELL: And there's one on line 10 as well, your Honor. MR. ROHRBACH: As well as line 13, your Honor. THE COURT: Come on. The clerks are good, but, you know, it's Saturday, after all. We'll do a search and replace also, but I think it is worth doing, since some of them are under 17 and some are under 18. MR. EVERDELL: That's right, your Honor. THE COURT: Okay. So let me just repeat. So Instruction 34, lines 4, 6, 10, 13, 15, and 19, we will replace "minors" with "individuals under the age of 17." MR. EVERDELL: Correct, your Honor. THE COURT: And then moving to replacing the word "minor" with "an individual under the age of 18," Mr. Everdell, that's line 24. MR. EVERDELL: Yes, your Honor. THE COURT: And what else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016974 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 49 of 95 2787 LCI1MAX1 1 MR. EVERDELL: And then the next page, page 45, 2 line 1, there's the word "minor," which would be "an individual 3 under the age of 18." 4 MR. ROHRBACH: Your Honor, in this paragraph, since 5 this is the conspiracy that applies to multiple minors, I think 6 it should be "individuals under the age of 18" rather than just 7 one. 8 MR. EVERDELL: That's fine. 9 THE COURT: For the second -- yeah. Right. So that 10 is important that we're doing these one at a time. So line 24, 11 it's "an individual under the age of 18." And then the next 12 page, page 45, line 1, it's -- 13 MR. ROHRBACH: I think they both should be -- 14 THE COURT: They both should be "an individual under 15 the age of --" 16 MR. ROHRBACH: I think they both should be 17 "individuals under the age of 18." 18 THE COURT: I'm sorry. You're right. They're both 19 the conspiracy. 20 MR. EVERDELL: That's right, your Honor. 21 THE COURT: Okay. I apologize. Let me start again. 22 So Instruction No. 34, line 24, "individuals under the age of 23 18," on line 24; and then the following page, line 1, same 24 change, "individuals under the age of 18"; and then same change 25 on line 3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014353 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 49 of 95 2787 1 MR. EVERDELL: And then the next page, page 45, 2 line 1, there's the word "minor," which would be "an individual 3 under the age of 18." 4 MR. ROHRBACH: Your Honor, in this paragraph, since 5 this is the conspiracy that applies to multiple minors, I think 6 it should be "individuals under the age of 18" rather than just 7 one. 8 MR. EVERDELL: That's fine. 9 THE COURT: For the second -- yeah. Right. So that 10 is important that we're doing these one at a time. So line 24, 11 it's "an individual under the age of 18." And then the next 12 page, page 45, line 1, it's -- 13 MR. ROHRBACH: I think they both should be -- 14 THE COURT: They both should be "an individual under 15 the age of --" 16 MR. ROHRBACH: I think they both should be 17 "individuals under the age of 18." 18 THE COURT: I'm sorry. You're right. They're both 19 the conspiracy. 20 MR. EVERDELL: That's right, your Honor. 21 THE COURT: Okay. I apologize. Let me start again. 22 So Instruction No. 34, line 24, "individuals under the age of 23 18," on line 24; and then the following page, line 1, same 24 change, "individuals under the age of 18"; and then same change 25 on line 3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016975 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 50 of 95 2788 LCI1MAX1 1 MR. EVERDELL: Slightly different. That would be "an individual under the age of 18," because that's the substantive count. 2 3 THE COURT: Yes. Line 3, replacing "minors" with "an --" wait. Let me just read that sentence again. 4 5 MR. ROHRBACH: I think these are all references to the conspiracy. 6 7 MR. EVERDELL: That's right. I'm sorry, your Honor. This is still talking about the conspiracy. So that one on line 3 would still be "sex trafficking of individuals under the age of 18." 8 9 THE COURT: Yes. I agree with that. 10 11 Okay. So for all of Instruction 34, all of the instances -- well, in the second paragraph -- no, I'm sorry. I won't repeat it. We got it. Page 45, line 3, "individuals under the age of 18." 12 13 Okey dokey. Next. 14 15 MR. EVERDELL: So, your Honor, now we have page 49, or instruction No. 36. It's -- 16 17 THE COURT: I'm sorry. What page? 49? 18 19 MR. EVERDELL: Page 49, Instruction 36. 20 21 THE COURT: Okay. Actually, before you start, I'll just note, there's an extra word, "Two," T-W-O, in the title. So line 1, it's just Counts One, Three, and Five, deleting the word "Two." 22 23 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 DOJ-OGR-00014354 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 50 of 95 2788 LCI1MAX1 1 MR. EVERDELL: Slightly different. That would be "an individual under the age of 18," because that's the substantive count. 2 THE COURT: Yes. Line 3, replacing "minors" with "an --" wait. Let me just read that sentence again. 3 MR. ROHRBACH: I think these are all references to the conspiracy. 4 MR. EVERDELL: That's right. I'm sorry, your Honor. This is still talking about the conspiracy. So that one on line 3 would still be "sex trafficking of individuals under the age of 18." 5 THE COURT: Yes. I agree with that. Okay. So for all of Instruction 34, all of the instances -- well, in the second paragraph -- no, I'm sorry. I won't repeat it. We got it. Page 45, line 3, "individuals under the age of 18." 6 Okey dokey. Next. 7 MR. EVERDELL: So, your Honor, now we have page 49, or instruction No. 36. It's -- 8 THE COURT: I'm sorry. What page? 49? 9 MR. EVERDELL: Page 49, Instruction 36. 10 THE COURT: Okay. Actually, before you start, I'll just note, there's an extra word, "Two," T-W-O, in the title. So line 1, it's just Counts One, Three, and Five, deleting the word "Two." 11 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 51 of 95 2789 LCI1MAX1 1 MR. EVERDELL: Oh, yeah. Agreed, your Honor. 2 MR. ROHRBACH: Yes. 3 THE COURT: What do you have, Mr. Everdell? 4 MR. EVERDELL: So this is where it gets a little complicated, your Honor. I mean, I know that in lines 11 through 22 we're listing -- and in the next page as well, we're listing out the overt acts in the indictment. We're listing them verbatim, but they're talking about ages, under the age of 18, under the age of 18, and we've already talked about how the ages are sort of different depending on the statutes. That's one issue. Right. So we might want to replace the -- instead of the ages -- and I know -- it's less of an issue because I think we've agreed that the indictment is not going back to the jurors, so they're not going to be reading the language, but maybe instead of "under the age of 18," "when Jane was under the relevant age of consent in the relevant jurisdiction," or something to that effect. 18 MR. ROHRBACH: Your Honor, if I may. I understand the concern the defense is raising. I think for Counts One and Three, since the relevant age of consent I think everyone agrees is 17, the government would be fine with saying "under the age of 17," and we'd have to say "the indictment alleges" or something like that, because it would no longer be following the text of the indictment. 24 THE COURT: Yes. I mean, we could do "alleges" or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 51 of 95 2789 1 MR. EVERDELL: Oh, yeah. Agreed, your Honor. 2 MR. ROHRBACH: Yes. 3 THE COURT: What do you have, Mr. Everdell? 4 MR. EVERDELL: So this is where it gets a little complicated, your Honor. I mean, I know that in lines 11 through 22, we're listing -- and in the next page as well, we're listing out the overt acts in the indictment. We're listing them verbatim, but they're talking about ages, under the age of 18, under the age of 18, and we've already talked about how the ages are sort of different depending on the statutes. That's one issue. Right. So we might want to replace the -- instead of the ages -- and I know -- it's less of an issue because I think we've agreed that the indictment is not going back to the jurors, so they're not going to be reading the language, but maybe instead of "under the age of 18," "when Jane was under the relevant age of consent in the relevant jurisdiction," or something to that effect. 18 MR. ROHRBACH: Your Honor, if I may. I understand the concern the defense is raising. I think for Counts One and Three, since the relevant age of consent I think everyone agrees is 17, the government would be fine with saying "under the age of 17," and we'd have to say "the indictment alleges" or something like that, because it would no longer be following the text of the indictment. 24 THE COURT: Yes. I mean, we could do "alleges" or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016977 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 52 of 95 2790 LCI1MAX1 brackets or something. So are you okay with "alleges" there, Mr. Everdell? MR. EVERDELL: Well, let me see about that. Are we talking just about the overt acts with respect to Jane or are we talking about with Annie as well? Because the overt act with respect to Annie is, she's saying she's under the age of 18, but the age of consent there is 16, so -- and Kate -- there are a few issues here, so I'll just lay them out. The instruction with Annie is, you know, there's the age of consent issue with Annie. But skipping to Kate, which is No. 4, on line 18, I don't think that should be in there at all because that invites them to base an overt act and convict the defendant based on Kate's testimony, which the Court has already instructed that the jury can't. So, I mean, if they found that this element was satisfied solely with Kate's testimony, that would be an improper conviction. So that shouldn't be included. MR. ROHRBACH: Insofar as we're no longer following the exact text of the indictment, the government would be fine with deleting the overt act relevant to Kate for the reason Mr. Everdell stated. THE COURT: Okay. All right. MR. EVERDELL: All right. So then I think we could probably say with respect to 1 and 2, which we're talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014356 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 52 of 95 2790 LCI1MAX1 1 brackets or something. 2 So are you okay with "alleges" there, Mr. Everdell? 3 MR. EVERDELL: Well, let me see about that. 4 Are we talking just about the overt acts with respect 5 to Jane or are we talking about with Annie as well? Because 6 the overt act with respect to Annie is, she's saying she's 7 under the age of 18, but the age of consent there is 16, so -- 8 and Kate -- there are a few issues here, so I'll just lay them 9 out. 10 The instruction with Annie is, you know, there's the 11 age of consent issue with Annie. But skipping to Kate, which 12 is No. 4, on line 18, I don't think that should be in there at 13 all because that invites them to base an overt act and convict 14 the defendant based on Kate's testimony, which the Court has 15 already instructed that the jury can't. So, I mean, if they 16 found that this element was satisfied solely with Kate's 17 testimony, that would be an improper conviction. So that 18 shouldn't be included. 19 MR. ROHRBACH: Insofar as we're no longer following 20 the exact text of the indictment, the government would be fine 21 with deleting the overt act relevant to Kate for the reason 22 Mr. Everdell stated. 23 THE COURT: Okay. All right. 24 MR. EVERDELL: All right. So then I think we could 25 probably say with respect to 1 and 2, which we're talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016978 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 53 of 95 2791 LCI1MAX1 1 Jane, Jane was -- we would say the indictment alleges that Jane was under the age of 17, in both 1 and 2. 2 3 THE COURT: All right. So let me just -- 4 MR. EVERDELL: Yeah. 5 THE COURT: Hang on. So this is Instruction 36, line 11. 6 7 MR. EVERDELL: Correct. 8 THE COURT: Page 49. I'm going to change "reads" to "alleges," and then line 12, we're going to say "when Jane was under the age of 17," correct? 9 10 MR. EVERDELL: That's correct. 11 12 THE COURT: So that's line 12, subbing 17 for 18. 13 And then the next instance of that is line 14. 14 15 MR. EVERDELL: Correct, your Honor. 16 THE COURT: "When Jane was under the age of 17." 17 MR. EVERDELL: Mm-hmm. 18 THE COURT: And then we get to line 16. 19 20 MR. EVERDELL: For this one, I would propose that we simply, you know, eliminate the age, if they want to keep this as an overt act and if we think it's proper for the jury to consider Annie's testimony as a potential overt act in furtherance of the conspiracy, even though the goal of the conspiracy is a violation of New York law. So my first objection is that I don't think you can actually consider Annie's testimony as the overt act if what's described there is 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014357 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 53 of 95 2791 LCI1MAX1 1 Jane, Jane was -- we would say the indictment alleges that Jane was under the age of 17, in both 1 and 2. 2 3 THE COURT: All right. So let me just -- 4 MR. EVERDELL: Yeah. 5 THE COURT: Hang on. So this is Instruction 36, line 11. 6 7 MR. EVERDELL: Correct. 8 THE COURT: Page 49. I'm going to change "reads" to "alleges," and then line 12, we're going to say "when Jane was under the age of 17," correct? 9 10 11 MR. EVERDELL: That's correct. 12 THE COURT: So that's line 12, subbing 17 for 18. 13 And then the next instance of that is line 14. 14 15 MR. EVERDELL: Correct, your Honor. 16 THE COURT: "When Jane was under the age of 17." 17 MR. EVERDELL: Mm-hmm. 18 THE COURT: And then we get to line 16. 19 20 MR. EVERDELL: For this one, I would propose that we simply, you know, eliminate the age, if they want to keep this as an overt act and if we think it's proper for the jury to consider Annie's testimony as a potential overt act in 21 22 furtherance of the conspiracy, even though the goal of the conspiracy is a violation of New York law. So my first 23 24 objection is that I don't think you can actually consider Annie's testimony as the overt act if what's described there is 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016979 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 54 of 95 2792 LC11MAX1 not the violation of New York law. So that is our objection to that. MR. ROHRBACH: Well, I think, understanding that Mr. Everdell is I think preserving the earlier objection about Annie's testimony, as far as the suggestion to resolve the redacting issue is just to remove her age from this clause, I think that would be fine and the jury can make its own conclusions about, you know, Annie's age and how it relates to the offense. THE COURT: I understand the broader suggestion, but in light of my earlier conclusion, this third overt act would read, "In or about 1996, Maxwell provided Annie with an unsolicited massage in New Mexico." MR. ROHRBACH: That's my understanding of Mr. Everdell's suggestion, and the government would be fine with that. MR. EVERDELL: And I guess to clarify, Judge, I'm understanding the Court's logic to be that the testimony of Annie about the topless massage can be considered by the jury as evidence of the conspiracy to violate New York law. THE COURT: That's right. MR. EVERDELL: Okay. And understanding that's the Court's logic and ruling, then we would -- but then we would like the redaction. We preserve our objection from before, but -- yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014358 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 54 of 95 2792 LC11MAX1 not the violation of New York law. So that is our objection to that. MR. ROHRBACH: Well, I think, understanding that Mr. Everdell is I think preserving the earlier objection about Annie's testimony, as far as the suggestion to resolve the redacting issue is just to remove her age from this clause, I think that would be fine and the jury can make its own conclusions about, you know, Annie's age and how it relates to the offense. THE COURT: I understand the broader suggestion, but in light of my earlier conclusion, this third overt act would read, "In or about 1996, Maxwell provided Annie with an unsolicited massage in New Mexico." MR. ROHRBACH: That's my understanding of Mr. Everdell's suggestion, and the government would be fine with that. MR. EVERDELL: And I guess to clarify, Judge, I'm understanding the Court's logic to be that the testimony of Annie about the topless massage can be considered by the jury as evidence of the conspiracy to violate New York law. THE COURT: That's right. MR. EVERDELL: Okay. And understanding that's the Court's logic and ruling, then we would -- but then we would like the redaction. We preserve our objection from before, but -- yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016980 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 55 of 95 LCI1MAX1 THE COURT: And again, noting that that's why I gave the limiting instruction for Annie's testimony, that's why the limiting instruction did differ from the limiting instruction for Kate, because that is the Court's legal conclusion. MR. EVERDELL: Understood, your Honor. THE COURT: So let me just make sure my clerks -- yeah. Right. My clerk has adopted the change on line 16, cutting the comma, "when Annie was under the age of 18," comma. Next. MR. EVERDELL: Your Honor, just to confirm, we are also eliminating, with the government's consent, No. 4, which refers to Kate, the overt act referring to Kate. THE COURT: Yes. So eliminating entirely the overt act on line 18 through 20. And then we'll have to change the fifth one to 4 -- MR. EVERDELL: Correct, your Honor. THE COURT: -- on line 20. And that one looks like it can stay as is with the age. MR. EVERDELL: Yes, your Honor. THE COURT: Okay. MR. ROHRBACH: Your Honor, I think that that should be -- on line 21, it should still be changed to 17, even though -- THE COURT: Because of the -- MR. ROHRBACH: Because of the legal count. It's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 55 of 95 2793 1 THE COURT: And again, noting that that's why I gave 2 the limiting instruction for Annie's testimony, that's why the 3 limiting instruction did differ from the limiting instruction 4 for Kate, because that is the Court's legal conclusion. 5 MR. EVERDELL: Understood, your Honor. 6 THE COURT: So let me just make sure my clerks -- 7 yeah. Right. My clerk has adopted the change on line 16, 8 cutting the comma, "when Annie was under the age of 18," comma. 9 Next. 10 MR. EVERDELL: Your Honor, just to confirm, we are 11 also eliminating, with the government's consent, No. 4, which 12 refers to Kate, the overt act referring to Kate. 13 THE COURT: Yes. So eliminating entirely the overt 14 act on line 18 through 20. And then we'll have to change the 15 fifth one to 4 -- 16 MR. EVERDELL: Correct, your Honor. 17 THE COURT: -- on line 20. And that one looks like it 18 can stay as is with the age. 19 MR. EVERDELL: Yes, your Honor. 20 THE COURT: Okay. 21 MR. ROHRBACH: Your Honor, I think that that should 22 be -- on line 21, it should still be changed to 17, even 23 though -- 24 THE COURT: Because of the -- 25 MR. ROHRBACH: Because of the legal count. It's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016981 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 56 of 95 2794 LCI1MAX1 conspiracy to violate the offense with the age of consent of 17, even though elsewhere Carolyn is charged with an age of consent of 18. THE COURT: I presume you have no objection? MR. EVERDELL: No objection, your Honor. THE COURT: Yes. Let me just think about that. I see. Okay. All right. So Instruction 36, line 21, changing "Carolyn was under the age of 18" to "the age of 17." Yeah, that's right. Okay. Next. MR. EVERDELL: Next one, lines, on that page, 23 to 24, and on the following page, lines 1 through 10, it tracks the same changes for the transportation charge. MR. ROHRBACH: That makes sense, I think, your Honor. THE COURT: Okay. Let me see if I can do these. Line 24, changing "age of 18" to "age of 17," and then line 2, changing "age of 18" to 17. Line 4, cutting the clause "when Annie was under the age of 18," and then cutting overt act regarding Kate at No. 4. So that's lines 6 through 8. And then line 19, changing 18 to 17. MR. EVERDELL: Correct, your Honor. MS. STERNHEIM: Judge, you would also want to change the bracketed No. 5 to No. 4. THE COURT: Thank you, Ms. Sternheim. Changing the fifth listed overt act to the fourth listed overt act. Just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014360 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 56 of 95 LCI1MAX1 1 conspiracy to violate the offense with the age of consent of 17, even though elsewhere Carolyn is charged with an age of consent of 18. 2 3 THE COURT: I presume you have no objection? 4 5 MR. EVERDELL: No objection, your Honor. 6 7 THE COURT: Yes. Let me just think about that. 8 9 I see. Okay. All right. So Instruction 36, line 21, changing "Carolyn was under the age of 18" to "the age of 17." Yeah, that's right. 10 Okay. Next. 11 12 MR. EVERDELL: Next one, lines, on that page, 23 to 24, and on the following page, lines 1 through 10, it tracks the same changes for the transportation charge. 13 14 MR. ROHRBACH: That makes sense, I think, your Honor. 15 16 THE COURT: Okay. Let me see if I can do these. Line 24, changing "age of 18" to "age of 17," and then line 2, changing "age of 18" to 17. Line 4, cutting the clause "when Annie was under the age of 18," and then cutting overt act regarding Kate at No. 4. So that's lines 6 through 8. And then line 19, changing 18 to 17. 17 18 MR. EVERDELL: Correct, your Honor. 19 20 MS. STERNHEIM: Judge, you would also want to change the bracketed No. 5 to No. 4. 21 22 THE COURT: Thank you, Ms. Sternheim. Changing the fifth listed overt act to the fourth listed overt act. Just 23 24 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 57 of 95 2795 LC11MAX1 one moment. Oh, and we'll again change, on line 23, page 49, the word "reads" to "alleges." MR. EVERDELL: Yes, your Honor. THE COURT: Okay. Next. MR. EVERDELL: Same page, page 50, your Honor, line 18, just going back, these are overt acts with respect to Count Five. THE COURT: Mm-hmm. MR. EVERDELL: The third one, which begins on line 17, between -- oh, yes. "Between in or about 2001 and in or about 2004, Epstein's employees, including at times Maxwell, sent Carolyn gifts, including lingerie, etc." I don't think there's any evidence in the record that Maxwell sent any gifts. In fact, I think the FedEx records show that it wasn't Maxwell sending anything. I don't think there's any testimony in the record that Maxwell was sending the gifts, so I think that should be excluded. MR. ROHRBACH: That's fine, your Honor. This is what the grand jury charged, but that is fine, given the state of the record. THE COURT: Okay. MR. ROHRBACH: But to be clear, the government is fine with including the clause -- cutting the clause "including at times Maxwell." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014361 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 57 of 95 2795 LCI1MAX1 one moment. Oh, and we'll again change, on line 23, page 49, the word "reads" to "alleges." MR. EVERDELL: Yes, your Honor. THE COURT: Okay. Next. MR. EVERDELL: Same page, page 50, your Honor, line 18, just going back, these are overt acts with respect to Count Five. THE COURT: Mm-hmm. MR. EVERDELL: The third one, which begins on line 17, between -- oh, yes. "Between in or about 2001 and in or about 2004, Epstein's employees, including at times Maxwell, sent Carolyn gifts, including lingerie, etc." I don't think there's any evidence in the record that Maxwell sent any gifts. In fact, I think the FedEx records show that it wasn't Maxwell sending anything. I don't think there's any testimony in the record that Maxwell was sending the gifts, so I think that should be excluded. MR. ROHRBACH: That's fine, your Honor. This is what the grand jury charged, but that is fine, given the state of the record. THE COURT: Okay. MR. ROHRBACH: But to be clear, the government is fine with including the clause -- cutting the clause "including at times Maxwell." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016983 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 58 of 95 2796 LCI1MAX1 1 THE COURT: So I think that's the request. So line 18 on my page 50, which is the second page of Instruction No. 36, we will cut comma, "including at times Maxwell," comma. 2 MR. ROHRBACH: And in light of that change, your Honor, on line 11 of that page, it should say, "The indictment alleges as follows." 3 THE COURT: Right. On line 11, changing "reads" to "alleges." 4 What's next, Mr. Everdell? 5 MR. EVERDELL: Yes, your Honor. It's on page 51, line 15. I think we've been using "Ms. Maxwell" in this charge, so we'll change on line 15 "the defendant" to "Ms. Maxwell." 6 MR. ROHRBACH: That's fine, your Honor. 7 THE COURT: Okay. So we're on Instruction No. 36. Close to the end of that, the second to last paragraph of that instruction, line 15, changing "the defendant" to "Ms. Maxwell." 8 So one question. We've taken Kate out of the overt acts. Page 51, lines 13 through 16 are no longer seem to make sense. 9 MR. EVERDELL: 51, your Honor? 10 THE COURT: Yeah. Right? 11 MR. EVERDELL: Well, I understand what you're saying with respect to reference to overt acts because she's not in 12 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 58 of 95 2796 1 THE COURT: So I think that's the request. So line 18 2 on my page 50, which is the second page of Instruction No. 36, 3 we will cut comma, "including at times Maxwell," comma. 4 MR. ROHRBACH: And in light of that change, your 5 Honor, on line 11 of that page, it should say, "The indictment 6 alleges as follows." 7 THE COURT: Right. On line 11, changing "reads" to 8 "alleges." 9 What's next, Mr. Everdell? 10 MR. EVERDELL: Yes, your Honor. It's on page 51, 11 line 15. I think we've been using "Ms. Maxwell" in this 12 charge, so we'll change on line 15 "the defendant" to 13 "Ms. Maxwell." 14 MR. ROHRBACH: That's fine, your Honor. 15 THE COURT: Okay. So we're on Instruction No. 36. 16 Close to the end of that, the second to last paragraph of that 17 instruction, line 15, changing "the defendant" to 18 "Ms. Maxwell." 19 So one question. We've taken Kate out of the overt 20 acts. Page 51, lines 13 through 16 are no longer seem to make 21 sense. 22 MR. EVERDELL: 51, your Honor? 23 THE COURT: Yeah. Right? 24 MR. EVERDELL: Well, I understand what you're saying 25 with respect to reference to overt acts because she's not in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016984 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 59 of 95 2797 LCI1MAX1 the overt acts, but I do think it's important to instruct the jury here that they can't convict solely on the basis of Kate's testimony. That I think is -- THE COURT: Right, because it's not just about what's in the indictment. MR. EVERDELL: Right. MR. ROHRBACH: That's right, your Honor. THE COURT: Okay. MS. STERNHEIM: Judge, may I just have one moment with Mr. Everdell? THE COURT: Yes, please. Actually, why don't we take a 10-minute break. MR. EVERDELL: Thank you, your Honor. MR. ROHRBACH: Thank you, your Honor. THE LAW CLERK: All rise. (Recess) (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014363 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 59 of 95 2797 LCI1MAX1 the overt acts, but I do think it's important to instruct the jury here that they can't convict solely on the basis of Kate's testimony. That I think is -- THE COURT: Right, because it's not just about what's in the indictment. MR. EVERDELL: Right. MR. ROHRBACH: That's right, your Honor. THE COURT: Okay. MS. STERNHEIM: Judge, may I just have one moment with Mr. Everdell? THE COURT: Yes, please. Actually, why don't we take a 10-minute break. MR. EVERDELL: Thank you, your Honor. MR. ROHRBACH: Thank you, your Honor. THE LAW CLERK: All rise. (Recess) (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016985 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 60 of 95 2798 LCIAMAX2ps 1 (Jury not present) 2 THE COURT: All right. Mr. Everdell. 3 MR. EVERDELL: Thank you, your Honor. The next page we have is page 54, instruction 39, the conscious avoidance instruction. Your Honor, on that, the defense objects to this being included, this instruction being included in the charge. 4 I think, as the Court is aware, to include an instruction on conscious avoidance, you have to establish two prongs. First is that the defendant has to assert some lack of specific aspect of knowledge required for conviction. I don't think we're disputing that. But the second prong is that there must be an appropriate factual predicate for the charge. And here, your Honor, the government's theory of the case and the proof that's been elicited through the testimony is that she was an active participant in all aspects of the charges. There has been testimony by all of the witnesses that she was not only participating and facilitating the sexual encounters but that she participated. So we have testimony from Jane that she was involved, that Ms. Maxwell was involved in the group sexualized massages. We had testimony from Annie that the topless massage was done by Ms. Maxwell; she rubbed the top part of her chest during the topless massage. We had testimony from Carolyn that Ms. Maxwell groped her breasts and commented upon her hips. These are all active-participant measures. 5 This is someone that's not consciously avoiding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014364 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 60 of 95 2798 LCIAMAX2ps 1 (Jury not present) 2 THE COURT: All right. Mr. Everdell. 3 MR. EVERDELL: Thank you, your Honor. The next page we have is page 54, instruction 39, the conscious avoidance instruction. Your Honor, on that, the defense objects to this being included, this instruction being included in the charge. 4 I think, as the Court is aware, to include an instruction on conscious avoidance, you have to establish two prongs. First is that the defendant has to assert some lack of specific aspect of knowledge required for conviction. I don't think we're disputing that. But the second prong is that there must be an appropriate factual predicate for the charge. And here, your Honor, the government's theory of the case and the proof that's been elicited through the testimony is that she was an active participant in all aspects of the charges. There has been testimony by all of the witnesses that she was not only participating and facilitating the sexual encounters but that she participated. So we have testimony from Jane that she was involved, that Ms. Maxwell was involved in the group sexualized massages. We had testimony from Annie that the topless massage was done by Ms. Maxwell; she rubbed the top part of her chest during the topless massage. We had testimony from Carolyn that Ms. Maxwell groped her breasts and commented upon her hips. These are all active-participant measures. 5 This is someone that's not consciously avoiding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016986 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 61 of 95 2799 LCIAMAX2ps The theory they are proceeding on is that she is an active participant. They can't have it both ways. The proof at trial that they have elicited is that she was actively involved. This seems to be here as some sort of backup option. And that's not permissible, your Honor. And I would add that, in a case like this in particular, there is a real concern that the jurors are going to look at this evidence and, given the subject matter of the case, they're going to think, well, she must have known and that's enough for me because this is conduct that really I can't countenance because it involves children. And then the conscious avoidance instruction will give them license to convict the defendant on an improper basis simply because of the nature of the subject matter. So that's an overlay, your Honor. But at the basis, it's that the proof and the theory of the charging in this case and the proof that's gone with it is that she's an active participant o, so we do not think that there is an appropriate factual predicate for this charge. MR. ROHRBACH: A few responses to that, your Honor. First of all, the witnesses testified that she was an active participant. The jury may reject their testimony that she actively participated and can still convict based on her facilitation of the various offenses, including through a conscious avoidance theory. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014365 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 61 of 95 2799 LCIAMAX2ps The theory they are proceeding on is that she is an active participant. They can't have it both ways. The proof at trial that they have elicited is that she was actively involved. This seems to be here as some sort of backup option. And that's not permissible, your Honor. And I would add that, in a case like this in particular, there is a real concern that the jurors are going to look at this evidence and, given the subject matter of the case, they're going to think, well, she must have known and that's enough for me because this is conduct that really I can't countenance because it involves children. And then the conscious avoidance instruction will give them license to convict the defendant on an improper basis simply because of the nature of the subject matter. So that's an overlay, your Honor. But at the basis, it's that the proof and the theory of the charging in this case and the proof that's gone with it is that she's an active participant o, so we do not think that there is an appropriate factual predicate for this charge. MR. ROHRBACH: A few responses to that, your Honor. First of all, the witnesses testified that she was an active participant. The jury may reject their testimony that she actively participated and can still convict based on her facilitation of the various offenses, including through a conscious avoidance theory. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016987 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 62 of 95 2800 LCIAMAX2ps Second of all, there are particular factual knowledge elements that the defense is contesting. One is her knowledge of the age of the victim. Another is her mens rea with regard to the purposes of travel. And so for those things the jury could reasonably conclude that she had sufficient -- that she was engaging in conscious avoidance as to those particular facts. So, for example, to take the knowledge of age issue, the defense has elicited testimony from several witnesses that the defendant could not, was not aware that the various victims were minors. The jury could conclude that she in fact did have that knowledge. The jury could also conclude that she consciously avoided having that knowledge. Those are both reasonable theories available for the jury for which there is an adequate factual predicate in the record, your Honor. MR. EVERDELL: Your Honor, I think this is inviting the jury, by considering the conscious avoidance charge, to convict on an improper basis that she must have known. THE COURT: Could you just respond to the specific argument, because I think you started by saying there's been no contention as to a lack of knowledge with respect to any aspect of the crimes charged. So the specific contention and the reason I had in my head to include it rather than not include it -- which, for reasons you've indicated, is a case-by-case analysis depending on what factual issues are in play. But on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014366 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 62 of 95 LCIAMAX2ps 2800 Second of all, there are particular factual knowledge elements that the defense is contesting. One is her knowledge of the age of the victim. Another is her mens rea with regard to the purposes of travel. And so for those things the jury could reasonably conclude that she had sufficient -- that she was engaging in conscious avoidance as to those particular facts. So, for example, to take the knowledge of age issue, the defense has elicited testimony from several witnesses that the defendant could not, was not aware that the various victims were minors. The jury could conclude that she in fact did have that knowledge. The jury could also conclude that she consciously avoided having that knowledge. Those are both reasonable theories available for the jury for which there is an adequate factual predicate in the record, your Honor. MR. EVERDELL: Your Honor, I think this is inviting the jury, by considering the conscious avoidance charge, to convict on an improper basis that she must have known. THE COURT: Could you just respond to the specific argument, because I think you started by saying there's been no contention as to a lack of knowledge with respect to any aspect of the crimes charged. So the specific contention and the reason I had in my head to include it rather than not include it -- which, for reasons you've indicated, is a case-by-case analysis depending on what factual issues are in play. But on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016988 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 63 of 95 2801 LCIAMAX2ps 1 the question of knowledge as to age, what's your response? Why isn't it applicable with respect to what the defense has put in issue with regard to that? 2 3 4 MR. EVERDELL: Yes, your Honor. The witnesses themselves -- sorry, your Honor. One moment. 5 6 THE COURT: Yes. 7 8 MR. PAGLIUCA: If you don't mind, your Honor, it's easier for me -- 9 10 THE COURT: Since it's Saturday, I will break my one-lawyer-per-issue rule. 11 12 MR. PAGLIUCA: I appreciate it. My recollection is the testimony from each of the four witnesses, I will call them, is that they said that they told Ms. Maxwell their age. 13 Carolyn said that she told Ms. Maxwell her age. Jane said she told Ms. Maxwell her age. Similarly, Kate said she told Ms. Maxwell her age. 14 15 So there is no "I'm not trying to find out what her age is" evidence in this case. The evidence that was elicited -- I think this is, you know, largely through Mr. Alessi. Mr. Alessi said that he only saw two people at the house that he thought were under the age of 18, and that was Ms. Roberts and Jane. I'm trying to remember everybody's names. 16 17 So that's that testimony. 18 19 I don't think there's any other testimony in the 20 21 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014367 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 63 of 95 LCIAMAX2ps 1 the question of knowledge as to age, what's your response? Why isn't it applicable with respect to what the defense has put in issue with regard to that? 2 3 4 MR. EVERDELL: Yes, your Honor. The witnesses 5 themselves -- sorry, your Honor. One moment. 6 THE COURT: Yes. 7 8 MR. PAGLIUCA: If you don't mind, your Honor, it's easier for me -- 9 10 THE COURT: Since it's Saturday, I will break my one-lawyer-per-issue rule. 11 12 MR. PAGLIUCA: I appreciate it. My recollection is the testimony from each of the four witnesses, I will call them, is that they said that they told Ms. Maxwell their age. 13 Carolyn said that she told Ms. Maxwell her age. Jane said she told Ms. Maxwell her age. Similarly, Kate said she told 14 Ms. Maxwell her age. 15 16 So there is no "I'm not trying to find out what her age is" evidence in this case. The evidence that was elicited -- I think this is, you know, largely through 17 Mr. Alessi. Mr. Alessi said that he only saw two people at the house that he thought were under the age of 18, and that was 18 Ms. Roberts and Jane. I'm trying to remember everybody's names. 19 20 So that's that testimony. 21 22 I don't think there's any other testimony in the 23 24 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016989 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 64 of 95 2802 LCIAMAX2ps record that relates to that topic. So I think that -- THE COURT: So the defense has questioned multiple witnesses on their perceptions of individual ages, of relevant individuals' ages, so that puts into question the knowledge element with respect to ages, and it's true there's testimony from each of the alleged victims as to what they told Ms. Maxwell, but of course I don't know whether the jury will accept that testimony or not, or any of those individual pieces of testimony. So it seems like having -- the question here is whether there are specific elements, knowledge elements that are in issue, either because it's what some of the evidence goes to or because the defense has made cross-points or will make arguments regarding that. I mean, I don't suppose it's the case that the defense won't -- will it not argue during closing anything with respect to whether Ms. Maxwell knew of the relevant ages? MS. STERNHEIM: May we have a moment, Judge? THE COURT: Sure. MR. PAGLIUCA: Here's the -- I'm going to try to address -- there's a larger concern. I need to break this into two pieces. THE COURT: OK. MR. PAGLIUCA: One that I view as an evidentiary issue with the indictment and the evidence in the case is that there was testimony about multiple females being at the Palm Beach SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014368 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 64 of 95 LCIAMAX2ps 2802 1 record that relates to that topic. So I think that -- 2 THE COURT: So the defense has questioned multiple 3 witnesses on their perceptions of individual ages, of relevant 4 individuals' ages, so that puts into question the knowledge 5 element with respect to ages, and it's true there's testimony 6 from each of the alleged victims as to what they told 7 Ms. Maxwell, but of course I don't know whether the jury will 8 accept that testimony or not, or any of those individual pieces 9 of testimony. So it seems like having -- the question here is 10 whether there are specific elements, knowledge elements that 11 are in issue, either because it's what some of the evidence 12 goes to or because the defense has made cross-points or will 13 make arguments regarding that. I mean, I don't suppose it's 14 the case that the defense won't -- will it not argue during 15 closing anything with respect to whether Ms. Maxwell knew of 16 the relevant ages? 17 MS. STERNHEIM: May we have a moment, Judge? 18 THE COURT: Sure. 19 MR. PAGLIUCA: Here's the -- I'm going to try to 20 address -- there's a larger concern. I need to break this into 21 two pieces. 22 THE COURT: OK. 23 MR. PAGLIUCA: One that I view as an evidentiary issue 24 with the indictment and the evidence in the case is that there 25 was testimony about multiple females being at the Palm Beach SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016990 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 65 of 95 2803 LCIAMAX2ps residence. And I think the testimony that was elicited by the defense went to what the ages of these multiple females looked like, because the inference is that there are, you know, literally hundreds of under-age women at Epstein's house. And so the testimony from Mr. Alessi was, he only saw two people that he thought looked under age, as opposed to the rest of these people. There was no testimony elicited that, you know, Ms. Maxwell did or didn't know what -- I mean, the contention is that these folks were older. Kate, for example, the contention is she wasn't under age. THE COURT: Yesterday, I think Ms. Dubin was asked how Jane appeared to her. MR. PAGLIUCA: Correct, at the office. But I also think that that's a tension here, is that Jane was older than she is saying. You know, the actual factual dispute is, Jane says she was 14, 15. We disagree. We believe it's later in time. So this is not an avoidance issue. This is a factual dispute as to how old these people actually were. With the exception of Carolyn, who says, you know, I was this age, and we say, we never, you know, had anything to do with Carolyn. That's the factual dispute. And so I think there is a legitimate argument that doesn't relate to conscious avoidance, which is, simply, there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014369 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 65 of 95 2803 LCIAMAX2ps residence. And I think the testimony that was elicited by the defense went to what the ages of these multiple females looked like, because the inference is that there are, you know, literally hundreds of under-age women at Epstein's house. And so the testimony from Mr. Alessi was, he only saw two people that he thought looked under age, as opposed to the rest of these people. There was no testimony elicited that, you know, Ms. Maxwell did or didn't know what -- I mean, the contention is that these folks were older. Kate, for example, the contention is she wasn't under age. THE COURT: Yesterday, I think Ms. Dubin was asked how Jane appeared to her. MR. PAGLIUCA: Correct, at the office. But I also think that that's a tension here, is that Jane was older than she is saying. You know, the actual factual dispute is, Jane says she was 14, 15. We disagree. We believe it's later in time. So this is not an avoidance issue. This is a factual dispute as to how old these people actually were. With the exception of Carolyn, who says, you know, I was this age, and we say, we never, you know, had anything to do with Carolyn. That's the factual dispute. And so I think there is a legitimate argument that doesn't relate to conscious avoidance, which is, simply, there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016991 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 66 of 95 2804 LCIAMAX2ps were lots of women there and, you know, there are many -- no one -- no one observed women that they thought were under age. But it's not -- I don't believe there is going to be an argument, Ms. Maxwell is not guilty because she couldn't have known that these four people were whatever age they are. I think the argument is going to be, they weren't that age. That's what I think the defense's position is here, your Honor, not, you know, gee, Mr. Epstein slipped in a couple of teenagers on me here. MR. ROHRBACH: Your Honor, unless the defense is stipulating that Ms. Maxwell knew the ages of these victims, and it's an open issue. The defense has elicited from Larry Visoski, Kimberly Espinosa, the appearance of the victims. They elicited from Carolyn that she was told not to tell -- or told to tell people at the house that she was 17 or 18, when she was younger than that. So the evidence that's been elicited certainly puts the defendant's knowledge of the victims' age at issue. THE COURT: Yes. There are two issues. There's the first question, what age were they. And you contest that. But then there's the second question of, let's assume the jury concludes that they were under the age of 17, then there is the question of Ms. Maxwell's knowledge, and that seems to me to have been put in issue through argument and -- through openings and questions asked on cross. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014370 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 66 of 95 2804 LCIAMAX2ps were lots of women there and, you know, there are many -- no one -- no one observed women that they thought were under age. But it's not -- I don't believe there is going to be an argument, Ms. Maxwell is not guilty because she couldn't have known that these four people were whatever age they are. I think the argument is going to be, they weren't that age. That's what I think the defense's position is here, your Honor, not, you know, gee, Mr. Epstein slipped in a couple of teenagers on me here. MR. ROHRBACH: Your Honor, unless the defense is stipulating that Ms. Maxwell knew the ages of these victims, and it's an open issue. The defense has elicited from Larry Visoski, Kimberly Espinosa, the appearance of the victims. They elicited from Carolyn that she was told not to tell -- or told to tell people at the house that she was 17 or 18, when she was younger than that. So the evidence that's been elicited certainly puts the defendant's knowledge of the victims' age at issue. THE COURT: Yes. There are two issues. There's the first question, what age were they. And you contest that. But then there's the second question of, let's assume the jury concludes that they were under the age of 17, then there is the question of Ms. Maxwell's knowledge, and that seems to me to have been put in issue through argument and -- through openings and questions asked on cross. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016992 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 67 of 95 2805 LCIAMAX2ps 1 MR. PAGLIUCA: I think I disagree with that, your Honor. And let's take Carolyn as the example. Carolyn, the government affirmatively elicited that she was told by Virginia to say that she was, you know, whatever age she was told to say. That's, I think, the government's testimony. 2 MR. ROHRBACH: I believe that came out on cross, your Honor. It's on page 1569. 3 MR. PAGLIUCA: If it came out on cross, it was her volunteering that information, I think. 4 But anyway, that doesn't have anything to do with Ms. Maxwell. I mean, that's simply "Virginia told me whatever my name -- whatever the age I'm supposed to say." It's not Ms. Maxwell saying to Virginia, "Say this age." 5 So I just disagree as a factual matter that this has anything to do with conscious avoidance. 6 MR. ROHRBACH: The defense also elicited testimony that the defendant was from -- through Mr. Alessi -- that the defendant was going to legitimate hotels to identify massage therapists. I assume that that's in service of an argument that she didn't know the ages of people coming to the house as massage therapists, and so she could have confused some of them who were under the age of consent with ones who were older than the age of consent. I'm not sure what other evidence that would be in service of. 7 MR. PAGLIUCA: Well, that's in service of Ms. Roberts 8 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 DOJ-OGR-00014371 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 67 of 95 LCIAMAX2ps 1 MR. PAGLIUCA: I think I disagree with that, your 2 Honor. And let's take Carolyn as the example. Carolyn, the 3 government affirmatively elicited that she was told by Virginia 4 to say that she was, you know, whatever age she was told to 5 say. That's, I think, the government's testimony. 6 MR. ROHRBACH: I believe that came out on cross, your 7 Honor. It's on page 1569. 8 MR. PAGLIUCA: If it came out on cross, it was her 9 volunteering that information, I think. 10 But anyway, that doesn't have anything to do with 11 Ms. Maxwell. I mean, that's simply "Virginia told me whatever 12 my name -- whatever the age I'm supposed to say." It's not 13 Ms. Maxwell saying to Virginia, "Say this age." 14 So I just disagree as a factual matter that this has 15 anything to do with conscious avoidance. 16 MR. ROHRBACH: The defense also elicited testimony 17 that the defendant was from -- through Mr. Alessi -- that the 18 defendant was going to legitimate hotels to identify massage 19 therapists. I assume that that's in service of an argument 20 that she didn't know the ages of people coming to the house as 21 massage therapists, and so she could have confused some of them 22 who were under the age of consent with ones who were older than 23 the age of consent. I'm not sure what other evidence that 24 would be in service of. 25 MR. PAGLIUCA: Well, that's in service of Ms. Roberts SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016993 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 68 of 95 2806 LCIAMAX2ps being -- that's a factual dispute as well: when did we -- you know, when did Ms. Roberts appear? How old was Ms. Roberts when she appeared and then allegedly recruited other people? That's in service of that argument. It's not in service of some other argument. And that's what that testimony went to, was, you know, we went to Mar-a-Lago, we went to these other spas, Mr. Alessi collected cards from people. I mean, that's what that testimony was. It had nothing to do with Carolyn or the others that relate to Carolyn. MR. ROHRBACH: If the issue is just, how old was Virginia Roberts when she met the defendant, there would be no need for testimony about whether the defendant also went to the Breakers to recruit massage therapists. It would just be, on what date did the encounter happen with Virginia Roberts. THE COURT: All right. I'm going to take a careful look through the transcript to see how and when and to what extent the defense, I think, reasonably -- I could reasonably interpret to put in question Ms. Maxwell's knowledge as to the age of the individuals. Am I hearing you correctly that, in the absence of this instruction, that the defense would make no argument at closing regarding specifically Ms. Maxwell's knowledge of the age of any individuals that the jury might conclude are alleged victims? MR. PAGLIUCA: I would like to consult with the person SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014372 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 68 of 95 2806 LCIAMAX2ps being -- that's a factual dispute as well: when did we -- you know, when did Ms. Roberts appear? How old was Ms. Roberts when she appeared and then allegedly recruited other people? That's in service of that argument. It's not in service of some other argument. And that's what that testimony went to, was, you know, we went to Mar-a-Lago, we went to these other spas, Mr. Alessi collected cards from people. I mean, that's what that testimony was. It had nothing to do with Carolyn or the others that relate to Carolyn. MR. ROHRBACH: If the issue is just, how old was Virginia Roberts when she met the defendant, there would be no need for testimony about whether the defendant also went to the Breakers to recruit massage therapists. It would just be, on what date did the encounter happen with Virginia Roberts. THE COURT: All right. I'm going to take a careful look through the transcript to see how and when and to what extent the defense, I think, reasonably -- I could reasonably interpret to put in question Ms. Maxwell's knowledge as to the age of the individuals. Am I hearing you correctly that, in the absence of this instruction, that the defense would make no argument at closing regarding specifically Ms. Maxwell's knowledge of the age of any individuals that the jury might conclude are alleged victims? MR. PAGLIUCA: I would like to consult with the person SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016994 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 69 of 95 2807 LCIAMAX2ps 1 who's going to be giving the closing argument. 2 THE COURT: I think she's standing over your shoulder. 3 MS. STERNHEIM: No. 4 MR. PAGLIUCA: No. 5 MS. STERNHEIM: Surprise. It's not me. 6 MR. PAGLIUCA: I can give the Court that answer before we leave today, if that's all right with the Court. 7 8 MR. ROHRBACH: If I may just say, your Honor, I'm not even sure that these things can be pulled apart. An argument that these people were older is so intertwined with an argument that she thought these people were older that, even if they didn't say the words about that in their closing, I think the jury would assume that, absent some more affirmative stipulation, so the government would have to rebut it. A conscious avoidance theory is an appropriate way to do so. 9 10 11 12 13 14 15 16 THE COURT: Yes. It's a fair point. And I'm going to look carefully at relevant portions of the transcript, but I do think it is sufficiently in issue that it's appropriate to give the instruction. I would consider, as part of my calculus in coming to a final resolution, if the defense were to indicate it wouldn't specifically make that argument. But -- 17 18 19 20 21 22 MS. STERNHEIM: We'll get you that answer as soon as we can. It will be following the break, I think. 23 24 MR. ROHRBACH: Your Honor, the other -- we've also articulated a theory that there are flight records showing the 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014373 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 69 of 95 2807 LCIAMAX2ps who's going to be giving the closing argument. THE COURT: I think she's standing over your shoulder. MS. STERNHEIM: No. MR. PAGLIUCA: No. MS. STERNHEIM: Surprise. It's not me. MR. PAGLIUCA: I can give the Court that answer before we leave today, if that's all right with the Court. MR. ROHRBACH: If I may just say, your Honor, I'm not even sure that these things can be pulled apart. An argument that these people were older is so intertwined with an argument that she thought these people were older that, even if they didn't say the words about that in their closing, I think the jury would assume that, absent some more affirmative stipulation, so the government would have to rebut it. A conscious avoidance theory is an appropriate way to do so. THE COURT: Yes. It's a fair point. And I'm going to look carefully at relevant portions of the transcript, but I do think it is sufficiently in issue that it's appropriate to give the instruction. I would consider, as part of my calculus in coming to a final resolution, if the defense were to indicate it wouldn't specifically make that argument. But -- MS. STERNHEIM: We'll get you that answer as soon as we can. It will be following the break, I think. MR. ROHRBACH: Your Honor, the other -- we've also articulated a theory that there are flight records showing the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016995 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 70 of 95 2808 LCIAMAX2ps 1 defendant traveling with some of the minor victims. I assume the defendant is going to say that she didn't know the purposes of the trips. To the extent the purpose was sexual abuse, the government would argue that at a minimum this she did know, if she didn't she consciously avoided knowing, why Jeffrey Epstein was traveling repeatedly with these minors. 2 3 4 5 6 7 THE COURT: The other point is, from the openings, I don't know if it will be a theme of the closing, but the distancing of Ms. Maxwell from Mr. Epstein and what he did was clearly a theme of the opening, and so that implicates knowledge throughout the counts. 8 9 10 11 12 So my strong inclination is that it's appropriate here. That's my conclusion. That's my conclusion. I'm going to look back through relevant portions of testimony on the age issue, but I think even the age issue -- well, not the age issue. Knowledge of age. Specific arguments as to knowledge of age aside, knowledge of age is intertwined with arguments regarding age. And in any event, there are, as a result of the opening, questions about Ms. Maxwell's knowledge of what Mr. Epstein is alleged to have been doing that I think it's sort of a standard instance of the applicability of a conscious avoidance instruction. 13 14 15 16 17 18 19 20 21 22 23 So my conclusion is to include it. 24 Next. 25 MR. VERDELL: Next, your Honor -- let me make sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014374 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 70 of 95 LCIAMAX2ps defendant traveling with some of the minor victims. I assume the defendant is going to say that she didn't know the purposes of the trips. To the extent the purpose was sexual abuse, the government would argue that at a minimum this she did know, if she didn't she consciously avoided knowing, why Jeffrey Epstein was traveling repeatedly with these minors. THE COURT: The other point is, from the openings, I don't know if it will be a theme of the closing, but the distancing of Ms. Maxwell from Mr. Epstein and what he did was clearly a theme of the opening, and so that implicates knowledge throughout the counts. So my strong inclination is that it's appropriate here. That's my conclusion. That's my conclusion. I'm going to look back through relevant portions of testimony on the age issue, but I think even the age issue -- well, not the age issue. Knowledge of age. Specific arguments as to knowledge of age aside, knowledge of age is intertwined with arguments regarding age. And in any event, there are, as a result of the opening, questions about Ms. Maxwell's knowledge of what Mr. Epstein is alleged to have been doing that I think it's sort of a standard instance of the applicability of a conscious avoidance instruction. So my conclusion is to include it. Next. MR. VERDELL: Next, your Honor -- let me make sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016996 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 71 of 95 2809 LCIAMAX2ps 1 I believe the next one is at page 61. 2 THE COURT: Did you have something before that? 3 MR. ROHRBACH: No, page 69. 4 THE COURT: OK. Page 61. 5 I have something before that. There is a pronoun on 6 page 60, line 5, "he" should be replaced with "she." 7 MR. EVERDELL: That's fine, your Honor. 8 MR. ROHRBACH: Yes, your Honor. 9 THE COURT: And what page was it, Mr. Everdell? 10 MR. EVERDELL: The next page is 61, your Honor. 11 That's instruction 44, credibility of witnesses. 12 THE COURT: OK. 13 MR. EVERDELL: Your Honor, we would just propose that 14 there were a number of witnesses who, it came out, had felony 15 convictions, and there is a Sand instruction on this. It's 16 instruction 7-12. And we would ask that it be included, at 17 least in part, in the credibility of witnesses instruction. I 18 can read that to you, your Honor, if you like. 19 THE COURT: I gather this was not an original 20 proposal. 21 MR. EVERDELL: No. We didn't know if it would come 22 in. 23 THE COURT: Oops. All right. I'll take your -- my 24 clerks will submit language, but go ahead. 25 MR. EVERDELL: Sure. I have Sand in front of me, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014375 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 71 of 95 2809 LCIAMAX2ps 1 I believe the next one is at page 61. 2 THE COURT: Did you have something before that? 3 MR. ROHRBACH: No, page 69. 4 THE COURT: OK. Page 61. 5 I have something before that. There is a pronoun on 6 page 60, line 5, "he" should be replaced with "she." 7 MR. EVERDELL: That's fine, your Honor. 8 MR. ROHRBACH: Yes, your Honor. 9 THE COURT: And what page was it, Mr. Everdell? 10 MR. EVERDELL: The next page is 61, your Honor. 11 That's instruction 44, credibility of witnesses. 12 THE COURT: OK. 13 MR. EVERDELL: Your Honor, we would just propose that 14 there were a number of witnesses who, it came out, had felony 15 convictions, and there is a Sand instruction on this. It's 16 instruction 7-12. And we would ask that it be included, at 17 least in part, in the credibility of witnesses instruction. I 18 can read that to you, your Honor, if you like. 19 THE COURT: I gather this was not an original 20 proposal. 21 MR. EVERDELL: No. We didn't know if it would come 22 in. 23 THE COURT: Oops. All right. I'll take your -- my 24 clerks will submit language, but go ahead. 25 MR. EVERDELL: Sure. I have Sand in front of me, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016997 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 72 of 95 2810 LCIAMAX2ps 1 I can read the full instruction. 2 THE COURT: And the proposal is to include it where? 3 MR. VERDELL: In instruction 44, in the credibility of witnesses. 4 5 THE COURT: Right. Where? 6 MR. VERDELL: I think it could be either after the second paragraph, before the third paragraph, or after the third paragraph, which goes on to the next page before the first full paragraph on that page. 7 8 9 10 THE COURT: OK. 11 MR. VERDELL: I'm happy to read it if you like, or you can just -- it's up to the Court. 12 13 THE COURT: I don't have it yet. So go ahead. 14 MR. VERDELL: OK. So the way it reads in Sand is, 15 "You have heard the testimony of a witness who was previously convicted of a crime punishable by more than one year in jail. This prior conviction was put into evidence for you to consider in evaluating the witness's credibility. You may consider that fact -- you may consider the fact that the witness who testified is a convicted felon in deciding how much of his" -- I think maybe "his or her testimony to accept and what weight if any it should be given." 16 17 18 19 20 21 22 23 MR. ROHRBACH: Your Honor, we're not familiar with this instruction being given in this district, and obviously witnesses with felony convictions testify regularly. The 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 72 of 95 2810 LCIAMAX2ps 1 I can read the full instruction. 2 THE COURT: And the proposal is to include it where? 3 MR. VERDELL: In instruction 44, in the credibility 4 of witnesses. 5 THE COURT: Right. Where? 6 MR. VERDELL: I think it could be either after the 7 second paragraph, before the third paragraph, or after the 8 third paragraph, which goes on to the next page before the 9 first full paragraph on that page. 10 THE COURT: OK. 11 MR. VERDELL: I'm happy to read it if you like, or 12 you can just -- it's up to the Court. 13 THE COURT: I don't have it yet. So go ahead. 14 MR. VERDELL: OK. So the way it reads in Sand is, 15 "You have heard the testimony of a witness who was previously 16 convicted of a crime punishable by more than one year in jail. 17 This prior conviction was put into evidence for you to consider 18 in evaluating the witness's credibility. You may consider that 19 fact -- you may consider the fact that the witness who 20 testified is a convicted felon in deciding how much of his" -- 21 I think maybe "his or her testimony to accept and what weight 22 if any it should be given." 23 MR. ROHRBACH: Your Honor, we're not familiar with 24 this instruction being given in this district, and obviously 25 witnesses with felony convictions testify regularly. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016998 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 73 of 95 2811 LCIAMAX2ps commentary as it stands suggests that the point of this instruction is just to tell the jury why this was -- the felony conviction was even put before them in the first place. And I don't think a jury is going to be confused or misled about why that testimony was offered. So I don't think there is a need for this sort of instruction. THE COURT: Do you have any examples of it being used? MR. EVERDELL: Your Honor, I don't have at my fingertips. I can try to find some if there are. THE COURT: This is my standard credibility instruction. Certainly given in multiple trials in which felony convictions came in. I don't think I've ever given it or been asked to give it. MR. EVERDELL: Your Honor, I would point out, I think in a lot of trials, maybe in the ones you've done before, there was probably an instruction about cooperating witnesses which builds in this language, and obviously you don't have one here, so it's often included in the charge in a separate instruction. THE COURT: Well, this is a new request. I'll take a look. We'll look at it. And when I send you the redline you'll either see it or not. MR. EVERDELL: In the meantime, your Honor, I'll try to find other examples if I can. THE COURT: OK. Looks like I have given it as a separate instruction, testimony of felons. "You've heard the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014377 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 73 of 95 LCIAMAX2ps 2811 commentary as it stands suggests that the point of this instruction is just to tell the jury why this was -- the felony conviction was even put before them in the first place. And I don't think a jury is going to be confused or misled about why that testimony was offered. So I don't think there is a need for this sort of instruction. THE COURT: Do you have any examples of it being used? MR. EVERDELL: Your Honor, I don't have at my fingertips. I can try to find some if there are. THE COURT: This is my standard credibility instruction. Certainly given in multiple trials in which felony convictions came in. I don't think I've ever given it or been asked to give it. MR. EVERDELL: Your Honor, I would point out, I think in a lot of trials, maybe in the ones you've done before, there was probably an instruction about cooperating witnesses which builds in this language, and obviously you don't have one here, so it's often included in the charge in a separate instruction. THE COURT: Well, this is a new request. I'll take a look. We'll look at it. And when I send you the redline you'll either see it or not. MR. EVERDELL: In the meantime, your Honor, I'll try to find other examples if I can. THE COURT: OK. Looks like I have given it as a separate instruction, testimony of felons. "You've heard the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00016999 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 74 of 95 2812 LCIAMAX2ps testimony of witnesses who were previously convicted of crimes punishable by more than one year in jail. This prior conviction was put into evidence for you to consider in evaluating the witness's credibility. You may consider the fact that the witness who testified was a convicted felon in deciding how much of his testimony to accept and what weight if any it should be given." Looks like I gave that in my -- in the United States v. Berry. MR. EVERDELL: I think we've been using that as a model in this charge, your Honor, so we would request a similar instruction here. THE COURT: I would add it, as I did in that last case, as a standalone instruction. Mr. Rohrbach. MR. ROHRBACH: Your Honor, this is the first we've hoard of this proposal. So if we could have a few hours after the charge conference to give it some thought. We can file a letter saying either, we agree, or, if we have objections to it, articulating those. THE COURT: I think that's fair, and I will look too since it's a new suggestion. I think my proposal would be to just do it as a standalone instruction at, maybe what would be 45-A? MR. EVERDELL: That's fine, your Honor. THE COURT: Between 45 and '6. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014378 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 74 of 95 2812 LCIAMAX2ps testimony of witnesses who were previously convicted of crimes punishable by more than one year in jail. This prior conviction was put into evidence for you to consider in evaluating the witness's credibility. You may consider the fact that the witness who testified was a convicted felon in deciding how much of his testimony to accept and what weight if any it should be given." Looks like I gave that in my -- in the United States v. Berry. MR. EVERDELL: I think we've been using that as a model in this charge, your Honor, so we would request a similar instruction here. THE COURT: I would add it, as I did in that last case, as a standalone instruction. Mr. Rohrbach. MR. ROHRBACH: Your Honor, this is the first we've hoard of this proposal. So if we could have a few hours after the charge conference to give it some thought. We can file a letter saying either, we agree, or, if we have objections to it, articulating those. THE COURT: I think that's fair, and I will look too since it's a new suggestion. I think my proposal would be to just do it as a standalone instruction at, maybe what would be 45-A? MR. EVERDELL: That's fine, your Honor. THE COURT: Between 45 and '6. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017000 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 75 of 95 2813 LCIAMAX2ps 1 So that's the proposal. And when would you like to 2 put in a letter? 3 MR. ROHRBACH: Depends on what time we finish. 4 MR. EVERDELL: First thing, your Honor. 5 MR. ROHRBACH: If we finish by noon, by 2 or 3? 6 THE COURT: OK. Let's do 2 o'clock. 7 MR. ROHRBACH: OK. 8 THE COURT: Thank you. 9 Next. 10 MR. EVERDELL: Next, your Honor, is page 68, 11 instruction no. 50, the uncalled witnesses charge. The request 12 here is that this not be included, and I think the reason being 13 that, in this case, it isn't really accurately summarizing the 14 state of play, because, you know, for example, there were 15 witnesses who took their Fifth Amendment rights and refused to 16 testify as defense witnesses because they invoked their Fifth 17 Amendment rights. The government does have the option of 18 giving those witnesses immunity to testify. And so they 19 actually control, more than we do, whether or not a witness can 20 appear -- 21 THE COURT: To be clear, that didn't happen. They 22 didn't call that witness. 23 MR. EVERDELL: We had a witness who invoked their 24 Fifth Amendment rights or had written the Court that they 25 planned to invoke, and that we called and was under subpoena SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014379 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 75 of 95 2813 LCIAMAX2ps So that's the proposal. And when would you like to put in a letter? MR. ROHRBACH: Depends on what time we finish. MR. EVERDELL: First thing, your Honor. MR. ROHRBACH: If we finish by noon, by 2 or 3? THE COURT: OK. Let's do 2 o'clock. MR. ROHRBACH: OK. THE COURT: Thank you. Next. MR. EVERDELL: Next, your Honor, is page 68, instruction no. 50, the uncalled witnesses charge. The request here is that this not be included, and I think the reason being that, in this case, it isn't really accurately summarizing the state of play, because, you know, for example, there were witnesses who took their Fifth Amendment rights and refused to testify as defense witnesses because they invoked their Fifth Amendment rights. The government does have the option of giving those witnesses immunity to testify. And so they actually control, more than we do, whether or not a witness can appear -- THE COURT: To be clear, that didn't happen. They didn't call that witness. MR. EVERDELL: We had a witness who invoked their Fifth Amendment rights or had written the Court that they planned to invoke, and that we called and was under subpoena SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017001 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 76 of 95 2814 LCIAMAX2ps 1 that we intended to call as a witness. 2 THE COURT: There was a lawyer letter indicating that 3 they had received a subpoena and they intended to invoke. I 4 asked many, many times if there was an application with respect 5 to it. I never got one. So I'm not sure how to think of that. 6 It's certainly true that, if someone invokes, the defense can't 7 offer immunity the way that the government can. That's true in 8 every case. This charge is quite standard, though standardly 9 objected to, but I don't know that I see anything in this case 10 that would distinguish its application based on what you've 11 just indicated. 12 MR. EVERDELL: In addition to what I had just 13 indicated, just for purpose of completeness, there are a number 14 of witnesses who, based on the witness testimony in this case, 15 there would be people who the government -- who we normally may 16 have considered calling as a witness but who the government 17 clearly could have charged, criminally, based on the testimony 18 we heard. And I won't name names if we don't want to do that. 19 But I think we probably know who we're talking about here. And 20 that is, you know, had we tried to call that witness or those 21 witnesses, they undoubtedly would have invoked their Fifth 22 Amendment rights. In fact, as some of them -- one of them was 23 not called by the government and would have had to have been 24 given statutory immunity or granted immunity to be able to 25 testify, by the government, if they had decided to call them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014380 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 76 of 95 2814 LCIAMAX2ps that we intended to call as a witness. THE COURT: There was a lawyer letter indicating that they had received a subpoena and they intended to invoke. I asked many, many times if there was an application with respect to it. I never got one. So I'm not sure how to think of that. It's certainly true that, if someone invokes, the defense can't offer immunity the way that the government can. That's true in every case. This charge is quite standard, though standardly objected to, but I don't know that I see anything in this case that would distinguish its application based on what you've just indicated. MR. EVERDELL: In addition to what I had just indicated, just for purpose of completeness, there are a number of witnesses who, based on the witness testimony in this case, there would be people who the government -- who we normally may have considered calling as a witness but who the government clearly could have charged, criminally, based on the testimony we heard. And I won't name names if we don't want to do that. But I think we probably know who we're talking about here. And that is, you know, had we tried to call that witness or those witnesses, they undoubtedly would have invoked their Fifth Amendment rights. In fact, as some of them -- one of them was not called by the government and would have had to have been given statutory immunity or granted immunity to be able to testify, by the government, if they had decided to call them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017002 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 77 of 95 2815 LCIAMAX2ps 1 So there is more than just the one witness who indicated that she was going to invoke had the defense called her. There were other co-conspirators who the government chose not to call, not to immunize, and we couldn't possibly call in our defense without -- because we can't give any immunity ourselves. 2 3 MR. ROHRBACH: Your Honor, this is true in basically every conspiracy case and every gang case that is prosecuted in this district. There are unindicted co-conspirators. Yet this instruction is given and is the run-of-the-mill instruction, as the Court said, in cases in this district. 4 5 MR. EVERDELL: Your Honor, if the Court is inclined to give the instruction, I can propose an alternative. 6 7 THE COURT: I will take an alternative. 8 9 MR. EVERDELL: If we can just eliminate the language in the title of the charge that says "equally available to both sides" and just have "the uncalled witnesses." 10 11 I believe there's also language that says "equal opportunity." 12 13 THE COURT: Or lack of opportunity. 14 15 MR. EVERDELL: Yes. 16 17 MR. ROHRBACH: This is the uncalled witness instruction, your Honor. This is the instruction given, suggested by Sand and given by this Court. I have five examples right here where the Court has given this instruction. 18 19 THE COURT: As I say, it's always given, always 20 21 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 23 DOJ-OGR-00014381 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 77 of 95 2815 LCIAMAX2ps 1 So there is more than just the one witness who indicated that she was going to invoke had the defense called her. There were other co-conspirators who the government chose not to call, not to immunize, and we couldn't possibly call in our defense without -- because we can't give any immunity ourselves. 6 MR. ROHRBACH: Your Honor, this is true in basically every conspiracy case and every gang case that is prosecuted in this district. There are unindicted co-conspirators. Yet this instruction is given and is the run-of-the-mill instruction, as the Court said, in cases in this district. 11 MR. EVERDELL: Your Honor, if the Court is inclined to give the instruction, I can propose an alternative. 13 THE COURT: I will take an alternative. 14 MR. EVERDELL: If we can just eliminate the language in the title of the charge that says "equally available to both sides" and just have "the uncalled witnesses." 17 I believe there's also language that says "equal opportunity." 19 THE COURT: Or lack of opportunity. 20 MR. EVERDELL: Yes. 21 MR. ROHRBACH: This is the uncalled witness instruction, your Honor. This is the instruction given, suggested by Sand and given by this Court. I have five examples right here where the Court has given this instruction. 25 THE COURT: As I say, it's always given, always SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017003 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 78 of 95 2816 LCIAMAX2ps 1 objected to. 2 So here's just a slight change. Line 4. "Each party had an opportunity to call any of these witnesses." 3 4 MR. EVERDELL: We would accept that, your Honor. 5 THE COURT: It's a similar meaning. It's not quite equal. I'll adopt that. "Each party had an opportunity to call any of the witnesses." 6 7 8 MR. ROHRBACH: If your Honor is thinking of that change, we would ask to just include that in our letter later. 9 10 THE COURT: That's fine. So the proposal would be that, line 1, cut "equally available to both sides" from the heading, and then, line 4, cut "equal opportunity or lack of opportunity" and change to "an opportunity." 11 12 13 MR. EVERDELL: Yes, your Honor. 14 15 THE COURT: I think it's clearly true, Mr. Rohrbach, this is standard language, and I've given it a slightly, slightly altered meaning, to take emphasis off of "equal opportunity." So I think it still captures the meaning of the charge. 16 17 18 19 MR. ROHRBACH: I just -- we will think about it and include it in our letter. But just to preview for the Court, part of our concern is that the most obvious witness who was available to both sides and who we expect the defense to comment on is Virginia Roberts, who was described as a victim but did not testify and she was fully available to the 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014382 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 78 of 95 2816 LCIAMAX2ps 1 objected to. 2 So here's just a slight change. Line 4. "Each party 3 had an opportunity to call any of these witnesses." 4 MR. EVERDELL: We would accept that, your Honor. 5 THE COURT: It's a similar meaning. It's not quite 6 equal. I'll adopt that. "Each party had an opportunity to 7 call any of the witnesses." 8 MR. ROHRBACH: If your Honor is thinking of that 9 change, we would ask to just include that in our letter later. 10 THE COURT: That's fine. So the proposal would be 11 that, line 1, cut "equally available to both sides" from the 12 heading, and then, line 4, cut "equal opportunity or lack of 13 opportunity" and change to "an opportunity." 14 MR. EVERDELL: Yes, your Honor. 15 THE COURT: I think it's clearly true, Mr. Rohrbach, 16 this is standard language, and I've given it a slightly, 17 slightly altered meaning, to take emphasis off of "equal 18 opportunity." So I think it still captures the meaning of the 19 charge. 20 MR. ROHRBACH: I just -- we will think about it and 21 include it in our letter. But just to preview for the Court, 22 part of our concern is that the most obvious witness who was 23 available to both sides and who we expect the defense to 24 comment on is Virginia Roberts, who was described as a victim 25 but did not testify and she was fully available to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017004 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 79 of 95 2817 LCIAMAX2ps defendants. They did not call her. To the extent the main issue here is Virginia Roberts' testimony, that she was equally available to both sides. MR. EVERDELL: It's not Virginia Roberts that I'm thinking of, your Honor. I'm happy to say the name. It's Sarah Kellen. THE COURT: OK. I mean, suppose -- look, as I said, I've only slightly changed the meaning. It's the same meaning but it takes emphasis off of "equal." I don't know what the defense is going to focus on in its closings, how much of the focus will be the absence of individuals. MR. EVERDELL: I expect we'll be talking about the absence of individuals, your Honor. THE COURT: All right. I'll hear from you in your letter. I'm keeping the charge. And it will either be the standard charge or the very slight modification I've proposed. Next. MR. EVERDELL: Your Honor, page 69. THE COURT: OK. MR. EVERDELL: That's the particular investigative techniques charge. We were prohibited from the Court's rulings and from eliciting evidence and from arguing this point about particular investigative techniques, and so we -- THE COURT: Well, to be clear, not on cross with respect to witnesses called. But I don't need to repeat my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014383 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 79 of 95 LCIAMAX2ps 2817 1 defendants. They did not call her. To the extent the main issue here is Virginia Roberts' testimony, that she was equally available to both sides. 2 3 MR. EVERDELL: It's not Virginia Roberts that I'm thinking of, your Honor. I'm happy to say the name. It's Sarah Kellen. 4 5 THE COURT: OK. I mean, suppose -- look, as I said, I've only slightly changed the meaning. It's the same meaning but it takes emphasis off of "equal." I don't know what the defense is going to focus on in its closings, how much of the focus will be the absence of individuals. 6 7 MR. EVERDELL: I expect we'll be talking about the absence of individuals, your Honor. 8 9 THE COURT: All right. I'll hear from you in your letter. I'm keeping the charge. And it will either be the standard charge or the very slight modification I've proposed. 10 Next. 11 12 MR. EVERDELL: Your Honor, page 69. 13 14 THE COURT: OK. 15 16 MR. EVERDELL: That's the particular investigative techniques charge. We were prohibited from the Court's rulings and from eliciting evidence and from arguing this point about particular investigative techniques, and so we -- 17 18 THE COURT: Well, to be clear, not on cross with respect to witnesses called. But I don't need to repeat my 19 20 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017005 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 80 of 95 2818 LCIAMAX2ps ruling. But the ruling is what the ruling is. What's the request? MR. EVERDELL: The request is to eliminate the charge on this point because we couldn't -- we weren't supposed to, and nor did -- I think we tried to abide by the Court's ruling to not talk about particular investigative techniques or elicit evidence on that point. And so if we're not going to be permitted to elicit or argue that point to the jury, then it doesn't seem like they need to be instructed on that point. MR. ROHRBACH: This is a legally correct instruction. As the Court has ruled many times now in this case, particular investigative techniques are not required. The defense made that point, as they could, on cross through the case, and I assume it will be, as they can in the defense's summation. And this is a correct statement of the law on which the jury should be instructed. MR. EVERDELL: Sand has filled three volumes of correct statements on law, your Honor. That doesn't mean that they get into a jury charge. THE COURT: I think I've always included this charge, so it's not just a rarely invoked Sand charge. I mean, as you talked about yesterday, there were questions you were going to -- ask. MR. EVERDELL: Special Agent Young. THE COURT: -- Young, thank you -- that either -- some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014384 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 80 of 95 2818 LCIAMAX2ps ruling. But the ruling is what the ruling is. What's the request? MR. EVERDELL: The request is to eliminate the charge on this point because we couldn't -- we weren't supposed to, and nor did -- I think we tried to abide by the Court's ruling to not talk about particular investigative techniques or elicit evidence on that point. And so if we're not going to be permitted to elicit or argue that point to the jury, then it doesn't seem like they need to be instructed on that point. MR. ROHRBACH: This is a legally correct instruction. As the Court has ruled many times now in this case, particular investigative techniques are not required. The defense made that point, as they could, on cross through the case, and I assume it will be, as they can in the defense's summation. And this is a correct statement of the law on which the jury should be instructed. MR. EVERDELL: Sand has filled three volumes of correct statements on law, your Honor. That doesn't mean that they get into a jury charge. THE COURT: I think I've always included this charge, so it's not just a rarely invoked Sand charge. I mean, as you talked about yesterday, there were questions you were going to -- ask. MR. EVERDELL: Special Agent Young. THE COURT: -- Young, thank you -- that either -- some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017006 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 81 of 95 2819 LCIAMAX2ps of which were asked of the relevant investigative agents or arguments that could be made based on the absence of evidence in the record and the like. And my ruling was what it was, which didn't foreclose entirely the opportunity with respect to cross-examination and the like. I suspect this will be part of the defense's arguments in closing, so it's appropriate to include the charge. MR. EVERDELL: Understood. Just as long as we're allowed to argue, are permitted to argue in closing about absence of evidence consistent with the Court's ruling. THE COURT: Absolutely, so long as the inference is available in the record. And I'll just pause, because I made a note to say this. I have a decent memory, and my afternoon and tomorrow will be spent reviewing much of the trial testimony. I don't want objections during closings, but that requires -- I gather it's Ms. Menninger that's doing the closing and Ms. Moe, who are absent today. So for both sides, any inference argued had better be from the transcript or the documents, and any objections should be rare and not based on your interpretation of the available evidence but the fact of the available evidence. We should get through closings without objections. MR. EVERDELL: Understood, your Honor. MR. ROHRBACH: Understood on our part, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014385 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 81 of 95 2819 LCIAMAX2ps of which were asked of the relevant investigative agents or arguments that could be made based on the absence of evidence in the record and the like. And my ruling was what it was, which didn't foreclose entirely the opportunity with respect to cross-examination and the like. I suspect this will be part of the defense's arguments in closing, so it's appropriate to include the charge. MR. EVERDELL: Understood. Just as long as we're allowed to argue, are permitted to argue in closing about absence of evidence consistent with the Court's ruling. THE COURT: Absolutely, so long as the inference is available in the record. And I'll just pause, because I made a note to say this. I have a decent memory, and my afternoon and tomorrow will be spent reviewing much of the trial testimony. I don't want objections during closings, but that requires -- I gather it's Ms. Menninger that's doing the closing and Ms. Moe, who are absent today. So for both sides, any inference argued had better be from the transcript or the documents, and any objections should be rare and not based on your interpretation of the available evidence but the fact of the available evidence. We should get through closings without objections. MR. EVERDELL: Understood, your Honor. MR. ROHRBACH: Understood on our part, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017007 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 82 of 95 2820 LCIAMAX2ps 1 THE COURT: Thank you. 2 MR. ROHRBACH: This is the instruction where the government also has a request, unless Mr. Everdell has anything else on 69. 3 MR. EVERDELL: I do not. 4 MR. ROHRBACH: Here the government would request that the Court include the traditional "government is not on trial" sentence. 5 THE COURT: That I didn't permit. 6 MR. ROHRBACH: I saw that, your Honor. We just wanted to raise it with your Honor again. Our view is that it's something the defense put in issue in their -- came very close to the line of putting in issue in their opening and has been a theme of the defense case so far, and we assume they will come close to the line but hopefully not cross the line in their defense summation. And in light of that, it is an instruction that the circuit has said is appropriate. And so we think, in anticipation of what we expect in the defense's summation, we think it is an appropriate inclusion in this instruction. 7 MR. EVERDELL: Your Honor, I don't think there's any need to anticipate. If there's an issue about what we say, we're going to be very careful about the Court's ruling. We're going to do our level best to make sure we stay within the four corners of the ruling. But I think this instruction as written is appropriate. I suppose the government, if they want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014386 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 82 of 95 2820 LCIAMAX2ps 1 THE COURT: Thank you. 2 MR. ROHRBACH: This is the instruction where the government also has a request, unless Mr. Everdell has anything else on 69. 3 MR. EVERDELL: I do not. 4 MR. ROHRBACH: Here the government would request that the Court include the traditional "government is not on trial" sentence. 5 THE COURT: That I didn't permit. 6 MR. ROHRBACH: I saw that, your Honor. We just wanted to raise it with your Honor again. Our view is that it's something the defense put in issue in their -- came very close to the line of putting in issue in their opening and has been a theme of the defense case so far, and we assume they will come close to the line but hopefully not cross the line in their defense summation. And in light of that, it is an instruction that the circuit has said is appropriate. And so we think, in anticipation of what we expect in the defense's summation, we think it is an appropriate inclusion in this instruction. 7 MR. EVERDELL: Your Honor, I don't think there's any need to anticipate. If there's an issue about what we say, we're going to be very careful about the Court's ruling. We're going to do our level best to make sure we stay within the four corners of the ruling. But I think this instruction as written is appropriate. I suppose the government, if they want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017008 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 83 of 95 2821 LCIAMAX2ps 1 raise something before the charge is given based on the 2 closing, they can. 3 THE COURT: I think this is what I typically use, so 4 we'll stick with that. And obviously closings will not cross 5 the line as to what I've forbidden, or that may become 6 necessary. 7 MR. EVERDELL: Yes, your Honor. 8 MR. ROHRBACH: Understood, your Honor. I think that, 9 just to sort of complete the point, the government's particular 10 concern is the argument about the empty chair and the 11 government's motivations for this prosecution, which is 12 somewhat different than the particular investigative techniques 13 point that's elsewhere in this instruction, which is why we 14 thought the additional sentence is necessary. 15 THE COURT: I didn't permit and there will be no 16 argument about the government's motivation. 17 MR. EVERDELL: That's clear, your Honor. 18 MR. ROHRBACH: Thank you, your Honor. 19 MR. EVERDELL: All right. Your Honor, we're all set. 20 Page 73. 21 THE COURT: Anything before that? 22 MR. ROHRBACH: No. That was the last edit from the 23 government, actually. 24 THE COURT: OK. 73. 25 MR. EVERDELL: This is the preparation of witnesses SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014387 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 83 of 95 LCIAMAX2ps 1 raise something before the charge is given based on the 2 closing, they can. 3 THE COURT: I think this is what I typically use, so 4 we'll stick with that. And obviously closings will not cross 5 the line as to what I've forbidden, or that may become 6 necessary. 7 MR. EVERDELL: Yes, your Honor. 8 MR. ROHRBACH: Understood, your Honor. I think that, 9 just to sort of complete the point, the government's particular 10 concern is the argument about the empty chair and the 11 government's motivations for this prosecution, which is 12 somewhat different than the particular investigative techniques 13 point that's elsewhere in this instruction, which is why we 14 thought the additional sentence is necessary. 15 THE COURT: I didn't permit and there will be no 16 argument about the government's motivation. 17 MR. EVERDELL: That's clear, your Honor. 18 MR. ROHRBACH: Thank you, your Honor. 19 MR. EVERDELL: All right. Your Honor, we're all set. 20 Page 73. 21 THE COURT: Anything before that? 22 MR. ROHRBACH: No. That was the last edit from the 23 government, actually. 24 THE COURT: OK. 73. 25 MR. EVERDELL: This is the preparation of witnesses SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 84 of 95 2822 LCIAMAX2ps 1 instruction, instruction 55. The government can correct me if 2 I'm wrong. I don't think we had any testimony about preparing 3 witnesses, so I don't know if this instruction is necessary. 4 THE COURT: No. There was. For sure. 5 MR. EVERDELL: OK. Maybe I'm mistaken about that. 6 THE COURT: "How many times did you meet with the 7 government?" 8 MR. EVERDELL: OK. 9 THE COURT: For example. Maybe every, every -- 10 MR. EVERDELL: OK. I stand corrected. 11 THE COURT: Other than that, you've got it. 12 MR. EVERDELL: Other than that, OK. 13 All right. I think that's all we have, apart from the 14 verdict sheet. 15 THE COURT: OK. Anything else, Mr. Rohrbach? 16 MR. ROHRBACH: No. Thank you, your Honor. 17 THE COURT: OK. The verdict sheet. 18 MR. EVERDELL: The verdict sheet, your Honor, is just 19 tracking some of the changes. 20 THE COURT: Wait, wait. Sorry. Yes. Oh, I had two 21 more that we caught this morning. Page 78, line 13, it says 22 "solely be," but it should be "solely by." 23 MR. EVERDELL: Sorry, what line is that, your Honor? 24 THE COURT: 13. 25 MR. EVERDELL: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014388 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 84 of 95 2822 LCIAMAX2ps instruction, instruction 55. The government can correct me if I'm wrong. I don't think we had any testimony about preparing witnesses, so I don't know if this instruction is necessary. THE COURT: No. There was. For sure. MR. EVERDELL: OK. Maybe I'm mistaken about that. THE COURT: "How many times did you meet with the government?" MR. EVERDELL: OK. THE COURT: For example. Maybe every, every -- MR. EVERDELL: OK. I stand corrected. THE COURT: Other than that, you've got it. MR. EVERDELL: Other than that, OK. All right. I think that's all we have, apart from the verdict sheet. THE COURT: OK. Anything else, Mr. Rohrbach? MR. ROHRBACH: No. Thank you, your Honor. THE COURT: OK. The verdict sheet. MR. EVERDELL: The verdict sheet, your Honor, is just tracking some of the changes. THE COURT: Wait, wait. Sorry. Yes. Oh, I had two more that we caught this morning. Page 78, line 13, it says "solely be," but it should be "solely by." MR. EVERDELL: Sorry, what line is that, your Honor? THE COURT: 13. MR. EVERDELL: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017010 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 85 of 95 2823 LCIAMAX2ps 1 THE COURT: And then there was one more heading, that had that errant "Two" in it. Oh, page 52, instruction 37, that heading also has the word "Two" in it for some reason. 2 MR. EVERDELL: Yes, your. 3 THE COURT: Verdict sheet. 4 MR. EVERDELL: Your Honor, the edits here are just to track changes we've adopted elsewhere. So as to Count One, "conspiracy to entice an individual under the age of 17 to travel." 5 MR. ROHRBACH: That's fine, your Honor. 6 THE COURT: OK. "An individual." Right. All right. So Count One, we'll adopt that and add "under the age of 17." 7 MR. ROHRBACH: This is actually in Count One also, should be "individuals," plural, I think, in light of the changes we've made? 8 THE COURT: Right. It's a conspiracy count. 9 MR. ROHRBACH: Yes, your Honor. 10 THE COURT: OK, Mr. Everdell. 11 MR. EVERDELL: Count Two, the same thing. 12 THE COURT: Sorry. I just wanted your adoption, "conspiracy to entice individuals under the age." 13 MR. EVERDELL: Yes, your Honor. 14 THE COURT: So we'll cut "an" and make it plural. 15 MR. EVERDELL: Yes, your Honor. 16 THE COURT: Go ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014389 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 85 of 95 2823 LCIAMAX2ps 1 THE COURT: And then there was one more heading, that had that errant "Two" in it. Oh, page 52, instruction 37, that heading also has the word "Two" in it for some reason. 4 MR. EVERDELL: Yes, your. 5 THE COURT: Verdict sheet. 6 MR. EVERDELL: Your Honor, the edits here are just to track changes we've adopted elsewhere. So as to Count One, 8 "conspiracy to entice an individual under the age of 17 to travel." 10 MR. ROHRBACH: That's fine, your Honor. 11 THE COURT: OK. "An individual." Right. All right. 12 So Count One, we'll adopt that and add "under the age of 17." 13 MR. ROHRBACH: This is actually in Count One also, 14 should be "individuals," plural, I think, in light of the 15 changes we've made? 16 THE COURT: Right. It's a conspiracy count. 17 MR. ROHRBACH: Yes, your Honor. 18 THE COURT: OK, Mr. Everdell. 19 MR. EVERDELL: Count Two, the same thing. 20 THE COURT: Sorry. I just wanted your adoption, 21 "conspiracy to entice individuals under the age." 22 MR. EVERDELL: Yes, your Honor. 23 THE COURT: So we'll cut "an" and make it plural. 24 MR. EVERDELL: Yes, your Honor. 25 THE COURT: Go ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017011 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 86 of 95 2824 LCIAMAX2ps 1 MR. EVERDELL: Count Two, "enticement of an individual under the age of 17." And then we would propose "(Jane only)," to add the word "only," your Honor. 2 3 THE COURT: So adding, after "an individual," "under the age of 17," adding in the parentheses, after the word "Jane," "only." 4 5 MR. EVERDELL: Correct. 6 7 THE COURT: OK. 8 9 MR. EVERDELL: Count Three, to transport and then take out the word "a minor," this would be, I guess, "individuals under the age of 17." 10 11 MR. ROHRBACH: Agreed, your Honor. 12 13 THE COURT: OK. I will make that change to "individuals under the age of 17," taking out "a minor." 14 15 MR. EVERDELL: And then Count Four, "transportation of an individual," adding "under the age of 17" and adding the word "only" after "Jane." 16 17 THE COURT: OK. 18 19 MR. ROHRBACH: That's fine, your Honor. 20 21 THE COURT: All right. Make that change, adding "under the age of 17" and then adding "only" after the word "Jane." 22 23 MR. EVERDELL: Let's just skip over Count Five for a second. Count Six. 24 25 THE COURT: "Only." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 86 of 95 2824 LCIAMAX2ps 1 MR. EVERDELL: Count Two, "enticement of an individual under the age of 17." And then we would propose "(Jane only)," to add the word "only," your Honor. 4 THE COURT: So adding, after "an individual," "under the age of 17," adding in the parentheses, after the word "Jane," "only." 6 "Jane," "only." 7 MR. EVERDELL: Correct. 8 THE COURT: OK. 9 MR. EVERDELL: Count Three, to transport and then take out the word "a minor," this would be, I guess, "individuals under the age of 17." 11 12 MR. ROHRBACH: Agreed, your Honor. 13 THE COURT: OK. I will make that change to "individuals under the age of 17," taking out "a minor." 14 15 MR. EVERDELL: And then Count Four, "transportation of an individual," adding "under the age of 17" and adding the word "only" after "Jane." 17 18 THE COURT: OK. 19 MR. ROHRBACH: That's fine, your Honor. 20 THE COURT: All right. Make that change, adding "under the age of 17" and then adding "only" after the word 21 "Jane." 22 23 MR. EVERDELL: Let's just skip over Count Five for a second. Count Six. 24 25 THE COURT: "Only." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 87 of 95 2825 LCIAMAX2ps 1 MR. EVERDELL: Carolyn only, and it would say "sex trafficking of." 2 3 THE COURT: "An individual." 4 MR. EVERDELL: "Under the age of 18." 5 MR. ROHRBACH: That's fine, your Honor. 6 THE COURT: Taking out "a minor," adding "an individual under the age of 18," and then adding "only" after "Carolyn." 7 8 MR. EVERDELL: Correct, your Honor. 9 10 THE COURT: OK. 11 MR. EVERDELL: Moving back to Count Five, it's a little cumbersome, I understand, the way the language is. But it would say "sex trafficking conspiracy of individuals under the age of 18." 12 13 14 15 THE COURT: OK. Mr. Rohrbach. 16 MR. ROHRBACH: We think it's a little unclear to say "conspiracy to commit sex trafficking of individuals under the age of 18"? 17 18 19 MR. EVERDELL: That's fine. 20 THE COURT: So we'll change Count Five to "conspiracy to commit sex" -- how do you want to say it? 21 22 MR. EVERDELL: "conspiracy to commit sex trafficking of individuals under the age of 18." 23 24 THE COURT: 17. 25 MR. ROHRBACH: 18 for this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014391 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 87 of 95 2825 LCIAMAX2ps MR. EVERDELL: Carolyn only, and it would say "sex trafficking of." THE COURT: "An individual." MR. EVERDELL: "Under the age of 18." MR. ROHRBACH: That's fine, your Honor. THE COURT: Taking out "a minor," adding "an individual under the age of 18," and then adding "only" after "Carolyn." MR. EVERDELL: Correct, your Honor. THE COURT: OK. MR. EVERDELL: Moving back to Count Five, it's a little cumbersome, I understand, the way the language is. But it would say "sex trafficking conspiracy of individuals under the age of 18." THE COURT: OK. Mr. Rohrbach. MR. ROHRBACH: We think it's a little unclear to say "conspiracy to commit sex trafficking of individuals under the age of 18"? MR. EVERDELL: That's fine. THE COURT: So we'll change Count Five to "conspiracy to commit sex" -- how do you want to say it? MR. EVERDELL: "conspiracy to commit sex trafficking of individuals under the age of 18." THE COURT: 17. MR. ROHRBACH: 18 for this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 88 of 95 2826 LCIAMAX2ps 1 THE COURT: Sorry. 18, Count Five. 2 All right. So we'll make that change. 3 MR. ROHRBACH: The government has just one edit, if 4 Mr. Everdell is finished on the other. 5 MR. EVERDELL: Which one? 6 MR. ROHRBACH: Which is on the top of the verdict 7 sheet. After "please indicate your verdict with a checkmark," 8 it's a "T" in parentheses. 9 THE COURT: That's so odd. Yes. We'll convert that 10 to a checkmark. 11 OK. That's it from the verdict sheet? 12 MR. ROHRBACH: Nothing from the government. 13 MR. EVERDELL: Nothing from the defense, your Honor. 14 MS. STERNHEIM: Judge, I have something unrelated to 15 the charge in the verdict sheet. 16 THE COURT: All right. Give me one moment just to go 17 through my to do list. So I have two open issues that I'll 18 hear from the government by letter by 2. Once I have that, 19 I'll make my conclusions with respect to those. We'll send the 20 parties a redline version of the changes made and a clean 21 version, which will be the final version, unless -- I'll set a 22 time when I send it to you, by a certain time. You indicate 23 any errors that were implemented in the implementation of the 24 changes. Otherwise that will be final. Same for the verdict 25 sheet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014392 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 88 of 95 LCIAMAX2ps 1 THE COURT: Sorry. 18, Count Five. 2 All right. So we'll make that change. 3 MR. ROHRBACH: The government has just one edit, if 4 Mr. Everdell is finished on the other. 5 MR. EVERDELL: Which one? 6 MR. ROHRBACH: Which is on the top of the verdict 7 sheet. After "please indicate your verdict with a checkmark," 8 it's a "T" in parentheses. 9 THE COURT: That's so odd. Yes. We'll convert that 10 to a checkmark. 11 OK. That's it from the verdict sheet? 12 MR. ROHRBACH: Nothing from the government. 13 MR. EVERDELL: Nothing from the defense, your Honor. 14 MS. STERNHEIM: Judge, I have something unrelated to 15 the charge in the verdict sheet. 16 THE COURT: All right. Give me one moment just to go 17 through my to do list. So I have two open issues that I'll 18 hear from the government by letter by 2. Once I have that, 19 I'll make my conclusions with respect to those. We'll send the 20 parties a redline version of the changes made and a clean 21 version, which will be the final version, unless -- I'll set a 22 time when I send it to you, by a certain time. You indicate 23 any errors that were implemented in the implementation of the 24 changes. Otherwise that will be final. Same for the verdict 25 sheet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017014 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 89 of 95 2827 LCIAMAX2ps 1 Ms. Sternheim, go ahead. 2 MS. STERNHEIM: Thank you, Judge. I don't know if the 3 Court has found out if any of the jurors are having issues 4 about staying later on Monday. 5 THE COURT: They were all fine. 6 MS. STERNHEIM: OK, because I just wanted to say that 7 we are motivated, and I think the government would join me, in 8 having us complete all of the closing arguments and the charge 9 on Monday. 10 THE COURT: Yes. I think we can do that. 11 MS. COMEY: Yes, your Honor. 12 THE COURT: Which gets to my next to-do item, which 13 is -- I realize we don't have the relevant people, but I think 14 Ms. Moe had indicated two to three hours. 15 MS. COMEY: That's right, your Honor. 16 THE COURT: Two sounds about right to me. 17 MS. STERNHEIM: That's even better to us. 18 THE COURT: I mean, length of trial, the complexity of 19 the charges, this should be a two-hour closing. 20 MS. COMEY: Your Honor, understood. We did, I will 21 note, streamline our case significantly, and there were a 22 number of exhibits that were not published to the jury, and I 23 think we were explicitly told, that's for closing, when we 24 wanted to do it with witnesses. So it's a little cumbersome, 25 because there is more work to be done connecting up a number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014393 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 89 of 95 2827 LCIAMAX2ps 1 Ms. Sternheim, go ahead. 2 MS. STERNHEIM: Thank you, Judge. I don't know if the Court has found out if any of the jurors are having issues about staying later on Monday. 3 4 5 THE COURT: They were all fine. 6 MS. STERNHEIM: OK, because I just wanted to say that we are motivated, and I think the government would join me, in having us complete all of the closing arguments and the charge on Monday. 7 8 9 10 THE COURT: Yes. I think we can do that. 11 MS. COMEY: Yes, your Honor. 12 THE COURT: Which gets to my next to-do item, which is -- I realize we don't have the relevant people, but I think 13 14 Ms. Moe had indicated two to three hours. 15 MS. COMEY: That's right, your Honor. 16 THE COURT: Two sounds about right to me. 17 MS. STERNHEIM: That's even better to us. 18 THE COURT: I mean, length of trial, the complexity of the charges, this should be a two-hour closing. 19 20 MS. COMEY: Your Honor, understood. We did, I will note, streamline our case significantly, and there were a number of exhibits that were not published to the jury, and I think we were explicitly told, that's for closing, when we wanted to do it with witnesses. So it's a little cumbersome, because there is more work to be done connecting up a number of 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017015 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 90 of 95 2828 LCIAMAX2ps 1 paper exhibits that we were not able to show to the jury. So 2 that's what might push it back two hours. So I would ask for 3 the Court's indulgence to two and a half hours, in light of the 4 fact that we really didn't get to show the jury all of the 5 exhibits, and it's going to take more time to walk them through 6 those exhibits that they haven't even seen. 7 THE COURT: All right. So two and a half, and two and 8 a half. 9 MS. STERNHEIM: They should five minutes for rebuttal. 10 And it will be fine. 11 THE COURT: Can you do 30 for the rebuttal? 12 MS. COMEY: I would ask for the Court's indulgence for 13 a little more than 30 if I may, just to have a little bit of a 14 cushion. 15 THE COURT: All right. 35. 16 MS. COMEY: Thank you, your Honor. 17 THE COURT: So we're going to start at 9. We're going 18 to do a very short midmorning break. We're going to do a short 19 lunch. The jurors' lunch will be here, I think, 20 minutes. 20 Let's say 30 minutes for you all to have lunch too. Given 21 that, we should get through closings and the charge tomorrow 22 and potentially they can start deliberating, depending on what 23 time it is. But I agree -- 24 MR. EVERDELL: Your Honor, just on the issue of 25 timing, thinking it through, so we start at 9, we start right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014394 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 90 of 95 2828 LCIAMAX2ps 1 paper exhibits that we were not able to show to the jury. So 2 that's what might push it back two hours. So I would ask for 3 the Court's indulgence to two and a half hours, in light of the 4 fact that we really didn't get to show the jury all of the 5 exhibits, and it's going to take more time to walk them through 6 those exhibits that they haven't even seen. 7 THE COURT: All right. So two and a half, and two and 8 a half. 9 MS. STERNHEIM: They should five minutes for rebuttal. 10 And it will be fine. 11 THE COURT: Can you do 30 for the rebuttal? 12 MS. COMEY: I would ask for the Court's indulgence for 13 a little more than 30 if I may, just to have a little bit of a 14 cushion. 15 THE COURT: All right. 35. 16 MS. COMEY: Thank you, your Honor. 17 THE COURT: So we're going to start at 9. We're going 18 to do a very short midmorning break. We're going to do a short 19 lunch. The jurors' lunch will be here, I think, 20 minutes. 20 Let's say 30 minutes for you all to have lunch too. Given 21 that, we should get through closings and the charge tomorrow 22 and potentially they can start deliberating, depending on what 23 time it is. But I agree -- 24 MR. EVERDELL: Your Honor, just on the issue of 25 timing, thinking it through, so we start at 9, we start right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 91 of 95 2829 LCIAMAX2ps 1 at 9 and the government has a two and a half hour closing, that puts us at 11:30, roughly, give or take. It would be the defense's request we don't break the defense closing through lunch. So I don't know how that impacts the schedule. 5 THE COURT: We do the best we can, is what I always say. 7 MR. EVERDELL: Understood. 8 THE COURT: We'll see where we are. We'll adjust and try not to break anything. 10 I'll have lunch here early, so that's a possibility. 12 MR. EVERDELL: Thank you, your Honor. 13 THE COURT: But, yes, I agree. And, you know, the charge, I think it was about 80 pages. My favorite part of the job is reading the charge. 16 MS. STERNHEIM: And ours to listen. 17 THE COURT: Nothing better. But I would guess an hour or so, we should get there. 19 OK. And the other thing I have on my to-do list, I always have the parties agree on the exhibits that are going back to the jury, and I get that on the record, so forgive me that I'm not sure exactly where we are under COVID protocols. 23 There was a time under COVID protocols where only electronic exhibits went back. I think, and Ms. Williams isn't here to tell me what's what, but I think now paper can go. Why don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014395 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 91 of 95 2829 LCIAMAX2ps 1 at 9 and the government has a two and a half hour closing, that 2 puts us at 11:30, roughly, give or take. It would be the 3 defense's request we don't break the defense closing through 4 lunch. So I don't know how that impacts the schedule. 5 THE COURT: We do the best we can, is what I always 6 say. 7 MR. EVERDELL: Understood. 8 THE COURT: We'll see where we are. We'll adjust and 9 try to not break anything. 10 I'll have lunch here early, so that's a 11 possibility. 12 MR. EVERDELL: Thank you, your Honor. 13 THE COURT: But, yes, I agree. And, you know, the 14 charge, I think it was about 80 pages. My favorite part of the 15 job is reading the charge. 16 MS. STERNHEIM: And ours to listen. 17 THE COURT: Nothing better. But I would guess an hour 18 or so, we should get there. 19 OK. And the other thing I have on my to-do list, I 20 always have the parties agree on the exhibits that are going 21 back to the jury, and I get that on the record, so forgive me 22 that I'm not sure exactly where we are under COVID protocols. 23 There was a time under COVID protocols where only electronic 24 exhibits went back. I think, and Ms. Williams isn't here to 25 tell me what's what, but I think now paper can go. Why don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017017 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 92 of 95 2830 LCIAMAX2ps you all confer. Go ahead, Ms. Sternheim. MS. STERNHEIM: I'm going to wait until you finish and then I'll -- THE COURT: What I'd like to do, when we meet, before the jury comes in tomorrow -- not tomorrow -- Monday, as much as I'd like to do it tomorrow. We'll meet at 8:30 on Monday, and I would like to get on the record the parties' agreement as to exactly what's going back to the jury, and Ms. Williams will give you our -- actually, we'll try to get that to you today or tomorrow -- list of what we have as admitted exhibits, and you can agree or tell us if we've got anything wrong. And I'll get your agreement on that list of admitted exhibits as well. Go ahead. MS. STERNHEIM: Thank you, Judge. My recommendation for efficiency purposes would be for the parties to agree on what portions of the transcript should be redacted in case the jury wants it, so that we don't have to do readback and then make copies of the transcript could go in. MS. COMEY: Agreed, your Honor. THE COURT: That is understood. Absolutely. So you'll have that ready by Monday. MS. STERNHEIM: Yes. THE COURT: Great. Thank you. Yes. And it is my practice to get that agreement and then send the paper back. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014396 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 92 of 95 2830 LCIAMAX2ps you all confer. Go ahead, Ms. Sternheim. MS. STERNHEIM: I'm going to wait until you finish and then I'll -- THE COURT: What I'd like to do, when we meet, before the jury comes in tomorrow -- not tomorrow -- Monday, as much as I'd like to do it tomorrow. We'll meet at 8:30 on Monday, and I would like to get on the record the parties' agreement as to exactly what's going back to the jury, and Ms. Williams will give you our -- actually, we'll try to get that to you today or tomorrow -- list of what we have as admitted exhibits, and you can agree or tell us if we've got anything wrong. And I'll get your agreement on that list of admitted exhibits as well. Go ahead. MS. STERNHEIM: Thank you, Judge. My recommendation for efficiency purposes would be for the parties to agree on what portions of the transcript should be redacted in case the jury wants it, so that we don't have to do readback and then make copies of the transcript could go in. MS. COMEY: Agreed, your Honor. THE COURT: That is understood. Absolutely. So you'll have that ready by Monday. MS. STERNHEIM: Yes. THE COURT: Great. Thank you. Yes. And it is my practice to get that agreement and then send the paper back. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017018 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 93 of 95 2831 LCIAMAX2ps 1 MS. STERNHEIM: We'll work on that. I know that the court reporters have often been very helpful in helping us do that as well. 2 THE COURT: All right. Anything else? 3 MR. ROHRBACH: On that point, your Honor, the parties are conferring on the redacted exhibits, and I anticipate we'll get a letter probably later today if not hopefully later today about exactly what the proposed redacted exhibits are, so that's finished in advance of the closing. 4 MR. EVERDELL: We're working on that. 5 THE COURT: OK. And have you worked out logistics on closings for the sealed material? 6 MS. COMEY: Yes, your Honor. I believe the plan is to do what we did with the video exhibits, which is to have the presentation from the parties up on the jurors' screens but not displayed on the public screens or in the overflow room. And we've also been working to get podium turned so that it's facing the jurors. 7 And then I think there will be paper copies of the presentations of the parties, for counsel who have screens that are facing the gallery. 8 THE COURT: Right. So there will be no -- orally, you're not going to refer to any real names of witnesses who testified by pseudonym, etc. That will at times be shown to the jury during the presentation, but that won't be publicly 9 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014397 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 93 of 95 2831 LCIAMAX2ps 1 MS. STERNHEIM: We'll work on that. I know that the court reporters have often been very helpful in helping us do that as well. 2 THE COURT: All right. Anything else? 3 MR. ROHRBACH: On that point, your Honor, the parties are conferring on the redacted exhibits, and I anticipate we'll get a letter probably later today if not hopefully later today about exactly what the proposed redacted exhibits are, so that's finished in advance of the closing. 4 MR. EVERDELL: We're working on that. 5 THE COURT: OK. And have you worked out logistics on closings for the sealed material? 6 MS. COMEY: Yes, your Honor. I believe the plan is to do what we did with the video exhibits, which is to have the presentation from the parties up on the jurors' screens but not displayed on the public screens or in the overflow room. And we've also been working to get podium turned so that it's facing the jurors. 7 And then I think there will be paper copies of the presentations of the parties, for counsel who have screens that are facing the gallery. 8 THE COURT: Right. So there will be no -- orally, you're not going to refer to any real names of witnesses who testified by pseudonym, etc. That will at times be shown to the jury during the presentation, but that won't be publicly 9 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017019 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 94 of 95 LCIAMAX2ps 2832 1 hone. 2 MS. COMEY: That's exactly right, your Honor. And to 3 the extent there are images that were sealed, those would also 4 not be shown to the public but would be shown to the jury. 5 THE COURT: OK. Understood. Any questions about 6 that? 7 MR. EVERDELL: No, your Honor. 8 THE COURT: Any demonstratives of any kind planned, 9 other than -- 10 MS. COMEY: The PowerPoint presentation, your Honor, 11 but -- 12 THE COURT: -- the PowerPoint, that does anything 13 other than show admitted evidence or testimony? 14 MS. COMEY: There may be some portions of the charge, 15 once it's finalized. It's possible that there would be text of 16 the final charge on the slides. But I don't think there would 17 be anything beyond that, or excerpts of the transcript from the 18 trial. 19 THE COURT: Right. 20 MR. EVERDELL: Actually on that point I didn't know 21 what the Court's practice was on that, whether the Court allows 22 the final charge excerpts to be used in the closing or whether 23 we do something else. 24 THE COURT: I do allow it. 25 MR. EVERDELL: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014398 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 94 of 95 2832 LCIAMAX2ps 1 hone. 2 MS. COMEY: That's exactly right, your Honor. And to 3 the extent there are images that were sealed, those would also 4 not be shown to the public but would be shown to the jury. 5 THE COURT: OK. Understood. Any questions about that? 6 7 MR. EVERDELL: No, your Honor. 8 THE COURT: Any demonstratives of any kind planned, 9 other than -- 10 MS. COMEY: The PowerPoint presentation, your Honor, 11 but -- 12 THE COURT: -- the PowerPoint, that does anything 13 other than show admitted evidence or testimony? 14 MS. COMEY: There may be some portions of the charge, 15 once it's finalized. It's possible that there would be text of 16 the final charge on the slides. But I don't think there would 17 be anything beyond that, or excerpts of the transcript from the 18 trial. 19 THE COURT: Right. 20 MR. EVERDELL: Actually on that point I didn't know 21 what the Court's practice was on that, whether the Court allows 22 the final charge excerpts to be used in the closing or whether 23 we do something else. 24 THE COURT: I do allow it. 25 MR. EVERDELL: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017020 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 95 of 95 2833 LCIAMAX2ps 1 THE COURT: But I'll hear if anybody has an objection. 2 MS. COMEY: No, your Honor. 3 MR. EVERDELL: No, your Honor. 4 THE COURT: OK. Anything else on that? 5 MR. EVERDELL: No. I think we just have to work a few redactions out. 6 7 THE COURT: And I think we have one more minor edit. 8 It was just a minor thing, but we can't find it. 9 10 Let me just note, I want to thank the court staff who worked on Saturday to make this possible, and my thanks to counsel and the parties for doing it. I appreciate everybody's willingness to work on a Saturday. Thank you. 11 12 13 Page 51, line 13, missing the word "at." "The government has to prove that at least one of the overt acts." 14 15 So inserting "at." 16 MR. EVERDELL: No objection, your Honor. 17 MR. ROHRBACH: Yes. 18 THE COURT: All right. We'll make that change. 19 With that, thank you, everyone. I will see you Monday at 8:30. 20 21 (Adjourned to 8:30 a.m., December 20, 2021) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014399 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 765 Filed 08/10/22 Page 95 of 95 2833 LCIAMAX2ps 1 THE COURT: But I'll hear if anybody has an objection. 2 MS. COMEY: No, your Honor. 3 MR. EVERDELL: No, your Honor. 4 THE COURT: OK. Anything else on that? 5 MR. EVERDELL: No. I think we just have to work a few 6 redactions out. 7 THE COURT: And I think we have one more minor edit. 8 It was just a minor thing, but we can't find it. 9 Let me just note, I want to thank the court staff who 10 worked on Saturday to make this possible, and my thanks to 11 counsel and the parties for doing it. I appreciate everybody's 12 willingness to work on a Saturday. Thank you. 13 Page 51, line 13, missing the word "at." "The 14 government has to prove that at least one of the overt acts." 15 So inserting "at." 16 MR. EVERDELL: No objection, your Honor. 17 MR. ROHRBACH: Yes. 18 THE COURT: All right. We'll make that change. 19 With that, thank you, everyone. I will see you Monday 20 at 8:30. 21 (Adjourned to 8:30 a.m., December 20, 2021) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00017021